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Closed Captioning Obligations of Video Programming Distributors

December 1, 2006

Since January 1,2006, video programming distributors ("VPDs") have been required to provide closed captioning for all new, nonexempt English programming (see "Memorandum to Clients," dated December 23,2005).¹ The FCC also has elaborated on the impact of the new 100% benchmark on VPDs' obligations to make accessible to disabled viewers any emergency information provided (see "Memorandum to Clients," dated July 24, 2006), which the FCC has further clarified as outlined below. In addition, the FCC has under consideration a large number of requests seeking an exemption from the closed captioning requirements due to an alleged undue burden. In light of these developments, outlined below is a brief overview of the FCC's closed captioning rules.

Responsibility for Compliance

Even though closed captioning is typically provided by programming suppliers, under the FCC's regulations, the FCC ultimately holds VPDs responsible for compliance with the closed captioning rules. As such, VPDs should ensure that their programming contracts with program suppliers include appropriate allocation of closed captioning responsibilities. While VPDs may rely on certifications from programming providers that their programming meets closed captioning requirements to demonstrate compliance with the rules, VPDs must remain vigilant with respect to such certifications, scrutinizing them to confirm that the provider is meeting applicable closed captioning benchmarks.²

Current Closed Captioning Requirements

VPDs must caption 100% of new, nonexempt English programming and at least 900 hours of new, nonexempt Spanish programming, as measured on a quarterly basis.³ "New, nonexempt programming" is analog programming first published or exhibited on or after January 1, 1998, or digital programming prepared or formatted for display after July 1, 2002, that is not otherwise exempt from the closed captioning requirements.

VPDs also are required to caption at least 30% of both pre-rule English and pre-rule Spanish nonexempt programming quarterly.⁴ "Pre-rule, nonexempt programming" is video programming that was first published or exhibited before January 1, 1998, or digital programming created before July 1, 2002, that is not otherwise exempt from the closed captioning requirements. In addition, VPDs are obligated to pass through closed captioning where the programming already contains captions.

Exclusions and Exemptions

The closed captioning rules exclude certain programming, such as programming over which VPDs are deemed to exercise no editorial control (e.g., programming offered by broadcasters, leased access, or PEG programming) and advertisements of five minutes or less. The closed captioning rules also provide several exemptions, including the following "self implementing" exemptions (where the VPD is not required to petition the FCC for an exemption from the rules):

• Channels that produced less than $3 million in annual gross revenues during the previous calendar year;

• Captioning expenses exceeding 2% of the annual gross revenues received during the previous calendar year as related to a particular channel (VPDs, however, must caption up to 2% of previous year's gross revenues);

• Non-news programming of local public interest that is locally produced and distributed by the VPD, has no repeat value, and for which the "electronic newsroom technique" ("ENT") of captioning is not available. This exemption applies only to a limited class of truly local materials, such as local parades, local high school and other nonprofessional sports, live unscripted local talk shows, and community theater productions;

• Late-night programming that is distributed between 2 a.m. and 6 a.m. local time (or, if the programming is distributed for viewing in more than one time zone, during any continuous four-hour period between 12 a.m. and 7 a.m. local time in any location where that service is intended for viewing); and

• Primarily textual programming, such as program schedule channels or community bulletin boards, where the content of the soundtrack is displayed visually through text or graphics. The FCC has indicated that weather, sports, and home shopping programming are not considered primarily textual programming.

If no self-implementing exemption applies, a programming provider or VPD may petition the FCC for an exemption from the closed captioning requirements where compliance would result in an "undue burden" (i.e., significant difficulty or expense).

In light of the phase-in of the 100% closed captioning benchmark for new programming, hundreds of entities have filed undue burden petitions at the FCC. The FCC recently granted a number of these petitions, seemingly changing course from previous decisions addressing the undue burden standard (e.g., the FCC overruled a previous case suggesting that petitioners seeking an undue burden exemption must solicit assistance with closed captioning costs from distributors of their video programming). The hearing-disabled community has challenged these grants, alleging an inappropriate relaxation of the undue burden standard, as well as the FCC's failure to first seek public comment. As a result of the backlash, the FCC recently placed hundreds of undue burden petitions on public notice, holding in abeyance those requests it previously granted without public comment until the pleading cycle ends.

Emergency Programming Obligations

VPDs are required to ensure that any emergency information that they voluntarily provide to viewers is also accessible to both hearing and visually impaired persons in the geographic area in which the emergency is OCCUlTing. Emergency information is information about a current emergency that is intended to further the protection of life, health, safety, and property, i.e., "critical details" regarding the emergency and how to respond to the emergency.⁵ Neither the self-implementing exemptions nor the "undue burden" exemption apply with respect to a VPD's obligation to make emergency information accessible to hearing and visually impaired persons.

After the 100% benchmark for new, nonexempt English programming became effective, the FCC issued a public notice suggesting that only those entities that used ENT as permitted by FCC rules would continue to be allowed to use textual displays such as scrolls or crawls to provide closed captioning of emergency programming; all other VPDs were required to provide real-time captioning to comply with their emergency programming obligations (see our "Memorandum to Clients," dated July 24, 2006). The FCC more recently clarified, however, that all VPDs may continue to rely on other means of visual presentation (such as open captioning, scrolls, or crawls) for purposes of making emergency information accessible to the hearing impaired community, since it is often difficult to secure closed captioning resources on short notice during emergency situations.⁶

For the visually impaired, emergency information provided in the video portion of the programming must be aurally described,⁷ Additionally, where emergency information is not provided in a regularly scheduled newscast or a newscast that interrupts regularly scheduled programming, the aural description must be accompanied by an aural tone.

The FCC recently entered into a consent decree with Fox Television Stations, Inc. ("Fox") related to its apparent violation of the emergency programming closed captioning rules. Pursuant to the consent decree, Fox agreed to make a voluntary contribution of $12,000 and must implement an "Emergency Visual Presentation Policy" requiring the subject station to, inter alia:

• Commit the emergency information closed captioning obligations to writing;

• Distribute the policy to employees at least every six months;

• Incorporate the policy into new employee training;

• Post reminders to employees on newsroom monitors to contact the station's captioning service as soon as possible when an emergency arises;

• Maintain a dedicated captioning computer that permits newsroom staff to initiate emergency captioning, order future captioning, verify that captioning has come online, and converse with captioners via the Internet remotely from any News Desk computer; and

• Provide viewers with shelter-at-home tips during coverage of certain weather emergencies (e.g., tornadoes, flash flooding, etc.) through special text graphics in addition to captioning, as warranted.

Other Considerations

As VPDs have begun to expand programming options (e.g., video-on-demand ("VOD"), time-shifting), and increase the types of programming available (e.g., local origination or original, local VOD short-form programming), closed captioning (and other FCC requirements) must be considered.

Please feel free to call with any questions or if we may assist with review of your company's closed captioning compliance measures.

1 Video programming distributors include broadcasters, cable operators, and satellite providers.

2 The certifications program suppliers often provide may not be adequately detailed or may not prove meaningful if given in advance without being periodically reviewed and updated.

3 The benchmark for new, nonexempt Spanish programming will increase to 1,350 hours per quarter on January 1, 2007.

4 The benchmark for pre-rule, nonexempt English and Spanish programming will increase to 75% per quarter on January 1,2008 and January 1,2012 respectively.

5 Examples of the types of emergencies covered by the FCC's rules include tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings, changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in the weather. Critical details include specific details regarding the areas that will be affected by the emergency, information concerning approved shelters or how to take shelter in one's home, instructions regarding how to secure personal property, information related to evacuation orders, evacuation routes, road closures, ways to obtain relief assistance, etc.

6 In other words, the FCC generally will not penalize a VPD for any de minimis or reasonable failure to caption emergency information so long as critical emergency information is provided by some other method of visual presentation.

7 An aural description, also known as "video description," involves the insertion of a narrative (voice-over) description of key visual elements in a program, which are not otherwise reflected in the dialogue, into natural pauses in the program's audio segment. While the video description requirements in section 79.3 of the FCC's rules were vacated in 2002, the FCC is of the view that the video description requirements related to emergency programming in section 79.2 of the FCC's rules were not affected by this decision. See Motion Picture Ass 'n of Am., Inc., et al. v. FCC, 309 F.3d 796 (D.C. 2002); Implementation of Video Description of Video Programming, 17 FCC Red 6175 (2002), at n. 7.

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