In several recent cases, the FCC has denied exemptions from the requirement that programming carried on TV stations and MVPDs have closed captions to serve the hearing impaired members of the viewing audience. While exemptions from these requirements are allowed if a programmer can demonstrate that the captioning would present an economic hardship, these waivers are difficult to receive as a programmer must show that, looking at its overall operations, there are insufficient financial resources to afford the captioning for the program (see our article here). In the recent cases, the FCC has looked beyond simply the net income of the programmer in deciding if the programmer is financially capable of paying for the captioning, and in cases released yesterday, the FCC also looked at the overall assets of the programmer to see if it has the capacity to caption the program. Even if funds must be diverted from other programs of the programmer, the availability of funds to the programming organization was enough for the FCC to deny the requested exemption. Specifically, in the three recent cases, religious organizations which produced a single program claimed that, in order to caption their programs, they would have to divert resources from other programs. The FCC found that, as long as the money is there, the programs need to be captioned even if other activities of the organization suffer.
The FCC made that clear in a case decided a few weeks ago. There, it decided that, if a church had sufficient income to pay for captioning, even if it had to divert resources from other “ministries” engaged in by the church, it could not escape the obligation to caption its program. That case was relied on in another decision released yesterday, where a religious organization had been operating at a close to break-even mark over the two years for which it provided its finances, as the FCC said that it had sufficient assets to pay for the captioning – not relying solely on the income of the organization. In another case involving a larger church with greater income and expenses (which were also roughly in balance in the last two years according to the financial statements provided), the FCC there too looked to the current assets of the church (including investments in securities, bank deposits and pledges receivable). The fact that these assets were significantly in excess of current liabilities, led to a determination that captioning was financially feasible for this church. The FCC also rejected an argument that its rules placed an unconstitutional burden on religious freedom – finding that the burden was one imposed on all programmers and was not directed to religious programmers, and was therefore constitutional. So what does it take to get an exemption?
In one recent case, an exemption was granted, but only for a period of two years. In that case, the program producer was an individual with limited assets, who was himself producing a program on car shows and other car-related events, that aired on one TV station – seemingly a labor of love. In looking at his limited income, the Commission was able to determine that he was entitled to an exemption based on financial hardship – but he was given that waiver for only two years. The FCC noted that these waivers are supposed to be of limited duration, simply to give the program producer more time to find new sources of funds with which to pay for the captioning.
Clearly, times have changed, and the FCC is not giving program providers any slack – so anyone who wants to produce TV programming should be planning on having that programming captioned. This will obviously add costs to the production of this programming, and may well lead to some small local programs not being produced. And TV stations should be making sure that their program producers know about and observe these obligations, as it appears that exemptions from the rules will be few and far between.