21st Century Communications and Video Accessibility Act approved by House subcommittee

From Multichannel News:

WASHINGTON -- The House Communications Subcommittee June 30 approved a bill that would put additional disability access requirements on broadcasters, cable operators, Web-video outlets and consumer-electronics companies.

But that approval came in part because both Republicans and Democrats were assured more changes would be made to the measure.

The legislation is a work in progress, said subcommittee Chairman Rick Boucher (D-Va.), who added that more changes will be reflected when the bill is brought up in full committee in two weeks. Energy & Commerce Committee chairman Henry Waxman (D-Calif.) wants the House to approve the bill by July 26, the 20th anniversary of the Americans with Disabilities Act.

The 21st Century Communications and Video Accessibility Act (HR 3101) would update communications accessibility provisions in the 1996 Communications Act as well as apply them to access to broadband.

During the June 30 markup at which the bill was favorably referred to the full committee on a voice vote, both Republican and Democratic lawmakers made note of the issues they still had with the legislation, which was itself a new draft of the bill, reflecting changes from a version considered earlier this month in a hearing at which some sparks flew.

Among the bill's key points are: 1) requiring equipment for small-screen video devices to convey closed captioning and emergency information; 2) requiring user interfaces for viewing video on such devices be accessible, including an accessibility button on remote controls; 3) reinstating FCC video description requirements for TV programming (they were vacated by a federal court in 2002); applying closed captioning requirements to the Internet; and requiring that video programming convey emergency information to the visually impaired.

Among the changes to the bill since it was first introduced is one that would give the FCC more flexibility and power to determine how broadcast and cable operators would meet a new congressional mandate that disability access to telecommunications requirements be updated to reflect the rise of broadband and other technologies.

In the previous version of the bill, the FCC would have to require accessibility unless it would result in an undue burden on equipment manufactures. That standard has been changed to "unless it is not achievable," with achievable defined as "with reasonable effort or expense."

The FCC would have the job of determining whether that standard had been met, based on the nature and cost, the impact on the manufacturer and distributor and the deployment of new technologies, the manufacturers financial resources, and "the type of operations of the manufacturer or provider."

Among the changes to the bill that concerned some Republicans was a provision allowing the FCC to expand the video-description requirement beyond the 50 hours per quarter the FCC had required before those rules were struck down. Some Democrats, on the other hand, thought the two years the FCC was given to implement new video description requirements was too long.

Some Republicans argued against giving the FCC what they viewed as open-ended authority over the accessibility updates. Rep John Shimkus (R-Ill.) said the FCC needed more direction than broad guidelines, and Rep. Marsha Blackburn (R-Tenn.) alluded to the issue of broadband authority -- which centers on which powers Congress did or did not give the FCC. She said that any authority should be explicit, with plenty of congressional oversight, adding that Congress should not just delegate items to the rulemaking process."

Ranking member Rep. Cliff Stearns (R-Fla.) said he was concerned that the bill not stifle innovative technologies like Apple's iPhone. The Consumer Electronics Association, which has major issues with the bill, has argued that under such access provisions like mandatory buttons, the buttonless iPhone might never have made it to market.

He is also concerned that the mandates apply to every feature of every device, rather than, say, making all those features available on only some of a product line.

Other issues with the bill include whether the "operator financial resources" test for achievability is based on total resources, or just those applied to the device or service, and whether the FCC should have to report to Congress before deciding how many hours of video-described programming broadcast and cable outlets have to provide.

An issue that concerned several Democrats, including Waxman and the bill's chief sponsor, Rep. Ed Markey (D-Mass.), was a change to the bill that applied video-description mandates in only the top 25 markets.

Markey, who thought the two-year phase-in was unnecessarily lengthy, said it did not make sense that the mandates would exclude millions of the blind because they lived in New Orleans rather than Orlando or Nashville rather than New York.

Rep. Mike Doyle (D-Pa.) pointed to another issue with the top 25 markets cut-off. Doyle, who represents No. 23 market Pittsburgh, noted that DMA has only 40,000 more people than the No. 26 market. Should Nielsen shift a county on next year's map -- or were there population growth elsewhere combined with decline in Pittsburgh -- Doyle's constituents might lose the guarantee of video description. He said he was sure broadcasters would continue to deliver the descriptions if that happened, but the FCC would not have the power to enforce that.

Doyle also said he was concerned that if the accessibility standard was only designed for digital delivery, some small cable operators would be forced to upgrade.

Boucher said he would be happy to resolve Doyle's issues and those of other affected parties by markup in the full committee.

The National Cable & Telecommunications Association agrees with Boucher that the bill is, and should be, a work in progress. It still has some issues with the legislation.

"We appreciate the changes that have been made to the bill and look forward to working with all members of the committee as this legislation continues to move," said NCTA spokesman Brian Dietz. "We believe that further improvements are needed if we are to be successful in developing targeted legislation that focuses on reasonable, attainable goals in improving the accessibility of communications services and equipment for persons with disabilities."