Articles Posted in Closed Captioning

In a decision that may cause a fair amount of chaos for program producers, television stations, and cable systems, the FCC yesterday released an Order overturning 298 previously granted closed captioning waivers. According to the Order, the FCC granted only three temporary waivers in the period between 1996, when the captioning requirement was created by Congress, and 2005. However, in 2006, the FCC suddenly granted 303 permanent waivers of the captioning requirement. While the Order indicates that the FCC has received an additional 500 waiver requests since that time, it does not indicate whether any of these later requests have been acted on. It therefore appears that the 298 captioning waivers that were overturned represent the great majority of all outstanding waivers.

Of the 303 waivers granted in 2006, 298 were challenged by a consortium of organizations representing the deaf and hard of hearing. Those appeals had been pending at the FCC for just over five years. During that time, Congress modified the captioning requirements in the Communications Act when it adopted the 21st Century Communications and Video Accessibility Act of 2010 (the “CVAA”). The three significant captioning changes made by the CVAA are (1) the change of the term “undue burden” as the standard for captioning waivers to the term “economically burdensome”, (2) the imposition of a six month time limit (with exceptions) for the FCC to process captioning waiver requests, and (3) the codification in the statute of the FCC’s current practice of considering programming exempt from captioning while a waiver request is pending.

It appears that the need to modify its rules to incorporate these changes refocused the FCC’s attention on the outstanding waiver appeals, leading to the sudden action on the appeals after five years. Ultimately, the FCC concluded that the waivers should not have been granted, as they improperly relied on (1) the noncommercial nature/lack of remunerative value of the programming, (2) the program producers’ nonprofit status, (3) the presumption that waivers would be granted where “the provision of closed captions would curtail other activities important to [the producers’] mission”, (4) the grant of permanent waivers where temporary waivers would be more appropriate, and (5) the failure of the waiver grants “to consider whether petitioners solicited captioning assistance from their video programming distributors.”

This last factor is particular important for TV stations and cable systems. The FCC formally announced in the Order that because these program distributors are the parties actually responsible for ensuring that programming is captioned, “soliciting funds from these responsible entities is necessary to meeting one’s captioning obligations, and … evidence of such solicitation is required before a petitioner may qualify for a captioning exemption.” As a result, these local programming outlets can expect to be solicited by program producers in a very formal way for the funds necessary to caption their programming.

The Order lists the waiver recipients whose waivers have been revoked, and requires that they either file a new request for a waiver by January 18, 2012, or be in compliance with the FCC’s closed captioning rules by January 19, 2012. Those filing a new waiver request will be required to submit current documentation demonstrating that providing closed captions would be economically burdensome given (1) the nature and cost of the closed captioning difficulty/expense, (2) the impact on the operation of the program provider/owner, (3) the financial resources of the program provider/owner, and (4) the type of operations of the program provider/owner, as well as any other factors the petitioner thinks relevant to the request (including alternatives proposed by the petitioner as a reasonable substitute for closed captioning).

It doesn’t take much reading between the lines of the Order to conclude that closed captioning waivers are going to be much more difficult to obtain in the future. Given that 100% of English and Spanish broadcast TV programming must now be captioned (unless it falls into one of the FCC’s categorical exemptions), the FCC’s decision may impose significant hardship on many program producers and the TV stations that carry their programming. At a minimum, the producers whose waivers have been revoked will need to go through the waiver request process again. If their request is not granted, then they, along with program producers who cannot make the necessary waiver showing, will need to begin captioning their programming or cease production and/or distribution of that programming to media outlets governed by the FCC’s captioning rules.

Finally, because of the captioning changes made by the CVAA referenced above, yesterday’s Order also includes a Notice of Proposed Rulemaking in which the FCC seeks comments on how to interpret Congress’s change of the waiver standard language from “undue burden” to “economically burdensome.” The FCC indicates that its tentative conclusion is that Congress did not intend the language change to have a substantive effect upon waiver requests, particularly given that other language in the Communications Act relating to captioning waivers was not changed by the CVAA. The FCC’s request for comments focuses on whether this tentative conclusion is accurate. Those program producers whose waivers were revoked will want to consider submitting comments in this rulemaking, as it will likely end up determining the standard by which any new waiver requests will be judged.

In a Public Notice released yesterday, the Consumer & Governmental Affairs Bureau of the FCC established new comment dates to refresh the record on several closed captioning issues first raised in proceedings initiated in 2005 and 2008. Comments are due November 24, 2010, with reply comments due December 9, 2010.

2005 Closed Captioning Notice of Proposed Rulemaking (“2005 NPRM”)

First, the FCC is seeking to refresh the record on several items that were raised in its 2005 NPRM that remain outstanding. Specifically, it is asking for additional comments on whether the FCC should establish “quality” standards for non-technical portions of the captioning rules. Such standards would be aimed at ensuring the accuracy of the captions themselves. In this regard, the FCC would like comments on what the adoption of such standards would cost to programmers and distributors, whether there are enough competent captioners to meet the demand, and whether different captioning quality standards should apply to live and pre-recorded programming.

Second, the FCC seeks to refresh the record regarding the need for new rules that go beyond the current “pass through” rule. The “pass through” rule requires video programming distributors to deliver all programming containing closed captioning with the original closed captioning data intact in a format that can be displayed by decoders meeting the standards of Part 15 of the FCC’s Rules. According to the Public Notice, the FCC is looking for ways to prevent technical problems in the delivery of captions and to remedy technical problems quickly when they do occur.

With respect to violations of the captioning requirements, the FCC seeks comments on whether to establish specific “per violation” forfeiture amounts, and if so, what those amounts should be. The FCC is also seeking comments on whether video programming distributors should be required to file periodic captioning compliance reports.

The 2005 NPRM also discussed the continued use of electronic newsroom technique (ENT), in which the closed captioning text is fed directly from a station’s teleprompter. Because this captioning technique does not provide captions for unscripted segments, the current rule limits its use to stations that are not affiliated with ABC, CBS, NBC, or Fox, or which are located outside the top 25 markets. Nonbroadcast networks serving at least 50% of cable/satellite households are also prohibited from relying on ENT. The FCC is asking whether the use of ENT for captioning should be further restricted by, for example, expanding the prohibition to stations outside the top 25 markets.

The FCC is also seeking comments on whether it should mandate that petitions for exemption from the closed captioning requirements be filed electronically.

2008 Closed Captioning Notice of Proposed Rulemaking (“2008 NPRM”)

With respect to the 2008 NPRM, the FCC is asking for comments to refresh the record on how the captioning exemption for “channels” producing revenues of less than $3 million should apply to digital multicasting. In 2008, the FCC asked whether each programming stream in a multicast signal should constitute a separate “channel,” or whether the broadcaster’s primary and multicast streams should be considered a single channel for purposes of determining whether they exceed the $3 million exemption limit. The FCC wishes to update the record, and is asking for comments on the ramifications of ruling that each multicast stream is a separate channel.

As noted above, comments on these proposals are due November 24, 2010, and reply comments are due December 9, 2010. Please contact any of the lawyers in the Communications Practice Section for assistance in the preparation and filing of comments or reply comments.

Video Programming Distributors Must Notify FCC by March 22, 2010 of Certain Contact Information and Begin Compliance with Telephone Directory Listing Requirements.

Earlier this week, we advised you of a recent Commission action which could affect video programming distributors’ obligations under closed captioning complaint rules that the Commission adopted in November 2008 but which had not yet become effective. As we predicted, those Commission actions were a prelude to the rules becoming effective, which occurred with their publication today in the Federal Register. Accordingly, effective today, February 19, 2010, new timeframes governing when a video programming distributor must respond to a complaint regarding closed captioning are in effect. In addition, video programming distributors must now comply with the provisions requiring them to provide contact information for addressing closed captioning complaints to the FCC and the public.

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In response to a petition for clarification filed by DISH Network, L.L.C. (“DISH”), the FCC has issued a “limited waiver” of its requirement that video programming distributors, including television stations, publish two types of information in local telephone directories–contact information for the receipt and handling of immediate closed captioning concerns, and contact information for the receipt and handling of written closed captioning complaints.

The FCC acknowledged that its telephone directory requirement would essentially force a video programming distributor operating on a nationwide basis (like DISH) to contract with local telephone directory publishers nationwide. However, the FCC did not limit the waiver to DISH or those engaged in national program distribution. As a result, local or regional entities, including local broadcast stations, may be eligible to benefit from this waiver as well, thereby avoiding the additional costs of extensive local telephone directory listings. To take advantage of this limited waiver, however, you must not currently have “contracted for” an advertisement or other paid listing in the telephone directory.

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