Closed Captioning Backtrack
Apparently the FCC misspoke when it emphatically stated on July 20, 2006, that “critical details of emergency information must be closed captioned” (emphasis in the original) by stations that cannot use the electronic newsroom technique to caption their news live programs. (See our July 20th blog below for further details.) Upon further reflection, the Commission has revised its stance, and now recognizes the potential problem with requiring stations to live-caption all emergency information - if live-captioning resources are not available when the emergency news breaks, it could force a television station to choose between not providing emergency information or covering the news anyway but breaking the FCC’s closed captioning rules.
Under the Commission’s closed captioning rules, the major national networks (i.e. ABC, CBS, Fox, and NBC) and affiliates of those networks in the top 25 markets cannot avail themselves of the electronic newsroom technique (basically using the teleprompter script to create captions) to caption live programs or repeats of programs originally broadcast live. Also, the rules now require these stations to caption 100% of their new programming. Accordingly, the Commission concluded in July that these stations would have to live-caption any breaking emergency information. For all other stations, the requirement is simply that the critical details of of the emergency information must simply be presented by any visual method. Unlike the closed captioning rules, the emergency captioning rules permit the critical details of safety of life information to be displayed visually using closed captions, open captions, slides, crawls, chalk boards, or any other visual method available. The flexibility of the emergency captioning rules is meant to ensure that stations provide the critical details of emergency information in some visual medium so that the hearing impaired can read it on the screen at the same time that the announcer is presenting that information aurally.
The Commission has now realized that “in emergency situations it may not be feasible for video programmers on short notice to secure captioning resources and immediately provide closed captioning.” (A copy of the FCC’s complete Public Notice is available here.) The FCC’s Public Notice further clarified that “in evaluating whether a video programmer has complied with our closed captioning rules, we will not consider any lack of closed captioning that results from a de minimis or reasonable failure to caption emergency information, so long as critical emergency information is provided through some method of visual presentation.” What exactly constitutes a reasonable failure or a de minimis amount of programming will be left to the station’s good faith determination, which the FCC vows not to second guess. Accordingly, if, for example, a hurricane makes it impossible for a station to get someone into the studio to input the live captions for a day or two, presumably this will be considered de minimis or reasonable, and will be overlooked. Again, however, stations must remember that they remain obligated to provide emergency information visually in some manner.