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FCC Adopts Closed Captioning Rules for Video Programming Delivered Via Internet Protocol




by:
Lerman Senter PLLC - Washington Office

 
February 29, 2012

Previously published on February 27, 2012

The FCC has issued new rules that require closed captioning of Internet-protocol (IP) delivered video programming previously carried on television (whether via broadcast or an MVPD) with captions.  These obligations will affect television stations, cable systems, broadcast and cable networks, and other television program producers that make television programming available online.  The new rules, adopted following passage of the Twenty-First Century Communications and Video Accessibility Act of 2010 (the “CVAA”), will be phased in over time, beginning six months from publication of the rules in the Federal Register, which the FCC staff has said informally may occur shortly.

The online captioning rules impose obligations on two categories of entities, video programming owners and video programming distributors, which are defined as follows:

Video Programming Owner (“VPO”).  A VPO is a person or entity that either (i) licenses video programming to a video programming distributor that makes the programming available directly to end users through an IP based distribution method; or (ii) acts as a video programming distributor and has the right to license the programming to a video programming distributor that makes the programming available directly to the end user through an IP based distribution method.

Video Programming Distributor (“VPD”).  A VPD is a person or entity that makes video programming available directly to the end user through an IP based distribution method.  This would include television stations that make programming licensed from third parties available online.  (Although the CVAA also used the term Video Programming Provider, the FCC concluded that term was synonymous with a VPD.)

The new IP closed captioning rules complement, but do not replace, the existing television closed captioning rules.  Indeed, the FCC specifically noted that the online rules will not apply to programming that is separately subject to the television rules.  Thus, a station’s broadcast channel remains subject to the existing television captioning rules while its online programming stream will be subject to the new online rules.  Moreover, the FCC clarified that the online rules do not apply to “traditional managed video services” (i.e., services offering multiple channels of video programming, including IP-based video, such as AT&T’s U-verse system) that MVPDs provide to customers within their service area, regardless of the transmission protocol.  Instead such services remain subject to the existing television caption requirements.

IP Captioning Rule Requirements

  • All full-length video programming shown on broadcast or MVPD-delivered television with closed captions must include captions when the programming is subsequently delivered online.

  • VPOs must send program files to VPDs with all required captions included.

  • VPDs must enable the “rendering or pass through” of all required captions to end users, including through the hardware/software the VPD makes available for this purpose.  Thus, if a VPD chooses to use an application, device, or plug-in to deliver video to consumers, it must make certain that any closed captions can be displayed on the relevant screen and be readily available to users.

  • VPOs and VPDs must agree upon a “mechanism” to make information regarding video programming subject to the CVAA available to VPDs on an ongoing basis.

  • The captions provided by VPOs to VPDs must be of at least the same quality as the TV captions for the same programming, and VPDs must maintain the quality of the captions provided by the VPOs.

    • The FCC will examine factors such as completeness, placement, accuracy and timing in determining whether the captioning quality requirement has been met.

    • The FCC expressly stated that if the television captions were created using the “electronic news room” captioning technique, the same text could be used online in compliance with the new rules.

  • Programming that appears on television with captions after the effective date of the online captioning rules will be subject to those rules even if the programming was exempt from the television captioning requirements, but was nevertheless captioned voluntarily.

  • Once a program has been shown on television with captions after the effective date of the online captioning rules by any VPD, all VPDs must enable the rendering or pass through of closed captions to the end user, except for any VPD that obtains an individual exemption due to economic undue burden as described below.

Compliance Deadlines

Publication of the online rules in the Federal Register triggers the following compliance deadlines:

  • Six months from publication:  All prerecorded programming not edited for Internet distribution must be captioned online if it is shown on television with captions.

    • Programming is considered “edited for Internet distribution” if the television version of the program is “substantially edited prior to its Internet distribution.”

    • The deletion of entire scenes or alterations to the televised version of musical scores constitutes substantial editing. Mere changes to the number or duration of advertisements do not.

  • Twelve months from publication:  All live and near-live programming subject to the requirements must be captioned online if it is shown on television with captions.

    • “Live” programming is programming that is shown on television “substantially simultaneously” with its performance.

    • “Near-live” programming is programming that is performed and recorded less than 24 hours prior to the time it was first aired on television (e.g., a late-night talk show recorded earlier the same day).

  • Eighteen months from publication:  All prerecorded programing that is edited for online distribution and subject to the requirements must be captioned if it is shown on television with captions.

  • In addition, archived content already in the VPD’s library without captions before it is shown on television with captions must be captioned as follows:

    • Beginning two years after publication of the rules in the Federal Register, this programming must contain captions online within 45 days of being shown on television.

    • Beginning three years after publication of the rules in the Federal Register, this programming must contain captions online within 30 days of being shown on television.

    • Beginning four years after publication of the rules in the Federal Register, this programming must contain captions online within 15 days of being shown on television.

We will advise you when Federal Register publication of the online rules takes place.

Video Programming Subject to Online Captioning

  • Under the online rules, all nonexempt, full-length video programming delivered by IP must be captioned, subject to the relevant compliance deadlines.

  • The online rules define “full-length video programming” as “video programming that appears on television and is distributed to end users, substantially in its entirety, via IP”, with “video programming” being defined as “programming by, or generally considered comparable to programming provided by a television broadcast station, but not including consumer-generated media.”

    • The “substantiality” component of the definition recognizes that a VPO or VPD may not remove a few minutes or brief segments from a full-length television program in order to avoid the online captioning requirements.

    • Video clips and outtakes posted online will not qualify as full-length video programming subject to the online captioning requirements unless they are included in a full-length captioned television program.

    • Full-length programming that is posted online in multiple segments to enable consumers to more readily access a particular program segment will constitute full-length programming subject to the online captioning rules.

    • The FCC noted the importance of making news content available to all citizens and encouraged that all TV news programming made available online, even if posted only as news clips, should contain captions.  Indeed, the FCC said that if it finds consumers with hearing disabilities are not getting access to critical areas of programming, such as news, because of the manner in which programming is posted, it may reconsider the issue.

  • “Consumer-generated media” is defined as content created and made available by consumers to online websites and services on the Internet.

  • When consumer-generated content is shown on television as part of a captioned full-length program which a VPD later distributes online, the online version of the captioned full-length program must include captions.

Program Status Mechanism

  • The FCC declined to establish a specific mechanism for VPOs to inform VPDs of online captioning requirements.  Rather, it afforded VPOs and VPDs discretion to develop workable mechanisms provided sufficient information is made available to the VPD to determine whether captioning of particular programming is required.

  • Any mechanism used must indicate that a particular program is subject to the online captioning requirements or indicate why the program is not required to be captioned (e.g., because the program has never been displayed on television, because the program has never included captions when displayed on television, etc.).  This information must be updated as necessary.

  • VPDs may choose, but are not required, to use certifications as the method of determining whether captioning is required. VPDs may rely in good faith on such certifications provided: (i) the certification includes a clear and concise statement as to why captioning is not required; and (ii) VPDs are able to produce the certification to the FCC.  The FCC stated that VPDs should retain any such certifications until one year after they cease making the relevant programming available via IP.

  • Any uncaptioned, archived IP-delivered programming that is not subject to the online captioning requirements as of the effective date of the online rules may later become subject to the requirements once it is shown on television with captions after the rules become effective.  VPOs must provide updated information to VPDs regarding such programming pursuant to any agreed upon mechanism if a program’s captioning requirement changes.  For example, if an agreed upon mechanism makes use of certifications, the VPO would have to provide a VPD with an updated certification to inform the VPD when a program in the VPD’s library had been shown on television with captions after the applicable date - and thus was then subject to the online captioning requirements.

Economic Undue Burden Exemptions

  • The online rules establish procedures enabling VPOs and VPDs to petition for an exemption from the captioning requirements based on “undue economic burden.”

  • Exemption requests will be evaluated using four factors: (i) the nature and cost of adding closed captions; (ii) the impact on the operation of the provider or program owner; (iii) the financial resources of the provider or program owner; and (iv) the type of operations of the provider or program owner.

  • Such exemptions may be granted on a full or partial-exemption basis, and may be granted as either a permanent or temporary exemption.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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