The Federal Communications Commission (“FCC” or “Commission”) has reversed a five-year-old decision by its Consumer and Governmental Affairs Bureau (“CGB” or “Bureau”) that had granted certain video programmers “undue burden” exemptions from the FCC’s closed captioning rules. The reversed Bureau decision had changed the criteria for undue burden exemptions and permanently exempted two video programmers from compliance with closed captioning rules on the basis of the new criteria. Finding the Bureau’s new criteria deviated from both the statute and FCC precedent, the Commission overturned the decision, reversed 296 subsequent exemptions that had been granted by the Bureau in reliance thereon, and reinstated the original criteria for captioning exemptions.

In addition, the Commission’s Order clarifies its rules and procedures governing consideration of petitions for undue burden exemptions, providing guidance to video programming providers and distributors who may be interested in seeking such exemptions for both television and online programming going forward. Importantly, the Order offers a provisional interpretation of the term “economically burdensome” as that term is used in the recent Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”). The Commission essentially concluded that although the CVAA uses the term “economically burdensome,” Congress did not intend to fundamentally change the existing standard for assessing individual exemptions based on undue burden. The interpretation is “provisional” because the Commission seeks comment on proposed amendments to its rules to make the interpretation permanent.