The FCC hit three San Diego TV stations with fines ranging from $20,000 to $25,000 for failure to make emergency information accessible to people with hearing disabilities. Shortly after those fines were announced, the commission issued a reminder to broadcasters, cable operators and satellite television services that they are required to make emergency information accessible to people with hearing and vision disabilities.
“Emergency information” is defined by the FCC as “information about a current emergency that is intended to further the protection of life, health, safety, or property, i.e., critical details regarding the emergency and how to respond to the emergency.” While the primary focus is on local matters, on occasion, matters of national importance may also be of local concern and could, thus, trigger this requirement.
The types of situations that might give rise to emergency information include tornadoes, hurricanes, floods, tidal waves, earthquakes, icy conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings and changes in school bus schedules arising from such conditions. The FCC emphasizes that this “list of emergencies is not intended to be exhaustive.”
According to the commission, in order to provide the necessary information to people with hearing disabilities, TV stations and other video providers must use captioning, crawls, scrolls or the like. Emergency information should not block any closed captioning, and vice versa.
As for people with vision disabilities, video distributors must aurally describe the emergency information in the main audio if the information is provided during a newscast. If emergency information is provided in some other context (e.g., by an emergency crawl or scroll), it must be accompanied by an aural tone.
The FCC's recent reminder is noteworthy because it says nothing about any agency deference to the “good faith judgments” of TV licensees. When the commission first adopted requirements in this area, it stated, “In determining whether particular details need to be made accessible, we will permit programmers to rely on their own good faith judgments.” That language suggests that a reasonable measure of discretion was left to video distributors to decide what elements of emergency information need to be specially transmitted. That is what the San Diego TV licensees believed.
But in the San Diego forfeiture decisions, the commission limited the scope of that good faith judgment dramatically. While the licensees had provided the required emergency information for the hearing disabled in its most essential emergency broadcasts, they had not broadcast the necessary access information in other emergency programming. The licensees argued that they were merely exercising the good faith judgment that the FCC had incorporated into the standard. The FCC was not persuaded and suggested that the licensees' interpretation of that language was too “expansive.” Not surprisingly, the follow-up reminder does not even allude to the good faith judgment question.
The recent fines in combination with the reminder send a clear signal to video distributors: The commission expects all emergency information transmitted conventionally will also be made accessible to persons with hearing or vision disabilities.
Harry C. Martin is president of the Federal Communications Bar Association and a member of Fletcher, Heald & Hildreth PLC, Arlington, VA.
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