Closed captioning of video programming repurposed to the Internet has been an obligation of television stations for over a year.  Thus far, most stations have been able to comply with the requirements – as those requirements have only applied to full programs that were captioned when broadcast over the air, and then carried over to the Internet, either in whole or in segments that comprise essentially all of the program.  Now, the FCC is asking if any program excerpt should be captioned when transmitted over the Internet.  In a Public Notice released this week, the FCC asked whether the obligation to caption television programming transmitted through IP technologies should be extended to clips of such programming as well.

In asking for comments, the FCC noted that, when Congress adopted the Twenty-First Century Communications and Video Accessibility Act, which gave the FCC authority to mandate Internet captioning of TV programs, Congress required only the captioning of full programs, but it said that the limitation to full programs was intended only “at this time,” suggesting that the FCC could extend the requirements to clips at some point in the future.  Thus, the Commission is asking if this is the time to look at an extension of the obligations.  In undertaking this examination, the FCC is posing numerous requests for information from interested parties.

Questions asked by the FCC are many.  The Commission wants to know how much TV programming repurposed to the Internet is made up of clips as opposed to full programs.  Of those clips, what percentage are voluntarily captioned by broadcasters?  Is the percentage of voluntary captioning increasing?

The FCC next asks about the statutory and policy basis for mandating an extension of the captioning obligations.  Does the statute actually give the FCC authority to mandate an extension of the obligations to cover clips in addition to the current obligation to caption full programs?  How are consumers affected by the lack of captioning of clips?  What practical problems are there with the obligation to caption clips, and do these problems differ materially from the current obligations to caption full programs?  Are there more or different problems that arise from captioning clips of certain types of programs – like live or near live programming such as news? 

The FCC does not specifically ask, but it would seem to be an important consideration to determine who would be covered by any extension of the captioning obligations to clips.  It is not only broadcasters themselves who have an obligation to caption programs that were captioned on TV when such programs are repurposed for the Internet .  Instead, any website or IP service that retransmits such programs has to caption them.  It would seem as if the universe of sites that retransmit clips of TV programs is far greater than that of sites that transmit full programs.  Clearly, that issue should be raised in the comments filed on this issue.

Comments are due at the FCC on January 27, and reply comments are due on February 26.  As broadcasters make more and more use of websites and mobile apps to deliver their programming to their audiences, this proceeding may be a very important one, so consider your comments carefully.