Posted on February 23, 2010 by Brendan Holland

Closed Captioning Update: New Complaint Rules Now Effective; Contact Information Due by March 22, 2010

On Friday, Feb. 19, 2010, two important new closed captioning rules were published in the Federal Register and went into effect. The new rules require immediate attention by video programming distributors -- including broadcast television stations -- to ensure that they respond promptly to viewer complaints regarding closed captioning issues, and to ensure that they timely file contact information with the FCC by March 22, 2010. 

As detailed in Davis Wright Tremaine’s November 2008 advisory and subsequent January 2009 advisory update, the Federal Communications Commission (FCC) adopted a Declaratory Ruling and Order in late 2008 that, among other things, imposed new requirements on video programming distributors with respect to fielding inquiries and complaints about closed captioning.  While the implementation of some aspects of those rules was delayed initially, with Friday's publication in the Federal Register, two of those are now in effect.  The new rules, and the obligations they impose on video programming distributors, are discussed below. 

Streamlined complaint process

First, the Commission’s earlier Order revised the complaint process for complaints involving closed captioning rules, and with the Feb. 19 publication in the Federal Register, the new complaint procedures are effective immediately. The revised complaint procedures are as follows:

  • Viewers who believe that a video programming distributor has failed to meet its captioning obligations may now file a complaint directly with either the FCC or with the program distributor, e.g., cable operator, television broadcaster or DBS provider. (Previously, viewers were required to first file complaints with distributors.)
  • If a complaint is filed with a program distributor, then the distributor must respond to the viewer complaint in writing within 30 days of receipt. If a video programming distributor fails to respond to the complainant within 30 days, or if the complainant is unsatisfied with the response, the viewer may then file a complaint with the FCC within 30 days.
  • If a complaint is filed directly with the FCC, the FCC will forward the complaint to the program distributor, which will be required to respond to the FCC in writing within 30 days of receipt. (Previously, distributors were required to respond to FCC complaints within 15 days.) In responding to a complaint, the video programming distributor must provide the Commission with sufficient records and documentation to demonstrate that it has complied with the Commission's rules. 
  • Viewer complaints must be in writing and must be filed within 60 days of the alleged violation (whereas previously complaints could be filed within the calendar quarter in which the alleged violation occurred). The complaint also must state with specificity the alleged Commission rule violated and include some evidence of the alleged rule violation.

 New captioning contact requirements

Second, in order to facilitate the ability for viewers to (1) raise immediate captioning concerns (such as garbled or missing captions), and (2) file captioning complaints, video programming distributors must publicize appropriate contact information and also provide contact information to the Commission.

To assist viewers with immediate captioning concerns while they are watching a program, video programming distributors must publish a telephone number, fax number and e-mail address for purposes of receiving and responding immediately to any closed captioning concerns. The revised rules require that “customers using this dedicated contact information must be able to reach someone, either directly or indirectly, who can address the consumer's captioning concerns.”

Under the new rule, distributors must ensure that any staff reachable through this contact information has the capability to immediately respond to and address viewers' concerns, and in situations where the captioning problem does not reside with the distributor, the staff person receiving the inquiry should refer the matter appropriately for resolution. Distributors are not required to alter their hours when they have staff available, but if calls are placed when staff is not available, such calls and inquiries must be returned or addressed within 24 hours. The FCC also expects distributors to take measures to accommodate calls placed through a Telecommunications Relay Service operator.

In addition, distributors also must separately designate a contact person for the receipt of written (non-immediate) captioning complaints. This contact person must have primary responsibility for captioning issues and compliance with the FCC rules. The contact information must include the contact person’s name, title/office, telephone number, fax number, postal mailing address and e-mail address. A distributor’s contact information must be included on the distributor’s Web site (if it has a Web site), in billing invoices (if any) and in telephone directories (if the distributor already directly advertises or has a paid expanded listing, i.e., more than merely name, number and location in standard font, in a telephone directory).

The FCC will maintain a list of video programming distributors’ contact information for purposes of resolving closed captioning issues. Accordingly, distributors—including cable systems, broadcast television stations and satellite television providers—must file their contact information with the FCC by March 22, 2010. Distributors must provide the required contact information both for handling immediate concerns and for receiving written captioning complaints.

The best way for video programming distributors to file this information with the FCC is to visit its Web site and submit the information online. The Commission’s Web site contains a detailed form with step-by-step instructions.  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.

Finally, the Commission has stayed the effectiveness of the rule that would require video programming distributors to forward closed captioning complaints to a third party in certain circumstances. Because of the potential conflict with laws prohibiting the disclosure of personally identifiable information to third parties, the Commission has stayed the implementation of this rule until it can review the issue further and potentially issue a notice of proposed rulemaking.
 
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Posted on January 15, 2010 by Brendan Holland

Broadcast Station Reminder: FCC Ownership Reports due Feb. 1 for Noncommercial Stations in Select States

A reminder that by February 1 noncommercial radio stations in Arkansas, Louisiana, Mississippi, New Jersey, and New York, and noncommercial television stations in Kansas, Nebraska, and Oklahoma must prepare and file electronically a biennial Ownership Report with the Federal Communications Commission (FCC) using the current noncommercial FCC Form 323-E.

Please note, this filing date applies only to noncommercial radio and TV stations in the states listed above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, and has revised the commercial Ownership Report – Form 323. Although commercial broadcast stations will file on a unified reporting deadline, by Order released late December 2009, the FCC has suspended indefinitely the filing of biennial Ownership Reports for commercial broadcast stations as we've posted previously. The Commission is taking additional time to address certain issues raised by petitioners and to revise the new form further.  Once the FCC re-releases the form, stations will have 90 days to file the report, so stations should watch this space or the FCC's releases for future news about the return of the Ownership Report for commercial stations. 

Noncommercial stations, on the other hand, continue to follow the previous rules filing biennial Ownership Reports on FCC Form 323-E, which has not been revised. The FCC is conducting a rule making proceeding to change, potentially, some of the ownership reporting rules for noncommercial licensees, but meanwhile, noncommercial broadcast stations continue to follow the existing rules.  Accordingly, as Feb. 1, 2010, marks the two-year anniversary of the filing of a biennial Ownership Report for noncommercial stations in the above-referenced services and states, those stations must now file a biennial Ownership Report to update their ownership information or affirm the information currently on file.  More information about this filing deadline can be found in our recent client advisory, available here.  

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Posted on January 15, 2010 by Brendan Holland

Broadcast Station Reminder: EEO Public File Reports and Form 397 EEO Mid-Term Reports due by Feb. 1st for Stations in Select States

February 1st marks the deadline for two FCC EEO requirements.  First, by February 1st, radio and television stations located in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma must prepare their Annual EEO Public File Reports. Specifically, stations or Station Employment Units (SEUs) in those states with five or more full time employees (30 hours or more per week) must:  (1) prepare their Annual EEO Public File Report; (2) place it in the public inspection file of each station comprising the SEU; and (3) post the Report on the Web site, if any station in the SEU has a Web site, all by Feb. 1. The Annual EEO Public File Report summarizes the hiring and EEO activities conducted by the station or SEU during the past 12 months. The Report provides information about the full time job positions filled in the last year, the recruitment sources used to fill those positions, and the outreach activities that the station or SEU performed during the year. In preparing their Annual Reports, stations are encouraged to carefully review their EEO activities and take the time to organize their records. Stations should have appropriate documentation to back up each of the recruitment sources used for each job opening, as well as for each outreach activity. This annual report is also a good time for the station or employment unit to assess the success of its outreach and the efficacy of its recruitment sources, and to make any adjustments necessary to improve EEO compliance in the coming year. A copy of our longer EEO primer can be found here.

Second, in addition to preparing the Annual EEO Public File Report, by February 1 television stations in Kansas, Nebraska, and Oklahoma , as well as larger radio stations in New Jersey and New York (i.e., those with eleven or more full-time employees) must prepare and file electronically with the Commission an FCC Form 397 Mid-Term EEO Report.  The Form 397 provides the FCC with copies of the SEU's two most recent Annual EEO Public File Reports, and is an important part of both the station’s compliance with the EEO rules and the Commission’s monitoring procedures. While normally the Annual Report is simply prepared and placed in the station's public file and on the website, at the mid-point of the license term stations must actually provide the FCC with copies of its two most recent Reports.  More information about both of these February 1 filing deadlines can be found in our recent client advisory available here.

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Posted on December 19, 2009 by Brendan Holland

FCC Continues Review of Media Ownership Rules with Workshop on Financial Issues

The Commission has announced the next in its series of media ownership workshops, this one to address financial issues facing the media industry.  The workshop, part of the Commission's 2010 quadrennial review of its ownership rules, will be held on January 12, 2010 at the FCC, and will address, in the FCC's words:  "the current financial and economic conditions and marketplace factors affecting the media industry and how the FCC should take these into account as it conducts its review process."  While the Commission has not identified the forum participants, today's Public Notice states that the session will consist of two panels, one to hear from smaller broadcasters in smaller markets, as well as the financial institutions that serve them, and the second to address larger broadcasters in larger markets and the institutions that serve the larger broadcasters.

Given the seemingly increasing pressures on the broadcast industry, it would seem critical that broadcasters actively participate in both this workshop and the Commission's 2010 review of its ownership rules to ensure that the FCC has an accurate picture of the state of the media landscape as it reviews its ownership rules.  This forum, and indeed the rule making proceeding as a whole, is meant to examine whether and how the FCC's media ownership rules affect the financial health of broadcasters, the consideration that lending institutions give to the rules when making funding determinations, and how to consider the financial conditions when setting Commission policy in this area.  A copy of today's Public Notice announcing the upcoming forum can be found here. 

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