FCC Overturns Hundreds of
Closed Captioning Exemptions
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The FCC recently overturned
nearly 300 closed captioning exemptions that had been granted for mostly
religious programs. In addition, the FCC has announced a new heightened
standard that video programming distributors must meet to obtain an exemption
from the FCC’s closed captioning rules. Television station licensees
should review any uncaptioned programming they broadcast to confirm
that it is not affected by this decision. In 2006, the FCC
granted Anglers for Christ Ministries, Inc. and New Beginning Ministries
permanent exemptions from the FCC’s closed captioning requirements for
certain video programming (“Anglers Order”). In Anglers Order,
the FCC found that the program producers had demonstrated that requiring
closed captioning of their programming would cause them “significant
hardship.” The FCC noted that the entities involved in Anglers Order
were non-profit organizations that either offered the programming for free or
paid to have it broadcast, as opposed to producing the programming for
commercial purposes. Following Anglers Order, over the ensuing
five years the FCC granted numerous closed captioning waiver requests under
the same rationale. The FCC has now overturned Anglers
Order and the many subsequent waiver petitions that were granted based on
the justification accepted in Anglers Order. A list of the
petitions overturned by the FCC Order is available here.
According to the FCC, Anglers Order followed the wrong standard for
determining whether a program should be exempt from the closed captioning
requirements. Rather than employing a “significant hardship” standard,
video programming distributors must instead show applicability of the
“economically burdensome” standard which had been enforced prior to the
decision in Anglers Order. The FCC has also initiated a rulemaking
proceeding in this regard, seeking comment on the criteria it has proposed to
determine whether an entity has met the “economically burdensome” standard
and is entitled to a waiver of the captioning requirements. The
proposed criteria, which the FCC is tentatively using pending resolution of
the rulemaking, are: (1) the nature and cost of the closed
captions for the programming; (2) the impact on the operation of the
provider or program owners; (3) the financial resources of the provider
or program owners; and (4) the type of operations of the provider or
program owner. Entities whose closed
captioning waivers were overturned by the FCC’s recent action have until
January 18, 2012 to file a new exemption request, based on the interim
proposed “economically burdensome” criteria. The petition must provide
the FCC with updated evidence, supported by affidavit, demonstrating the
petitioner’s inability to provide closed captioning. Any petition which
has been filed but still remains pending will be dismissed if it does not
meet the interim criteria. Parties which do not submit new showings to
establish exemption under the new criteria will be required to come into full
compliance with the closed captioning rules by January 19, 2012. If any programming on your
station is broadcast without captions under an exemption granted for
“substantial hardship,” you should confirm whether the captioning waiver was
overturned. Because the names of the exempted program producers, or the names
of the programs themselves, may have changed over time, it would be prudent
to review all programming broadcast without closed captions and confirm with
the program’s producer or distributor that the program remains exempt from
the closed captioning requirements. Upon the compliance date set by the
FCC, carriage without captioning of programming that once had been exempt but
can no longer meet the applicable “economically burdensome” standards will
expose licensees to potential fines and other expenses, and could delay or
affect processing of a station’s renewal application when the next cycle
begins in June 2012. Should you have any
questions regarding the FCC Order or any other aspects of the closed
captioning rules, please contact your primary attorney in our office. November 21, 2011 |
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This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advice. We would be pleased to provide additional details or advice about specific situations if desired. Copyright © 2011, Lerman Senter PLLC 2000 K Street NW,
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