FCC Ponders Extending Emergency Alert Accessibility Rules to “Second Screens”

At its Open Meeting scheduled for next Thursday, May 21, 2015, the FCC will consider extending emergency information accessibility rules to “second screen” devices such as computers, tablets, and smartphones.  The contemplated Second Report and Order and Second Further Notice of Proposed Rulemaking would expand the class of entities subject to the FCC’s accessibility rules (adopted in April 2013) to include multi-channel video programming distributors (“MVPDs”) providing linear video programming on second screen devices.  Such a change could have far-reaching implications for both MVPDs and device manufacturers.

By way of background, the FCC released a Report and Order (“Order”) and Further Notice of Proposed Rulemaking (“FNPRM”) on April 9, 2013, adopting some, and proposing other, emergency information and video description rules to implement Sections 202 and 203 of the Twenty-First Century Communications and Video Accessibility Act of 2010.  Among other requirements, the Order adopted new rules mandating that video programming distributors (“VPDs”) present aurally on a secondary audio stream (“SAS”) any non-newscast emergency information that it presents visually.  The emergency information provided on the SAS must be read at least twice in full and preceded by an aural tone to alert blind and visually impaired audience members that emergency information is available and to differentiate audio accompanying the underlying programming from emergency information audio.

In the FNPRM, the Commission sought comment on whether an MVPD that permits its subscribers to access linear video programming via second screen devices qualifies as a VPD that is providing “video programming”, as defined in Sections 79.1(a)(1) and (2) of the FCC’s Rules, and is therefore covered by the emergency information requirements adopted in the Order.  Issues left open in the FNPRM that the FCC will likely have to address in drafting the Second Report and Order include:

• Who bears the burden of making emergency information available on these devices: the MVPD, the device manufacturer, or both?
• Should the rules apply regardless of where the subscriber is located when accessing the programming (i.e., inside or outside the home)?
• Does it matter whether the emergency content is being delivered over the MVPD’s IP network or over the Internet?

Although the FCC’s announcement in the tentative agenda for the meeting mentions only proposed rules related to accessibility of emergency alerts, the FNPRM also opened the door to extending video description rules to second screen devices.  Notably, the FCC has remarked that, “as a technical matter, once the [SAS] is received by a device, that stream can be made available regardless of whether it is used for emergency information or video description.”  Next week, we’ll hopefully learn how far the FCC intends to go on both of these requirements.