Closed captions for the deaf, audio descriptions for the blind, and user-friendly system interfaces are likely to be mandated soon on all aircraft flying in and out of the US if pending updates to two important bills are passed by the US Congress.
In this Op-Ed, inflight entertainment industry veteran Michael Childers makes the case for why an agreement reached in 2016 between the commercial aviation industry and the disability advocacy community — which was never enacted — should be the basis for any new regulations emerging from this legislation.
Legislation currently pending in the US Congress may finally lead to formal regulation of accessible inflight entertainment (IFE) on all commercial aircraft flying in and out of the US, following a long history of engagement between the US Department of Transportation (DOT) and the Airline Passenger Experience Association (APEX) dating to 2006.
I will discuss this legislation in greater detail and moderate a panel discussion on accessible IFE on Thursday, 21 September 2023, during APEX’s Thought Leadership Day at APEX Global EXPO in Long Beach, California.
The pending bills are:
- S. 2494 | “A bill to update the 21st Century Communications and Video Accessibility Act of 2010” and H.R. 4858 | A bill “To update the 21st Century Communications and Video Accessibility Act of 2010” were introduced in the US Senate and House of Representatives respectively on 25 July 2023. The sponsor of the Senate bill was US Senator Ed Markey (D-MA), the author of the 2010 21st Century Communications and Video Accessibility Act (CVAA) — landmark legislation impacting IFE — which was signed into law by President Barack Obama on 8 October 2010.
- S. 545 / H.R. 1267 | Air Carrier Access Amendments Act of 2023, introduced on 28 February 2023, that would require (if passed) that “the Department of Transportation (DOT) must prescribe regulations setting minimum accessibility standards for new and existing aircraft, airport facilities, websites, and kiosks.”
Re-introducing 2016 “reg-neg” agreement
When taken together, and if passed into law, these bills would likely pave the way for DOT to re-introduce the accessibility requirements applicable to inflight entertainment that were agreed between the commercial aviation industry and the disability advocacy community in 2016 under a process called “negotiated regulation” or “reg-neg.”
Despite representing rare consensus between industry and disability advocacy, and almost a year of intense work, these proposed regulations were unfortunately tabled in 2017 without being enacted because of the policies of the incoming Trump Administration.
Agencies like DOT use two different methods of creating regulations. The most common method is the “NPRM” method whereby the agency drafts a proposed rule and then issues a “Notice of Proposed Rule-Making (NPRM)”, submitting the draft to stakeholders for comments before being enacted. [This method was deployed in 2006 in an IFE accessibility NPRM that was eventually withdrawn based on technical issues raised in APEX’s response in a White Paper drafted by Pierre Schuberth and me.]
The alternative method is called “negotiated regulation” — or “reg-neg” — in which stakeholders representing divergent interests sit across the table from one another and asked —with guidance from the agency, a facilitator and subject matter experts — to agree upon and recommend to the agency a proposed regulation acceptable to all parties.
The ACCESS Advisory Committee
In 2016, following multi-year efforts to regulate accessible IFE, DOT created a 26-member ACCESS Advisory Committee consisting of representatives of the aviation industry, disability advocates, and subject matter experts (SMEs). We engaged in a “reg-neg” exercise overseen by Prof. Richard Parker of the University of Connecticut School of Law as facilitator. I was one of the 26 members appointed by Transportation Secretary Anthony Foxx.
I was then appointed co-chair of the ACCESS Advisory IFE Working Group and was asked by Blane A. Workie, Assistant General Counsel for the Office of Aviation Consumer Protection, to draft the industry position. After doing so and providing the committee with a 37-page White Paper on the applicable technologies to support accessible IFE, I was designated as a “subject matter expert (SME)” and functioned in a more neutral capacity to seek consensus.
The ACCESS Committee members included:
- the advocacy community, including the National Association of the Deaf, the American Council of the Blind, and the National Federation of the Blind
- the Motion Picture Association of America (MPA)
- the National Center for Accessible Media (NCAM)
- Airbus, Boeing and Bombardier
- a flight attendants union
- subject matter experts
- and several airlines, including American, United, Delta, Lufthansa Group, JetBlue, Westjet, and Frontier.
The DOT ACCESS Advisory Committee met ten times in Washington DC between May and November 2016 before arriving at consensus and an outcome beneficial to industry and disability advocacy.
Federal Communications Commission (FCC) role in IFE regulation
Six years earlier, the 2010 CVAA, whose modernization is now being proposed as the “Communications, Video, and Technology Accessibility (CVTA) Act,” updated federal communications law to increase access of persons with disabilities to modern communications, including the Internet and portable devices. Among its provisions was a requirement that “video programming that is closed captioned on TV … be closed captioned when distributed on the Internet.”
This was later interpreted by FCC as covering any form of content delivery over “Internet Protocol Television (IPTV)” networks — which, in their interpretation, includes nearly all IFE systems.
CVAA also expanded the requirement for video programming equipment (“equipment that shows TV programs”) to be capable of displaying closed captions to devices with screens smaller than 13 inches, e.g., portable TVs, laptops, smartphones) and “requires these devices to be able to pass through audio descriptions and emergency information that is accessible to people who are blind or visually impaired, if technically feasible and achievable.”
CVAA provided that the FCC has regulatory enforcement authority over CVAA, which is extremely impactful on airlines. DOT only has authority to regulate transportation providers including airlines, not suppliers. But under authority of CVAA, FCC may designate an airline as a “video program distributor (VPD)” or a “multichannel video programmer (MVPD)” and assert its authority to regulate such an airline’s IFE.
On the other hand, if content providers are slow in providing closed captions and audio descriptions to airlines, the FCC — unlike DOT — has the ability to enforce CVAA on those content providers, authority which the DOT lacks. In 2016, both DOT and FCC assured me that FCC would work through DOT and not directly in the use of their authority under CVAA.
According to Deputy Bureau Chief, Consumer and Governmental Affairs Bureau Karen Peltz Strauss in a document provided to me, in the case of TV programming shown on aircraft, the FCC looks at: whether the programming is provided over the MVPD’s [multi-channel video programmer] network to determine whether the programming is covered by section 79.1, the TV captioning rule.
If the entity providing the programming intends for the programming to be distributed to residential households, the entity will meet the definition of a ‘video programmer’ and be covered by the captioning rules, even if the video programmer’s programming also reaches devices, such as tablets and other mobile devices, that can be used outside the home. For example, satellite-received IFE retransmitted to consumers may be covered under section 79.1, where the IFE operator is a VPD.
In the case of full-length video programming delivered using Internet protocol (IP), the Commission looks to Section 79.4, the IP captioning rule. This rule requires closed captions if the programming was published or exhibited on television in the United States with captions after the applicable compliance deadline. And it covers programming delivered via IP, even when the aircraft’s own private network is used.
Section 79.4 examples include: video-on-demand (VOD) systems or live-TV systems which may be covered if they distribute content to consumers via IP — i.e., from the server on the plane to the consumer’s personal electronics or seatback screen, when an IP network is used. VOD systems may also be considered to be delivered via IP if the content is transferred to the server in the aircraft via IP, but to consumers via another protocol (e.g., Firewire).
Section 79.4 IP, covering “Captioning and Responsible Parties”, stipulates that:
- “Video programming owners are responsible for captioning & sending program files with captions to VPDs.”
- “VPDs are required to enable the ‘rendering or pass through’ of all required captions to the end user.”
There is also an existing rule under CVAA applicable to IFE that requires the user interface provided by an ISP to comply with applicable criteria established by Web Content Accessibility Guidelines 2.0, level AA.
Unlike the 2016 reg-neg agreement, CVAA is currently in effect and applicable to airlines even if — for now — it may be only fitfully enforced. Passage of the Air Carrier Amendments Act of 2023 could result in more vigorous enforcement.
Opportunity for greater clarity
There were some ambiguities in the 2010 CVAA that have made it difficult for the FCC to be precise in its regulation. The new legislation provides an opportunity to clarify those issues.
One of the principal achievements of CVAA was applying the same accessibility standards required of television to the Internet and emerging platforms. But in 2023, broadcast television is the exhibition platform of choice by less than half of the American television audience. Broadcast television is a much later window than streaming — one such emerging platform — and is no longer the benchmark that should be used.
All direct-to-consumer (D2C) content is closed captioned and has a window of availability earlier than IFE, meaning that closed captions are available earlier in the supply chain than was the case in 2016. CVTA has the opportunity to specifically require VPDs to deliver to airlines the captions that are used in D2C.
Senator Markey’s original CVTA bill, introduced in November 2022 but since revised, expressly provided detailed requirements that aircraft flying in and out of the US provide closed captioning and audio descriptions. The July 2023 bill excluded much of that language but now appears to defer to the Air Access Amendments Act of 2023 introduced in February 2023, or to the original CVAA.
The Air Carrier Access Amendments Act of 2023 also does not detail the specific requirements of accessible IFE, but simply requires DOT to establish specific standards for same. This indicates to me that the lawmakers became aware that DOT has a draft of such requirements resulting from the 2016 reg-neg that was held back by Trump Administration policies and that simply requiring DOT to begin to formally regulate accessible IFE is all that is necessary to pull them out, dust them off, modernize them slightly and put them into effect.
As this new legislation seeks to modernize accessibility requirements, it is in the interests of both the airline community and advocacy community to preserve the 2016 agreement as ultimately a fair solution to both sides, and for APEX to work with DOT and FCC in fair implementation.
Michael Childers is a long-time content management consultant. While the opinions in this Op-Ed are his own, and not necessarily those of the entities with whom he consults, he has been Chief Consultant, Content and Media Strategy, for Lufthansa Systems since 2011, and has consulted to AERQ on the Strategy and Business Development Team since 2019. He also serves as chair of the Board of Advisors to ABOVE. He was Managing Director, Content and Media Strategy, for The IMS Company for three years, President and CEO of LightStream Communications Group for five years, and headed Swank Worldwide Entertainment for 12 years. He is only the second person to have received both the Outstanding Contribution Award and Lifetime Achievement Award from APEX.
He served on the APEX Board of Directors for eight years, and as chair of its Technology Committee for nearly ten years. He co-chaired the APEX Closed Caption Working Group that codified IMSC as the industry’s specification and chaired the APEX ACCESS Working Group that created guidelines for developers of an accessible user interface. He is APEX’s liaison to the Streaming Video Technology Association (SVTA) and a long-time member of the Society of Motion Picture and Television Engineers (SMPTE).
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