FCC Notice of Proposed Rulemaking re Revision of Closed Captioning Regulations

This is a reminder that the FCC has issued a Notice of Proposed Rulemaking (NPRM) concerning amendment of its rules governing closed captioning of video programming The FCC’s stated purpose for the NPRM is to review the current status of its closed captioning requirements to determine whether revisions are necessary to enhance the effectiveness of the rules, and to consider a number of amendments regarding compliance and quality issues proposed by Telecommunications for the Deaf, Inc. (“TDI”) in a Petition for Rulemaking. Comments in response to the NPRM are due on November 10, 2005.

The NPRM raises numerous issues related to closed captioning, and requests comments in response to specific questions pertaining to those issues, all of which are summarized below. Although the captioning rules apply directly to multichannel video program distributors and not to program networks, many distribution contracts assign those responsibilities to programmers, and distributors generally look to networks to satisfy captioning requirements even where the parties’ contract is silent. Consequently, many of the issues raised by the NPRM will directly impact program networks both monetarily and logistically.

We recommend the submission of comments by program networks to demonstrate to the FCC that, while networks support the requirement and objectives of captioning (because captioning ultimately expands the universe of viewers that can view and develop an allegiance to the networks’ programming and the products featured in their advertisements), (1) certain of the proposed amendments are not necessary, (2) some of the proposed amendments are illconceived, impractical, unduly burdensome and not warranted by TDI’s Petition for Rulemaking and by experience to date under the existing rules, and (3) the Commission should take a more measured approach to revision of its closed captioning rules.

We will be filing comments on behalf of a group of program networks. The joint comments will be positive in tone, emphasizing networks’ commitment to quality captioning, but yet providing the FCC with program networks’ perspective on the current captioning rules and on TDI’s proposed amendments. The comments will be prepared on a cost-sharing basis, keeping the cost per network to participate quite low.

A summary of the issues posed by the NPRM follows:

(1) Non-technical Quality Standards: Non-technical quality standards include accuracy of transcription, spelling, grammar, punctuation, placement, identification of non-verbal sounds, pop-on or roll- up style. The FCC’s current rules rely on market-place incentives to ensure non-technical quality. TDI asserts in its Petition that the marketplace is not working, and asks the FCC to adopt non-technical standards to ensure that video programming is “fully accessible” to deaf and hard of hearing individuals. The FCC asks whether it should set non-technical quality standards, what the cost of such standards would be to distributors or programmers, whether there should be different standards for pre-produced and live programming, whether the FCC should define “error” and if so, what the definition should be, and whether captioning should not be counted toward a distributor’s obligation if there are a significant number of errors.

(2) Technical Quality Standards:

The FCC rules require complete and intact pass through of closed captions. TDI says that the rules are not working to ensure adequate technical quality standards. TDI asserts that frequently captions disappear, or are missing or illegible, appear in one locality but not another, and are not included in repeats. TDI wants the FCC to require that, for a program to be considered “captioned” under the existing rules, it must meet minimum standards set by the FCC for completeness, accuracy, readability, and synchronicity with the audio portion of the program. The FCC asks whether it should require mechanisms and procedures in addition to pass through to ensure technical quality. The FCC also seeks information on the types of technical problems experienced.

(3) Monitoring:

The FCC previously placed responsibility for efficient monitoring on distributors but did not include specific rules or steps. In addition, under the current FCC rules, distributors may rely on certifications from programmers that they are in compliance. TDI asserts that most distributors do not know about captioning problems until they get a consumer complaint. TDI wants the FCC to require continuous monitoring of captioning by the video programming distributor or provider to ensure that technical problems are remedied promptly and efficiently. The FCC asks whether it should require monitoring mechanisms, and if so, what type. It also asks what impact a monitoring obligation would have on distributors, the extent to which distributors are currently monitoring programming, and whether there is an alternative to
continuous monitoring.

(4) Complaints:

The FCC’s current filing and response requirements require the consumer to go first to the distributor with a complaint and then give the distributor 45 days to respond. TDI says too much time is built in to the complaint process and requests the FCC to revise the complaint rules to require responses to consumer complaints regarding captioning quality issues within 30 days. TDI also asks the FCC to establish two types of complaint processes: one for complaints about the number of hours being captioned, which it argues can take longer, and another for captioning that is garbled or non-existent, which it argues should be expedited. The FCC asks whether it should revise the complaint time frames.

(5) Accessibility of Contact Information:

TDI asks the FCC to create a Commission-maintained database on it website with updated contact information for video programming distributors, and to make it easier for the hearing impaired to lodge complaints with distributors. The FCC asks whether it should amend its rules to allow consumers to contact distributors directly using email, phone or fax, and whether distributors should have to include specific information about the contact person for captioning complaint in bills, on websites and in telephone directories. The FCC also seeks comment on distributors’ experience dealing with hearing impaired via telephone.

(6) Standardized Captioning Complaint Form:

TDI requests the FCC to adopt an optional standardized complaint form and the FCC asks whether it should adopt such a form.

(7) Fines and Penalties for Failure to Caption:

While the FCC has general authority to issue forfeitures for violations of its closed captioning requirements, no specific amounts are established. TDI proposes that the FCC adopt an $8,000 per violation base forfeiture, with each hour below the required amount being counted as a separate violation. The FCC asks whether it should adopt specific per violation forfeiture amounts for violation of captioning rules and, if so, what the amount should be?

(8) Compliance Reporting:

FCC rules currently require distributors to have efficient monitoring and enforcement of captioning requirements, and a single convenient entity to which complaints may be addressed. In addition, distributors must maintain records demonstrating compliance. TDI requests that distributors be required to certify compliance with captioning obligations within 30 days of end of each calendar quarter. The FCC asks whether it should require reports, and if so, how often and filed by what method. The FCC also asks whether reports should be limited to new programming or also include pre-rule and Spanish language programming. The FCC asks generally what methods are available to distributors for monitoring compliance and how the FCC can place greater responsibility on distributors for ensuring compliance other than by requiring reporting requirements.

(9) Electronic Newsroom Technique:

As of January 1, 2000, the Electronic Newsroom Technique (“ENT”) for captioning may not be used by broadcasters serving the top 25 DMAs or non-broadcast networks serving more than 50% of MVPD homes. TDI asks the Commission to expand the limitations on the use of ENT captioning. While ENT captioning typically produces lower quality captions, the FCC did not forbid its use in all circumstances because it is less costly. The FCC asks whether captioning costs have decreased such that use of ENT should be further limited given its acknowledged lower quality.

(10) Availability of Captioners:

The FCC seeks comment on the supply of real time captioners and the number of companies providing captioning services and whether imposition of quality requirements will reduce pool of qualified captioners.

(11) Electronic Filing of Exemption Requests:

The FCC asks whether it should change its rules to require or permit electronic filing of exemption petitions. Currently, petitions must be in writing and a disc copy is merely requested. The FCC also reminded distributors of their existing obligation to pass through captions and reformat edited or compressed programming that contains captioning. In addition, in declining to include benchmark audits as an issue in the NPRM, the FCC reminded distributors and the hearing impaired that it has the ability to conduct random audits of distributors to ensure compliance with the captioning requirements.