FCC Further Modifies Its Closed Captioning Rules

On September 22, 2016, new closed captioning rules that were adopted by the FCC earlier this year will take effect. The new rules will impact the allocation of responsibility for the quality of closed captions. The FCC’s Second Report and Order with respect to these new rules is available here. As we previously reported here, closed captions must meet certain non-technical quality standards, including accuracy, synchronicity, completeness, and placement. When the FCC adopted these captioning quality rules, it made video programming distributors (“VPDs”), rather than video programmers, ultimately responsible for compliance. A VPD is any television broadcast station, multichannel video programming distributor (“MVPD”), or any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the FCC. A video programmer is an entity that intends for its programming to be distributed to residential households. The definition of video programmer includes entities that create programming that also reach devices, such as tablets and other mobile devices, that can be used outside of the home.

In addition to reallocating responsibility for captioning, the new rules also make certain changes to the captioning certification process and the consumer complaint process, establish a compliance ladder, and require VPD and video programmer registration in a database hosted by the FCC. With the exception of the rules relating to the allocation of responsibility, which will become effective on September 22, the remaining rules will not take effect until they are approved by the Office of Management and Budget (“OMB”). We will let you know when the remaining rules become effective.

Allocation of Responsibility

VPDs and video programmers will now share responsibility for ensuring that programming complies with the non-technical captioning quality rules, although the FCC has emphasized that it expects VPDs to ensure that nonexempt programming is captioned. Each entity will be responsible for any captioning quality issues that are primarily within that party’s control. As a result, video programmers will be responsible for quality problems stemming from the production of captions and the transmission of captions to the VPDs. Problems due to faulty equipment or the failure to pass through captioning data intact will be the responsibility of the VPD. In some instances, it may be that both the VPD and the video programmer are held jointly responsible for a violation of the captioning quality rules. The new allocation of responsibility will allow the FCC to bring enforcement actions against either a VPD or a video programmer if there are problems with captioning quality.

The responsibility to ensure that closed captions are distributed to viewers remains with VPDs. However, video programmers are responsible for ensuring that captions are inserted into all of the video programmer’s nonexempt programming.

Captioning Certifications

To ensure compliance with the captioning rules, VPDs are entitled to rely on two types of certifications from video programmers. The first, which is a non-mandatory certification, is a general certification demonstrating that a program complies with the obligation to provide closed captioning. The second, which is a required certification, demonstrates compliance with the Commission’s non-technical captioning quality rules. That certification must be made “widely available” by video programmers and VPDs must report to the Commission any video programmer that has not provided the required certification.

When the new captioning certification rules go into effect, both of these certifications will become mandatory. Instead of making the certifications “widely available,” video programmers will need to file their certifications with the FCC. The rules anticipate that the first certification must be filed directly with the FCC by July 1, 2017, with annual certifications to be made each July 1 thereafter. The FCC will create a filing system for video programmers to file their certifications. Video programmers will also have to file supplemental certifications for any new programs launched during the year. Video programmers will be held responsible for any false certifications or if they fail to provide the required certification. VPDs will be responsible if they rely on a certification they know to be false or if they carry programming that is not captioned and has not been certified. Because certifications will be filed with the FCC, VPDs will no longer have to report non-compliant video programmers.

The requirement to submit these certifications to the FCC will not apply to television broadcast stations for programming that is broadcast by the television station. However, if the broadcast station produces programming to be aired by someone else, then the station would need to submit a certification as a video programmer. MVPDs may also require broadcasters to provide similar certifications pursuant to the terms of their retransmission consent agreements.

Consumer Complaint Process

Consumers can file captioning complaints either with the FCC or directly with the VPD. The FCC will simultaneously serve any captioning complaints it receives on the named VPD and appropriate video programmer. Before shifting responsibility to video programmers, VPDs will first have to make efforts to identify the source of the issue and resolve any matters that are within the VPD’scontrol. This includes conducting a check of the program stream, processing equipment, and, if necessary, the complaining consumer’s equipment. If, after reasonable diligence, a VPD determines that the captioning issue was not within its control, it must certify such to the FCC, at which time the burden of resolving the captioning complaint will shift to the video programmer. The video programmer must then conduct its own diligence to determine the source of the issue. If the video programmer determines that it provided fully functioning captions to the VPD, then the VPD and video programmer must work together to resolve the problem.

For any complaints filed directly with the VPD, the FCC expects that VPDs will use the same diligence that VPDs would use had the complaint been filed directly with the FCC. VPDs do not, however, need to notify or make certifications to the FCC when the VPD receives a complaint directly from a consumer. VPDs will need to redact any personally identifiable consumer information (e.g., a consumer’s name, contact information, and other identifying information) before the VPD sends the complaint to the video programmer. VPDs will also need to assign a unique identifying number to each captioning complaint it receives directly from a consumer.

The new process will apply to any type of closed captioning complaint, not just complaints related to non-technical quality standards.

Compliance Ladder

For captioning quality complaints that indicate a pattern or trend of noncompliance, the FCC has adopted a compliance ladder similar to the one used for the enhanced Electronic Newsroom Technique rules, which we previously reported on here. If the FCC finds a pattern or trend of noncompliance, it will notify the VPD or video programmer of corrective measures that need to be taken. If there is further evidence of noncompliance, the VPD or video programmer will have to make a written action plan, describing measures it will take to come into compliance. It will also be required to perform spot checks of closed captioning performance and report those results to the FCC. If the pattern or trend continues, the FCC will take appropriate enforcement action.

VPD and Video Programmer Registration

VPDs are currently required to register with the FCC. Once the new rules become effective, both VPDs and video programmers will need to register with the FCC. The FCC will create a database on its website where VPDs and video programmers can register.

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If you have any questions about the closed captioning rules, please contact any attorney in our office.