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As we reported last week, the FCC has adopted a Report and Order establishing rules for the closed captioning of video programming delivered via Internet protocol (i.e., IP video), as required by the 21st Century Communications and Video Accessibility Act (CVAA). DWT has now released an advisory with further details about the new rules, which is available here. The new rules govern TV stations, cable systems, broadcast and cable networks and virtually every other professional video program producer who is now, or will be in the future, making programming available online. The rules also impose new requirements on hardware (such as set-top boxes, PCs, smartphones DVD players, Blu-ray and tablets) designed to receive or play back video programming transmitted simultaneously with sound and integrated software.

With rules that are so wide-reaching, everyone involved in these businesses needs to understand what the new rules entail.  A summary of the Commission's Order follows below, and please see our advisory for complete details about the new rules. Consistent with CVAA's mandate, the FCC has adopted rules that:

• Extend to all full-length video programming previously distributed on television with captions to require that captioning appears when such programming is displayed online via IP;
• Establish a two-year transition for uncaptioned, archival IP-delivered content that is shown on TV with captions after the new rules’ effective date;
• Require video programming owners to send caption files for covered IP video to video programming distributors and video programming providers along with the program files, or alternatively, inform the distributors–using a mechanism agreed to by the parties–that captions are not required for a particular program;
• Require video programming distributors and video programming providers to enable the rendering or pass-through of all required captions to the end user;
• Require captioning of covered IP video to be of at least the same quality as the captioning that the programming had when it appeared on TV;
• Establish deadlines by which categories of covered IP video must be captioned, as follows:
  • Programming that is prerecorded and unedited for online distribution, when subject to the new requirements, must be captioned within 6 months of the rules’ effective date;
  • Programming that is aired live or “near-live” on TV, when subject to the new requirements, must be captioned within 12 months of the rules’ effective date;
  • Programming that is prerecorded and edited for online distribution, when subject to the new requirements, must be captioned within 18 months of the rules’ effective date;
• Adopt the Society of Motion Picture and Television Engineers (SMPTE) Timed Text format (SMPTE ST 2052-1:2010: “Time Text Format (SMPTE-TT)” 2010 as a safe-harbor interchange and delivery format, but stop short of requiring all covered entities to use this standard;
• Decline to adopt categorical exemptions other than that mandated by the CVAA (i.e., consumer generated programming. which is statutorily exempt);
• Establish procedures by which video programming providers and video programming owners may petition for exemptions from the new requirements based on economic burden;
• Accommodate de minimis failures to comply with the new captioning obligations;
• Adopt procedures for complaints alleging violations of the new rules;
• Decline to adopt specific forfeiture amounts, opting instead to penalize violations based upon the facts and circumstances of each case;
• Permit entities to comply with the new requirements by alternate means; and
• Impose requirements for devices subject to the closed captioning requirements.

Given the scope of the new rules, there will undoubtedly be questions and requests for clarification that arise along the way.  We wll continue to track these new rules and provide further updates on this important issue. 

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Yesterday, the FCC released an Order that reversed a five-year-old decision by its Consumer and Governmental Affairs Bureau (“CGB” or “Bureau”) that had granted certain video programmers “undue burden” exemptions from the FCC’s closed captioning rules. The reversed Bureau decision had changed the criteria for undue burden exemptions and permanently exempted two video programmers from compliance with the closed captioning rules on the basis of the new criteria. Finding that the Bureau’s new criteria deviated from both the statute and FCC precedent, the Commission overturned the decision, reversed 296 subsequent exemptions that had been granted by the Bureau in reliance thereon, and reinstated the original criteria for captioning exemptions. DWT has just released an advisory that provides more detail about the Commission’s decision, which can be found here. In addition, a copy of the Commission’s Order can be found here.

In overturning the undue burden exemptions CGB approved in 2006, the Commission found numerous faults with both the Bureau’s initial decision and its handling of hundreds of subsequent petitions seeking similar exemptions. Although undue burden exemptions were to be reviewed by the Commission on a case-by-case basis after opportunity for public comment and were to consider four factors: (1) the nature and cost of the closed captions for the programming; (2) the impact on the operation of the provider or program owner; (3) the financial resources of the provider or program owner; and (4) the type of operations of the provider or program owner, the Bureau deviated from previous Commission decisions by expanding the scope of the factors considered.  In particular, its decision relied primarily on the non-profit status of programming providers and that the programming was not produced for primarily commercial purposes.  Further, the Bureau found captioning programs would constitute a “significant hardship” and that there was a significant risk that mandating captioning would cause the video programming provider to cancel the programming.
 

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As our colleague Brian Hurh wrote today on our sister blog, www.broadbandlawadvisor.com, the Video Programming Accessibility Advisory Committee has released its Report to the FCC on the closed captioning of IP-video programming as required by the 21st Century Communications and Video Accessibility Act passed last October.  A copy of the report released today is available here.  As we explained earlier here, the Accessibility Act directed the Commission to enact rules that would require that once a television program is published or exhibited on television with closed captions, any subsequent distribution of that programming on the Internet must include closed captions.

The Accessibility Act requires that the FCC revise its closed captioning rules within 6 months of the Committee's report, thus, new FCC closed captioning rules must be in place no later than January 13, 2012.  (The report is dated July 13, 2011, though it appears to have been released July 11.)  The report proposes the following compliance schedule based on the date the FCC's revised rules are published in the Federal Register:

• Within 6 months: programming that has been prerecorded and unedited for Internet distribution;
• Within 12 months: live and near-live programming
• Within 18 months: programming that has been prerecorded and substantially edited for Internet distribution.

In addition, the report sets forth the Committee's recommendations for performance objectives, technical requirements, and technical capabilities and procedures related to closed captioning on the Internet.   The report also contains a discussion on new technological developments such as emerging protocols and other innovations that may affect the delivery of Internet closed captioning in the future.

While today's Report makes certain recommendations, it is up to the Commission to now act expeditiously in order to commence a rule making proceeding, solicit comments, and actually promulgate new rules regarding captioning of video over IP.  The Advisory Committee's report is an important (and necessary) step towards captioning rules for certain types of Internet video, and we will continue to follow the Commission's actions in this area.

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As summarized by Brian Hurh on our sister site broadbandlawadvisor.com, yesterday the FCC's Consumer and Government Affairs Bureau released a Public Notice seeking comments to refresh the record on closed captioning that was last addressed in the Commission's 2005 and 2008 Closed Captioning NPRMs. As recognized by the Commission, much has happened since those proceedings, both technologically and regulatory. As directed by the recently enacted 21st Century Communications and Video Accessibility Act (which we blogged about earlier here, and discussed in DWT's Advisory here), the FCC's rules must be revised to extend closed captioning to the Internet within 6 months of the Advisory Committee's report on closed captioning, which must be released by October 2011. As we noted earlier, the Advisory Committee must be formed by December 8, and hold its first meeting by April 2011.

The revised closed captioning rules will necessarily require a new closed captioning rule making proceeding, and presumably, the Commission is gathering information now to determine what the forthcoming rule making proceeding will look like. Some of the issues that the Commission seeks to refresh include:

• Whether to establish quality standards for non-technical aspects of closed captioning, including whether different quality standards should apply to live and pre-recorded programming;
• The need for mechanisms and procedures over and above the "pass through" rule, and whether there should be a per violation forfeiture amount for non-compliance;
• Whether the FCC should revise its rules to disallow the use of electronic newsroom technique for certain DMAs;
• How the section 79.1(d)(12) exemption for channels producing revenues of less than $3 million should apply to digital mulitcast, specifically, the ramifications of treating each multicast stream as a separate channel for purposes of the exemption.

Comments are due November 24.  Reply comments are due December 9.  Comments can be submitted to the FCC in paper, or electronically via the FCC's Electronic Comment Filing System. 

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So it seems like we have been posting about Closed Captioning issues at least once a month recently, and this month is no exception as word comes now that the FCC is expecting to ratchet up enforcement of its closed captioning rules as it has now become easier for consumers to file complaints directly to the FCC.  Today, the FCC released a Public Notice aimed at informing consumers of just how easy it is to file complaints with the FCC regarding closed captioning.  The Notice also instructs viewers on how they can find contact information for video programming providers in order to contact satellite providers, cable systems, and broadcast television stations directly with any issues they may have.  Today's Public Notice, a copy of which is available here, is specifically aimed at viewers and touts that:  "The simplified complaint rules make it easier for consumers to bring their concerns about closed captions on television to the attention of the Commission." 

Today's notice comes on the heels of public statements made earlier this week about the fact that the FCC intends to ramp up its enforcement of the captioning rules.  According to trade press reports, the Deputy Chief of the FCC's Consumer and Governmental Affairs Bureau believes that the DTV transition has resulted in an increased number of captioning issues, and that the FCC expects to step up enforcement in this area to respond to the growing number of complaints.  So television stations, cable operators, and satellite television providers are on notice that the FCC is paying close attention to closed captioning issues.  Video programming providers should be vigilant to ensure that they are complying with the rules and that they respond promptly and thoroughly to any inquiry or complaint from either a viewer or the FCC.  Further details about the recent changes to the closed captioning complaint rules can be found in our earlier post here.   

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The FCC today issued a further Public Notice reminding all Video Programming Distributors (VPDs)-- including those who might otherwise be exempt from some elements of the closed captioning rules -- to register their contact information with the FCC.  All VPDs, including television stations, should have already identified appropriate contact people within their organizations and filed their contact information with the FCC.  Although that info was due to the FCC by March 22, 2010, today's Public Notice, available here, indicates that many folks still have not yet complied with the new rules.  Accordingly, the FCC is seeking to increase compliance by reminding VPDs of this obligation and encouraging distributors to register their contact belatedly.  All television stations and other VPDs should ensure that they have taken the necessary steps and registered their contact information with the FCC.  While the FCC has exercised its discretion thus far and issued a reminder instead of simply cracking down and commencing enforcement proceedings, video programming distributors are now on notice.  And the next actions by the Commission with regard to this new rule will undoubtedly be more aggressive and could possibly involve enforcement actions.

As we've discussed previously, a new FCC closed captioning rule recently went into effect that requires video programming distributors to establish:  1.)  a contact person for handling immediate closed captioning concerns, and 2.)  a contact person for receiving written captioning complaints of a general or non-time sensitive nature.  In order to assist viewers and potentially facilitate the resolution of such captioning complaints, the rule requires that video programming distributors publicize the appropriate contact information and also provide the contact information to the Commission, which will maintain a database open to consumers.  Thus, by March 22, 2010, all television stations and other distributors were to have designated a contact person, posted the necessary contact information on their web site (and in any phone directories the distributor may advertise in), and submitted the information to the FCC.

If stations failed to file that info by March 22nd, they should do so immediately.  The best way for stations to file this information with the FCC is to visit the FCC's website and submit the information online. The Commission’s website contains a detailed web form with step-by-step instructions to walk applicants through the process.  Alternatively, the contact information can be e-mailed directly to the FCC’s Disability Rights Office at: CLOSEDCAPTIONING_POC@fcc.gov . 

Video programming distributors must keep their contact information current and update both their websites and the Commission’s database within 10 business days of any changes to the information. Further details about the contact information requirement and the revised FCC closed captioning complaint rules can be found in our earlier posting here.

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Just a reminder that all Video Programming Distributors -- which includes broadcast television stations --  must identify a contact person for closed captioning issues, both immediate issues and general complaints, and file that contact information with the FCC by March 22, 2010.  As we've discussed previously, new FCC closed captioning rules recently went into effect that require video programming distributors to establish a contact for handling immediate closed captioning concerns, as well a contact for receiving written captioning complaints of a general or non-time sensitive nature.  In order to assist viewers and potentially facilitate the resolution of such captioning complaints, the rules require that video programming distributors publicize the appropriate contact information and also provide the information to the Commission, which will maintain a database open to consumers.  

Accordingly, by March 22, 2010, television stations must designate a contact person, post the necessary contact information on their web site (and in any phone directories the station may advertise in), and submit the information to the FCC.  The best way for stations to file this information with the FCC is to visit the FCC's Web site and submit the information online. The Commission’s Web site contains a detailed form with step-by-step instructions that will walk applicants through the process.  Alternatively, the contact information can be e-mailed directly to the FCC’s Disability Rights Office at: CLOSEDCAPTIONING_POC@fcc.gov.

Video programming distributors must keep their contact information current and update both their Web sites and the Commission’s database within 10 business days of any changes to the information.  Further details about the contact information requirement and the revised FCC closed captioning complaint rules can be found in our earlier posting here. 

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The FCC recently issued two reminders about television programmer's obligations to members of their audience who are hearing impaired.  The first notice made clear that stations must caption 100% of their "new, non-exempt" Spanish language programming as of January 1, 2010.  The second notice was to remind broadcasters that, when providing emergency information, they must make that information accessible to the hearing impaired, even if the programming falls into one of the captioning exemptions.  For instance, emergency information provided in live programming on a broadcast station with less than $3 million in revenues must still be accessible to the hearing impaired, either through closed or open captions, or through white boards or chalk boards or other devices that can be read by those who cannot hear the aural announcement on the station.

These issues are addressed in more detail in our Davis Wright Tremaine Advisory, here.  The memo also summarizes the current obligations of broadcasters and other video programmers under the FCC's captioning rules, and the status of pending proceedings to potentially change the exemption for programming channels with less than $3 million in revenue so that DTV multicast streams would be included with a station's main channel in deciding if the station met the exception.  It also discusses the status of implementation of new FCC rules changing the complaint process for violations of these rules.  These are important rules that the FCC takes seriously so, for more information, check out our Advisory. 

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The FCC's has published in the Federal Register certain aspects of its November decision on closed captioning - most notably the Further Notice of Proposed Rulemaking asking if a broadcaster's multicast streams should each count as a separate "channel" potentially exempt from closed captioning requirements if that channel doesn't bring in more than $3 million in annual revenue.  Seemingly, each of the multicast streams are what one would conventionally think of as a channel, yet the Commission has asked for comments on this issue - comments to be filed by February 12.  If the Commission was to determine that a multicast stream was not a separate channel, the captioning obligations would apply if the station, in all of its cumulative operations, had revenues of $3 million.   This could impose significant costs on innovative programming done on these multicast streams.  The November decision also clarified certain other rules, and adopted certain processes for dealing with complaints about captioning issues (processes yet effective as they have not been approved by the Office of Management and Budget for compliance with the Paperwork Reduction Act).  Davis Wright Tremaine has published a memo providing more information about the effect of the Federal Register publication.  Our summary of the November decision itself is available here

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The FCC has adopted new procedures for the submission of complaints about the failure to adequately provide closed captioning of video programming carried on television stations and cable systems.  In the same order, the Commission issued clarifications about the impact of the digital transition on the obligations of stations and networks to caption programming, and asked for comments on the issue of whether television stations that have multiple streams of programming can consider each stream as a separate "channel" for purposes of determining if they are exempt from captioning obligations for channels that have less than $3 million in revenue.  Our firm has published an Advisory summarizing this Order, and the complaint process that now applies both cable systems and broadcasters.  The Davis Wright Tremaine Advisory can be found here.

The outcome of the Further Notice of Proposed Rulemaking can have a real impact on the decisions made by broadcasters and their decisions to run multicast television programming.  Some stations have used an a second or third digital channel to do various forms of local programming, some along the lines of cable access programs - with local musicians, comedians or other sorts of original programs.  Others have run local news and public affairs programs.  If the Commission were to consider all programming streams to be a single "channel" (which seems to be contrary to how the Commission has treated cable programming where all channels, even if commonly owned, are considered as different "channels"), some channels will be met by new increased costs.  While hardship exemptions can be granted to particular programs, and could conceivably be applied here, stations should seemingly not have to go to the expense and trouble to make such hardship showings (as well as the uncertainty as to whether it will ultimately be granted) if these streams making less than $3 million and fit within that explicit, existing exception definition.  Watch for the dates of comments in this proceeding. 

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