At its February 2014 Open Meeting today, the FCC approved new regulations governing the quality of closed captions that must appear in television programming. As noted in our earlier advisory, the long-awaited rules stem from a petition filed in 2004 in which advocates for the deaf and hearing impaired sought improved quality of closed captioning. The rules come in the wake of a flurry of lobbying by interested parties in recent weeks, as well as numerous submissions of proposed “best practices” and ex parte filings by industry players and advocacy groups. Based on statements at the meeting, the Commission adopted new captioning rules described below, and addressed Electronic Newsroom Technique (ENT) and video-on-demand captioning, among other issues. The FCC’s action reflects how new Chairman Tom Wheeler has made accessibility issues a priority for the Commission.

The new rules, which have not yet been released as of this writing, will feature four standards designed to ensure that captioning quality effectively replicates the auditory experience of television programming. Under the new rules, captions must be:

  • Accurate–by reflecting the dialogue, music, and other sounds present in the programming;
  • Synchronized–by matching the video and audio content of the programming;
  • Complete–by running from the beginning to the end of the program; and
  • Appropriately Placed–by being located on screen so as not to block other visual content.

According to statements made at the meeting, these captioning quality rules, which are expected to take effect in January 2015, will differentiate between pre-recorded and live or near-live programming, due to the different levels of complexity involved in accurately captioning different types of content. 

The rules are expected to incorporate best practices submitted by the National Cable and Telecommunications Association (NCTA), the National Association of Broadcasters (NAB), and captioning agencies. Among other things, the rules will require video programming distributors (VPDs), such as MVPDs (e.g., cable and satellite providers) and broadcast stations, to use best efforts to obtain certifications from video programming owners (VPOs) of either the VPOs’ compliance with captioning best practices or the exempt status of relevant programming. VPDs also will be required to obtain and monitor equipment used for providing or passing through captions and must take corrective measures as necessary in the event of captioning problems.

The new rules are expected to apply to all captioning methods, including ENT, a method that advocacy groups had argued should be phased out or eliminated. With ENT, captions are created from the script for live programming, usually via a news script computer or teleprompter, but may suffer accuracy issues if speakers improvise or otherwise go off script during a broadcast. Based on ENT best practices proposed by NAB, the FCC will require broadcasters to follow new requirements for ENT use, including scripting a larger proportion of content and using additional crawls or other visuals to supplement ENT captioning. In addition, broadcasters will be required to file a joint report one year after the rules take effect on the effectiveness of the new ENT procedures.

The Declaratory Ruling resulting from today’s meeting is expected to clarify certain long-standing gray areas pertaining to closed captioning compliance. These include issues regarding captioning on-demand and bilingual programming. In addition, clarification is also expected regarding the requirements for VPDs to provide contact information for customer complaints.

Finally, the FCC announced the issuance of a Further Notice of Proposed Rulemaking (FNPRM) covering several additional aspects of closed captioning quality. First, the FCC will seek comment on reapportioning captioning responsibility among the various stakeholders in the programming distribution chain. Since the FCC issued its first captioning order in 1997, ultimate responsibility for meeting captioning requirements has rested with VPDs, as alluded to above. But various parties have urged the FCC to allocate responsibility otherwise, or at least create a burden-shifting liability mechanism in which VPDs initially investigate captioning problems and shift responsibility for resolving issues to VPOs as necessary. Second, the FNPRM will explore options other than ENT for captioning live programming. Third, the FCC will seek comment on procedures for reporting captioning outages. It remains to be seen whether actual qualitative/numeric standards will be considered.

Further details on the new rules, Report and Order, Declaratory Ruling and FNPRM will be available upon the FCC’s release of the item and accompanying documents.  We will update this advisory with additional information as we learn of it.