The Americans With Disabilities Act (ADA), enacted in 1990, vastly expanded opportunities for persons with disabilities to participate in society by prohibiting discrimination and requiring that reasonable accommodations be made in employment opportunities, public accommodations and services, government programs and services, and telecommunications services. The ADA and follow-up laws led to changes in the communications industry, including requirements for closed captioning of television broadcasting and hearing aid compatibility for telephones.

However, with more telecommunication and video transmissions now based in the world of VoIP (voice over internet protocol) telephoning, internet streaming, and 3G smartphones, the law needed to catch up. The Communications and Video Accessibility Act, first introduced in the summer of 2009 and passed unanimously by both the House and Senate, attempts to address these gaps through a series of new requirements that will apply to manufacturers, developers, service providers, and others in the communication industry.

Existing federal law that requires hearing aid compatibility on telephones was expanded so that the same requirements will now apply to cell phones, smartphones, and IP-enabled phones. The act would not apply to computer headsets for Skype-type communications, but it would apply to devices that are “functionally equivalent” to a telephone utilizing “advanced communication services.”

The act also extends the requirements for accessibility to advanced communications services to manufacturers and providers of end-user equipment, network equipment, software, and telecommunication services. The new law requires them to make their products and services compatible with devices used by disabled persons “if achievable.” Specifically included as some of the services to be covered are internet browsers and email applications for mobile phones, which must be accessible to and usable by the visually impaired.

Manufacturers and service providers would have to demonstrate that they have invested a “reasonable” level of expense and effort before finding that accessibility was not “achievable.” The law does not dictate any specific hardware or software solution to be implemented and allows the use of third-party solutions as long as the costs to the user are “nominal.” This allows manufacturers and providers flexibility in achieving their accessibility goals.

A second major component of the act addresses video programming. While televisions have featured closed captioning of programming for nearly 20 years, video programming is now available—and actively promoted—through several different delivery mechanisms. These include streaming over set-top and on-demand television services, video sales and rentals by digital download, and internet streaming over computer and wireless devices.

The act focuses primarily on both closed captioning and video description on existing and new devices. Closed captioning has been a common feature of most television programming and primarily involves typing out the dialogue featured on the screen. Video description is more complex: A separate audio feed includes not only the dialogue but also an audio description of the actions or movements occurring on screen. The Federal Communications Commission (FCC) at one time required a modest amount of video description, but a 2002 court decision vacated that requirement, finding that the FCC did not have the authority to enforce the requirement.

The act restores the FCC’s authority to require video description capability and requires television networks to provide an increasing amount of video description capability over the next several years. This requirement will extend to video programming distributed over the internet. The act also extends the requirements for closed captioning to include video programming delivered over the internet. Closed captioning would apply to video programming made specifically for television and redistributed over the internet, as well as programming “generally comparable to” traditional television programming. This would encompass programming made and distributed exclusively online. “Consumer-generated media” such as YouTube videos, however, would not be required to be closed captioned.                    

Similar to the requirement that smartphones and other equipment be accessible, the act would require that all devices designed to receive or play back video programming be capable of displaying closed-captioning and video description content. This would include IP streaming devices such as set-top boxes, as well as TiVo and other DVR devices.

The act also includes a number of provisions designed to assure the accessibility of emergency information, support for access to video programming guides and menus provided by cable or satellite subscription services, and that TTY and internet relay services—used to facilitate communication between hearing impaired and nonimpaired persons—are expanded.

Implementing the act will be the responsibility of the FCC. The act sets out various procedures and timelines for implementing its terms. As a result, implementation will likely be phased in over a period of years as regulations are drafted and manufacturers and providers develop and implement technologies to comply with the act.

The act also requires regular reports to Congress and the creation of advisory committees to make recommendations to the FCC about both implementing the act and making sure the act and the FCC are responding to new communications technologies in the future.

At about 2:15pm on Friday, Oct. 8, Obama signed the act into law in the East Room of the White House. In attendance were several legislators who took part in pressing the bill forward, the chairman of the FCC, and multi-Grammy winning musician Stevie Wonder. In his remarks, the president emphasized the 20th anniversary of the Americans With Disability Act as a foundation for this new law. Both the ADA and this new act, the president said, are about “opportunity,” allowing persons with disabilities to take full advantage of every opportunity that our economy offers, at a time when the economy needs everyone to be able to participate.