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UPDATE: FCC Issues Closed Captioning Declaratory Ruling and Order; Further Notice of Proposed Rulemaking

By Maria T. Browne
01.15.09
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The Jan. 13, 2009, Federal Register marked formal publication of two Federal Communications Commission (FCC) actions that had been released on Nov. 7, 2008: a declaratory ruling and order and a further notice of proposed rulemaking relating to closed captioning of television programs. As detailed in DWT's November 2008 advisory, the ruling and order directly affect all video programming distributors—broadcasters and cable and satellite providers—and will indirectly impact cable program networks as well.

Federal Register publication of these closed captioning actions establishes dates relevant to new FCC regulations and to its ongoing rulemaking. Broadcasters and cable providers should take note that the FCC's clarifications concerning the availability of certain exemptions relevant to the DTV transition become legally effective in February. Other new captioning rules are subject to an Office of Management and Budget (OMB) approval process, in which interested parties may weigh in.

By virtue of the Federal Register publication, the new FCC closed captioning rules and policies are effective February 12, 2009. Under the new rules all digital programming must be captioned in accord with long-standing FCC rules.

In addition, a broadcaster's transition from analog to digital does not qualify either its main digital channel, or any multicast channels, for the closed captioning rules' new-network exemption (which exempts networks from captioning requirements for four years post-launch), and does not qualify its main digital channel for the low-revenue exemption (which exempts channels that generate less than $3 million in annual revenue).

Finally, comments in response to the further notice of proposed rulemaking are now due February 12, 2009, on whether a broadcaster's multicast channels should be eligible for the low-revenue exception.

Significantly, publication of the ruling and order in the Federal Register did not set an effective date for other new FCC captioning rules that require providers of cable and broadcast programming to (1) make personnel available to address immediate captioning concerns raised by viewers while they are watching a program; (2) respond to non-immediate concerns in accord with a revised, streamlined consumer complaint process; and (3) to designate and publicize a phone number, fax number, and e-mail address to enable customers to contact such personnel. Those rules are subject to review by the OMB and cannot take effect until OMB approves them. Comments on whether OMB should approve the rules are due by March 16, 2009.

Details about the new captioning rules relating to personnel requirements, the complaint process, and point-of-contact posting and reporting, along with details about the other new and proposed rules the FCC adopted, are available in our November 2008 advisory.

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