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.