FCC Enforcement Bureau Fines Pluto and ViacomCBS $3.5 Million for Violating Closed Captioning Rules

On September 29, 2021, the Federal Communications Commission's (FCC) Enforcement Bureau released an Order adopting a Consent Decree to resolve an investigation into Pluto, Inc., and its parent company, ViacomCBS Inc., over its Pluto TV streaming service. The FCC determined that Pluto TV violated sections 79.4 and 79.103 of the FCC's rules implementing the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), which requires closed captioning of certain video programming streamed over the Internet.

Pluto and ViacomCBS agreed to develop and execute a compliance plan to ensure that their streaming service conforms to the FCC's captioning rules going forward and will pay a $3.5 million civil penalty to resolve the investigation. This action is the first consent decree and first enforcement action related to the Internet Protocol (IP)-Closed Captioning Rules since their adoption in 2012.

FCC's IP-Closed Captioning Rules

Congress adopted the CVAA in 2010 to ensure that individuals with disabilities have access to IP-based communication and video programming technologies. Among other things, the CVAA directed the FCC to promulgate regulations to require the provision of closed captioning of video programming delivered using Internet protocol to the extent such programming was previously transmitted for display on television with closed captioning.

The FCC in turn promulgated Sections 79.4 and 79.103 of the FCC's rules which, respectively, establish requirements for closed captioning of video programming previously distributed on television and subsequently delivered using IP, and the video player requirements for caption formatting and user control of the captions.

Building from its television closed captioning rule adopted in 1997 (section 79.1), which requires nearly all non-exempt video programming transmitted on television to be captioned, the FCC's IP-captioning rules assign certain captioning responsibilities to program owners (licensors) and others to programming distributors (those streaming programming to end users). Program owners must ensure that any non-exempt programming previously delivered with captions on television, which they license for IP distribution or stream themselves, includes captions meeting the FCC captioning quality standards.

Programming distributors, in turn, must enable the delivery of closed captions to the end user, maintain the quality of captions provided, and transmit captions in a format reasonably designed to reach the end user in the same quality. Owners and distributors are also required to use an agreed-upon mechanism to determine whether the programming is subject to the IP-Closed Captioning Rules and make contact information available to end users to address any closed-captioning complaints.

The IP-captioning rules also impose closed-captioning decoder requirements for digital apparatus, including video players, applications, plug-ins and devices used to stream the programming. All such apparatus must be equipped with built-in closed-caption decoder circuitry or capability designed to display closed-captioned video programming if technically feasible.

The required technical capability includes user options for: captioning presentation (pop-on, roll-up or paint-on), color, opacity, character size, font, caption background color and opacity, character edge attributes, caption window color, language and preview and setting retention. The FCC may waive the captioning decoder rules upon petition in very limited circumstances.

Pluto TV Investigation

According to the Consent Decree, in March 2014, Pluto began offering a free Video Programming service through Pluto TV streamed over the Internet using the Pluto TV app, Pluto's website, and other streaming platforms. As a programming distributor, Pluto is required to enable or pass through the required captions to its end users; and by using an embedded video player on its website, Pluto is also subject to the FCC decoder requirements.

In January 2018, the FCC began receiving complaints from Pluto TV consumers about the functionality of the closed captioning feature and attempted to informally resolve the issue with Pluto TV through monthly progress reports. Pluto subsequently filed a Petition for Waiver of the FCC's IP Closed Captioning Rules, asserting that it offered compliant captions for the vast majority of its users (90 percent) and seeking a one-year waiver of the rules for its service using certain platforms—including Vizio WatchFree, in which end users can access various streamed television content through Pluto TV, and other third-party platforms that Pluto described as dated and superseded by later editions (such as PS3 and older Samsung operating systems)—explaining that in the absence of an extension of time, Pluto TV lacked the engineering and financial resources to bring the captions into immediate full compliance.

In February 2020, the FCC issued Pluto a Letter of Inquiry, formally launching an investigation into Pluto TV's captioning practices. Pluto formally withdrew its petition for waiver in September 2020, which the FCC granted when it issued the Consent Decree.

The Bureau's investigation into Pluto's compliance with the Closed Captioning Rules found that Pluto failed to:

• (a) Enable the rendering or pass-through of required captions provided by the video programming owners on several platforms used to stream Pluto TV, pursuant to section 79.4;
• (b) Implement the closed captioning functionality requirements in section 79.103; and
• (c) Make contact information available to end users for closed captioning complaints, pursuant to section 74.(c)(2)(iii).

The FCC found that Pluto also failed to use an agreed-upon mechanism to determine whether the programming it acquired from programming owners contained closed captioning or was exempt from the IP Closed Captioning Rules prior to distributing it to viewers but that such issues fell outside the relevant statutes of limitations.

According to the Consent Decree, throughout the investigation Pluto continued to distribute Pluto TV on existing platforms and on several new platforms without the required captioning capability. The Bureau also concluded that Pluto failed to provide timely and accurate information to FCC staff during the investigation, stating that Pluto wasted FCC resources and delayed resolution of the accessibility issues to the detriment of Pluto's consumers with hearing disabilities.

Compliance Plan

As part of the settlement, ViacomCBS and Pluto agreed to designate a senior corporate manager or officer to serve as the "Pluto Compliance Officer" to develop and oversee the Compliance Plan detailed in the Consent Decree. The Compliance Plan is designed to ensure that Pluto complies with the Video Programming Distributor requirements and with the terms of the Consent Decree. Pluto and Viacom agreed to the following terms:

• Operating Procedures: Pluto will establish required specific operating procedures to ensure compliance with the IP Closed Captioning Rules, including coordinating with platform owners to ensure technical compliance, testing captioning functionality and coordinating and collaborating with members of the disability community, and updating its website to conspicuously reflect information to assist viewers with disabilities.
• Platform Testing: Pluto will establish testing procedures to ensure that Pluto TV's closed captioning features are accessible, usable, and comply with the IP Closed Captioning rules, including testing prior to and immediately after launching Pluto TV on a new platform or deploying any software update reasonably expected to affect captioning and maintaining records of such testing for a minimum of two years.
• Platform Compliance; Consumer Information: Pluto will comply with the IP Closed Captioning Rules or otherwise end operation of any noncompliant platform within 60 days of the Order and will provide consumers with detailed notice of Pluto TV programming or any cessation of operations outlined in the Compliance Plan.
• Compliance Manual: The Compliance Officer will develop and distribute a compliance manual to all employees covering the IP Closed Captioning Rules and Operating Procedures for compliance.
• Compliance Training Program: Pluto and ViacomCBS will implement a compliance training program for employees to report any noncompliance with the IP Closed Captioning Rules.

Pluto and Viacom additionally agreed to specific reporting procedures for any noncompliance with the IP Closed Captioning Rules and to file annual compliance reports with the FCC. Finally, Pluto and ViacomCBS will pay a civil penalty of $3.5 million within 30 days of the Order's Effective Date, which is defined as the date that the Bureau, Pluto, and ViacomCBS have all signed the Consent Decree and the Bureau released the adopting Order.