An in-depth analysis of why web browsers are covered by the CVAA and the FCC rules

The following is an in-depth analysis and explanation of exactly why
the CVAA and by extension the FCC rules apply to web browsers. I am
posting this on behalf of Blake Reid, since he is not a subscriber to
this list. He is a staff attorney at Georgetown Institute for Public
Representation, and is one of the main go-to people on questions
related to Internet captioning, as he was involved in all parts of the
implementation in close collaboration with deaf and hard of hearing
consumers. I hope this helps clear up uncertainty about why and how
the CVAA affects web browsers.

On a personal note: I'd rather prefer to deal with questions on how to
meet the accessibility expectations and needs of the deaf and hard of
hearing community, including how they themselves have expressed it,
rather than getting in another legal debate.

Best wishes
Christian

== snip ==

Hi all,

I understand from Christian that there has been some debate on this
thread about the applicability of the CVAA and the FCC's implementing
regulations to web browsers, and I hope I can help explain how the law
backs the position of Christian and others that first-party web
browsers need to support roll-up captions.

A couple of disclaimers up front. First, I'm a lawyer, but not your
lawyer, and this isn't legal advice. Second, I represent
Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI) on
these issues at the FCC and have submitted filings on behalf of TDI
and other deaf and hard of hearing consumer groups. My opinion here is
on offered on TDI's behalf, and you should consult your counsel for
their opinion before you make any decision that could subject you or
your organization to liability.

With that out of the way, I see some skepticism in the thread about
the law, so I'll try to be sufficiently thorough as to eliminate as
much doubt and confusion as possible. Let's start at the top; direct
your attention to the Twenty First Century Communications and Video
Accessibility Act of 2010 ("CVAA"), U.S. Public Law No. 111-260,
signed into law by President Obama on October 8, 2010:

http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-303939A1.doc

In particular, we're focused on Title II ("Video Programming") of of
the CVAA, and Section 203 ("Closed Captioning Decoder and Video
Description Capability") more specifically. Section 203(a) amends
Section 303(u) of the Communications Act of 1934, which in turn is
codified at 47 U.S.C. § 303(u) (yes, we lawyers are the progenitors of
spaghetti code). Here it is in context:

http://www.law.cornell.edu/uscode/text/47/303

You'll notice that the opening line of 47 U.S.C. § 303 requires "the
[Federal Communications] Commission from time to time, as public
convenience, interest, or necessity requires" to perform the 28 or so
enumerated tasks that follow. Section 303(u), then, requires the FCC
to "[r]equire [by promulgating regulations], if technically
feasible—(1) 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—(A) be equipped with
built-in closed caption decoder circuitry or capability designed to
display closed-captioned video programming . . . ."

(I'm omitting any discussion of Section 303(u)(1)(B)-(C), which deal
with video description and emergency information, and Section
303(u)(2), which sets out exemptions and waiver processes that aren't
relevant here.)

Of course, the FCC didn't get an open invitation to promulgate
regulations at its leisure. Turning back to the CVAA, you'll see that
Section 203(d) requires the FCC to "prescribe such regulations as are
necessary to implement the requirements of sectio[n] 303(u) . . .
including any technical standards, protocols, and procedures needed
for the transmission of . . . closed captioning within 6 months after
the submission to the [FCC] of the Advisory Committee report required
by section 201(e)(1)."

Section 201(e)(1) required the "Advisory Committee," popularly known
as the Video Programming Accessibility Advisory Committee ("VPAAC"),
to "develop and submit to the [FCC] a report" on IP closed captioning
"[w]ithin 6 months after the date of [its] first meeting." As you'll
see in the following public notice, the VPAAC held its first meeting
on January 13, 2011:

http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-2320A1.pdf

Precisely 6 months later on July 13, 2011, the VPAAC released its IP
closed captioning report:

http://transition.fcc.gov/cgb/dro/VPAAC/First_VPAAC_Report_to_the_FCC_7-11-11_FINAL.pdf

On September 19, 2011, the FCC, pursuant to Section 203(d), issued a
notice of proposed rulemaking that, in part, proposed a variety of
rules implementing the requirements of Section 303(u):

http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-11-138A1.pdf

A variety of industry and consumer groups submitted comments and ex
parte filings. If you're curious, you can read them all in the FCC's
Electronic Comment Filing System ("ECFS") under docket no. 11-154:

http://apps.fcc.gov/ecfs/

On January 13, 2011, precisely 6 months after the release of the VPAAC
report, the FCC issued an order that, in part, promulgated rules
implementing Section 303(u) (I'll refer to this order below as the "IP
Captioning Order" and cite it by paragraph number):

http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-12-9A1.pdf

The Commission's final rules are codified, in relevant part, in the
Code of Federal Regulations at 47 C.F.R. § 79.103 ("Closed captioning
decoder requirements for all apparatus"):

http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=ee557b8cdf4e8132d793dea84445398e&ty=HTML&h=L&r=PART&n=47y4.0.1.1.6#47:4.0.1.1.6.0.3.8

Here's where we get to the substance. 47 C.F.R. § 79.103(a), tracking
the language of Section 303(u) requires that "[e]ffective January 1,
2014, all digital 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 must be equipped with
built-in closed caption decoder . . . capability designed to display
closed-captioned video programming pursuant to the provisions of this
section

That leaves us with two questions: is a web browser subject to Rule
79.103(a), and if so, what precisely must it it do to "be equipped
with built-in closed caption decoder circuitry or capability" (and
more pointedly, must it support roll-up captions)? I think the answer
is yes with respect to first-party browsers.

Let's break down the first question, using Safari on the iPhone as a
hypothetical example. Getting the easy stuff out of the way first, an
iPhone is undoubtedly "imported for use in the United States" and
"uses a picture screen of any size." It's also undoubtedly "designed
to receive or play back video programming transmitted simultaneously
with sound" because, in the FCC's parlance, it contains "an integrated
video player capable of displaying video programming." (See ¶ 95 of
the IP Captioning Order for more detail on that point.)

So, is a web browser an "apparatus"? Well, yes—but to be more precise,
it's really part of an apparatus in combination with the device on
which it's installed. Take a look at the Note to 47 C.F.R. §
79.103(a), which specifies that "Apparatus includes the physical
device and the video players that manufacturers install into the
devices they manufacture before sale, whether in the form of hardware,
software, or a combination of both, as well as any video players that
manufacturers direct consumers to install after sale." In our example,
the iPhone is no doubt a physical device, and Safari is "install[ed]
into [the] device before sale . . . in the form of . . . software." So
the iPhone, including Safari, is a covered apparatus. The same goes
for any phone, tablet, computer, set-top box, or any other video
player-equipped device with a web browser that is pre-installed or
installed as part of a software update. (See ¶¶ 93-94 of the IP
Captioning Order for much more detail on this point.)

Now that we know that a first-party web browser is part of an
apparatus covered by Rule 79.103(a), what "closed caption decoder . .
. capability" must it contain? Turn your attention to Rule 79.103(c)
(47 C.F.R. § 79.103(c)-"Specific technical capabilities"). Rule
79.103(c) requires that all apparatuses subject to Rule 79.103
generally (i.e., under Rule 79.103(a)) must implement 10 specific
features detailed in Rule 79.103(c)(1)-(10), including presentation,
character color, character opacity, character size, fonts, caption
background color and opacity, character edge attributes, caption
window color, language, and preview and setting retention. (See ¶¶
111-113 of the IP Captioning Report and the VPAAC Report (which
provides the basis for this rule) for more detail. On a tangential
note, Rule 79.103(c)(11) designates SMPTE-TT as a safe harbor format.)

To bring the point home, Rule 79.103(c)(1) ("Presentation") explicitly
requires apparatuses to support roll-up captions. More specifically,
it notes that "[a]ll apparatus shall implement captioning such that
the caption text may be displayed within one or separate caption
windows and supporting the following modes: text that appears all at
once (pop-on), text that scrolls up as new text appears (roll-up), and
text where each new letter or word is displayed as it arrives
(paint-on)."

In short, I don't think there is any real debate that the FCC's rules
require first-party browsers (which include at least Safari, Chrome,
and IE) to support roll-up captions.

Slightly off-topic: though my computer science chops are rusty, it
strikes me that it might also be worth carefully reviewing the
remainder of the requirements in Rule 79.103(c)(2)-(10) to see if
"Regions" might be essential for other purposes.

--
Blake Reid
Staff Attorney and Graduate Fellow in First Amendment and Media Law
Institute for Public Representation
202.662.9545
blake.reid@law.georgetown.edu

Received on Wednesday, 12 December 2012 22:01:34 UTC