FCC Requires Closed Captioning of IP-Delivered Program "Clips" Beginning January 1, 2016

As we previously reported in our February 27 and March 30, 2012 memos, current FCC rules require that full-length programming broadcast on television with closed captions must include captions when the programming is subsequently delivered by internet protocol (“IP”) online or an app. When the FCC adopted these rules for full-length programming, it excluded video clips from captioning requirements. The FCC is now extending its closed captioning rules to apply to clips of programming initially shown on television and later delivered over IP. The FCC is also requesting comments on certain issues related to the captioning of IP-delivered clips. This memo reviews the FCC’s new rules relating to the captioning of clips, the types of clips excluded from the new rules, and a description of the issues on which the FCC is seeking comments.

New Rules and Compliance Deadlines

As with IP-delivered full-length programming, the new rules apply to video programming distributors (“VPD”) (also referred to as video programming providers) and video programming owners (“VPO”). A VPD is a person or entity that makes video programming available directly to the end-user through an IP based distribution method; this includes television stations that make programming licensed from third parties available online. A VPO is a person or entity that either (i) licenses video programming to a VPD; or (ii) acts itself as a VPD to make the programming available directly to the end-user through an IP based distribution method.

The new rules apply to clips of programming, regardless of their content or length, first broadcast on television with closed captions and subsequently aired by IP on a website or app that is operated solely by the VPD that distributed the program on television. IP-delivered captions are subject to the same quality standards as captions on televised programming. VPOs must provide online captions of at least the same quality as the televised captions for the same programming; VPDs must maintain the quality of the captions provided by a VPO. However, the FCC recognizes that some IP-delivered clips may require recaptioning, and therefore de minimis differences between captions on television and IP-delivered clips of the same programming will be permitted. Finally, apps and plug-ins that are used for viewing IP-delivered clips must include the consumer tools required under current FCC rules, such as the ability to change caption font, size, and color.

The FCC has imposed the following three different deadlines for complying with the new rules, depending upon the type of clip posted online. The compliance deadlines are:

• Straight Lift Clips of Prerecorded Programming. Straight lift clips are clips that “contain a single excerpt of a captioned television program with the same video and audio that was presented on television.” Beginning January 1, 2016, straight lift clips of prerecorded programming delivered via IP must be captioned online if the associated video programming was broadcast on television with captions on or after January 1, 2016.
• Montage Clips of Prerecorded Programming. A montage is “programming contained in a single file that includes multiple straight lift clips,” whether “taken from different parts of a captioned full-length TV program or from different captioned TV programs.” Beginning January 1, 2017, montages of prerecorded programming must be captioned online if the associated video programming has been broadcast on television with captions on or after January 1, 2017. The FCC has cautioned the industry not to use this extended compliance deadline to turn clips that ordinarily would have been posted as straight lift clips (and therefore required to be captioned when presented via IP beginning January 1, 2016) into montages.
• Clips of Live and Near-Live Programming. Beginning July 1, 2017, clips that contain live or near-live broadcast programming must be captioned when presented via IP. Unlike straight lift clips and montages of prerecorded programming, which must have captions available immediately once posted online, clips of live or near-live programming will have a grace period before captions must be made available. Any clips that contain live programming will have a 12-hour grace period, and any clips that contain near-live programming will have an 8-hour grace period. The grace period begins when the television display of the programming concludes. By the end of the applicable grace period, any IP-delivered clips of live and near-live programming must contain captions.

To the extent a VPO or VPD finds compliance with these rules to be economically burdensome, it can file a captioning exemption request with the FCC under existing standards.

Clips Exempt from the New Captioning Rules

Certain clips are categorically exempt from the new FCC rules. As is the case for full-length programming, clips of programming that never aired on television, or that aired on television but did not contain closed captions, will not require online captions. Clips of programming that will air on television, but has not yet aired (“advance video clips”), also will not require captions. However, the FCC is considering whether it should provide a timeframe within which closed captions must be added to IP-delivered advance video clips from and after the time that the associated programming airs on television.

Only clips posted to websites or apps operated by the VPD that broadcast programming and then subsequently posted the associated clip online must be captioned. Clips posted to a website or app controlled by a third party will not have to be captioned.

Additionally, if a clip posted online contains audio that differs substantially from the audio aired on television, the clip is not required to be captioned. In contrast, if a brief introduction or advertisement is added to an otherwise covered clip, the clip will still need to be captioned.

So-called “mash-up clips” will be exempt from the new captioning rules. The FCC considers mash-up clips to be compilations of one or more clips that have been shown on television with captions, but are interspersed with additional content that has not been shown on television with captions.

Finally, the FCC recognizes that many VPDs already have a large number of video clips available to consumers online and has indicated that this number will increase until the applicable compliance deadlines go into effect. Accordingly, the FCC concluded that clips contained in a VPD’s online library prior to the applicable compliance deadline (January 1, 2016 for straight lift clips and January 1, 2017 for montages) will not be required to have captions.

Further Notice of Proposed Rulemaking (“FNPRM”)

In addition to adopting the new rules, the FCC is seeking comment on four issues related to the captioning of IP-delivered clips:

• Application of the IP Closed Captioning Rules to Third Party Video Programming Providers and Distributors. The FCC’s IP-delivered closed captioning rules apply only to VPOs and VPDs. Certain entities, such as news websites, do not distribute full-length video programming, but may make video clips available online. Additionally, certain entities, such as Hulu, distribute full-length video programming online, but do not distribute the programming on television. The FCC seeks comments on whether to impose captioning obligations on these third parties.
• Reduction or Elimination of the Grace Period for Clips of Live and Near-Live Programming. The FCC is considering decreasing or eliminating the grace period for clips of live and near-live programming in the future because it expects that technology will automate the process removing the need for the grace period. The FCC asks for comment on the timeframe within which the grace period should be decreased or eliminated, an appropriate justification for treating live programming and near-live programming differently, and a current survey of the technological developments relating to online captioning of live and near-live programming.
• Application of the IP Closed Captioning Rules to Mash-Ups. IP-delivered mash-ups are not now required to be captioned. The FCC seeks comment on the costs and benefits of applying the new captioning rules to mash-ups and additional information on any issues associated with the captioning on the portion of a mash-up that was shown on television with captions.
• Application of the IP Closed Captioning Rules to Advance Video Clips. IP-delivered advance video clips are not required to be captioned. The FCC asks whether it should provide a timeframe within which closed captions are required to be added to IP-delivered advance video clips once the associated programming airs on television and whether there are any difficulties associated with captioning advance video clips after the associated programming airs on television.

The comment and reply comment deadlines for the FNPRM have not yet been set. When the deadlines for comments and reply comments are announced by the FCC, we will release a further memo.

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If you have any questions regarding the FCC’s closed captioning rules or are interested in submitting comments to the FNPRM, please contact any attorney in our office.