Yesterday, at its February Open Meeting, the Federal Communications Commission revisited its closed captioning rules to answer open questions regarding which entities in the video programming production and distribution process bear direct responsibility for compliance with the captioning requirements. In a 2014 Report and Order and Further Notice of Proposed Rulemaking, the Commission sought comment on reapportioning captioning responsibility among the various stakeholders in the programming distribution chain. In adopting a Second Report and Order the FCC now moves to a new shared-responsibility, certification and burden-shifting model that, while still imposing primary responsibility on video programming distributors (VPDs) such as broadcasters, cable and DBS operators, newly shifts some of that responsibility directly to video programming owners and producers (VPOs and VPPs, referred to together below as VPOs).

Since the first captioning order issued in 1997, ultimate responsibility in this area has rested with VPDs. But various parties had urged the FCC to reallocate that responsibility or to at least create a burden-shifting liability mechanism in which VPDs would initially investigate captioning problems, but could shift responsibility for resolving issues to VPOs as necessary. Now, pursuant to new rules, which have not been released as of this writing, the Commission enacts the following changes:

• Responsibility for compliance with closed captioning requirements – including both the inclusion of captions in programming, and their quality – is now allocated to both VPDs and VPOs with respect to the steps in the captioning process that are within each party’s primary control. In many respects, this new regulatory assignment of responsibility mirrors what has been contractually required in VPO/VPD distribution agreements in the past.
  • In particular, responsibility for provisioning of captions in programming in the first instance, and their quality as delivered for distribution, will fall upon VPOs, up to the point of hand-off to the VPD for distribution.
  • Responsibility thereafter for passing through captions, and for ensuring that the captions are maintained and delivered intact, will fall upon VPDs.
• Certifications that VPOs presently provide to VPDs attesting either that they are in compliance with the captioning rules, that they adhere to best practices regarding captioning compliance, or that they are exempt, must now instead be filed by VPOs directly with the FCC, annually, rather than with VPDs.
• Certifications by VPOs that claim exempt status must include a showing of how the exemption applies.
• No longer will VPDs need to use best efforts to obtain VPO certifications, insofar as the VPOs will be required to file them with the Commission.
• The filing obligation for VPOs is also expected to include having to provide through the FCC’s online portal contact information for personnel at the VPO with responsibility for captioning compliance.

In connection with this redistribution of responsibilities, the FCC also announced that it is amending the closed captioning complaint rules. First, whereas the current rules assign the duty to respond to captioning complaints primarily to VPDs – though VPDs often rely on VPOs to investigate and address the complaints – the revised rules are expected to incorporate a new burden-shifting model. Under the amended rule, VPDs will still initially have to investigate and respond to captioning complaints. However, the rules will allow VPDs to shift responsibility for addressing the complaint to the VPO if the VPD’s investigation finds the asserted problem arises not from matters principally within the VPD’s primary control, but rather from the creation and/or delivery of the programming for distribution that is primarily in the VPO’s control.

Second, the rules are expected to incorporate a “compliance ladder” for closed captioning quality issues. Under this approach, VPDs and VPOs will be provided opportunities to take informal actions to correct captioning shortcomings, short of facing enforcement action by the FCC. However, it appears that the FCC’s enforcement staff will have the ability to move directly to an enforcement action, if it is determined that circumstances warrant it in any particular case. The compliance ladder approach also apparently will incorporate a new "intentional and deliberate” standard for assessing culpability for captioning noncompliance.

Further details on the new rules and the Second Report and Order will be available upon the FCC’s release of the Order and accompanying documents. We will update this advisory with additional information as we learn of it.