FCC Issues Declaratory Ruling and Seeks Further Comment on Closed Captioning Rules and Practices

As we have previously reviewed here, the FCC recently adopted new and more comprehensive rules for closed captioning on television broadcasts. As a part of its review of these rules, the FCC adopted a Declaratory Ruling, which was made effective immediately, that: (a) all new bilingual English-Spanish programming (programming with substantial amounts of both English and Spanish) and 75 percent of “pre-rule” (digital programming first exhibited before July 1, 2002) bilingual English-Spanish programming must be closed captioned; (b) programs that are in neither English nor Spanish but contain only small amounts of “snippets” of English or Spanish words are not required to be captioned; (c) all Video Programming Distributors (VPDs), including broadcast stations, must make contact information available to consumers and the FCC staff with the ability to respond immediately to address consumers’ concerns and technical problems, even if the VPD is exempt from certain captioning obligations; (d) all “on demand” programming must be captioned to the extent required under the FCC’s standards for “new” and “pre-rule” programming, unless such programming is exempt under the rules; and (e) LPTV stations are required to comply with the closed captioning rules.

The FCC has also issued a Further Notice of Proposed Rulemaking (“FNPRM”) seeking comments on a wide range of closed captioning issues, including issues relating to the new rules. The Commission divided the FNPRM into two portions having different comment and reply comment cycles. The deadlines for submitting comments in each cycle are set forth below.

First Comment Cycle: Responsibilities for Meeting Closed Captioning Requirements

**Comments due by April 28, 2014 and Reply Comments due by May 27, 2014**

1) Imposition of Broadcast Closed Captioning Obligations on Video Programming Providers as well as Video Programming Distributors.

The responsibility for captioning for televised programming currently rests with Video Programming Distributors (VPDs), defined since 1997 as “all entities [which] provide video programming directly to customers’ homes, regardless of distribution technology used (i.e., broadcasters and MVPDs).” The FCC seeks comment on whether some of the compliance responsibilities for the new closed captioning standards should apply to Video Programming Providers (VPPs), which includes video programming owners (VPOs) such as non-broadcast networks that provide programming to MVPDs for distribution of the programming to residential viewers. The broader definition of responsible parties is currently applied for purposes of captioning of programming that originally airs on television and is subsequently reshown over Internet protocol (IP), and with respect to making emergency information available to individuals who are blind or visually impaired. The FCC asks whether this definition should be similarly expanded in the context of televised programming to encompass all parties responsible for direct control over captioning quality.

In support of the extension of the closed captioning quality responsibilities, Comcast/NBCUniversal has submitted a proposal for the Commission to adopt a “burden-shifting enforcement model” that extends some captioning responsibilities to VPOs. Under this proposal, a VPD would have the initial burden of addressing and investigating matters regarding closed captioning quality standards. If the VPD determines that the captioning issues raised are in the control of the VPO, rather than the VPD, the compliance burden would shift to the VPO, which would be responsible for fixing the problem. The VPO would also then bear liability in any enforcement proceeding. In connection with the Comcast/NBCUniversal proposal, the FCC notes that Section 713 of the Communications Act authorizes the FCC to require closed captioning by “providers and owners of video programming.” The FCC requests comment on this “burden-shifting” proposal, and asks if there are any additional approaches that it should consider. The FCC also raises questions regarding the imposition of joint and several liability, the appropriate transfer of liability, and what effect the sharing of obligations across multiple entities would have on consumers and industry.

2) Appropriate Changes to the Captioning Rules or Best Practices.

To the extent the FCC decides to impose the closed captioning quality standards on other programming entities, the FCC seeks comment on whether any changes to the new quality rules (accuracy, synchronicity, program completeness, and placement) and Best Practices are appropriate. For example, if the obligations for captioning quality standards are extended to programmers, would the programmers be able to rely upon a “compliance ladder,” as adopted in the new rules applicable to enhanced ENT procedures, to take corrective actions to achieve compliance with the requirements before being subject to enforcement action? Should this safe harbor also apply to VPDs in the same situation? If the FCC were to extend direct compliance responsibility for closed captioning obligations to video programmers or other programming entities, would the complaint procedure found in Section 79.1(g)(6) of the Commission’s rules, which allows reliance on certifications from programming suppliers to demonstrate compliance, still be necessary? Furthermore, the FCC seeks comments on whether there are similarities or differences between the television and the IP closed captioning contexts or the Commission’s emergency information rule that justify similar or different regulatory approaches.

3) Additional Issues.

The FCC seeks comment on any other issues related to extending some or all responsibility for compliance with the closed captioning requirements to other programming entities and asks commenters to address the costs and benefits of making such adjustments to the rules. The FCC also invites parties to provide any information that they believe will contribute to a better understanding about which entities are ultimately better positioned to ensure compliance with the captioning quality standards.

Second Comment Cycle: The Remaining Portions of the FNPRM

**Comments due by June 25, 2014 and Reply Comments due by July 25, 2014**

The FCC groups together the remaining portions of the FNPRM for consideration in a separate comment cycle. This portion of the FNPRM addresses principally the technical costs and the hurdles that must be overcome to comply with the closed captioning rules.

1) Minimum Captioning Quality Standards.

The FCC seeks assistance in determining what technical solutions, imposed at what costs, can best improve the extent to which captioning of live and near-live programming can achieve the accuracy, synchronicity, placement, and completeness standards enumerated in the new captioning rules. For example, would sending an audio feed of a live program a few seconds in advance reduce captioning latency in a manner that is economically feasible? Would requiring a fadeout after the last scene of a program before a commercial or other programming break allow better completeness of captioning content? If so, who should be responsible for the implementation of these techniques among VPDs, programmers, and other entities? Should the definition of “near-live” programming be tightened to promote more frequent use of offline captioning prior to airing?

2) Use of Electronic Newsroom Technique by Non-Broadcast Networks.

The adoption of the Best Practices for the use of “enhanced” ENT is intended to ensure that most news programming, including sports, weather, and late-breaking news, be scripted and captioned. As we discussed in more detail in our previous memo, a crawl or other visual information must be employed for news segments where ENT is not used. The FCC asks whether the enhanced ENT rules should be applied to non-broadcast networks that serve fewer than 50 percent of all homes subscribing to MVPD services, and whether such a requirement would affect news and public affairs programming on such channels.

3) Compliance.

The FCC is considering a number of issues relating to compliance with the new captioning rules. VPDs are now required to take “any steps needed to monitor and maintain their equipment and signal transmissions . . . to ensure that the captioning included with video programming reaches consumers,” to take corrective steps to ensure that the equipment operates properly, and to run checks of their equipment to confirm that captions are passed through to viewers intact. The FCC seeks comments on the intervals within which equipment is to be inspected, and whether other measures, such as automated technologies, should be allowed instead. In addition, the FCC invites comment on whether Best Practices proposed by NCTA with respect to dealing with consumer complaints should be adopted. NCTA’s Best Practices proposal includes consumer care and awareness training, as well as identification and remediation of recurring captioning issues. Comments are also requested about whether and, if so, how, captioning equipment outages should be disclosed to consumers and reported to the FCC. The FCC is considering whether to require that all VPDs provide contact information on the VPD Registry maintained on the FCC’s website.

4) Captioning Exemptions.

One of the express exemptions from captioning obligations has been made available to newly established networks during the first four years of operation, intended to encourage such networks by deferring the economic cost of captioning programming. The FCC is considering: whether to shorten, condition, or eliminate this exemption entirely; how to define a “network” and whether to apply the same definition to broadcast and non-broadcast networks for purposes of the exemption, if retained; how to treat networks that operate in a foreign market and begin distribution for the first time in the U.S.; and how to treat networks that merge for purposes of the exemption. The FCC is also considering whether to eliminate the captioning exemption for advertisements of five minutes or less and a number of the self-implementing exemptions now contained in the FCC rules, specifically those for late-night programming, locally produced and distributed non-news programming with no repeat value, interstitials, promotional announcements, PSAs of ten minutes or less, and channels producing annual revenues of less than $3,000,000.

5) Technical Standards for the Display of Closed Captioning, Caption Obstructions, and New Technologies.

The FCC also seeks comments regarding captioning technical display standards under CEA-708; obstructions to captions resulting from overlays, graphics, or split-screens; and issues caused by new technologies, including 3D and Ultra HDTV.

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If you have any questions regarding the FCC’s Closed Captioning Declaratory Ruling, the FNPRM, or would like to file comments or reply comments with respect to any of the questions raised by the FCC, please contact any attorney in our office.