Additional Closed Captioning Quality Rules to Become Effective March 16, 2015

Last year, the FCC released a Report and Order adopting new rules aimed at improving the quality of closed captions. Certain rules, such as those related to the use of electronic newsroom technique (ENT), are already in effect. We previously discussed those rules in a client memo available here. The remainder of the rules will become effective March 16, 2015. Once effective, stations will be required to adhere to certain quality standards that are described in more detail below. The new rules do not change or limit the existing categorical exemptions from captioning obligations now contained in the FCC’s rules.

Non-Technical Quality Standards: The FCC has adopted new non-technical quality standards for captions. Beginning March 16, 2015, captions must meet the following non-technical standards:

• Accuracy: Captions must accurately reflect a program’s audio track by matching the dialogue, music, and sounds, and identify the speakers. Among other things, accurate captions need to contain all words, as spoken (without paraphrasing), proper spelling, punctuation, capitalization, tense, and natural linguistic breaks. Captions should also convey the manner and tone of the speaker’s voice and should not correct slang or grammatical errors that are purposefully included in a program’s dialogue. Nonverbal information, such as the existence of music, sound effects, and audience reaction, is also essential for programs to be accurately captioned.
• Synchronicity: To the greatest extent possible, captions must be delivered at the same time as the corresponding dialogue and other sounds and at a speed that can be read by viewers.
• Program Completeness: Captions must run from the beginning to the end of a program.
• Placement: Captions cannot obscure, or be obscured by, important on-screen information. Important on-screen information includes characters’ faces, other on-screen text, and information that is essential to the understanding of a program. Captions should be an appropriate font size and should not run off the edge of the screen.

Treatment of Quality Standards for Different Types of Programming: The FCC will determine compliance with the quality standards based on the type of programming aired:

• Pre-recorded Programming: The FCC expects full compliance with the quality standards for pre-recorded programming. The Commission will not consider de minimis errors to be noncompliant. Live captioning for pre-recorded programming should be used only in situations where it is necessary to do so.
• Live Programming: The FCC recognizes that there will be some challenges with captioning live programming, but provides for “Best Practices” to help reduce errors. For example, programmers can provide captioners with advance notice of vocabulary that the program is likely to use. Programmers can also provide captioners with high quality audio program signals. To ensure that live programming is captioned completely, the FCC has suggested that programmers adopt measures such as using a fadeout after the last scene of a program to add a few seconds for transition to the next program, delivering audio to captioners in advance by a few seconds, and allowing captions that remain at the end of one program to be placed in a location on the screen during the subsequent advertisement or program in a manner that does not overlap with the current programming.
• Near-Live Programming: Near-live programming is programming performed and recorded within 24 hours prior to the time it first airs on television. The FCC will evaluate near-live programming under the same standards applied to live-programming, but encourages programmers to take measures to help improve captioning quality. Such measures include the adoption of either of two industry Best Practices to improve the quality of near-live programming: (1) programmers delivering a complete program script or near-completed program to a captioning agency in advance of the program’s airing; or (2) programmers providing a captioning agency with access to a live feed of the taping for the captions to be generated at that time and improved in the time before airing.
• Program Re-feeds of Live and Near Live Programming: Caption errors should be corrected in live and near-live programming that is later re-aired.

Best Practices and Certifications: The new rules provide for extensive Best Practices for both video programmers and captioning vendors. Included in the Best Practices are performance and operational requirements, as well as monitoring and remedial practices. The full list of Best Practices is available here. After the Best Practices have been in effect for a year, the FCC will reevaluate whether these Best Practices are effective.

Although the FCC did not set forth Best Practices for video program distributors (VPDs) (i.e., the entities that provide video programming directly to customers’ homes), it determined that VPDsare ultimately responsible for compliance with the Commission’s captioning rules. Because VPDs do not necessarily have direct control over the captioning quality in the programs they provide, VPDs must make their best effort to obtain certifications from each video programmer providing content to the VPD. The certifications should attest to the quality of the captions included in the programs provided. Because multichannel video programming distributors (MVPDs) and broadcasters are both considered VPDs, and thus under FCC jurisdiction, MVPDs are not required to obtain certifications from the broadcast stations that they carry.

To comply with the FCC’s best efforts requirements, a VPD must request a certification in writing from each video programmer that supplies the VPD with programming. The certification must attest that the programming provided either: (1) complied with the captioning quality standards; (2) adhered to the Best Practices for video programmers described above; or (3) was exempt from captioning under the FCC’s rules. If a program was exempt from captioning, then the certification must list the specific exemption claimed for the program. The VPD must also request in writingthat the programmer makes such certification widely available within 30 days after receiving the request from the VPD.

Once a VPD has made the written request, it must check websites or other widely available locations used for the purpose of posting the certifications to determine which other programmers have certified compliance. VPDs that locate a programmer’s certificate on a programmer’s website or other widely available location for the purpose of posting certifications will be deemed in compliance with this best efforts requirements even if the VPD did not previously notify such programmer in writing of the need for certification. Any VPD that fails to exercise its best efforts to obtain the certification may be subject to enforcement action.

VPDs also have an obligation to report noncompliant programmers (i.e., programmers that do not provide the required certification) to the FCC. The Commission plans to compile a list of noncompliant programmers in a publicly available database.

Equipment Monitoring: The Commission also reaffirmed that VPDs must take steps to monitor and maintain their captioning equipment and take any corrective measures necessary to make sure that the equipment is in working order. This will help to ensure that captions are passed through to viewers intact. VPDs will also be required to keep records of activities related to the maintenance, monitoring and technical checks of their captioning equipment. While VPDs are free to select the format used for maintaining these records, they must maintain them for two years.

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If you have any questions about the FCC’s closed captioning requirements, please contact any attorney in our office.