Communications Advisory Bulletin
Increased Captioning Obligation for “Pre-Rule”
Video Programming: Effective January 1, 2008
By Burt
A. Braverman, Maria
T. Browne and James
W. Tomlinson
[September 2007]
Federal Communications Commission (FCC) requirements governing
closed captioning of “library” or “pre-rule”
English-language video programming will significantly increase on
Jan. 1, 2008. Pre-rule video programming is programming that was
first published or exhibited before Jan. 1, 1998 (for analog programming)
or before July 1, 2002 (for digital programming). The FCC’s
regulations require that 30 percent of all pre-rule programming
that is not otherwise exempt from a captioning obligation be captioned
per channel, per calendar quarter. Effective Jan. 1, 2008, the percentage
of pre-rule programming required to be captioned will increase to
75 percent per channel, per quarter.
The new 75 percent benchmark will apply to both analog pre-rule
video programming and digital pre-rule video programming, and will
remain at 75 percent indefinitely. (By contrast, the benchmark for
pre-rule Spanish-language programming will remain at 30 percent
until Jan. 1, 2012, when it will increase to 75 percent and then
remain at that level indefinitely.)
The FCC’s closed captioning requirements are directly applicable
only to “video programming distributors,” i.e., broadcasters,
cable operators, and DBS providers, but as a practical matter, distributors
generally assign those responsibilities to the program networks
and program producers whose programming they distribute. The increased
captioning requirement for pre-rule programming, coupled with the
full captioning requirement for new video programming (defined as
analog programming first published or exhibited on after Jan. 1,
1998, and digital programming first published or exhibited on or
after July 1, 2002), which took effect on Jan. 1, 2006, means that
very little non-exempt video programming may be uncaptioned in 2008
and beyond.
Some of the major categories of exempt programming are programming
distributed between 2 a.m. and 6 a.m., programming other than English-
or Spanish-language, and advertisements and public service announcements
of 10 minutes’ duration or less. Also, certain program networks
and broadcast stations remain fully or partially exempt from a captioning
obligation. For instance, video programming networks are fully exempt
for four years after their launch date, and any video programming
distributor or network that had less than $3 million in gross revenue
in the previous calendar year also is exempt. Moreover, no video
programming distributor or network is required to spend more than
two percent of its gross revenue in the prior calendar year on captioning
expenses.
Please contact us if you have any questions about compliance with
the increased benchmark for pre-rule programming or any other of
the FCC’s closed captioning requirements.
For more information, please contact:
This advisory is a publication of the Communications Group of Davis
Wright Tremaine LLP. Our purpose in publishing this advisory is
to inform our clients and friends of recent developments in the
communications industry. It is not intended, nor should it be used,
as a substitute for specific legal advice as legal counsel may be
given only in response to inquiries regarding particular situations.
Attorney advertising. Prior results do not guarantee a similar outcome.
Copyright © 2007, Davis Wright Tremaine LLP.
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