In its Tentative Agenda
for its Feb. 20, 2014 open meeting, the Federal Communications Commission (FCC) states that it will adopt a Report and Order, Declaratory Ruling, and Further Notice of Proposed Rulemaking regarding the quality and technical compliance of closed captioning on television programming. This proceeding dates back to a 2004 petition for rulemaking filed by advocates for the deaf and hearing impaired asking the FCC to bolster its closed captioning rules by adding quality and other technical standards and monitoring requirements. In 2010, the FCC issued a public notice
asking for comments on this petition, and now seems poised to act.
Hearing impaired advocacy groups have proposed numerous captioning quality practices and standards. They include captioning accuracy thresholds of 100% for offline captioning (with some allowance for de minimus errors) and 98% for live captioning, with a synchronicity gap of 100 milliseconds or less for offline captioning. The advocacy groups have also proposed phasing out or otherwise limiting the use of Electronic Newsroom Technique (ENT)—a method by which captions are generated by a news script computer or teleprompter and therefore are considered to be less accurate—and limiting the use of real-time captioning to situations where offline captioning is logistically or technically infeasible. They also propose adoption of comprehensive recordkeeping requirements to demonstrate compliance with these quality standards.
The National Cable & Telecommunications Association (NCTA) has proposed a set of “best practices” for television captioning quality, including standards for both video programmers and video programming distributors (MVPDs and broadcast stations). NCTA’s best practices for video programmers include pre-air monitoring of offline captions and real-time monitoring of captions, development of a troubleshooting protocol, implementation of accuracy spot checks, and various measures to improve quality, such as advance provision of information to caption services, training, and consumer outreach. For video programming distributors, best practices would include caption pass-through checking, set-top box and broadcast equipment testing, complaint resolution measures, and recordkeeping.
The National Association of Broadcasters (NAB) has advanced a proposal for a “safe harbor/deemed in compliance” enforcement process, and offers a set of best practices for ENT. The NAB proposal includes enforcement measures that feature an escalating process beginning with self-certification of good-faith compliance with ENT best practices by broadcast stations and moves to the creation of a specific action plan in the event of an apparent pattern or trend of noncompliance with captioning quality standards. Further noncompliance would result in referral to the FCC’s Enforcement Bureau for appropriate action. Regarding ENT, NAB argues that ENT provides numerous advantages over real-time captioning and proposes conditions that must be met for ENT users to be deemed compliant. NAB’s set of best practices for ENT includes certain enhancements to the captioning method, such as expanded use of scripted programming and increased training aimed at improving ENT. Advocacy groups have responded by proposing to modify NAB’s safe harbor enforcement mechanisms to feature a “three-strikes” approach.
We do not know what the FCC will ultimately decide at its open meeting. But it seems clear that at least some additional captioning requirements will be on tap. We will keep you advised.