[Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66268-66283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17479]


-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket No. 12-108; FCC 24-79; FR ID 235228]


Accessibility of User Interfaces, and Video Programming Guides 
and Menus

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Federal Communications Commission 
(Commission) requires manufacturers of covered apparatus and 
multichannel video programming distributors to make closed captioning 
display settings readily accessible to individuals who are deaf and 
hard of hearing. This action will further the Commission's efforts to 
enable individuals with disabilities to access video programming 
through closed captioning.

DATES: 
    Effective date: Effective September 16, 2024.
    Compliance date: Compliance with 47 CFR 79.103(e) is not required 
until the Commission has published a document in the Federal Register 
announcing the compliance date.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Diana Sokolow, [email protected], of the Policy 
Division, Media Bureau, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
Report and Order (Order), in MB Docket No. 12-108; FCC 24-79, adopted 
on July 18, 2024 and released on July 19, 2024. The full text of this 
document will be available at https://docs.fcc.gov/public/attachments/FCC-24-79A1.pdf and via ECFS at https://www.fcc.gov/ecfs/. Documents 
will be available electronically in ASCII, Microsoft Word, and/or Adobe 
Acrobat. 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), 1-844-4-FCC-ASL 
(1-844-432-2275) (videophone).

Synopsis

    This Order furthers our efforts to enable individuals with 
disabilities to access video programming through closed captioning. 
Closed captioning displays the audio portion of a television program as 
text on the screen, providing access to news, entertainment, and 
information for individuals who are deaf and hard of hearing. The 
Federal Communications Commission requires the provision of closed 
captioning on nearly all television programming, as well as on a large 
portion of internet protocol (IP)-delivered programming. Through the 
Commission's implementation of the Television Decoder Circuitry Act of 
1990 (TDCA) and the Twenty-First Century Communications and Video 
Accessibility Act of 2010 (CVAA), it has made significant progress in 
enabling video programming to be accessible to persons who are deaf and 
hard of hearing. Pursuant to the TDCA, the Commission adopted standards 
for the display of closed captions on digital television receivers, and 
those standards enable users to customize caption display by changing 
the font, size, color, and other features of captions. Subsequently, 
pursuant to the CVAA, the Commission adopted display standards for 
other video devices, specifically for apparatus designed to receive or 
play back video programming transmitted simultaneously with sound. 
However, many consumers continue to have difficulty accessing the 
closed captioning display settings on televisions and other video 
devices--a technical barrier that prevents the use and enjoyment of 
captioning. Today we take steps to alleviate this problem and thereby 
ensure meaningful access to captioning.
    Specifically, the rule we adopt requires manufacturers of covered 
apparatus \1\ and multichannel video programming distributors (MVPDs) 
to make closed captioning display settings readily accessible to 
individuals who are deaf and hard of hearing. We afford covered 
entities flexibility in how they meet this obligation, and the 
Commission will determine whether settings are readily accessible to 
consumers by evaluating the following factors: proximity, 
discoverability,

[[Page 66269]]

previewability, and consistency and persistence. We adopt a compliance 
deadline of two years after publication of this Order in the Federal 
Register.
---------------------------------------------------------------------------

    \1\ As discussed below, the requirements adopted herein apply to 
devices covered by section 303(u) of the Act, in other words, 
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, except that the 
requirements do not apply to third-party, pre-installed applications 
that are otherwise covered by section 303(u).
---------------------------------------------------------------------------

    Prior to adoption of the TDCA, consumers needed to purchase a 
separate TeleCaption decoder device and connect it to a television set 
in order to display closed captions. The TDCA amended section 303 of 
the Communications Act of 1934, as amended (the Act), to require that 
television receivers contain built-in decoder circuitry designed to 
display closed captioning. It also amended section 330 of the Act to 
require that the Commission's rules provide performance and display 
standards for such built-in decoder circuitry. In the TDCA, Congress 
observed that the availability of televisions with built-in decoders 
``will significantly increase the audience that can be served by 
closed-captioned television'' and outlined the significant benefits of 
closed captioning for people who are deaf and hard of hearing as well 
as other segments of the population, including children and older 
Americans who have some loss of hearing. Congress also mandated in 
section 330(b) of the Act that the Commission take appropriate action 
to ensure that closed captioning service continues to be available to 
consumers as new video technology is developed.
    In 1991, the Commission adopted rules that codified standards for 
the display of closed captioned text on analog television receivers. 
Following the transition to digital broadcasting, the Commission in 
2000 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.'' In particular, the Commission 
adopted with some modifications section 9 of EIA-708, an industry 
standard addressing closed captioning for digital television, which 
allows the caption display to be customized for a particular viewer by 
enabling the viewer to change the appearance of the captions to suit 
his or her needs. 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.''
    In 2010, Congress enacted 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.'' Section 203 of the CVAA broadened section 303(u) 
of the Act, which previously applied to ``apparatus designed to receive 
television pictures broadcast simultaneously with sound,'' to cover 
``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.'' Such apparatus must 
``be equipped with built-in closed caption decoder circuitry or 
capability designed to display closed-captioned video programming.'' In 
2012, the Commission adopted performance and display standards for such 
built-in decoder circuitry in accordance with section 330(b) of the 
Act, and in particular it adopted functional requirements to ensure 
that consumers can modify caption display features for IP-delivered 
programming on covered apparatus. These rules require that apparatus 
provide functionality that allows users to change the presentation, 
color, opacity, size, and font of captions, caption background color 
and opacity, character edge attributes, and caption window color. But 
the rules do not mandate how users access such features on the device. 
In the Commission's subsequent proceedings on implementing the 
accessibility requirements of sections 204 and 205 of the CVAA, 
Consumer Groups described the difficulties consumers who are deaf and 
hard of hearing face in accessing closed captioning display features on 
apparatus used to view video programming.
    In November 2015, in a Second Further Notice of Proposed Rulemaking 
(Second FNPRM) in the above-captioned docket, the Commission proposed 
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 on the Commission's authority to do so under the 
TDCA.\2\ Among other things, the Second FNPRM asked whether the 
Commission should require the inclusion of closed captioning display 
settings no lower than the first level of a menu, whether such an 
approach would provide industry with sufficient flexibility, and 
whether there are ``alternative ways to implement this requirement.'' 
In January 2022, the Media Bureau released a Public Notice seeking to 
refresh the record on the proposals contained in the Second FNPRM.\3\ 
While some comments in the refreshed record assert that caption display 
settings are accessible, others explain that problems with the 
accessibility of such settings continue to persist.
---------------------------------------------------------------------------

    \2\ In the Further Notice of Proposed Rulemaking in MB Docket 
No. 12-108, the Commission had previously inquired whether sections 
204 and 205 of the CVAA provide the Commission with authority to 
adopt such a requirement. Given our conclusion herein that our 
authority derives from the statutory provisions of the TDCA, as 
codified in sections 303(u) and 330(b) of the Act, we find it 
unnecessary to reach this issue.
    \3\ The January 2022 Public Notice was published in the Federal 
Register. See Federal Communications Commission, Accessibility Rules 
for Closed Captioning Display Settings, 87 FR 2607 (Jan. 18, 2022).
---------------------------------------------------------------------------

    In January 2023, the Media Bureau released another Public Notice, 
seeking comment on a proposal in the record that the Commission require 
compliance with the following factors when determining whether 
captioning display settings are readily accessible: proximity, 
discoverability, previewability, and consistency and persistence.\4\ On 
March 14, 2024, NCTA and a coalition of consumer groups filed in the 
record a joint proposal to make caption display settings readily 
accessible.\5\ The Media Bureau released a Public Notice seeking 
comment on the joint proposal.\6\
---------------------------------------------------------------------------

    \4\ The 2023 Caption Display Settings Public Notice was 
published in the Federal Register. See Federal Communications 
Commission, Accessibility Rules for Closed Captioning Display 
Settings, 88 FR 6725 (Feb. 1, 2023).
    \5\ The proposal's signatories represent the following 
organizations: NCTA, National Association of the Deaf, TDIforAccess 
(TDI), Communication Service for the Deaf, and Hearing Loss 
Association of America.
    \6\ The 2024 Caption Display Settings Public Notice was 
published in the Federal Register. See Federal Communications 
Commission, Accessibility Rules for Closed Captioning Display 
Settings, 89 FR 20965 (March 26, 2024).
---------------------------------------------------------------------------

    Below, we first find that we have authority under the TDCA to 
require that closed captioning display settings are readily accessible 
to consumers. Second, we adopt the requirement that such settings must 
be ``readily accessible,'' and we detail factors the Commission will 
require when making this determination. Third, we explain our finding 
that the public interest benefits outweigh the costs for a requirement 
that the closed captioning display settings be readily accessible. 
Fourth, we find that the rule we adopt herein applies to the full range 
of devices covered by section 303(u) of the Act, and that both 
manufacturers of covered apparatus and MVPDs are responsible for 
compliance with the rule, except that the requirements do not apply to 
third-party, pre-installed applications that are otherwise covered by 
section 303(u). Fifth, we discuss the availability of waivers or 
exemptions based on achievability and technical

[[Page 66270]]

feasibility. Finally, we establish a compliance deadline of two years 
after publication of the Third Report and Order in the Federal 
Register.
    Authority. We conclude that the Commission has authority under the 
TDCA to require that closed captioning display settings be readily 
accessible to consumers. Section 303(u)(1)(A) of the Act authorizes the 
Commission to require that ``apparatus designed to receive or play back 
video programming transmitted simultaneously with sound'' must ``be 
equipped with built-in closed caption decoder circuitry or capability 
designed to display closed-captioned video programming.'' Section 
330(b) of the Act directs the Commission to adopt rules to ``provide 
performance and display standards for such built-in decoder circuitry 
or capability designed to display closed captioned video programming'' 
and, ``[a]s new video technology is developed,'' to take such action as 
it ``determines appropriate to ensure that closed-captioning service . 
. . continue[s] to be available to consumers.''
    We find that sections 303(u) and 330(b) authorize the Commission, 
in implementing the TDCA, to consider the practical usability of closed 
captioning features by consumers and to adopt ``performance and display 
standards'' that will make closed captioning ``available to consumers'' 
by ensuring the usability of the display options. We find that 
meaningful access to user display settings ``is essential to making 
closed captioning `available' to consumers'' within the meaning of the 
TDCA.\7\ As Consumer Groups explain, ``[i]f a consumer cannot readily 
locate and use display settings, then closed captioning itself is not 
truly `available' because the consumer cannot ensure that captions are 
rendered in a readable and accessible format,'' and, thus the directive 
and purpose of the statute will not be fulfilled. Given ``the increased 
volume and variety of both the programming and devices available to 
consumers'' today, it is ``more important now than ever'' that the 
Commission modify its rules to ensure that closed captioning is 
meaningfully--not just nominally--available to viewers in order to 
serve Congressional intent.\8\ The record shows that expecting 
consumers to ``search[] for settings which are buried in menus'' is an 
``intimidating and frustrating experience.'' \9\ Thus, simply including 
captioning circuitry somewhere in a device is not enough to satisfy the 
requirements of the statute; for the captions to be ``available'' as 
Congress intended, consumers must be able to adjust the caption display 
settings in a manner that makes the captions accessible--i.e., 
``available'' to the consumer.
---------------------------------------------------------------------------

    \7\ See Consumer Groups 2016 Comments at 3.
    \8\ Id.
    \9\ Id. at 4.
---------------------------------------------------------------------------

    We find that the structure, text, purpose, and history of the TDCA 
support Commission authority to regulate consumer access to closed 
captioning display settings. First, the statutory structure and text 
support this interpretation. Section 303(u)(1)(A) directs the 
Commission to adopt regulations that, among other things, require (if 
technically feasible) that covered devices ``be equipped with built-in 
closed caption decoder circuitry or capability designed to display 
closed-captioned video programming.'' Section 330(b) directs the 
Commission to adopt ``performance and display standards'' and to take 
such action as it deems necessary to ensure that closed captioning 
continues to be ``available,'' as new technology is developed. Congress 
did not define the term ``available'' for purposes of section 330(b). 
We believe that the best reading is to interpret ``available'' to mean 
that consumers can readily access the various functions and features of 
closed captioning capability. We find that this reading is supported by 
the statute as a whole and the surrounding text. Specifically, section 
330(b) identifies certain requirements that Commission rules ``shall 
provide'' in implementing section 303(u), including ``performance and 
display standards,'' a requirement that is sufficiently broad to 
encompass regulation of how closed captioning is accessed by consumers. 
Indeed, Consumer Groups discuss the meaning of the word ``performance'' 
in the phrase ``performance and display standards,'' explaining that 
``[a]n interpretation of the statute that would prohibit the Commission 
from setting standards for easy access to configuration controls would 
undermine'' Congress's accessibility goals, and the ``grant of 
authority to implement performance standards'' provides the Commission 
with ``substantial discretion'' in adopting requirements ``to specify 
how users might interact with functions required by those performance 
standards.'' We agree. By exercising our authority in this manner, we 
fulfill the statutory requirement to include in our rules 
``performance'' standards for closed captioning. In addition, section 
330(b) directs the Commission ``[a]s new video technology is 
developed'' to ``take such action as [it] determines appropriate to 
ensure that closed-captioning service . . . continue[s] to be available 
to consumers.'' The ``take such action as [it] determines appropriate'' 
mandate further supports a broad, rather than narrow, view of the 
Commission's authority to ``ensure that closed-captioning service . . . 
continue[s] to be available to consumers''--an objective advanced by 
ensuring access to closed caption display options. We thus believe this 
interpretation of the statute best reflects the ordinary meaning of the 
statute and best serves the statutory purpose, as discussed below.
    Second, our interpretation is consistent with the express purpose 
of the TDCA, which is to increase the number of consumers who can avail 
themselves of closed captioning, with increased demand spurring the 
provision of more captioned programming. 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.'' Third, we observe that the legislative history 
reveals that Congress believed the TDCA would increase the audience for 
closed captioned programming and thereby create market incentives for 
investment in closed captioned programming. If a covered apparatus has 
the ability to process and display closed captions but does so in a way 
that makes it practically infeasible or undesirable for consumers to 
use that capability, the intent of broadening the potential audience 
for captioned programming is undermined. By requiring that closed 
captioning performance and display functionality be ``readily 
accessible,'' we fulfill the purpose of the TDCA and Congressional 
intent as reflected in the legislative history by ensuring that 
captions are meaningfully available, and we can increase the likelihood 
that the audience for closed captioned programming will continue to 
grow as unmet needs are fulfilled, consistent with the statutory 
purpose.
    We do not agree that relying on sections 303(u)(1)(A) and 330(b) of 
the Act here is ``a belated Commission reinterpretation of the TDCA.'' 
\10\ To the contrary, the Commission historically has recognized and 
exercised authority under sections 303(u) and 330(b) of the Act, prior 
to the enactment of the CVAA, in a manner that supports its exercise of 
that authority to regulate access to closed captioning display options 
here. Previously, the Commission concluded that ``[i]t is

[[Page 66271]]

essential'' that closed captions be readable, and it relied on sections 
303(u) and 330(b) of the Act to adopt closed captioning rules that 
required consumers to be able to modify settings such as font size and 
color. Interpreting the TDCA to authorize regulations ensuring that 
consumers can easily access the required display settings to make 
closed captions readable, therefore, is entirely consistent with our 
prior interpretations. For the same reason, there is no logical basis 
to conclude that Congress, with respect to the TDCA modifications it 
adopted via the CVAA, interpreted the TDCA as not having granted the 
Commission authority to regulate access to display settings, as some 
commenters advocate.
---------------------------------------------------------------------------

    \10\ CTA 2016 Comments at 6-7; CTA 2022 Comments at 9.
---------------------------------------------------------------------------

    Further, we reject the argument that the penultimate sentence of 
section 330(b) does not support the adoption of new requirements here 
because currently there is ``no threat to the availability of closed-
captioning service.'' \11\ To the contrary, we find that the 
requirements we are adopting herein are a proper exercise of our 
authority under section 330(b) because the record shows that the 
development of new technology for viewing video programming has made it 
more difficult for consumers to access the necessary caption display 
settings. Specifically, consumers today watch video programming on a 
multitude of different devices, and ``it is difficult for consumers to 
readily anticipate where display settings are located because the 
location varies depending on the device used.'' \12\ With the 
proliferation of online video programming, a consumer that views 
captioned video programming using the same application or website on 
multiple devices may adjust the display settings for one device, only 
to find that the settings need to be adjusted again when the 
programming is viewed on a different device.
---------------------------------------------------------------------------

    \11\ See NCTA 2016 Comments at 4. That sentence reads: ``As new 
video technology is developed, the Commission shall take such action 
as [it] determines appropriate to ensure that closed-captioning 
service . . . continue[s] to be available to consumers.'' NCTA 
claims that ``the legislative history shows that this particular 
sentence was not intended to provide additional authority to the 
Commission, but instead reflects Congress' desire to ensure that the 
particular technical requirements Congress directed the Commission 
to adopt would be revised as necessary to keep pace with future 
technology changes.'' We disagree with NCTA's interpretation of the 
legislative history. The legislative history that NCTA cites merely 
indicates an intention to permit the Commission not to impose the 
same requirements for both older and newer technologies so long as 
closed captioning remains widely available to consumers.
    \12\ Consumer Groups 2016 Comments at 7.
---------------------------------------------------------------------------

    We also disagree with commenters who argue that the directives of 
sections 303(u) and 330(b) are satisfied as long as closed captioning 
circuitry or capability is included somewhere in their devices, that 
the statute's use of the term ``available'' should be read narrowly to 
exclude consideration of the accessibility of the closed captioning by 
consumers,\13\ and that section 330(b) does nothing more than 
``authorize the Commission to update specifications as necessary to 
keep up with new video technologies.'' \14\ As explained above, 
Congress used broad language in section 330(b), authorizing the 
Commission to ``take such action as [it] determines appropriate'' to 
ensure the continued availability of closed captioning. We thus reject 
ACA's assertion that the Commission's authority under section 330(b) 
``is limited to updating the specific technical requirements identified 
in the TDCA'' to avoid requiring manufacturers to adhere to ``outdated 
technical requirements.'' Further, our interpretation best serves the 
statutory purpose of ensuring that persons who are deaf and hard of 
hearing ``should have equal access to the television medium.'' Thus, we 
believe our adoption of a rule ensuring the accessibility of closed 
captioning display functions falls within the broad scope of this 
language. The language also informs our interpretation and 
implementation of our authority under section 303(u) to ensure that 
video apparatus is ``equipped'' with closed captioning capabilities, 
which requires both that the apparatus possesses the necessary 
capabilities and that consumers are able to access them.\15\ Thus, our 
advancement of the objectives identified in section 330(b) also 
supports our use of section 303(u)(1)(A) authority to adopt the 
requirements of this order.\16\
---------------------------------------------------------------------------

    \13\ NCTA cites as support for its statutory analysis the 
approach the Commission took in the TDCA Report and Order and the 
DTV Closed Captioning Order, but both of those orders are 
distinguishable. First, the TDCA Report and Order was a pre-digital 
order that also predated the amendment of the TDCA to extend beyond 
television sets. Second, the DTV Closed Captioning Order applied 
only to DTV receivers.
    \14\ ACA 2016 Reply at 6.
    \15\ Interpreting the second to last sentence of section 330(b) 
to, at a minimum, inform our interpretation and implementation of 
section 303(u) is consistent with the remaining text of section 
330(b). Among other things, that language directs the Commission to 
adopt rules implementing section 303(u) that ``provide performance 
and display standards for [ ] built-in decoder circuitry or 
capability designed to display closed captioned video programming.'' 
As explained above, the rules we adopt here readily fit within the 
scope of ``performance and display standards.''
    \16\ NCTA overstates the significance of certain language from 
the legislative history of the TDCA as allegedly demonstrating that 
the Commission is precluded from interpreting the second to last 
sentence of section 330(b) as a grant of authority. See NCTA 2016 
Comments at 4, n.13. By its terms, that excerpt is an ``example'' of 
the relevance of the second to last sentence of section 330(b), 
rather than an exhaustive description of the role of that provision. 
That language from the TDCA Senate Report also reinforces the view 
that, at a minimum, the considerations identified in section 330(b) 
inform our interpretation and implementation of our authority under 
section 303(u). Moreover, this legislative history demonstrates our 
authority to take steps reasonably necessary, as demonstrated above, 
to ``ensure'' that closed captioning continues to be ``widely 
available'' to consumers.
---------------------------------------------------------------------------

    We further reject arguments that the statutory language does not 
permit the Commission to regulate the manner in which consumers are 
able to access and use such circuitry or capability. AT&T, for example, 
points to language in section 330(b) directing the Commission to ensure 
that covered apparatus ``be able to receive and display closed 
captioning which have been transmitted by way of line 21 of the 
vertical blanking interval,'' consistent with specific ``signal and 
display specifications.'' Yet, that text is preceded by the phrase, 
``Such rules shall further require,'' which belies the notion that 
Congress intended to use that language to limit the Commission's 
authority to the implementation of the identified specifications. To 
the contrary, we conclude that the reference in section 330(b) of the 
Act to ``performance and display standards,'' which Congress did not 
define, includes the regulation of how consumers are able to access and 
use closed captioning. To interpret the language more narrowly, as some 
commenters advocate, would have the perverse result of allowing a 
manufacturer or MVPD to bury those settings so deep in a complicated 
series of menus that they are not readily accessible, undermining the 
purpose of the statute to ensure they are ``available to consumers.'' 
Further, the reference that AT&T highlights in the statute to the 
``line 21 of the vertical blanking interval'' relates only to analog 
transmission. There is no vertical blanking interval in digital 
transmissions. The digital transition occurred in 2009 for the majority 
of stations, and the requirement contained in this sentence cannot 
transfer directly into a digital environment. Thus the requirement 
contained in this sentence cannot reasonably be read to limit the 
Commission's authority here. The directive in section 330(b) that the 
Commission ``take such action as [it] determines appropriate'' supports 
a broad view of the Commission's authority to ensure that closed 
captioning ``continue[s] to be available to consumers.''

[[Page 66272]]

    Further, Congress's enactment in the CVAA of sections 303(aa) and 
(bb) of the Act does not undercut the Commission's exercise of its 
authority under sections 303(u) and 330(b) of the Act. Section 303(aa) 
contains accessibility requirements for certain digital apparatus 
functions and features, while section 303(bb) contains accessibility 
requirements for certain navigation device functions and features. 
First, we reject suggestions that sections 303(aa) and (bb) are more 
specific than sections 303(u) and 330(b) and thus are controlling with 
regard to Commission authority to regulate consumer access to closed 
captioning display settings. These arguments invoke the general canon 
of interpretation that ``specific statutory language should control 
more general language when there is a conflict between the two.'' \17\ 
Such an interpretation would represent a narrowing of the authority 
that the Commission previously understood itself to have and that it 
has exercised, and there is no indication that Congress intended the 
CVAA to have such an effect. It is more consistent with the 
accessibility objectives of the CVAA to conclude that Congress intended 
sections 303(u), (aa), (bb), and 330(b) of the Act to be available 
collectively as a source of Commission authority to pursue disability 
access objectives.\18\ While sections 303(aa)(3) and (bb)(2) 
specifically address access to closed captioning activation, they are 
silent regarding access to closed captioning display options.\19\ Had 
Congress intended to curtail the Commission's authority to take further 
action under section 330(b) to promote the continued availability of 
closed captioning service, it could have done so explicitly. It did 
not, and we find it unlikely that Congress intended to do so sub 
silentio.
---------------------------------------------------------------------------

    \17\ NCTA v. Gulf Power, 534 U.S. 327, 335-336 (2002).
    \18\ The stated purpose of the CVAA is ``[t]o increase the 
access of persons with disabilities to modern communications, and 
for other purposes.''
    \19\ Similarly, the provisions in sections 204 and 205 of the 
CVAA that were not incorporated in sections 303(aa) and (bb) of the 
Act are silent regarding access to closed captioning display 
options. Contrary to CTA's suggestion, sections 204 and 205 did not 
``express[ ] an intent to limit the Commission's authority'' in this 
regard. In addition, sections 303(aa)(1) and (2) apply to an 
unenumerated universe of ``functions'' to be made accessible to 
individuals who are blind or visually impaired, and thus also are 
not more specific than sections 303(u)(1)(A) and 330(b) regarding 
the requirements for closed captioning display options that we adopt 
here.
---------------------------------------------------------------------------

    Second, contrary to the suggestion of some commenters, we find that 
Congress's decision to require closed caption activation via a 
mechanism reasonably comparable to a key, button, or icon does not mean 
that it considered and rejected such a requirement for closed 
captioning display settings.\20\ Rather, as stated above, we find that 
Congress intended the relevant provisions of the Act--section 303(u), 
as amended by the CVAA; sections 303(aa) and (bb), added to the Act by 
the CVAA; and section 330(b), added to the Act by the TDCA--to be 
available collectively as a source of Commission authority regarding 
disability access issues. Given Congress's interest in expanding access 
to video programming through the CVAA, we do not believe that it 
intended the provisions of that statute to negate the express language 
of section 330(b) to ensure that closed captions continue to be 
available to consumers as new video technology is developed, nor the 
overall intent of the TDCA to bring more programs that are closed 
captioned into the homes of Americans. Congress required closed caption 
activation via a certain mechanism in the CVAA, but Congress left it to 
the Commission's discretion to determine whether and to what extent to 
regulate other matters pertaining to the ability of consumers to access 
closed captioning on video apparatus pursuant to its earlier grant of 
authority, including specifically through establishment of 
``performance and display standards.''
---------------------------------------------------------------------------

    \20\ This argument invokes the ``expressio unius est exclusio 
alterius'' canon of interpretation, which ``presum[es] that an 
omission is intentional where Congress has referred to something in 
one subsection but not in another.'' NAB v. FCC, 569 F.3d 416, 421 
(D.C. Cir. 2009) (citing Russello v. United States, 464 U.S. 16, 23 
(1983)).
---------------------------------------------------------------------------

    Third, we disagree with commenters who contend that Congress would 
not have needed to adopt provisions in the CVAA directing the 
Commission to require closed caption activation through a mechanism 
reasonably equivalent to a button, key, or icon if the Commission 
already had authority pursuant to the TDCA to regulate access to closed 
captioning display settings. There are legally meaningful differences 
in the Commission's authority under section 303(u) as compared to 
sections 303(aa) and (bb) of the Act, which indicate that Congress 
intended to give the Commission new authority to accomplish a 
particular purpose, rather than supplant the Commission's authority to 
adopt closed-captioning regulations pursuant to a specific legal 
standard under section 303(u). For example, section 303(u)(1)(A) 
directs the Commission to adopt closed captioning requirements that 
apply if compliance is ``technically feasible,'' whereas sections 
303(aa)(3) and (bb)(2) contain no such limitation.\21\ Additionally, 
the Commission has statutory authority to exempt certain apparatus from 
the requirements of section 303(u) that it cannot exercise with respect 
to the requirements of sections 303(aa)(3) and (bb)(2). Further, the 
CVAA established deadlines for the Commission to adopt rules initially 
implementing the requirements of sections 303(aa)(3) and (bb)(2) that 
differ from those for implementing the CVAA's revisions to section 
303(u). There is no logical basis to conclude that the ``button, key, 
or icon'' requirement in sections 303(aa)(3) and (bb)(2) presupposes 
the absence of authority in sections 303(u)(1) or 330(b) to adopt 
different regulations to ensure that closed captioning performance and 
display functions continue to be ``available'' to consumers. Thus, we 
conclude that enactment of sections 303(aa)(3) and (bb)(2) does not 
diminish our authority to adopt the new rule set forth herein.
---------------------------------------------------------------------------

    \21\ The Commission previously concluded that section 303(bb)(2) 
contains no limiting language and therefore imposes an unconditional 
obligation, noting that it does not contain ``upon request'' 
language or any reference to specific types of individuals found 
elsewhere in section 205 of the CVAA; lacks language found elsewhere 
that allows entities to provide required functionalities using 
separate equipment or software; and is not qualified by the phrase 
``if achievable,'' in contrast with other provisions. Section 
303(aa)(3) likewise lacks any limiting language.
---------------------------------------------------------------------------

    Finally, as a separate and independent basis of authority, in 
addition to the TDCA, we find authority to adopt accessibility 
requirements under sections 4(i) and 303(r) of the Act. The Commission 
is specifically delegated authority under the Act to require that 
covered apparatus must ``be equipped'' with closed caption capability 
and to adopt rules as it ``determines appropriate to ensure that 
closed-captioning service . . . continue[s] to be available to 
consumers'' ``[a]s new video technology is developed.'' Ensuring that 
the required caption capabilities are actually accessible by consumers 
is essential to fulfill these statutory requirements. Otherwise, if a 
consumer cannot readily locate and use display settings to ensure that 
captions are rendered in a readable and accessible format, then closed 
captioning itself is not truly ``available'' as required under the 
statute. The rules we adopt today are thus necessary to carry out the 
specific requirements set forth in sections 303(u) and 330(b) of the 
Act.
    Access to Closed Captioning Display Settings Must Be ``Readily 
Accessible.'' As proposed in the Second FNPRM, we adopt a rule that 
requires covered

[[Page 66273]]

manufacturers and MVPDs to ensure that consumers are able to readily 
access user display settings for closed captioning on covered apparatus 
pursuant to our authority under the TDCA. Congress directed the 
Commission to provide performance and display standards for built-in 
decoder circuitry or capability designed to display closed captioned 
video programming and to take action to ensure that closed captioning 
continues to be available to consumers as video programming technology 
evolves. The rule we adopt herein serves these statutory directives. As 
discussed below, we afford covered entities (MVPDs and manufacturers) 
flexibility in how they meet this obligation, and the Commission will 
determine whether settings are readily accessible to consumers by 
evaluating the following factors, as described in the March 2024 joint 
proposal: proximity, discoverability, previewability, and consistency 
and persistence.\22\ Below we explain the public interest benefits of 
these new requirements. We also describe which devices and entities are 
covered by the rule, set forth exemptions for achievability and 
technical feasibility, and set a compliance deadline of two years from 
publication of the rule in the Federal Register.
---------------------------------------------------------------------------

    \22\ Although the March 2024 joint proposal does not explicitly 
reference the previously proposed four factor framework, we believe 
it fits within that framework. Accordingly, we adopt the contents of 
the joint proposal as clarifying or modifying the meaning of the 
previously proposed factors.
---------------------------------------------------------------------------

    ``Readily Accessible.'' ``Readily Accessible'' Requirement in 
General. We first require manufacturers and MVPDs to ensure that 
consumers are able to readily access user display settings for closed 
captioning on covered apparatus. To determine whether particular 
settings are readily accessible, the Commission will require compliance 
with the following factors, which we further define below: proximity, 
discoverability, previewability, and consistency and persistence.\23\ 
Failure to comply with any of the factors may be deemed a violation of 
the Commission's rules.\24\
---------------------------------------------------------------------------

    \23\ We note that ITI expresses vague concerns that the proposal 
uses terms, definitions, and requirements that ``do not necessarily 
reflect internationally-accepted practices for this technology . . . 
.'' Information Technology Industry Council (ITI) 2023 Comments at 
2. See also CTA/ITI 2023 Reply at 3-4 (stating that any new rules 
should ``[h]armonize with existing international standards to avoid 
confusion and imposing additional burdens on companies''); Letter 
from Rachel Nemeth, Sr. Director, Regulatory Affairs, and Brian 
Markwalter, Senior Vice President, Research & Standards, Consumer 
Technology Association, to Marlene H. Dortch, Secretary, FCC, MB 
Docket No. 12-108, at 2 (Apr. 28, 2023). Given the lack of specific 
information in the record as to precisely what rules the Commission 
should adopt in this area to ensure consistency with international 
standards, we are unable to take any further action in response to 
the cited pleadings.
    \24\ While ACA Connects expresses concern that some of the 
factors could be contradictory, we believe that is no longer the 
case given the meaning of the factors we adopt below. In the event 
that an allegation of non-compliance arises, the covered entity will 
need to demonstrate how it has complied with the applicable 
requirements. For example, if there is an allegation that a covered 
entity has not provided the required employee training discussed 
below, the entity could, for instance, offer information by 
providing training materials and a training schedule.
---------------------------------------------------------------------------

    The readily accessible requirement, which the Commission will 
evaluate based on the four factors, will ensure that consumers who are 
deaf and hard of hearing can easily access closed captioning display 
settings, while still giving covered entities flexibility in the manner 
of compliance.\25\ While display settings already may be readily 
accessible for some devices, using such settings generally has not been 
easy for consumers.\26\ As Consumer Groups explain, ``these functional 
requirements provide a workable middle ground between strict design 
mandates and the laissez faire approach called for by industry 
commenters, allowing the industry substantial flexibility while 
requiring it to finally address the long-standing gaps in the 
accessibility of closed captioning display setting interfaces.'' \27\ 
We believe that this approach will alleviate the challenges faced by 
consumers who are deaf and hard of hearing in accessing closed 
captioning and will ensure that these viewers can adjust the font, 
size, color, and other features of closed captions wherever they are 
watching video programming on devices without the undue complexity 
experienced today. This approach is also consistent with how the 
Commission has implemented accessibility requirements for closed 
captioning activation mechanisms on video devices pursuant to sections 
204 and 205 of the CVAA.\28\
---------------------------------------------------------------------------

    \25\ The adoption of flexible factors that we will require in 
determining if caption display settings are readily accessible 
should alleviate ACA Connects' concern that rigid standards could 
``squelch innovation.'' Similarly, we expect the flexibility 
inherent within the factors to alleviate ITI's concern that 
stringent requirements could lead to ``a cluttered, overly-complex 
user interface'' that could confuse users and have a particular 
negative impact on individuals with cognitive difficulties.
    \26\ For example, Consumer Groups note that changing closed 
captioning settings for the most popular streaming service requires 
many users to engage in a 10-step process that involves leaving the 
application and navigating the service's website.
    \27\ But see Letter from J. David Grossman, Vice President, 
Regulatory Affairs, CTA, and Brian Markwalter, Senior Vice 
President, Research & Standards, CTA, to Marlene H. Dortch, 
Secretary, FCC, MB Docket No. 12-108, at 4 (June 30, 2022) (claiming 
that these factors ``represent a very heavy regulatory lift that 
neither the Commission nor industry has properly investigated''). We 
disagree with CTA's claim, both because any regulatory burden will 
be alleviated by the flexible nature of the factors, and because the 
reply comments and subsequent 2023 and 2024 comments and replies did 
not demonstrate that applying these flexible factors will be unduly 
costly or otherwise unduly burdensome to industry. To the contrary, 
we intend the factors to clarify for industry how the Commission 
will evaluate whether particular settings are readily accessible.
    \28\ With the exception of a Petition for Reconsideration filed 
by Consumer Groups regarding use of voice control and gestures for 
closed captioning activation, no party filed an appeal of the Report 
and Order and Further Notice. We need not address the argument that 
we lack sufficient notice to adopt the proposed factors, because the 
Media Bureau subsequently issued the 2023 Caption Display Settings 
Public Notice and the 2024 Caption Display Settings Public Notice 
and published both documents in the Federal Register, giving notice 
to all interested parties that this proposal was up for 
consideration. We further note that the Commission's authority to 
adopt the factors stems from the same authority it has to adopt the 
readily accessible requirement generally, as discussed above.
---------------------------------------------------------------------------

    Proximity. In determining whether specific closed captioning 
display settings are readily accessible, the Commission will require 
that the settings are ``proximate.'' For this purpose, ``proximity'' 
requires that covered entities ``will place . . . the closed caption 
display settings . . . in one area of the settings (either at the 
operating system or application level) that is accessed via a means 
reasonably comparable to a button, key, or icon.'' \29\ Consumer Groups 
initially argued that this factor should require access to closed 
captioning settings in the first level of a menu.\30\ Industry objected 
to this approach as too rigid. Consumer Groups then modified their 
proposed definition of ``proximity,'' clarifying that it is intended to 
ensure that consumers need not navigate a lengthy set of steps and/or 
switch devices or applications to access closed caption display 
settings.

[[Page 66274]]

The subsequent March 2024 joint proposal did not specifically reference 
that modification and instead further refined the approach to provide 
that caption display settings should be available in one area of the 
settings that can be accessed via a means reasonably comparable to a 
button, key, or icon. We find that requiring proximity pursuant to the 
revised definition is in the public interest because it will ensure 
that consumers do not need to complete many steps or switch devices or 
applications to access closed caption display settings, and it is 
hereby required by our rules. We believe that the presence of ready 
access to caption display settings is paramount to the utility of such 
settings, and the ``proximity'' requirement will further that aim.
---------------------------------------------------------------------------

    \29\ Letter from Mary Beth Murphy, Vice President & Deputy 
General Counsel, NCTA--The internet & Television Association, et 
al., to Marlene H. Dortch, Secretary, FCC, MB Docket No. 12-108, at 
1 (Mar. 14, 2024) (NCTA/Consumer Groups Mar. 14, 2024 Ex Parte). We 
recognize that the joint proposal was to ``place all accessibility 
functions--including, but not limited to, the closed caption display 
settings and caption on/off--in one area of the settings. . . .'' 
The rules established in this Order, however, do not apply to any 
accessibility functions other than closed captioning display 
settings. In addition, the Commission's rules already require that 
closed captioning and audio description ``can be activated through a 
mechanism that is reasonably comparable to a button, key, or icon.'' 
47 CFR 79.109(a)(1)-(2), (b). We encourage covered entities to make 
all accessibility functions, including closed captioning display 
settings and caption on/off, available in the same location.
    \30\ We recognize that commenters previously evaluated some of 
what we now deem ``proximity'' as part of the ``discoverability'' 
factor. The meaning of ``proximity'' that we adopt here is tailored 
to fit the joint proposal within the four-factor framework.
---------------------------------------------------------------------------

    Under the approach we adopt today, industry is afforded flexibility 
in how precisely to ensure that closed captioning display settings are 
made readily accessible pursuant to the proximity factor, so long as 
the settings are available in one area that is accessible via a means 
reasonably comparable to a button, key, or icon. Making closed 
captioning display settings available solely or primarily through the 
use of voice control likely would not be considered proximate. In an 
Order on Reconsideration, the Commission previously found that closed 
captioning activation mechanisms that rely solely on voice control do 
not fulfill the requirement of sections 204 and 205 of the CVAA and our 
implementing rules that such mechanism be reasonably comparable to a 
button, key, or icon. The Commission was persuaded by a Petition for 
Reconsideration filed by Consumer Groups indicating that voice 
activation is not simple and easy to use for many individuals who are 
deaf and hard of hearing. We believe that a similar rationale applies 
here. We cannot find that caption display settings are reasonably 
accessible if many of the individuals who are intended to benefit from 
the settings, in other words those consumers who are deaf and hard of 
hearing, would not actually be able to access them. As in the Order on 
Reconsideration, we clarify that covered entities are not prohibited 
from using voice controls to provide access to the area of the settings 
that contains the closed captioning display settings as long as there 
is an alternative way that is reasonably comparable to a button, key, 
or icon for individuals who are deaf and hard of hearing to readily 
access closed captioning display features. In addition, CTA indicated 
that at least one device manufacturer was considering a long press of a 
button on the remote to bring up closed captioning display settings. 
Compliance with the factors we adopt today is a fact-specific 
determination, and as a result, we decline to rule definitively on 
whether any particular means of providing closed captioning display 
settings is ``readily accessible.'' We agree with CTA that the long 
press of a remote control button may be consistent with the proximity 
requirement, which requires a mechanism reasonably comparable to a 
dedicated button, key, or icon, but we emphasize that the long press, 
like any mechanism, also would need to be evaluated to determine 
compliance with each of the other factors to be considered readily 
accessible.
    Discoverability. In determining whether specific closed captioning 
display settings are readily accessible, the Commission will require 
that the settings are ``discoverable.'' For this purpose, to ensure 
that the settings are ``discoverable,'' covered entities must: (1) 
conduct usability testing to determine if caption display settings can 
be easily found by working with consumers and disability groups as part 
of the testing process; (2) make good faith efforts to correct problems 
identified during the consumer testing process; and (3) train customer-
facing employees on how to advise customers with regard to caption 
display settings. This approach is consistent with the March 2024 joint 
proposal between NCTA and Consumer Groups. We note that as proposed in 
some comments, discoverability would have considered whether it is 
simple and intuitive for a viewer to find closed captioning display 
settings. Some commenters objected to that formulation as too 
subjective. The formulation in the March 2024 joint proposal that we 
adopt here has the benefit of being more objective because it requires 
entities to conduct usability testing, demonstrate efforts to address 
problems that arise during such testing, and train customer-facing 
employees. In addition, this approach is not superfluous of any other 
existing or new requirement.\31\ We believe that discoverability, the 
ability to find the settings, is central to users' ability to benefit 
from and receive the value of closed captioning and is therefore in the 
public interest and is hereby required by our rules. We decline to 
specify the type of employee training that must be provided, instead 
concluding that regulated entities should retain flexibility to 
determine the type of employee training needed in their particular 
circumstances to ensure that settings are discoverable.
---------------------------------------------------------------------------

    \31\ We note that manufacturers and MVPDs are already required 
to provide information to consumers about how to access and use 
accessibility features on devices. See 47 CFR 79.107(a)(5) and (d)-
(e), 79.108(d) and (f). The new employee training requirement will 
provide further consumer benefits.
---------------------------------------------------------------------------

    Previewability. In determining whether specific closed captioning 
display settings are readily accessible, the Commission will require 
that the settings are ``previewable.'' For this purpose, 
``previewability'' means whether viewers are able to preview the 
appearance of closed captions on programming on their screen while 
changing the closed captioning display settings. As explained in the 
March 2024 joint proposal between NCTA and Consumer Groups, previewed 
captions must appear ``via a caption box overlaying the programming,'' 
such that [c]ustomers will still be able to see the underlying 
programming. . . .'' The caption preview may include ``stock text or 
caption previews, rather than the captions carried on the specific 
program,'' which ``will enable customers to preview captions even in 
situations where the channel the customer is watching may not include 
captions at a particular time, e.g., during a commercial break or 
portions of programming that are uncaptioned due to the nature of the 
content.'' Although the Commission's rules already require apparatus to 
enable ``the user to preview default and user selection of the caption 
features required by this section,'' \32\ that provision does not 
require the preview function to be accessible without exiting the 
programming. We find that requiring previewability to the extent 
described herein is in the public interest because it will enable a 
viewer to see how particular caption display settings work with the 
program the viewer is watching, and it is hereby required by our 
rules.\33\ A previewability requirement as defined herein will make it 
efficient for consumers to adjust captions, while giving designers 
flexibility as to precisely how they modify their interfaces to 
facilitate previewability.
---------------------------------------------------------------------------

    \32\ 47 CFR 79.103(c)(10).
    \33\ We believe this requirement is consistent with CTA's 
position that when consumers view video programming on smaller 
screens they may need to scroll to permit full visibility of all 
display settings.
---------------------------------------------------------------------------

    Consistency and Persistence. In determining whether specific closed 
captioning display settings are readily accessible, the Commission will 
require that the settings are ``consistent and persistent.'' In keeping 
with the March 2024 joint proposal, for this purpose,

[[Page 66275]]

``consistency and persistence'' means: (1) MVPDs that provide 
navigation devices must ``expose closed caption display settings via an 
application programming interface (API) that an over-the-top app 
provider can use upon launch of their app on the device,'' \34\ the API 
must ``enable the app provider to use the device-level caption settings 
for its own content, if it chooses,'' and ``covered entities must 
notify application developers about this API or similar method through 
any reasonable means;'' (2) MVPDs that provide their own video 
programming app hosted on third-party devices ``will [utilize] the 
operating system-level closed caption settings of the [apparatus] upon 
launch of the app on the device;'' and (3) manufacturers must ensure 
that such apparatus ``make[ ] those settings available to applications 
via an API or similar method.'' \35\ Consumer Groups have explained the 
difficulties of using different settings for each application on the 
same platform, and of maintaining the same settings across different 
platforms. As Consumer Groups explain, a consistency and persistence 
requirement will subject consumers to ``fewer procedures to customize 
captions for the same service used on different devices and for 
different services accessed on the same device,'' which will reduce the 
frequency with which consumers must adjust captions.
---------------------------------------------------------------------------

    \34\ An API is an application programming interface. We 
understand that some devices or applications covered by our rules 
may use other tools comparable to APIs, such as application 
programming kits (APKs) or software development kits (SDKs). All 
references herein to APIs shall be read to include any such 
comparable development tools that allow one device or application to 
coordinate with another.
    \35\ NCTA/Consumer Groups Mar. 14, 2024 Ex Parte at 2; Letter 
from Mary Beth Murphy, Vice President & Deputy General Counsel, 
NCTA, to Marlene H. Dortch, Secretary, FCC, MB Docket No. 12-108, at 
3 (July 12, 2024) (NCTA July 12, 2024 Ex Parte). Consistent with 
CTA's ex parte filing, we clarify that compliance with (1) and (2) 
above focuses on MVPDs as entities that provide customers with 
access to video programing through navigation devices or the MVPD's 
own apps that customers access on third party devices. Compliance 
with (3) above reflects similar requirements for manufacturers as 
entities that manufacture apparatus. Consistent with NCTA's ex parte 
filing, language in (1) above fortifies a requirement from the joint 
proposal. One example of a ``reasonable means'' for the required 
notice would be ``a developer portal the developer must use to get 
its app onto the device.'' NCTA July 12, 2024 Ex Parte at 3.
---------------------------------------------------------------------------

    The approach to consistency and persistence that we adopt today is 
narrower than the approach previously advocated by the Consumer Groups, 
which would have required covered entities to ensure that their closed 
captioning display settings are consistent when the same service is 
used on different devices and persistent when different services are 
used on the same device. Industry raised several significant concerns 
with this broader definition of the ``consistency and persistence'' 
factor. We believe that the narrower approach to consistency and 
persistence that we adopt today, which includes specific requirements 
that are tailored to the role of each party, will help make display 
settings more readily accessible to users and therefore is in the 
public interest.
    We recognize that any consistency and persistence requirement could 
raise certain issues, including how caption display settings should be 
stored and transmitted, how to address privacy and competitive 
implications that may arise, and whether to prioritize a preset setting 
versus a conflicting setting that a user subsequently inputs or a 
setting input on a device versus a conflicting setting input on an 
application accessed via the device. However, we do not believe these 
implementation issues are impediments to the development of solutions 
that satisfy the consistency and persistence requirement as defined 
here and we agree with NCTA that these issues ``should not stop the 
Commission from taking positive steps now to benefit consumers.'' With 
respect to CTA's objection that the requirement could compel disclosure 
of sensitive personal information in violation of state or federal 
privacy laws, we find that such objections are vague and 
unsubstantiated and we disagree that the requirements adopted here to 
provide consumers with consistent settings when different services are 
used on the same device would have such a result.\36\ Similarly, while 
CTA explains that a television has no way to know if the person using 
it is the most recent user or a guest, the API-based approach set forth 
in the joint proposal still will improve the consumer experience and we 
do not believe that advancements in accessibility should be stalled 
because video equipment may be accessed by multiple viewers. To the 
extent compliance concerns remain even with the narrower approach we 
adopt today, we note that ``achievability'' and ``technical 
feasibility'' exemptions remain available to covered entities, as 
discussed further below.
---------------------------------------------------------------------------

    \36\ CTA's comments do not cite any specific state or federal 
privacy statute or case law that would be implicated by the rule we 
adopt or describe how the requirement could potentially violate such 
requirements.
---------------------------------------------------------------------------

    Public Interest Benefits of New Display Settings Requirement. We 
find that the public interest benefits outweigh the costs for a 
requirement that the closed captioning display settings be readily 
accessible. 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.'' In the 
Second FNPRM, the Commission stated that there are important public 
interest considerations that weigh in favor of ensuring that consumers 
are able to readily access user display settings for closed captioning. 
The record supports the continued need for this access, providing 
numerous examples of user interfaces across various popular platforms, 
services, and devices that are apparently not readily accessible.\37\ 
When it adopted technical standards for the display of closed captions 
on digital television receivers, 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.'' According to Consumer Groups, the 
ability to alter font, size, color, and other display features of 
captions is ``a critical component of accessing closed captioning'' for 
individuals who are deaf and hard of hearing, allowing them to change 
the appearance of captions to best meet their particular needs.
---------------------------------------------------------------------------

    \37\ While the record also contains examples of some accessible 
user interfaces, that does not change the fact that many user 
interfaces are not readily accessible.
---------------------------------------------------------------------------

    Although the rules the Commission adopted in 2000 were intended to 
provide consumers with the benefits of customizing the appearance of 
closed captions, these features are not readily accessible to many 
consumers who are deaf and hard of hearing. When consumers cannot 
readily access the closed captioning display settings, the benefits of 
our rule allowing the customization of closed caption display are 
greatly diminished. Consumer Groups explained in 2016 that ``many 
consumers face the intimidating and frustrating technical barrier of 
display settings that are difficult to locate and utilize, which 
prevents viewers from being able to easily customize the captions to be 
readable.'' There is little evidence in the record of significant 
progress since the Commission proposed caption display settings 
requirements in 2015. Having to take cumbersome steps to access display 
settings that make closed captions readable may discourage individuals 
who are deaf and hard of hearing from using closed captioning to make 
video programming accessible. If consumers

[[Page 66276]]

are unable to read default captions (e.g., if the size of the font is 
too small) and are unable to locate and use display settings to change 
the appearance of the captions, they are precluded from using closed 
captioning at all.
    As explained above, our action ensures that the Commission can meet 
its continuing obligation under the TDCA to take appropriate action to 
ensure that closed captioning remains available to consumers as new 
video technology is developed. As Consumer Groups explain, making 
closed captioning display settings easy to find and use is especially 
important given the multitude of devices and programming options 
available to consumers today, which may each require customization to 
suit a user's needs.\38\ We agree with Consumer Groups that ``the[ ] 
goals of removing technical barriers and ensuring practical 
accessibility and readability of captions would all be advanced by the 
proposed rule.'' The benefits of the rule will extend not only to the 
deaf and hard of hearing population, but also to other members of the 
public that utilize closed captioning, including in public places such 
as restaurants, bars, hotels, hospitals, and nursing homes.
---------------------------------------------------------------------------

    \38\ We thus disagree with ACA Connects' contention that the 
Commission has failed to identify ``how the continued availability 
of closed captioning service would be frustrated in the absence of 
consumers' ability to readily access closed captioning display 
settings.'' Rather, we agree with Consumer Groups that consumers 
must be able to readily access closed captioning display settings to 
ensure that those captions are readable.
---------------------------------------------------------------------------

    While the record reflects that there will be some costs to industry 
to comply with the rule we adopt herein, we find that the substantial 
benefits to consumers outweigh those costs. In the Second FNPRM, we 
inquired about the costs of the proposal as well as the impact of the 
proposed rule on small entities. The record does not contain any 
specific figures or estimates quantifying the costs of compliance. 
However, industry commenters indicate that modifying access to closed 
captioning display settings may be ``a significant undertaking 
involving design, development, testing, and manufacture [and] involving 
coordination among `multiple internal and external design and 
engineering teams.' '' \39\ These commenters assert that the efforts 
will involve more than a small software modification, but they do not 
allege that these efforts would be prohibitively burdensome or costly. 
Other industry commenters state that ``[a]dopting a new requirement 
regarding closed caption display settings . . . would chill 
innovation.'' \40\ However, we find that the flexibility allowed in 
determining how to comply will mitigate this possibility. Taking into 
account the industry comments, we find that the extensive benefits 
outlined above will outweigh the compliance costs to industry. The 
benefits extend to the approximately 48 million Americans who are deaf 
and hard of hearing, as well as to the DeafBlind community and the 
millions of individuals with low vision, including many senior 
citizens.\41\ As Consumer Groups state, ``The ability to adjust 
captioning settings is particularly essential for people who have both 
hearing and vision disabilities. For example, people who are DeafBlind, 
low vision or color blind often rely on high-contrast visuals and 
interfaces to be able to read information on screens. By ensuring that 
these individuals can easily find and adjust the caption display 
settings, the rules we now adopt will provide the autonomy needed for 
these individuals to independently customize captions on their own--
i.e., to select the color, size, and contrast that best fits their 
personalized needs for optimal readability and comprehension of 
content. Enhancing access to video programming in this manner will 
ensure that such individuals can fully benefit from the news, 
information and entertainment that video programming makes available to 
the rest of the general public.'' We also believe that the costs of 
compliance will be mitigated because we give covered entities 
flexibility in the manner of compliance, which allows them to choose a 
cost-effective solution, and because the requirements do not apply to 
third-party, pre-installed applications. Further, to the extent there 
are companies that already provide closed captioning display settings 
in a readily accessible manner, they will not need to incur any 
additional costs to comply.
---------------------------------------------------------------------------

    \39\ CTA 2016 Reply at 7 (quoting Telecommunications Industry 
Association (TIA) 2016 Comments at 2.
    \40\ CTA 2022 Comments at 1; CTA 2023 Comments at 8 (``Locking 
in user interfaces to conform to the Advocacy Groups' proposal can 
slow future innovation and degrade the experience of individuals 
seeking to adjust more than just closed captioning display 
settings.'').
    \41\ Individuals who are low vision and also rely on closed 
captions may need to modify caption settings to make the captions 
readable.
---------------------------------------------------------------------------

    In the initial comment period, industry commenters asserted that 
the Commission should take a ``wait-and-see approach'' to determine if 
additional accessibility rules are necessary. In particular, industry 
commenters asserted that manufacturers had been working hard to comply 
with the accessible user interfaces requirements adopted pursuant to 
sections 204 and 205 of the CVAA, which were subject to a December 20, 
2016 compliance deadline, and that it was premature for the Commission 
to adopt new rules before evaluating the technical innovations 
developed by covered entities to meet these accessibility obligations. 
However, while the accessible user interfaces rules require that closed 
captioning be activated by a mechanism reasonably comparable to a 
button, key, or icon on digital apparatus and navigation devices, these 
requirements do not govern how closed captioning display settings 
should be accessed on such devices. Further, the record at that time 
contained few specific examples of how closed captioning display 
settings actually would be made available to consumers after the 
December deadline. While the accessible user interface rules and the 
2016 compliance deadline were not intended to address access to closed 
captioning display settings, the Commission now has the benefit of a 
refreshed record that reflects a lack of progress since the 2016 
deadline, and a basis to find that the closed captioning display 
setting requirements the Commission initially proposed remain 
necessary. Thus, we do not believe that the section 204 and 205 
accessibility requirements obviate the need for Commission action with 
respect to closed captioning display settings, and we see no reason to 
further delay rules that are sorely needed by consumers who are deaf 
and hard of hearing to address the ``long and frustrating history'' of 
inaccessible display settings.\42\
---------------------------------------------------------------------------

    \42\ See Consumer Groups 2013 Comments at 8. See also Consumer 
Groups 2016 Reply at 4 (``These unsupported assurances stand in 
stark contrast to the experiences of Consumer Groups, which indicate 
that closed captioning settings remain difficult to access and, in 
many instances, are becoming less accessible.'') (footnote omitted). 
We thus reject the argument of CTA that rather than adopt new 
requirements, the Commission ``should encourage industry to continue 
to respond to user experiences, research and feedback to offer 
improved user interfaces that benefit all consumers, including those 
with disabilities.'' CTA 2023 Comments at 11-12.
---------------------------------------------------------------------------

    Covered Devices. As proposed in the Second FNPRM, the rule we adopt 
herein applies to the devices covered by section 303(u) of the Act--
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, as interpreted 
consistently with our precedent in the IP Closed Captioning Order, 
except that,

[[Page 66277]]

consistent with the joint proposal, the readily accessible requirements 
do not apply to third-party, pre-installed applications.\43\ Further, 
consistent with our precedent, the following are not subject to the 
requirements adopted herein: (1) 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 professional or commercial 
equipment); (2) equipment for which the requirement has been determined 
to be not achievable or technically feasible; or (3) equipment for 
which the requirement has been waived (e.g., apparatus primarily 
designed for purposes other than receiving or playing back video 
programming). In CVAA orders subsequent to the IP Closed Captioning 
Order, the Commission consistently interpreted the term apparatus to 
include only applications that are pre-installed by the device 
manufacturer or that the manufacturer requires the consumer to install 
after sale. However, the Commission stated that it ``will continue to 
monitor the development of accessible technology in this area and will 
reevaluate whether we should require the accessibility of consumer-
installed MVPD applications at a later date if it appears necessary to 
ensure access to MVPD programming'' by persons with disabilities. 
Although at that time the Commission observed that there are technical 
challenges in ensuring that consumer-installed MVPD applications comply 
with accessible user interface requirements, we recognize that the 
industry is constantly evolving. Similarly, for purposes of the readily 
accessible requirement, we credit the decision of the joint proposal to 
exclude both consumer-installed applications and third-party, pre-
installed applications.\44\ The exclusion of third-party, pre-installed 
applications is reasonable in this instance because inclusion would 
``pose substantially more practical and technical difficulties'' \45\ 
due to the types of requirements that are at issue herein--for instance 
customer service training and usability testing--and the independence 
of app developers on the one hand and MVPDs and manufacturers on the 
other. However, we intend to continue to monitor the constantly 
evolving video programming industry to ensure that people with 
disabilities are not left behind. Accordingly, if we find that MVPDs 
and/or manufacturers are not making their applications accessible, or 
if third-party, pre-installed applications, or new technologies, 
present accessibility challenges because display settings are not 
readily accessible, the Commission will consider initiating a 
rulemaking to determine whether we should impose additional readily 
accessible requirements.\46\
---------------------------------------------------------------------------

    \43\ We note that section 303(u) imposes requirements on 
apparatus ``if technically feasible.''
    \44\ We note that the Consumer Groups request that in light of 
NCTA's clarification of the joint proposal with respect to the 
exclusion of third-party, pre-installed applications for MVPDs that 
the Commission consider whether the same concerns exist for device 
manufacturers. NCTA clarifies that this joint proposal exclusion is 
contemplated for both MVPDs and manufacturers and CTA notes the 
importance to consumers ``of a consistent experience across covered 
entities with respect to pre-installed applications.'' We agree and 
include the exclusion for all covered entities.
    \45\ Letter from Mary Beth Murphy, Vice President & Deputy 
General Counsel, NCTA, to Marlene H. Dortch, Secretary, FCC, MB 
Docket No. 12-108, at 1 (July 10, 2024).
    \46\ In the absence of such a rulemaking, we do not at this time 
require MVPDs or manufacturers to provide software updates that they 
would not otherwise provide.
---------------------------------------------------------------------------

    Consumer Groups agree that the rule should be applied broadly to 
the full range of devices covered by section 303(u) of the Act, which 
would ``promote Congress's goal of ensuring that closed captioning is 
available to consumers.'' AT&T and CTA, on the other hand, argue that 
the Commission's authority with respect to the TDCA is limited to the 
accessibility of broadcast television receivers. Contrary to the 
contention of these industry commenters, the Commission has authority 
under sections 303(u) and 330(b) of the Act to apply its new rules for 
consumer access to closed captioning display settings to apparatus 
beyond broadcast televisions. Although Congress's focus at the time of 
enactment of the TDCA was on broadcast television-related technical 
standards, that does not preclude a broader interpretation today. 
Section 303(u)(1), by its terms, applies broadly to all ``apparatus 
designed to receive or play back video programming transmitted 
simultaneously with sound.'' Although this phrase is not defined in the 
statute, Congress had amended the original language in 303(u), which 
had referred to ``apparatus designed to receive television pictures 
broadcast simultaneously with sound.'' The Commission has interpreted 
section 303(u)(1)'s scope broadly. The Commission's interpretation of 
section 303(u) as extending beyond broadcast televisions thus reflects 
the ordinary meaning of the statute. Because section 330(b), in 
pertinent part, simply refers to the ``apparatus described in section 
303(u),'' our analysis of the scope of section 330(b) mirrors our 
interpretation of the scope of section 303(u).
    Covered Entities. Both manufacturers of covered apparatus and MVPDs 
are responsible for compliance with the rule we adopt herein. The 
Commission sought comment in the Second FNPRM on whether both 
manufacturers and MVPDs should be obligated to make it easier for 
consumers to locate and control closed captioning display settings. 
Consumer Groups argue that manufacturers and MVPDs should share 
responsibility in ensuring that consumers can locate and use display 
settings, particularly because MVPDs have ongoing relationships with 
subscribers who are likely to turn to them to resolve any issues with 
accessibility features. We are persuaded by Consumer Groups that there 
are significant benefits of imposing these requirements on MVPDs as 
well as manufacturers, including that a consumer who is viewing video 
programming via an MVPD service would be more likely to contact the 
MVPD for assistance with user display settings. Industry commenters 
argue that the TDCA cannot be applied to MVPDs because the Commission's 
prior rulemakings implementing the TDCA imposed requirements only on 
manufacturers. We disagree. Whereas the initial order in this 
proceeding applied certain rules to navigation devices, which were the 
responsibility of MVPDs, and certain rules to apparatus, which were the 
responsibility of manufacturers, the overall result was that both 
manufacturers and MVPDs were subject to the requirements. Similarly in 
this Order, we hold MVPDs responsible for the apparatus they distribute 
to consumers, and manufacturers responsible for the apparatus they 
manufacture.
    While the joint proposal submitted in March 2024 was focused on the 
cable context, it indicated that ``the proposals could also serve as a 
model for other MVPDs and equipment manufacturers.'' We believe that it 
is appropriate and reasonable to adopt the joint proposal to apply to 
all covered entities. The Media Bureau specifically sought comment on 
whether the joint proposal should ``apply broadly to the devices 
covered by section 303(u) of the Communications Act of 1934, as 
amended, and to both manufacturers of covered apparatus and MVPDs.'' In 
response, CTA argued that the Commission ``should not hold 
manufacturers responsible for aspects of the complex video ecosystem 
that they do not control and over which they do

[[Page 66278]]

not have sufficient leverage to require compliance with regulatory 
obligations.'' We agree, and we note that the rules we adopt today hold 
manufacturers responsible for apparatus they manufacture and MVPDs 
responsible for apparatus they provide to their customers. We agree 
with Consumer Groups that ``just because responsibilities need to be 
coordinated among various video programming participants is no reason 
for these responsibilities not to be mandated and fulfilled.'' \47\
---------------------------------------------------------------------------

    \47\ Consumer Groups state further that the Commission 
previously apportioned responsibilities among some of the same 
entities when it adopted the IP closed captioning requirements in 
2012, and the television closed captioning quality requirements in 
2016.
---------------------------------------------------------------------------

    We agree with Consumer Groups that we have the authority to apply 
the rules we adopt today to MVPDs, as well as manufacturers. Sections 
303(u) and 330(b) of the Act operate in tandem. Under section 303(u), 
the Commission establishes requirements for covered apparatus to be 
equipped with closed captioning, audio description, and emergency 
information capability. The first sentence of section 330(b) of the 
Act, in turn, states that ``[n]o person shall ship in interstate 
commerce, manufacture, assemble, or import from any foreign country 
into the United States'' any apparatus that fails to satisfy the 
requirements adopted pursuant to section 303(u) of the Act. In other 
words, the duty to meet the apparatus requirements adopted under 
section 303(u) applies to any person engaging in the activities 
identified in section 330(b). MVPDs regularly ``ship in interstate 
commerce'' or ``import . . . into the United States'' the set-top boxes 
that they distribute to customers. In this respect, the requirements 
adopted under section 303(u)(1)(A) relating to closed captioning 
capability flow through to MVPDs by restricting the devices they can 
ship or import for distribution to their customers. We therefore 
conclude that, pursuant to the express terms of section 330(b), which 
states that ``no person shall'' engage in the specified activities, we 
will apply our new rule implementing sections 303(u) and 330(b) of the 
Act to MVPDs for the purpose of proscribing the actions enumerated in 
the first sentence of section 330(b).\48\
---------------------------------------------------------------------------

    \48\ This approach is consistent with our existing apparatus 
rules governing the accessibility of video programming, which apply 
to MVPDs to the extent that they engage in the enumerated 
activities.
---------------------------------------------------------------------------

    Although the statute defines the term ``interstate commerce,'' it 
does not separately define the phrase ``ship in interstate commerce,'' 
or provide express guidance on how that phrase should be applied to 
specific types of shipments. We therefore interpret this phrase in a 
way that best reflects the ordinary meaning of the text and meets the 
statutory objectives of section 330(b) and section 303(u). We believe 
it is best to interpret the phrase to apply to the entire 
transportation path from the point at which the goods leave the 
seller's warehouse to the point at which the buyer, such as an MVPD, 
delivers the goods to its own customers--in this context an MVPD's 
subscribers. Thus, we conclude that the term ``interstate commerce'' 
encompasses ``commerce'' in apparatus deployed by MVPDs to their 
subscribers, and we interpret the phrase ``no person shall ship in 
interstate commerce'' to proscribe an MVPD's deployment of noncompliant 
set-top boxes or other covered apparatus to subscribers' premises after 
the applicable compliance deadline, where covered apparatus originated 
from out of state or traversed state lines.
    Our conclusion is supported by cases in which the phrase ``in 
interstate commerce'' has been interpreted to refer to the entire 
stream or flow of commerce with respect to a product. Those cases hold 
that the flow of interstate commerce does not end once an intrastate 
shipment begins where a seller transporting goods intrastate ``made 
interstate sales or was `otherwise directly involved in national 
markets' or . . . the `local market . . . is an integral part of the 
interstate market in other component commodities or products.' '' \49\
---------------------------------------------------------------------------

    \49\ Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195-96 
(1974) (cited in Able Sales v. CAPR, 406 F.3d56, 64 (1st Cir. 
2005)). We recognize that specific outcomes under a flow of commerce 
analysis can vary somewhat in different decisions and in different 
contexts. In interpreting section 330 of the Act, we need not, and 
do not, seek to replicate the specific approach taken in any of 
those other regulatory contexts, but draw upon principles from that 
precedent that are useful, including in carrying out the goals and 
purposes of the Act.
---------------------------------------------------------------------------

    In the circumstances at issue here, MVPDs are an active link in the 
continuous flow of equipment to their subscribers. They typically order 
equipment from manufacturers that is shipped interstate for deployment 
to their subscribers. Thus, an MVPD is the pivotal intermediary between 
the apparatus manufacturer and the MVPD's subscribers, essentially 
making choices on behalf of its subscribers. This is materially 
different from situations in which a manufacturer sells to a 
wholesaler, the wholesaler sells to multiple retailers, and consumers 
shop at retailers and decide what to buy. Under these circumstances, we 
find that MVPDs engage in interstate commerce when they procure 
equipment across state lines and deploy it to subscribers to enable 
them to view their programming.
    This conclusion is reinforced by the statutory context. The statute 
is intended to protect consumers with disabilities by ensuring that 
equipment that the MVPD selects on their behalf serves their needs. In 
this context, it makes sense to view all of the links in the chain as a 
continuous stream of commerce ultimately destined for the MVPD 
subscriber.\50\ And given the MVPD's intermediary role, interpreting 
the phrase ``ship in interstate commerce'' to apply to the MVPD's 
deployment of apparatus to subscribers' premises best reflects the 
ordinary meaning of the statutory text and best serves the statutory 
purpose of ensuring that all consumers who are deaf and hard of hearing 
should have equal access to television programming. In light of this 
statutory purpose, and against the backdrop of judicial precedent 
interpreting the phrase ``in interstate commerce,'' we conclude that an 
MVPD that procures covered apparatus from a manufacturer located in 
another state or foreign country and deploys it to subscribers is 
shipping apparatus in interstate commerce.\51\ Accordingly, we 
interpret the phrase ``no person shall ship in interstate commerce'' as 
prohibiting MVPDs from deploying non-compliant apparatus to subscribers 
after the applicable compliance deadline. Further, from a

[[Page 66279]]

policy perspective, we agree with Consumer Groups that MVPDs play an 
integral role in ensuring that closed captioning service is available 
because, unlike manufacturers, they have an ongoing relationship with 
consumers. In addition, to the extent any MVPD manufactures covered 
apparatus, we note that section 330(b) applies to such MVPDs for that 
reason alone. For all of these reasons, the statutory language and 
policy objectives both support application of the rule to MVPDs.
---------------------------------------------------------------------------

    \50\ The legislative history does not discuss the definition of 
``interstate commerce.'' It appears that congressional deliberations 
were informed by the 1960 legal opinion of the FCC's then-General 
Counsel, John L. Fitzgerald, which observed: ``The congressional 
power under the commerce clause is not confined simply to the 
regulation of commerce among the states but extends to those 
activities intrastate which so affect interstate commerce as to make 
regulation of them proper means to the attainment of a legitimate 
end.'' See All Channel Television Receivers and Demixture, Hearings 
Before the Committee on Interstate and Foreign Commerce, House of 
Representatives, on HR. 8031 et al. at 124-25, 128 (Mar. 5, 6, 7, 
and 9, 1962) (including the 1960 Legal Opinion of FCC General 
Counsel John L. Fitzgerald for the record). See also H. Rep. No. 87-
1559 at 6 (Apr. 9, 1962) (discussing the constitutionality of the 
All Channel Television Receivers Act and noting opinions provided by 
the FCC's General Counsel and the Department of Justice); S. Rep. 
No. 87-1526 at 5 (May 24, 1962) (same).
    \51\ The MVPD is shipping apparatus ``within the flow of 
interstate commerce--the practical, economic continuity in the 
generation of goods and services for interstate markets and their 
transport and distribution to the consumer.'' Gulf Oil Corp., 419 
U.S. at 195. See also FCC General Counsel Opinion at 128 (``The 
congressional power under the commerce clause is not confined simply 
to the regulation of commerce among the states but extends to those 
activities intrastate which so affect interstate commerce as to make 
regulation of them proper means to the attainment of a legitimate 
end.'').
---------------------------------------------------------------------------

    Waivers and Exemptions. Achievability. Because we derive our 
authority for the rule we adopt herein from section 303(u)(1) of the 
Act, we find that the requirement for readily accessible caption 
display settings for covered apparatus that use a picture screen less 
than 13 inches in size is subject to the achievability provision set 
forth in section 303(u)(2)(A). Section 303(u)(2)(A) of the Act, as 
amended by section 203 of the CVAA, specifies that apparatus described 
in section 303(u)(1) that use a picture screen that is less than 13 
inches in size must meet the requirements of that section only if such 
requirements ``are achievable (as defined in section 617 of this 
title).'' In the Second FNPRM, the Commission sought comment on whether 
the provisions related to achievability in section 303(u) of the Act 
apply to the requirement that consumers be able to readily access user 
display settings for closed captioning. Industry commenters argued that 
we should allow covered entities to seek an exemption on the grounds of 
achievability, while Consumer Groups argued that it is unnecessary to 
adopt an achievability exemption because compliance with the rule will 
involve only a minor software modification. We find that covered 
apparatus that use a picture screen less than 13 inches in size must 
meet the requirements of section 303(u)(1), which requires covered 
apparatus to be equipped with built-in closed caption decoder circuitry 
or capability designed to display closed captioned video programming, 
only if such requirements ``are achievable.''
    The Act defines ``achievable'' to mean ``with reasonable effort or 
expense,'' as determined by the Commission. The Commission will 
determine whether compliance is ``achievable'' on a case-by-case basis, 
consistent with the approach taken by the Commission when implementing 
section 203 of the CVAA.\52\ In particular, the Commission will 
consider the following factors in determining whether compliance with 
the requirements adopted herein is achievable in particular 
circumstances: (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; and (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. If a covered entity 
believes that it is not achievable for it to comply with the rule we 
adopt herein, it may either (i) seek a determination from the 
Commission that compliance with the rule is not achievable before 
manufacturing or importing the apparatus; or (ii) raise as a defense to 
a complaint or Commission enforcement action that a particular 
apparatus does not comply with the rules because compliance was not 
achievable.\53\ If a party seeks a determination of achievability 
before manufacturing or importing the apparatus, it should follow the 
procedures for an informal request for Commission action pursuant to 
Sec.  1.41 of our rules.
---------------------------------------------------------------------------

    \52\ The Commission will rely on the existing provision in Sec.  
79.103(b)(3) of its rules.
    \53\ To provide one example, CTA expresses concern ``that on 
small or less sophisticated devices, overlaying the captioning menu 
over currently playing video may be challenging to implement on some 
combinations of hardware and operating systems.'' To the extent a 
manufacturer has this concern about a particular device, it may seek 
to avail itself of the achievability provision.
---------------------------------------------------------------------------

    Technical feasibility. In the Second FNPRM, we also sought comment 
on whether the technical feasibility exemption in section 303(u) of the 
Act applies to the requirement that consumers be able to readily access 
user display settings for closed captioning. As discussed above, we 
find that it does. In particular, the requirements set forth in section 
303(u) of the Act, including the requirement that covered apparatus be 
equipped with built-in closed caption decoder circuitry or capability 
designed to display closed captioned video programming, apply only ``if 
technically feasible.'' According to industry commenters, the 
Commission should permit covered entities to seek an exemption based on 
technical infeasibility. Consumer Groups, on the other hand, contend 
that the Commission should not adopt a technical feasibility exemption 
because compliance can be achieved through a simple technical 
modification, making such an exemption unnecessary. However, section 
303(u) clearly specifies that compliance is required only ``if 
technically feasible.''
    We interpret the term ``technically feasible'' consistent with 
Commission precedent. Notably, to demonstrate that compliance is 
technically infeasible, covered entities must show that changes to the 
design of the apparatus to make closed captioning display settings 
readily accessible are not physically or technically possible, and not 
just that they are ``merely difficult.'' We permit parties to raise 
technical infeasibility as a defense when faced with a complaint 
alleging a violation of the apparatus requirements adopted herein, or 
to file a request for a ruling under Sec.  1.41 of the Commission's 
rules as to technical infeasibility before manufacturing or importing 
the product.
    Legacy navigation devices. We decline to adopt a blanket exemption 
for ``legacy navigation devices that are provided by small and medium-
sized MVPDs,'' as ACA Connects advocates.\54\ To the extent ACA 
Connects is concerned about devices that were manufactured prior to the 
compliance deadline, any such concern should be alleviated by our 
decision not to apply the requirements to such apparatus. It appears 
that ACA Connects' concern applies to such previously manufactured 
devices, but to the extent the concern extends to some other category 
of devices, we reiterate that the waiver and exemption processes 
adopted herein are available to MVPDs on a case-by-case basis. Because 
the record does not indicate that an MVPD would need to avail itself of 
an exemption or extension for every ``legacy navigation device,'' we 
find that the availability of case-by-case waivers or exemptions is a 
preferable solution to an overbroad blanket exemption.
---------------------------------------------------------------------------

    \54\ ACA Connects defines ``legacy navigation device(s)'' as 
``any set-top box or navigation device that MVPDs sell or lease to 
their subscribers that provides access to the MVPDs' `closed 
systems' by decrypting MVPD video programming streams for display on 
television receivers.''
---------------------------------------------------------------------------

    Streamlined process for small and medium-sized providers. ACA 
Connects asks the Commission to adopt a streamlined waiver process for 
small and medium-sized providers, enabling them to obtain a waiver 
without the use of any external resources. We find that the existing 
waiver and exemption processes are sufficiently flexible to be workable 
for small and mid-sized providers. Providers have the flexibility to 
raise achievability and technical feasibility either prior to 
manufacture or

[[Page 66280]]

in response to a complaint. Adopting a different process here for small 
and medium-sized providers would be inconsistent with prior orders 
adopting the same achievability and technical feasibility provisions. 
ACA Connects has failed to justify why the same process that has been 
used in prior proceedings implementing the same provisions should be 
modified here.
    Compliance Deadline. We adopt a compliance deadline after the 
Office of Management and Budget completes its review of any new or 
modified information collection requirements under the Paperwork 
Reduction Act or two years after publication of the Third Report and 
Order in the Federal Register, whichever is later. In the Second FNPRM, 
we inquired about the appropriate time frame for requiring covered 
entities to ensure that consumers are able to readily access user 
display settings for closed captioning.\55\ According to Consumer 
Groups, ``[i]ncluding user display settings in the first level of a 
menu would require only a small software modification and would not 
require any hardware design changes,'' and thus, an extended period to 
come into compliance is unnecessary. CTA disputes this contention, 
arguing that Consumer Groups ``fail[ ] to acknowledge the complexity of 
implementing rules regarding closed captioning display settings.'' \56\ 
NCTA, TIA, AT&T, and EchoStar request at least two years to comply, 
while CTA and ACA Connects assert that three years is a reasonable 
implementation period. Consumer Groups initially sought a one year 
compliance deadline, but in the comment cycle following the March 2024 
joint proposal they requested two years.
---------------------------------------------------------------------------

    \55\ In particular, we sought comment on Consumer Groups' 
request that the compliance deadline coincide with the December 20, 
2016 deadline for the requirement to provide an accessible closed 
captioning activation mechanism pursuant to sections 204 and 205 of 
the CVAA. Given the passage of time, Consumer Groups' proposal to 
use that deadline has become moot.
    \56\ Providing greater specificity, EchoStar explains that 
making display settings available in the top level of a menu would 
require EchoStar to rewrite software for each set-top box remote 
control based on its current design and would require EchoStar to 
rewrite both the factory code and production code for all types of 
set-top boxes that it manufactures. As EchoStar explains, ``[t]his 
factory code controls the default accessibility features for the 
set-top box which the consumer can customize as part of the 
installation process. Once the set-top box is connected to a 
properly aimed satellite dish, [a] production code specific to each 
set-top box model is downloaded and used in normal operation.''
---------------------------------------------------------------------------

    Based on our review of the record, we adopt the compliance deadline 
included in the joint proposal as clarified in ex parte presentations. 
Specifically, compliance is required for devices that use next 
generation operating systems deployed more than two years after 
publication of the Third Report and Order in the Federal Register. We 
find the compliance deadline is reasonable, though we encourage covered 
manufacturers and MVPDs to offer readily accessible closed captioning 
display settings as soon as it is technically feasible for them to do 
so. Consistent with the initial order in this proceeding, the 
requirements adopted herein will not apply to devices manufactured 
prior to the deadline.\57\ MVPDs should, however, ``provide new 
equipment upon request to any customer who is deaf or hard of 
hearing,'' as stated in the March 2024 joint proposal. MVPDs should 
provide notice to customers who are deaf or hard of hearing when new 
operating systems are deployed. Based on the record, it appears that 
the requirement to make closed captioning display settings readily 
accessible may involve more than a ``small software modification.'' 
Even software changes may involve a more substantial design and 
development process than a simple update.
---------------------------------------------------------------------------

    \57\ ACA maintains that any obligation placed on MVPDs should 
apply only ``to navigation devices purchased after a certain future 
date,'' and that our rule should not prohibit the use of existing 
inventory after the compliance deadline. By declining to apply the 
requirements to apparatus manufactured prior to the deadline, we 
will ensure that MVPDs are able to utilize their existing inventory.
---------------------------------------------------------------------------

    When the Commission adopted a rule requiring manufacturers of 
apparatus subject to Sec.  79.105 of the Commission's rules to provide 
a mechanism that is simple and easy to use for activating the secondary 
audio stream for audible emergency information, it gave covered 
entities approximately 17 months to comply. In that proceeding, we 
similarly acknowledged that covered entities ``will need some time for 
the design, testing, and implementation of a simple and easy to use 
activation mechanism for the secondary audio stream on covered 
apparatus,'' and concluded that the time granted was sufficient to 
achieve these steps. In practice, the deadline proved sufficient, with 
no waiver requests filed pertaining to the requirement contained in 
Sec.  79.105. Likewise, we believe that a 24-month period will provide 
covered entities with sufficient time to achieve the steps necessary to 
comply with the rule adopted herein.\58\
---------------------------------------------------------------------------

    \58\ Some industry commenters ask for an extended compliance 
timeline, arguing that this would be consistent with the timeframe 
needed for product development and our prior implementation of CVAA 
accessibility rules. However, such longer timeframes were justified 
when the Commission adopted more extensive accessibility 
requirements than we are adopting in this Order. For example, we 
established a three-year compliance period in the initial Report and 
Order implementing sections 204 and 205 of the CVAA because there we 
adopted multiple requirements related to accessible program guides 
and menus and closed captioning and audio description activation 
mechanisms. Additionally, while CTA suggests that a minimum of five 
years would be needed to comply with a ``consistency and 
persistence'' requirement, we find that the narrow approach we adopt 
to the ``consistency and persistence'' requirement does not justify 
a longer timeframe. Industry commenters have failed to provide the 
details necessary to support a compliance timeline longer than two 
years here.
---------------------------------------------------------------------------

    We decline to adopt a later compliance deadline for certain mid-
sized and smaller MVPDs, as ACA Connects requests, because we find that 
such an approach is unnecessary and unworkable here. First, a longer 
deadline for smaller MVPDs is unnecessary because a compliance deadline 
based on the date of manufacture will ensure that MVPDs can utilize 
their existing inventory, and because MVPDs will not need to rely on 
their market power to compel manufacturers to comply since the rules 
explicitly apply to both entities. Second, a longer deadline for 
smaller MVPDs is unworkable because it would result in a situation in 
which provision of a given device that was manufactured after the 
deadline applicable to manufacturers, but before the deadline 
applicable to smaller MVPDs, would be a violation for the manufacturer 
but not the MVPD. We note additionally that an extended deadline for 
mid-sized and smaller MVPDs was justified when the Commission adopted 
multiple accessibility requirements in the initial Report and Order, 
whereas here we adopt a single requirement for accessible closed 
captioning display settings. To the extent particular MVPDs find that 
they are unable to comply with the requirements adopted herein, the 
waiver or exemption procedures discussed above are available to them.
    Final Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission 
has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to 
the Third Report and Order. In summary, the Third Report and Order 
requires closed captioning display settings to be ``readily 
accessible.'' The action is authorized pursuant to the Television 
Decoder Circuitry Act of 1990, Public Law 101-431, 104 Stat. 960, and 
the authority found in sections 4(i), 4(j), 303(r), 303(u), and 330(b) 
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 
154(j),

[[Page 66281]]

303(r), 303(u), 330(b). The types of small entities that may be 
affected by the action fall within the following categories: Cable 
Television Distribution Services, Cable Companies and Systems (Rate 
Regulation), Cable System Operators (Telecom Act Standard), Direct 
Broadcast Satellite (DBS) Service, Satellite Master Antenna Television 
(SMATV) Systems also known as Private Cable Operators (PCOs), Home 
Satellite Dish (HSD) Service, Open Video Systems, Broadband Radio 
Service and Educational Broadband Service, Incumbent Local Exchange 
Carriers (Incumbent LECs), Competitive Local Exchange Carriers (LECs), 
Radio and Television Broadcasting and Wireless Communications Equipment 
Manufacturing, and Audio and Video Equipment Manufacturing.
    The projected reporting and recordkeeping requirements include that 
covered entities must notify application developers about the 
application programming interface (API) or similar method by which 
covered MVPDs providing navigation devices must expose closed 
captioning display settings. This notification can be accomplished by 
any reasonable means. More generally, in the event that an allegation 
of non-compliance arises against an entity, regardless of the size of 
the covered entity, it will need to demonstrate how it has complied 
with the applicable requirements. For example, if there is an 
allegation that a covered entity has not provided the required employee 
training, it could refute that allegation by reference to training 
materials or a training schedule. The Third Report and Order permits 
small and other covered entities to seek exemptions from the adopted 
requirements on the basis that compliance is not technically 
feasibility and/or not achievable, pursuant to section 303(u) of the 
Act and consistent with our precedent in the IP Closed Captioning 
Order.\59\ To demonstrate that compliance is not achievable--cannot be 
accomplished with reasonable effort or expense--or is not ``technically 
feasible'' will require small and other entities to have records, and 
to make a filing with the Commission to substantiate such claims. Small 
and other entities will also have to keep and be able to produce 
records associated with their compliance in the event they are subject 
to a dispute or complaint about accessibility.
---------------------------------------------------------------------------

    \59\ Note that in accordance with the statute, achievability 
only applies to covered apparatus that use a picture screen less 
than 13 inches in size, whereas technical feasibility may apply to 
any covered apparatus.
---------------------------------------------------------------------------

    The other compliance requirements that are applicable to covered 
small entities include the adoption of a rule that requires 
manufacturers and MVPDs to ensure that consumers are able to readily 
access user display settings for closed captioning on covered 
apparatus. To determine whether particular settings are readily 
accessible, the Commission requires compliance with the following 
factors: proximity, discoverability, previewability, and consistency 
and persistence. The Commission does not otherwise dictate the precise 
manner of compliance as long as such settings are readily accessible. 
This approach will ensure that consumers who are deaf and hard of 
hearing can easily access closed captioning display settings, while 
still giving small and other covered entities flexibility in the manner 
of compliance and allowing companies to develop innovative solutions 
for accessibility.
    The Chief Counsel for Advocacy of the Small Business Administration 
(SBA) did not file any comments in response to the proposed rules in 
this proceeding.
    To minimize the significant economic impact the rules adopted in 
the Third Report and Order may have on small entities, in the Second 
FNPRM the Commission inquired whether the provisions of section 303(u) 
of the Act that allow the Commission to tailor its rules, as necessary, 
to small entities for whom compliance with such rules is economically 
burdensome should apply. Consistent with our determination that Section 
303(u) of the Act should apply, we considered and find that small 
entities are able to avoid potentially economically burdensome 
compliance with the requirements in the Third Report and Order to 
ensure that users can readily access closed captioning display settings 
if they are able to demonstrate to the Commission that such compliance 
is not ``achievable'' (i.e., cannot be accomplished with reasonable 
effort or expense, with the provision limited by statute to apparatus 
that use a picture screen less than 13 inches in size) or is not 
``technically feasible.'' Two of the four statutory factors that we 
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.
    In general, we afford covered entities flexibility in how they make 
closed captioning display settings readily accessible to consumers, and 
will determine whether settings are readily accessible to consumers by 
evaluating the following factors: proximity, discoverability, 
previewability, and consistency and persistence. This approach will 
ensure that small and other covered entities can choose how to make 
closed captioning display settings available, as long as such settings 
are readily accessible to consumers, enabling these entities to decide 
what works best for them. Our approach will also allow the Commission 
to address the impact of the rules on individual entities on a case-by-
case basis, and to modify application of our rules to accommodate 
individual circumstances thereby potentially reducing the costs of 
compliance for such entities. The Commission's adopted definition of 
the four required factors that we will evaluate to determine whether 
small and other entities have met their obligation to make display 
settings readily accessible to consumers is based on a March 2024 joint 
proposal filed in the record by NCTA and certain Consumer Groups. The 
meaning of the ``discoverability'' factor evolved from a previously 
proposed meaning, which industry objected to as being too subjective, 
to a meaning that focuses on consumer testing and employee training. 
This objective definition should make it easier and simpler for covered 
entities to ensure they are in compliance. Similarly, the meaning of 
the ``consistency and persistence'' factor evolved from a previously 
proposed broader definition, which industry objected to as raising 
several problems, to a meaning that focuses largely on the use of 
application programming interfaces (APIs) or comparable tools and the 
coordination between covered entities. This narrow approach should also 
make it easier and simpler for small and other covered entities to 
comply. Additionally, rather than requiring compliance for third-party, 
pre-installed applications, the Commission explicitly states that the 
readily accessible requirements do not apply to such applications, 
which is consistent with the March 2024 joint proposal and will further 
ease compliance burdens for all entities, including small entities.
    In response to commenter ACA Connects, as discussed above, the 
Commission considered and rejected the request for a blanket compliance 
exemption for small and medium-sized providers of legacy navigation 
devices, a streamlined waiver process for such providers, and a later 
compliance deadline. Our decision is consistent with prior orders, and 
the record did not provide sufficient justification for the Commission 
to adopt any other

[[Page 66282]]

proposed alternatives. To the extent particular small entities find 
that they are unable to comply with the requirements adopted in the 
Third Report and Order, the waiver and exemption procedures are 
available to them.
    Based on these considerations, the Commission believes that we have 
appropriately considered both the interests of individuals with 
disabilities and the interests of small and other entities who will be 
subject to the rules, 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.''
    Paperwork Reduction Act. This document contains new or modified 
information collection requirements subject to the Paperwork Reduction 
Act of 1995 (PRA), Public Law 104-13. It will be submitted to the 
Office of Management and Budget (OMB) for review under section 3507(d) 
of the PRA. OMB, the general public, and other Federal agencies will be 
invited to comment on the new or modified information collection 
requirements contained in this proceeding. In addition, we note that 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific 
comment on how the Commission might further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.
    Ordering Clauses. Accordingly, it is ordered that, pursuant to the 
Television Decoder Circuitry Act of 1990, Public Law 101-431, 104 Stat. 
960, and the authority found in sections 4(i), 4(j), 303(r), 303(u), 
and 330(b) of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), 154(j), 303(r), 303(u), 330(b), this Third Report and Order is 
adopted, effective thirty (30) days after the date of publication in 
the Federal Register.
    It is further ordered that, pursuant to the Television Decoder 
Circuitry Act of 1990, Public Law 101-431, 104 Stat. 960, and the 
authority found in sections 4(i), 4(j), 303(r), 303(u), and 330(b) of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 
303(r), 303(u), 330(b), the Commission's rules are hereby amended as 
set forth in Appendix A, effective thirty (30) days after the date of 
publication in the Federal Register. Compliance with new Sec.  
79.103(e) of the Commission's rules, 47 CFR 79.103(e), which may 
contain new or modified information collection requirements, will not 
be required until the Office of Management and Budget has completed its 
review of any information collection requirements that the Media Bureau 
determines is required under the Paperwork Reduction Act or two years 
after the date of publication in the Federal Register, whichever is 
later. The Commission directs the Media Bureau to announce the 
compliance date for Sec.  79.103(e) by subsequent Public Notice and to 
revise Sec.  79.103(e) accordingly.
    It is further ordered that the Commission's Office of the Secretary 
shall send a copy of this Third Report and Order, including the Final 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.
    It is further ordered that the Office of the Managing Director, 
Performance Program Management, shall send a copy of this Third Report 
and Order in MB Docket No. 12-108 in a report to be sent to Congress 
and the Government Accountability Office pursuant to the Congressional 
Review Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 79

    Cable television, Communications equipment, Satellite 
communications, Television.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.

Final Rules

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

PART 79--ACCESSIBILITY OF VIDEO PROGRAMMING

0
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.


0
2. Amend Sec.  79.103 by revising the section heading and adding 
paragraph (e) to read as follows:


Sec.  79.103  Closed caption decoder and display requirements for 
apparatus.

* * * * *
    (e) Access to closed captioning display settings. Manufacturers of 
apparatus subject to paragraph (a) of this section and multichannel 
video programming distributors must ensure that consumers are able to 
readily access user display settings for closed captioning on 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, if technically feasible, except that the 
requirement does not apply to third-party, pre-installed applications, 
and for apparatus that use a picture screen of less than 13 inches in 
size the requirement is mandated only if doing so is achievable as 
defined in this section.
    (1) In determining whether closed captioning display settings are 
readily accessible, the Commission will require compliance with the 
following factors:
    (i) Proximity. This factor considers whether the closed captioning 
display settings are available in one area of the settings that is 
accessed via a means reasonably comparable to a button, key, or icon.
    (ii) Discoverability. This factor considers whether the user has 
the ability to easily find the closed captioning display settings. To 
ensure settings are discoverable, manufacturers of apparatus subject to 
paragraph (a) of this section and multichannel video programming 
distributors are required to:
    (A) Conduct usability testing to determine if caption display 
settings can be easily found by working with consumers and disability 
groups as part of the testing process;
    (B) Make good faith efforts to correct problems identified during 
the consumer testing process; and
    (C) Train customer-facing employees on how to advise customers with 
regard to caption display settings.
    (iii) Previewability. This factor considers whether viewers are 
able to preview the appearance of closed captions on programming on 
their screen while changing the closed captioning display settings.
    (iv) Consistency and persistence. This factor requires covered 
entities to:
    (A) With regard to an MVPD's provision of navigation devices, 
expose closed caption display settings via an application programming 
interface (API) or similar method that an over-the-top application 
provider can use upon launch of their application on the device. The 
API or similar method must enable the application provider to use the 
device-level caption settings for its own content, if it chooses, and 
covered entities must notify application developers about this API or 
similar method through any reasonable means;
    (B) With regard to providing an MVPD's own video programming 
application hosted on third-party devices, utilize the operating 
system-level closed caption settings of the apparatus upon launch of 
the application on the device; and

[[Page 66283]]

    (C) Ensure that apparatus they manufacture make closed caption 
settings available to applications via an API or similar method.
    (2) Compliance with this requirement is required for devices that 
use next generation operating systems deployed after FCC publishes a 
rule in the Federal Register establishing the compliance date.

    Note: The compliance date is after the Office of Management and 
Budget has completed its review of any information collection 
requirements that the Media Bureau determines is required under the 
Paperwork Reduction Act or August 17, 2026, whichever is later.

    (3) This paragraph (e) places no restrictions on the importing, 
shipping, or sale of apparatus that were manufactured before August 17, 
2026.

[FR Doc. 2024-17479 Filed 8-14-24; 8:45 am]
 BILLING CODE 6712-01-P