Republican FCC Commissioners Dissent Over Simple Mechanism in CVAA Rule

Rules that will require device manufacturers to create a simple mechanism to switch between a main program audio feed to an emergency alert on the secondary audio stream are outside the authority granted to the FCC by Congress in the 21st Century Communications and Video Accessibility Act, said Commissioners Ajit Pai and Mike O’Rielly at Thursday’s agency meeting. The rule was part of a 2nd report and order requiring pay-TV carriers to pass through such screen-crawl TV alerts to tablets and smartphones streaming multichannel video programming distributors' content through the companies' apps, as expected (see 1505120027). Pai and O’Rielly voted with the rest of the FCC to approve the order and an accompanying Further NPRM, but dissented over the simple mechanism portion.

The FCC unanimously approved another CVAA item Thursday, extending a pilot program distributing accessibility equipment to the low-income deaf-blind and seeking comment on making it permanent. Pai said he wasn’t taking a position on the merits of the simple mechanism requirement, and said he was sure it was well intended. “My foremost obligation as a commissioner is to implement the laws as Congress has written them, not to rewrite statutes to conform to my own policy preferences,” he said.

FCC rules already require audible emergency information to be made available on a secondary audio stream when emergency information is communicated through an onscreen crawl, said Media Bureau Chief Bill Lake. The 2nd report and order requires that the same information be available when customers are using pay-TV-provided apps to view content on second-screen devices like tablets. “That the provider has moved delivery to a second screen should not eliminate the responsibility to provide emergency alerts,” said FCC Chairman Tom Wheeler. The rule limiting the requirement to MVPD-provided apps and not extending it to over-the-top content provides “regulatory clarity,” Commissioner Mignon Clyburn said.

The order requires set-top boxes to have a “simple and easy to use mechanism” to switch between audio feeds, because doing so through the user interface as many MVPDs do is cumbersome and takes too long, said Lake, who conducted a brief demo of the process. That’s time that can’t be spared in an emergency, Clyburn said. “It means those who are disabled will be able to do so simply, without having to navigate through multiple menus or complicated user interfaces in order,” said Commissioner Jessica Rosenworcel.

The CVAA requires using simple buttons for closed captioning, but it never mentions doing so for audible emergency information, said Pai. The FCC is pulling the justification for the rule from “thin air,” Pai said. The rule cuts and pastes other parts of the CVAA together to go outside congressional intent, and “enact unnecessarily prescriptive user interface engineering,” O’Rielly said.

The FNPRM included with the order seeks comment on how to prioritize emergency information when there’s more than one on-screen announcement and whether school closings should be exempted from inclusion on the secondary audio stream, since their length and nonemergency nature can obscure other announcements. This point should have been labeled a tentative conclusion in the FNPRM, O’Rielly said. The FNPRM also seeks comment on extending the simple mechanism for switching audio feeds requirement to second-screen devices -- both Pai and O'Rielly also pointed to this item as being included in their dissent.

The FCC also unanimously voted to extend the National Deaf-Blind Equipment Distribution Program, called iCanConnect, and issued an NPRM seeking comment on making it permanent. The program allows “deaf-blind consumers who meet income requirements” to receive free communications equipment designed for those with combined vision and hearing loss, the FCC said in a news release. The FCC provides up to $10 million annually from the Telecom Relay Service Fund to fund the program, the release said. With the extension, the pilot will continue until June 2016.