The FCC Adds Teeth to Internet Protocol (IP) Closed Captioning Rules

Pillsbury - Internet & Social Media Law Blog

It’s the end of the day and you find yourself with a little downtime to catch up on your favorite streaming show. Whether it’s because each episode vacillates between the loudest of explosions and the quietest of dialogue or your hearing just isn’t what it used to be—you find yourself constantly adjusting the volume so that you can hear the crucial reveal whispered by the main character’s best friend at the penultimate moment before turning the volume down as fast as possible so that you don’t wake everyone in the house when all mayhem breaks loose and the main character is forced to escape a self-destructing secret base. Thankfully, you remember that you can just turn on closed captioning, set the remote down, and enjoy the show without missing any of the dialogue. However, for those who are deaf or have hearing loss, closed captioning is much more than a convenience—it is a vital tool for providing access to the universe of streaming.

For those outside of the entertainment industry, it may be surprising to learn that Federal Communications Commission (FCC) rules actually require captioned programs shown on TV to also be captioned when reshown on the internet. Specifically, the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) is intended to help ensure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming. With respect to closed captioning of Internet Protocol (IP)-delivered video programming (streamed videos), these rules apply broadly to the distributors, providers and owners of IP-delivered video programming and require that all non-exempt full-length video programming delivered using IP must be provided with closed captions if the programming was previously shown on television in the U.S. with captions or if it is live programming being shown on television in the U.S. with captions.

While the IP closed captioning rules went into effect in 2012, it is only recently that the FCC took its first enforcement action and first consent decree regarding violation of these rules. On September 29, 2021, the FCC’s Enforcement Bureau announced that it had settled an investigation with Pluto Inc. (Pluto) and its parent company, ViacomCBS Inc., based on a failure by Pluto to comply with the IP closed captioning rules when distributing video programming on a number of platforms used to disseminate the “Pluto TV” service. By way of background, Pluto offers free video programming through Pluto TV, which streams over the internet via the Pluto TV app, Pluto’s website, and other platforms (e.g., Amazon FireTV, Roku, etc.).

As part of its investigation, the FCC found that Pluto failed to implement closed captioning functionality and also failed to make contact information available to submit written closed captioning complaints. In order to settle these claims, Pluto agreed to pay a $3.5 million civil penalty and to enter into a compliance plan to ensure that non-exempt video programming that Pluto streams over the internet includes closed captioning.

The FCC’s move to enforce the CVAA adds some extra bite to these rules and may in turn help to drive a renewed focus on accessibility and inclusiveness for entertainment programming. However, even absent FCC enforcement, at least one major entertainment player—AMC—is seeking to expand accessibility by adding open captioning to certain movie showings in 240 of its theaters. With open captioning, which are similar to subtitles, captions are shown on the screen without the need for special equipment by the user (which is the case for closed captioning options in theaters). As someone who’s primary source of non-work reading consists of captions for streaming shows, the move to increased open captioning options may be just the thing to help ease me back into the movie-going fun we used to take for granted. At the very least, they should help get my eyes ready to watch the subbed version of Squid Game.

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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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