New Closed Captioning Rules Take Effect Monday, March 16

As Pillsbury’s 2015 Broadcasters’ Calendar indicates, new rules relating to closed captioning go into effect on March 16, 2015. The FCC adopted these rules in its February 24, 2014 Closed Captioning Quality Order . They generally concern a station’s “quality control” over its program captioning.

As a quick refresher, the Order adopted closed caption quality standards and technical compliance rules to ensure video programming is fully accessible to individuals who are deaf or hard of hearing. In April 2014, the FCC announced a series of effective dates for the requirements in the Order, and in December 2014, it extended a January 15, 2015 deadline for compliance with certain rules to March 16, 2015. The requirements that will go into effect on March 16, 2015 include:

Section 79.1(c)(3): Recordkeeping Requirement:

TV stations are required to pass through captions in already captioned programs. Under the recently adopted Section 79.1(c)(2) (which is already in effect), stations have to monitor for closed captioning and maintain their equipment and transmissions associated with distribution of closed captioning. Section 79.1(c)(3) will require broadcasters to maintain, for two years, records of their monitoring and maintenance activities. At a minimum, these records must include information about the station’s closed captioning monitoring and transmissions (to ensure the pass through of closed captioning to viewers), as well as information about technical equipment checks and other maintenance activities to ensure closed captioning equipment is kept in good working order.

Section 79.1(e)(11)(iii)-(v): ENT Compliance Procedures and Progress Report:

Under Section 79.1(e)(11)(iii), the FCC will forward informal complaints relating to closed captioning to a broadcast station that uses Electronic Newsroom Technique (ENT) only if the complaint contains (i) the TV channel number, network, or call sign of the station, (ii) the name of the affected program; and (iii) a detailed and specific description of the captioning problem, including the frequency and type of problem.

Section 79.1(e)(11)(iv) establishes procedures for broadcasters to respond to an FCC letter identifying a trend of captioning non-compliance. First, if the FCC notifies a station that it has identified “a pattern or trend of possible non-compliance” in the station’s use of ENT, the station will be required to submit to the FCC within 30 days a description of corrective measures taken, including those taken in response to informal complaints. If the FCC later notifies the station that there is further evidence indicating a pattern or trend of noncompliance, the station must submit, within 30 days of that subsequent notification, an “action plan” describing specific measures the station will take to come into compliance with ENT captioning rules. The station will also be required to conduct spot checks of its ENT performance and report to the FCC the results of its action plan and spot checks within 180 days of submitting the plan. If, after submission of that report, the FCC continues to find evidence of noncompliance, it may take additional enforcement action including issuing admonishments or fines, or requiring the station to cease using ENT and instead use real-time captioning for live programming.

Lastly, Section 79.1(e)(11)(v) requires that a station using ENT to provide closed captioning for live programming (or programming originally transmitted live) prepare and submit to the FCC, in consultation with people who rely on captions, a report on its experiences with following ENT procedures. The report must also identify the extent to which the station has been successful in providing full and equal access to live programming. Stations must submit these reports no later than June 30, 2015.

Section 79.1(j): Captioning Quality Standards:

Under Section 79.1(j)(1), broadcasters will be required to use “best efforts” to obtain a captioning certification from each video programmer from which the station receives programming. The certification must state:

• That the programming satisfies the caption quality standards set forth in § 79.1(j)(2);
• That in the ordinary course of business, the video programmer has adopted and follows the Best Practices in § 79.1(k)(1); or
• The video programmer is exempt from the closed captioning rules under one or more properly obtained exemptions. In this circumstance, the station must obtain a certification from the programmer identifying the exact exemption the programmer is claiming.

Stations will be able to satisfy their “best efforts” obligation by finding a programmer’s certification on the programmer’s website or other widely available location. If the station is unable to locate this certification, the station should notify the programmer in writing that the programmer must make the certification widely available within 30 days after receiving the station’s request. If the programmer fails to do this, the station must promptly submit a report to the FCC identifying the non-certifying programmer.

Stations that comply with these certification requirements will not be held liable for violations of Section 79.1(j)(2) (establishing captioning quality standards relating to (i) accuracy, (ii) synchronicity, (iii) completeness, and (iv) placement) or Section 79.1(j)(3) (concerning application of the caption quality standards) to the extent that such violations are outside the control of the station.

Section 79.1(k) “Captioning Best Practices”:

Finally, Section 79.1(k) sets forth “Captioning Best Practices” guidelines intended to improve captioning quality. For example, video programmers can provide captioning vendors with advance access to show scripts, proper names, and song lyrics to make it easier to caption live programs. More “best practices” are outlined in 79.1(k)(1) (for video programmers), 79.1(k)(2) (for real-time captioning vendors), and 79.1(k)(3) (for real-time captioners).

As is often the case, broadcasters are likely to be more attuned to these requirements than their program providers, so March 16 will mark the beginning of an educational effort by broadcasters to ensure that program providers are providing the required captioning certifications. In this regard, stations need to be proactive in spreading the message, or they will find themselves chasing down non-existent captioning certifications later.