Closed Captioning Reminder: Prerecorded Video That Airs on TV with Captions But is Edited for Internet Distribution Must Be Captioned Online Starting Sept. 30, 2013

by Davis Wright Tremaine LLP
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The next phase of Federal Communications Commission (FCC) requirements implementing the 21st Century Communications and Video Accessibility Act (CVAA) is set to kick in for closed-captioning video programming delivered via Internet protocol (i.e., IP video), with a Sept. 30, 2013 effective date for programming that appears on TV with closed captions and is then distributed only after being substantially edited.

As described in our Closed Captioning Rules for Online Video Programming advisory and our advisory on the CVAA itself, any video programming that appears on television with captions after the phase-in effective dates in the FCC rules must include captions of equal or better quality when redistributed online. Since Sept. 30, 2012, such “covered IP video” that is prerecorded and unedited for online distribution after appearing on TV with captions post-Sept. 30, 2012 has had to have captions online as well. And as of March 30, 2013, covered IP video televised live or “near live” with captions has also had to have captions when distributed online. For that purpose, “live” programming is that shown on TV “substantially simultaneously” with the performance, while “near-live” is that performed and recorded less than 24 hours before first airing on TV.

For this next phase, starting Sept. 30, 2013, covered IP video that is prerecorded but, before being available on the Internet, is edited for online distribution, must have captions online. To qualify for this category (rather than falling into the “prerecorded and unedited” category that has required online captions for the past year), programming must be “substantially” edited prior to Internet distribution. This requires/includes deletion of whole scenes, modification of the score from the televised version, and other material changes that prevent directly repurposing the TV captions for Internet distribution to the end user—simple edits, such as to the number or duration of ads does not qualify.

We have previously provided an overview of the CVAA IP video closed captioning rules, as adopted by the FCC, culled from our above-cited advisory, and provide the summary bullets below (the whole of the overview can be found here, appended to our update on the prior phase-in deadline):

Summary
The FCC adopted rules that:

  • Extend captioning requirements to all full-length video programming previously distributed on television when such programming is displayed online via IP pursuant to a phased in schedule;
  • Establish a two-year transition for uncaptioned, archival IP-delivered content that is shown on TV with captions after the new rules’ effective date;
  • Require video programming owners to send caption files for covered IP video to video programming distributors and video programming providers along with the program files, or alternatively, inform the distributors–using a mechanism agreed to by the parties–that captions are not required for a particular program;
  • Require video programming distributors and video programming providers to enable the rendering or pass-through of all required captions to the end user;
  • Require captioning of covered IP video to be of at least the same quality as the captioning that the programming had when it appeared on TV;
  • Establish deadlines by which categories of covered IP video must be captioned;
  • Adopt the Society of Motion Picture and Television Engineers (SMPTE) Timed Text format (SMPTE ST 2052-1:2010: “Time Text Format (SMPTE-TT)” 2010 as a safe-harbor interchange and delivery format, but stop short of requiring all covered entities to use this standard;
  • Decline to adopt categorical exemptions other than that mandated by the CVAA (i.e., consumer generated programming. which is statutorily exempt);
  • Establish procedures by which video programming providers and video programming owners may petition for exemptions from the new requirements based on economic burden;
  • Accommodate de minimis failures to comply with the new captioning obligations; and
  • Adopt procedures for complaints alleging violations of the new rules.

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