The FCC on Friday voted to extend its rule about captioning TV video repurposed to the Internet so as to cover not only full television programs, but also clips of those programs. While the rules already require that TV programming that is captioned when broadcast to be captioned when retransmitted in full over the Internet, the new rules, to be phased in as described below, require that clips of TV programs that were broadcast with captions also be captioned when repurposed for online use. In addition to adopting the rules for phasing in this new requirement, the Commission also asked several questions in a Further Notice of Proposed Rulemaking, asking some technical questions about the rules that it already adopted, and also whether to expand the requirements to other services and to programming that mixes both programming excepted from TV and programming that is original to the Internet.
While the full text of the FCC’s decision has not yet been released, from the discussion at the FCC meeting and from its Public Notice about the rules, the outlines of the newly imposed obligations seem fairly clear. The rules adopted for video clips, and the timeline for the implementation of these rules, are as follows:
- January 1, 2016 – captioning for “straight lift” clips, which are defined as a single excerpt of a program that had been captioned when first shown on TV, with the same video and audio as had been broadcast.
- January 1, 2017 – captioning for video montages – which are collections of clips from different broadcasts, where all had been captioned when broadcast.
- July 1, 2017 – captioning for clips of time-sensitive (i.e., live or near-live) programming. There will be a “grace period” between TV airing and required online captioning of 12 hours for live programming and eight hours for near-live programming. (The staff confirmed during the post-meeting press conference that once the grace period expires, the posted clip must be captioned; if an earlier, non-captioned version was posted, it must be replaced.)
The Commission discussed that there would be some potential for waivers of these rules for small market stations, but the details of the standards that would apply were not detailed. Also, there are some limitations on the obligations for posting of video clips that do not apply to the captioning obligations for full-length programs. Those limitations are discussed below. The new clips rules will apply only where the on-line clip is shown on the TV station’s own website or made available through its own app. The rules do not apply to clips shown on the site of third-party distributors (as is required for full programs) but the Commission will consider whether to require that clips be captioned on third-party sites in the Further Notice.
The rules also don’t reach back to video clips that are in a provider’s video library before the applicable compliance deadline. The rule looks forward only, finding that it would be economically burdensome to identify and track which clips need to be captioned that are already posted on station websites.
The Commission also stated that the same quality standards will apply to clips that apply to full-length programming, including the requirement that captioning be of at least the same quality as when the associated program was captioned on TV. As we recently wrote, new captioning obligations for programs captioned through the Electronic Newsroom Technique went into effect at the beginning of this month, and new quality standards, which we hope to detail soon, will go into effect at the beginning of the year.
In addition to the rules that have already been adopted, the Commission issued a Further Notice of Proposed Rulemaking to seek comments on four issues:
- How to apply the rules to video clips posted on sites of third-party online distributors (i.e., those that are not subject to the compliance deadlines).
- Whether to decrease over time the grace periods for captioning live and near-live IP video clips. (The Commission majority of the Commission seemed to believe that technical advances will facilitate this captioning and that the time needed will decrease over time, predicting that eventually technology will render the grace period unnecessary. The dissenters seemed to question not only this assumption, but also the very adoption of rules as the captioning technology to accomplish the obligations adopted on Friday may not already be widely available).
- Whether and how to apply the requirements to “mash-ups” (i.e., a combination of clips of content that has been shown on TV with captions with uncaptioned, online video clips).
- How the rules should apply to “advance clips” (i.e., clips that are posted online in advance of the televised airing of the corresponding full-length program that would be broadcast with captions).
There will no doubt be other details that become clear when the final order is published, including the dates for the comments on the Further Notice. Be on the lookout for those dates – but also start getting ready for the 2016 dates when the captioning obligations for clips begin to kick in.