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IP Video Closed Captioning Reminder: Archival Programming That Airs on TV with Captions Must Be Captioned Online Within 45 Days of TV Distribution Starting March 30, 2014

By Maria T. Browne and Bradley W. Guyton
03.27.14
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The next phase of Federal Communications Commission (FCC) requirements implementing the Twenty-First Century Communications and Video Accessibility Act (CVAA) is set to take effect for closed-captioning video programming delivered via Internet protocol (i.e., IP video). Starting March 30, 2014, archival video programming that subsequently appears on TV with closed captions must be captioned for online distribution within 45 days after the captioned version is shown on television.

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 phase-in effective dates in the FCC rules must include captions of equal or better quality when redistributed online. Several of the IP video closed captioning requirements have already taken effect:

  • 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, 2012 must have captions online as well;
  • As of March 30, 2013, covered IP video televised live or “near live” with captions has also been required to have captions when distributed online; and
  • As of Sept. 30, 2013, covered IP video that is prerecorded but, before being available on the Internet, is edited for online distribution, must have captions online.

For this next phase, starting March 30, 2014, programming that is already in the library of a video programming distributor (VPD) or a video programming provider (VPP) before it is shown on television with captions must be captioned for online distribution within 45 days after the date it is subsequently shown on television with captions. The time frame within which such programming must be captioned for online distribution drops to 30 days on March 30, 2015 and to 15 days on 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, video programming owners (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.

We have previously provided an overview of the CVAA IP video closed captioning rules, as adopted by the FCC, culled from our above-cited advisory, and provide the summary bullets below (the whole of the overview can be found here, appended to our update on the March 30, 2013 phase-in deadline):

Summary
The FCC adopted rules that:

  • Extend captioning requirements to all full-length video programming previously distributed on television when such programming is displayed online via IP pursuant to a phased in schedule;
  • 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: “Timed 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.

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