Aug 12, 2020

How the FCC regulates accessibility for new technologies

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Closed-captioning and audio descriptions are some of the top accessibility issues the FCC is focused on.

The Americans with Disabilities Act turned 30 this summer, but this year also marks a decade since the 21st Century Communications and Video Accessibility Act was signed. That law sets federal rules for things like streaming video, mobile browsers and teleconferencing software. 

Regulators at the Federal Communications Commission are in charge of making sure people follow that law, and they get help from the FCC’s Disability Advisory Committee. I spoke with Brian Scarpelli, co-chair of that group and also senior global policy counsel for the App Association. He said tech has definitely outpaced the law. The following is an edited transcript of our conversation.

Brian Scarpelli (Photo courtesy of IAPP)

Brian Scarpelli: If you go back to a time when everyone accessed television through bunny ears on a television, you had one modality, and you could work on a single solution, essentially, for that one modality. Nowadays, with the advancement of video streaming, all different kinds of modalities, how can accessibility be enhanced in all these new modalities? For example, with captioning, an issue that may pop up for people is that they’re trying to watch a news story about an emergency, and there’ll be a crawl on the television. And then sometimes the closed-captioning function may go over the crawl and obscure that language. They’re definitely not things that anyone designed for. They’re just issues that are being realized and worked on in real time.

Kimberly Adams: I’m looking at some of the bullet points on this 2010 law, and it says it requires video programming that’s closed-captioned on TV to be closed-captioned when it’s distributed on the internet. But if it’s an internet-only program, it’s not required to have closed-captioning?

Scarpelli: Under the law, that’s correct.

Adams: Which is wild, because so much in our streaming-heavy world now, things start out on the internet. What does that mean for accessibility?

Scarpelli: That really is probably one of the most compelling use cases that speaks to that tension between evolution in technology and evolution in how media is distributed and consumed. There are voluntary efforts by the leading platforms to enhance accessibility that I think a lot of people rely on and that they work to improve on.

Adams: Is fixing this kind of problem, whether it be on closed-captioning or audio descriptions for videos, is this something that the FCC can do with rules, or does the law have to change or something else?

Scarpelli: It could be a combination of all those, I suppose, is what a typical lawyer would answer for you. But under that current law, it is probably unlikely that the commission can go and compel and mandate that companies do that. However, constructs like the [Disability Advisory Committee] are really essential for exchanging information and taking in feedback, for example, for voluntary efforts, as well as for handling efforts that relate to compliance with the law.

Adams: One of the things that’s very interesting about accessibility law in the U.S. is that it can be different depending on where you live. For example, the FCC recently said it would expand the requirement for audio descriptions on video from the top 60 TV markets to the top 100 markets. What about everybody else?

Scarpelli: They’re trying to find that balance between not overburdening some providers of those services …

Adams: You mean like small TV stations and things?

Scarpelli: Exactly. Will we ever fully achieve a truly accessible technology ecosystem? The answer is probably no. That’s always going to be a goal that we’re going to be searching for because there’ll be new issues that will continue to arise. That is an approach, the idea that a smaller market may be exempted for some time from a requirement, to move us towards that goal.

Adams: Several of the folks we’ve talked to, related to disability in tech, say accessibility needs to be designed in from the beginning. And what you just mentioned about we may never reach the goal of complete accessibility kind of speaks to that. What do you think the opportunity cost is of companies and regulators still needing to do work, in some cases on the basic issues related to accessibility in tech?

Scarpelli: I should say, I couldn’t agree more with the viewpoints that you were just mentioning. It’s a little bit of a buzz phrase when people say, X by design. Accessibility by design, though, I think is a very important concept. The idea that from the very early phases, from design and initial implementations when that coding starts, for example, to build an app, when the product is just starting to be built, prototypes and things like that, that accessibility is top of mind then and built in from the get-go. The opportunity cost is immense if you don’t build accessibility in by design. There’s also the business reality: 61 million Americans have at least one disability right now, so if you ignore accessibility in a product, that’s a poor business practice. You’re excluding 26%, potentially, of the market.

Related links: More insight from Kimberly Adams

The FCC summary of that 2010 law is pretty fascinating, seeing what was considered cutting-edge policy then versus now. 

We talked with lawyer and disability advocate Haben Girma yesterday, and she has a new piece on TechCrunch about her experience as a deafblind person encountering the new autonomous delivery robots that are zooming around some cities.

Finally, listener Nick Thompson flagged a story in The Wall Street Journal about how designers are rethinking walkers and canes, making them look better and improving ease of use. One compelling reason for the new attention on these older products: Older Americans tend to have more discretionary income than some other demographics.

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