Increased Captioning Obligation for “Pre-Rule” Video Programming: Effective January 1, 2008

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.