FCC Issues Closed Captioning Declaratory Ruling and Order; Notice of Further Rulemaking Proceeding

On Friday, November 7, the Federal Communications Commission (FCC) released the text of a declaratory ruling and order, and initiated a further rulemaking proceeding pertaining to closed captioning. The ruling and order directly affects all video programming distributors—broadcasters and cable and satellite providers—and likely will indirectly impact cable program networks as well. For broadcasters, the FCC clarified several captioning requirements pertaining to the transition to digital broadcasting.

All video programming distributors will be required to make personnel available to address immediate captioning concerns raised by consumers while they are watching a program and to respond to non-immediate captioning complaints in accordance with a revised, streamlined consumer complaint process. The rulemaking proceeding may affect the eligibility of broadcasters delivering multicast channels to exempt low revenue channels from captioning requirements.

The new and revised rules will become effective 30 days after their publication in the Federal Register. Comments in the rulemaking proceeding are due 30 days after its publication in the Federal Register, with reply comments due 15 days thereafter. A new captioning contact requirement and a new complaint-forwarding rule will require approval by the Office of Management and Budget.

This advisory provides an overview of the ruling and order, and of the rulemaking proceeding, and a brief background on captioning requirements.

The ruling and order clarifies certain closed captioning obligations of video programming distributors—including broadcasters and cable and satellite providers—expanding the options and streamlining the process for filing closed caption complaints, and requiring programming distributors to publicize and make available personnel capable of addressing consumer captioning concerns. Significantly, the FCC's order does not impose quality standards for captions, monitoring or reporting obligations, or per-violation forfeiture amounts, all of which had been advocated by the hearing-impaired community.

The rulemaking proceeding will determine whether a broadcaster's multicast channels should be eligible for the existing exemption for channels generating less than $3 million in revenue during the prior year.

Background

Although the FCC's captioning requirements are directly applicable only to “video programming distributors,” i.e., broadcast stations, cable operators and satellite providers, as a practical matter, distributors generally assign those responsibilities contractually to the program networks and program producers whose programming they distribute. When the FCC crafted its closed captioning rules in 1997, it created a phased-in schedule of compliance to allow the television industry to “ramp up” to full captioning over many years.

The transition schedule for English-language programming concluded in 2005, and since Jan. 1, 2006, broadcast stations and cable networks have been required to caption 100 percent of new, English-language programming that is not otherwise exempt. The transition schedule for new Spanish language programming ends on Dec. 31, 2009, and pre-rule programming on Dec. 31, 2011.

At the end of these transition periods, 100 percent of new, non-exempt programming and 75 percent of pre-rule non-exempt programming (i.e., programming that was first published or exhibited before Jan. 1, 1998 (analog programming) or before July 1, 2002 (digital programming)) must be captioned. Programming is exempt from the captioning requirements if it falls under one of many self-executing exemptions set forth in the rules or is determined to be eligible for a waiver of the requirements based upon undue burden.

Digital programming issues

No digital broadcast exemption. The FCC's declaratory ruling addresses several issues related to the February transition to digital transmission for full-power broadcasters. First, the declaratory ruling clarifies that there is no exemption in the rules for “digital programming” and that all digital programming must be captioned in accordance with the benchmarks applicable to the programming type—both before and after the February transition.

In addition, the FCC clarifies that the transition from analog to digital broadcasting does not qualify either a main digital channel or a multicast channel for the new network exemption (which exempts networks from captioning requirements for four years after launch).

The ruling also states that the exemption for channels that generate less than $3 million in annual revenue does not apply where a broadcaster ceases operation on its current analog channel and commences digital broadcasting. In other words, if a network or station had to caption before the digital transition, it does not somehow become a different “new” network or station after the transition.

Technical “reminders.” The FCC also issued two reminders to video programming distributors relevant to the digital transition. First, the FCC reminds broadcasters and cable operators that even when transmitting digital programming with digital (CEA-708) captioning, they must also transmit analog (CEA-608) captioning for viewing on analog sets. Second, the FCC also reminded cable operators and satellite providers that their set-top boxes must transmit all available captions to the television set, for both analog and digital formatted programs, intact and in a way that can be displayed by captioning decoders. The FCC noted that it has received complaints that some equipment provided by cable and DBS providers removes captioning from some programs.

Multicast rulemaking proceeding. The rules have always contained an exemption for a program channel that generates less than $3 million per year in revenue. Some small television stations have fallen under this exemption, as have some small cable program networks.

In this order, the FCC requests comment on whether, for purposes of determining the applicability of the $3 million revenue exemption, each multicast stream of a broadcast station should constitute a separate channel, in which case the channel would be exempt from captioning if it does not generate $3 million on its own, or whether all of a broadcaster's digital streams should be considered one “channel” for purposes of assessing the channel's revenue.

Most broadcasters have assumed that their digital channels were separate channels within the meaning of the rules, meaning that they could try out new and innovative programming and not have to worry about captioning that programming unless that program stream generated substantial revenue. Broadcasters who have established their programming budgets based on this assumption may want to file comments in this proceeding.

New captioning contact requirements and streamlined complaint process

New captioning contact requirements. The order imposes significant new requirements on video programming distributors for fielding inquiries concerning captioning. When the new rules become effective, video programming distributors must make personnel available to address immediate captioning concerns raised by consumers while they are watching a program. Distributors must designate a telephone number, a fax number and an e-mail address to enable customers to contact such personnel.

The FCC also expects distributors to take measures to accommodate calls placed through a Telecommunications Relay Service operator. The pending new rule states that “customers using this dedicated contact information must be able to reach someone, either directly or indirectly, who can address the consumer's captioning concerns.” Distributors are not required to alter their hours when they have staff available, but if calls are placed when staff is not available, such calls and inquiries must be returned or addressed within 24 hours.

Finally, the rule requires that for captioning problems not residing with the distributor, “the staff person receiving the inquiry should refer the matter appropriately for resolution.” Although the rules provide distributors some flexibility in how they resolve consumers' immediate captioning concerns, the FCC clearly expects that distributors will address such issues on a priority basis.

In addition, distributors also must separately designate a contact person for the receipt of written (non-immediate) captioning complaints. All captioning contact information must be included on invoices, in telephone directories and on Web sites. The FCC also will maintain a list of video programming distributors' contacts for closed captioning. Distributors therefore will be required to file contact information with the FCC within 30 days after the new rules become effective.

Streamlined complaint process . In response to requests by advocacy groups for persons with hearing disabilities to strengthen the FCC's captioning rules, the FCC amended its closed captioning rules to streamline the complaint process. As amended, the rules now provide as follows:

• Consumers may now either file a complaint directly with the FCC or with the distributor, i.e., cable operator, broadcaster or DBS provider. Previously, consumers were required to first file complaints with distributors.
  
  
• If a complaint is filed with a distributor, it will be required to respond to the consumer within 30 days. If the complainant is unsatisfied with the response, the consumer may file a complaint with the FCC within 30 days.
  
  
• If a complaint is filed directly with the FCC, distributors will be required to respond to the FCC within 30 days. Previously, distributors were required to respond to FCC complaints within 15 days.
  
  
• Complaints must be filed within 60 days of the alleged violation (whereas previously complaints could be filed within the calendar quarter in which the alleged violation occurred).
  
  
• If cable or satellite provider receives a complaint for a broadcast station or programming over which it has no editorial control (i.e., broadcast, PEG or leased access programming), it will be required to forward the complaint to the appropriate entity within seven days and inform the complainant.

Significantly, the FCC's order does not adopt standards for non-technical quality of closed captioning (e.g., accuracy of transcription), establish specific “per violation” forfeiture amounts for non-compliance or require distributors to file quarterly compliance reports with the FCC. Beyond the changes described above, the FCC declined to amend or add to its existing regulations.