14 CFR Part 382 Nondiscrimination on the Basis of Disability in Air Travel (Air Carrier Access Act): Preamble and Section-by-Section Analysis (with amendments issued through July 2010)

In-Flight Audio and Video Services

We proposed in the DHH NPRM to broaden the existing requirements for accommodating individuals who are deaf and hard of hearing that apply to video displays on aircraft. First, we proposed to require U.S. and foreign carriers to caption all safety and informational videos on aircraft within set periods of time. The current rule, §382.47(b), only requires that U.S. carriers make safety briefings on the aircraft that are presented by video accessible to persons who are deaf or hard of hearing, and it exempts cases where open captioning or an inset would interfere with the video presentation so as to render it ineffective or if the captioning or inset would itself be unreadable. The proposed rule, applicable to foreign carriers as well, would eliminate the exemption, require high-contrast captioning of informational videos as well as safety videos, require compliance for safety videos within 180 days of the rule’s effective date, and require compliance for informational videos within an additional 60 days. Until the new rule’s compliance dates, U.S. carriers would remain bound by the provisions of the existing rule. We solicited comment on the elimination of the exemption clause, on extending the captioning requirement to informational displays, and on the technical feasibility of captioning all safety and informational videos, DVDs, and other audiovisual displays in such a way that they will still be useful to individuals without hearing disabilities. We also solicited comment on the proposed timetable.

Second, we proposed to require U.S. and foreign carriers to provide high-contrast captioning on entertainment videos, DVDs, and other audio-visual displays on new aircraft, or aircraft ordered after the rule’s effective date or delivered more than two years after that date. Aircraft on which the audio-visual machinery is replaced after that date would also be considered new for purposes of §382.69. We did not propose requiring the captioning of entertainment videos on existing aircraft, believing that the costs of such a requirement would exceed the benefits that would follow. We solicited comment on the costs and feasibility of both modifying and replacing equipment on existing aircraft and complying with the proposed rule with new aircraft.

The carriers and carrier groups that filed comments generally objected to the proposals. RAA opposes requiring videos on existing aircraft to be captioned, contending that the costs of modification would greatly exceed any potential benefits. One foreign carrier contended that this provision should not apply to foreign carriers. Some faulted the Department for not distinguishing between English and non-English products and maintained that the latter should be excluded from any captioning requirement. Some carriers argued that the exact content of any safety briefing provided by video can always be found in print in each seat pocket and maintain that the content of informational videos can be found in print both in seat pockets and elsewhere in the cabin. Most if not all carriers and carrier groups objected to allowing less time for compliance with the safety-video requirement than with the requirement for informational videos; some maintained that rather than a specific deadline, carriers should be permitted to comply if and when they replace video equipment in the normal course of operating the aircraft. Some claimed to have no control over the content of informational videos provided by third parties. Some opposed the requirement that captioning be high-contrast—i.e., white letters on a consistent black background. Several commenters called for retention of the current rule’s exemption for captioning a safety video when the captioning or inset would render the video ineffective.

All of the carriers and carrier groups opposed requiring captioning for all in-flight entertainment, advancing several arguments: with existing technology, the costs and difficulties of compliance are prohibitive; for overhead screens, the size of captioning relative to the size of the screen would degrade the entertainment value of the video presentation for all passengers; on individual seat screens, current technology and cost do not permit the installation of systems that would let individual passengers choose whether to caption individual programs; captioning of all entertainment videos, regardless of what type of screen the aircraft features, is too costly and would increase the price of air transportation; in-flight entertainment is beyond the Department’s jurisdiction to regulate, as it does not come within the purview of access to air transportation; film owners’ restrictions on DVDs could make compliance impractical to impossible; in some cases, government censorship could make compliance illegal; the proposal does not specify whether or not captioning would be required in languages other than English, which would increase the costs and difficulties of complying. Many carriers endorsed the comments of the World Airline Entertainment Association (“WAEA”), which are summarized below, and many called for inclusion in any provision adopted of an exemption like the one in the current rule for safety videos—i.e., for cases where captioning would interfere with the video presentation so as to render it ineffective or if the captioning would itself be unreadable.

The individuals and disability organizations that filed comments unanimously supported the proposed rule except insofar as they believed the compliance dates to be too far in the future. None of these commenters addressed the costs or difficulties of achieving compliance.

The WGBH Educational Foundation’s National Center for Accessible Media (“the Center”), which reported that it is conducting a study on ways of making airline travel more accessible to passengers with sensory disabilities, filed comments on this proposal. The Center maintained that all safety videos are already being captioned and that pre-recorded informational videos are readily captionable, thus making the existing exemption unnecessary. It maintained that due to current technologies, the rule need not specify white letters on a black background to ensure that captions can be read, and given the number of production techniques available, a requirement that displayed text be “legible” or “readable” should suffice. The Center stated that the next generation of in-flight entertainment (“IFE”) systems can be designed to accommodate captioning in various ways and that it is advances in these systems, not new aircraft, that will make captions readily available. It therefore recommended that the rule be tied to changes in IFE systems and not the purchase or modification of aircraft. Further, the Center reported that captioning on next-generation IFE systems is a work in progress based on new means of sending video signals through the aircraft cabin. Caption data for broadcast and cable television, it stated, are incompatible with the digital signals being routed to seat screens in the newest IFE systems, and while the transformation of these data for use on in-flight systems can be developed, the process is not yet automatic, nor is it trivial. A further complication, according to the Center, lies in the variety in types of video signals being provided in-flight. The Center stated that despite the small size of seat screens, properly rendered captions can be as effective on these screens as they are on home television sets. It reported that the portable IFE systems that some carriers use as alternatives to installed systems—for example, DVD players or hard disks—can accommodate closed captions as readily as installed systems can.

As mentioned above, the comments filed by WAEA were endorsed by many of the carriers. WAEA stated that its members include both airlines and suppliers to the IFE industry, the latter including aircraft manufacturers, major electronics manufacturers, motion picture studios, audio/video postproduction labs, broadcast networks, licensing bodies, communications providers, and others, worldwide. WAEA took the position that some of the proposed captioning requirements and implementation timelines would impose undue and unacceptable financial burdens on the carriers and that some of the requirements are not even technologically or operationally feasible given the following: technical limitations of both old and new IFE systems, variations among proprietary IFE systems currently in service and being installed, limited space for and readability of captioning on both seat screens and on more distant communal screens, the intrusion factor of open captions for passengers without a sensory disability, limited cabin-server storage for additional captioned video files to complement up to eight languages offered onboard, and lengthy aircraft retrofit and fleet order cycles and IFE system design and certification timelines.

Among other things, WAEA agreed with the Center that the implementation of the proposed new requirements should be tied to IFE system development and not the aircraft. Given the limitations of video files that may be available on the aircraft, WAEA contended that the rule should apply only to English-language videos and only to entertainment videos exhibited “while in United States territory.” WAEA reported that current IFE systems are typically based on proprietary rather than standard architectures and technologies and that they were not designed to accommodate broadcast closed-captioning signals and technologies. Given the limitations of IFE screens in terms of their size and distance from the viewer, WAEA opposed the requirement that captioning be white letters on a black background and supported instead the choice of using the same process as subtitling, which, it said, provides readable characters while keeping most of the picture visible and poses fewer risks of copyright infringement.

Based on the comments, we have made several changes to the final rule. We are retaining the requirement that safety and informational audio-visual displays played on the aircraft be high-contrast captioned, but we have revised the definition of that term to permit the use of captioning that is at least as easy to read as white letters on a consistent black background. The requirement will not apply, however, to informational videos that were not created under the carrier’s control. The captioning need only be in the predominant language or languages in which the carrier communicates with passengers on the flight. If the carrier makes announcements both in English and another language, captions must be in both languages. We are retaining the compliance dates set forth in the DHH NPRM, based among other things on the Center’s report that all safety videos are already being captioned and that pre-recorded informational videos can be captioned readily. This report also undercuts the carriers’ arguments for retaining the current rule’s exemption for cases in which captioning would interfere with the video presentation so as to render it ineffective or would itself be unreadable.

We have reluctantly concluded, though, that we cannot adopt a regulation governing entertainment displays at this time. We reject the contention that access to in-flight entertainment falls outside the scope of the Air Carrier Access Act of 1986, as amended, and that we therefore have no authority to regulate IFE. Remedial statutes such as the ACAA are properly construed broadly, for the benefit of the protected class, as we have consistently done via Part 382. (See, e.g., §382.1 and §382.11-13 [formerly §382.7].) No party challenging our jurisdiction over IFE has provided any support for its position.

Notwithstanding our authority to regulate, however, the record in this proceeding does not provide a basis for adopting a captioning requirement for IFE at present. We cannot conclude on the basis of the comments that providing high-contrast captioning for entertainment displays is technically and economically feasible now, nor can we ascertain a date by which it most likely will be. Therefore, we will shortly be issuing an SNPRM to call for more current and more complete information on the cost and feasibility of providing high-contrast captioning for entertainment displays, information not only on current technology but also on the nature and pace of technological developments. Regarding the latter, we are aware that on March 6, 2007, after the conclusion of the period for commenting on the DHH NPRM, WAEA’s Board of Directors adopted a new specification as part of an ongoing effort to establish a standard digital content delivery system for IFE. This new specification reflects progress toward development of a common methodology for delivering digital content and greater interoperability for in-flight entertainment systems.