The FCC has approved new and more comprehensive rules for television closed captioning in a Report and Order. The purpose of these rules is to make television programming more accessible to people who are deaf or hearing impaired. The FCC defined four non-technical quality standards as the touchstones by which effective closed captioning of programming will be judged: accuracy; synchronicity; program completeness; and placement. The nature of the material broadcast – pre-recorded, live, or near-live programming – determine the extent to which these quality standards must be achieved in accordance with the new regulations.
Through a Declaratory Ruling, effective immediately, the FCC clarified closed captioning obligations for “on demand” programming, bilingual and non-English/non-Spanish language programming, and LPTV stations, and reminded Video Programming Distributors (VPDs) that they must provide specific contact information for the handling of complaints and concerns relating to closed captioning to viewers and to the FCC. The FCC also issued a Further Notice of Proposed Rulemaking with respect to a wide range of issues, including minimum captioning quality standards, the use of the Electronic Newsroom Technique (ENT) captioning by non-broadcast networks, the establishment of technical equipment checks and other compliance matters, the elimination of captioning exemptions for new networks and from the current list of self-implementing exemptions, and other matters. We will issue a separate memo on the proposed rules.
This memo describes the new regulations that have been adopted with regard to the use of ENT for captioning of live programming, which become effective on June 30, 2014. ENT can convert the dialogue included on a teleprompter script into captions. However, because live programming that includes interviews, field reports, and late-breaking weather and sports reports cannot be effectively incorporated into captions by ENT, the FCC prohibited the use of ENT for captioning live programming by the four major national broadcast networks, their affiliates in the largest 25 DMAs, and by national non-broadcast networks serving at least 50 percent of all homes subscribing to multichannel video programming services. Over the objections from consumer groups which believe that reliance on ENT for captioning prevents hearing impaired viewers from full access to broadcasts of non-scripted news and information programming, the FCC has adopted a procedure that will allow stations in small- and medium-size markets and non-affiliated stations in larger markers to use enhanced ENT captioning through adherence to ENT Best Practices developed by the NAB.
The ENT Best Practices adopted by the FCC are:
The adoption of the ENT Best Practices does not affect or limit any of the self-implementing exemptions included in Section 79.1(d) of the FCC rules, except for the FCC’s clarification that the exemption from the obligation to caption in Section 79.1(d)(12) with regard to “any channel of programming producing annual gross revenues of less than $3,000,000 during the previous calendar year” applies separately to individual channels or streams of programming, and not to the revenues of the VPD as a whole. For example, if a TV station operates a main station channel and several digital multicast channels, each with individualized programming, whether one of the multicast channels requires captioning is determined based on the gross revenues of that particular channel, and without regard to the gross revenues of the main channel and or the gross revenues of the other multicast channels. However, VPDs continue to be obligated to “pass through” video programming already captioned when received for transmission.
The Commission will reevaluate the effectiveness of these enhanced ENT rules one year after their effective date. In order to begin this process, the FCC requires broadcast stations that rely on these procedures to prepare and submit to the Commission a report on their experiences employing these Best Practices, and whether the enhancements have succeeded in providing full and equal access to news programming. The report, which will be prepared by the NAB with specific information provided by participating stations, is encouraged by the FCC to include the following data: whether ENT captioning meets the captioning quality principles; the percentage and quantity of uncaptioned programming by stations using ENT; the impact of ENT usage on the ability of consumers who are deaf and hard of hearing to access programming; the nature and extent of complaints filed regarding ENT; the state of the market of real-time captioning; and technological progress toward achieving improvements with ENT. The FCC will use the report to consider phasing out the use of ENT in additional DMAs in order to achieve full access to televised news programming by people who are deaf or hearing-impaired.
During the first year of enhanced ENT usage, the FCC will accept formal complaints from consumers regarding a station’s noncompliance with the new ENT rules. The Commission will forward the complaint to a station for comment only if the complaint contains: the station’s channel number, network or call sign, or the name of the subscription service, if relevant; the date and time of the alleged captioning problems and the name of the affected program; and a detailed and specific description of the captioning problem, including the frequency and type of problem.
The FCC will employ a “compliance ladder” to deal with complaints submitted to the FCC that indicate a pattern or trend of noncompliance with the enhanced ENT rules, encouraging corrective responses when warranted. Initially, if a station is notified by the FCC of a pattern or trend of possible noncompliance, the station will have 30 days to respond to the FCC, describing corrective measures taken, including actions taken to respond to informal complaints received by the station directly. If after the first response, the FCC subsequently notifies the station that there is further evidence of noncompliance, the station will have an additional 30 days to submit an action plan describing specific measures to bring the station’s ENT performance into compliance; the station will also be required to conduct ENT spot checks and provide a six month report to the FCC regarding the results of the action plan. Finally, if the FCC finds continued evidence of a pattern or trend of noncompliance, the Enforcement Bureau will consider admonishments, fines, and other corrective actions, including requiring that the station stop the use of ENT and instead employ real-time captioning for live programming.
If you have any questions concerning the enhanced ENT procedures, or would like additional information regarding the FCC’s closed captioning requirements, please call any attorney in our office.