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User Interface, Guide, And Menu Accessibility

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Released: May 30, 2013

Federal Communications Commission

FCC 13-77

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Accessibility of User Interfaces, and Video
)
MB Docket No. 12-108
Programming Guides and Menus
)

NOTICE OF PROPOSED RULEMAKING

Adopted: May 30, 2013

Released: May 30, 2013

Comment Date: [25 days after date of publication in the Federal Register]
Reply Comment Date: [50 days after date of publication in the Federal Register]

By the Commission: Commissioner Pai approving in part, concurring in part and issuing a statement.

TABLE OF CONTENTS

Heading
Paragraph #
I. INTRODUCTION.................................................................................................................................. 1
II. BACKGROUND.................................................................................................................................... 2
III. DISCUSSION ........................................................................................................................................ 5
A. Scope of Sections 204 and 205 ........................................................................................................ 6
B. Functions That Must Be Made Accessible .................................................................................... 30
C. Activating Accessibility Features (Comparable to a Button, Key, or Icon) .................................. 41
D. Making Accessible Devices Available Upon Request................................................................... 50
E. Alternate Means of Compliance .................................................................................................... 54
F. Enforcement................................................................................................................................... 55
G. Exemption for Small Cable Operators........................................................................................... 56
H. Timing............................................................................................................................................ 57
I. Elimination of Analog Closed Captioning Labeling Requirement and Renaming Part 79 ........... 59
IV. PROCEDURAL MATTERS................................................................................................................ 61
A. Ex Parte Presentations.................................................................................................................... 61
B. Initial Regulatory Flexibility Act Analysis.................................................................................... 62
C. Paperwork Reduction Act Analysis ............................................................................................... 64
D. Comment Filing Procedures .......................................................................................................... 65
V. ORDERING CLAUSE......................................................................................................................... 67
APPENDIX A - Proposed Rules
APPENDIX B - Initial Regulatory Flexibility Act Analysis
APPENDIX C - Relevant Portions of the CVAA

I.

INTRODUCTION

1.
With this Notice of Proposed Rulemaking (“NPRM”), we begin our implementation of
Sections 204 and 205 of the Twenty-First Century Communications and Video Accessibility Act

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(“CVAA”).1 These sections generally require that user interfaces on digital apparatus and navigation
devices used to view video programming be accessible to and usable by individuals who are blind or
visually impaired. Both of these sections also require that these devices provide a mechanism that is
“reasonably comparable to a button, key, or icon designated for activating” certain accessibility features.
As set forth below, we seek comment on whether to interpret Section 205 of the CVAA to apply to
navigation devices supplied by multichannel video programming distributors (“MVPDs”) and Section
204 of the CVAA to apply to all other “digital apparatus designed to receive or play back video
programming transmitted in digital format simultaneously with sound.” Alternatively, we seek comment
on whether to interpret Section 205 to apply to navigation devices, as that term is defined in section
76.1200 of the Commission’s rules, and Section 204 to apply to all other digital apparatus. Consistent
with our statutory mandate, we tentatively conclude that the requirement for the appropriate functions of
the digital apparatus or navigation device to be accessible covers all “user functions” of such apparatus
and devices, and that such functions do not include the debugging and diagnostic functions. In addition,
in accordance with the statute, we do not propose to specify the technical standards for making those user
functions accessible. Consistent with the report of the Video Programming Accessibility Advisory
Committee (“VPAAC”) that examined this topic, we propose to require that the 11 essential functions of
an apparatus identified by the VPAAC are representative, but not an exhaustive list, of the user functions
that must be made accessible to and usable by individuals who are blind or visually impaired. We also
seek comment on whether the most effective way to implement the requirement that certain accessibility
features be activated through a mechanism reasonably comparable to a button, key, or icon is to require
those features to be activated (and deactivated) in a single step. We tentatively conclude that we should
handle alternate means of compliance and enforcement matters in the same way that we implemented
those matters in other CVAA contexts. We propose deadlines consistent with those that the VPAAC
proposed. Finally, in addition to our implementation of the CVAA, we take this opportunity to modernize
our apparatus rules by proposing to eliminate the outdated requirement that manufacturers label analog
television sets based on whether they include a closed-caption decoder and rename Part 79 of our rules.

II.

BACKGROUND

2.
Section 204 of the CVAA, entitled “User Interfaces on Digital Apparatus,” directs the
Commission to require “if achievable (as defined in section 716) that digital apparatus designed to receive
or play back video programming transmitted in digital format simultaneously with sound” be built in a
way that makes them “accessible to and useable by individuals who are blind or visually impaired.”2
Section 204 also directs the Commission to require those apparatus to “buil[d] in access to those closed
captioning and video description features through a mechanism that is reasonably comparable to a button,
key, or icon designated for activating the closed captioning or accessibility features.”3 Section 204 also
states that “in applying this subsection the term ‘apparatus’ does not include a navigation device, as such
term is defined in section 76.1200 of the Commission’s rules.”4
3.
Section 205 of the CVAA, entitled “Access to Video Programming Guides and Menus
Provided on Navigation Devices,” imposes requirements relating to navigation devices. It directs the
Commission to require, “if achievable (as defined in section 716), that the on-screen text menus and

1 Pub. L. No. 111-260, § 204, 124 Stat. 2751 (2010). See also Amendment of Twenty-First Century
Communications and Video Accessibility Act of 2010, Pub. L. No. 111-265, 124 Stat. 2795 (2010) (making
technical corrections to the CVAA).
2 47 U.S.C. § 303(aa)(1)..
3 47 U.S.C. § 303(aa)(3).
4 47 U.S.C. § 303(aa)(4).
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guides5 provided by navigation devices (as such term is defined in section 76.1200 of title 47, Code of
Federal Regulations) for the display or selection of multichannel video programming are audibly
accessible in real-time upon request by individuals who are blind or visually impaired.”6 Section 205 also
directs the Commission to require, “for navigation devices with built-in closed captioning capability, that
access to that capability through a mechanism is reasonably comparable to a button, key, or icon
designated for activating the closed captioning, or accessibility features.”7
4.
On April 9, 2012, the Video Programming Accessibility Advisory Committee (“VPAAC”)
released the VPAAC Second Report: User Interfaces as directed by Section 201(e)(2) of the CVAA.8 In
it, VPAAC Working Group 4, which was the working group assigned to recommend ways to implement
Sections 204 and 205 of the CVAA, defined the functional requirements needed to carry out those
sections. Among other things, the VPAAC Second Report: User Interfaces lists 11 criteria that it deems
essential to make digital apparatus and navigation devices accessible.9 Working Group 4 stated that it
sought to develop the criteria without hindering innovation or product differentiation, and that “the
consumer marketplace [will] identify the optimal technologies and implementations.”10 The VPAAC
Second Report: User Interfaces
offers some examples of how to achieve the criteria, but stated that the
examples “are only meant to clarify the intent of the associated functional requirement.”11 The VPAAC
Second Report: User Interfaces
also lists “open issues” about which Working Group 4 could not develop
consensus; significantly, the members could not achieve consensus on a recommendation for the method
of turning closed captioning on and off.12 On April 24, 2012, the Commission released a Public Notice
seeking comment on the VPAAC Second Report: User Interfaces.13

III.

DISCUSSION

5.
We organize our discussion of Sections 204 and 205 of the CVAA into the following
sections: (A) Scope of Sections 204 and 205; (B) Functions That Must Be Made Accessible; (C)
Activating Accessibility Features; (D) Making Navigation Devices Available “Upon Request”; (E)
Alternate Means of Compliance; (F) Enforcement; (G) Exemption for Small Cable Operators; and (H)
Timing. In addition, we tentatively conclude that we should eliminate outdated closed captioning labeling
rules that apply to analog television receivers and rename Part 79 of our rules.

5 In this context, we interpret the term “guides” to mean “video programming guides,” which is the complete phrase
used in the title of Section 205. Pub. L. No. 111-260, § 205, 124 Stat. 2751, 2775 (2010).
6 47 U.S.C. § 303(bb)(1).
7 47 U.S.C. § 303(bb)(2).
8 Second Report of the Video Programming Accessibility Advisory Committee on the Twenty-First Century
Communications and Video Accessibility Act of 2010: User Interfaces, and Video Programming and Menus, April
9, 2012, available at http://apps.fcc.gov/ecfs/document/view?id=7021913531 (“VPAAC Second Report: User
Interfaces
”). Sections 204(b) and 205(b) state that “[w]ithin 18 months after the submission to the Commission of
the [VPAAC Second Report: User Interfaces], the Commission shall prescribe such regulations as are necessary to
implement” Sections 204 and 205. Therefore, we must prescribe our regulations by October 9, 2013.
9 Id. at 8.
10 Id. at 3.
11 Id. at 3.
12 Id. at 20-21.
13 Media Bureau and Consumer and Governmental Affairs Bureau Seek Comment on Second VPAAC Report: User
Interfaces, and Video Programming Guides and Menus
, 27 FCC Rcd 4191 (2012). In response this Public Notice,
we received six comments, one reply comment, one late-filed reply comment, and three ex parte letters.
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A.

Scope of Sections 204 and 205

6.
As stated above, Sections 204 and 205 of the CVAA require that accessible user interfaces
be included in two categories of equipment: “digital apparatus” and “navigation devices.” Specifically,
Section 204 applies to “digital apparatus designed to receive or play back video programming transmitted
in digital format simultaneously with sound, including apparatus designed to receive or display video
programming transmitted in digital format using Internet protocol.”14 Section 204 states that the “term
‘apparatus’ does not include a navigation device” as that term is defined in Section 76.1200 of the
Commission’s rules.15 Instead, accessibility requirements for “navigation devices” are governed by the
provisions of Section 205.16 Section 76.1200(c) defines “navigation devices” as “[d]evices such as
converter boxes, interactive communications equipment, and other equipment used by consumers to
access multichannel video programming and other services offered over multichannel video programming
systems.”17 Congress’ intended meaning of the terms “digital apparatus” and “navigation devices,” as
used in the context of Sections 204 and 205, however, is not entirely clear. We discuss below the
appropriate scope of Sections 204 and 205 and the interrelationship between these sections. Our goal is to
interpret these sections in a manner that best effectuates Congressional intent.
1.

Categories of Devices Covered Under Sections 204 and 205

7.
We seek comment on whether we should interpret Section 205 of the CVAA to apply only
to navigation devices that are supplied to subscribers by their MVPDs18 and Section 204 of the CVAA to
apply more broadly, covering all other digital apparatus that receive or play back video programming.
Under this interpretation, equipment provided to MVPD subscribers by MVPDs would be covered under
Section 205, while all other digital apparatus, including equipment purchased at retail by a consumer to
access video programming, would be covered under Section 204. 19 We seek comment on this
interpretation.
8.
We note that the statutory language of Section 205 could be read to apply to navigation
devices provided by MVPDs. Significantly, Section 205 contains numerous provisions that appear to
presume a preexisting relationship between the individual requesting or using the device, menu and/or
guide and the entity providing it. For example, Section 205(b)(3) states that an “entity shall only be

14 47 U.S.C. § 303(aa)(1). We will refer to this class of devices as “digital apparatus.”
15 47 U.S.C. § 303(aa)(4).
16 47 U.S.C. § 303(bb)(1) (requiring that “if achievable . . . that the on-screen text menus and guides provided by
navigation devices . . . for the display and selection of multichannel video programming are audibly accessible in
real-time upon request by individuals who are blind or visually impaired”); 47 U.S.C. § 303(bb)(2) (requiring that
“navigation devices with built-in closed captioning capability, that access to that capability through a mechanism is
reasonably comparable to a button, key, or icon designated for activating the closed captioning, or accessibility
features”).
17 47 C.F.R. § 76.1200(c).
18 Section 602 of the Communications Act of 1934 (“Communications Act”) defines a multichannel video
programming distributor as “a person such as, but not limited to, a cable operator, a multichannel multipoint
distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor, who
makes available for purchase, by subscribers or customers, multiple channels of video programming.” 47 U.S.C. §
522(13). The Commission’s rules adopt the same definition. See 47 C.F.R. § 76.800.
19 We recognize that under this interpretation Section 205 would apply to MVPD-provided equipment used to
receive non-video services, such as cable modems. We believe, however, that MVPDs would have no additional
obligations under Section 205 with respect to this non-video equipment as such equipment does not provide “on-
screen text menus and guides . . . for the display or selection of multichannel video programming” and does not have
“built-in closed captioning capability.” 47 U.S.C. §§ 303(bb)(1), (2). We seek comment on this analysis.
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responsible for compliance with the requirements [of Section 205(a)] with respect to navigation devices
that it provides to a requesting blind or visually impaired individual.”20 Likewise, Sections 205(b)(4) and
(b)(5) discuss the obligations of “the entity providing the navigation device.”21 We believe that Section
205’s references to an “entity” “providing” the device, menu or guide in these provisions could
reasonably be interpreted to mean an MVPD, because in contrast to a consumer electronics retailer that
offers consumers devices for purchase, an MVPD provides devices (typically for lease) to its customers
upon request. Accordingly, we believe that the Commission could reasonably conclude that MVPDs are
the entities “responsible for compliance” with Section 205, and the equipment, menus and guides these
entities provide to their subscribers are what Congress intended to cover under Section 205.
9.
In addition, Section 205(b)(4)(B) states that the entity providing the navigation device to the
requesting blind or visually impaired individual “shall provide any such software, peripheral device,
equipment, service, or solution at no additional charge and within a reasonable time to such individual.”22
This language also appears to be directed at MVPDs because the obligations identified in this provision –
responding to a “requesting individual” “within a reasonable time” and providing a device “at no
additional charge” – presupposes an existing relationship between the provider and the consumer. A
consumer enters a retail store or visits a retailer’s website and expects to be able to purchase the products
offered immediately, and does not expect to get them for free. In contrast, when an MVPD subscriber
contacts the MVPD to request an accessible device, the MVPD must either ship the device or schedule an
appointment to install it in the subscriber’s home. Either of these actions would take some amount of
time, and Congress could reasonably be understood to have sought, through this provision, to ensure that
MVPDs would fulfill these requests promptly and without greater expense to the consumer than if the
MVPD were providing inaccessible equipment to the consumer.23
10. Moreover, Section 205(b)(6), which sets out phase-in periods for compliance with these
rules, states that the Commission must provide “affected entities” with at least 3 years “to begin placing
in service
devices that comply with” accessibility requirements related to on-screen text menus and
guides.24 The phrase “placing in service” makes sense with respect to devices offered by MVPDs to their
subscribers;25 it does not appear to have any applicability to devices sold at retail.
11. Interpreting Section 205 to apply only to MVPD-supplied navigation devices, menus and
guides appears further supported by Section 205(b)(2), which allows the Commission to “provide an
exemption from the regulations [implementing Section 205(a)] for cable systems serving 20,000 or fewer
subscribers.”26 Inclusion of this specific exemption for cable operators seems to suggest that the “affected
entities” referred to in Section 205 are MVPDs. That is, if this section did not otherwise apply to
MVPDs, there would be no need for Congress to exempt cable operators from our regulations.
12. As demonstrated, the statutory language of Section 205 could reasonably be understood that
Congress’s aim in this section was to apply a specialized set of regulations to navigation devices, menus

20 Pub. L. No. 111-260, § 205(b)(3), 124 Stat. 2751, 2775 (2010) (emphasis added).
21 Pub. L. No. 111-260, § 205(b)(4), (b)(5), 124 Stat. 2751, 2775 (2010).
22 Pub. L. No. 111-260, § 205(b)(4)(B), 124 Stat. 2751, 2775 (2010).
23 See discussion infra at ¶ 48-51.
24 Pub. L. No. 111-260, § 205(b)(6)(A)(ii), 124 Stat. 2751, 2775 (2010) (emphasis added).
25 For instance, Section 76.1204 of our rules uses the term “place in service” in connection with an MVPD’s
deployment of leased navigation devices. See 47 C.F.R. § 76.1204(a)(1) (stating that MVPDs subject to the rule
cannot “place in service new navigation devices for sale, lease, or use that perform both conditional access and other
functions in a single integrated device.”) (emphasis added).
26 Pub. L. No. 111-260, § 205(b)(2), 124 Stat. 2751, 2775 (2010).
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and guides provided by MVPDs to their subscribers.27 We seek comment on the above interpretations of
the cited provisions.
13. We ask that commenters address potential drawbacks associated with this interpretation.
For example, given that no language in Section 205 explicitly limits the provision’s scope to navigation
devices supplied by MVPDs, is it permissible for us to interpret the statue in this manner? If we do so,
how do we give meaning to terms of the statute that refer more broadly to “navigation devices (as such
term is defined in section 76.1200 of title 47, Code of Federal Regulations) for the display or selection of
multichannel video programming”?28 Similarly, if we interpret Section 205 to only cover navigation
devices supplied by MVPDs, how do we explain the provisions that apply certain requirements set forth
in the statute to manufacturers of hardware and software?29
14. Moving to Section 204, this provision could be reasonably read to be directed towards
equipment manufacturers. For example, Section 204(a) amends Section 303 of the Communications Act
by adding language requiring that “digital apparatus . . . be designed, developed, and fabricated” to be
accessible, all terms that would apply to manufacturers.30 In addition, Section 204 indicates an intent by
Congress to cover a broad array of devices: “digital apparatus designed to receive or play back video
programming transmitted in digital format simultaneously with sound, including apparatus designed to
receive or display video programming transmitted in digital format using Internet protocol.”31 In the IP
Closed Captioning Order,
the Commission interpreted virtually identical statutory language contained in
Section 203 of the CVAA (codified in 47 U.S.C. § 303(u)(1)), to cover a wide array of physical devices
such as set-top boxes, PCs, smartphones and tablets, as well as integrated software.32 As noted below, we
believe the Commission could reasonably conclude that Congress intended the same broad meaning to
apply in the context of Section 204, and we seek comment on that interpretation.33
15. The intended scope of Sections 204 is muddied, however, by a reference in that section to
the term “navigation devices” as that term is defined by Section 76.1200 of the Commission’s rules.34
Specifically, Section 204 states that the “digital apparatus” covered under that section “does not include a
navigation device, as such term is defined in section 76.1200 of the Commission’s rules.”35 In contrast,
Section 205’s requirements expressly apply to “on-screen text menus and guides provided by navigation
devices (as such term is defined in section 76.1200 of title 47, Code of Federal Regulations).”36 Section
76.1200(c) defines “navigation devices” as “[d]evices such as converter boxes, interactive

27 Some of Section 205’s requirements appear to make more sense when viewed as applicable to MVPDs. As
another example, Section 205(b)(4)(A) uses the phrase “network-based service.” Pub. L. No. 111-260, §
205(b)(4)(A), 124 Stat. 2751, 2775 (2010). Although it is possible that some retail navigation devices may use a
network-based service, we believe it is more likely Congress used this term to refer to MVPD’s network-based
service, as third-party manufacturers and retailers would not ordinarily provide a “network-based service” to the
consumers who buy their devices. See discussion infra at ¶ 38. We seek comment on this interpretation.
28 47 U.S.C. § 303(bb)(1)
29 See 47 U.S.C. § 303(bb)(1)
30 See 47 U.S.C. § 303(aa)(1).
31 Id.
32 See IP Closed Captioning Report and Order, 27 FCC Rcd 787, 839 ¶ 93 (2012).
33 See discussion infra ¶ 22.
34 47 U.S.C. § 303(aa)(4).
35 Id.
36 47 U.S.C. § 303(bb)(1).
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communications equipment, and other equipment used by consumers to access multichannel video
programming and other services offered over multichannel video programming systems.”37 The
Commission has interpreted this term to encompass a broad array of “equipment used to access
multichannel video programming or services.” 38 For example, televisions, personal computers, cable
modems, and VCRs all fall under the Commission’s navigation devices definition.39
16. Given the broad scope of the term, however, interpreting the “navigation devices” exception
in Section 204 literally could largely nullify Section 204. Specifically, nearly all Section 204 digital
apparatus “designed to receive or play back video programming transmitted in digital format”40 would
also be classified as navigation devices under Section 76.1200(c) because they can be used “to access
multichannel video programming and other services offered over multichannel video programming
systems.”41 If we were to interpret the Section 204 exemption to exempt all “navigation devices” and not
just those provided by MVPDs, it is possible that the only devices that would be covered by Section 204
would be removable media players, such as DVD and Blu-ray players. This is because any device that has
a tuner, an audiovisual input,42 or IP connectivity could be considered a navigation device. We seek
comment on whether any other digital apparatus would be covered by Section 204 if we literally applied
the navigation devices exception contained in that section to all navigation devices.
17. We believe that references in Sections 204 and 205 to “navigation devices” can be
reasonably interpreted as language designed to prevent overlap in coverage between Sections 204 and
205; that is, a device can be a Section 204 device or a Section 205 device, but not both. We request
comment on whether we should interpret Section 205 to cover navigation devices provided by MVPDs
and Section 204 to exclude such devices, but otherwise to broadly cover all “apparatus designed to
receive or play back video programming transmitted in digital format simultaneously with sound” as that
term is broadly described in Section 204(a)(1).43 We believe that this interpretation is a reasonable one
under the tenet of statutory construction that requires statutory language be read in the context of the
larger statutory scheme. We could conclude that Congress intended to carve out of Section 204 a subset
of devices – MVPD-provided navigation devices covered by Section 205 – from the Section 204
provision that applies generally to all digital apparatus that receives or plays back video.44 Moreover,
interpreting the Section 204 exception for navigation devices broadly would appear to render virtually
meaningless Section 204’s statement that digital apparatus include “apparatus designed to receive or

37 47 C.F.R. § 76.1200(c).
38 See Implementation of Section 304 of the Telecommunications Act of 1996, Commercial Availability of Navigation
Devices
, 13 FCC Rcd 14775, 14784-85 (1998).
39 Id.
40 47 U.S.C. § 303(aa)(1).
41 47 C.F.R. § 76.1200(c). We note that any device with an IP connection uses “data access” services, such as
Internet access service. The Commission has defined “data access” services as “other services” for purposes of
Section 629 and Section 76.1200(c) of our rules. Implementation of Section 304 of the Telecommunications Act of
1996
, 14 FCC Rcd 7596, 7604, ¶ 17 (1999). Therefore, every device that uses Internet access service could be
considered a navigation device, regardless of whether it is also capable of accessing MVPD video programming.
42 An audio-visual input is an input that could connect to a set-top box to receive and display video service offered
over a multichannel video programming system.
43 47 U.S.C. § 303(aa)(1).
44 We note that under an alternate interpretation we could conclude that Congress wrote Section 204 to cover all
digital apparatus designed to play back or record video programming but then excluded almost all equipment that
does so. In other words, Section 205 would be the primary statutory provision and Section 204 would function as a
gap-filling backstop.
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display video programming transmitted in digital format using Internet protocol.” This is because we
believe that nearly any device that can display video programming using Internet protocol could use the
Internet protocol to access MVPD programming or other services, thereby making that device a
navigation device under the broad reading of that term. We seek comment on this interpretation.
18. We also find it notable that the National Cable & Telecommunications Association
(“NCTA”), which is comprised of cable operators, presumes that Section 205 applies to its members.
NCTA notes that “Congress granted cable operators ‘maximum flexibility’ to determine the manner of
compliance” with the obligations of Section 205, and NCTA makes no suggestion that this section applies
to any other entities beyond MVPDs.45 In recognizing that Section 205 applies to its members, NCTA
acknowledges that cable operators must provide accessible equipment for “blind or visually impaired
customers who request such a feature or function” and that “cable operators must provide it free of
charge.”46
19. The legislative history on this provision is scant, and offers no additional insight into
Congress’s intent as to the scope of Sections 204 and 205. Neither does the VPAAC Second Report: User
Interfaces
provide us any guidance on how best to interpret the scope of Sections 204 and 205. We note,
however, that the VPAAC Second Report: User Interfaces refers to devices covered by Section 205 as
“set-top boxes,” suggesting that, at a minimum, they presumed Congress did not intend Section 205 to
cover the broad universe of devices covered by Section 76.1200 of our rules.47 We seek comment on our
analysis. Could Section 205 alternatively be interpreted more broadly to apply not just to MVPD-
provided equipment but also to retail set-top boxes such as TiVos? If we were to interpret Section 205 to
apply also to those retail set-top boxes, how would we apply to that equipment the many provisions in
Section 205, analyzed above, that presume the complying entity is an MVPD?
20. Section 205 also includes a provision stating that, with respect to navigation device features
and functions delivered in software, the requirements of Section 205 “shall apply to the manufacturer of
such software,” and with respect to navigation device features and functions delivered in hardware, the
requirements of Section 205 “shall apply to the manufacturer of such hardware.”48 We seek comment on
why Congress might have included this provision, how this provision should be interpreted, and the
applicability of Section 205 to hardware and software manufacturers of navigation device features and
functions. Does the inclusion of this provision indicate that Congress intended that manufacturers of
hardware and software supplied to MVPDs for subscriber use share responsibility with MVPDs for
compliance under Section 205? If such manufacturers do share liability with MVPDs, would such
liability be joint and several?49 Should the provision be read only as Congress’ recognition that the
manufacturer of the hardware and/or developer of the software for MVPD-supplied equipment are often
different parties?
21. Alternatively, we seek comment on whether we should interpret the term “navigation
device” for purposes of Sections 20450 and 205 literally.51 Under a literal interpretation, the term would

45 See NCTA Comments at 3 (emphasis added).
46 Id.
47 VPAAC Second Report: User Interfaces at 9.
48 47 U.S.C. § 303(bb)(3).
49 In other words, if a consumer brought a complaint against an MVPD, would an MVPD be precluded from
asserting a defense that the issue underlying the complaint is solely a manufacturer problem, i.e., would the MVPD
be liable for a violation concerning their provided equipment regardless of whether the issue is manufacturer
related?
50 47 U.S.C. § 303(aa)(4).
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encompass the full array of equipment used to access multichannel video programming or services as
defined under the Commission’s rules52 regardless of whether such equipment is provided by an MVPD.
Under this interpretation, we would give literal effect to the language of the provision contained in
Section 204 stating that “the term ‘apparatus’ does not include a navigation device, as such term is
defined in section 76.1200 of the Commission’s rules”53 as well as the language of the provision in
Section 205 defining navigation devices by reference to section 76.1200 of the Commission’s rules.54 We
note that nowhere in the statute does it say that the navigation device carve-out contained in Section 204
or the term “navigation devices” in Section 205 applies only to navigation devices supplied by MVPDs.
Do these statutory provisions have a “plain” meaning as the courts have used that term?
22. If we adopted this interpretation, would Section 204 apply only to small subset of devices–
specifically, removable media players, such as DVD and Blu-ray players?55 Under this alternative
interpretation, would all other devices used to view video programming be covered under Section 205?
Would a literal reading of the navigation devices exemption in Section 204 render meaningless other
provisions of that section? For example, would literally interpreting the Section 204 exception for
navigation devices render meaningless Section 204’s statement that digital apparatus include “apparatus
designed to receive or display video programming transmitted in digital format using Internet protocol”
because every device with Internet connectivity is a navigation device under Commission precedent?56
23. In addition, we seek comment on what functions, if any, would need to be made accessible
under Section 205 if Section 205 applies to navigation devices purchased at retail. For example, do
smartphones, personal computers, and similar equipment that would be covered under this section under a
broad reading of navigation devices provide on-screen text menus and guides for the display of
multichannel video programming
? If not, would such devices escape the accessibility requirements of
Sections 204 and 205 altogether? We seek comment on this alternative interpretation of the statute. We
also seek comment on whether the text of the CVAA would permit the Commission to amend its
definition of “navigation devices” so that, for this specific purpose, the definition would cover only
MVPD-supplied navigation devices? In addition, we invite commenters to suggest any other
interpretation of the statute which would effectuate Congressional intent and be consistent with the
language contained in Sections 204 and 205 of the CVAA.
2.

Coverage of MVPD-Provided Applications and Other Software

24. We also seek comment on whether the requirements of Section 205 apply to applications
and other software developed by MVPDs to enable their subscribers to access their services on third-party
(Continued from previous page)__________________
51 47 U.S.C. § 303(bb)(1).
52 See Implementation of Section 304 of the Telecommunications Act of 1996, Commercial Availability of Navigation
Devices
, 13 FCC Rcd 14775, 14784-85 (1998).
53 47 U.S.C. § 303(aa)(4)
54 47 U.S.C. § 303(bb)(1)
55 As stated above, we seek comment on whether any other digital apparatus would be covered by Section 204 if we
broadly applied the navigation devices exception contained in that section. See supra ¶ 15.
56 In the alternative, should we interpret the conjunction “and” in section 76.1200(c) to require that “navigation
devices” be used by consumers to access both multichannel video programming and other services offered over
multichannel video programming systems? See 47 C.F.R. § 76.1200(c) (defining navigation devices to mean
“[d]evices. . . used by consumers to access multichannel video programming and other services offered over
multichannel video programming systems”). Under that interpretation, would a cable modem or a device that
streams Internet video, but cannot be used to access multichannel video programming, be a “navigation device”?
How would we reconcile this interpretation with Commission precedent? See supra ¶ 15, n.38. Would this
interpretation only apply for purposes of the CVAA?
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devices such as tablets, laptops, smartphones, or computers. For example, at least one MVPD currently
permits subscribers to access its entire package of video programming via an application that subscribers
can download to personal computers, tablets, smartphones, and similar devices.57 In this example, would
the MVPD’s application qualify as a navigation device subject to the requirements of Section 205?58 If
not, would it qualify as a digital apparatus under Section 204?59 Should the applicability of Section 205
(or 204) to an MVPD application be impacted by that application’s ability to fully replicate a subscriber’s
MVPD service versus providing only a subset of programming offerings? We recognize that some
MVPDs currently enable subscribers to access video programming both inside and outside the home (e.g.,
TV Everywhere offerings). Should it matter to our analysis whether the MVPD application can be used
outside the home? Does it matter whether the video programming is being delivered over the MVPD’s IP
network or through a different Internet Service Provider? If we interpret the term “navigation devices” to
include retail devices in addition to MVPD-provided navigation devices, how would we determine which
party is responsible when a consumer uses an MVPD-provided application on a device purchased at
retail?60 What responsibility do manufacturers of digital apparatus and navigation devices covered by
Sections 204 and 205 have to make such MVPD services accessible?
3.

Definition of Digital Apparatus Under Section 204

25. Regarding Section 204, we tentatively conclude that the term “digital apparatus” as used in
that section should be defined similarly to how the Commission defined the term “apparatus” when
implementing the closed captioning apparatus requirements of Section 203,61 but excluding the navigation
devices that are subject to Section 205.62 The descriptive language used in Sections 203 and 204 is
largely parallel.63 In the IP Closed Captioning Order, the Commission concluded that the scope of

57 We note that Cablevision delivers programming both to traditional set-top boxes and to IP devices using “its
secure and proprietary Advanced Digital Cable television network to deliver cable programming to customers for
viewing on the Optimum App for iPad [and other devices] and content is not delivered over the Internet. . . .
Customers do not need to have Internet access to use the Optimum App for iPad.” See Cablevision’s New Optimum
App Delivers the Full Cable Television Experience to an iPad in the Home, April 2, 2011, available at
http://www.prnewswire.com/news-releases/cablevisions-new-optimum-app-delivers-the-full-cable-television-
experience-to-an-ipad-in-the-home-119117379.html.
58 As noted above, Section 76.1200(c) defines navigation devices as “[d]evices such as converter boxes, interactive
communications equipment, and other equipment used by consumers to access multichannel video programming
and other services offered over multichannel video programming systems.” 47 C.F.R. § 76.1200(c).
59 See discussion infra at ¶ 23 (tentatively concluding that video players embedded, installed or required by the
manufacturers of digital apparatus fall within the scope of Section 204).
60 We note that Section 205 states that our regulations shall apply to software manufacturers when navigation device
features and functions are delivered in software and shall apply to hardware manufacturers when navigation device
features and functions delivered are delivered in hardware. 47 U.S.C. § 303(bb)(3). How, if at all, can we ensure
that hardware and software manufacturers will work together to make their products compatible and accessible?
61 See Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First
Century Communications and Video Accessibility Act of 2010
, 27 FCC Rcd 787, 839-43, ¶¶ 93-96 (2012) (“IP
Closed Captioning Order
”).
62 See 47 U.S.C. § 303(aa)(4) (stating that in applying Section 204, “the term ‘apparatus’ does not include a
navigation device, as such term is defined in section 76.12000 of the Commission’s rules (47 CFR 76.1200)”).
63 Section 203 applies to “apparatus 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.” 47 U.S.C. § 303(u)(1). Section 204 applies to “digital apparatus designed to receive
or play back video programming transmitted in digital format simultaneously with sound, including apparatus
designed to receive or display video programming transmitted in digital format using Internet protocol.” 47 U.S.C. §
303(aa)(1).
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apparatus covered by Section 203 should be defined to include “the physical device and the video players
that manufacturers install into the devices they manufacture (whether in the form of hardware, software,
or a combination of both) before sale, as well as any video players that manufacturers direct consumers to
install.”64 The Commission explained further that “apparatus” includes video players that manufacturers
embed in their devices (“integrated video players”), video players designed by third parties but installed
by manufacturers in their devices before sale, and video players that manufacturers require consumers to
add to the device after sale in order to enable the device to play video.65
26. We seek comment on our tentative conclusion to interpret “digital apparatus” similarly for
purposes of Section 204.66 Does the terminology or purpose of Sections 203 and 204 differ in any
material respects for the purpose of determining to what extent we should interpret the term “digital
apparatus” to apply to hardware and associated software, as described above? Should the fact that
Section 204 uses the term “digital” to modify apparatus (a modifier not present in Section 203) have any
significance for our analysis?67 How, as a practical matter, does this modifier affect the scope of
apparatus subject to Section 204? For example, are there any devices currently being manufactured or
marketed that are subject to Section 203 but should not be subject to Section 204 because such devices do
not receive or display video programming transmitted in a “digital format”?
27. The VPAAC points out that, in contrast to the “[s]et-top boxes” covered by Section 205,
digital apparatus subject to Section 204 “may have no native capability to decode and display
[audiovisual] content, but with a suitable downloaded application, such capability may be enabled.”68 If a
digital apparatus requires a downloaded application to enable the decoding and display of audiovisual
content how should that impact our analysis of whether the device is covered by Section 204?
28. We tentatively conclude that the inclusion of the phrase “including apparatus designed to
receive or display video programming transmitted in digital format using Internet protocol”69 is merely
meant to clarify that this provision should not be limited to more traditional video-programming
apparatus without IP functionality such as non-IP enabled televisions, and that the fact that this language
appears in Section 204 but not Section 203 should not result in a different interpretation of the scope of

64 IP Closed Captioning Order, 27 FCC Rcd at 840, ¶ 93 (citing Implementation of Sections 716 and 717 of the
Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act
of 2010
, 26 FCC Rcd 14557, 14582 at ¶ 69 (2011) (“ACS Order”) (“[m]anufacturers are responsible for the software
components of their [devices] whether they pre-install the software, provide the software to the consumer on a
physical medium such as a CD, or require the consumer to download the software.”).
65 Id. The Commission concluded that, if a manufacturer selects a third-party operating system that includes a video
player, that video player will also be considered part of the “apparatus” under Section 203. Id. The Commission
also required that manufacturer updates or upgrades to video player components of devices comply with Section
203. See id. However, Section 203 is not applicable to “third-party software that is downloaded or otherwise added
to the device independently by the consumer after sale and that is not required by the manufacturer to enable the
device to play video.” Id. at ¶ 94.
66 The Commission also found that removable media players, such as DVD and Blu-ray players, were subject to
Section 203. Id. at 845-46, ¶¶ 99-100. In addition, the Commission found that professional and commercial
equipment, such a movie theater projectors, were not subject to Section 203 on the ground that Congress intended
the Commission’s regulations to cover apparatus used by the public. See id. at 846-847, ¶ 101.
67 Section 204 specifies that it applies to “digital apparatus designed to receive or play back video programming
transmitted in digital format simultaneously with sound, including apparatus designed to receive or display video
programming transmitted in digital format using Internet protocol.” 47 U.S.C. § 303(aa)(1) (emphasis added).
68 VPAAC Second Report: User Interfaces at 9. The report defines “A/V Content” as “video programming
transmitted simultaneously with sound.” Id. at 6.
69 47 U.S.C. § 303(aa)(1).
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Section 204.70 We seek comment on this tentative conclusion.
29. We also tentatively conclude that we should interpret the term “designed to”71 as used in
Section 204 the same way that the Commission interpreted it in the IP Closed Captioning Order.72 There,
the Commission rejected the argument that we should evaluate whether a device is covered by focusing
on the original design or intent of the manufacturer of the apparatus.73 The Commission concluded
instead that “to determine whether a device is designed to receive or play back video programming, and
therefore covered by the statute, we should look to the device’s functionality, i.e. whether it is capable of
receiving or playing back video programming.”74 The Commission stated that this bright-line standard,
based on the device’s capability, will provide more certainty for manufacturers.75 It also stated that, “to
the extent a device is built with a video player, it would be reasonable to conclude that viewing video
programming is one of the intended uses of the device,” and that “[f]rom a consumer perspective, it
would also be reasonable to expect that a device with a video player would be capable of displaying
captions.”76 We seek comment on our proposal. In addition, although Section 204 does not contain the
limitation in Section 203 to apparatus “manufactured in the United States or imported for use in the
United States,” we propose applying that same limitation for purposes of our regulations. . We seek
comment on this proposal as well.

B.

Functions That Must Be Made Accessible

1.

Functions Required by Section 204

30. Section 204 directs the Commission to require that digital apparatus “be designed,
developed, and fabricated so that control of appropriate built-in apparatus functions” is “accessible to
and usable by individuals who are blind or visually impaired,”77 and “that if on-screen text menus or other
visual indicators built into the digital apparatus are used to access the [appropriate built-in apparatus
functions], such functions shall be accompanied by audio output . . . so that such menus or indicators are
accessible to and usable by individuals who are blind or visually impaired in real-time.”78 We tentatively
conclude that the “appropriate” functions that must be made accessible under Section 204 include all user
functions of the device, but that such user functions do not include the debugging/diagnostic functions.79

70 In addition, as the Commission stated in IP Closed Captioning Order, the phrase “uses a picture screen of any
size” in Section 203 was included to eliminate a prior screen-size limitation in our apparatus closed captioning rules.
Thus, it is of no import that this phrase was not included in Section 204. See IP Closed Captioning Order, 27 FCC
Rcd at 842-43, ¶ 96.
71 Section 204 applies to “digital apparatus designed to receive or play back video programming transmitted in
digital format simultaneously with sound, including apparatus designed to receive or display video programming
transmitted in digital format using Internet protocol.” 47 U.S.C. § 303(aa)(1) (emphasis added).
72 See IP Closed Captioning Order, 27 FCC Rcd at 842, ¶ 95.
73 Id.
74 Id.
75 Id.
76 Id.
77 47 U.S.C. § 303(aa)(1) (emphasis added).
78 47 U.S.C. § 303(aa)(2).
79 These functions, sometimes referred to as “service mode,” are functions that the manufacturer includes to help a
technician repair a device. Although the National Association of the Deaf (“NAD”) reasons that every function and
feature of an apparatus or navigation device is “essential” – stating that otherwise it wouldn’t be a feature of a
device – it did not comment specifically on debugging and diagnostic functions. NAD Comments at 2-3.
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We exclude the debugging/diagnostic functions as it is our understanding those functions are typically
accessed by technicians and repair specialists and are not intended for consumer use. We seek comment
on whether our understanding is correct or whether debugging/diagnostic functions should also be made
accessible.
31. As to which functions constitute the user functions of the apparatus other than
debugging/diagnostic functions, we look to the VPAAC Second Report: User Interfaces. This report
identified 11 “essential functions,” which VPAAC Working Group 4 defined as “the set of appropriate
built-in apparatus functions” referred to in Section 204.80 The 11 essential functions identified in the
VPAAC Second Report: User Interfaces are: (1) power on/off; (2) volume adjust and mute; (3) channel
and program selection; (4) channel and program information; (5) configuration – setup; (6) configuration
– closed captioning control; (7) configuration – closed captioning options; (8) configuration – video
description control; (9) display configuration info; (10) playback functions; and (11) input selection.81
Most of these are fairly self-evident, and the VPAAC Second Report: User Interfaces provides additional
information to describe them.82 The VPAAC explains that each of these functions requires “user input”
and “user feedback.” User input refers to how the user would activate the function (for example, the
power button for a device).83 User feedback refers to how the user can surmise that the device or
apparatus recognized and carried out the command.84 The VPAAC Second Report: User Interfaces
recommends that user input be readily identifiable, and that user feedback be readily accessible.85 We
seek comment on the list and the VPAAC’s explanations of these functions. We specifically seek
comment on the meaning of the ninth essential function, “display configuration info.” How does this
essential function differ from “Configuration – setup”? We also invite commenters to define these terms
more specifically if they believe that the VPAAC Second Report: User Interfaces’s descriptions do not
provide adequate guidance to manufacturers.
32. We tentatively conclude that the VPAAC Second Report: User Interfaces’s 11 essential
functions are representative, but not an exhaustive list, of the categories of user functions of an apparatus,
and therefore are examples of “appropriate built-in apparatus functions” as that term is used in Section
204 of the CVAA. We do not believe that Congress intended to limit the accessibility of digital apparatus
and navigation devices to the “essential” features and functions, or to some but not to all features and
functions that are typically accessed by and readily made available for consumers to use. In other words,
we believe that the term “appropriate” can be interpreted to distinguish between the diagnostic,
debugging, “service mode” functions and the user functions that consumers can access and use. We seek
comment on our tentative conclusion. At the same time, we seek comment on whether there are any other
functions that are not included in the 11 essential functions listed in the VPAAC Second Report: User
Interfaces
, such as V-Chip and other parental controls, that may provide additional guidance to
manufacturers. If any commenter believes that any of the 11 essential functions do not represent
appropriate functions that must be accessible, that commenter should identify and provide specific
examples of those inappropriate functions. Is there a mechanism that we can establish in this proceeding
to ensure that as new digital apparatus functions become available to consumers, they are also made
accessible? Should we assume that any newly developed non-debugging/diagnostic functions are
“appropriate” under the statute and should be made accessible unless a manufacturer receives a finding

80 VPAAC Second Report: User Interfaces at 7-8.
81 Id. at 8.
82 Id. at 10-15.
83 Id. at 9.
84 Id. at 9.
85 Id. at 10-15.
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from the Commission to the contrary, or should we allow manufacturers to argue in defense to a
complaint that a function was not made accessible because it was not an “appropriate function” under the
statute?
33. Section 204 applies to apparatus “designed to receive or play back video programming
transmitted in digital format simultaneously with sound, including apparatus designed to receive or
display video programming transmitted in digital format using Internet protocol.”86 We seek comment
on the extent to which apparatus manufacturers will need channel and program information (or other
information necessary to select programming) from third-party video programming distributors
(“VPDs”)87 to meet Section 204’s requirement that “on-screen text menus or other visual indicators built
in to the digital apparatus” be “accompanied by audio that is either integrated or peripheral to the
apparatus.”88 That is, if the apparatus is built to display visual information provided by a third party,
does the apparatus need to make that information accessible? For example, if an Internet-connected TV
includes a Netflix application, should we require that application to be accessible? Should we require
that third-party applications that a consumer might download and install be accessible? Who is
responsible for that accessibility? In implementing other Sections of the CVAA, the Commission
applied its rules to integrated software and to third-party applications that the manufacturer requires to be
downloaded, but not other third-party applications that a customer downloads and installs.89 We
tentatively conclude that we should take the same approach here, and we seek comment on that tentative
conclusion. If commenters disagree, they should explain how the manufacturer can obtain the necessary
information, such as guide data, from the VPD to make such information accessible to a user who is
blind or visually impaired and whether the Commission has the authority to require a VPD to make this
information accessible or pass through the necessary information to an apparatus. With respect to
apparatus that are not provided by the MVPD but access MVPD services, does 47 U.S.C. § 303(bb)(3) or
any other provision of the Communications Act provide the Commission with the authority to require
channel and program information to be made available to apparatus? As we discuss above in Section
III.A.2, we seek comment on whether MVPDs are responsible for the applications that they develop;
what responsibilities does an MVPD have to make channel and program information available to a third-
party application (for example, on a retail CableCARD device)?
34. In addition to the requirements related to accessibility of “on-screen text menus or other
visual indicators,” Section 204 also directs us to adopt regulations requiring that digital apparatus “be
designed, developed, and fabricated so that control of appropriate built-in apparatus functions are
accessible” to people who are blind or visually impaired. Of the 11 functions identified in the VPAAC
Second Report: User Interfaces
, only “power on/off” seems to be accessed other than through on-screen
guides and menus, and we believe that other buttons on an apparatus that are not on-screen text menus or
other visual indicators must also be made accessible. We seek comment on any other meaning of this
phrase; that is, what functions of digital apparatus do people access in a manner other than through on-
screen guides and menus? Does the inclusion of this provision in Section 204, but not in Section 205,
suggest that digital apparatus are subject to additional requirements not applicable to navigation devices?
2.

Functions Required by Section 205

35. Section 205 of the CVAA directs the Commission to require that “on-screen text menus and
guides provided by navigation devices . . . for the display or selection of multichannel video programming

86 47 U.S.C. § 303(aa)(1).
87 See 47 C.F.R. § 79.1(a)(2).
88 47 U.S.C. § 303(aa)(2).
89 IP Closed Captioning Order, 27 FCC Rcd at 840, ¶ 93 (citing ACS Order, 26 FCC Rcd 14557, 14582 at ¶ 69
(2011).
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are audibly accessible in real-time upon request.”90 We seek comment on whether, as a legal or policy
matter, there should be any substantive differences between the specific functions of apparatus that are
required to be made accessible under Section 204 as opposed to the specific functions of navigation
devices that are required to be accessible under Section 205. We tentatively conclude that all of the user
functions that are offered via on-screen text menus and guides should be accessible for navigation
devices. Although we recognize that Sections 204 and 205 use slightly different language (Section 205’s
accessibility requirement applies to on-screen text menus and guides only),91 we believe that all of a
navigation device’s user functions are activated via text menus and guides for the display or selection of
multichannel video programming. We seek comment on our tentative conclusion.
36. We tentatively conclude that the VPAAC Second Report: User Interfaces’s 11 essential
functions are representative, but not an exhaustive list, of the categories of functions that a navigation
device must make accessible.92 The VPAAC Second Report: User Interfaces stated that the “essential
functions,” are “applicable to devices covered under CVAA Section 204 and CVAA Section 205.”93 We
seek comment on whether requiring navigation devices to make the 11 essential functions identified by
the VPAAC accessible would achieve Section 205’s requirement that “on-screen text menus and guides
provided by navigation devices . . . for the display or selection of multichannel video programming are
audibly accessible in real-time upon request.” We seek comment on whether there are any other on-
screen text menus or guides provided for the display or selection of programming that are not included in
the 11 listed in the VPAAC Second Report: User Interfaces, such as V-Chip and other parental controls,
that may provide additional guidance to covered entities. As we asked in the Section 204 discussion
above, if any commenter believes that any of the 11 essential functions do not represent on-screen text
menus or guides that must be accessible, that commenter should identify and provide specific examples of
those inappropriate functions. Is there a mechanism that we can establish in the proceeding to ensure that
as new methods used to display or select multichannel video programming become available, they are
also made accessible? Should we assume that any newly developed “on-screen text menus and guides
provided by navigation devices” are covered under the statute and should be made accessible unless the
Commission finds to the contrary, or should we allow covered entities to argue in defense to a complaint
that a menu or guide was not made accessible because it was not “for the display or selection of
multichannel video programming” under the statute? Does Section 205 provide us authority to require
that MVPDs provide programming description information in programming guides for local programs
and channels for the purpose of promoting accessibility?94

90 47 U.S.C. § 303(bb)(1) (emphasis added).
91 Section 204 states, “that if on-screen text menus or other visual indicators built in to the digital apparatus are used
to access the functions of the apparatus described in paragraph (1), such functions shall be accompanied by audio
output that is either integrated or peripheral to the apparatus, so that such menus or indicators are accessible to and
usable by individuals who are blind or visually impaired in real time.” 47 U.S.C. § 303(aa)(2). Similarly, Section
205 requires that, “if achievable . . . that the on-screen text menus and guides provided by navigation devices . . . for
the display or selection of multichannel video programming are audibly accessible in real-time upon request by
individuals who are blind or visually impaired. . .” 47 U.S.C. § 303(bb)(1). We recognize that Section 204 includes
additional language without a corollary in Section 205, which requires digital apparatus be manufactured “so that
control of appropriate built-in apparatus functions are accessible to and usable by individuals who are blind or
visually impaired.” 47 U.S.C. § 303(aa)(1).
92 Again, we do not believe that debugging and diagnostic functions need to be accessible because they are not
necessary for the display or selection of video programming.
93 VPAAC Second Report: User Interfaces at 8 (emphasis added).
94 Letter from Gail A. Karish, Counsel for Montgomery County, Maryland’s Office of Cable and Broadband
Services, to Marlene H. Dortch, Secretary, Federal Communications Commission, MB Docket No. 12-108 (May 6,
2013); Letter from Gerard Lavery Lederer, Counsel to the National Associations of Counties, the U.S. Conference
(continued….)
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3.

User Input and Feedback

37. The VPAAC Second Report: User Interfaces suggests that user input and feedback should be
both visual and non-visual for all essential functions.95 We agree that this is a vital aspect of making
essential functions accessible to individuals who are blind or visually impaired, and note that a device can
accept input and provide non-visual feedback audibly or through touch.96 Sections 204 and 205 require,
respectively, that “on-screen text menus” (and guides, in the case of Section 205) be “accompanied by
audio output” and “audibly accessible in real-time.”97 We tentatively conclude that those feedback
requirements are self-implementing. With respect to other functions of an apparatus, we seek comment
on whether we should apply the guidance contained in Section 6.3(a) of our rules (which implements
Section 255 and 716 of the CVAA), to explain that “accessible” means
(1) Input, control, and mechanical functions shall be locatable, identifiable, and operable in
accordance with each of the following, assessed independently:
(i) Operable without vision. Provide at least one mode that does not require user vision.
(ii) Operable with low vision and limited or no hearing. Provide at least one mode that permits
operation by users with visual acuity between 20/70 and 20/200, without relying on audio
output.
(iii) Operable with little or no color perception. Provide at least one mode that does not require
user color perception.
* * *
(2) All information necessary to operate and use the product, including but not limited to, text,
static or dynamic images, icons, labels, sounds, or incidental operating cues, comply with each
of the following, assessed independently:
(i) Availability of visual information. Provide visual information through at least one mode in
auditory form.
(ii) Availability of visual information for low vision users. Provide visual information through at
least one mode to users with visual acuity between 20/70 and 20/200 without relying on audio.98
Do we need to specify how a device accepts input or provides feedback to individuals who are blind or
visually impaired with respect to the other functions of an apparatus, or will applying this guidance make
the device accessible? We seek comment on whether the functions other than “on-screen text menus” can
be made accessible in any way; that is, if the functions of the remote are made accessible in some way,
does the remote itself need to be accessible?99 We also seek comment on any other user input and
(Continued from previous page)__________________
of Mayors, and the National Association of Telecommunications Officers and Advisors, to Marlene H. Dortch,
Secretary, Federal Communications Commission, MB Docket No. 12-108 (May 6, 2013). Given the statutory
deadline we face to implement Sections 204 and 205, we ask commenters to limit their comments on this issue to
topics that directly affect individuals who are blind and visually impaired rather than television viewers at large.
95 Id. at 9.
96 In its comments, CEA requests that we not require that the user feedback be tactile, arguing that tactile feedback is
unnecessary to make devices accessible and that, for certain devices (such as touch screen tablets), providing tactile
feedback may be difficult for some manufacturers. CEA Comments at 5-8. We seek comment on CEA’s request.
97 47 U.S.C. §§ 303(aa)(2); 303(bb)(1).
98 47 C.F.R. § 6.3.
99 For example, if a blind or visually impaired person could activate all of the functions of a remote via a camera that
tracks movement or via voice commands, then would the remote itself also need to be accessible? See Dean
(continued….)
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feedback suggestions.
4.

Technical Standards

38. The CVAA states that the “Commission may not specify the technical standards, protocols,
procedures, and other technical requirements for meeting” the requirement to make appropriate digital
apparatus functions accessible to individuals who are blind or visually impaired.100 Given this limitation
on our authority, we seek comment on how the Commission can ensure that the rules it adopts in this
proceeding are properly implemented. We seek comment on specific metrics that the Commission can
use to evaluate accessibility and compliance with our implementation of Sections 204 and 205 of the
CVAA. Are there performance objectives or functional criteria that covered entities can look to
voluntarily as an aid in meeting these obligations?101 We also seek comment on any other steps the
Commission can take to promote accessibility in light of the statutory limitations.
5.

Achievability

39. Both Sections 204 and 205 of the CVAA state that we should make our rules regarding the
accessibility of user interfaces, guides, and menus effective only “if achievable (as defined in section
716).”102 According to Section 716(g) of the Communications Act, “achievable” means:
with reasonable effort or expense, as determined by the Commission. In determining
whether the requirements of a provision are achievable, the Commission shall consider
the following factors:
(1) The nature and cost of the steps needed to meet the requirements of this section with
respect to the specific equipment or service in question.
(2) 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.
(3) The type of operations of the manufacturer or provider.
(4) The extent to which the service provider or manufacturer in question offers accessible
services or equipment containing varying degrees of functionality and features, and
offered at differing price points.103
As the Commission has done in other contexts implementing the CVAA, we tentatively conclude that we
will weigh each of the four factors equally and evaluate achievability on a case-by-case basis.104 In the
(Continued from previous page)__________________
Takahashi, Goodbye remote control: PrimeSense shows off post-Kinect TV motion-sensing system, VULTUREBEAT,
Jan. 14, 2012, available at http://venturebeat.com/2012/01/14/goodbye-remote-control-primesense-shows-off-post-
kinect-tv-motion-sensing-system-video/.
100 47 U.S.C. § 303(aa)(1); 47 U.S.C. § 303(bb)(1).
101 See, e.g., U.S. Access Board, Information and Communication Technology (ICT) Standards and Guidelines
Advance Notice of Proposed Rulemaking to Implement Section 508 of the Rehabilitation Act of 1973, as amended,
available at http://www.access-board.gov/sec508/refresh/draft-rule.pdf; W3C’s Web Content Accessibility
Guidelines, available at http://www.w3.org/WAI/intro/wcag.
102 47 U.S.C. §§ 303(aa)(1), 303(bb)(1).
103 47 U.S.C. § 617(g).
104 ACS Order, 26 FCC Rcd at 14610-14619, ¶¶ 127-148; IP Closed Captioning Order, 27 FCC Rcd at 848-9, ¶¶
104-5 (2012); Accessible Emergency Information, and Apparatus Requirements for Emergency Information and
Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of
2010; Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act
of 2010
, , MB Docket No. 12-107, MB Docket No. 11-43, Report and Order and Further Notice of Proposed
Rulemaking, FCC 13-45, ¶¶ 67-68 (rel. April 9, 2013) (“Emergency Info Order”).
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event of a complaint over a possible violation of our rules under Sections 204 or 205, a covered entity
may raise as a defense that a particular apparatus or navigation device does not comply with the rules
because compliance was not achievable under the statutory factors. Alternatively, a covered entity may
seek a determination from the Commission before manufacturing or importing the apparatus or navigation
device as to whether compliance with all of our rules is achievable. In evaluating evidence offered to
prove that compliance was not achievable, the Commission will be informed by the analysis in the ACS
Order
.105 We seek comment on our tentative conclusion.
6.

Separate Equipment or Software

40. We seek comment on the directive in Section 205 that our regulations “shall permit but not
require the entity providing the navigation device to the requesting blind or visually impaired individual
to comply with [the on-screen text menu and guide accessibility requirements] through that entity's use of
software, a peripheral device, specialized consumer premises equipment, a network-based service or other
solution, and shall provide the maximum flexibility to select the manner of compliance.”106 Section 205
provides further that “the entity providing the navigation device to the requesting blind or visually
impaired individual shall provide any such software, peripheral device, equipment, service, or solution at
no additional charge and within a reasonable time to such individual and shall ensure that such software,
device, equipment, service, or solution provides the access required by such regulations.”107 We
tentatively conclude that this solution must achieve the same functions as a built-in accessibility solution
and must be provided by the entity providing the navigation device, rather than requiring the customer to
seek out such a solution from a third party. We seek comment on these tentative conclusions. We also
seek comment on how to define what is “a reasonable time” to give a requesting subscriber accessible
equipment. We tentatively conclude that the other requirements in this provision are self-implementing,
and we seek comment on our tentative conclusion.

C.

Activating Accessibility Features (Comparable to a Button, Key, or Icon)

41. In this Section, we seek comment on the mechanism that the Commission must establish for
consumers to activate the accessibility features of an apparatus or navigation device.
1.

Activating Closed Captioning and Video Description Features

42. Closed Captioning. Sections 204 and 205 both direct the Commission to require certain
apparatus and navigation devices with built-in closed captioning capability to provide access to closed
captioning features “through a mechanism that is reasonably comparable to a button, key, or icon
designated for activating the closed captioning or accessibility features.”108 Working Group 4 did not
reach consensus on what the phrase “reasonably comparable to a button, key, or icon” means, but it
provided the different language proposed by “consumer representatives” and “proposed by NCTA (and
endorsed by CEA and its member companies).”109 Consumer representatives proposed that the VPAAC
Second Report: User Interfaces
recommend a closed captioning button when a dedicated physical button
was used to control volume and/or channel selection,110 while NCTA, with CEA, proposed requiring only

105 See ACS Order, 26 FCC Rcd at 14607-14619, ¶¶ 119-148.
106 Pub. L. No. 111-260, §§ 205(b)(4)(A), 124 Stat. 2751, 2775 (2010).
107 Pub. L. No. 111-260, §§ 205(b)(4)(B), 124 Stat. 2751, 2775 (2010).
108 47 U.S.C. § 303(aa)(3); 47 U.S.C. § 303(bb)(2).
109 VPAAC Second Report: User Interfaces at 20.
110 VPAAC Second Report: User Interfaces at 20 (proposing that the report say: “When dedicated physical buttons
are used to control volume and/or channel selection, the controls for access to closed captions (or video description)
must also be dedicated physical buttons, comparable in location to those provided for control of volume or channel
selection.”).
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a mechanism “reasonably comparable to physical buttons” in those situations.111
43. We seek comment on whether the most effective way to implement the requirement in
Sections 204 and 205 that closed captioning be activated through a mechanism reasonably comparable to
a button, key, or icon would be to require the closed captioning feature to be activated in a single step.
That is, users would be able to activate closed captioning features on an MVPD-provided navigation
device or other digital apparatus immediately in a single step just as a button, key, or icon can be pressed
or clicked in a single step. We believe that this single-step proposal is consistent with Section 204 and
205’s language describing “a mechanism that is reasonably comparable to a button, key, or icon,”112 and
consistent with Congress’s intent “to ensure ready access to these features by persons with disabilities.”113
In addition, a single-step requirement is future-proofed in that it does not require that any particular
technology be used to enable accessibility, providing entities subject to Section 204 and 205 the
flexibility to continue to develop innovative compliance solutions. We seek comment on this concept,
and on what constitutes a single step.114 Alternatively, is the best solution to require that “[w]hen
dedicated physical buttons are used to control volume and/or channel selection, the controls for access to
closed captions (or video description) must also be dedicated physical buttons, comparable in location to
those provided for control of volume or channel selection,” as mentioned in the VPAAC Second Report:
User Interfaces
?115 For example, if volume on a particular device is controlled through the use of a
dedicated button, should we require that closed captioning on that device be activated through the use of a
dedicated button as well because it is a comparable function? What if the device does not have volume
control through the use of a dedicated button or has no volume control at all? How would the proposal by
consumer representatives mentioned in the VPAAC Second Report: User Interfaces operate in this
context? Should the Commission impose different activation mechanisms on different types of
apparatus? Should the Commission require that the closed captioning feature also be deactivated in a
single step?
44. We ask commenters to set forth the costs and benefits of our proposal as well as the costs
and benefits of any other proposals. Commenters should describe with specificity how their proposals
would be considered “reasonably comparable to a button, key or icon.” Further, we seek comment on
whether we should require covered entities to seek a Commission finding that a mechanism other than
button, key, or icon is reasonably comparable to those mechanisms before building it into an apparatus or
navigation device, or could they make that showing as a defense to a complaint? How should our
regulations apply with respect to programmable universal remotes that can be programmed with different
features?
45. Video Description. Section 204 explicitly requires certain apparatus to provide access to
closed captioning and video description features through a mechanism reasonably comparable to a button,

111 Id. (proposing that the report say: “When dedicated physical buttons are used to control volume and/or channel
selection, the controls for access to closed captions (or video description) must also be reasonably comparable to
physical buttons, comparable in accessibility to those provided for control of volume or channel selection.”).
112 47 U.S.C. §§ 303(aa)(3); 303(bb)(2).
113 H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 30 (2010); S.Rep. No. 111-386, 111th Cong., 2d Sess. at 14
(2010).
114 We believe that requiring a consumer to navigate a multi-step, main interface menu, such as a “Settings Menu,”
to activate closed captioning would not meet the single step proposal. However, we believe that a single step
requirement would not be violated where a user is merely required to repeat the same motion multiple times, such as
the double click of a button. Likewise, in the case of a graphical user interface designed to be controlled via mouse
or touch, requiring two “clicks” or “taps,” the first of which would display a captioning-specific option menu and
the second of which would select a closed captioning option, would meet a single step requirement.
115 VPAAC Second Report: User Interfaces at 20-21.
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key or icon.116 Section 205 includes a similar requirement for a mechanism reasonably comparable to a
button, key, or icon, but explicitly references only closed captioning capability; video description is not
mentioned. Section 205 does state, however, that the mechanism “should be reasonably comparable to a
button, key, or icon designated for activating the closed captioning, or accessibility features.”117 Despite
the fact that Section 205 does not use the term “video description is it reasonable for us to interpret
“accessibility features” in Section 205 to encompass video description?118 For example, does the phrase
“accessibility features” in Section 205 reference capabilities that the mechanism required by Section 205
must be able to access? Or is the term merely descriptive of the mechanism to which the mandated
mechanism must be reasonably comparable? Video description is an essential accessibility feature.
Therefore, would it be incongruous to require other digital apparatus to offer an activation mechanism for
video description, but not navigation devices? We note in this regard that our video description rules
currently apply to broadcasters and MVPDs. Thus, if accessibility requirements did not extend to video
description in navigation devices then the requirements will not apply to devices used to access a large
portion of video described programming. Given this, may we interpret the term “accessibility features” as
used in Section 205(b)(5) to include, at a minimum, video description? How, if at all, is such an
interpretation impacted by the heading in Section 205 that is titled “User Controls for Closed
Captioning”?119
46. We also seek comment on whether Sections 204 and 205 require single-step activation of
video description as we propose to require for closed captioning. We seek comment on whether a
solution may be different for closed captioning and video description. We believe that the single-step
approach is particularly appropriate for video description, given that following screen prompts (even on a
device compliant with the accessibility rules we propose in this NPRM) can be challenging for
individuals who are blind or visually impaired. We seek comment on whether Sections 204 and 205
require single-step activation of video description. We also seek comment on whether the fact that video
description is not specifically mentioned in Section 205 means that there should be a different activation
mechanism for video description for navigation devices.
2.

Activating Other Accessibility Features

47. We seek comment on the phrase “accessibility features.” Are there additional
“accessibility features” besides closed captioning and video description that Sections 204 and 205 require
be activated via a mechanism similar to a button, key, or icon?120 Or is the term merely descriptive of the
mechanism to which the mandated mechanism must be reasonably comparable and does not outline the
capabilities that the mandated mechanism must itself access? To the extent that Congress contemplated
additional “accessibility features,” did it intend to include access to secondary audio programming for
accessible emergency information as well as video description? In addition, should “accessibility
features” include the activation of the audible output of on-screen text menus or guides required by

116 47 U.S.C. § 303(aa)(3).
117 47 U.S.C. § 303(bb)(2) (emphasis added). We note that Section 204 includes the same language. 47 U.S.C. §
303(aa)(3).
118 Section 204 requires “that for such apparatus equipped with the functions described in paragraphs (1) and (2)
built in access to those closed captioning and video description features through a mechanism that is reasonably
comparable to a button, key or icon designated for activating the closed captioning or accessibility features.” 47
U.S.C. § 303(aa)(3). The comparable provision in Section 205 requires, “for navigation devices with built-in closed
captioning capability, that access to that capability through a mechanism is reasonably comparable to a button, key,
or icon designated for activating the closed captioning, or accessibility features.” 47 U.S.C. § 303(bb)(2).
119 Pub. L. No. 111-260, §§ 205(b)(5), 124 Stat. 2751, 2775 (2010).
120 47 U.S.C. § 303(bb)(2).
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Sections 204 and 205?121 If so, should we adopt the same single-step mechanism requirement to make
these features accessible, or would it be permissible under the statute to use different methods depending
on the feature involved?
48.
We also seek comment on whether the term “accessibility features” in Sections 204 and
205 includes accessibility settings (such as font, color, and size of captions or, in the case of audible
output of on-screen text menus or guides, settings such as volume, speed, and verbosity) as these settings
enable consumers to make practical use of the closed captioning and audible output. We seek comment
on how these settings must be made available. The NAD criticizes devices that require “the user [to]
navigate a maze of many choices before reaching the closed captioning settings.”122 Would a requirement
that accessibility settings be in the first level of a menu of a digital apparatus or navigation device address
this concern? By “first level of a menu,” we mean that “accessibility features,” such as closed captions,
video description and emergency information made available on the secondary audio stream, and audible
output of on-screen text menus or guides, would be one of the choices on an initial menu screen;
consumers would not need to navigate through a sub-menu to gain access to the menu of accessibility
features and settings. Would that concept still achieve accessibility for video description given that
screen prompts (even on a device compliant with the visual impairment accessibility rules we propose in
this NPRM) can be challenging for individuals who are blind or visually impaired? We invite any other
proposals that would make access to accessibility features easier for consumers and ask commenters to set
forth the costs and benefits of any such proposals. We also seek comment on any other issues related to
the activation of accessibility features, including how any adopted regulations should apply with respect
to programmable universal remotes.
3.

Maximum Flexibility

49. Section 205 also states that the Commission’s rules should permit the entity providing the
navigation device “maximum flexibility in the selection of means for compliance” with the mechanism
for making accessibility features accessible.123 In its comments, NCTA asserts that “the plain language
[of the CVAA] shows that Congress did not require cable operators and other MVPDs to include closed
captioning buttons on their remote controls.”124 It is unclear from NCTA’s comments, however, how it
proposes that MVPDs comply with the requirement that accessibility features be made accessible.
Although we recognize that Congress intended to afford covered entities “maximum flexibility” in
complying with our rules, we do not interpret this term to mean that covered entities have unlimited
discretion in determining how to fulfill the purposes of the statute. To interpret their “flexibility” in such
a manner could potentially undermine the very intent of Section 205, which is to ensure that navigation
devices are accessible to individuals with disabilities. In any event, we seek comment on whether our
single-step activation proposal with regard to closed captioning and video description provides the

121 By “audible output of on-screen text menus or guides,” we mean the “audio output” that must accompany on-
screen text menus on apparatus under Section 204 and the “audibly accessible” text menus and guides that Section
205 requires. 47 U.S.C. §§ 303(aa)(2), 303(bb)(1),
122 NAD Comments at 7.
123 Pub. L. No. 111-260, § 205(b)(5), 124 Stat. 2751, 2775 (2010). As discussed above, we believe that the term
“entity” in Section 205 can reasonably be interpreted to refer to MVPDs providing equipment to subscribers. See
discussion supra ¶¶ 8-9. We seek comment on how to interpret Section 205’s grant of “maximum flexibility” if the
term “entity” in Section 205 is interpreted differently.
124 NCTA Comments at 4. We assume that NCTA only addressed maximum flexibility in the context of MVPD
accessibility obligations with respect to closed captioning because it does not believe that the term “accessibility
features” used in Section 205 also includes video description. See id. at 3 n.10.
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flexibility contemplated by the statute.125 What other mechanism is reasonably comparable to a button,
key, or icon that would satisfy this requirement where a navigation device is provided with a remote
control? We seek comment on how the Commission can interpret “maximum flexibility” with regard to
activation mechanisms and yet still effectuate the goals of the statute.

D.

Making Accessible Devices Available “Upon Request”

50. Section 205 directs us to require that guides and menus be made accessible “upon
request,”126 and states that, “[a]n entity shall only be responsible for compliance with the requirements
added by this section with respect to navigation devices that it provides to a requesting blind or visually
impaired individual.”127 We interpret this section to require covered entities to provide accessible
navigation devices to requesting subscribers “within a reasonable time.”128 We also interpret Section
205’s “upon request” language to apply to on-screen text menu and guide accessibility. Does this
language also apply to the requirement that closed captioning and other accessibility features be activated
via a mechanism that is reasonably comparable to a button, key, or icon?
51. We note that Section 205(b)(3) states that an “entity shall only be responsible for
compliance with the requirements added by this section with respect to the navigation devices that it
provides to a requesting blind or visually impaired individual.”129 We seek comment on how this
provision should be read in conjunction with the requirement in Section 303(bb)(2) that pertains to
accessing closed captioning capabilities.130 Does Section 205(b)(3) of the CVAA apply to Section
303(bb)(2) of the Communications Act? A literal interpretation of Section 205(b)(3) would require that
compliant closed captioning mechanisms need only be made available to requesting individuals who are
blind or visually impaired. However, we note that this interpretation would lead to anomalous results as
it is individuals who are deaf or hard of hearing who typically use closed captioning rather than
individuals who are blind or visually impaired. Moreover, both Section 205(a), creating the requirement
for on-screen text menus and guides for the display or selection of multichannel video programming to be
audibly accessible, as well as Section 205(b)(4)(B), describing the provision of software and other
solutions for making navigation devices accessible, only make reference to people who are blind and
visually impaired with respect to requests that will be made under this section. Does the fact that these
two sections focus on making navigation devices accessible to people with vision disabilities and do not
reference people who are deaf and hard of hearing provide permissible justification for not making
requests a pre-requisite to providing “a mechanism [that is] reasonably comparable to a button, key, or
icon designated for activating the closed captioning, or accessibility features” required under Section
303(bb)(2) of the Communications Act? In other words, was it Congress’s intent for responsible entities
to include the closed captioning mechanism on all applicable devices?
52. Alternatively, does the word “responsibility” in Section 205(b)(3) of the CVAA mean
liability for money damages? Under that reading, could the Commission order a covered entity to comply
with Section 205(b)(3) but only impose a forfeiture if a blind or visually impaired individual has

125 We note that we do not propose to mandate a button, key or icon to satisfy the requirements of the statute though,
of course, such solutions would appear to be compliant.
126 47 U.S.C. § 303(bb)(1).
127 Pub. L. No. 111-260, § 205(b)(3), 124 Stat. 2751, 2774 (2010).
128 Pub. L. No. 111-260, § 205(b)(4)(B), 124 Stat. 2751, 2775 (2010).
129 Pub. L. No. 111-260, § 205(b)(3), 124 Stat. 2751, 2774 (2010).
130 47 U.S.C. § 303(bb)(2) (directing the Commission to require “for navigation devices with built-in closed
captioning capability, that access to that capability through a mechanism is reasonably comparable to a button, key,
or icon designated for activating the closed captioning, or accessibility features.”).
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requested access to the closed-captioning capability? Or is Section 205(b)(3) of the CVAA designed to
shield an entity from liability for equipment they did not distribute (e.g., if a consumer purchases a
navigation device at retail, the consumer’s MVPD is not responsible for the accessibility of that device)?
53. We also seek comment on whether a “request” could take any form (e.g., a phone call, an e-
mail, or a request made in-person). How can we ensure that MVPDs have a sufficient supply of
accessible equipment in inventory to meet anticipated demand for accessible devices? We also seek
comment on whether we should require MVPDs to notify their subscribers in braille or other accessible
format that accessible devices are available upon request, and if so, how MVPDs should notify their
subscribers (e.g., bill inserts). In addition to, or instead of, requiring MVPDs to notify subscribers, what
other procedures could we adopt to ensure that individuals who are blind or visually impaired know that
they can request an accessible navigation device? We further seek comment on whether Section 205
requires MVPDs to provide accessible versions of all the classes of navigation devices they make
available to subscribers, so that subscribers seeking accessibility features can choose among various price
points and features. How would this provision apply to retail navigation devices if we conclude that retail
navigation devices fall under the scope of Section 205? Finally, to the extent that Section 205 applies
more broadly to other entities besides MVPDs, we seek comment on how these requirements should be
implemented.

E.

Alternate Means of Compliance

54. Section 204 of the CVAA states that an entity may meet the requirements of Section 204(a)
“through alternate means than those prescribed by” the regulations that we adopt.131 In implementing a
similar provision in Section 203 of the CVAA, the Commission has allowed parties either to “(i) request a
Commission determination that the proposed alternate means satisfies the statutory requirements through
a request pursuant to Section 1.41 of our rules; or (ii) claim in defense to a complaint or enforcement
action that the Commission should determine that the party’s actions were permissible alternate means of
compliance.”132 We tentatively conclude to adopt this approach in the instant proceeding. In addition, as
the Commission has done in other contexts, rather than specify what may constitute a permissible
“alternate means,” we tentatively conclude that we will address any specific requests from manufacturers
when they are presented to us.

F.

Enforcement

55. We tentatively conclude that we should adopt the same complaint filing procedures that the
Commission adopted in the IP-closed captioning context. Those procedures (i) require complainants to
file within 60 days after experiencing a problem; (ii) allow complainants to file their complaints either
with the Commission or with the entity responsible for the problem; (iii) provide the entity 30 days to
respond to the complaint; (iv) do not specify a time frame within which the Commission must act on
complaints; (v) follow the Commission’s flexible, case-by-case forfeiture approach governed by Section
1.80(b)(6) of our rules; (vi) specify the information that the complaints must include as set forth below;
and (vii) require covered entities to make contact information available to end users for the receipt and
handling of written complaints.133 Such complaints should include: (a) the complainant’s name, postal
address, and other contact information, such as telephone number or email address; (b) the name and
contact information, such as postal address, of the apparatus or navigation device manufacturer or
provider; (c) information sufficient to identify the software or device used; (d) the date or dates on which
the complainant purchased, acquired, or used, or tried to purchase, acquire, or use the apparatus or
navigation device; (e) a statement of facts sufficient to show that the manufacturer or provider has

131 Pub. L. No. 111-260, § 204(c), 124 Stat. 2751, 2774 (2010).
132 IP Closed Captioning Order, 27 FCC Rcd at 831, ¶ 74; Emergency Info Order at ¶ 75.
133 IP Closed Captioning Order, 27 FCC Rcd at 831-8, ¶¶ 75-91; Emergency Info Order at ¶ 78-79.
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violated or is violating the Commission’s rules; (f) the specific relief or satisfaction sought by the
complainant; (g) the complainant’s preferred format or method of response to the complaint;134 and (h) if
a Section 205 complaint, the date that the complainant made an accessibility request and the person or
entity to whom that request was directed. We also propose that a complaint alleging a violation of the
apparatus or navigation device rules that we adopt in this proceeding may be transmitted to the Consumer
and Governmental Affairs Bureau by any reasonable means, such as the Commission’s online informal
complaint filing system, letter in writing or Braille, facsimile transmission, telephone (voice/TRS/TTY),
e-mail, or some other method that would best accommodate the complainant’s disability. Because our
rules are intended to make apparatus and guides accessible to individuals who are blind or visually
impaired, we propose that if a complainant calls the Commission for assistance in preparing a complaint,
Commission staff will document the complaint in writing for the consumer and such communication will
be deemed to be a written complaint. We also propose that the Commission will forward such
complaints, as appropriate, to the named manufacturer or provider for its response, as well as to any other
entity that Commission staff determines may be involved, and that the Commission be permitted to
request additional information from any relevant parties when, in the estimation of Commission staff,
such information is needed to investigate the complaint or adjudicate potential violations of Commission
rules. Finally, we seek comment on whether any revisions to FCC Form 2000C, the disability access
complaint form are necessary, and if so, what revisions are needed?

G.

Exemption for Small Cable Operators

56. Section 205 states that the Commission “may provide an exemption from the regulations for
cable systems serving 20,000 or fewer subscribers.”135 We note that the use of “may” suggests that
adoption of such an exemption is discretionary. Should the Commission adopt such an exemption? What
would be the costs and benefits of permitting this exemption? Commenters should address the factors the
Commission should consider in determining whether this exemption is appropriate. To the extent we do
adopt such an exemption, what alternatives would subscribers with disabilities have in the areas that are
served by MVPDs that are subject to the exemption? Instead of exempting such small cable systems
completely, would it be appropriate to provide them more time with which to comply with the
regulations? How should we interpret this provision if we require entities besides MVPDs to comply
with the requirements of Section 205?

H.

Timing

57. Section 205 of the CVAA provides that with respect to the navigation device rules we adopt
that require a mechanism comparable to a button, key, or icon, “[t]he Commission shall provide affected
entities with not less than 2 years after the adoption of such regulations to begin placing in service devices
that comply with the requirements.”136 The CVAA also provides that with respect to the navigation
device accessibility rules that we adopt, we shall provide affected entities with “not less than 3 years after
the adoption of such regulations to begin placing in service devices that comply with the requirements.”137
The VPAAC recommends that we adopt these minimum phase-in periods, but that they run from the date
of publication of the regulations in the Federal Register, rather than from the date of adoption.138 We
tentatively conclude that we should adopt the VPAAC’s recommendation because the recommendation
was developed via consensus with support from the industry that should have an understanding of how
long the development process for these devices will take. If commenters advocate a longer phase-in

134 IP Closed Captioning Order, 27 FCC Rcd at 859-60, ¶ 123; Emergency Info Order at ¶ 78-79.
135 Pub. L. No. 111-260, § 20+5(b)(2), 124 Stat. 2751, 2775 (2010).
136 Pub. L. No. 111-260, § 205(b)(6), 124 Stat. 2751, 2775 (2010).
137 Id.
138 VPAAC Second Report: User Interfaces at 15.
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period, they should provide a detailed justification for why more time is necessary.
58. Section 204 does not provide a phased-in requirement with respect to digital apparatus, other
than that a “digital apparatus designed and manufactured to receive or play back the Advanced Television
System Committee’s Mobile DTV Standards A/153 shall not be required to meet the requirements of the
regulations” adopted under Section 204 until at least two years after the date the final rules are published
in the Federal Register.139 The VPAAC Second Report: User Interfaces suggests that the Commission
make its rules regarding digital apparatus effective two years after publication of final rules in the Federal
Register, consistent with the time frame given for compliance with both the ACS and IP closed captioning
rules adopted pursuant to the CVAA.140 We tentatively conclude that we should adopt this
recommendation because the recommendation was developed via consensus with support from the
industry that should have an understanding of how long the development process for these devices will
take. Commenters advocating longer phase-in periods for the various components of the Section 204 rules
or for any class of apparatus should provide a detailed justification for why more time is necessary.

I.

Elimination of Analog Closed Captioning Labeling Requirement and Renaming
Part 79

59. Finally, although this is not mandated by the CVAA, we take the opportunity to seek
comment on a proposal to update our closed captioning apparatus rules. We tentatively conclude that we
should remove the requirement that manufacturers label analog television receivers based on whether they
contain an analog closed captioning decoder, as well as the requirement that manufacturers include
information in the television’s user manual if the receiver implements only a subset of the analog closed
captioning functionality.141 We find that this rule is no longer necessary. Our regulations required that by
March 1, 2007, all televisions contain a digital television receiver142 and, by extension, a digital closed
captioning decoder.143 Thus, all television receivers being sold today are required to implement the
features of digital closed captioning, which are more extensive than the features required for analog
closed captioning. We believe that there are no televisions being manufactured in or imported into the
United States today that implement only a subset of the analog closed captioning functionality.
Therefore, we do not see the need to require the labeling of television receivers that include analog tuners,
nor do we see the need to maintain the requirement that user manuals indicate if a device does not support
all of the aspects of the analog closed captioning standard. We seek comment on this analysis and on our
proposal to eliminate the analog labeling requirement.
60. Second, we propose to rename Part 79 of the Commission’s rules to better organize our
rules. With the proposed addition of the user interface rules outlined above, Part 79 has expanded in
scope beyond closed captioning and video description of broadcast and MVPD programming to more
broadly encompass the accessibility of video programming, of which closed captioning and video
description are a part. Therefore, we propose to rename Part 79 to the more general, “Accessibility of
Video Programming.” Additionally, we believe that dividing Part 79 into two subparts—one that
includes rules that apply to video programming owners, providers, and distributors, and one that includes
rules that apply to apparatus—will help readers browse our rules. Therefore, we propose to establish a

139 Pub. L. No. 111-260, § 204(d), 124 Stat. 2751, 2774 (2010).
140 VPAAC Second Report: User Interfaces at 15.
141 See 47 C.F.R. § 79.101(m). The analog closed captioning rules were originally located in Part 15 of the
Commission’s rules, at 47 C.F.R. 15.119, but were moved for clarity and other purposes to Part 79 during the
Commission’s implementation of IP Closed Captioning as a result of the 21st Century Communications and Video
Accessibility Act. See IP Closed Captioning Order, 27 FCC Rcd 787.
142 See 47 C.F.R. § 15.117(i).
143 47 C.F.R. § 79.102.
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Subpart A, entitled “Video Programming Owners, Distributors, and Providers,” to contain those rules
regarding the provision of various services, and a Subpart B, “Apparatus,” to contain those rules
pertaining to devices and other equipment used to receive, play back, or record video programming. We
seek comment on these proposed changes.

IV.

PROCEDURAL MATTERS

A.

Ex Parte Presentations

61. The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in
accordance with the Commission’s ex parte rules.144 Persons making ex parte presentations must file a
copy of any written presentation or a memorandum summarizing any oral presentation within two
business days after the presentation (unless a different deadline applicable to the Sunshine period applies).
Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation
must (1) list all persons attending or otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and arguments made during the
presentation. If the presentation consisted in whole or in part of the presentation of data or arguments
already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the
presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or
other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be
found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission
staff during ex parte meetings are deemed to be written ex parte presentations and must be filed
consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has
made available a method of electronic filing, written ex parte presentations and memoranda summarizing
oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment
filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt,
searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex
parte
rules.

B.

Initial Regulatory Flexibility Analysis.

62. The Regulatory Flexibility Act of 1980, as amended (“RFA”), requires that a regulatory
flexibility analysis be prepared for notice and comment rule making proceedings, unless the agency
certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial
number of small entities.” The RFA generally defines the term “small entity” as having the same
meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In
addition, the term “small business” has the same meaning as the term “small business concern” under the
Small Business Act. A “small business concern” is one which: (1) is independently owned and operated;
(2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the
Small Business Administration (SBA).
63. With respect to this Notice, an Initial Regulatory Flexibility Analysis (“IRFA”) under the
Regulatory Flexibility Act145 is contained in Appendix B. Written public comments are requested in the
IFRA, and must be filed in accordance with the same filing deadlines as comments on the Notice, with a
distinct heading designating them as responses to the IRFA. The Commission will send a copy of this
Notice, including the IRFA, in a report to Congress pursuant to the Congressional Review Act. In
addition, a copy of this Notice and the IRFA will be sent to the Chief Counsel for Advocacy of the SBA,
and will be published in the Federal Register.

144 47 C.F.R. §§ 1.1200 et seq.
145 See 5 U.S.C. § 603.
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C.

Paperwork Reduction Act Analysis.

64. This document contains proposed new and modified information collection requirements.
The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public
and the Office of Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public
Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-
198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might “further reduce the
information collection burden for small business concerns with fewer than 25 employees.”

D.

Comment Filing Procedures

65. Pursuant to sections 1.415 and 1.419 of the Commission’s rules, 47 CFR §§ 1.415, 1.419,
interested parties may file comments and reply comments on or before the dates indicated on the first
page of this document. Comments may be filed using the Commission’s Electronic Comment Filing
System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

Electronic Filers: Comments may be filed electronically using the Internet by accessing the
ECFS: http://fjallfoss.fcc.gov/ecfs2/.

Paper Filers: Parties who choose to file by paper must file an original and one copy of each
filing. If more than one docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s
Secretary, Office of the Secretary, Federal Communications Commission.

All hand-delivered or messenger-delivered paper filings for the Commission’s Secretary
must be delivered to FCC Headquarters at 445 12th St., SW, Room TW-A325,
Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries
must be held together with rubber bands or fasteners. Any envelopes and boxes must be
disposed of before entering the building.

Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority
Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th
Street, SW, Washington DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities
(braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
66. Additional Information: For additional information on this proceeding, please contact
Brendan Murray of the Media Bureau, Policy Division, Brendan.Murray@fcc.gov, mailto:(202) 418-
1573, or Adam Copeland of the Media Bureau, Policy Division, Adam.Copeland@fcc.gov, (202) 418-
1037.
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V.

ORDERING CLAUSE

67. Accordingly,

IT IS ORDERED

that, pursuant to the authority contained in Sections 1, 4(i),
4(j), 303(r), 303(aa), and 303(bb) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
154(i), 154(j), 303(r), 303(aa), and 303(bb), and Sections 204 and 205 of the Twenty-First Century
Communications and Video Accessibility Act, Pub. L. No. 111-260, §§ 204 and 205, this Notice of
Proposed Rulemaking

IS ADOPTED

.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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APPENDIX A

Proposed Rules

PART 79 – Closed Captioning and Video Description of Video Programming

1. The authority citation for Part 79 continues to read as follows:
AUTHORITY: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 330, 544a, 613, 617.
2. Rename Part 79 as follows:
PART 79 – Accessibility of Video Programming
3. Revise the Table of Contents for Part 79 to add Subparts A and B as follows:
Subpart A – Video Programming Owners, Providers, and Distributors
§ 79.1 Closed captioning of video programming.
§ 79.2 Accessibility of programming providing emergency information.
§ 79.3 Video description of video programming.
§ 79.4 Closed captioning of video programming delivered using Internet protocol.
Subpart B – Apparatus
§ 79.100 Incorporation by reference.
§ 79.101 Closed caption decoder requirements for analog television receivers.
§ 79.102 Closed caption decoder requirements for digital television receivers and converter
boxes.
§ 79.103 Closed caption decoder requirements for all apparatus.
§ 79.104 Closed caption decoder requirements for recording devices.
§ 79.105 Video description and emergency information decoder requirements for all apparatus.
§ 79.106 Video description and emergence information decoder requirements for recording
devices.
§ 79.107 User interfaces and guides on digital apparatus.
§ 79.108 User interfaces and guides on navigation devices.
§ 79.109 Activating accessibility features.
4. Remove and reserve § 79.101(m):
§ 79.101 Closed caption decoder requirements for analog television receivers.
* * * * *
(m) [reserved] Labeling and consumer information requirements. (1) The box or other package in which
the individual television receiver is to be marketed shall carry a statement in a prominent location, visible
to the buyer before purchase, which reads as follows:
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This television receiver provides display of television closed captioning in accordance with FCC rules.
(2) Receivers that do not support color attributes or text mode, as well as receivers that display only
upper-case characters pursuant to paragraph (g) of this section, must include with the statement, and in the
owner's manual, language indicating that those features are not supported.
* * * * *
5. Add § 79.107 to read as follows:
§ 79.107. User interfaces and guides on digital apparatus.
(a) Effective [INSERT DATE], manufacturers of digital apparatus designed to receive or play back video
programming transmitted in digital format simultaneously with sound, including apparatus designed to
receive or display video programming transmitted in digital format using Internet protocol, shall design,
develop, and fabricate those digital apparatus so that control of appropriate built-in apparatus functions
are accessible to and usable by individuals who are blind or visually impaired. For the purpose of this
section, the term apparatus does not include a navigation device, as such term is defined in section
76.1200 of the Commission’s rules [that is provided by an MVPD to a subscriber].
(b) This rule shall be effective for any apparatus manufactured after the effective date in the United
States or outside of the United States and imported for use in the United States, except that apparatus
must only do so if it is achievable as defined in section 79.105(c).
(c)(1) Achievable. Manufacturers of apparatus may petition the Commission for a full or partial
exemption from the user interface requirements of this section pursuant to § 1.41 of this chapter, which
the Commission may grant upon a finding that the requirements of this section are not achievable, or may
assert that such apparatus is fully or partially exempt as a response to a complaint, which the Commission
may dismiss upon a finding that the requirements of this section are not achievable.
(2) The petitioner or respondent must support a petition for exemption or a response to a complaint with
sufficient evidence to demonstrate that compliance with the requirements of this section is not
“achievable” where “achievable” means with reasonable effort or expense. The Commission will
consider the following factors when determining whether the requirements of this section are not
“achievable:”
(i) The nature and cost of the steps needed to meet the requirements of this section with respect to the
specific equipment or service in question;
(ii) 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;
(iii) The type of operations of the manufacturer or provider; and
(iv) The extent to which the service provider or manufacturer in question offers accessible services or
equipment containing varying degrees of functionality and features, and offered at differing price points.
6. Add § 79.108 to read as follows:
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§ 79.108. User interfaces and guides on navigation devices.
(a)(1) Effective [INSERT DATE], manufacturers of navigation devices (as defined by Section 76.1200 of
this chapter) provided by MVPDs to their subscribers and the MVPDs that provide such devices shall
ensure that the on-screen text menus and guides provided for the display or selection of multichannel
video programming are audibly accessible in real-time upon request by individuals who are blind or
visually impaired. MVPDs [and other covered entities] may comply with this requirement through the
use of software, a peripheral device, specialized consumer premises equipment, a network-based service
or other solution, and shall have maximum flexibility to select the manner of compliance.
(2) With respect to navigation device features and functions
(i) Delivered in software, the requirements set forth in this rule shall apply to the manufacturer of such
software; and
(ii) Delivered in hardware, the requirements set forth in this rule shall apply to the manufacturer of such
hardware.
(b) This rule shall be effective for any apparatus manufactured after the effective date in the United
States or outside of the United States and imported for use in the United States, except that the navigation
device must only do so if it is achievable as defined in section 79.108(c)(2).
(c)(1) Achievable. Manufacturers of navigation devices may petition the Commission for a full or partial
exemption from the accessibility requirements of this section pursuant to § 1.41 of this chapter, which the
Commission may grant upon a finding that the requirements of this section are not achievable, or may
assert that such navigation device is fully or partially exempt as a response to a complaint, which the
Commission may dismiss upon a finding that the requirements of this section are not achievable.
(2) The petitioner or respondent must support a petition for exemption or a response to a complaint with
sufficient evidence to demonstrate that compliance with the requirements of this section is not
“achievable” where “achievable” means with reasonable effort or expense. The Commission will
consider the following factors when determining whether the requirements of this section are not
“achievable:”
(i) The nature and cost of the steps needed to meet the requirements of this section with respect to the
specific equipment or service in question;
(ii) 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;
(iii) The type of operations of the manufacturer or provider; and
(iv) The extent to which the service provider or manufacturer in question offers accessible services or
equipment containing varying degrees of functionality and features, and offered at differing price points.
7. Add § 79.109 to read as follows:
§ 79.109 Activating accessibility features
(a) Effective [INSERT DATE], manufacturers of digital apparatus designed to receive or play back video
programming transmitted in digital format simultaneously with sound (including apparatus designed to
receive or display video programming transmitted in digital format using Internet protocol) and
navigation devices (as defined by Section 76.1200 of this chapter) with built-in closed-captioning
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capability shall ensure that closed captioning features are available through a method that is reasonably
comparable to a button, key, or icon.
(b) Effective [INSERT DATE], manufacturers of digital apparatus designed to receive or play back video
programming transmitted in digital format simultaneously with sound (including apparatus designed to
receive or display video programming transmitted in digital format using Internet protocol) with built-in
video description capability shall ensure that video description features are available through a method
that is reasonably comparable to a button, key, or icon.
(c) This rule shall be effective for any apparatus manufactured after the effective date in the United States
or outside of the United States and imported for use in the United States.
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APPENDIX B

Initial Regulatory Flexibility Act Analysis

1.
As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”),1 the
Commission has prepared this present Initial Regulatory Flexibility Analysis (“IRFA”) concerning the
possible significant economic impact on small entities by the policies and rules proposed in the Notice of
Proposed Rulemaking
(“NPRM”). Written public comments are requested on this IRFA. Comments
must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on
the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration (“SBA”).2 In addition, the NPRM and
IRFA (or summaries thereof) will be published in the Federal Register.3

A.

Need for, and Objectives of, the Proposed Rule Changes

2.
The Federal Communications Commission (“Commission”) seeks comment in this
NPRM on how to implement Sections 204 and 205 of the Twenty-First Century Communications and
Video Accessibility Act of 2010 (“CVAA”). These sections generally require the Commission to adopt
rules to require digital apparatus and navigation device user interfaces used to view video programming
be accessible to and usable by individuals who are blind or visually impaired. Specifically, Section 204
directs the Commission to require that “appropriate built-in apparatus functions” be made accessible to
blind people. Section 205 directs the Commission to require that “on-screen text menus and guides
provided by navigation devices” be made accessible. The Commission seeks comment on the types of
devices covered by Sections 204 and 205. Both of these sections also require that these devices provide a
mechanism that is “reasonably comparable to a button, key, or icon designated for activating” closed
captioning, video description, and accessibility features. The NPRM tentatively concludes that: (1) The
requirement for the appropriate functions of the digital apparatus or navigation device to be accessible
covers all “user functions” of such apparatus and devices, and that such functions do not include the
debugging and diagnostic functions; (2) The Commission should not specify the technical standards for
making those user functions accessible, consistent with the statute; (3) The Commission should handle
alternate means of compliance and enforcement matters in the same way that the Commission
implemented those matters in other CVAA contexts; and (4) The deadlines for compliance with these
rules should be consistent with those proposed by a working group that focused on this topic. The
Commission also seeks comment the most effective way to implement the requirement that closed
captioning, video description, and accessibility features be activated through a mechanism reasonably
comparable to a button, key, or icon is to require those features to be activated (and deactivated) in a
single step; on how to interpret Section 205’s direction that accessible navigation devices shall be
provided “upon request;” on how to handle complaints and enforce the rules adopted pursuant to Sections
204 and 205 of the CVAA; and on whether to adopt an exemption from regulations adopted under Section
205 with respect to cable systems that serve 20,000 or fewer subscribers. Finally, in addition to the
implementation of the CVAA, the NPRM proposes to modernize the Commission’s apparatus rules by
eliminating the outdated requirement that manufacturers label analog television sets based on whether
they include a closed-caption decoder and rename Part 79 of the Commission’s rules. The Commission
seeks comment on all of these tentative conclusions and issues.

1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. §§ 601 – 612, has been amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (“SBREFA”), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
2 See 5 U.S.C. § 603(a).
3 See id.
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3.
Our goal in this proceeding is to enable disabled people to use their digital video devices
more easily. The proposed revisions to our rules will help fulfill the purpose of the CVAA to “update the
communications laws to help ensure that individuals with disabilities are able to fully utilize
communications services and equipment and better access video programming.”

B.

Legal Basis

4.
The proposed action is authorized pursuant to the Twenty-First Century Communications
and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751, and the authority found in
Sections 4(i), 4(j), 303(u) and (z), 330(b), and 713(g), of the Communications Act of 1934, as amended,
47 U.S.C. §§ 154(i), 154(j), 303(u) and (z), 330(b), and 613(g).

C.

Description and Estimate of the Number of Small Entities to Which the
Proposed Rules Will Apply

5.
The RFA directs agencies to provide a description of, and where feasible, an estimate of
the number of small entities that may be affected by the proposed rules, if adopted.4 The RFA generally
defines the term “small entity” as having the same meaning as the terms “small business,” “small
organization,” and “small governmental jurisdiction.”5 In addition, the term “small business” has the
same meaning as the term “small business concern” under the Small Business Act.6 A small business
concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the SBA.7 Below, we provide a
description of such small entities, as well as an estimate of the number of such small entities, where
feasible.
6.
Cable Television Distribution Services. Since 2007, these services have been defined
within the broad economic census category of “Wired Telecommunications Carriers,” which is defined as
follows: “This industry comprises establishments primarily engaged in operating and/or providing access
to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data,
text, sound, and video using wired telecommunications networks. Transmission facilities may be based
on a single technology or a combination of technologies.”8 The SBA has developed a small business size
standard for this category, which is: all such firms having 1,500 or fewer employees.9 Census data for
2007 shows that there were 31,996 establishments that operated that year.10 Of those 31,996, 1,818
operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.11 Thus,

4 5 U.S.C. § 603(b)(3).
5 5 U.S.C. § 601(6).
6 5 U.S.C. § 601(3) (incorporating by reference the definition of “small-business concern” in 15 U.S.C. § 632).
Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an agency, after
consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public
comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register.” 5 U.S.C. § 601(3).
7 15 U.S.C. § 632.
8 U.S. Census Bureau, 2007 NAICS Definitions, 517110 Wired Telecommunications Carriers.
9 13 C.F.R. § 121.201, 2007 NAICS code 517110.
10http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro
dType=table.
11 See id.
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under this category and the associated small business size standard, the majority of such firms can be
considered small.
7.
Cable Companies and Systems. The Commission has also developed its own small
business size standards, for the purpose of cable rate regulation. Under the Commission’s rules, a “small
cable company” is one serving 400,000 or fewer subscribers, nationwide.12 Industry data indicate that, of
1,076 cable operators nationwide, all but eleven are small under this size standard.13 In addition, under
the Commission’s rules, a “small system” is a cable system serving 15,000 or fewer subscribers.14
Industry data indicate that, of 6,635 systems nationwide, 5,802 systems have under 10,000 subscribers,
and an additional 302 systems have 10,000-19,999 subscribers.15 Thus, under this second size standard,
most cable systems are small.
8.
Cable System Operators. The Communications Act of 1934, as amended, also contains a
size standard for small cable system operators, which is “a cable operator that, directly or through an
affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not
affiliated with any entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000.”16 The Commission has determined that an operator serving fewer than 677,000
subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual
revenues of all its affiliates, do not exceed $250 million in the aggregate.17 Industry data indicate that all
but nine cable operators nationwide are small under this subscriber size standard.18 We note that the
Commission neither requests nor collects information on whether cable system operators are affiliated
with entities whose gross annual revenues exceed $250 million,19 and therefore we are unable to estimate
more accurately the number of cable system operators that would qualify as small under this size
standard.
9.
Television Broadcasting. This Economic Census category “comprises establishments
primarily engaged in broadcasting images together with sound. These establishments operate television
broadcasting studios and facilities for the programming and transmission of programs to the public.”20

12 47 C.F.R. § 76.901(e). The Commission determined that this size standard equates approximately to a size
standard of $100 million or less in annual revenues. Implementation of Sections of the 1992 Cable Act: Rate
Regulation,
Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995).
13 These data are derived from: R.R. Bowker, Broadcasting & Cable Yearbook 2006, “Top 25 Cable/Satellite
Operators,” pages A-8 & C-2 (data current as of June 30, 2005); Warren Communications News, Television &
Cable Factbook 2006
, “Ownership of Cable Systems in the United States,” pages D-1805 to D-1857.
14 47 C.F.R. § 76.901(c).
15 Warren Communications News, Television & Cable Factbook 2008, “U.S. Cable Systems by Subscriber Size,”
page F-2 (data current as of Oct. 2007). The data do not include 851 systems for which classifying data were not
available.
16 47 U.S.C. § 543(m)(2); see 47 C.F.R. § 76.901(f) & nn. 1-3.
17 47 C.F.R. § 76.901(f); see FCC Announces New Subscriber Count for the Definition of Small Cable Operator,
Public Notice, 16 FCC Rcd 2225 (Cable Services Bureau 2001).
18 See BROADCASTING & CABLE YEARBOOK 2010 at C-2 (2009) (data current as of Dec. 2008).
19 The Commission does receive such information on a case-by-case basis if a cable operator appeals a local
franchise authority’s finding that the operator does not qualify as a small cable operator pursuant to § 76.901(f) of
the Commission’s rules. See 47 C.F.R. § 76.901(f).
20 U.S. Census Bureau, 2007 NAICS Definitions, “515120 Television Broadcasting,” http://www.census.gov./cgi-
bin/sssd/naics/naicsrch.
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The SBA has created the following small business size standard for Television Broadcasting firms: those
having $14 million or less in annual receipts.21 The Commission has estimated the number of licensed
commercial television stations to be 1,387.22 In addition, according to Commission staff review of the
BIA Advisory Services, LLC’s Media Access Pro Television Database on March 28, 2012, about 950 of
an estimated 1,300 commercial television stations (or approximately 73 percent) had revenues of $14
million or less.23 We therefore estimate that the majority of commercial television broadcasters are small
entities.
10.
We note, however, that in assessing whether a business concern qualifies as small under
the above definition, business (control) affiliations24 must be included. Our estimate, therefore, likely
overstates the number of small entities that might be affected by our action because the revenue figure on
which it is based does not include or aggregate revenues from affiliated companies. In addition, an
element of the definition of “small business” is that the entity not be dominant in its field of operation.
We are unable at this time to define or quantify the criteria that would establish whether a specific
television station is dominant in its field of operation. Accordingly, the estimate of small businesses to
which rules may apply does not exclude any television station from the definition of a small business on
this basis and is therefore possibly over-inclusive to that extent.
11.
In addition, the Commission has estimated the number of licensed noncommercial
educational (NCE) television stations to be 396.25 These stations are non-profit, and therefore considered
to be small entities.26
12.
Direct Broadcast Satellite (“DBS”) Service. DBS service is a nationally distributed
subscription service that delivers video and audio programming via satellite to a small parabolic “dish”
antenna at the subscriber’s location. DBS, by exception, is now included in the SBA’s broad economic
census category, “Wired Telecommunications Carriers,”27 which was developed for small wireline firms.
Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.28
Census data for 2007 shows that there were 31,996 establishments that operated that year.29 Of those
31,996, 1,818 operated with more than 100 employees, and 30,178 operated with fewer than 100
employees.30 Thus, under this category and the associated small business size standard, the majority of
such firms can be considered small. Currently, only two entities provide DBS service, which requires a
great investment of capital for operation: DIRECTV and EchoStar Communications Corporation

21 13 C.F.R. § 121.201, NAICS code 515120.
22 See FCC News Release, “Broadcast Station Totals as of December 31, 2011,” dated January 6, 2012,
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-311837A1.pdf.
23 We recognize that BIA’s estimate differs slightly from the FCC total given supra.
24 “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other
or a third party or parties controls or has to power to control both.” 13 C.F.R. § 21.103(a)(1).
25 See FCC News Release, “Broadcast Station Totals as of December 31, 2011,” dated January 6, 2012,
http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0106/DOC-311837A1.pdf.
26 See generally 5 U.S.C. §§ 601(4), (6).
27 See 13 C.F.R. § 121.201, 2007 NAICS code 517110. The 2007 NAICS definition of the category of “Wired
Telecommunications Carriers” is in paragraph 5, above.
28 13 C.F.R. § 121.201, 2007 NAICS code 517110.
29http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro
dType=table.
30 See id.
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(“EchoStar”) (marketed as the DISH Network).31 Each currently offers subscription services.
DIRECTV32 and EchoStar33 each report annual revenues that are in excess of the threshold for a small
business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as
defined by the SBA would have the financial wherewithal to become a DBS service provider.
13.
Satellite Telecommunications Providers. Two economic census categories address the
satellite industry. The first category has a small business size standard of $15 million or less in average
annual receipts, under SBA rules.34 The second has a size standard of $25 million or less in annual
receipts.35
14.
The category of “Satellite Telecommunications” “comprises establishments primarily
engaged in providing telecommunications services to other establishments in the telecommunications and
broadcasting industries by forwarding and receiving communications signals via a system of satellites or
reselling satellite telecommunications.”36 Census Bureau data for 2007 show that 607 Satellite
Telecommunications establishments operated for that entire year.37 Of this total, 533 establishments had
annual receipts of under $10 million or less, and 74 establishments had receipts of $10 million or more.38
Consequently, the Commission estimates that the majority of Satellite Telecommunications firms are
small entities that might be affected by our action.
15.
The second category, i.e., “All Other Telecommunications,” comprises “establishments
primarily engaged in providing specialized telecommunications services, such as satellite tracking,
communications telemetry, and radar station operation. This industry also includes establishments
primarily engaged in providing satellite terminal stations and associated facilities connected with one or
more terrestrial systems and capable of transmitting telecommunications to, and receiving
telecommunications from, satellite systems. Establishments providing Internet services or voice over
Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in
this industry.”39 For this category, Census data for 2007 shows that there were a total of 2,639
establishments that operated for the entire year.40 Of those 2,639 establishments, 2,333 operated with

31 See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming,
Thirteenth Annual Report, 24 FCC Rcd 542, 580, ¶ 74 (2009) (“13th Annual Report”). We note that, in 2007,
EchoStar purchased the licenses of Dominion Video Satellite, Inc. (“Dominion”) (marketed as Sky Angel). See
Public Notice, “Policy Branch Information; Actions Taken,” Report No. SAT-00474, 22 FCC Rcd 17776 (IB 2007).
32 As of June 2006, DIRECTV is the largest DBS operator and the second largest MVPD, serving an estimated
16.20% of MVPD subscribers nationwide. See 13th Annual Report, 24 FCC Rcd at 687, Table B-3.
33 As of June 2006, DISH Network is the second largest DBS operator and the third largest MVPD, serving an
estimated 13.01% of MVPD subscribers nationwide. See 13th Annual Report, 24 FCC Rcd at 687, Table B-3. As of
June 2006, Dominion served fewer than 500,000 subscribers, which may now be receiving “Sky Angel” service
from DISH Network. See id. at 581, ¶ 76.
34 13 C.F.R. § 121.201, NAICS code 517410.
35 13 C.F.R. § 121.201, NAICS code 517919.
36 U.S. Census Bureau, 2007 NAICS Definitions, 517410 Satellite Telecommunications.
37http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ1&pro
dType=table.
38 See id.
39 http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2007%20NAICS%20Search.
40http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ4&pro
dType=table.
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annual receipts of less than $10 million and 306 with annual receipts of $10 million or more.41
Consequently, the Commission estimates that a majority of All Other Telecommunications establishments
are small entities that might be affected by our action.
16.
Satellite Master Antenna Television (SMATV) Systems, also known as Private Cable
Operators (PCOs). SMATV systems or PCOs are video distribution facilities that use closed
transmission paths without using any public right-of-way. They acquire video programming and
distribute it via terrestrial wiring in urban and suburban multiple dwelling units such as apartments and
condominiums, and commercial multiple tenant units such as hotels and office buildings. SMATV
systems or PCOs are now included in the SBA’s broad economic census category, “Wired
Telecommunications Carriers,”42 which was developed for small wireline firms. Under this category, the
SBA deems a wireline business to be small if it has 1,500 or fewer employees.43 Census data for 2007
shows that there were 31,996 establishments that operated that year.44 Of those 31,996, 1,818 operated
with more than 100 employees, and 30,178 operated with fewer than 100 employees.45 Thus, under this
category and the associated small business size standard, the majority of such firms can be considered
small.
17.
Home Satellite Dish (“HSD”) Service. HSD or the large dish segment of the satellite
industry is the original satellite-to-home service offered to consumers, and involves the home reception of
signals transmitted by satellites operating generally in the C-band frequency. Unlike DBS, which uses
small dishes, HSD antennas are between four and eight feet in diameter and can receive a wide range of
unscrambled (free) programming and scrambled programming purchased from program packagers that
are licensed to facilitate subscribers’ receipt of video programming. Because HSD provides subscription
services, HSD falls within the SBA-recognized definition of “Wired Telecommunications Carriers.”46
The SBA has developed a small business size standard for this category, which is: all such firms having
1,500 or fewer employees.47 Census data for 2007 shows that there were 31,996 establishments that
operated that year.48 Of those 31,996, 1,818 operated with more than 100 employees, and 30,178
operated with fewer than 100 employees.49 Thus, under this category and the associated small business
size standard, the majority of such firms can be considered small.
18.
Broadband Radio Service and Educational Broadband Service. Broadband Radio
Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel
Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to
subscribers and provide two-way high speed data operations using the microwave frequencies of the
Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the

41 See id.
42 13 C.F.R. § 121.201, 2007 NAICS code 517110.
43 See id.
44http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro
dType=table.
45 See id.
46 13 C.F.R. § 121.201, 2007 NAICS code 517110.
47 See id.
48http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro
dType=table.
49 See id.
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Instructional Television Fixed Service (ITFS)).50 In connection with the 1996 BRS auction, the
Commission established a small business size standard as an entity that had annual average gross
revenues of no more than $40 million in the previous three calendar years.51 The BRS auctions resulted
in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67
auction winners, 61 met the definition of a small business. BRS also includes licensees of stations
authorized prior to the auction. At this time, we estimate that of the 61 small business BRS auction
winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA
authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities.52
After adding the number of small business auction licensees to the number of incumbent licensees not
already counted, we find that there are currently approximately 440 BRS licensees that are defined as
small businesses under either the SBA or the Commission’s rules. In 2009, the Commission conducted
Auction 86, the sale of 78 licenses in the BRS areas.53 The Commission offered three levels of bidding
credits: (i) a bidder with attributed average annual gross revenues that exceed $15 million and do not
exceed $40 million for the preceding three years (small business) received a 15 percent discount on its
winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not
exceed $15 million for the preceding three years (very small business) received a 25 percent discount on
its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3
million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid.54
Auction 86 concluded in 2009 with the sale of 61 licenses.55 Of the ten winning bidders, two bidders that
claimed small business status won four licenses; one bidder that claimed very small business status won
three licenses; and two bidders that claimed entrepreneur status won six licenses.
19.
In addition, the SBA’s placement of Cable Television Distribution Services in the
category of Wired Telecommunications Carriers is applicable to cable-based Educational Broadcasting
Services. Since 2007, “Wired Telecommunications Carriers” have been defined as follows: “This
industry comprises establishments primarily engaged in operating and/or providing access to transmission
facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and
video using wired telecommunications networks. Transmission facilities may be based on a single
technology or a combination of technologies.”56 Establishments in this industry use the wired
telecommunications network facilities that they operate to provide a variety of services, such as wired
telephony services, including VoIP services; wired (cable) audio and video programming distribution; and

50 Amendment of Parts 21 and 74 of the Commission’s Rules with Regard to Filing Procedures in the Multipoint
Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the
Communications Act—Competitive Bidding
, MM Docket No. 94-131, PP Docket No. 93-253, Report and Order, 10
FCC Rcd 9589, 9593, ¶ 7 (1995).
51 47 C.F.R. § 21.961(b)(1).
52 47 U.S.C. § 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of
Section 309(j) of the Communications Act of 1934, 47 U.S.C. § 309(j). For these pre-auction licenses, the
applicable standard is SBA’s small business size standard of 1,500 or fewer employees.
53 Auction of Broadband Radio Service (BRS) Licenses, Scheduled for October 27, 2009, Notice and Filing
Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 86
, Public Notice, 24
FCC Rcd 8277 (2009).
54 Id. at 8296.
55 Auction of Broadband Radio Service Licenses Closes, Winning Bidders Announced for Auction 86, Down
Payments Due November 23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny Period
,
Public Notice, 24 FCC Rcd 13572 (2009).
56 13 C.F.R. § 121.201, 2007 NAICS code 517110.
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wired broadband Internet services. By exception, establishments providing satellite television distribution
services using facilities and infrastructure that they operate are included in this industry.57 For these
services, the Commission uses the SBA small business size standard for Wired Telecommunications
Carriers, which is 1,500 or fewer employees.58 Census data for 2007 shows that there were 31,996
establishments that operated that year.59 Of those 31,996, 1,818 operated with more than 100 employees,
and 30,178 operated with fewer than 100 employees.60 Thus, under this category and the associated small
business size standard, the majority of such firms can be considered small. In addition to Census data, the
Commission’s internal records indicate that as of September 2012, there are 2,241 active EBS licenses.61
The Commission estimates that of these 2,241 licenses, the majority are held by non-profit educational
institutions and school districts, which are by statute defined as small businesses.62
20.
Fixed Microwave Services. Microwave services include common carrier,63 private-
operational fixed,64 and broadcast auxiliary radio services.65 They also include the Local Multipoint
Distribution Service (LMDS),66 the Digital Electronic Message Service (DEMS),67 and the 24 GHz
Service,68 where licensees can choose between common carrier and non-common carrier status.69 At
present, there are approximately 31,428 common carrier fixed licensees and 79,732 private operational-
fixed licensees and broadcast auxiliary radio licensees in the microwave services. There are
approximately 120 LMDS licensees, three DEMS licensees, and three 24 GHz licensees. The
Commission has not yet defined a small business with respect to microwave services. For purposes of the
IRFA, we will use the SBA’s definition applicable to Wireless Telecommunications Carriers (except
satellite)—i.e., an entity with no more than 1,500 persons.70 Under the present and prior categories, the
SBA has deemed a wireless business to be small if it has 1,500 or fewer employees.71 For the category of

57 Id.
58 See id.
59http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro
dType=table.
60 See id.
61 http://wireless2.fcc.gov/UlsApp/UlsSearch/results.jsp.
62 The term “small entity” within SBREFA applies to small organizations (non-profits) and to small governmental
jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of
less than 50,000). 5 U.S.C. §§ 601(4)-(6).
63 See 47 C.F.R. Part 101, Subparts C and I.
64 See 47 C.F.R. Part 101, Subparts C and H.
65 Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission’s Rules. See 47 C.F.R. Part
74. Available to licensees of broadcast stations and to broadcast and cable network entities, broadcast auxiliary
microwave stations are used for relaying broadcast television signals from the studio to the transmitter, or between
two points such as a main studio and an auxiliary studio. The service also includes mobile TV pickups, which relay
signals from a remote location back to the studio.
66 See 47 C.F.R. Part 101, Subpart L.
67 See 47 C.F.R. Part 101, Subpart G.
68 See id.
69 See 47 C.F.R. §§ 101.533, 101.1017.
70 13 C.F.R. § 121.201, 2007 NAICS code 517210.
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“Wireless Telecommunications Carriers (except Satellite),”72 Census data for 2007 show that there were
11,163 firms that operated for the entire year.73 Of this total, 10,791 firms had employment of 999 or
fewer employees and 372 had employment of 1,000 employees or more.74 Thus, under this category and
the associated small business size standard, the majority of firms can be considered small. We note that
the number of firms does not necessarily track the number of licensees. We estimate that virtually all of
the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities
under the SBA definition.
21.
Open Video Systems. The open video system (“OVS”) framework was established in
1996, and is one of four statutorily recognized options for the provision of video programming services
by local exchange carriers.75 The OVS framework provides opportunities for the distribution of video
programming other than through cable systems. Because OVS operators provide subscription services,76
OVS falls within the SBA small business size standard covering cable services, which is “Wired
Telecommunications Carriers.”77 The SBA has developed a small business size standard for this
category, which is: all such firms having 1,500 or fewer employees.78 Census data for 2007 shows that
there were 31,996 establishments that operated that year.79 Of those 31,996, 1,818 operated with more
than 100 employees, and 30,178 operated with fewer than 100 employees.80 Thus, under this category
and the associated small business size standard, the majority of such firms can be considered small. In
addition, we note that the Commission has certified some OVS operators, with some now providing
service.81 Broadband service providers (“BSPs”) are currently the only significant holders of OVS
certifications or local OVS franchises.82 The Commission does not have financial or employment
information regarding the entities authorized to provide OVS, some of which may not yet be
operational. Thus, at least some of the OVS operators may qualify as small entities.
22.
Cable and Other Subscription Programming. The Census Bureau defines this category
as follows: “This industry comprises establishments primarily engaged in operating studios and facilities
for the broadcasting of programs on a subscription or fee basis. These establishments produce
programming in their own facilities or acquire programming from external sources. The programming
(Continued from previous page)__________________
71 See id. The now-superseded, pre-2007 C.F.R. citations were 13 C.F.R. § 121.201, NAICS codes 517211 and
517212 (referring to the 2002 NAICS).
72 13 C.F.R. § 121.201, NAICS code 517210.
73http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro
dType=table. Available Census data do not provide a more precise estimate of the number of firms that have
employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or
more.”
74 See id.
75 47 U.S.C. § 571(a)(3)-(4). See 13th Annual Report, 24 FCC Rcd at 606, ¶ 135.
76 See 47 U.S.C. § 573.
77 U.S. Census Bureau, 2007 NAICS Definitions, http://www.census.gov./cgi-bin/sssd/naics/naicsrch.
78 13 C.F.R. § 121.201, 2007 NAICS code 517110.
79http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro
dType=table.
80 See id.
81 A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html.
82 See 13th Annual Report, 24 FCC Rcd at 606-07, ¶ 135. BSPs are newer firms that are building state-of-the-art,
facilities-based networks to provide video, voice, and data services over a single network.
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material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for
transmission to viewers.”83 The SBA has developed a small business size standard for this category,
which is: all such firms having $15 million dollars or less in annual revenues.84 To gauge small business
prevalence in the Cable and Other Subscription Programming industries, the Commission relies on data
currently available from the U.S. Census for the year 2007. Census Bureau data for 2007 show that there
were 659 establishments in this category that operated for the entire year.85 Of that number, 462 operated
with annual revenues of $9,999,999 million dollars or less.86 197 operated with annual revenues of 10
million or more.87 Thus, under this category and associated small business size standard, the majority of
firms can be considered small.
23.
Small Incumbent Local Exchange Carriers. We have included small incumbent local
exchange carriers in this present RFA analysis. A “small business” under the RFA is one that, inter alia,
meets the pertinent small business size standard (e.g., a telephone communications business having 1,500
or fewer employees), and “is not dominant in its field of operation.”88 The SBA’s Office of Advocacy
contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field
of operation because any such dominance is not “national” in scope.89 We have therefore included small
incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has
no effect on Commission analyses and determinations in other, non-RFA contexts.
24.
Incumbent Local Exchange Carriers (“LECs”). Neither the Commission nor the SBA
has developed a small business size standard specifically for incumbent local exchange services. The
appropriate size standard under SBA rules is for the category “Wired Telecommunications Carriers.”
Under that size standard, such a business is small if it has 1,500 or fewer employees.90 Census data for
2007 shows that there were 31,996 establishments that operated that year.91 Of those 31,996, 1,818
operated with more than 100 employees, and 30,178 operated with fewer than 100 employees.92 Thus,
under this category and the associated small business size standard, the majority of such firms can be
considered small.

83 U.S. Census Bureau, 2007 NAICS Definitions, “515210 Cable and Other Subscription Programming,”
http://www.census.gov./cgi-bin/sssd/naics/naicsrch.
84 13 C.F.R. § 121.201, 2007 NAICS code 515210.
85 See
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ1&prod
Type=table.
86 Id.
87 Id.
88 15 U.S.C. § 632.
89 Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, FCC (May 27,
1999). The Small Business Act contains a definition of “small-business concern,” which the RFA incorporates into
its own definition of “small business.” See 15 U.S.C. § 632(a) (Small Business Act); 5 U.S.C. § 601(3) (RFA).
SBA regulations interpret “small business concern” to include the concept of dominance on a national basis. See 13
C.F.R. § 121.102(b).
90 13 C.F.R. § 121.201, 2007 NAICS code 517110.
91http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro
dType=table.
92 See id.
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25.
Competitive Local Exchange Carriers, Competitive Access Providers (CAPs), “Shared-
Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA
has developed a small business size standard specifically for these service providers. The appropriate size
standard under SBA rules is for the category “Wired Telecommunications Carriers.” Under that size
standard, such a business is small if it has 1,500 or fewer employees.93 Census data for 2007 shows that
there were 31,996 establishments that operated that year.94 Of those 31,996, 1,818 operated with more
than 100 employees, and 30,178 operated with fewer than 100 employees.95 Thus, under this category
and the associated small business size standard, the majority of such firms can be considered small.
Consequently, the Commission estimates that most providers of competitive local exchange service,
competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers”
are small entities.
26.
Motion Picture and Video Production. The Census Bureau defines this category as
follows: This industry comprises establishments primarily engaged in producing, or producing and
distributing motion pictures, videos, television programs, or television commercials.96 We note that firms
in this category may be engaged in various industries, including cable programming. Specific figures are
not available regarding how many of these firms produce and/or distribute programming for cable
television. The SBA has developed a small business size standard for this category, which is: all such
firms having $29.5 million dollars or less in annual revenues.97 To gauge small business prevalence in the
Motion Picture and Video Production industries, the Commission relies on data currently available from
the U.S. Census for the year 2007. Census Bureau data for 2007, which now supersede data from the
2002 Census, show that there were 9,095 firms in this category that operated for the entire year.98 Of
these, 8,995 had annual receipts of $24,999,999 or less, and 100 had annual receipts ranging from not less
than $25,000,000 to $100,000,000 or more.99 Thus, under this category and associated small business
size standard, the majority of firms can be considered small.
27.
Motion Picture and Video Distribution. The Census Bureau defines this category as
follows: “This industry comprises establishments primarily engaged in acquiring distribution rights and
distributing film and video productions to motion picture theaters, television networks and stations, and
exhibitors.”100 We note that firms in this category may be engaged in various industries, including cable
programming. Specific figures are not available regarding how many of these firms produce and/or
distribute programming for cable television. The SBA has developed a small business size standard for
this category, which is: all such firms having $29.5 million dollars or less in annual revenues.101 To
gauge small business prevalence in the Motion Picture and Video Distribution industries, the Commission

93 13 C.F.R. § 121.201, 2007 NAICS code 517110.
94http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ2&pro
dType=table.
95 See id.
96 http://www.census.gov/cgi-bin/sssd/naics/naicsrch.
97 13 C.F.R. § 121.201, 2007 NAICS code 512110.
98 See
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ4&prod
Type=table.
99 Id.
100 U.S. Census Bureau, 2007 NAICS Definitions, http://www.census.gov./cgi-bin/sssd/naics/naicsrch.
101 13 C.F.R. § 121.201, 2007 NAICS code 512120.
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relies on data currently available from the U.S. Census for the year 2007. Census Bureau data for 2007,
which now supersede data from the 2002 Census, show that there were 450 firms in this category that
operated for the entire year.102 Of these, 434 had annual receipts of $24,999,999 or less, and 16 had
annual receipts ranging from not less than $25,000,000 to $100,000,000 or more.103 Thus, under this
category and associated small business size standard, the majority of firms can be considered small.
28.
Radio and Television Broadcasting and Wireless Communications Equipment
Manufacturing. The Census Bureau defines this category as follows: “This industry comprises
establishments primarily engaged in manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these establishments are: transmitting and
receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and broadcasting equipment.”104 The SBA
has developed a small business size standard for Radio and Television Broadcasting and Wireless
Communications Equipment Manufacturing, which is: all such firms having 750 or fewer employees.
According to Census Bureau data for 2007, there were 919 establishments that operated for part or all of
the entire year.105 Of those 919 establishments, 771 operated with 99 or fewer employees, and 148
operated with 100 or more employees.106 Thus, under that size standard, the majority of establishments
can be considered small.
29.

Audio and Video Equipment Manufacturing.

The SBA has classified the manufacturing
of audio and video equipment under in NAICS Codes classification scheme as an industry in which a
manufacturer is small if it has less than 750 employees.107 Data contained in the 2007 Economic Census
indicate that 491 establishments in this category operated for part or all of the entire year.108 Of those 491
establishments, 456 operated with 99 or fewer employees, and 35 operated with 100 or more
employees.109 Thus, under the applicable size standard, a majority of manufacturers of audio and video
equipment may be considered small.

D.

Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements

30.
One proposed rule change discussed in the NPRM would affect reporting, recordkeeping,
or other compliance requirements. This proposed rule change would eliminate the outdated requirement
that manufacturers of analog television sets label devices with a notice about closed captioning features.

102 See
http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ4&prod
Type=table.
103 Id.
104 The NAICS Code for this service 334220. See 13 C.F.R § 121.201; http://www.census.gov./cgi-
bin/sssd/naics/naicsrch.
105http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_31I1&prodTy
pe=table.
106 See id.
107 13 C.F.R § 121.201, NAICS Code 334310.
108http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_31I1&prodTy
pe=table.
109 See id.
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E.

Steps Taken to Minimize Significant Impact on Small Entities and
Significant Alternatives Considered

31.
The RFA requires an agency to describe any significant alternatives that it has considered
in reaching its proposed approach, which may include the following four alternatives (among others): (1)
the establishment of differing compliance or reporting requirements or timetables that take into account
the resources available to small entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather
than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small
entities.110
32.
We emphasize at the outset that, although alternatives to minimize economic impact on
small businesses (such as the possible exemption from Section 205 regulations for cable systems that
serve 20,000 or fewer subscribers) have been and are being considered as part of this proceeding, our
proposals are governed by the congressional mandate contained in Sections 204 and 205 of the CVAA.
The NPRM seeks comment on whether any alternatives to the proposed rules exist, and gives small
entities wide latitude in the specific steps it will use to meet the rules—in other words, the proposed rules
are entirely performance, rather than design, focused.111 Individual entities, including smaller entities,
may benefit from this provision because our proposed rules will do not specify how any entity must
achieve accessibility, but rather encourage all entities (include small entities) to be creative and develop
cost-effective methods to achieve accessibility.
33.
Overall, in proposing rules governing accessible digital apparatus and navigation devices,
we believe that we have appropriately considered both the interests of individuals who are blind, visually
impaired, deaf, or hard of hearing and the interests of the entities who will be subject to the rules,
including those that are smaller entities. Our proposed rules are consistent with Congress’ goal of
“updat[ing] the communications laws to help ensure that individuals with disabilities are able to fully
utilize communications services and equipment and better access video programming.”112 In seeking to
achieve that Congressional goal, our proposed rules will not require small businesses to conform to any
standard, and allow them to use any less expensive “alternative means of compliance” for cost savings.
Moreover, elimination of the labeling requirement is another step that the Commission proposes to reduce
costs for small businesses.

F.

Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed
Rule

34.
None.

110 5 U.S.C. § 603(c).
111 NPRM, ¶ 11-21.
112 House Committee Report at 19; Senate Committee Report at 1.
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APPENDIX C

Relevant Portions of the CVAA

SEC. 204. USER INTERFACES ON DIGITAL APPARATUS.

(a) Amendment- Section 303 of the Communications Act of 1934 (47 U.S.C. 303) is further amended by
adding after subsection (z), as added by section 203 of this Act, the following new subsection:
`(aa) Require--
`(1) if achievable (as defined in section 716) that digital apparatus designed to receive or
play back video programming transmitted in digital format simultaneously with sound,
including apparatus designed to receive or display video programming transmitted in
digital format using Internet protocol, be designed, developed, and fabricated so that
control of appropriate built-in apparatus functions are accessible to and usable by
individuals who are blind or visually impaired, except that the Commission may not
specify the technical standards, protocols, procedures, and other technical requirements
for meeting this requirement;
`(2) that if on-screen text menus or other visual indicators built in to the digital apparatus
are used to access the functions of the apparatus described in paragraph (1), such
functions shall be accompanied by audio output that is either integrated or peripheral to
the apparatus, so that such menus or indicators are accessible to and usable by individuals
who are blind or visually impaired in real-time;
`(3) that for such apparatus equipped with the functions described in paragraphs (1) and
(2) built in access to those closed captioning and video description features through a
mechanism that is reasonably comparable to a button, key, or icon designated for
activating the closed captioning or accessibility features; and
`(4) that in applying this subsection the term `apparatus' does not include a navigation
device, as such term is defined in section 76.1200 of the Commission's rules (47 CFR
76.1200).'.
(b) Implementing Regulations- Within 18 months after the submission to the Commission of the Advisory
Committee report required by section 201(e)(2), the Commission shall prescribe such regulations as are
necessary to implement the amendments made by subsection (a).
(c) Alternate Means of Compliance- An entity may meet the requirements of section 303(aa) of the
Communications Act of 1934 through alternate means than those prescribed by regulations pursuant to
subsection (b) if the requirements of those sections are met, as determined by the Commission.
(d) Deferral of Compliance with ATSC Mobile DTV Standard A/153- A digital apparatus designed and
manufactured to receive or play back the Advanced Television Systems Committee's Mobile DTV
Standards A/153 shall not be required to meet the requirements of the regulations prescribed under
subsection (b) for a period of not less than 24 months after the date on which the final regulations are
published in the Federal Register.
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SECTION 205— ACCESS TO VIDEO PROGRAMMING GUIDES AND MENUS PROVIDED
ON NAVIGATION DEVICES.

(a) Amendment- Section 303 of the Communications Act of 1934 (47 U.S.C. 303) is further amended by
adding after subsection (aa), as added by section 204 of this Act, the following new subsection
`(bb) Require--
`(1) if achievable (as defined in section 716), that the on-screen text menus and guides provided
by navigation devices (as such term is defined in section 76.1200 of title 47, Code of Federal
Regulations) for the display or selection of multichannel video programming are audibly
accessible in real-time upon request by individuals who are blind or visually impaired, except that
the Commission may not specify the technical standards, protocols, procedures, and other
technical requirements for meeting this requirement;
`(2) for navigation devices with built-in closed captioning capability, that access to that capability
through a mechanism is reasonably comparable to a button, key, or icon designated for activating
the closed captioning, or accessibility features; and
`(3) that, with respect to navigation device features and functions--
`(A) delivered in software, the requirements set forth in this subsection shall apply to the
manufacturer of such software; and
`(B) delivered in hardware, the requirements set forth in this subsection shall apply to the
manufacturer of such hardware.'.
(b) Implementing Regulations-
(1) IN GENERAL- Within 18 months after the submission to the Commission of the Advisory
Committee report required by section 201(e)(2), the Commission shall prescribe such regulations
as are necessary to implement the amendment made by subsection (a).
(2) EXEMPTION- Such regulations may provide an exemption from the regulations for cable
systems serving 20,000 or fewer subscribers.
(3) Responsibility- An entity shall only be responsible for compliance with the requirements
added by this section with respect to navigation devices that it provides to a requesting blind or
visually impaired individual.
(4) SEPARATE EQUIPMENT OR SOFTWARE-
(A) IN GENERAL- Such regulations shall permit but not require the entity providing the
navigation device to the requesting blind or visually impaired individual to comply with
section 303(bb)(1) of the Communications Act of 1934 through that entity's use of
software, a peripheral device, specialized consumer premises equipment, a network-based
service or other solution, and shall provide the maximum flexibility to select the manner
of compliance.
47

Federal Communications Commission

FCC 13-77

(B) REQUIREMENTS- If an entity complies with section 303(bb)(1) of the
Communications Act of 1934 under subparagraph (A), the entity providing the navigation
device to the requesting blind or visually impaired individual shall provide any such
software, peripheral device, equipment, service, or solution at no additional charge and
within a reasonable time to such individual and shall ensure that such software, device,
equipment, service, or solution provides the access required by such regulations.
(5) USER CONTROLS FOR CLOSED CAPTIONING- Such regulations shall permit the entity
providing the navigation device maximum flexibility in the selection of means for compliance
with section 303(bb)(2) of the Communications Act of 1934 (as added by subsection (a) of this
section).
(6) PHASE-IN-
(A) IN GENERAL- The Commission shall provide affected entities with--
(i) not less than 2 years after the adoption of such regulations to begin placing in
service devices that comply with the requirements of section 303(bb)(2) of the
Communications Act of 1934 (as added by subsection (a) of this section); and
(ii) not less than 3 years after the adoption of such regulations to begin placing in
service devices that comply with the requirements of section 303(bb)(1) of the
Communications Act of 1934 (as added by subsection (a) of this section).
(B) APPLICATION- Such regulations shall apply only to devices manufactured or
imported on or after the respective effective dates established in subparagraph (A).
48

Federal Communications Commission

FCC 13-77

STATEMENT OF

COMMISSIONER AJIT PAI

APPROVING IN PART AND CONCURRING IN PART

Re:
Accessibility of User Interfaces, and Video Programming Guides and Menus, MB Docket No. 12-
108.
Today the Commission takes another step towards fulfilling the promise of the Twenty-First
Century Communications and Video Accessibility Act. I support many of the proposals and tentative
conclusions contained in this Notice of Proposed Rulemaking, which begins the process of implementing
sections 204 and 205 of the Act, and I appreciate the willingness of my colleagues to incorporate many of
my suggestions into this item.
While I am largely in agreement with my colleagues, I concur in part because I have a different
view with respect to section III.A.1 of the NPRM, which addresses the categories of devices covered
under sections 204 and 205. In particular, it would seem that the plain language of the statute precludes
us from narrowing section 205 to cover only navigation devices provided by MVPDs and expanding
section 204 to include navigation devices sold at retail along with other digital apparatus. Section 205 of
the Act covers “navigation devices (as such term is defined in section 76.1200 of title 47, Code of Federal
Regulations).”113 And section 204 of the Act specifically provides that “the term ‘apparatus’ does not
include a navigation device, as such term is defined in section 76.1200 of the Commission’s rules (47
CFR 76.1200).”114 Given this straightforward language, I have difficulty seeing how any equipment that
qualifies as a navigation device under our rules could be exempt from section 205 and covered instead as
an apparatus under section 204 of the Act. The text of section 205 and the specific navigation-device
carve-out from section 204 appear to apply to all navigation devices, regardless of whether they are
supplied by MVPDs or obtained by consumers in another manner.
That having been said, I look forward to studying the comments that will be submitted in
response to this NPRM and will review the record with an open mind. By continuing to work together in
a collaborative manner, I am optimistic that the Commission will be able to enact rules consistent with the
text of sections 204 and 205 of the Act by the statutory deadline.

113 See 47 U.S.C. § 303(bb)(1).
114 See 47 U.S.C. § 303(aa)(4) (emphasis added).
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