Video programming distributors must make televised emergency information accessible to persons with disabilities

The Federal Communications Commission ("FCC" or "Commission") recently released a Public Notice reminding video programming distributors ("VPDs") — including television broadcasters and multichannel video programming distributors ("MVPDs") — of their duty to make televised emergency information accessible to viewers with disabilities. The Public Notice comes on the heels of parallel announcements by FCC Chairwoman Rosenworcel and the Public Safety and Homeland Security Bureau highlighting steps the Commission has taken to assist the public in reaching emergency services and receiving emergency information in preparation for this year's hurricane season. The Public Notice underscores the critical role that VPDs play in keeping first responders and consumers connected when disaster strikes, as well as the FCC's commitment to protecting viewers with disabilities.

Background

Under FCC rules, VPDs must make emergency information that is provided aurally or visually during programming accessible to people with disabilities. The Commission defines "emergency information" as "[i]nformation, about a current emergency, that is intended to further the protection of life, health, safety, and property, i.e., critical details regarding the emergency and how to respond to the emergency." Examples of such emergencies include severe weather events, widespread power failures, industrial explosions, civil disorders, pandemics, school closings, and changes in school bus schedules resulting from such conditions. "Critical details" include, but are not limited to, "specific details regarding the areas that will be affected by the emergency, evacuation orders, detailed descriptions of areas to be evacuated, specific evacuation routes, approved shelters or the way to take shelter in one's home, instructions on how to secure personal property, road closures, and how to obtain relief assistance."

The accessibility requirement with respect to emergency information applies to emergency information intended to reach audiences in the geographic area where the emergency is occurring. However, the requirement may also apply to emergency information distributed to audiences outside of the area immediately affected by the emergency — especially when a large-scale disaster expands into and impacts outlying areas beyond the immediately affected region. In addition, critical details of the emergency must be communicated in an accessible manner to viewers with disabilities in the aftermath of an emergency, keeping those in affected or adjacent communities abreast of the latest developments and, thus, allowing them to respond to the emergency in a way "that can protect their life, health, safety, and property."

Emergency Information Accessibility Obligations

Individuals Who Are Blind or Visually Impaired

For the video portion of both regularly scheduled newscasts and breaking news, emergency information must be made accessible by aurally describing the information in the programming's main audio portion. For emergency information provided visually during non-newscast programming (e.g., through "crawling" or "scrolling" text), an aural tone must accompany the visually presented information on the main audio stream.

Through a secondary audio stream, the visually presented emergency information must, at least twice, be conveyed aurally and in full, preceded by an aural tone. For that secondary audio stream, the aural emergency information should supersede all other programming, including video description, foreign language translation, or duplication of the main audio stream.

Finally, MVPDs must ensure that all applications or plug-ins used to provide consumers with access to linear programming on second screen devices (e.g., tablets, smartphones, laptops, and similar technology) over their network and as a part of their MVPD services can pass through a full aural representation of emergency information on a secondary audio stream.

Individuals Who Are Deaf or Hard of Hearing

Emergency information being communicated through the audio portion of programming must also be accessible to individuals who are deaf or hard of hearing. VPDs can satisfy this obligation through the inclusion of closed captioning, open captioning, crawling or scrolling text, or other methods of visual presentation. VPDs should note that the visual presentation of emergency information may not block any closed captioning — and closed captioning may not block any emergency information that has been provided through visual means.

Per FCC rules, certain providers may be permitted to caption live programming using the electronic newsroom technique ("ENT"), which converts the dialogue of a teleprompter script into captions. Further, for non-scripted news, VPDs that have been permitted to use ENT must make emergency information accessible through another visual presentation method.

In contrast, "the major national broadcast television networks (i.e., ABC, CBS, Fox, and NBC), affiliates of these networks in the top 25 television markets, and national non-broadcast networks serving at least 50% of all homes subscribing to multichannel video programming services" may not rely on ENT to caption live programming. Instead, these providers must provide closed captioning of emergency information — or some other visual presentation method — during both regularly scheduled newscasts and breaking news. The FCC encourages these VPDs to build internal systems that promote quickly obtaining closed captioning when emergencies arise.

Individuals With Cognitive Disabilities

Although emergency information is not required to be accessible for viewers with cognitive disabilities, the FCC encourages VPDs and video programmers to employ strategies such as plain language and pictorial information to make such information accessible to these viewers.

Takeaways

The FCC noted that the National Oceanic and Atmospheric Administration "predicts above-average activity during the 2024 hurricane season, which increases the likelihood that televised alerts will be necessary." By issuing this Public Notice, the FCC is reminding VPDs of the importance of ensuring potentially life-saving information related to emergencies is accessible to affected individuals with disabilities.

The FCC continues to monitor complaints by consumers who allege violations of the emergency information accessibility rules, so it is reasonably likely that failing to satisfy the requirements described above could result in exposure to heightened enforcement scrutiny. VPDs can mitigate enforcement risk by staying apprised of the various obligations, designing responsive internal protocols, and proactively implementing practices that improve the accessibility of televised emergency information.

*Angelene Superable is a 2024 summer associate at DWT, entering her third year at Georgetown Law.