We are often asked by television broadcasters if specialty programming – particularly local programming, like a local church’s broadcast of its Sunday morning church service – is covered by the FCC’s closed captioning obligations.  In a decision released on Friday, the FCC staff denied the request of a church for an exemption from the rules requiring the closed captioning of most television programming, and may have helped to make clear an answer to those questions.  This decision also helps to clear up a big question that has been hanging over such programs, for over 3 years since the FCC reversed dozens of prior waivers granted by its staff to nonprofit groups claiming that the captioning would be economically burdensome on their operations (including the waiver that had been granted to this church).  So what factors did the Commission review in denying this “economically burdensome” waiver request?

In 2011, the Commission stated that its staff had to consider the overall circumstances of each petitioner in evaluating economic waivers of the captioning rules, and could not simply rely on the fact that the petitioner was a nonprofit organization the FCC.  After revoking the waivers, the Commission asked the groups whose waivers were revoked to refile their requests with greater detail and support, not simply relying on the fact that the proponent was a nonprofit organization.  Factors to be considered in evaluating any claim that the captioning obligation was economically burdensome include: (1) the cost of the closed captions for the programming and attempts of the programmer to find cheaper sources of captioning; (2) the impact of the captioning obligation on the operation of the provider or program owner; (3) detailed information on the financial resources of the provider or program owner including income and expense statements for the prior two years; (4) attempts to get outside sponsors for the programming or support from the station on which the programming is to be broadcast; and (5) the type of operations of the provider or program owner.  In applying these factors in the decision released on Friday, the FCC staff concluded that the church had not justified a waiver because it had sufficient funds from which to pay the cost of the captioning. 

The church provided evidence that the captioning would cost approximately $500 per week, or approximately $26,000 per year.  In making the decision as to whether this would impose a burden on the church, the FCC looked not at the income produced by the program, but instead at the overall income and expenses of the entire church.  Finding that the church had almost two million dollars in income, and that its income exceeded its expenses by over $300,000 in each of the last two years, the Commission concluded that the $26,000 yearly captioning obligation was not unduly burdensome.

This decision is one of the first to fully evaluate the refiled requests submitted in early 2012.  Many of the groups that had their waivers revoked either stopped running their programs or captioned them.  In looking at this decision, it seems clear that many who had previously been granted waivers will not receive them under the reexamination of the evaluation standards that has now occurred.  The principal issue that will be reviewed in any captioning waiver case will be the overall financial health of the program provider.  Nonprofit entities seemingly will not be cut any slack – if they can pay for the captioning out of general operating funds, they will be required to do so.  So, it looks like, at least for now, we have an answer to the question of whether a regular local church service needs to be captioned under the FCC rules – and that answer is yes.