FCC Requires Closed Captioning of IP Video Clips

by Davis Wright Tremaine LLP

Yesterday, the Federal Communications Commission (FCC) released its Second Order on Reconsideration and Second Further Notice of Proposed Rulemaking (“Order” or “FNPRM”) requiring closed captioning of certain video clips delivered via Internet Protocol (IP). Consistent with the Commission’s description at last Friday’s open meeting where it adopted the item, the new requirements apply to video clips of any duration that are posted to a programming provider or distributor website or app if that content previously was published or distributed by the provider or distributor on television in the United States with captions. Significantly, the Order does not extend the captioning obligation to clips posted on third-party websites or apps, which is a subject of the FNPRM, or to archived programming. In addition, the obligations on providers and distributors, which extend the captioning rules for full-length IP-delivered programming to clips, are phased in over the next three years. 

The effective dates for the new requirements under the rule are staggered. Starting approximately a year and a half from now (on January 1, 2016), “straight lift” IP video clips must be captioned. Two and a half years from now (on January 1, 2017), the new rule will apply to all newly posted IP video clip “montages,” or compilations of “straight lift” clips containing content previously shown on television with captions. Finally, about three years from now (starting July 1, 2017), clips of a time-sensitive nature – including live or near-live programming – must start being captioned, but such clips will be afforded an eight- or 12-hour grace period measured from the conclusion of the initial television transmission, for near-live and live programming, respectively. The Order also includes an acknowledgement that these compliance deadlines might be extended if captioning technology does not develop as expected, and notes that VPDs may petition for an economic burden exemption.

Importantly, the new rule does not apply to IP video clips currently in VPDs’ online libraries prior to the various compliance deadlines. In addition, the new rule does not apply to video clips posted online with an audio track that is substantially different from the audio track that accompanied the same video when it was aired on television. 

Because the FCC’s rules for full-length IP-delivered video programming will generally apply to clips, the quality of IP clips must be at least as good as the quality of captioning presented with the same content on television, and VPDs must maintain the quality of captioning provided by the video programming owner. As with full-length IP video, de minimis compliance failures will not be treated as violations.

The FCC acknowledged that certain aspects of captioning programming in the IP context present technological challenges and noted that it will take that into consideration when dealing with complaints.

In addition to the new rule, the FCC also issued an FNPRM addressing four issues related to the captioning of IP video clips:

  • How the new rule should be applied to third-party video distributors (non-VPDs to whom the new requirements do not apply, such as news websites or Hulu);
  • Whether the 12- and eight-hour grace periods for clips of live and near-live programming, respectively, should be decreased or eliminated over time as technological capabilities for producing captions advance;
  • How the requirements should be applied to “mash-ups,” or combinations of one or more captioned IP video clips with other non-captioned clips; and
  • How the new rule should apply to “advance” video clips, which are clips that are posted online before the full-length programming from which they were excerpted has been shown on television.

Comments are due 60 days after the Order is published in the Federal Register, while reply comments will be due 90 days after Federal Register publication.

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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