Articles Posted in Closed Captioning

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Members of the Communications Industry that don’t keep up with legal and political developments in Washington aren’t in the industry for long. That truism has been particularly apt in the past few months, starting with the President’s October signing of the Twenty-First Century Communications and Video Accessibility Act of 2010 which, among other things, cleared the way for reinstatement of the FCC’s former Video Description rules for television broadcasters, extended closed captioning of video programming to the Internet, and required the FCC to examine methods of increasing the accessibility of emergency information.

Normally, the weeks before a congressional election and the lame duck session afterwards are not a fertile environment for communications legislation, which has a tendency to be controversial because of the stakes involved (can you say “net neutrality”?). However, the Twenty-First Century Communications and Video Accessibility Act, which was spurred to passage by a congressional desire to commemorate the 20th anniversary of the Americans with Disabilities Act, was merely the beginning.

The lame duck session has now generated several more pieces of successful legislation. Last week the President signed the first of these, the Commercial Advertisement Loudness Mitigation Act, which requires television stations to transmit at a consistent volume level (rather than make viewers lunge for their mute button at every commercial break). Congress followed the CALM Act with passage of the Truth in Caller ID Act of 2009, which is now awaiting the President’s signature. This legislation prohibits manipulation of caller ID information with intent to defraud or harm others.

Apparently building steam, Congress proceeded to adopt the Local Community Radio Act of 2010 this past weekend, which reduces the extent of interference protection that full power radio stations will receive from Low Power FM stations, thus clearing the way for many more LPFM stations to be wedged into the FM radio band. This legislation is also now waiting for the President’s signature.

So, is there something in the DC drinking water that has a lame duck Congress suddenly tackling communications issues as though “gridlock” was only a term from morning traffic reports? Maybe. But the truth is more complicated than that. With regard to the CALM Act, controversy about loud television commercials dates back decades. The FCC long ago considered adopting rules to prohibit such “variable volume” broadcasting, but concluded in 1984 that “due to the subjective nature of many of the factors that contribute to loudness, it would be virtually impossible to craft new regulations that would be effective.” However, the transition to digital television has made it far more feasible to craft and enforce objective technical standards for loudness, lessening somewhat broadcasters’ concerns that regulation would lead to free-roaming loudness police second-guessing a station’s engineering practices.

Similarly, the LPFM interference issue has been simmering for a decade, with a succession of bills trying and failing to eliminate the requirement that LPFM stations protect full power stations’ third-adjacent channels from interference. However, what finally put the Local Community Radio Act over the top was a legislative compromise that, among other things, assured full power broadcasters that LPFM will be categorized as a secondary service to full power stations. This means that full power broadcast stations can continue to modify their facilities to improve their audience reach without finding themselves blocked by the interference such a modification might cause local LPFM stations. In light of this and other modifications to the bill, broadcasters were able to offer their support for its adoption, finally breaking the longstanding impasse.

So what’s next? Well, Congress remains keenly interested in communications issues, as evidenced by the lively discussion (and legislative threats) surrounding the FCC’s upcoming net neutrality order. Broadcasters, however, are hoping that this lame duck session concludes quickly, leaving the Performance Rights Act and its goal of requiring broadcasters to pay royalties to the recording industry the subject of continued inter-industry negotiations, rather than the latest statutory mandate emerging from the twilight hours of the 111th Congress.

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In a Public Notice released yesterday, the Consumer & Governmental Affairs Bureau of the FCC established new comment dates to refresh the record on several closed captioning issues first raised in proceedings initiated in 2005 and 2008. Comments are due November 24, 2010, with reply comments due December 9, 2010.

2005 Closed Captioning Notice of Proposed Rulemaking (“2005 NPRM”)

First, the FCC is seeking to refresh the record on several items that were raised in its 2005 NPRM that remain outstanding. Specifically, it is asking for additional comments on whether the FCC should establish “quality” standards for non-technical portions of the captioning rules. Such standards would be aimed at ensuring the accuracy of the captions themselves. In this regard, the FCC would like comments on what the adoption of such standards would cost to programmers and distributors, whether there are enough competent captioners to meet the demand, and whether different captioning quality standards should apply to live and pre-recorded programming.

Second, the FCC seeks to refresh the record regarding the need for new rules that go beyond the current “pass through” rule. The “pass through” rule requires video programming distributors to deliver all programming containing closed captioning with the original closed captioning data intact in a format that can be displayed by decoders meeting the standards of Part 15 of the FCC’s Rules. According to the Public Notice, the FCC is looking for ways to prevent technical problems in the delivery of captions and to remedy technical problems quickly when they do occur.

With respect to violations of the captioning requirements, the FCC seeks comments on whether to establish specific “per violation” forfeiture amounts, and if so, what those amounts should be. The FCC is also seeking comments on whether video programming distributors should be required to file periodic captioning compliance reports.

The 2005 NPRM also discussed the continued use of electronic newsroom technique (ENT), in which the closed captioning text is fed directly from a station’s teleprompter. Because this captioning technique does not provide captions for unscripted segments, the current rule limits its use to stations that are not affiliated with ABC, CBS, NBC, or Fox, or which are located outside the top 25 markets. Nonbroadcast networks serving at least 50% of cable/satellite households are also prohibited from relying on ENT. The FCC is asking whether the use of ENT for captioning should be further restricted by, for example, expanding the prohibition to stations outside the top 25 markets.

The FCC is also seeking comments on whether it should mandate that petitions for exemption from the closed captioning requirements be filed electronically.

2008 Closed Captioning Notice of Proposed Rulemaking (“2008 NPRM”)

With respect to the 2008 NPRM, the FCC is asking for comments to refresh the record on how the captioning exemption for “channels” producing revenues of less than $3 million should apply to digital multicasting. In 2008, the FCC asked whether each programming stream in a multicast signal should constitute a separate “channel,” or whether the broadcaster’s primary and multicast streams should be considered a single channel for purposes of determining whether they exceed the $3 million exemption limit. The FCC wishes to update the record, and is asking for comments on the ramifications of ruling that each multicast stream is a separate channel.

As noted above, comments on these proposals are due November 24, 2010, and reply comments are due December 9, 2010. Please contact any of the lawyers in the Communications Practice Section for assistance in the preparation and filing of comments or reply comments.

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Last week, Congress passed the Twenty-First Century Communications and Video Accessibility Act of 2010 (the “Act”) which, among other things, reinstates the FCC’s former Video Description rules for television broadcasters, extends closed captioning of video programming to the Internet, and requires the FCC to examine methods of increasing the accessibility of emergency information. The President signed the bill today, October 8, 2010.

The Act is designed to update the Communications Act to account for the many new technologies available in today’s marketplace and to assure that they are accessible to persons with hearing or vision impairment. The Act outlines a decade-long timetable for the submission of various reports by a new advisory committee to the FCC, and then by the FCC to Congress, and the implementation of further regulations based on the findings of those reports. When fully implemented, the Act will require that specific amounts of digital television programming contain video descriptions, that certain video programming distributed via the Internet contain closed captions, and that consumer electronics devices contain features to promote accessibility and be hearing aid compatible. We have summarized the Act’s requirements in three phases below.

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Video Programming Distributors Must Notify FCC by March 22, 2010 of Certain Contact Information and Begin Compliance with Telephone Directory Listing Requirements.

Earlier this week, we advised you of a recent Commission action which could affect video programming distributors’ obligations under closed captioning complaint rules that the Commission adopted in November 2008 but which had not yet become effective. As we predicted, those Commission actions were a prelude to the rules becoming effective, which occurred with their publication today in the Federal Register. Accordingly, effective today, February 19, 2010, new timeframes governing when a video programming distributor must respond to a complaint regarding closed captioning are in effect. In addition, video programming distributors must now comply with the provisions requiring them to provide contact information for addressing closed captioning complaints to the FCC and the public.

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In response to a petition for clarification filed by DISH Network, L.L.C. (“DISH”), the FCC has issued a “limited waiver” of its requirement that video programming distributors, including television stations, publish two types of information in local telephone directories–contact information for the receipt and handling of immediate closed captioning concerns, and contact information for the receipt and handling of written closed captioning complaints.

The FCC acknowledged that its telephone directory requirement would essentially force a video programming distributor operating on a nationwide basis (like DISH) to contract with local telephone directory publishers nationwide. However, the FCC did not limit the waiver to DISH or those engaged in national program distribution. As a result, local or regional entities, including local broadcast stations, may be eligible to benefit from this waiver as well, thereby avoiding the additional costs of extensive local telephone directory listings. To take advantage of this limited waiver, however, you must not currently have “contracted for” an advertisement or other paid listing in the telephone directory.

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Obligation to Provide Emergency Information to Persons with Hearing Disabilities

August 2007
Mindful of Hurricane Dean, and with three months left in this year’s hurricane season, it is imperative that television station broadcasters ensure they have adequate policies in place and reliable procedures tested to insure that persons with hearing disabilities have timely access to the emergency information that such stations have provided aurally in their programming.

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