FCC Generally Affirms IP Closed Captioning Rules on Reconsideration, Seeks Further Comment on Limited Issues

by Davis Wright Tremaine LLP
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The Federal Communications Commission (FCC) has released an Order on Reconsideration and Further Notice of Proposed Rulemaking (FNPRM) affirming, modifying and clarifying certain aspects of its closed captioning rules for Internet Protocol (IP) video adopted in January 2012 pursuant to the 21st Century Communications and Video Accessibility Act (CVAA). Specifically, the FCC:

  • Deferred final resolution concerning whether video clips (defined as “excerpts of full length programming”) should be included within the scope of covered programming until more information is gathered through a public notice to be issued within the next six months;
  • Affirmed its decision to allow video programming providers (VPPs) and distributors (VPDs) to enable either the rendering or pass through of captions to end users;
  • Declined to impose caption quality standards at this time;
  • Refused to exempt but temporarily extended the compliance deadlines for removable media players such as Blu-ray and DVD players that do not currently render or pass through captions, pending resolution of issues raised in the FNPRM;
  • Declined to limit covered apparatus to those intentionally designed to play back video programming but clarified its rule and issued two class-based waivers in response to requests by the Consumer Electronics Association (CEA) to exclude equipment such as digital cameras, baby monitors and security cameras, which play back consumer generated images and not “video programming” as defined by the CVAA; and
  • Clarified that the closed caption decoder requirements apply to equipment manufactured (vs. sold or imported) on or after Jan. 1, 2014.

Among the most closely watched issues addressed in the Reconsideration Order was the FCC’s prior determination that IP video captioning requirements extend only to “full-length programming” that appears on TV with captions and is then distributed via IP to end users substantially in its entirety, and not to “clips” from such programming. The FCC had encouraged, but did not require, captions of online outtakes and video clips. Public interest groups for the deaf and hard of hearing asked the FCC to reconsider this determination, expressing particular concerns about the accessibility of online news clips. This matter was intensely debated before the agency.

The Reconsideration Order leaves the video clip exclusion undisturbed, but “defers a final decision… pending the development of additional information regarding the availability of captioned video clips.” In doing so, the FCC notes its “particular concern about availability of captioned news clips, which tend to be live or near-live,” while observing that live/near-live IP video only recently became subject to the closed captioning rules. Accordingly, the FCC indicates that the industry should soon have “developed more efficient processes to handle captioning of live and near-live programming, including news clips… posted on websites.” It expects the industry “voluntarily will caption an increased volume of video clips, particularly news clips.” The Reconsideration Order instructs the Media Bureau to issue a public notice within the next six months seeking information on the industry’s progress in captioning IP video clips. If the record developed in that proceeding indicates a lack of access to critical areas of programming due to absence of captioning on IP video clips, the FCC says it may reconsider its decision to exclude clips.

The FCC also denied TV Guardian’s request to prohibit VPPs and VPDs from rendering captions where passing through captions is technically feasible, finding that request to be inconsistent with the language of the statute.  The FCC also noted that the consumer electronics industry has coalesced around the use of HDMI, which permits the use of rendered captions but does not pass through closed captions, and that consumer groups, which had sought this interpretation previously, did not file in support of TV Guardian’s petition.

The Reconsideration Order notes that the long-pending issue of whether to impose quality standards for TV captions is being addressed in a separate proceeding. Accordingly, the FCC declines to address the issue in the context of reconsideration petitions.

The FCC similarly declined to reconsider its prior decision not to impose synchronization requirements on the device manufacturers. In its original order adopting these rules, the FCC concluded that apparatus rules were “inappropriate,” because “ensuring that timing data is properly encoded and maintained through the captioning interchange and delivery system” is an obligation of VPDs and VPPs, not device manufacturers.  In this Reconsideration Order and FNPRM, the FCC determines that it needs more information to resolve this issue, given disagreements over whether apparatus may cause captions to appear out of synch, whether existing standards would enable manufacturers to address the timing, and whether VPOs, VPDs and VPPs are better suited than manufacturers to ensure synchronization.

Significantly, the FCC extended the Jan. 1, 2014 compliance deadline for DVD players that do not currently either render or pass through closed captions. The extension was granted to allow for the collection of additional information regarding additional costs that might be imposed by adding IP captioning functionality to low-cost devices such as DVD players. The FCC also extended the compliance deadline for Blu-ray players, explaining that Blu-ray discs do not currently contain closed captions and that there is no current industry standard for Blu-ray closed captioning. The temporary deadline extension does not apply to removable media players other than DVD or Blu-ray players, or to DVD players that currently have the ability to render or pass through captions.

Elsewhere, the FCC revised its definition of “apparatus” to clarify that the “video players” to which IP-video closed captioning rules apply include only the subset of video players that are capable of displaying video programming transmitted simultaneously with sound. Thus, only players capable of displaying programming provided by, or generally comparable to, programming provided by a television broadcast station must comply with the rules. The FCC granted narrow class waivers for 1) apparatus designed to capture and display consumer-generated images or other non-video-programming images (such as most digital cameras, baby monitors, and security cameras); and 2) apparatus designed to display still images (such as digital picture frames). Devices such as mobile phones or those with general-purpose operating systems like Android will not qualify for the waivers because their capability to receive or play back video programming transmitted simultaneously with sound is not incidental. The FCC affirmed its earlier decision that what an apparatus is “designed” to do depends on the actual capabilities of the apparatus, not on the intent of the manufacturer.

Comments on the FNPRM will be due 60 days after publication in the Federal Register with reply comments due 90 days after publication.

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