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The FCC Modifies Its Closed Captioning Requirements

November 21 , 2008
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            The FCC recently released a Declaratory Ruling, Order, and Notice of Proposed Rulemaking modifying its closed captioning requirements to, among other things, take into account technological changes inherent in the nationwide digital television (“DTV”) transition for full power broadcasting, simplify the closed captioning complaint process, and explore application of the current regulations to broadcast digital multicast streams.  Each item is considered in turn below.

            In the Declaratory Ruling, the FCC clarifies that all digital programming, including high definition programming, must be captioned in accordance with currently applicable benchmarks.  Specifically, all “new,” nonexempt English programming and at least 1,350 hours of “new,” nonexempt Spanish programming must be captioned, as measured on a quarterly basis.  “New programming” is defined as analog programming first published or exhibited on or after January 1, 1998, or digital programming prepared or formatted for display after July 1, 2002.  In addition, at least 75% of “pre-rule” nonexempt English programming and at least 30% of “pre-rule” nonexempt Spanish programming must be captioned quarterly.  “Pre-rule programming” is video programming that was first published or exhibited before January 1, 1998, or digital programming created before July 1, 2002.

            There is no “digital exemption” to the closed captioning obligations, although a digital channel may be exempt in accordance with the self-implementing (e.g., for programming other than English or Spanish language, primarily textual programming, programming distributed in the late night hours, etc.) or “undue burden” exemptions available under the rules.  Even where an exemption applies, however, video programming distributors remain obligated to pass through closed captioning where the programming already contains captions.  Distributors are not obligated to create new digital captions where only analog captions are provided. 

            Where a broadcaster ceases operations on its current analog channel, and commences or continues operating its main digital channel, the main digital channel is subject to the relevant captioning benchmarks.  The broadcaster will not be entitled to rely on the self-implementing exemption that pertains to channels that generated less that $3 million in revenues during the prior year, nor will the “new network” exemption be applicable to a channel that merely transitions from analog to digital.   Broadcasters that are currently simulcasting on their analog and main digital channel must caption both the analog channel and the digital channel.

            The Declaratory Ruling also clarifies for video programming distributors that where some consumers continue to use analog televisions after the transition, the FCC’s rules require that each digital-to-analog converter box manufactured after June 30, 2002 must pass through available analog captioning information in a form recognizable by the receiver’s built-in caption decoder circuitry.  Similarly, video programming distributors providing customer premises equipment (e.g., set-top boxes) to subscribers are reminded that they are responsible for ensuring that such equipment transmits all available captions to the television set, for both analog and digital formatted programs.   

            The Order adopts certain proposals relating to closed captioning complaint procedures considered in a rulemaking initiated in 2005 in response to a joint petition filed by several advocacy groups.

            Because consumers often have difficulty determining the party responsible for captioning compliance, and thus, where to file complaints, the new rules permit the filing of complaints either with the video programming distributor or with the Commission.  Previously, consumers were required to first submit the complaint to the video programming distributor before seeking redress from the Commission.  The rules will continue to require that complaints be in writing (i.e., e-mail, fax, or letter form) to ensure that the complaint accurately reflects the concerns of the complainant.  Consumers may use the Form 2000-C which the FCC intends to revise to collect additional identifying information about the entity or entities against whom the complaint is directed. 

            Under new timelines adopted in the Order, closed captioning complaints must be filed within 60 days of a captioning problem.  Complaints first filed with the Commission will be forwarded to the video programming distributor.  Distributors must then respond within 30 days of receipt.  Responses to complaints first filed with the video programming distributor are due within 30 days.  A video programming distributor receiving a complaint regarding programming of a broadcaster must forward the complaint within seven days to the station and inform the complainant that it has done so.  These modifications represent a significant change from the previous rules, which often permitted consumers to file complaints several months after an alleged violation occurred and gave video programming distributors at least 45 days to respond to complaints received from consumers directly.  In addition, video programming distributors receiving complaints regarding broadcast programming previously had the option to provide the station’s contact information to the consumer so that they could follow-up with the programming source directly.    

            In the Order, the Commission also adopted new rules requiring video programming distributors to make certain contact information available to consumers to make it easier for them to report captioning problems and file complaints.

            For immediate concerns, such as captions suddenly disappearing or becoming garbled, video programming distributors must designate a telephone number, fax number, and e-mail address for purposes of receiving and responding to these issues.  Although not requiring any alteration of hours of operation or hours during which staff is available, where staff is on hand to address technical issues that may arise during the course of transmitting programming, they must also be able to address closed captioning issues.  Video programming distributors must take measure to readily accommodate incoming calls placed through a Telecommunications Relay Service (TRS) operator, and in situations where a distributor is not immediately available to respond to closed captioning issues, any inquiries received using this dedicated contact information should be addressed within 24 hours. 

            For closed captioning complaints submitted in writing, video programming distributors must provide contact information for the person with primary responsibility for closed captioning compliance.  Both types of contact information must be included on the video programming distributor’s website, in telephone directories, and in billing statements to the extent they exist.  Video programming distributors will also be required to file (and periodically update) this contact information with the Commission for placement on the FCC’s website following Office of Management and Budget approval of the rules.  

            Finally, in the Notice of Proposed Rulemaking, the FCC seeks comment on the application of the exemption set forth in Section 79.1(d)(12) of the Commission’s Rules to broadcast digital multicast channels.  This provision exempts from closed captioning requirements video programming channels that produced annual gross revenues of less that $3 million during the previous calendar year.  The Commission seeks comment on whether each programming stream on a multicast signal constitutes a separate channel or whether the broadcaster’s entire operations attributable to its digital allotment should be considered one channel for purposes of the closed captioning requirements.  The Commission believes that the former approach is likely to result in less captioned programming, and seeks input on this assumption.

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


Under the “new network” exemption, programming on a video programming network is exempt from the captioning requirements for the first four years after it begins operation.