[Federal Register Volume 81, Number 23 (Thursday, February 4, 2016)]
[Proposed Rules]
[Pages 5971-5978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00930]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket No. 12-108; FCC 15-156]


Accessibility of User Interfaces, and Video Programming Guides 
and Menus

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on a proposal 
to adopt rules that would require manufacturers and MVPDs to ensure 
that consumers are able to readily access user display settings for 
closed captioning.

DATES: Comments are due on or before February 24, 2016; reply comments 
are due on or before March 7, 2016.

ADDRESSES: You may submit comments, identified by MB Docket No. 12-108, 
by any of the following methods:
     Federal Communications Commission (FCC) Electronic Comment 
Filing System (ECFS) Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow 
the instructions for submitting comments.
     Mail: U.S. Postal Service first-class, Express, and 
Priority mail must be addressed to the FCC Secretary, Office of the 
Secretary, Federal Communications Commission, 445 12th Street SW., 
Washington, DC 20554. 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.
     Hand or Messenger Delivery: All hand-delivered or 
messenger-delivered paper filings for the FCC Secretary must be 
delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, 
Washington, DC 20554.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530; or TTY: 202-418-0432.

For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the ``PROCEDURAL MATTERS'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Maria Mullarkey, 
[email protected], of the Media Bureau, Policy Division, (202) 
418-2120. For additional information concerning the Paperwork Reduction 
Act information collection requirements contained in this document, 
contact Cathy Williams at (202) 418-2918 or send an email to 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Further Notice of Proposed Rulemaking (Second Further NPRM), FCC 15-
156, adopted on November 18, 2015, and released on November 20, 2015. 
For background, see the summary of the Second Report and Order 
accompanying the Second Further NPRM published in this issue of the 
Federal Register. The full text of this document is available 
electronically via the FCC's Electronic Document Management System 
(EDOCS) Web site at http://fjallfoss.fcc.gov/edocs_public/ or via the 
FCC's Electronic Comment Filing System (ECFS) Web site at http://fjallfoss.fcc.gov/ecfs2/. Documents will be available electronically in 
ASCII, Microsoft Word, and/or Adobe Acrobat. This document is also 
available for public inspection and copying during regular business 
hours in the FCC Reference Information Center, Federal Communications 
Commission, 445 12th Street SW., CY-A257, Washington, DC 20554. 
Alternative formats are available for people with disabilities 
(Braille, large print, electronic files, audio format), by sending an 
email to [email protected] or calling the Commission's Consumer and 
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

I. Introduction

    1. In this Second Further Notice of Proposed Rulemaking (``Second 
Further NPRM''), we seek comment on a proposal to adopt rules that 
would require manufacturers and MVPDs to ensure that consumers are able 
to readily access user display settings for closed captioning.

II. Second Further Notice of Proposed Rulemaking

    2. In this Second Further NPRM, we seek comment on a proposal to 
adopt rules that would require manufacturers and MVPDs to ensure that 
consumers are able to readily access user display settings for closed 
captioning and we seek comment on the Commission's authority to adopt 
such rules under the Television Decoder Circuitry Act of 1990 
(``TDCA'').\1\ In the Further Notice of Proposed Rulemaking (``Further 
NPRM''), we inquired whether Sections 204 and 205 of the CVAA provide 
the Commission with authority to adopt such a requirement.\2\ Upon 
further review of the issue, we continue to believe that there are 
important public interest considerations in favor of ensuring that 
consumers are able to readily access user display settings for closed 
captioning, and we seek comment on whether the TDCA provides authority 
to adopt regulations that would facilitate such access because it 
mandates that the Commission take steps to ensure that closed 
captioning service continues to be available to consumers.\3\
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    \1\ Pub. L. 101-431, 104 Stat. 960 (1990) (codified at 47 U.S.C. 
303(u), 330(b)).
    \2\ Accessibility of User Interfaces, and Video Programming 
Guides and Menus; 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, MB Docket Nos. 12-108, 12-107, Report and 
Order and Further Notice of Proposed Rulemaking, 78 FR 77210, 78 FR 
77074, para. 140 (2013) (``Report and Order and Further NPRM''). In 
response to the Further NPRM, we received comments on the issue of 
our authority under Sections 204 and 205, which we are continuing to 
evaluate.
    \3\ See S. Rep. 101-393, 1990 USCCAN 1438 (explaining that the 
TDCA ``charges the [FCC] with ensuring that closed-captioning 
services are available to the public as new technologies are 
developed'').
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    3. The TDCA requires generally that television receivers and other 
apparatus \4\ contain circuitry to decode and display closed captioning 
\5\ and directs that our ``rules shall provide

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performance and display standards for such built-in decoder circuitry 
or capability designed to display closed captioned video programming.'' 
\6\ In 2000, the Commission adopted technical standards for the display 
of closed captions on digital television receivers ``to ensure that 
closed-captioning service continues to be available to consumers'' 
following the transition to digital service.\7\ In particular, the 
Commission adopted with some modifications Section 9 of EIA-708, an 
industry standard addressing closed captioning for digital television, 
which supports user options that enable caption display to be 
customized for a particular viewer by allowing the viewer to change the 
appearance of the captions to suit his or her needs.\8\ As we noted in 
the Further NPRM,\9\ when the Commission adopted the technical 
standards, it explained that the ``capability to alter fonts, sizes, 
colors, backgrounds and more, can enable a greater number of persons 
who are deaf and hard of hearing to take advantage of closed 
captioning.'' \10\ Notably, the Commission concluded that ``[o]nly by 
requiring decoders to respond to these various [display] features can 
we ensure that closed captioning will be accessible for the greatest 
number of persons who are deaf and hard of hearing, and thereby achieve 
Congress' vision that to the fullest extent made possible by 
technology, people who are deaf or hard of hearing have equal access to 
the television medium.'' \11\
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    \4\ See 47 U.S.C. 303(u)(1) (requiring that ``apparatus designed 
to receive or play back video programming transmitted simultaneously 
with sound'' contain circuitry to decode and display closed 
captioning).
    \5\ See id. 303(u)(1)(A).
    \6\ See id. 330(b).
    \7\ See id. 303(u) (as amended by Section 203 of the CVAA), 
330(b); Closed Captioning Requirements for Digital Television 
Receivers; Closed Captioning and Video Description of Video 
Programming, Implementation of Section 305 of the Telecommunications 
Act of 1996, Video Programming Accessibility, ET Docket No. 99-254, 
MM Docket No. 95-176, Report and Order, 65 FR 58467 (2000) (``DTV 
Closed Captioning Order'').
    \8\ DTV Closed Captioning Order, para. 7.
    \9\ Report and Order and Further NPRM, para. 141.
    \10\ DTV Closed Captioning Order, para. 10. After pointing out 
that Congress noted that captioning will benefit ``older Americans 
who have some loss of hearing,'' id. at para. 11 (quoting TDCA, sec. 
2(4)), the Commission found that the benefits of being able to alter 
closed captions extend to older Americans who may have some hearing 
loss along with a visual disability. Id.
    \11\ Id. at para. 13. See also Public Law 101-431, sec. 2(1).
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    4. We seek comment on whether the TDCA gives the Commission 
authority to adopt further implementing regulations to ensure that 
consumers are able to readily access user display settings for closed 
captioning. Specifically, the TDCA, as codified in Section 330(b) of 
the Act, provides that ``[a]s new video technology is developed, the 
Commission shall take such action as the Commission determines 
appropriate to ensure that closed-captioning service continues to be 
available to consumers.'' \12\ In enacting the TDCA, Congress stated 
that ``to the fullest extent made possible by technology,'' persons who 
are deaf and hard of hearing ``should have equal access to the 
television medium.'' \13\ We believe that adopting rules requiring that 
consumers are able to readily access user display settings for closed 
captioning will ``ensure that closed-captioning service continues to be 
available to consumers'' and, in particular, that enabling viewers who 
are deaf and hard of hearing to set caption display features, such as 
colors, fonts, sizes, and backgrounds, will ensure that such 
individuals can benefit fully from digital television technologies.\14\ 
We seek comment on this analysis.
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    \12\ Public Law 101-431, sec. 4; 47 U.S.C. 330(b).
    \13\ Public Law 101-431, sec. 2(1).
    \14\ See id. at sec. 4; 47 U.S.C. 330(b).
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    5. Although the rules implemented in 2000 were intended to provide 
consumers with the benefits of customization for closed captioning, the 
record indicates that these features remain inaccessible to many 
viewers who are deaf and hard of hearing because they are difficult to 
locate and use. As discussed in the Further NPRM, Consumer/Academic 
Groups reference the ``long and frustrating history of the difficulties 
in accessing closed captioning features on apparatus and navigation 
devices,'' and describe the ``[m]ost infamously difficult'' example, in 
which a cable box must first be turned off in order to access the 
captioning mechanisms through a special menu feature.\15\ Consumer/
Academic Groups explain that ``it is critically important that the 
display settings are easily accessible and easily adjustable without 
difficulty everywhere,'' including restaurants and other public 
places.\16\ We believe that public interest considerations weigh in 
favor of adopting requirements to ensure that consumers are able to 
readily access user display settings for closed captioning, and we 
believe that such requirements will fulfill our statutory mandate under 
Section 330(b) of the Act to ensure that closed captioning service 
continues to be available to consumers and effectuate Congress's intent 
that individuals who are deaf and hard of hearing have equal access to 
video programming to the fullest extent made possible by 
technology.\17\ We seek comment on this proposal, on the costs and 
benefits of these requirements, and on the impact of the proposed rules 
on small entities.
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    \15\ See Comments of the National Association of the Deaf et 
al., MB Docket No. 12-108, at 8 (July 15, 2013). See also Letter 
from Andrew S. Phillips, Policy Counsel, NAD, to Marlene H. Dortch, 
Secretary, FCC, MB Docket No. 12-108, at 3 (Sept. 11, 2013) (noting 
that ``[t]o this day, many people who are deaf or hard of hearing 
continue to have difficulties accessing closed captioning controls 
on MVPD-provided products,'' and that consumers must ``navigate 
complex menu settings in order to find the closed captioning control 
or configuration settings''); Comments of the National Association 
of the Deaf, Telecommunications for the Deaf and Hard of Hearing, 
Inc., Deaf and Hard of Hearing Consumer Advocacy Network, 
Association of Late-Deafened Adults, Inc., Hearing Loss Association 
of America, California Coalition of Agencies Serving the Deaf and 
Hard of Hearing, Cerebral Palsy and Deaf Organization, and 
Telecommunication-RERC at 8-9, 11 (``Consumer/Academic Groups 
Comments'').
    \16\ Consumer/Academic Groups Comments at 9. Consumer/Academic 
Groups emphasize that ``[t]he CVAA applies to all devices that we 
access at home, in public establishments, schools, workplaces, and 
everywhere, not just those devices in our possession and familiar to 
us.'' Id.
    \17\ See 47 U.S.C. 330(b); H.R. Rep. No. 111-563, 111th Cong., 
2d Sess. at 19 (2010); S. Rep. No. 111-386, 111th Cong., 2d Sess. at 
1 (2010). See also Public Law 101-431, sec. 2(1).
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    6. Further, we seek comment on how we would implement a requirement 
that consumers be able to readily access user display settings for 
closed captioning. Consumer/Academic Groups contend that access to 
closed captioning display features should not be lower than the first 
level of a menu,\18\ arguing that if users are unable to locate closed 
captioning display settings that are buried in multiple levels of a 
menu, ``then they are unlikely to be able to alter the font, sizes, 
and/or backgrounds to fit their particular needs'' and ``captions will 
remain at hard-to-read levels--such as with fonts that are too small or 
with poor contrast, frustrating each individual's ability to access 
programming in a way that best suits their needs.'' \19\ Should we 
require that inclusion of closed captioning display settings must be no 
lower than the first level of a menu? Would this approach provide 
industry with flexibility to develop other innovative ways for users to 
access and locate closed captioning display settings? We seek comment 
on alternative ways to implement this requirement.
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    \18\ To provide an example of what it means to activate closed 
captioning in the ``first level of a menu,'' Consumer/Academic 
Groups in comments responding to the NPRM cited ``the web-based 
YouTube video player,'' explaining that ``[t]o access the captioning 
settings on the YouTube player, the user first clicks the `CC' 
button at the bottom of the screen, then clicks `Settings . . . ,' 
and then a box appears which allows users to adjust the closed 
captioning settings.'' Comments of the National Association of the 
Deaf et al., MB Docket No. 12-108, at 11 (July 15, 2013).
    \19\ Consumer/Academic Groups Comments at 9.

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[[Page 5973]]

    7. We also seek comment on steps industry already is taking or 
planning to take to facilitate access to user display settings for 
closed captioning. We note that, in response to questions regarding the 
state of industry readiness in complying with the requirements adopted 
in the Report and Order, CEA queried its members and reported that ``TV 
manufacturers intend to make caption display settings accessible via 
mechanisms reasonably comparable to a button, key, or icon through 
several methods including a button on the remote or access through the 
first level of a menu,'' and that ``manufacturers are making efforts to 
streamline access to the ANSI/CEA-708 attributes.'' \20\ We seek input 
on whether there is a need to adopt regulations given current plans of 
industry with regard to facilitating access to user display settings 
for closed captioning.
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    \20\ Letter from Julie M. Kearney, Vice President, Regulatory 
Affairs, CEA, to Marlene H. Dortch, Secretary, FCC, MB Docket No. 
12-108, at 2 (Mar. 3, 2015).
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    8. We believe that a requirement that consumers be able to readily 
access user display settings for closed captioning should apply to 
apparatus covered by Section 303(u)(1) of the Act (i.e., 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),\21\ as interpreted consistently with our 
precedent in the IP Closed Captioning Order.\22\ We seek comment on 
this analysis. We also seek comment on whether the exceptions relating 
to technical feasibility and achievability in Section 303(u) of the Act 
should apply in this context.\23\ In addition, we seek comment on which 
entities should be responsible for compliance. Should both 
manufacturers and MVPDs be obligated to facilitate the ability of 
consumers to locate and control closed captioning display settings? For 
example, where closed captioning display settings are accessed through 
the television or set-top box, would the manufacturer of such device be 
solely responsible for ensuring that the display settings are readily 
accessible? Or would MVPDs also have responsibility with respect to 
ensuring their customers are able to readily access closed captioning 
display settings?
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    \21\ 47 U.S.C. 303(u)(1).
    \22\ See Closed Captioning of Internet Protocol-Delivered Video 
Programming: Implementation of the Twenty-First Century 
Communications and Video Accessibility Act of 2010, MB Docket No. 
11-154, Report and Order, 77 FR 46632, paras. 93-96 (2012) (``IP 
Closed Captioning Order''). Under this interpretation, apparatus 
exempt from the requirement to be equipped with built-in closed 
caption decoder circuitry or capability designed to display closed-
captioned video programming (e.g., display-only video monitors, and 
apparatus primarily designed for purposes other than receiving or 
playing back video programming) would not be subject to the 
requirements proposed herein. See id. at paras. 106-08. See also 
Closed Captioning of Internet Protocol-Delivered Video Programming: 
Implementation of the Twenty-First Century Communications and Video 
Accessibility Act of 2010, MB Docket No. 11-154, Order on 
Reconsideration and Further Notice of Proposed Rulemaking, 78 FR 
39691, 78 FR 39619, paras. 5-15 (2013).
    \23\ 47 U.S.C. 303(u), 303(u)(2); IP Closed Captioning Order, 
paras. 97-98, 104-05.
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    9. Finally, if the Commission adopts rules, what time frame would 
be appropriate for requiring covered entities to ensure that consumers 
are able to readily access user display settings for closed captioning? 
In particular, we seek comment on Consumer/Academic Groups' request 
that the compliance deadline for readily accessible closed captioning 
display settings be the same as the December 20, 2016 deadline for the 
closed captioning activation mechanism adopted pursuant to Sections 204 
and 205 of the CVAA.\24\ We ask commenters to justify any deadline they 
propose by explaining what must be done by that deadline to comply with 
the proposed requirement.
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    \24\ See Consumer/Academic Groups Comments at 10-11.
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III. Procedural Matters

A. Initial Regulatory Flexibility Act

    10. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''),\25\ the Commission has prepared this present Initial 
Regulatory Flexibility Analysis (``IRFA'') concerning the possible 
economic impact on small entities by the policies and rules proposed in 
the Second Further 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 as specified in the Second Further 
NPRM. The Commission will send a copy of the Second Further NPRM, 
including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (``SBA'').\26\ In addition, the Second Further 
NPRM and this IRFA (or summaries thereof) will be published in the 
Federal Register.\27\
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    \25\ 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''), Public Law 104-121, Title II, 110 Stat. 857 
(1996).
    \26\ See 5 U.S.C. 603(a).
    \27\ See id.
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1. Need for, and Objectives of, the Proposed Rule Changes
    11. In the Second Further NPRM, the Commission seeks comment on a 
proposal to adopt rules that would require manufacturers and 
multichannel video programming distributors (``MVPDs'') to ensure that 
consumers are able to readily access user display settings for closed 
captioning and seeks comment on the Commission's authority to adopt 
such rules under the Television Decoder Circuitry Act of 1990 
(``TDCA''). The TDCA, as codified in Section 330(b) of the Act, 
provides that ``[a]s new video technology is developed, the Commission 
shall take such action as the Commission determines appropriate to 
ensure that closed-captioning service continues to be available to 
consumers.'' In enacting the TDCA, Congress stated that ``to the 
fullest extent made possible by technology,'' persons who are deaf and 
hard of hearing ``should have equal access to the television medium.'' 
Although the rules implemented in 2000 were intended to provide 
consumers with the benefits of customization for closed captioning 
(i.e., the ability to alter fonts, sizes, colors, backgrounds and 
more), the record indicates that these features remain inaccessible to 
many viewers who are deaf and hard of hearing because they are 
difficult to locate and use. The proposed rules requiring that 
consumers are able to readily access user display settings for closed 
captioning will ``ensure that closed-captioning service continues to be 
available to consumers'' and, in particular, that the benefits of being 
able to alter colors, fonts, and sizes offered by digital captioning 
technology fully accrue to individuals who are deaf or hard of hearing.
2. Legal Basis
    12. The proposed action is authorized pursuant to the Television 
Decoder Circuitry Act of 1990, Public Law 101-431, 104 Stat. 960, and 
the authority contained in Sections 4(i), 4(j), 303(u), and 330(b) of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 
303(u), 330(b).
3. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply
    13. The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the rules proposed in the Second Further NPRM. The RFA 
generally defines the term ``small entity'' as having the same

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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 SBA. Small entities that are directly affected by 
the rules proposed in the Second Further NPRM include manufacturers of 
apparatus covered by Section 303(u)(1) of the Act (i.e., 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) and MVPDs.
    14. Cable Television Distribution Services. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers, which was developed for small 
wireline businesses. This category 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. 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 
wired broadband Internet services.'' The SBA has developed a small 
business size standard for this category, which is: All such businesses 
having 1,500 or fewer employees. Census data for 2007 shows that there 
were 31,996 establishments that operated that year. Of this total, 
30,178 establishments had fewer than 100 employees, and 1,818 
establishments had 100 or more employees. Therefore, under this size 
standard, we estimate that the majority of businesses can be considered 
small entities.
    15. 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. Industry data 
shows that there were 1,141 cable companies at the end of June 2012. Of 
this total, all but 10 incumbent cable companies are small under this 
size standard. In addition, under the Commission's rate regulation 
rules, a ``small system'' is a cable system serving 15,000 or fewer 
subscribers. Current Commission records show 4,945 cable systems 
nationwide. Of this total, 4,380 cable systems have less than 20,000 
subscribers, and 565 systems have 20,000 subscribers or more, based on 
the same records. Thus, under this standard, we estimate that most 
cable systems are small.
    16. Cable System Operators (Telecom Act Standard). 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.'' There are approximately 56.4 million 
incumbent cable video subscribers in the United States today. 
Accordingly, an operator serving fewer than 564,000 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. Based on available data, we find that all but 
10 incumbent cable operators are small under this size standard. 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. Although it seems certain that 
some of these cable system operators are affiliated with entities whose 
gross annual revenues exceed $250,000,000, we are unable at this time 
to estimate with greater precision the number of cable system operators 
that would qualify as small cable operators under the definition in the 
Communications Act.
    17. 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, which was developed for small wireline businesses. Under this 
category, the SBA deems a wireline business to be small if it has 1,500 
or fewer employees. Census data for 2007 shows that there were 31,996 
establishments that operated that year. Of this total, 30,178 
establishments had fewer than 100 employees, and 1,818 establishments 
had 100 or more employees. Therefore, under this size standard, the 
majority of such businesses can be considered small. However, the data 
we have available as a basis for estimating the number of such small 
entities were gathered under a superseded SBA small business size 
standard formerly titled ``Cable and Other Program Distribution.'' The 
definition of Cable and Other Program Distribution provided that a 
small entity is one with $12.5 million or less in annual receipts. 
Currently, only two entities provide DBS service, which requires a 
great investment of capital for operation: DIRECTV and DISH Network. 
Each currently offer subscription services. DIRECTV and DISH Network 
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.
    18. 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, which was developed for 
small wireline businesses. Under this category, the SBA deems a 
wireline business to be small if it has 1,500 or fewer employees. 
Census data for 2007 shows that there were 31,996 establishments that 
operated that year. Of this total, 30,178 establishments had fewer than 
100 employees, and 1,818 establishments had 100 or more employees. 
Therefore, under this size standard, the majority of such businesses 
can be considered small.
    19. 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

[[Page 5975]]

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. The SBA has 
developed a small business size standard for this category, which is: 
All such businesses having 1,500 or fewer employees. Census data for 
2007 shows that there were 31,996 establishments that operated that 
year. Of this total, 30,178 establishments had fewer than 100 
employees, and 1,818 establishments had 100 or more employees. 
Therefore, under this size standard, we estimate that the majority of 
businesses can be considered small entities.
    20. Open Video Services. 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. The OVS framework provides opportunities for the distribution 
of video programming other than through cable systems. Because OVS 
operators provide subscription services, OVS falls within the SBA small 
business size standard covering cable services, which is Wired 
Telecommunications Carriers. The SBA has developed a small business 
size standard for this category, which is: All such businesses having 
1,500 or fewer employees. Census data for 2007 shows that there were 
31,996 establishments that operated that year. Of this total, 30,178 
establishments had fewer than 100 employees, and 1,818 establishments 
had 100 or more employees. Therefore, under this size standard, we 
estimate that the majority of businesses can be considered small 
entities. In addition, we note that the Commission has certified some 
OVS operators, with some now providing service. Broadband service 
providers (``BSPs'') are currently the only significant holders of OVS 
certifications or local OVS franchises. 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, again, 
at least some of the OVS operators may qualify as small entities.
    21. Wireless cable systems--Broadband Radio Service and Educational 
Broadband Service. Wireless cable systems use the Broadband Radio 
Service (BRS) and Educational Broadband Service (EBS) to transmit video 
programming to subscribers. 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. 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. 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. 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. 
Auction 86 concluded in 2009 with the sale of 61 licenses. Of the 10 
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.
    22. 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, these services have been defined within the broad 
economic census category of Wired Telecommunications Carriers, which 
was developed for small wireline businesses. This category 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. 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 wired broadband Internet services. The SBA has 
developed a small business size standard for this category, which is: 
All such businesses having 1,500 or fewer employees. Census data for 
2007 shows that there were 31,996 establishments that operated that 
year. Of this total, 30,178 establishments had fewer than 100 
employees, and 1,818 establishments had 100 or more employees. 
Therefore, under this size standard, we estimate that the majority of 
businesses can be considered small entities. In addition to Census 
data, the Commission's internal records indicate that as of September 
2012, there are 2,241 active EBS licenses. 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.
    23. Incumbent Local Exchange Carriers (ILECs). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. ILECs are included 
in the SBA's economic census category, Wired Telecommunications 
Carriers. Under this category, the SBA deems a wireline business to be 
small if it has 1,500 or fewer employees. Census data for 2007 shows 
that there were 31,996 establishments that operated that year. Of this 
total, 30,178 establishments had fewer than 100 employees, and 1,818 
establishments had 100 or more employees. Therefore, under this size 
standard, the majority of such businesses can be considered small.
    24. 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.'' The SBA's Office of Advocacy 
contends that,

[[Page 5976]]

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. 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.
    25. Competitive Local Exchange Carriers (CLECs), 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. 
These entities are included in the SBA's economic census category, 
Wired Telecommunications Carriers. Under this category, the SBA deems a 
wireline business to be small if it has 1,500 or fewer employees. 
Census data for 2007 shows that there were 31,996 establishments that 
operated that year. Of this total, 30,178 establishments had fewer than 
100 employees, and 1,818 establishments had 100 or more employees. 
Therefore, under this size standard, the majority of such businesses 
can be considered small.
    26. 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.'' The SBA has developed a small business size 
standard for this category, which is: All such businesses having 750 or 
fewer employees. Census data for 2007 shows that there were 939 
establishments that operated for part or all of the entire year. Of 
those, 912 operated with fewer than 500 employees, and 27 operated with 
500 or more employees. Therefore, under this size standard, the 
majority of such establishments can be considered small.
    27. Audio and Video Equipment Manufacturing. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in manufacturing electronic audio and 
video equipment for home entertainment, motor vehicles, and public 
address and musical instrument amplification. Examples of products made 
by these establishments are video cassette recorders, televisions, 
stereo equipment, speaker systems, household-type video cameras, 
jukeboxes, and amplifiers for musical instruments and public address 
systems.'' The SBA has developed a small business size standard for 
this category, which is: All such businesses having 750 or fewer 
employees. Census data for 2007 shows that there were 492 
establishments in this category operated for part or all of the entire 
year. Of those, 488 operated with fewer than 500 employees, and four 
operated with 500 or more employees. Therefore, under this size 
standard, the majority of such establishments can be considered small.
4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements
    28. In the Second Further NPRM, the Commission seeks comment on a 
proposal to adopt rules that would require manufacturers and MVPDs to 
ensure that consumers are able to readily access user display settings 
for closed captioning and seeks comment on the Commission's authority 
to adopt such rules under the TDCA. In this section, we describe the 
reporting, recordkeeping, and other compliance requirements proposed in 
the Second Further NPRM and consider whether small entities are 
affected disproportionately by any such requirements.
    29. Reporting Requirements. The Second Further NPRM does not 
propose to adopt reporting requirements.
    30. Recordkeeping Requirements. If the rules proposed in the Second 
Further NPRM were adopted, certain recordkeeping requirements would be 
applicable to covered small entities. The Second Further NPRM asks 
whether we should apply the exceptions relating to technical 
feasibility and achievability in Section 303(u) of the Act consistent 
with our precedent in the IP Closed Captioning Order. These provisions 
would require covered entities to make a filing and, thus, to make and 
keep records of the filing.
    31. Other Compliance Requirements. The Second Further NPRM proposes 
other compliance requirements that would be applicable to covered small 
entities. In particular, the Second Further NPRM seeks comment on 
whether the TDCA gives the Commission authority to adopt further 
implementing regulations to ensure that consumers are able to readily 
access user display settings for closed captioning. The Second Further 
NPRM seeks comment on how the Commission would implement a requirement 
that consumers be able to readily access user display settings for 
closed captioning and, in particular, whether to require that inclusion 
of closed captioning display settings must be no lower than the first 
level of a menu.
    32. We do not have specific information quantifying the costs and 
administrative burdens associated with the rules proposed in the Second 
Further NPRM because it has not yet been determined how covered 
entities will implement a requirement that consumers be able to readily 
access user display settings for closed captioning. Thus, we cannot 
precisely estimate the impact of the rules proposed in the Second 
Further NPRM on small entities. We note that CEA has reported that some 
industry members are already planning to take steps to facilitate 
access to user display settings for closed captioning and thus, the 
burden for some covered entities may be minimal. Further, we explore 
whether entities subject to the proposed rules need not comply with the 
requirements if they are able to demonstrate to the Commission that 
compliance is not achievable. While the economic impact of the rules on 
small entities is not quantifiable at this time, the proposed rules, if 
adopted, could affect small companies to a greater extent than large 
companies. As a result, the Commission below considers alternatives 
that have the potential to minimize the economic effect of its proposed 
rules on small entities.
5. Steps Taken To Minimize Significant Impact on Small Entities and 
Significant Alternatives Considered
    33. 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 and 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.
    34. The rules proposed in the Second Further NPRM, if adopted, 
could have a significant economic impact on small entities. As 
discussed below, Section 303(u) of the Act contains provisions that 
allow the Commission to tailor its rules, as necessary, to small 
entities for whom compliance with such rules is

[[Page 5977]]

economically burdensome, and we inquire in the Second Further NPRM 
whether these exceptions should apply. Notably, we ask whether an 
entity (including a small entity) should avoid compliance with a 
requirement to ensure that users can readily access closed captioning 
display settings if it is able to demonstrate to the Commission that 
such compliance is not ``achievable'' (i.e., cannot be accomplished 
with reasonable effort or expense) or is not ``technically feasible.'' 
These procedures will allow the Commission to address the impact of the 
rules on individual entities, including smaller entities, on a case-by-
case basis, and to modify application of its rules to accommodate 
individual circumstances, thereby potentially reducing the costs of 
compliance for such entities. We note that two of the four statutory 
factors that the Commission must consider in assessing achievability 
are particularly relevant to small entities: (i) The nature and cost of 
the steps needed to meet the requirements, and (ii) the technical and 
economic impact on the entity's operations. Thus, a small entity may be 
able to avoid compliance in cases where it can demonstrate that 
compliance is not achievable.
    35. Further, the Commission seeks comment on how alternative ways 
to implement a requirement that consumers be able to readily access 
user display settings for closed captioning, as well as on the costs 
and benefits of such a requirement and the impact of the proposed rules 
on small entities. These considerations will allow the Commission to 
address alternatives that can potentially minimize the burden and costs 
of compliance for covered entities, including smaller entities.
    36. Based on these considerations, we believe that, in proposing 
additional rules in the Second Further NPRM, we have appropriately 
considered both the interests of individuals with disabilities and the 
interests of the entities who will be subject to the rules, including 
those that are smaller entities, consistent with Congress's intent that 
``to the fullest extent made possible by technology,'' persons who are 
deaf and hard of hearing ``should have equal access to the television 
medium.''
6. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    37. None.

B. Paperwork Reduction Act

    38. The Second Further NPRM may result in new or revised 
information collection requirements. If the Commission adopts any new 
or revised information collection requirement, the Commission will 
publish a notice in the Federal Register inviting the public to comment 
on the requirement, as required by the Paperwork Reduction Act of 1995, 
Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107 198, see 44 
U.S.C. 3506(c)(4), the Commission seeks specific comment on how it 
might ``further reduce the information collection burden for small 
business concerns with fewer than 25 employees.''

C. Ex Parte Rules

    39. We remind interested parties that this proceeding is treated as 
a ``permit-but-disclose'' proceeding in accordance with the 
Commission's ex parte rules.\28\ 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.
---------------------------------------------------------------------------

    \28\ 47 CFR 1.1200 et seq.
---------------------------------------------------------------------------

D. Filing Requirements

    40. Pursuant to Sections 1.415 and 1.419 of the Commission's 
rules,\29\ interested parties may file comments and reply comments on 
or before the dates indicated on the first page of this document. All 
comments are to reference MB Docket No. 12-108 and may be filed using: 
(1) The Commission's Electronic Comment Filing System (ECFS) or (2) by 
filing paper copies.\30\
---------------------------------------------------------------------------

    \29\ See 47 CFR 1.415, 1419.
    \30\ See Electronic Filing of Documents in Rulemaking 
Proceedings, GC Docket No. 97-113, Report and Order, 63 FR 24121 
(1998).
---------------------------------------------------------------------------

    [ssquf] Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
    [ssquf] 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.
    [ssquf] All hand-delivered or messenger-delivered paper filings for 
the Commission's Secretary must be delivered to FCC Headquarters at 445 
12th Street 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.
    [ssquf] 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.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street SW., Washington DC 20554.
    41. People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    42. Availability of Documents. Comments and reply comments will be

[[Page 5978]]

publically available online via ECFS.\31\ These documents will also be 
available for public inspection during regular business hours in the 
FCC Reference Information Center, which is located in Room CY-A257 at 
FCC Headquarters, 445 12th Street SW., Washington, DC 20554. The 
Reference Information Center is open to the public Monday through 
Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 
a.m.
---------------------------------------------------------------------------

    \31\ Documents will generally be available electronically in 
ASCII, Microsoft Word, and/or Adobe Acrobat.
---------------------------------------------------------------------------

IV. Ordering Clauses

    43. Accordingly, it is ordered that, pursuant to the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Public Law 
111-260, 124 Stat. 2751, and the authority found in Sections 4(i), 
4(j), 303(r), 303(u), 303(aa), 303(bb), and 716(g) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 
303(r), 303(u), 303(aa), 303(bb), and 617(g), this Second Further 
Notice of Proposed Rulemaking is adopted.
    44. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Second Further Notice of Proposed Rulemaking in MB Docket 
No. 12-108, including the Initial Regulatory Flexibility Analysis, to 
the Chief Counsel for Advocacy of the Small Business Administration.

List of Subject in 47 CFR 79

    Cable television operators, Communications equipment, Multichannel 
video programming distributors (MVPDs), Satellite television service 
providers.

Federal Communications Commission.
Marlene H. Dortch,
Secretary. Office of the Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 79 as follows:

PART 79--ACCESSIBILITY OF VIDEO PROGRAMMING

0
1. The authority 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, and 617.

0
2. Amend Sec.  79.103 by adding paragraph (e) to read as follows:


Sec.  79.103  Closed caption decoder requirements for apparatus.

* * * * *
    (e) Access to closed captioning display settings. Apparatus subject 
to this section must ensure that consumers are able to readily access 
user display settings for closed captioning, if technically feasible, 
except that apparatus that use a picture screen of less than 13 inches 
in size must comply with this requirement only if doing so is 
achievable as defined in this section.

[FR Doc. 2016-00930 Filed 2-3-16; 8:45 am]
BILLING CODE 6712-01-P