Policy Spotlight: 21st Century Communications and Video Accessibility Act

The 21st Century Communications and Video Accessibility Act (21st CVAA) passed in October 2010 by the United States is a response to the regulatory challenges that the new generation of telecommunication, internet and digital communication devices present for persons with disabilities.  

What does the Act do?

21st CVAA is an update to the Communications Act of the United States and brings in new rules for ensuring accessibility to persons with disabilities as technologies change and advance.

The Act extends federal law provisions for hearing aid compatibility for manufactured and imported telephones to all equipment and devices that offer IP-enabled communication services such as smart phones, PDAs, tablet devices, etc.   

It also requires all internet based communication technologies to be accessible to persons with disabilities except in cases where it would result in an 'undue burden'[1] on the manufacturer or service provider. In such cases, the latter must then ensure that the equipment and services are compatible with third party assistive technologies to enable use by persons with disabilities. 

In addition, 21st CVAA puts in place accountability measures to ensure better enforcements of the accessibility measures outlined under section 255 of the Rehabilitation Act and identifies persons with disabilities as a specific user group that can receive the benefits of universal service programs including broadband connectivity and USD 10 million annual support for assistive technologies. A section of the Act also deals with emergency access and Real-Time Text[2] support. 

Video accessibility is a major component of the Act, with provisions having been created for closed captioning and video descriptions of television and web video content (with the exception of online only video programming), accessible programming guide and user interfaces. The Federal Communications Commission (FCC) is still in the process of rolling out regulations for these provisions.

Jenifer Simpson 

Could you briefly trace the kind of advocacy and work that has gone into getting this law enacted?

Advocacy for the 21st CVAA was, and continues to be based in coalition work by disability organizations.  First formed in March 2007, the Coalition of Organizations for Accessible Technology (COAT) grew very rapidly due to the strength of its communications advocacy agenda.  The groups lobbied the U.S. Congress for three years, conducting both grass roots efforts utilizing the member groups’ leaders and membership, and worked at the national level, providing witnesses and testimony at three Congressional hearings and working hard to bring knowledge of the effort to the larger disability community. The COAT leadership met intensively with industry representatives from the television, communications, and information technology sectors, and then in 2010 saw the legislation passed in both houses (U.S. House of Representatives and U.S. Senate) with signature by the President in October 2010. Note that the final Bill differed somewhat from the Bill that was first introduced in December 2009 as a result of the consultative process with industry and legislators. Critical to advocacy was the role of electronic social media such as a blog-website, an E-list, a Twitter or a Facebook account. This kept everyone informed as to what was going on and is a key way to ensure that everyone knew what was being done.

Where does the 21st CCVA stand as of now, what processes must be completed before it becomes fully effective? 

Attached is a copy of the schedule for the rulemakings.  Right now this law is enacted. We are in the implementation stage with the implementing federal agency, the Federal Communications Commission (FCC), an independent federal government agency, issuing proposed rules or regulations. During that process everyone has a chance to be heard all over again and to influence what will be the final rules. We do have one final rule issued, that is, for the National Deaf-Blind Equipment Distribution program that the new law required.  To ensure full implementation, advocacy groups have to be directly involved in the rulemaking processes at the FCC. This includes commenting into the proposed rules, participating in any standards development bodies and otherwise being at the table. 

What in your view are its greatest strengths and its failings?

The greatest strength of the new law is that it is based on feasibility.  That is, most of the requirements are not new, they are extensions of what was already required, except now, with communications and other technologies connecting largely with the Internet, these older requirements must now be extended to internet-enablement.  Furthermore, most of the solutions for accessibility that the new law requires do not require rocket science or major research and development; technological solutions are known in many cases or can be developed easily and widely disseminated. Many will be software solutions that can be developed as part of the usual product design and development cycle, if the entity is willing to do this.  

The only failing is that we didn’t really get to go far enough due to industry pushback.  For instance, we started out wanting a requirement for captioning and video/audio description of all video material that would be displayed and distributed via the Internet. We did not get this. But we got major steps forward in these areas. That is, a requirement for captioning of any TV shown on the Internet and reinstatement of video description of TV. We also succeeded in ensuring that browsers in cell phones would be designed for accessibility so that blind users who might reach internet content that is accessible would have an accessible ‘ramp’ to that content.

What are the shortcomings of the earlier Communications Act that you would say 21st CCVA addresses?

With technology and communications converging, the 21st CVAA directly addresses newer forms of technology.  We previously had section 255 of the Communications Act, enacted in 1996, but regulations were not issued until 2000, four years later.  Also, at that time we had a requirement for video description of TV but it was overturned by the federal district court. Disability advocates learned their lessons from these experiences and in the 21st CVAA we redressed these shortcomings.

The 21st CVAA does not address internet content or website accessibility measures that must be taken.  These topics are, in the U.S., covered under different statutes.  Part of the advocacy process was, early on, to recognize that we needed to craft a law that was feasible despite our need for a comprehensive law. We knew the legislative and regulatory process — this meant some things were not going to be included. COAT works on these other laws to improve and update the regulations for things such as website accessibility.

The law was enacted in October? What if anything, has changed since then? What are you hoping will change? 

We are still in the rulemaking phase and won’t see implementation of many of the requirements until next year. A big negative continues to be the bad attitude of some in the various industries to the need for accessibility. Some commenters into the proposed rules are attempting to influence the rules to delay implementation, to create exemptions or carve out waiver situations, and to otherwise stymie what must occur if we are to see people with sensory disabilities able to use most communications technologies like everyone else. Since the 21st CVAA is comprehensive in scope, there is little doubt that disability advocates have to maintain vigilance as the regulations are developed. Passing the law was just the first step, the next steps are implementation.

Are there any loopholes, grey areas in it that you feel could render it less effective?

Since we do not have final rules for most of the law, there are no known loopholes yet. While the law does not go as far as some would like, there is little doubt that this law has major impact and is stimulating change at the companies and within the industries affected.

Do you feel that ICT accessibility can be achieved through policy intervention alone? 

First of all, there is nothing to stop any product or service from being designed and developed at the outset to be disability accessible and usable.  In fact, there are several companies that do this already as a matter of corporate policy and a commitment to be leaders in this way. It is the rest for whom public policy has to be developed. Such policy must be developed that includes all stakeholders. However, there must be public policy leadership or nothing will change. Leadership involves Congressional members willing to say the law needs to be changed, willing to stand up for the right of people with disabilities to be included.  This is the civil or human rights viewpoint and which must extend to disability to be fully inclusive. Leadership can involve a particular company or group of companies saying they will support the new law once they understand the need for the policy change. This happened with the 21st CVAA.  Early on the largest wireline/wireless carriers supported the legislation. Most importantly, there must be strong leadership by consumer disability advocates who must make the key decisions and decide the directions and choices at critical junctures in the policymaking process. Also, critical to disability advocacy is the ability to work together in a consensual fashion, to put aside differences and to understand that “we’re all in this together” and to not give up or become discouraged.  

Notes

[1].The term "undue burden" has the same meaning as given to it in the Americans with Disabilities Act and the Rehabilitation Act – “Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, an agency shall consider all agency resources available to the program or component for which the product is being developed, procured, maintained, or used."

[2].Real-Time Text is a conversational text feature which can be sent in real time and can provide captioning of a voice conversation.

* The post has been updated to include an interview with Jenifer Simpson