Articles Posted in Closed Captioning

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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • Streaming Service Agrees to Pay $3.5 Million for Violating FCC’s Closed-Captioning Rules
  • FCC Enters Consent Decree with Kentucky Broadcaster for Failing to Timely File License Renewal Application
  • Alabama Television Station Fined for Late Issues/Programs Lists

Streaming Service Enters Into Consent Decree for Violating Closed Captioning Rules

The FCC’s Enforcement Bureau and a multinational entertainment company entered into a Consent Decree to resolve an investigation into whether a streaming service owned by the company violated the FCC’s Rules pertaining to the closed captioning of video programming. To settle the matter, the company agreed to admit to violating the Internet Protocol Closed Captioning Rules, implement a compliance plan, and pay a $3,500,000 penalty.

The FCC’s Rules pertaining to the closed captioning of IP-delivered Video Programming require that all “nonexempt full-length video programming delivered using Internet Protocol must be provided with closed captions if the programming is published or exhibited on television in the United States with captions.” Most nonexempt full-length Video Programming delivered using Internet Protocol has to be provided with closed captioning if that programming aired with captions on television in the United States after September 30, 2013. For uncaptioned programming that is later aired on television with captions, video programming distributors have 15 days after that airing to add captions.

Section 79.4 of the FCC’s Rules requires that Video Programming Distributors “[e]nable the rendering or pass through of all required captions to the end user” and maintain the quality of the captions provided by the programming owner, as well as transmit the captions in a way that will reach the user with that same level of quality. Video Programming Distributors providing a device to receive their programming also need to comply with Section 79.103. That provision requires that such devices format captions in such a way as to permit viewers to control the display by changing the font, character size, or background color of the captioning. Video Programming Distributors are also required to “[m]ake contact information available to end users for receipt and handling of written closed captioning complaints.”

Beginning in January 2018, the FCC received consumer complaints about the closed captioning on the streaming service. Initially, the FCC’s Consumer and Governmental Affairs Bureau sought to informally resolve the complaints by requiring the company to submit progress reports. In May 2019, the company filed a Petition for Waiver of Section 79.4. It eventually filed a Request to Withdraw its Petition for Waiver in September 2021, and the Media Bureau granted that request at the same time it adopted the Consent Decree.

While the public comment period on the Petition for Waiver was ongoing, the Enforcement Bureau issued a Letter of Inquiry to the company in February 2020, which the company then responded to the following month. An investigation found that the company continued to offer programming that did not comply with the closed captioning rules after it had been reminded of its captioning obligations and even after it had received and responded to the Letter of Inquiry. Ultimately, the FCC concluded that the company failed to (1) enable the rendering or pass through of all required captions to the end user as required by Section 79.4, (2) implement the closed captioning functionality requirements of Section 79.103, and (3) make contact information available to end users wishing to complain about captioning.

To resolve the investigation, the company agreed to enter into a Consent Decree under which it will designate a compliance officer, implement a multi-part compliance plan, including developing a compliance manual and compliance training program, disclose within fifteen days any violations of the Consent Decree or the captioning requirements, file annual compliance reports for the next three years, and pay a $3.5 Million civil penalty.

Kentucky AM Station Pays $4,500 for Late-Filed License Renewal Application and Related Violations

A Kentucky broadcaster recently agreed to enter into a Consent Decree with the FCC for failing to timely file its license renewal application, failing to submit an EEO Program Report, and failing to place Quarterly Issues/Programs Lists in its online Public Inspection File throughout the license term.

Section 73.3539(a) of the FCC’s Rules requires that license renewal applications be filed no later than “the first day of the fourth full calendar month” before the license expires. As a result, an application to renew a Kentucky radio license needed to have been filed by April 1, 2020. However, the AM station did not file its license renewal application until July 20, 2020.

Additionally, Section 73.2080(f)(1) of the FCC’s Rules requires broadcast stations to file an EEO Program Report in connection with their license renewal application filings. In this case, the broadcaster did not do so. Finally, in its late license renewal application, the broadcaster certified compliance over the license term with the Public Inspection File rule, but had failed to place any Quarterly Issues/Programs Lists in its Public Inspection File during the license term.

As a result, the broadcaster elected to enter into a Consent Decree with the FCC to resolve the matter rather than face an extended FCC investigation. In it, the broadcaster admitted to the violations and agreed to pay a civil penalty of $4,500. The Consent Decree also requires the broadcaster to file an EEO Program Report within thirty days, implement and maintain a compliance program, including appointment of a compliance officer, development of a compliance manual, implementation of a training program, filing of a compliance report with the FCC a year after entering into the Decree, and reporting to the FCC any violations of either the Consent Decree or the Public File Rule within ten days of discovering such violation.

FCC Proposes Fine for Alabama Television Station with Late-Filed Issues/Programs Lists

The FCC fined an Alabama television station for failing to timely upload all of its Quarterly Issues/Programs Lists to its Public Inspection File. The station recently filed a license renewal application, and an FCC staff review of the stations’ Public Inspection File revealed that the station uploaded fourteen of the Lists late during the license term.

Section 73.3526(e)(11)(i) of the FCC’s Rules requires every commercial television station to place in its Public Inspection File “a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.” The list must include a brief narrative of the issues addressed, as well as the date, time, duration, and title of each program addressing those issues. The list must be placed in the Public Inspection File on a quarterly basis within ten days of the end of each calendar quarter.

The FCC noted that five of the Lists were uploaded more than one year late, four Lists were between one month and one year late, and five Lists were uploaded between one day and one month late. When the licensee failed to provide an adequate explanation for the late uploads, the Commission concluded that the licensee willfully and repeatedly violated Section 73.3526 of the FCC’s Rules.

Section 1.80(b)(10) of the FCC’s Rules establishes a base fine of $10,000 for Public Inspection File violations. However, the Commission may adjust the amount upwards or downwards based upon factors such as the “nature, circumstances, extent and gravity of the violation,” in addition to the licensee’s “degree of culpability” and “any history of prior offenses.”  Taking those factors into account, the FCC proposed a fine of $9,000 as appropriate. Noting that the violation did not constitute a “serious violation” nor a pattern of abuse that would prevent renewal of the station’s license, the FCC indicated it would grant the license renewal application in a separate proceeding if no other issues arose.

A PDF version of this article can be found at FCC Enforcement ~ October 2021.

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Whether tracking a developing storm so the public can prepare, or disseminating evacuation orders and alerts, broadcasters continue to serve as the bedrock of the nation’s warning system in emergencies.  As Hurricane Florence approaches the East Coast, TV and radio stations are hurrying to make sure they are in position to warn and inform their audiences of new developments.

Continuing operations during a hurricane is tough enough with employees sleeping in the studio while wondering if their house is still standing, but TV stations are also required by the FCC to ensure that all viewers, regardless of hearing or vision challenges, are able to receive emergency information being relayed.  As a result, emergency information presented on-air aurally must also be made available visually, and emergency information presented visually must also be made available aurally.  In past disasters, the FCC has proposed fines of up to $24,000 ($8,000 per “incident”) for TV stations that effectively said “run for shelter” but didn’t air a crawl or other graphic at that time conveying the same information.

To help television stations in this week’s storm path meet their obligations, Pillsbury today published an updated edition of Keep Calm and Broadcast On: A Guide for Television Stations on Airing Captions and Audible Crawls in an Emergency.  Stations whose communities are near the path of Hurricane Florence should review it, both as a refresher on what they will need to do in the next few days, and on how best to do it.

While broadcasters are working to help their communities prepare for the storm, the FCC is also trying to do its part to help broadcasters.  Earlier today, the FCC released a Public Notice providing emergency contact info for various divisions of the FCC relevant to an emergency, as well as procedures for making emergency requests for Special Temporary Authority to operate at variance from normal license parameters where needed due to equipment damage, etc.  The Public Notice also states that licensees requiring emergency assistance or STAs outside of business hours can “call the FCC’s Operations Center, which is open 24 hours a day, 7 days a week, at (202) 418-1122 or by e-mail at FCCOPCenter@fcc.gov.”

State governments are doing their part as well—nearly a dozen states have adopted laws granting broadcast personnel First Responder/First Informer status.  During earlier hurricanes in Florida, dedicated broadcasters stayed at their stations rather than protect their homes, only to find their transmissions halted when the station generator ran out of fuel and government officials prevented fuel trucks from entering the disaster area to resupply stations.  First Responder/First Informer laws allow broadcasters access to crisis areas, both for reporting on a disaster and maintaining station operations.  This includes granting priority to broadcasters for scarce fuel supplies (and emergency access for vehicles transporting fuel to stations) to keep their stations’ emergency generators—and the transmitters they power—running during emergencies.

Recognizing the limitations of a state-by-state approach, in March of this year, Congress granted broadcasters First Informer status in federal disaster areas throughout the nation.  Hurricane Florence will serve as one of the first tests of broadcasters’ new federal First Informer status.

While the last decade has brought progress in making communications infrastructure more resilient in emergencies, cable and Internet service is often disrupted in disasters, and cell phone networks, where they don’t fail outright, become overwhelmed by increased usage during a disaster.  Unlike communications infrastructure that requires wired connections over a broad area, or numerous short-range towers and repeaters, broadcast stations just need an upright tower or tall building for their antenna, fuel for their generator, and access for their employees.  That resilience in extreme conditions—and the ubiquity of radios and TVs—is critical in emergencies.

It’s time for broadcasters to once again weather the storm, and to help their communities survive it.

 

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While some debate endlessly which content best serves the public interest, there is universal agreement that the content broadcasters air during emergencies is vital to their communities.  Whether it comes in the form of tracking a developing storm so the public can prepare, or disseminating evacuation orders and alerts, broadcasters continue to serve as the bedrock of the nation’s warning system in emergencies.  As Hurricane Matthew approaches the East Coast, TV and radio stations are hurrying to make sure they are in position to warn and inform their audiences of new developments.

Curiously, the growth of alternative information sources has only served to emphasize that in a true emergency, there is no substitute for local broadcasts.  While the last decade has brought progress in making communications infrastructure more resilient in emergencies, cable and Internet service is often disrupted in disasters, and cell phone networks, where they don’t fail outright, become overwhelmed by increased usage during a disaster.

That is why nearly a dozen states have laws on the books granting broadcast personnel First Responder/First Informer status.  These laws allow broadcasters access to crisis areas, both for reporting on a disaster and maintaining station operations throughout.  This includes granting priority to broadcasters for scarce fuel supplies (and emergency access for vehicles transporting fuel to stations).  That fuel keeps stations’ emergency generators, and the transmitters they power, running during emergencies.

Unlike communications infrastructure that requires wired connections over a broad area, or numerous short-range towers and repeaters, broadcast stations just need an upright tower or tall building for their antenna, fuel for their generator, and access for their employees to be able to reach the station’s facilities.  That resilience in extreme conditions is, however, only part of the reason local broadcast stations are critical in emergencies.  Also important is the fact that broadcast receivers are ubiquitous and easy to power.  Some estimates place the number of radios in the U.S. at nearly 600,000,000, almost double the population of the U.S.  Many of those radios are powered by replaceable batteries.  As a result, they don’t need access to the power grid for recharging like smartphones do.  A box full of batteries will bring radio service for the duration of most any emergency.

Speaking of smartphones, in part because of the importance of accessing local broadcast signals during emergencies, the big 4 wireless providers have now activated the FM chip in at least some of their smartphones.  While there are a lot of radios out there, people aren’t generally walking around with a transistor radio in their hand at all times.  Being able to access emergency broadcast information via the smartphone in your pocket ensures that even when the cell phone network has ceased to function, you still have immediate access to important local information.  In fact, even where the cell phone system is still operating and not overwhelmed by traffic, there are two good reasons for utilizing a phone’s FM receiving capability.  First, it consumes a fraction of the battery power that streaming data does, ensuring the longest battery life possible—an important factor if you don’t know where your next charge is coming from.  Second, and taking a broader perspective, utilizing the FM capability is helpful to the community at large, as the more individuals that are obtaining information by radio, the less likely the wireless network will become overwhelmed, ensuring it is available for coordination of relief efforts and other vital functions.

Because televisions have far greater power needs than radios, the typical pattern in a disaster is for people to rely on local TV to track and prepare for an impending disaster, and then switch to radio when the power goes out.  However, with people scurrying about in their cars to buy storm supplies, the portability of radio (and its universal availability in cars), makes it a big part of storm preparations too.  Conversely, those lucky enough to have power after a storm (whether by generator or good fortune) can follow the storm recovery on their TVs.  The promise of ATSC 3.0 to make broadcast television signals more accessible to mobile devices can only increase that availability in adverse conditions.

And that’s where life gets even more complicated for television broadcasters.  It’s tough enough to continue operations during a hurricane, with employees sleeping in the studio while wondering if their house is still standing.  TV stations are also required to ensure that all of their viewers, regardless of hearing or vision challenges, are able to receive the emergency information being relayed.  As a result, emergency information presented on-air aurally must also be made available visually, and emergency information presented visually must also be made available aurally.  In past disasters, the FCC has proposed fines of up to $24,000 ($8,000 per “incident”) to TV stations that effectively said “run for shelter” but didn’t air a crawl or other graphic at that time conveying the same information.

Last year, the FCC created additional obligations for relaying emergency information to all segments of the public.  The “Audible Crawl Rule”, as it has come to be known, requires TV stations to aurally present on a secondary audio stream (“SAS”) any emergency information that is provided visually in non-newscast programming. The station must insert an aural tone (both on the main video stream and the SAS) before transmitting emergency information on the SAS to differentiate that information from normal audio. This alerts the viewer to turn on the SAS and focus on the emergency content.  Think that sounds complicated?  It is, which is why stations have been working on automating the process as much as possible.

Preventing a person’s hearing or vision impairment from becoming the cause of their death or injury is certainly a worthy goal, but it isn’t hard to understand the frustration of a station employee that hasn’t slept in 24 hours trying to get emergency information out to viewers as quickly as possible, but needing to pause to ensure the appropriate graphics and SAS information is prepared and aired in order to avoid an FCC fine.  To help stations simplify that process when preparing for last year’s hurricane season, we drafted a detailed summary of the FCC’s emergency information accessibility rules titled Keep Calm and Broadcast On: A Guide for Television Stations on Airing Captions and Audible Crawls in an Emergency.  Stations whose communities will be affected by Hurricane Matthew should review it, both as a refresher on what they will need to do in the next few days, and on how best to do it.

While these rules add to a station’s challenges during an already challenging time, the FCC is doing its part as well.  Earlier today, the FCC released a Public Notice reminding broadcasters, among others, that:

The Federal Communications Commission (FCC) will be available to address emergency communications needs twenty-four hours a day throughout the weekend, especially relating to the effects that Hurricane Matthew may have on the Southeastern United States.

The FCC reminds emergency communications providers, including broadcasters, cable service providers, wireless and wireline service providers, satellite service providers, emergency response managers and first responders, and others needing assistance to initiate, resume, or maintain communications operations during the weekend, to contact the FCC Operations Center for assistance at 202-418-1122 or by e-mail at FCCOPCenter@fcc.gov.

Here’s hoping that the FCC’s phone doesn’t ring much in the coming days.

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As we’ve previously written, the FCC adopted an Audible Crawl Rule in April 2013 requiring TV stations, by today, May 26, 2015, to present aurally on a secondary audio program stream (“SAP”) any non-newscast emergency information that a station presents visually. On March 27, 2015, the National Association of Broadcasters (“NAB”) filed a petition urging the FCC to grant a six-month extension of this deadline. The NAB also requested that the FCC (i) waive the requirement that visual but non-textual emergency information be included in the audible crawl, and (ii) reconsider the utility of including school closing information in its list of emergency information to be included in the SAP. Today, the FCC released a Memorandum Opinion and Order announcing that it will grant each of the NAB’s three waiver requests, extending the general compliance deadline by six months to November 30, 2015.

As adopted, the rule would have required all emergency information presented visually to be fully conveyed verbally on the SAP twice, including weather maps and school closings. Unfortunately, certain inherently graphical information, such as a Doppler Radar map, does not contain text files that can simply be converted to speech—making compliance not only difficult, but arguably impossible (e.g., imagine describing a Doppler Radar map twice in the time it is onscreen.). The NAB also contended that the aural presentation of lengthy school closure lists “serves no real utility, [and] may in fact impede timely provision of emergency information to vision impaired viewers” that could obtain school closure information through more efficient means. The 50 State Broadcasters Associations and the Society of Broadcast Engineers were among commenters that filed in support of the waiver requests.

Balancing the challenges of implementation against the concerns stated in comments submitted by the American Council of the Blind and the American Foundation for the Blind, the FCC announced that it will waive the requirement to aurally describe visual but non-textual emergency information, but limit the waiver to 18 months. Broadcasters now have until November 2016 before the FCC will require them to “aurally describe the critical details regarding the emergency and how to respond to the emergency . . . including the critical details conveyed solely by a map or other graphic display.”

Lastly, as the NAB requested (and all commenters supported), the FCC will waive the requirement that school closing announcements and bus schedule changes be included in the audible crawl SAP pending FCC reconsideration of that issue as part of its Second Further Notice of Proposed Rulemaking (adopted May 21, 2015, but not yet released by the FCC).

As the compliance deadline was set to kick in today, many broadcasters were likely contemplating which was the better of two bad options—ceasing to visually provide any emergency information, or risking an enforcement action for failing to convert onscreen text (or graphics) into speech. Fortunately, today’s waiver grant avoids the need for broadcasters to make that Hobson’s choice, so better late than never!

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As Pillsbury’s 2015 Broadcasters’ Calendar indicates, new rules relating to closed captioning go into effect on March 16, 2015. The FCC adopted these rules in its February 24, 2014 Closed Captioning Quality Order . They generally concern a station’s “quality control” over its program captioning.

As a quick refresher, the Order adopted closed caption quality standards and technical compliance rules to ensure video programming is fully accessible to individuals who are deaf or hard of hearing. In April 2014, the FCC announced a series of effective dates for the requirements in the Order, and in December 2014, it extended a January 15, 2015 deadline for compliance with certain rules to March 16, 2015. The requirements that will go into effect on March 16, 2015 include:
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The FCC’s July 11, 2014 Order, concluding that clips of video programming shown by broadcasters are required to be captioned when delivered on the Internet, was published in the Federal Register this week. The rule specifically applies when a provider posts a video clip or video programming online that was first aired on television (“covered” Internet Protocol (IP) video). The FCC ultimately plans to expand its Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) captioning rules to cover all forms of video programming on the Internet.

As I have discussed many times previously, the FCC requires that certain video programming delivered online by television stations be captioned if that programming previously aired on television with captions. Some of my recent posts on the subject can be found at the following links: “FCC Seeks Greater Clarity on IP Video Captioning Rules”, “Second Online Captioning Deadline Arrives March 30”, and “First Online Video Closed Captioning Deadline Is Here”.

More recently, I noted that the FCC sought comment on information regarding whether it should remove the “video clip” exemption from its rules. The FCC’s final answer was “yes”. The rules will apply to video clips regardless of their content or length.

According to the FCC, the new rules are intended to accomplish the following:

  • Extend the IP closed captioning requirements to IP-delivered video clips if the video programming distributor or provider posts on its Web site or application a video clip of video programming that it published or exhibited on television in the United States with captions;
  • Establish a schedule of deadlines for purposes of the IP closed captioning requirements;
  • After the applicable deadlines, require IP-delivered video clips to be provided with closed captions at the time the clips are posted online, except as otherwise provided;
  • Find that compliance with the new requirements would be economically burdensome for video clips that are in the video programming distributor’s or provider’s online library before January 1, 2016 for “straight lift clips”, and January 1, 2017 for “montages”; and
  • Apply the IP closed captioning requirements to video clips in the same manner that they apply to full-length video programming, which among other things means that the quality requirements applicable to full-length IP-delivered video programming will apply to video clips.

In its Order, the FCC also established the following set of deadlines for providing captions based on the type of video clip shown:

  • January 1, 2016: for “straight lift” clips, which include a “single excerpt of a captioned television program with the same video and audio that was presented on television”;
  • January 1, 2017: for “montages”, which are defined as a single file containing “multiple straight lift clips”; and
  • July 1, 2017: for “video clips of live and near-live television programming, such as news or sporting events”, keeping in mind that there is a “grace period” of twelve hours to caption “live video programming” and eight hours to caption “near-live programming.”

As part of the item, the FCC also issued a Second Further Notice of Proposed Rulemaking, which proposes to extend the reach of the FCC’s captioning rules even further. Among other things, the Further Notice is specifically asking for comment regarding whether: (1) third party video programming providers and distributors should be subject to the closed captioning requirements; (2) the FCC should decrease or eliminate the “grace periods” for “live” and “near-live” programming; (3) application of the IP closed captioning requirements should be extended to “mash-ups”, which the FCC defines as files that “contain a combination of video clips that have been shown on television with captions and online-only content”; and (4) application of the IP closed captioning rules to “advance” video clips “that are first added to the video programming distributor’s or provider’s library on or after January 1, 2016 for straight lift clips or January 1, 2017 for montages, but before the associated video programming is shown on television with captions, and which then remain online in the distributor’s or provider’s library after being shown on television.”

Comments on the Further Notice are due October 6, 2014, and reply comments are due November 3, 2014.

As is often the case, the new closed captioning rules adopted by the FCC are complex and parties should make sure that they remain up to speed with the rapid pace of the ever evolving rules in this area. The Order and Further Notice demonstrate that the FCC appears far from satisfied with the many new closed captioning rules that it has already adopted in recent years and that there will undoubtedly be additional rules to deal with in the not too distant future.

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As I have noted on several occasions in the past, the FCC requires that certain video programming delivered online by television stations be captioned if that programming previously aired on television with captions (for a quick refresher you can view my posts “FCC Seeks Greater Clarity on IP Video Captioning Rules”, “Second Online Captioning Deadline Arrives March 30”, and “First Online Video Closed Captioning Deadline Is Here”).

All video programming that appeared on television with captions after April 30, 2012, is considered “covered Internet Protocol (IP) video” and is required to be captioned when shown online. In January of 2012, the FCC released an Order exempting “video clips” and outtakes while requiring that television stations display captioning for prerecorded full-length programming delivered via IP if the programming had aired on television with captions. Where a captioned TV program is streamed on the Internet in segments, it must be captioned if substantial portions of the entire program are shown via those segments.

However, in the latest turn, the FCC is now asking for updated information regarding whether it should remove the “video clip” exemption. It is seeking public comment on the issue, with comments due on January 27, 2014, and reply comments due on February 26, 2014. The FCC’s Public Notice asks commenters to answer a number of questions regarding the current state of captioning of IP-delivered video clips, including:

  • What portion of IP-delivered video clips generally, and of IP-delivered news clips specifically, are captioned?
  • Has the availability of captioned versions of such clips been increasing?
  • What is the quality of the captioning on IP-delivered video clips?
  • Should the FCC require captioning of IP-delivered video clips?
  • How are the positions of commenters consistent with the 21st Century Communications and Video Accessibility Act (CVAA), its legislative history, and the intent of Congress to provide video programming access to people with disabilities?
  • What are the potential costs and benefits of requiring captioning of IP-delivered video clips?
  • How have consumers been affected by the absence of closed captioning on IP-delivered video clips, particularly news clips?
  • To the extent that some entities have already captioned these clips, what technical challenges, if any, had to be addressed?
    How does the captioning of IP-delivered video clips differ from the captioning of full-length IP-delivered video programming?
  • What are the differences between captioning live or near-live IP-delivered video clips, such as news clips, and prerecorded IP-delivered video clips?
  • If the FCC imposes closed captioning obligations on IP-delivered video clips, should the requirements apply to all video clips, or only to a subset of such clips?
  • If only to a subset, what subsets would be most appropriate and what would be the rationale for excluding others?

The FCC also asks for comment on any additional issues relevant to its determination of whether closed captioning of IP-delivered video clips should be required.

TV stations have been making greater use of their websites over the last few years to deliver video programming, and that use is only likely to increase in the years ahead as TV stations expand their use of mobile applications to reach viewers. As a result, the FCC’s new proceeding raises important issues that will affect stations’ video streaming, online marketing, and bottom line. As the saying goes, you’re not entitled to complain about an elected official if you didn’t bother to vote, and broadcasters need to speak up now if they want to avoid having to complain later about any complex or burdensome online captioning requirements that might be adopted in this proceeding.

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Last month, the FCC released an Order on Reconsideration and Further Notice of Proposed Rulemaking that clarified a number of aspects of the FCC’s complex closed captioning requirements for video programming delivered using Internet Protocol (IP) and the devices used by consumers to view it. In the FCC’s words, the Order and Further Notice was issued to “affirm, modify, and clarify certain decisions” made by the Commission last year implementing closed captioning requirements for video programming distributed via IP.

The original IP captioning rules were adopted in January 2012 in response to the 21st Century Communications and Video Accessibility Act (CVAA). The Order on Reconsideration and Further Notice has now been published in the Federal Register, and the rules adopted in the Order are set to take effect on August 1, 2013. For those who would like a refresher on the CVAA and the IP requirements, you can find my previous posts on the subject here and here.

In the Further Notice adopted simultaneously with the Order, the Commission asked for comment on imposing “closed captioning synchronization requirements for covered apparatus, and on how DVD and Blu-ray players can fulfill the closed captioning requirements of the statute.” Based on the publication of the Further Notice in the Federal Register, comments on the Further Notice are now due on September 3, 2013, and reply comments are due September 30, 2013.

The bulk of the Order is largely a response to three Petitions for Reconsideration filed in connection with last year’s Report and Order, which adopted rules governing the closed captioning requirements for owners, providers, and distributors of IP-delivered video programming, as well as the closed captioning capabilities of devices used by consumers to view video programming. The Petitions were filed by the Consumer Electronics Association, TV Guardian, and a coalition of consumer groups, respectively.

Highlights of the FCC’s Order and Further Notice include:

  • Refusing to limit covered devices to those intentionally designed to play back video programming, but clarifying the rule and issuing two class-based waivers in response to requests by the Consumer Electronics Association (CEA) to exclude equipment such as digital cameras and baby monitors;
  • Clarifying that the January 1, 2014, deadline for devices to be equipped to display closed captioned video programming applies to the date of manufacture of the apparatus, and “not to the date of importation, shipment, or sale”;
  • Reaffirming its decision to allow video programming providers and distributors to select either the rendering or pass through of captions to end users; and
  • Delaying a final decision regarding whether video clips (i.e., “excerpts of full length programming”) should be included within the scope of covered programming until more information is collected as part of another public notice that the FCC plans to issue within the next six months.

The CEA had requested that the FCC narrow the applicability of the closed captioning equipment requirements to cover only those devices intended by the manufacturer to receive, play back, or record IP video programming, rather than broadly applying the rules to any device with a video player.

In response, the FCC revised its definition of “apparatus” to make clear that “video players” requiring captioning capability include only those that display “video programming transmitted with sound.” The FCC declined to limit the requirement to only those devices intentionally designed to play back video programming, but clarified its rule and issued two class-based waivers excluding from the requirement equipment such as still digital cameras and baby monitors, which play back consumer generated images and not IP “video programming” as defined by the CVAA.

The following two classes of “apparatus” qualify for the waiver:

(i) devices that are primarily designed to capture and display still and/or moving images consisting of consumer-generated media, or of other images that are not video programming as defined under the CVAA and our rules, and that have limited capability to display video programming transmitted simultaneously with sound … and (ii) devices that are primarily designed to display still images and that have limited capability to display video programming transmitted simultaneously with sound.

The FCC also decided to delay the January 1, 2014 compliance deadline for DVD players that do not render or pass through closed captions. According to the Commission, that extension was granted to give the FCC more time to collect data regarding additional costs that might be imposed by adding IP captioning functionality to low-cost devices like DVD and Blu-ray players. The extension does not apply to other removable media players or to DVD players that already have the ability to caption.

Regarding the TV Guardian Petition, the FCC denied the Petition, which had requested that the Commission prohibit video programming providers and distributors from rendering captions where passing through captions is “technically feasible”, determining that the request was inconsistent with the language of the CVAA. The FCC also noted that the consumer electronics industry “coalesced around the use of HDMI, which permits the use of rendered captions but does not pass through closed captions, meaning that it only conveys captions when they have been decoded and mixed into the video stream.”

The FCC deferred a decision on the main thrust of the third Petition, filed by a number of consumer groups, which questioned why IP video captioning requirements only apply to “full-length programming” that appears on TV with captions and is then distributed via IP to end users substantially in its entirety. The coalition of consumer groups urged the FCC to expand the captioning requirement to also cover “video clips” containing less than a full-length program. The FCC is keeping the record open on this issue until more information is gathered on the captioning of video clips, including the difficulty of doing so, and the degree to which such captioning already occurs voluntarily.

Finally, in the Further Notice, the FCC asked for “further information necessary to determine whether the Commission should impose synchronization requirements on device manufacturers.” What the FCC is asking for here is additional information to determine whether to “require apparatus manufacturers to ensure that their apparatus synchronize the appearance of closed captions with the display of the corresponding video.” In the Report and Order, the FCC had declined to impose synchronization requirements on manufacturers, instead placing the obligation on video programming distributors and providers.

As noted, initial comments on the Further Notice are due September 3, 2013, with reply comments due on September 30, 2013. The issues raised in the proceeding are obviously complex, so those who wish to file comments should start preparing sooner rather than later.

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As we have discussed at great length in the past, the FCC’s rules require that certain video programming delivered online be captioned if the programming previously aired on television with captions. The rules kicked in on April 30 of last year, and all video programming that appeared on television with captions after that date is considered “covered Internet Protocol (IP) video” and will ultimately need to be captioned when being shown online.

The first step of the captioning phase-in occurred on September 30, 2012. Since that date, stations have been required to display captioning for prerecorded full-length programming delivered via IP if the programming was first aired on television with captions on or after the April 30 date noted above.

The second phase of the FCC’s IP captioning rules begins March 30, 2013 (a Saturday), at which time the FCC’s IP captioning rules require all live and near-live programming subject to the rules and shown on television with captions to be captioned when delivered online. The FCC’s definition of “live” or “near-live” captures all programming performed simultaneously or recorded within 24 hours of its first transmission to a video programming distributor. Note that as long as they do not constitute “substantially all” of a full-length program, online video clips are currently exempt from the IP captioning rules.

As a result, the question we probably receive most often from clients about online captioning is: what exactly does the FCC mean by “substantially all” of a full-length program? It’s a good question that lacks a precise answer. The FCC intentionally decided not to provide a specific threshold for the length or number of clips aired that would constitute “substantially all” of a program. According to the FCC, it did not see “any evidence that Congress sought to exclude only clips of a certain duration or percentage of the full-length program.”

Parties should keep in mind, however, that the FCC will not allow them to game the system by simply “shaving” off a few minutes or brief segments of a full length program in order to avoid the IP captioning obligation. The FCC emphasized that “if there is clear evidence that an entity has developed a pattern of attempting to use video clips to evade its captioning obligations,” the FCC may find that a rule violation has occurred.

There is of course more to come. The captioning requirements for “full length” and “live or near-live” programming are just the beginning of the new IP captioning obligations being implemented in the near future. The next deadline is coming up soon with the September 30, 2013 requirement that all pre-recorded programming that is edited for Internet distribution be captioned for online viewing. Also, don’t forget there are separate captioning compliance deadlines for captioning of IP video programming that previously aired on television prior to the effective date of the rules, but that is shown again on television with captions after the effective date. Those phased-in captioning requirements are scheduled to take place between March 2014 and March 2016, with progressively shorter periods to caption the programming for IP video after it airs on television with captions.

As was the case with the original broadcast captioning rules, each phase-in “deadline” shrinks the amount of programming exempt from the online captioning requirement while requiring the distributor to tackle ever more complex captioning issues. IP captioning will therefore consume a growing portion of the attention of those posting broadcast video online. The big difference is that broadcast captioning was phased in over eight years (twelve years for Spanish language programming), whereas online captioning is being phased in on a much faster schedule.

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The first compliance deadline for the FCC’s new rules for the closed captioning of video programming delivered via Internet protocol (i.e., IP video), as required by the 21st Century Communications and Video Accessibility Act (CVAA), is September 30, 2012. April 30, 2012 was the effective date of the new rules and all video programming that appeared on television with captions after that date is considered “covered IP video” and will need to be captioned when being shown online in the future. “Video programming” is defined as “programming by, or generally considered comparable to programming provided by a television broadcast station.”

Last January, the FCC released its Order adopting rules to implement the CVAA’s requirements governing the closed captioning of IP video. The CVAA requires that all nonexempt full-length video programming delivered over the Internet that first appeared on TV in the United States with captions also be captioned online. According to the rules, video programming shown on the Internet after being shown on television must have captions based on the following timeline established by the FCC:

  • September 30, 2012: all pre-recorded programming not edited for Internet distribution must be captioned for online viewing. Pre-recorded programming is defined as programming other than live or near-live programming.
  • March 30, 2013: all live and near-live programming must be captioned for online viewing. Live programming is defined as programming that airs on TV “substantially simultaneously” with its performance (i.e., news and sporting events). Near-live programming is video programming that is performed and recorded less than 24 hours prior to the first time it aired on television (i.e., the “Late Show with David Letterman”).
  • September 30, 2013: all pre-recorded programming that is edited for Internet distribution must be captioned for online viewing. Programming edited for Internet distribution means video programming for which the TV version is “substantially edited” prior to its Internet distribution.

Keep in mind that there is a different compliance schedule for all programming that is subject to the new requirements but which is already archived in a video programming distributor’s or provider’s library before it is shown on television with captions. Such programming is subject to the following deadlines:

  • Beginning March 30, 2014, all programming that is subject to the new requirements and is already in the distributor’s or provider’s library before it is shown on television with captions must be captioned within 45 days after it is shown on television with captions.
  • Beginning March 30, 2015, such programming must be captioned within 30 days after it is shown on television with captions.
  • Beginning March 30, 2016, such programming must be captioned within 15 days after it is shown on television with captions.

Clients frequently ask whether the new rules apply to clips, video-clips, or outtakes. Generally, the answer is no. The FCC’s Order defines clips as “excerpts of full-length programming.” According to the FCC, the rules apply to “full-length video programming” defined as “video programming that appears on television and is distributed to end users, substantially in its entirety, via IP.” This definition therefore excludes video clips or outtakes from video programming that appeared on television. However, keep in mind that the FCC also indicated that when “substantially all” of a full-length program is available via IP, whether as a single unit or in multiple segments, that program is not considered a clip and does constitute a full-length program subject to the IP captioning rules.

Those interested in learning more about these issues should contact us.

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