The Twenty-First Century Communications and Video Accessibility Act of 2010, which updated the Communications Act to provide persons with disabilities access to new technologies, spawned numerous rulemakings at the Federal Communications Commission (FCC). Among those were rules requiring video programming user interfaces distributed by multichannel video programming distributors (MVPD) to be accessible to visually impaired and blind individuals upon request by making nine functions used for the display or selection of multichannel video programming to be audibly accessible.
These rules, which were phased in over a multiyear period based in part upon the number of subscribers served by the MVPD as of year-end 2012, required compliance by all MVPDs by December 20, 2018. On the eve of the compliance deadline, in December 2018, Google Fiber filed a Petition for Limited Waiver of FCC Rule 79.108 seeking a limited waiver of the audible requirement for four of the nine functions:
- Activating video description (for certain programming);
- Adjusting the presentation and display of closed captioning;
- Display of current configuration options; and
- Activating set-top box configuration options.
Google Fiber explained that a waiver is appropriate because these functions are limited in impact and “are infrequently accessed.” In addition, Google Fiber explained that it would be required to “re-engineer its set-top boxes,” which would result in the expenditure of “significant funds, time, and resources for obsolete, end-of-life devices.”
To mitigate these deficiencies, Google Fiber explained that it trains installation technicians to adjust these configurations during installation visits and follow-up in-home service calls.
FCC Grants Google Fiber’s Petition
On September 16, 2019, the FCC’s Media Bureau (MB) granted Google Fiber’s Petition. The Commission found that the grant of Google Fiber’s waiver is in the public interest and that there are “special circumstances” that support the waiver.
Notably, the Commission acknowledged that “Google Fiber’s navigation products would need to be completely reengineered to provide the required accessibility” and found that “providing accessibility via the separate ‘Fiber TV’ app solution is a reasonable alternative to spending the time and resources to update equipment that will be replaced.”
However, the Commission disagreed that the waiver should be granted because the functions are limited in impact and infrequently accessed. Rather, the Commission, agreed with the National Federation of the Blind, which asserted in its comments that frequency of use should not factor into whether a specific function should be made accessible.
FCC Order Sets Deadlines on Google Fiber Functions
According to the Order granting the Petition, Google Fiber must make the first two functions (activating video description and adjusting presentation and display of closed captioning) audibly accessible by December 19, 2019. The last two functions (display of current configuration options and activating set-top box configurations) must be audibly accessible no later than December 19, 2020.
Furthermore, Google Fiber must provide biannual status reports to the FCC in 2020 that address its efforts to make these functions accessible.
This is not the first time that the Commission granted a waiver of its user interface rules. Initially, the FCC’s Consumer & Governmental Affairs Bureau and the Disability Rights Office warned covered entities that they would not grant waivers of the accessibility requirements governing navigation devices due to the significant lead time for compliance. However, in 2018, the Media Bureau granted two waivers of its rules requiring the accessibility of user interfaces on covered navigation devices for certain small and mid-sized MVPDs.