Before the FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

In the Matter of ) ) Accessibility of User Interfaces, and Video ) MB Docket Nos. 12-108 Programming Guides and Menus; Accessible ) 12-107 Emergency Information, and Apparatus ) Requirements for Emergency ) Information and Video Description; ) Implementation of the Twenty-First ) Century Communications and Video ) Accessibility Act of 2010 )

COMMENTS OF THE ALLIANCE FOR COMMUNICATIONS

DEMOCRACY

James N. Horwood Tillman L. Lay SPIEGEL & MCDIARMID LLP 1333 New Hampshire Avenue, NW Washington, DC 20036 (202) 879-4000

February 18, 2014

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TABLE OF CONTENTS Page No.

INTRODUCTION AND SUMMARY ............................................................................1

I. THE COMMISSION HAS AUTHORITY TO REQUIRE MVPDs TO PROVIDE PROGRAM-SPECIFIC INFORMATION FOR PEG AND OTHER CHANNELS IN THEIR ELECTRONIC VIDEO PROGRAMMING GUIDES ...............................................................................3

II. INCLUDING PEG PROGRAMMING DESCRIPTION INFORMATION ON VPGs IS TECHNICALLY FEASIBLE AND SHOULD IMPOSE NO SIGNIFICANT COST BURDEN ON MVPDs. ..................................................7

CONCLUSION ................................................................................................................10

The Alliance for Communications Democracy (“ACD”) hereby files its comments in

response to the Further Notice of Proposed Rulemaking in this proceeding.1

INTRODUCTION AND SUMMARY

ACD is a national membership organization of nonprofit public, educational and

governmental access (“PEG”) organizations that supports efforts to protect the rights of the

public to communicate via cable television, and promotes the availability of the widest possible

diversity of information sources and services to the public.2 The organizations represented by

ACD have helped thousands of members of the public, educational institutions, and local

governments make use of PEG channels that have been established in their communities

pursuant to franchise agreements and federal law. 47 U.S.C. § 531.

ACD filed Comments and Reply Comments on July 15, 2013, and August 7, 2013, in

MB Docket No. 12-1083 supporting the NPRM’s goal of implementing the requirements of

Sections 204 and 205 of the Twenty-First Century Communications and Video Accessibility

Act4—ensuring that “user interfaces on digital apparatus and navigation devices used to view

video programming be accessible to and usable by individuals who are blind or visually

1 Report and Order (“R&O”) and Further Notice of Proposed Rulemaking (“FNPRM”), FCC 13-138, In the Matter of Accessibility of User Interfaces, and Video Programming Guides and Menus; Accessible Emergency Information, and Apparatus Requirements for Emergency Information and Video Description; Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, MB Docket Nos. 12-108, 12-107, 28 FCC Rcd. 17,330 (2013). 2 ACD’s members are: Access Humboldt, Eureka, California; Boston Neighborhood Network, Boston Massachusetts; Capital Community TV, Salem, Oregon; Chicago Access Network Television, Chicago, Illinois; CreaTV, San Jose, California; Manhattan Neighborhood Network, New York City, NY; MetroEast Community Media, Gresham, Oregon; Mass Access, PEG access centers throughout Massachusetts; and Alliance for Community Media Western Region. 3 Notice of Proposed Rulemaking, FCC 13-77, In the Matter of Accessibility of User Interfaces, and Video Programming Guides and Menus, MB Docket No. 12-108, 28 FCC Rcd. 8506 (2013) (“NPRM”). 4 Pub. L. No. 111-260, §§ 204 and 205, 124 Stat. 2751, 2775 (2010) (“CVAA”), codified at 47 U.S.C. § 303(aa) and 303(bb).

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impaired.”5 ACD pointed out that the PEG channels made available by ACD members and

thousands of other local PEG centers across the nation are a leading source of unique local public

interest, cultural affairs, educational and news programming of interest to the public. Moreover,

PEG programming is an important and unique source of programming for the disability

community in general, and for the visually and hearing impaired in particular.

The R&O notes the important role of PEG providers in informing the public (¶ 74):

We recognize the important role of PEG providers in informing the public, including those who are blind or visually impaired, on local community issues, and we encourage MVPDs to provide more detailed information in their program guides for PEG programs where such information is provided by PEG providers and where it is technically feasible.

The Commission’s R&O found, however, that “[a]side from the comments of . . . [PEG]

programmers, there is little discussion in the record about imposing . . . requirements” to include

particular program information in program guides “at this time.” (¶ 73).6 The R&O also noted

that “there is limited discussion in the record about the costs to [multichannel video

programming distributors (“MVPDs”)] if we adopt this requirement and whether it would be

technically feasible to require all MVPDs to include program titles and other information in their

program guides.” Id. (footnote omitted).

The R&O stated (¶ 74):

We believe there is not sufficient information in the record to require MVPDs to include particular information in program guides. Section 205 of the CVAA requires that on-screen text menus and guides provided by navigation devices for the display

5 NPRM at ¶ 1. 6 In fact, commenters other than the PEG programmers—specifically, disability community members—did discuss the issue and supported PEG programmers’ position. Ex parte letters filed in MB Docket No. 12-108 by Communications Service for the Deaf on October 17, 2013, and the Deaf and Hard of Hearing Consumer Advocacy Network on October 22, 2013, stressed the importance to viewers with disabilities of program descriptions of PEG programming in VPGs.

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or selection of multichannel video programming be made audibly accessible, but it does not govern the underlying content in the menus and guides.

The R&O went on to conclude (id.):

Although we find the record insufficient to decide this issue at this time, we seek comment in the FNPRM that accompanies the R&O on possible sources of authority for requiring MVPDs to include specific information for PEG programming in video programming guides and menus, as well as on the technical issues and costs for MVPDs to comply with such requirements.

The matters that the R&O concluded were not sufficiently addressed in the record are

among those covered in the FNPRM (¶ 144) and are the subject of these comments.

I. THE COMMISSION HAS AUTHORITY TO REQUIRE MVPDs TO PROVIDE PROGRAM-SPECIFIC INFORMATION FOR PEG AND OTHER CHANNELS IN THEIR ELECTRONIC VIDEO PROGRAMMING GUIDES.

The FNRPM seeks comment “on possible sources of authority for requiring MVPDs to

ensure that video programming guides and menus [(“VPGs”)] that provide channel and program

information include ‘high level channel and program descriptions and titles, as well as a symbol

identifying the programs with accessibility options (captioning and video description).’”7 The

FNRPM’s search for additional comment on the Commission’s legal authority to set a minimum

threshold VPG programming description requirement appears to stem from the R&O’s professed

concern (¶ 75) that Section 205 of the CVAA “does not govern the underlying content in the

menus and guides,” and that inadequate VPG program content information “affects the ability of

all subscribers to make meaningful program choices, not just the ability of those who are blind or

visually impaired. . . .”

7 FNRPM ¶ 144 (quoting Comments of Lowell Telecommunications Corporation at 1-2, In the Matter of Accessibility of User Interfaces, and Video Programming Guides and Menus, MB Docket No. 12-108 (filed July 12, 2013)).

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ACD believes that the Commission clearly has the legal authority to impose minimum

programming description requirements on MVPDs’ VPGs. We also believe that industry’s

argument to the contrary—essentially, that lack of adequate programming guide information

affects subscribers with and without disabilities equally and thus is not a CVAA issue—is

fundamentally wrong.

The Commission already has before it arguments showing that it has legal authority—

directly under the CVAA and, in the alternative, under the Commission’s ancillary jurisdiction—

to adopt definitions of the “Channel/Program Selection” and “Display Channel/Program

Information” functions that contain baseline information about the channel, the programming

carried on that channel, and accessibility options.8 Any suggestion to the contrary is simply

incorrect, for several reasons.

First, by its terms Section 205(a) provides that, “if achievable,” “on-screen text menus

and guides provided by navigation devices . . . for the display or selection of multichannel video

programming [must be] audibly accessible in real-time upon request by individuals who are

blind or visually impaired. . . .” Section 205(b) further specifically authorizes the Commission to

adopt regulations implementing this provision. The Commission therefore has unquestioned

authority to construe and elaborate on the meaning of every term in Section 205(a).9 In

8 See, e.g., Comments of Montgomery County, Md. at 13-18, In the Matter of Accessibility of User Interfaces, and Video Programming Guides and Menus, MB Docket No. 12-108 (filed July 15, 2013); Reply Comments of Montgomery County, Md. at 5-11, In the Matter of Accessibility of User Interfaces, and Video Programming Guides and Menus, MB Docket No. 12-108 (filed Aug. 7, 2013); Comments of ACD at 2, 9-11, In the Matter of Accessibility of User Interfaces, and Video Programming Guides and Menus, MB Docket No. 12-108 (filed July 15, 2013); Reply Comments of ACD at 2-5, In the Matter of Accessibility of User Interfaces, and Video Programming Guides and Menus, MB Docket No. 12-108 (filed Aug. 7, 2013); Letter from James N. Horwood, Counsel for ACD, to Marlene H. Dortch, Secretary, Fed. Commc’ns Comm’n, Att. 2, In the Matter of Accessibility of User Interfaces, and Video Programming Guides and Menus, MB Docket No. 12-108 (filed Sept. 9, 2013). 9 See City of Arlington, Tex. v. FCC, 569 U.S. ___, 133 S. Ct. 1863 (2013); Nat’l Cable & Telecomm. Ass’n, Inc. v. Brand X Internet Servs., 545 U.S. 967 (2005); Nat’l Cable & Telecomm. Ass’n, Inc. v. Gulf Power Co., 534 U.S. 327 (2002).

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particular, the Commission has authority to determine what constitutes an adequate “on-screen . .

. guide[] . . . for the display or selection of multichannel video programming,” and whether such

an on-screen guide is “accessible in real-time . . . by individuals who are blind or visually

impaired.” For the visually impaired, the absence of, or inadequate, programming description

information renders “selection of multichannel video programming” difficult, if not impossible,

and makes an on-screen guide largely inaccessible in real-time, or otherwise.

Second, the issue is not, as the R&O suggests (¶ 74), a matter of dictating the specific

minimum content of programming on a channel in the VPG; rather, the issue is whether MVPDs

should be permitted to refuse to allow a certain class of programmers (PEG) from providing

program content information that those same MVPDs routinely allow other programmers to

provide, even if the disallowed programmers are willing and able to supply that program content

information. If an MVPD were allowed to affirmatively bar program content information from

some programmers and not others, the effectiveness of Section 205’s “display or selection”

requirement would turn entirely on the MVPD’s whim. If that is what Section 205 means, it is

little more than an empty gesture.

Third, the premise of industry’s argument—that inadequate programming information in

a VPG equally “affects the ability” of those with and without disabilities “to make meaningful

program choices” (R&O ¶ 75)—is untrue, and remarkably deaf to one of the CVAA’s chief

purposes: “enabling individuals who are blind or visually impaired to more easily access video

programming on a range of video devices” (id. ¶ 1). As the VPACC Second Report specifically

found10 and as comments in response to the NPRM amply demonstrate,11 inadequate—and in the

10 Second Report of the Video Programming Accessibility Advisory Committee on the Twenty-First Century Communications and Video Accessibility Act of 2010: User Interfaces, and Video Programming Guides and Menus at 18 (Apr. 9, 2012) (“VPACC Second Report”), available at

(Footnote continued . . .)

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case of some PEG channels, no—program description information adversely, and disparately,

impacts visually-impaired subscribers vis-à-vis non-impaired subscribers. A non-visually

impaired subscriber can click through to a channel on the VPG and quickly determine visually

the nature of the programming; a visually-impaired subscriber cannot. Without a program

description in the VPG, the visually-impaired subscriber may have to spend considerable time on

a channel before he or she is able to determine what the programming is.

This disparate and adverse impact on visually-impaired subscribers from a lack of

adequate programming description information on the VPG is further exacerbated where there is

no, or inadequate, description of PEG programming. The reason: As the record makes plain,12

and the R&O itself recognizes (¶ 75), PEG channels offer reading and other services that are

uniquely tailored to the needs of the visually-impaired, as well as other programming specifically

directed to those with disabilities, and PEG channels are often the only source of such

programming to the visually-impaired and those with other disabilities.13 As a result, MVPDs’

unwillingness to permit the same type of programming description information for PEG channels

on their VPGs as they routinely provide for other channel programmers has a uniquely harsh and

disparate impact on the visually impaired and those with other disabilities. If the CVAA cannot

http://vpaac.wikispaces.com/file/view/120409%20VPAAC%20User%20Interfaces%20and%20Video%20Programming%20Guides%20and%20Menus%20REPORT%20AS%20SUBMITTED%204-9-2012.pdf/318855716/120409%20VPAAC%20User%20Interfaces%20and%20Video%20Programming%20Guides%20and%20Menus%20REPORT%20AS%20SUBMITTED%204-9-2012.pdf. 11 See, e.g., Comments of ACD at 5-11; Reply Comments of ACD at 4-6; Comments of Montgomery County, Md. at 10-13; Reply Comments of Montgomery County, Md. at 10-11; Letter from Claude L. Stout, Chair, Deaf and Hard of Hearing Consumer Advocacy Network to FCC Commissioners at ii-iii, In the Matter of Accessibility of User Interfaces, and Video Programming Guides and Menus, MB Docket No. 12-108 (filed Oct. 22, 2013). 12 See, e.g., Comments of ACD at 5, 7; Reply Comments of Montgomery County, Md. at 3; Comments of Chicago Access Corp., In the Matter of Accessibility of User Interfaces, and Video Programming Guides and Menus, MB Docket No. 12-108 (filed July 10, 2013); Reply Comments of Pittsburgh Community Television Corp., In the Matter of Accessibility of User Interfaces, and Video Programming Guides and Menus, MB Docket No. 12-108 (filed Aug. 8, 2013). 13 See id.

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be construed to empower the Commission to require MVPDs’ VPGs to contain program

information relating to such disability community-specific programming, then the CVAA means

little.

It is important to emphasize what ACD is seeking; and what it is not seeking: ACD is not

asking that the FCC dictate the specific, detailed program content of VPGs. All that ACD asks is

that, if a PEG organization supplies program-specific information on the same terms and

conditions as other programmers, MVPDs should be required to provide that PEG program-

specific information on their VPGs. PEG programmers simply want to be treated like other

programmers on MVPD VPGs.

II. INCLUDING PEG PROGRAMMING DESCRIPTION INFORMATION ON VPGs IS TECHNICALLY FEASIBLE AND SHOULD IMPOSE NO SIGNIFICANT COST BURDEN ON MVPDs.

The FNPRM (¶ 144) asks whether it is technically feasible for MVPDs to provide

program-specific information for PEG channels on VPGs, and what costs MVPDs would incur in

providing that information.

The record already largely answers the FNPRM’s questions: It is technically and

economically feasible for cable operators to include in their VPGs program-specific information

on PEG channels because some cable operators already do just that. In Montgomery County,

Maryland, for instance, two of the three cable operators—the largest cable operator in the nation

(Comcast) and a much smaller operator (RCN)—include program-specific PEG channel

information in their VPGs.14 Other PEG comments in the record reveal a similar pattern; some

14 Comments of Montgomery County, Md. at 12.

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cable operators include PEG program-specific information in their VPGs, while others do not,

and often the same cable operator follows different practices in different locations.15

What this shows is that including PEG program descriptions in VPGs can be done, but

that cable operators willingness to do so is sporadic, resulting in an inconsistent patchwork

treatment of PEG programming descriptions on VPGs across the nation—a patchwork that

differs markedly from the program-specific information that cable operators routinely and

uniformly provide on their VPGs for virtually all other channels on their systems.

That inconsistent patchwork, however, is not the result of any general technical or

economic feasibility problem. It is the result of cable operator whim, perhaps a cable operator’s

visceral dislike of PEG channel obligations, or some operators’ indifference as to whether PEG

channels are as easily accessible to subscribers as other channels on their systems.

We know this because, as noted above, some cable operators already do provide PEG

program-specific information in their VPGs. To cite yet another example, we attach as Exhibit 1

an agreement between Comcast and CreaTV San Jose (“CSJ Agreement”), San Jose’s public

access non-profit, under which CSJ provides specific program listings for inclusion in Comcast’s

VPG in the San Jose area. Under that agreement, CSJ agrees to reimburse Comcast for the costs

associated with including CSJ’s program listings in the VPG—costs which are fairly standard for

15 See, e.g., the following filings in response to the NPRM in MB Docket No. 12-108: Comments of Chicago Access Corp.; Reply Comments of Connersville, Ind. (filed Aug. 8, 2013); Reply Comments of San Jose Community Media Access Corp. (filed Aug. 8, 2013); Reply Comments of Portland Community Media (filed Aug. 8, 2013); Reply Comments of Vermont Access Network (filed Aug. 8, 2013); Reply Comments of Pittsburgh Community Television Corp.; Reply Comments of Community Media Center of Marin (filed Aug. 8, 2013); Reply Comments of Pasadena Community Access Corp. (filed Aug. 8, 2013); Reply Comments of Framingham Public Access Corp. (filed Aug. 7, 2013); Reply Comments of Thurston Community Television (filed Aug. 7, 2013); Reply Comments of Waycross Community Media (filed Aug. 7, 2013); Reply Comments of Amherst Media (filed Aug. 7, 2013); Reply Comments of City of Oakland KTOP-TV10 (filed Aug. 7, 2013); Reply Comments of Citizens Television, Inc. (filed Aug. 7, 2013); Reply Comments of MetroEast Community Media (filed Aug. 2, 2013).

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what most programmers pay for program listing insertion in the VPG (which is usually managed

by a third-party vendor).

The CSJ Agreement proves that requiring MVPDs to insert program listing information

for PEG channels in their VPGs is both technically and economically feasible—and for a system,

like Comcast’s in the Bay Area, that serves several different local communities.

But that should not be surprising. As set forth in the CTC Report attached hereto as

Exhibit 2, cable operators’ VPGs have evolved to include the capability of handling several

hundred channels, and to tailor VPG program listings to specific geographic areas. As the CTC

Report concludes, “there is no technical barrier to requiring video service providers to provide

full VPG functionality for PEG access programming in a manner consistent with the program-

specific VPG functionality provided to other video services carried on the [provider’s] cable

system.” CTC Report at 4. This conclusion applies not only to traditional incumbent cable

operators, but also to new entrants like Verizon and AT&T. Id. at 3.

Thus, the obstacle to insertion of specific PEG program listings on MVPD VPGs is not

technical or economic, but largely the refusal or reluctance of MVPDs to permit such insertion.

Particularly in light of the special importance of PEG programming to the disability community,

the Commission can and should require MVPDs to offer the same VPG program insertion option

to PEG channels as they offer to non-PEG programming channels.

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CONCLUSION

For the foregoing reasons, the Commission should require cable operators and other

MVPDs that carry PEG programming to provide in their VPGs program description information

on PEG programming equivalent to the program description information that they make

available in their VPGs for other programming channels.

Respectfully submitted,

/s/ James N. Horwood James N. Horwood

Tillman L. Lay SPIEGEL & MCDIARMID LLP 1333 New Hampshire Avenue, NW Washington, DC 20036 (202) 879-4000 Counsel for the Alliance For Communications Democracy

February 18, 2014