By Jenny Paul and Marty Stern
The Federal Communications Commission adopted an order at its July meeting that extends its closed captioning requirements to online video clips from previously televised programming.
The new online closed captioning requirements will apply to video clips that a video programming distributor posts on its website or app and that it had previously televised in the United States with captions. The requirements will not apply to the extent that a video clip posted online contains an audio track that is substantially different from that aired on television. The requirements also do not currently apply to situations where a third-party programming provider, such as Hulu, posts clips from programming televised by a third party, although the FCC also asks for comment in a companion notice of proposed rulemaking whether the online video closed captioning requirements should be extended to those third-party providers as well.
Importantly, the FCC noted in its order that its online video closed captioning requirements will apply to the eligible video clips in the same manner as those requirements apply to full-length programming. This means that the new closed captioning quality requirements that the FCC adopted in February will apply to video clips. Those requirements include certain quality standards for accuracy, synchronicity (timing), program completeness, and placement of closed captions.
Compliance dates will differ based on the type of video clips. The compliance deadline for “straight lift” clips, which contain a single excerpt of a captioned television program with the same video and audio that was presented on television, is January 1, 2016. The compliance deadline for “montages,” which contain multiple straight lift clips, is January 1, 2017. For clips of video programming previously shown live or near-live on television with captions, the compliance deadline is July 1, 2017. The FCC will also allow a grace period of 12 hours after the live programming is shown on television and 8 hours after the near-live programming is shown on television before the clip must be captioned online. The requirements do not apply to content in a programmer’s library before the applicable deadlines.
In the notice of further proposed rulemaking, the FCC explores the possibility of adopting broader, more stringent closed captioning requirements in the near future. In addition to asking whether the requirements should apply to third-party programming providers, the FCC also asks whether it should decrease or eliminate the 12-hour and 8-hour grace periods for captioning clips of live and near-live programming.
In the notice, the FCC also voiced concern regarding the closed captioning of “advance” video clips — video clips that are posted online before programming is shown on television with captions. Specifically, the FCC stated that it is concerned with situations in which an advance video clip is posted online, video programming associated with that clip is later shown on television with captions, but the advance video clip remains online — and uncaptioned — after that television airing. The notice seeks comment on a variety of issues related to advance video clips, including whether the FCC should provide a timeframe within which closed captions must be added to IP-delivered advance video clips once the associated video programming is shown on television with captions.
The notice does signal that the FCC may limit its closed captioning involvement in one category of video clips called “mash-ups” — online videos that contain a combination of video clips that have been shown on television with captions and online-only content. Specifically, the FCC asks commenters to explore whether there is any statutory basis for excluding from its online captioning requirements the previously televised, captioned video clips embedded in mash-ups.