Closed Captioning Reminder: Starting March 30, 2013, Video Programming That Is or Was Aired Live or “Near Live” on TV Must Be Captioned When Distributed Online

by Davis Wright Tremaine LLP

The time is drawing near for the next phase of Federal Communications Commission (FCC) requirements implementing the 21st Century Communications and Video Accessibility Act (CVAA) for closed-captioning video programing delivered via Internet protocol (i.e., IP video). 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 effective dates in the FCC rules must include captions of equal or better quality when redistributed online, under a phase-in schedule established by the FCC.

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 has had to have captions online as well. For this next phase, starting March 30, 2013, covered IP video televised live or “near live” with captions post-March 30 must then also have captions when distributed online. “Live” programming is that shown on TV “substantially simultaneously” with the performance (allowing for a slight delay, such as to facilitate obscuring objectionable material), i.e., the performance occurs substantially simultaneously with airing on television (though not necessarily with IP distribution). “Near-live” programming is that performed and recorded less than 24 hours before first airing on TV, including, among other things, talk shows performed earlier the same day they air, even if segments in the show(s) are performed and recorded more than 24 hours prior to airing on TV.

An overview of the CVAA IP video closed captioning rules, as adopted by the FCC, culled from our above-cited advisory, follows:

The FCC adopted rules that:

  • Extend to all full-length video programming previously distributed on television with captions to require that captioning appears when such programming is displayed online via IP;
  • 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.

Entities and Programming Covered by the CVAA Rules and the Obligations They Face
The CVAA applies broadly to “video programming distributors” (VPDs), “video programming providers” (VPPs), and “video programming owners” (VPOs). The FCC has defined VPDs and VPPs identically, to include any entity that makes video programming available directly to end users via distribution methods that use Internet protocol. The FCC clarified, however, that VPDs/VPPs generally do not include Internet service providers (ISPs) from which end users simply receive Internet access. Nor do the video IP rules change the TV closed captioning rules currently applicable to broadcasters and MVPDs. Consequently, the IP video captioning rules do not apply to (among other things) traditional managed video services that MVPDs provide to their MVPD customers as part of their MVPD service, regardless of the transmission protocol used, as those services are already subject to the TV captioning rules.

VPO/VPD Obligations. VPOs are defined as persons or entities that either (1) license the video programming to a VPD or VPP that makes the programming available directly to end users via IP delivery, or (2) itself acts as the distributor or provider and also possesses the right to license the video programming to a VPD or VPP that makes the programming available directly to end users via IP delivery. This definition acknowledges that multiple copyright owners may possess particular rights in a single piece of video programming, and ensures that a single entity is responsible for fulfilling the VPO’s responsibilities. The definition is intended to include entities that have the right to license IP distribution of programming to others, but make the programming available through their own websites, as well as entities that license others to distribute the programming to end users.

Under the new rules, VPOs are required to send program files to VPDs with all required captions. This regulatory scheme differs from the TV captioning rules, which place legal responsibility on programming distributors (MVPDs), which then contractually obligate program producers to include captions. VPDs, in turn, are obligated to “render or pass through” captions, which includes ensuring that any application, plug-in or device that the VPD provides to the consumer is capable of rendering or passing through closed captions. For example, a VPD providing an application that consumers can download on their smartphones must be capable of rendering or passing through captions. In contrast, where a VPD reasonably relies on the captioning display functionality on a device over which it has no control, it has no liability where the device fails or operates improperly.

Covered Programming, Exemptions. The R&O establishes that the IP video captioning requirements apply only to “full-length programming,” defined as video programming that appears on TV and is distributed to end users, substantially in its entirety, via IP. The FCC has excluded outtakes and video clips, as well as IP-delivered content that aired on TV only in another country, and not in the U.S. Video clips, defined as excerpts of full-length video programming, are exempted regardless of length, so long as they are not substantially all of a full-length program or are a full length program simply broken into segments for easier posting/downloading online. Outtakes, or content not used in an edited version of video programming shown on television, are similarly not subject to the rules.

“Consumer generated media,” which is defined as “content created and made available by consumers to online websites and services on the Internet, including video, audio, and multimedia content,” is statutorily exempt from the class of covered IP video. If, however, consumer-generated content is shown on television as part of a captioned full-length program, which a VPD then distributes via IP, then the IP version of the captioned full-length program must include captions.

Conversely, the R&O does not adopt any “categorical” exceptions like those found in the TV captioning rules, such as for programming in languages other than English or Spanish, or for PSAs and other interstitial content. Rather, if television programming is not captioned pursuant to an existing exemption, it need not be captioned when delivered via IP. Programming that appears on TV with captions after the effective date of the IP captioning rules will, however, be subject to the rules, even if the programming was exempt from the TV captioning requirements but was nevertheless captioned voluntarily.

Captioning Standards. The new rules require that IP video captioning be of at least the same quality as TV captions and have the same user tools, which under existing equipment rules relating to captioning on TV, already require controls, such as the ability to change text color, opacity, size, font, background color and opacity, character edge attributes, and window color. “Quality” evaluations also will include such factors as completeness, placement, accuracy, and timing. VPDs/VPPs are not required to improve caption quality, but must ensure that the quality does not decline when delivered via IP as compared to when shown on TV (though, to the extent VPDs/VPPs have permission from VPOs to alter the captions to improve the viewing experience, the rules permit them to do so). The rules will not hold VPDs or VPOs responsible for quality issues outside their control such as broadband connection speeds or limitations of a particular apparatus. Beyond that, the FCC declined to consider proposals that go beyond implementation of the specific requirements of the CVAA, including other captioning quality issues that may be pertinent to both TV and IP video, which the Commission noted are “linked” and are the focus of an open proceeding on the quality of captions on TV.

Schedule of Deadlines for Compliance
The rules impose a staggered schedule of deadlines for captioning IP video, as follows:

  • Programming that is “prerecorded” and not “edited for Internet distribution” must comply starting Sept. 30, 2012;
  • “Live” and “near live” programming must comply starting March 30, 2013;
  • Programming that is “prerecorded” and “edited for Internet distribution” must comply starting Sept. 30, 2013.

The R&O encourages VPOs and VPDs to make captioned programming available in advance of these deadlines to the extent they are able to do so.

Definitions. The rules define “live programming” as video programming that is shown on television “substantially simultaneously” with the performance (so as to allow for a slight delay, such as to facilitate “bleeping” or pixilating objectionable material). “Near-live programming” is that which is performed and recorded less than 24 hours before the time it first airs on TV. The FCC clarified that “live” programming means the performance occurs substantially simultaneously with airing on television, not necessarily with IP distribution. It also clarified that programming, such as talk shows performed earlier the same day they air, and thus are “near live,” still qualify as such even if there are segments in the show(s) that are performed and recorded more than 24 hours prior to airing on TV.

Building off these definitions, “prerecorded programming” is all other programming not meeting the definitions of “live” or “near-live,” while “edited for Internet distribution” encompasses programming that is substantially edited prior to Internet distribution. Such “editing” includes deletion of whole scenes or modification of the score from the televised version; simple changes to the number or duration of ads do not qualify as editing.

Archival Programming. With respect to the captioning of archival content, the R&O adopts a two year window during which VPOs may voluntarily (but are not required to) caption archival content–content already available online without captions, but that re-airs on TV with captions. After the two-year window expires, VPOs must then provide VPDs with captioned versions of archival programs within 45 days of when the program is re-aired on TV. Starting three years after the effective date of the rules, the deadline for compliance will drop to 30 days, and after four years, the VPD must update its program file to enable the rendering or pass through of captions within 15 days. Accordingly, for programming that is already in a VPD’s or VPP’s library before it is shown on television with captions:

  • Such programming must be captioned within 45 days after the date it is shown on television with captions on or after March 30, 2014 and before March 30, 2015;
  • Such programming must be captioned within 30 days after the date it is shown on television with captions on or after March 30, 2015 and before March 30, 2016; and
  • Such programming must be captioned within 15 days after the date it is shown on television with captions on or after March 30, 2016.

The rules do not prescribe a particular mechanism for tracking or otherwise reporting to VPDs which programs have aired on TV (and/or when). Rather, VPOs and VPDs may mutually agree to any mechanism they wish to manage this process, so long as there is some explanation provided to VPDs as to why captioning is not required for certain programs (e.g., it never aired on TV or it aired on TV without captions due to an exemption). The mechanism agreed upon by the parties must provide adequate information to enable the VPD to identify programming subject to IP captioning requirements on an ongoing basis. VPOs also must provide updated information to VPDs concerning uncaptioned, archival IP-delivered programs pursuant to whatever mechanism the parties agree to use in order for the VPDs to be able to rely on that mechanism in good faith.

While the FCC does not mandate a “certification requirement” to support identification of programming as not requiring captions, the new rules do allow parties to use certifications as one possible mechanism. If a certification is used it must be retained (and potentially produced to the FCC) for one year after the programming is no longer available to end users via IP delivery. If a captioning problem occurs where the VPO and VPD have failed to agree upon an adequate mechanism, both parties may be held responsible by the FCC.

Technical Standards and Informational Issues
The FCC adopted SMPTE-TT as a “safe harbor interchange and delivery format” in order to minimize the need for VPOs to author multiple standards and potentially re-caption programming. Thus, if a VPO provides captions to a VPD using SMPTE-TT, the VPO has satisfied its obligation to deliver captions to the VPD in an accessible format–but it is not a mandated standard. Under the rules, parties may agree to use something other than SMPTE-TT, thus allowing negotiations between VPOs and VPDs/VPPs to reach mutually agreeable solutions. To use a standard different from SMPTE-TT, parties do not need to first request FCC approval, but can simply agree to use that other standard.

New and Adapted Procedures
VPDs/VPPs and VPOs may petition the FCC for exemptions from the captioning obligations in those cases where compliance would be “economically burdensome,” meaning significant difficulty or expense. The particular program is exempt while the petition is pending. The procedure is consistent with the TV captioning rules and the recently adopted Video Description rules. The factors the Commission will consider include the nature and cost of captioning the programming, the impact on the operation of the provider or program owner, the provider’s or program owner’s type of operation, and its financial resources. In addition, insofar as the CVAA provides that entities may meet the IP video captioning requirements through “alternate means than those prescribed by [FCC] regulations,” the R&O indicates the Commission will allow such alternate means based on specific requests from parties subject to the IP captioning rules, rather than identifying now what may constitute permissible “alternate means.”

The Order also adopts complaint procedures for alleged violations of the IP video captioning rules that are analogous to the TV closed captioning complaint process. Complaints may be made either to the VPD or the FCC. To facilitate complaints directly made to the VPD, the rules require that VPDs/VPPs make contact information available to consumers, just as broadcasters and cable/satellite providers are required to do under current rules. The FCC expects VPDs to “prominently display” such contact information “in a location that is conspicuous” and “in a way that is accessible to all end users of their services.”

De minimis failures to comply shall not be treated as a violation of the regulations. Rather than specifying particular criteria that will be applied in making a de minimis determination, the FCC will consider any evidence about the particular circumstances and whether the lack of captioning was reasonable, including the type of failure, the reasons for it, whether it was one-time or ongoing, and how quickly it was remedied.

For more information about these new rules please contact any of the Communications attorneys at DWT.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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