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Yesterday, the FCC released an Order that reversed a five-year-old decision by its Consumer and Governmental Affairs Bureau (“CGB” or “Bureau”) that had granted certain video programmers “undue burden” exemptions from the FCC’s closed captioning rules. The reversed Bureau decision had changed the criteria for undue burden exemptions and permanently exempted two video programmers from compliance with the closed captioning rules on the basis of the new criteria. Finding that the Bureau’s new criteria deviated from both the statute and FCC precedent, the Commission overturned the decision, reversed 296 subsequent exemptions that had been granted by the Bureau in reliance thereon, and reinstated the original criteria for captioning exemptions. DWT has just released an advisory that provides more detail about the Commission’s decision, which can be found here. In addition, a copy of the Commission’s Order can be found here.

In overturning the undue burden exemptions CGB approved in 2006, the Commission found numerous faults with both the Bureau’s initial decision and its handling of hundreds of subsequent petitions seeking similar exemptions. Although undue burden exemptions were to be reviewed by the Commission on a case-by-case basis after opportunity for public comment and were to consider four factors: (1) the nature and cost of the closed captions for the programming; (2) the impact on the operation of the provider or program owner; (3) the financial resources of the provider or program owner; and (4) the type of operations of the provider or program owner, the Bureau deviated from previous Commission decisions by expanding the scope of the factors considered.  In particular, its decision relied primarily on the non-profit status of programming providers and that the programming was not produced for primarily commercial purposes.  Further, the Bureau found captioning programs would constitute a “significant hardship” and that there was a significant risk that mandating captioning would cause the video programming provider to cancel the programming.
 Continue Reading FCC Overturns Hundreds of TV Closed Captioning Exemptions and Clarifies “Economically Burdensome” Standard in Connection with Captioning Rules

The dates for comments on the FCC proposed rules for the captioning of Internet Video have been set.  Comments are due on October 18 with replies due on October 28.  An associated Federal Register publication also notes that comments can be filed with the Office of Management and Budget about the compliance of…

Putting TV or cable programming onto the Internet may soon not be as easy as it once was, as the FCC has just issued its Notice of Proposed Rulemaking on the captioning requirements for online video.  The proposals advanced by the Commission are summarized in our firm’s Advisory on the subject, here.  These…

As our colleague Brian Hurh wrote today on our sister blog, www.broadbandlawadvisor.com, the Video Programming Accessibility Advisory Committee has released its Report to the FCC on the closed captioning of IP-video programming as required by the 21st Century Communications and Video Accessibility Act passed last October.  A copy of the report released today is available here. …

The FCC is taking a close look at the video programming marketplace and gathering data that will undoubtedly shape its rules and policies in the coming years.  Its review comes in the form of a periodic assessment of the multichannel video programming industry required by the Communications Act.  By its Further Notice of Inquiry issued…

As our colleague Brian Hurh wrote recently on our sister blog, the www.broadbandlawadvisor.com, a federal district court last week granted a preliminary injunction prohibiting the mere retransmission of broadcast television programs over the Internet, without more.  The order is not only important for its confirmation of a 2008 Copyright Office decision rejecting Internet retransmission of video…

Broadcasters need to be aware that ASCAP, BMI and SESAC (the "performing rights organizations" or PROs) don’t cover them for all uses of music – especially uses that may be made on station websites.  Offering downloads, podcasts, and streaming video featuring music all require specific permission from music rights holders.  And, as we wrote just…

Only a day after asking over-the-air television broadcasters to justify their existence and why some or all of their spectrum should not be reclaimed by the FCC to be used for wireless broadband (and giving interested parties only until December 21 to not only justify their existence, but also to come up with technical means by which the spectrum could be more efficiently used, business plans for their future use of the spectrum, and a survey of the competing needs for that spectrum – see more detail below), the FCC issued another request for comments, asking how current video devices could be made more accommodating to Internet video.  These comments, also due on December 21, seemingly bring consumer electronics manufacturers and multi-channel video providers into the FCC’s rapidly-expanding evaluation of the video industry and its future.  As the comments filed in connection with these two requests will no doubt lead to proposals to be included in the FCC’s February report to Congress on strategies for broadband deployment, these quickly prepared filings could help determine the future of the video industry for the foreseeable future.

The new proceeding, looking for a "plug and play" model of consumer video devices that can access conventional television delivery systems and the Internet, starts with the statement that Internet video is "tremendously popular" and a prediction that, as it expands, new applications for such video will be found.  The Commission says that it sees Internet video as one way of spurring broadband adoption.  How to best promote the plug and play model for consumer video devices that can access the Internet is the crux of the comments that the FCC seeks.  The Commission first asks whether there are currently video devices that allow televisions to view not only the programming provided by multichannel video providers (e.g. cable and satellite), but also Internet video that may be available through an Internet service provided by that same MVPD, stating that it was not aware of such devices.  Next, the Commission asks what would be necessary to develop such devices, and what rules the Commission could adopt to possibly require capabilities in set top boxes and other devices to provide this universal access to video programming of all sorts.  The third area of inquiry from the Commission asks about standards that could be adopted to make Internet video and video from other sources interact with all other home audio and video equipment, including DVRs, to bring about the "digital living room."  And finally the Commission asks what stands in the way of plug and play devices that will work with all networks by which video is delivered.Continue Reading In Less Than 3 Weeks, Let’s Provide Detailed Analysis on Fundamentally Changing the Television Industry – Comments Sought on Encouraging Internet Video in Addition to Repurposing TV Spectrum

DWT attorneys David Oxenford and Ronnie London both spoke at the Future of Television – East Conference held in New York City on November 18-19, 2009. Dave delivered introductory remarks to the Conference, and participated with Shelly Palmer, Host of MediaBytes, in a discussion "What’s the Industry Buzz.". Dave discussed the…

The press was abuzz yesterday with the news that Julius Genachowski is apparently the pick of the Obama Administration for the position of FCC Chairman.  Mr. Genachowski was at the FCC during the Reed Hundt Administration, and has since worked in the private sector in the telecommunications industry, including work with Barry Diller and running a DC-based venture capital fund.  From the positive reactions that the appointment has received from all quarters, the choice would seem to be a great one.  But, in looking at some of the reactions, you have to question whether everyone has to be reading what they want to see into the new Commission.  For instance, while the NAB has praised the choice of Genachowski (stating  that he "has a keen intellect, a passion for public service, and a deep understanding of the important role that free and local broadcasting plays in American life"), so too did media-reform organization Free Press ("This moment calls for bold and immediate steps to spur competition, foster innovation and breathe new life into our communications sector. With his unique blend of business and governmental experience, Genachowski promises to provide the strong leadership we need.")  What will this appointment really mean for broadcasters?

In short – who knows?  When Kevin Martin was appointed Chairman of the FCC, few would have imagined that a former communications attorney, a person deeply involved in the Bush campaign, and a former staffer of FCC Commissioner Harold Furtchgott-Roth (perhaps the most free market Commissioner ever) would have supported sustained, wide-reaching inquiries into the underbrush of FCC regulation – e.g. localism, embedded advertising, indecency.  So we can’t really know what a Chairman will do until he does it.  The Washington Post and the Wall Street Journal both suggest that the new chairman will be focused on Internet issues, and may be less interested in indecency – but who knows?Continue Reading Julius Genachowski as New FCC Chair – What Will It Mean to Broadcasting’s Future?