FCC Requires Closed Captioning for Online Video Clips from Televised Programming

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. 

Online Video Captioning Rules Published in Federal Register

By Marty Stern and J. Bradford Currier

The FCC’s new closed captioning rules for previously televised online video were published in the Federal Register on March 30, 2011, with an effective date of April 30 and triggering additional deadlines for various IP video captioning requirements. The new rules implement IP closed captioning obligations required by the Twenty-First Century Video Communications and Accessibility Act of 2010 and initially proposed by the FCC in September 2011. Reports indicate that affected companies may launch legal and administrative challenges to the new rules now that they have been published.

The Report and Order adopting the rules consists of four key sections:

First, for owners, providers, and distributors of video programming, the new rules establish a regimented system for displaying closed captioning in both new and archived video content. The Report and Order defines video programming owners (“VPOs”) as “any person or entity that either (i) licenses the video programming to a video programming distributor or provider that makes the video programming available directly to the end user through a distribution method that uses Internet protocol; or (ii) acts as the video programming distributor or provider, and also possesses the right to license the video programming to a video programming distributor or provider that makes the video programming available directly to the end user through a distribution method that uses Internet protocol.” Meanwhile, the Report and Order defines video programming distributors (“VPDs”) and video programming providers (“VPPs”) identically as “any person or entity that makes video programming available directly to the end user through a distribution method that uses IP.”

Under the new regulations, VPOs will be required to include closed captioned files along with any video programming made available to VPDs and VPPs. The rules mandate that the quality of the required captioning be of “at least the same quality” as the captioning of the same programming when shown on television. Once they receive the required files, VPDs and VPPs must ensure the rendering or “pass through” of all required closed captioning content to end users, including through any equipment provided by the VPDs and VPPs such as television set-top boxes. The FCC obligated VPOs to establish a “mechanism” to make information available to VPDs and VPPs regarding whether certain video programming is subject to the closed captioning requirements on an ongoing basis. VPDs and VPPs which rely on the established mechanism in “good faith” will not be held responsible for determining whether captions are required for the programming files they receive. VPOs and VPDs may petition the FCC for case-by-case exemptions from the closed captioning requirements based on economic burden. The FCC declined to establish any categorical exemptions to the closed captioning requirements, but did indicate that de minimis failures to meet the new rules would not result in an actionable violation and regulated entities could achieve compliance through FCC-approved alternative means.

Second, the Report and Order established a deadline schedule for the captioning of new and archival video content. Prerecorded programming that is unedited for Internet distribution must meet the captioning requirement within 6 months of the March 30 publication date (September 30, 2012). Meanwhile, all live or near-live programming must be compliant within 12 months from publication (March 30, 2013), and prerecorded programming edited for Internet distribution must be adequately captioned within 18 months (September 30, 2013). For archival video programming content already available online without captions but which re-airs on television with captions, the FCC created an increasingly strict compliance schedule. In two years (March 30, 2014), such archival programming must be captioned within 45 days after it is re-aired. In three years (March 30, 2015), such programming must be captioned within 30 days after it is shown on television, with the timeline compressed to 15 days in four years (March 30, 2016). 

Third, the new rules broadly defined the types of “apparatus” that will be subject to the closed captioning obligations. The regulations cover not only physical devices such as television set-top boxes, personal computers, smartphones, tablets, DVD and Blu-ray players, but also all “integrated software” that is installed in a covered device by the manufacturer before sale or that the manufacturer requires the consumer to install after sale. By contrast, third-party video players independently installed by the consumer, but not required by the manufacturer to enable video playback, will not fall under the scope of the new rules. The new rules will also not extend to commercial equipment such as movie theater projectors or display-only monitors lacking playback capability. Critically, the FCC’s closed captioning requirements will no longer be limited to devices with screens larger than 13 inches, an exception originally established in the Television Decoder Circuitry Act of 1990

Manufacturers of covered devices will be able to petition the FCC for case-by-case waivers of the new rules due to “lack of achievability.” Whether compliance is achievable for a particular device will depend upon: (1) the costs of manufacturing a compliant device or software; (2) the technical and economic impact of compliance on the manufacturer and innovation; (3) the size and nature of the manufacturer’s operations; and (4) the extent to which the manufacturer offers other devices or software with accessibility features at differing price points.  As an alternative, manufacturers may also petition the FCC for a waiver by arguing that the device or software is “primarily designed” for activities other than receiving or playing back video programming. Beyond these exceptions, the FCC refused to create any categorical exemption to the closed captioning requirements for any specific device or software. All covered devices and software must achieve compliance with the closed captioning rules by January 1, 2014, although the FCC expects device manufacturers to take accessibility into consideration as early as possible during the design process for new and existing equipment.”

Fourth, the FCC adopted certain technical standards governing the color, size, font, opacity, and other aspects of the captioning text recommended by the Video Programming Accessibility Advisory Committee in July 2011. Additionally, although the FCC declined to adopt a mandatory format for the interchange or delivery of closed captioning content, the new rules established the Society of Motion Picture and Television Engineers Timed Text format (“SMPTE-TT”) as a “safe harbor” format. The FCC stated that the SMPTE-TT format met all of the technical aspects of the new rules and was already being used to reformat television content for Internet use. The FCC will continue to review industry practices for new safe harbor format options.

FCC Disability Accessibility Rules Published in Federal Register

By J. Bradford Currier, Marc Martin, and Marty Stern

In what the FCC described as the “most significant accessibility effort since the Americans with Disabilities Act,” manufacturers of tablets, laptops, smartphones and other devices will soon be required to ensure the accessibility of their equipment by disabled persons under final rules published in the Federal Register on December 30, 2011. The regulations, which will be phased in between January 30, 2012 and October 8, 2013, implement the disability accessibility requirements established in the Twenty-First Century Video Communications and Accessibility Act signed into law in October 2010.

Under the FCC’s Report and Order, manufacturers must make sure that device hardware and manufacturer-provided software allow disabled users to access advanced communications services such as email, voicemail, and text messaging unless such accessibility is not technically “achievable.” Manufacturers will only be responsible for the accessibility of software that they preload on their devices and will not be responsible for any software that is independently selected and installed by a user or any software which the user operates through cloud computing technology. Additionally, the new requirements will not apply to “customized equipment” created by the manufacturer for its enterprise customers which is not generally available to consumers or to devices designed primarily for purposes other than advanced communications services (e.g., electronic book reader devices).

Manufacturers may rely upon third-party hardware and software to meet the accessibility requirements so long as the third-party solutions are available at a nominal cost to the consumer. Manufacturers relying on third-party solutions must support these solutions for the life of the device or for two years after the third-party solution is discontinued, whichever occurs first. If a third-party solution is discontinued, the manufacturer must make another solution available, either through the manufacturer or another third-party entity. The disability access requirements also apply to any user guides, bills, or other customer service communications provided by the manufacturer to the user. The FCC did not impose any “universal design” plan for how devices must meet the accessibility requirements, leaving the door open for manufacturer innovation in disability access. 

Whether disability accessibility is “achievable” for a device will be evaluated under four factors: (1) the costs of manufacturing a compliant device; (2) the technical and economic impact of compliance on the manufacturer and device innovation; (3) the size and nature of the manufacturer’s operations; and (4) the extent to which the manufacturer offers other equipment with accessibility features at differing price points. The burden will be on the device manufacturer to prove that accessibility is not achievable regarding a particular device.  

Even if disability accessibility cannot be built into a device or offered for a nominal cost through a third-party solution, the manufacturer must still ensure that its devices are compatible with specialized equipment and software designed for communications access by disabled persons. Importantly, manufacturers may not install functions which impede usability by disabled persons. As a result, a device must “pass through” any features already included in content accessed by the user designed to improve accessibility, such as closed captioning. Consumers may file complaints with the FCC regarding the accessibility requirements and violators will be subject to administrative fines.

The new rules require manufacturers to “identify barriers to accessibility and usability” and to consider disability access performance objectives during device design, development, and evaluation. Manufacturers will also be required to maintain records indicating: (1) their efforts to consult with individuals with disabilities to develop compliant devices; (2) descriptions of the accessibility features of their devices; and (3) information regarding the compatibility of their devices with specialized accessibility equipment commonly used by disabled persons. The recordkeeping requirements remain under consideration by the U.S. Office of Management and Budget and will not take effect without the agency’s approval.

The FCC temporarily exempted small business entities from the accessibility requirements and will assess whether to make this exemption permanent through the Further Notice of Proposed Rulemaking published concurrently with the new regulations. The notice asks for industry input regarding how manufacturers can implement disability accessibility for Internet browsers and videoconferencing services included with devices as well as whether regulatory safe harbors should be created for manufacturers that adopt industry-created disability accessibility guidelines. The FCC will accept comments regarding the Notice of Proposed Rulemaking until February 13, 2012, with reply comments due on March 14, 2012.

FCC's Comment Deadline Set for Online Video Closed Captioning NPRM

The FCC's Media Bureau announced the following comment deadlines for the FCC’s recently released Notice of Proposed Rulemaking to adopt closed captioning rules for video programming delivered by Internet Protocol: Comments:  October 18, 2011. Reply Comments:  October 28, 2011. As we reported previously, the NPRM proposes closed captioning requirements mandated by the Twenty-First Century Video Communications and Accessibility Act of 2010 (“CVAA”). The new rules would apply to a broader range of devices, including mobile devices, and content providers would be required to meet a strict schedule based upon the type of content captioned.  Notably, under the NPRM, the FCC's closed captioning rules would no longer be restricted to television receivers or to those devices with screens larger than 13 inches, an exception originally established in the Television Decoder Circuitry Act of 1990.  The CVAA requires the FCC adopt these rules by January 12, 2012.

FCC Proposes Closed Captioning Rules for Online Video

By Marc Martin and Marty Stern

Closed captioning of online video for mobile and other devices is a step closer to reality with the FCC's release of a Notice of Proposed Rulemaking in connection with its implementation of the Twenty-First Century Video Communications and Accessibility Act of 2010 (“CVAA”). The CVAA required the FCC to adopt rules providing for the captioning of video programming delivered using Internet Protocol or IP if that programming previously appeared on television with captions. The new captioning regulations would apply to a broad category of IP-enabled devices, such as personal computers, mobile devices, videogame consoles, Blu-Ray players, and television set top boxes. Affected programming distributors will be able to seek hardship waivers from the proposed rules and will not be held responsible for minor compliance failures. Comments will be due within 20 days after publication of the Notice in the Federal Register, with reply comments due a quick 10 days after the deadline for initial comments.

Tech companies have already submitted numerous comments to the FCC in connection with CVAA proceedings, cautioning the Commission against adopting burdensome compliance obligations which could hamper innovation. The NPRM proposed a deadline schedule for the captioning of content, with pre-recorded programming unedited for Internet distribution meeting the captioning requirement within 6 months of the publication of the final rules in the Federal Register, live or near-live programming compliant within 12 months, and pre-recorded programming edited for Internet distribution adequately captioned within 18 months. The FCC chose not to adopt a controlling technical standard for the delivery of IP-enabled closed captioning.

The FCC also proposes in the NPRM to:

  • Require video programming owners to send captioned files for IP-delivered video programming to video programming distributors and video programming providers along with program files;
  • Obligate video programming distributors and video programming providers to “enable the rendering or pass through of all required captions to the end user”;
  • Mandate that the quality of all required captioning of IP-delivered video programming to be of “at least the same quality” as the captioning of the same programming when shown on television;
  • Adopt methods for handling complaints alleging a violation of the new requirements; and
  • Seek industry input regarding when an “apparatus” will fall under the obligations of the CVAA and when it is “technically feasible” for an apparatus to comply with the proposed rules.

The NPRM follows in the wake of the FCC’s August order reinstating video transcription requirements for the “big four” television networks, large cable systems, and direct broadcast satellite services.