News & Events

by Dave Garb, Legislative Committee Chair

Closed Captioning and Web Accessibility Requirements for Local Governments

Where it Currently Stands for PEG

The Americans with Disability Act has compliance obligations for local government accessibility for websites, video streaming, and even cable broadcasting.

While the FCC has long excluded community television from captioning requirements, the Department of Justice, state governments, and private citizens have renewed a push to require captioning for all types of video content, and particularly those found on the internet.

Last month, JAG held a special webinar that explored where the requirements currently stand for access television, along with thoughts on where it might be heading, when the DOJ might make a decision, and what should be done now to prepare for the immediate future.

Our guest speaker for this informative event was Brandon M. Dittman, a founder and partner of Wilson Williams Fellman and Dittman*, an expert on the ADA and Rehabilitation Act Captioning Requirements and FCC Regulations for Closed Captioning, as well as the DOJ and their rule-makings.

Brandon relayed the following facts to the participants:

•    Since 1998 the FCC has stated under its regulations that local government content is categorically exempted from captioning on television. Other government agencies such as the DOJ who are responsible for enforcing the Americans with Disabilities Act, will say otherwise. And even the FCC takes the position that video programming may be subject to captioning requirements even if they don’t require it.

•    The American with Disabilities Act – Title 2 regulates public entities and regulates governments.  If you’re a government entity of any kind, you fall under Title 2

•    DOJ Requires Web Content Accessibility Guidelines (WCAG) 2.1   https://www.w3.org/WAI/standards-guidelines/wcag/docs/   or https://www.w3.org/WAI/WCAG22/quickref/?versions=2.1  for all web content, and captioning for video content, whether live or prerecorded is required.

•    Different parts of the Rehabilitation Act which needs to also be considered include:

• Section 504 states that “No otherwise qualified individual with a disability in the United States … shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency”.

•    Section 508 – “Electronic information and information technology must be accessible for

       people with disabilities”.

(You could potentially become subject to this if you receive federal funding.  Such funding could come with a requirement that you comply with the Rehabilitation Act.)

One of the most eye-opening moments of the webinar was when Brandon stated that “Any person can bring what’s called a citizen suit where they can act as their own private attorney general.  Especially on the website side. A private citizen can ask for an injunction and can demand that you change your practice or stop doing the discriminatory practice.”  They can recover all their attorney’s fees, and in most cases, they can get monetary damages of some kind.

So what should a PEG Channel do to prepare when the DOJ comes down with more changes about Closed Captioning?

Brandon offers the following suggestions:

•    Basically you should just start budgeting for it now. And I would start with the things that are used most by the public, whatever those may be. So your websites, your public meetings, those sorts of things.

•    Most of you have Video-On-Demand Channels, so whatever goes on there should have the ability to be captioned somehow.  If for whatever reason you have an exception or whatever else you still may be under, you actually are still under the ADA’s broader requirement for effective communication. And just so you know, that’s always kind of lurking in the background. There still is the effective communication piece to this.

•    Look towards the future to ensure that your servers have the ability to create automatic closed captioning.  It’s a lot harder to prove the case that captioning is not good enough versus you didn’t have anything. It is going to deter all but the most determined from filing a lawsuit against you because again, it’s a lot easier to prove that you have nothing.

JAG works exclusively with vendors that can help you prepare for the possible future of adding closed captioning into your programs.

There have been no final rulings at this time by the DOJ.  But what is being considered when the effective date is decided, is to implement a delayed implementation based on population size. For example, if you’re a government below 50,000 people, you may get three years to comply, with larger municipalities having perhaps two years.

Don’t panic about it just yet, but start to budget!  We cannot ignore it forever! This seems like something we might have to face whether we want to or not.

If you would like to view this special webinar in its entirety with our guest Brandon M. Dittman. please go to:

JAG: ADA and Closed Captioning Webinar 12-21-23

Still in Play: HR 3557

The American Broadband Deployment Act

Reminder everyone: This bill imposes new restrictions on local authorities regarding their ability to regulate a variety of state and local land use and zoning issues that pertain to the deployment of telecommunications infrastructure, including wireless and wireline deployment, as well as new limits on requirements and renewals of cable franchise agreements.

Please watch our informative video on HR 3557 and hear what might happen if it is passed at:   https://www.youtube.com/watch?v=fzP_t_SPzGk .  And please pass this link around to all of those who can stop this harmful bill. JAG constantly advocates, analyzes and addresses emerging issues in areas such as: Local Government Communications and Internet Policy, New Technology Initiatives and Advancements, Cable Franchising and, the Operation of Public, Education and Government Media Facilities.

by Dave Garb, Legislative Committee Chair

Closed Captioning / ADA Requirements

Where it Currently Stands for PEG

Recently, there has been concern regarding the Closed Captioning of PEG programming, and if the PEG community will be mandated to offer captioning.

Our partners at the Alliance for Community Media have some thoughts to ponder about where things currently stand on this issue.

From Mike Wassenaar, President, ACM:

Your cable channel is probably exempt from the FCC’s Captioning Rules – if revenue for the channel is less than $2M per year per the FCC’s self-implementing exemptions go into effect.  We expect the FCC will implement a registry of video channels and distributors to handle captioning complaints in the coming year.  We’ll keep our partners posted on when this is likely to happen, and what we’ll be required to provide – which will most likely be a contact address and email for questions about captioning.

As a reminder, all local governments and non-profits are subject to the Americans with Disabilities Act, which requires that organizations use the effective communication standard with local residents

( https://www.ada.gov/topics/effective-communication/ )

1. Are you a local government?  You have an ADA requirement separate from the FCC requirement to implement effective communication – or have a publicly responsible official state that it isn’t economically feasible. This means every local government should have a plan to know the cost of implementing and providing captions, even if they don’t implement them.

2. Content that is exempt on cable is exempt online per implementation of the CVAA from 2011.

If video content is online only, there is no exemption (so I suggest online only content have a captioning solution) – This includes VOD delivered via Internet.

The DOJ will state new guidelines regarding accessibility and quality standards for all online content delivered by state and local governments in early 2024.  Governments will have to meet WCAG2 standards https://www.w3.org/WAI/standards-guidelines/wcag/docs/   or https://www.w3.org/WAI/WCAG22/quickref/?versions=2.1.  This specifies online video needs for captions.

The DOJ proposal is for jurisdictions over 50K people. Jurisdictions would have two years to implement these standards, and those under 50K would have three years.  Please note there is no change to the Effective Communication standards suggested.

This is not a final rule – So don’t panic!  It would probably take effect 60 days after publication in the Federal Register, so we don’t have target dates at this time.

The key issue here is to plan when a timeline occurs, and work with vendors for best solutions (and budget accordingly in advance).

The ACM is monitoring this situation and will have materials to consider in 2024 – but talks with equipment vendors have already begun to ensure they meet WCAG2 standards in future products and upgrades. So all… don’t worry about it just yet.  However, as Mike stated, start budgeting now.  We are all doing VOD, it seems like this is something we will have to face head on whether we want to or not.

by Dave Garb, Legislative Committee Chair

Universal Service Fund – Latest Update 

On January 19th, the 5th Circuit Appellate Court tried to decide if it should toss out a ruling that upholds the Federal Communications Commission’s Universal Service Fund.  The judges expressed their objections about the constitutionality of the practice of using an outside company to collect fees for the telecom assistance programs.

The USF was originally designed by having interstate long distance carriers appraised in order to subsidize telephone service to low-income households and high-cost areas.  In 1996, the Telecommunications Act expanded this definition to include among other things rural health care providers and eligible schools and libraries.

But litigants have been challenging this fund in different circuits throughout the country as they have argued that this program is an unlawful authorization to the FCC by Congress’ own taxing power.

Last March, the 5th Court upheld the FCC’s authority totally, though in June they agreed to rehear the litigation.

During the September proceeding, the court seemed concerned by the way the fund was currently set-up.  According to the figures in the court documents the USF seems to have grown to around $7 billion in 2020, from just over $1 billion in the mid-1990s.

An attorney for the FCC told the court that the FCC’s universal service definition has been extended over the years to cover new technologies, while accounting for the growth of the program, as directed by regulation.

Though he did not provide thoughts on what it might cover in the future, the attorney went on to say that; ”There are many different ways that people communicate these days”.  “But the key point in the case, is that Congress gave the FCC the clear  legal authority to set up the universal service system. 

Back in March, this was the crucial point that guided the Fifth Circuit court decision to uphold their authority.  They held that Congress had properly limited the commission’s revenue-raising activity while adequately providing the FCC with “intelligible principles” to guide the fund’s administration. 

Reform discussions are currently being held in a U.S. Senate working group.  Their objective is to expand the revenue stream to go further than the interstate telecoms.  They are looking to have it include all Broadband Internet Access Services in order to fund the Universal Service Fund programs.

FCC Chairwoman Rosenworcel Proposes to Restore Net Neutrality Rules and Authority Over Broadband Providers Under Title II

From the Office of Chairwoman Rosenworcel – Sept. 26, 2023:

The internet is too important to our society and economy not to have effective oversight.  However, in 2018, the FCC abdicated its authority over broadband and repealed net neutrality.  Today, FCC Chairwoman Jessica Rosenworcel shared with her colleagues a proposal that would begin the process of re-establishing the FCC’s oversight over broadband and restoring uniform, nationwide net neutrality rules, which would allow the FCC to protect internet openness and consumers, defend national security, and advance public safety.

The Chairwoman is proposing the FCC take the first procedural steps toward reaffirming rules that would treat broadband internet service as an essential service for American life.  As work, healthcare, education, commerce, and so much more have moved online, no American household or business should need to function without reliable internet service.  This was especially true during the pandemic.  Such rules would affirm—under Title II of the Communications Act—that broadband service is on par with water, power, and phone service; that is essential.

The proposed rules would return fixed and mobile broadband service to its status as an essential “telecommunications” service.  The proposal will be made public and will allow for public input.  The proposal seeks to largely return to the successful rules the Commission adopted in 2015.

How It Helps Consumers ?

Openness – Establish basic rules for Internet Service Providers that prevent them from blocking legal content, throttling your speeds, and creating fast lanes that favor those who can pay for access. 

Security – Reclassify broadband internet access to give the FCC and its national security partners the tools needed to defend our networks from potential security threats.

Safety – Allow the FCC to enhance the resiliency of broadband networks and bolster efforts to require providers to notify the FCC and consumers of internet outages.

Nationwide Standard – Establish a uniform national standard rather than a patchwork of state-by-state approaches, benefiting consumers and Internet Service Providers.

To hear the entirety of FCC Chairwoman Jessica Rosenworcel’s remarks from the National Press Club on September 26, 2023, please visit the link below.

Chairwoman Rosenworcel Remarks  – 9/26/23

Comments on Safeguarding and Securing the Open Internet Sought by the FCC

In order to re-establish the FCC’s oversight over broadband and restoring uniform, nationwide net neutrality rules, the FCC has also put forth a notice of Proposed Rulemaking seeking comments for safeguarding and securing the Open Internet.

Public Notice – WC Docket No. 23-320:

On September 28, 2023, the FCC released a public draft of its Notice of Proposed Rulemaking (NPRM) seeking comment on proposed rules for safeguarding and securing the open Internet, which is planned for vote at the FCC’s open meeting on October 19, 2023.  The proposed draft would reestablish the Commission’s authority over broadband Internet access service (BIAS) by classifying it as a telecommunications service under Title II of the Communications Act of 1934.  There is currently no expert agency ensuring that the Internet is fast, open, and fair.

The draft NPRM proposes that the FCC take the first procedural steps toward reaffirming rules that would treat broadband internet service as an essential service for American life.  As work, healthcare, education, commerce, and so much more have moved online, no American household or business should need to function without reliable internet service.  This was especially true during the pandemic.  Such rules would affirm—under Title II of the Communications Act—that broadband service is on par with water, power, and phone service; that is essential.  More facts are listed in the fact sheet linked below.

Regarding accessibility for individuals with disabilities, the draft seeks comment on how the proposed reclassification of BIAS would affect:

• The availability and performance of IP-based telecommunications relay services (TRS);
• The FCC’s authority to ensure that individuals with disabilities can communicate using IP-based services such as video communications and electronic messaging services, IP equipment, and mobile browsers;
• The requirement that Internet service providers (ISPs) comply with certain sections of the Communications Act (Sections 225, 255, and 251(a)(2)), and associated FCC rules, which advance access for persons with disabilities, and the Commission’s proposal to forbear from (that is, refrain from) applying TRS Fund contribution requirements;
• Past analyses and conclusions that the Communications Act, as amended by the 21st Century Video and Communications Accessibility Act (CVAA), provides the FCC with authority to ensure that consumers with disabilities can access broadband networks regardless of whether BIAS is classified as telecommunications service or information service.
• Emergency communications and public safety of persons with disabilities by preventing the degradation of latency-sensitive and data-intensive applications;
• IP-based home health monitoring systems and other connected systems for individuals with disabilities;
• The implementation and enforcement of other laws, such as the Americans with Disabilities Act and the Rehabilitation Act, designed to protect individuals with disabilities.

The draft NPRM also asks about the accessibility of ISPs’ website disclosures.  Are more requirements needed to ensure accessibility? Should ISPs be encouraged to use the Web Accessibility Initiative guidance?

The comment and reply comment dates are proposed to be December 14, 2023 and January 17, 2024.  More information about the filing procedures will be sent out through an AccessInfo after the draft is considered at the October open meeting. 

Link to the draft Notice of Proposed Rulemaking:

URL:  https://docs.fcc.gov/public/attachments/DOC-397309A1.pdf

Link to Fact Sheet:  https://www.fcc.gov/document/chairwoman-rosenworcel-proposes-restore-net-neutrality-rules