FCC’s New Video Captioning Rules Go Online

The FCC’s July 11, 2014 Order, concluding that clips of video programming shown by broadcasters are required to be captioned when delivered on the Internet, was published in the Federal Register this week. The rule specifically applies when a provider posts a video clip or video programming online that was first aired on television (“covered” Internet Protocol (IP) video). The FCC ultimately plans to expand its Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) captioning rules to cover all forms of video programming on the Internet.

As I have discussed many times previously, the FCC requires that certain video programming delivered online by television stations be captioned if that programming previously aired on television with captions. Some of my recent posts on the subject can be found at the following links: “FCC Seeks Greater Clarity on IP Video Captioning Rules”, “Second Online Captioning Deadline Arrives March 30”, and “First Online Video Closed Captioning Deadline Is Here”.

More recently, I noted that the FCC sought comment on information regarding whether it should remove the “video clip” exemption from its rules. The FCC’s final answer was “yes”. The rules will apply to video clips regardless of their content or length.

According to the FCC, the new rules are intended to accomplish the following:

• Extend the IP closed captioning requirements to IP-delivered video clips if the video programming distributor or provider posts on its Web site or application a video clip of video programming that it published or exhibited on television in the United States with captions;
• Establish a schedule of deadlines for purposes of the IP closed captioning requirements;
• After the applicable deadlines, require IP-delivered video clips to be provided with closed captions at the time the clips are posted online, except as otherwise provided;
• Find that compliance with the new requirements would be economically burdensome for video clips that are in the video programming distributor’s or provider’s online library before January 1, 2016 for “straight lift clips”, and January 1, 2017 for “montages”; and
• Apply the IP closed captioning requirements to video clips in the same manner that they apply to full-length video programming, which among other things means that the quality requirements applicable to full-length IP-delivered video programming will apply to video clips.

In its Order, the FCC also established the following set of deadlines for providing captions based on the type of video clip shown:

• January 1, 2016: for “straight lift” clips, which include a “single excerpt of a captioned television program with the same video and audio that was presented on television”;
• January 1, 2017: for “montages”, which are defined as a single file containing “multiple straight lift clips”; and
• July 1, 2017: for “video clips of live and near-live television programming, such as news or sporting events”, keeping in mind that there is a “grace period” of twelve hours to caption “live video programming” and eight hours to caption “near-live programming.”

As part of the item, the FCC also issued a Second Further Notice of Proposed Rulemaking, which proposes to extend the reach of the FCC’s captioning rules even further. Among other things, the Further Notice is specifically asking for comment regarding whether: (1) third party video programming providers and distributors should be subject to the closed captioning requirements; (2) the FCC should decrease or eliminate the “grace periods” for “live” and “near-live” programming; (3) application of the IP closed captioning requirements should be extended to “mash-ups”, which the FCC defines as files that “contain a combination of video clips that have been shown on television with captions and online-only content”; and (4) application of the IP closed captioning rules to “advance” video clips “that are first added to the video programming distributor’s or provider’s library on or after January 1, 2016 for straight lift clips or January 1, 2017 for montages, but before the associated video programming is shown on television with captions, and which then remain online in the distributor’s or provider’s library after being shown on television.”

Comments on the Further Notice are due October 6, 2014, and reply comments are due November 3, 2014.

As is often the case, the new closed captioning rules adopted by the FCC are complex and parties should make sure that they remain up to speed with the rapid pace of the ever evolving rules in this area. The Order and Further Notice demonstrate that the FCC appears far from satisfied with the many new closed captioning rules that it has already adopted in recent years and that there will undoubtedly be additional rules to deal with in the not too distant future.