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.