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FCC Forum on Accessibility of Online Video Programming – Looking Beyond the Regulation of Broadcasters

David Oxenford

By: David Oxenford,
Wilkinson Barker Knauer LLP

On December 2, 2021, the FCC held a forum on the accessibility of video programming delivered through online platforms (a recording of the event is available on the FCC website, here).  What is perhaps most notable about this forum is that it looked at whether the FCC could extend its authority over online platforms to include accessibility obligations which, thus far, have only been implicated when a broadcaster already subject to FCC accessibility obligations repurposes its programs for Internet use (see, for instance, the FCC’s significant fine imposed in a consent decree when Pluto TV, which is owned by Viacom CBS, rebroadcast certain content that had already been broadcast on television with captions).  One of the questions identified in the Public Notice announcing the Forum is whether the FCC has the authority to expand accessibility obligations to online platforms.

The seeming importance of the session could be seen from the introductory remarks by FCC Chairwoman Jessica Rosenworcel and Senator Ed Markey.  Senator Markey was one of the proponents of the Twenty First Century Communications and Video Accessibility Act of 2010 (CVAA).  In his remarks, he discussed the importance of taking the reforms that have been adopted for television programming and extending them to the Internet, given that so much video programming and viewership is now migrating to those platforms.

The CVAA imposed a host of requirements to make television video programming more accessible – leading to rules for audio captioning of video programming (see our article here on the latest review of those rules, and the January 1 expansion of the TV markets where these rules apply is noted in our article here) and captioning of television programming repurposed for Internet channels.  Using a TV station’s secondary audio channels (“SAP channels”) to convey emergency information conveyed visually during non-news programs (e.g. through crawls of emergency information carried during entertainment programs – see our article here) were also part of FCC rules adopted pursuant to the CVAA. See the FCC’s own summary of the CVAA here and our summary of a recent FCC inquiry into whether there is a need to update the rules here.

Following the opening remarks were two panels, one on technical and business issues with accessibility, and a second looking at the FCC’s role in setting rules for the accessibility of online programming.  The first panel included representatives of Google, Amazon Prime and Netflix, again demonstrating the expansive scope of the inquiry.

Of course, this is not the first time that the FCC has looked at whether its jurisdiction extends to internet services.  We wrote about their inquiry into whether streaming services should have EAS obligations, here.  And we also wrote about the question of whether streaming services could have liability for false EAS alerts.  The FCC has not taken any further action in either of these areas.  In various debates in Congress and elsewhere about the regulation of tech platforms, it is often the FCC that is looked to as the agency most likely to enforce any new regulation.  In fact, at the end of the last administration, the FCC was tasked with the responsibility of reviewing Section 230 of the Communications Decency Act to determine if the FCC could adopt rules limiting the insulation from liability for online platforms (see our article here).

At the forum, the focus was on the captioning of video programming.  An initial presentation from the FCC outlined the current rules.  The very thorough outline noted that most full-length video programming exported from broadcast TV to the Internet requires captioning to follow the programming to its online destination.  Captioning of video clips, by contrast, only requires that the captioning follow the programming to a site commonly controlled with the originator of the programming.  The presentation discussed whether that limitation on clips should be expanded so that captioning should follow the clip no matter where it ends up online, and whether current grace periods for captioning of live or near-live events should be eliminated or shortened.

The main event was probably the discussion of whether the FCC had jurisdiction to adopt accessibility rules for Internet platforms.  That discussion did not, of course, bring any unanimity.  Industry representatives argued that the CVAA was specifically targeted to programming that had already been captioned when initially broadcast or cablecast, and that extending the rules to online programming could not be justified based on the clear wording of the statute.  Other participants suggested that even if the CVAA did not specifically give the FCC authority to extend the regulation to online programming, authority could be found elsewhere in the Communications Act.  It was also suggested that the FCC use its platform to encourage captioning (though the first panel talked much about the voluntary captioning already done by most of the larger online platforms) and, if voluntary efforts did not bring about widespread compliance, other efforts should be undertaken to give the FCC authority to extend its regulatory reach to insure accessibility to all video programming.

These issues will not go away.  As broadcast and online platforms become interchangeable in the viewing habits of consumers, there will be more calls to bring broadcast-like regulation to Internet platforms.  Difficult questions will of course arise as to where any such regulation should apply.  Should my posting of a video on Facebook or YouTube of a marching band at one of the DC monuments or a deer walking through the woods, or some small restaurant’s video of the preparation of their signature dish, carry the same obligations that apply to a Netflix movie?  Obviously not, but where lines are to be drawn is always the hardest question.  Watch as these debates, as well as the many other debates about possible Internet regulation, play out in the coming years.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

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