Last Friday, the FCC clarified several aspects of the complex closed-captioning regulations adopted last year applicable to service and content providers using Internet protocol (IP) to deliver video programming and to certain devices used by consumers watch video programming. In January 2012, the FCC had issued a Report and Order for the implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA).  Among other things, the CVAA and the Commission’s implementing regulations established closed captioning obligations for providers using IP to deliver video programming, as well as for certain consumer devices on which consumers watch video programming.  On June 14, 2013 the FCC released an Order on Reconsideration (Recon Order) and Further Notice of Proposed Rulemaking (FNPRM) modifying and clarifying the Report and Order, granting some waivers and denying others, which should create some additional certainty for programming providers and distributors as well as device manufacturers regarding how to comply with the regulations.  The Recon Order and FNPRM follow three petitions for reconsideration, brought by the Consumer Electronics Association, TVGuardian, and a number of consumer groups.

The Report and Order  set deadlines for compliance with its requirements, including a January 1, 2104, deadline for digital apparatus designed to receive or play back video programming by which most such apparatus must, “if technically feasible,” be equipped with built-in closed caption decoder circuitry or capability designed to display closed-captioned video programming.  The Recon Order clarifies that the January 1, 2014, deadline applies to the date of manufacture of the apparatus only, “not to the date of importation, shipment, or sale.” 

In the Commission’s 2012 Report and Order, the FCC also directed that an apparatus “designed to receive or play back video programming transmitted simultaneously with sound” must comply with the IP captioning rules under Section 203 of the CVAA.  In the Recon Order, the Commission clarified that the determination of whether an apparatus was “designed to” perform such tasks “should turn on the capabilities of the apparatus,” rejecting arguments that such a determination should turn on the manufacturer’s intended use of the device.  The FCC’s evaluation of any device’s capabilities will focus on functionality, examining whether it is able to receive or play back video programming.

The FCC further revised its definition of apparatus to clarify that the term “video players” as used in the Note to Section 79.103(a) of the Rules includes “those capable of displaying video programming transmitted simultaneously with sound.”  The Recon Order provides that a video player “not capable of displaying programming provided by, generally considered comparable to programming provided by, a television broadcast station, excluding consumer-generated media,” falls outside the scope of the closed captioning rules.  Again, the FCC made clear that its analysis would focus only on the device’s functionality, not on the intentions of the manufacturer.

However, the Commission did last Friday provide waivers to two narrow classes of devices.  Per the waivers, the closed captioning rules do not apply to devices “primarily designed for activities other than receiving or playing back video programming transmitted simultaneously with sound.”  The first class is defined as those “primarily designed to capture and display still and/or moving images consisting of consumer-generated media, or of other images that are not video programming as defined under the CVAA and our rules, and that have limited capability to display video programming transmitted simultaneously with sound.”  This class includes, for example, “digital still cameras, digital video cameras, baby monitors, security cameras, [and] digital video camera microscopes.”  The second class consists of those devices “primarily designed to display still images and that have limited capability to display video programming transmitted simultaneously with sound,” and includes, for example, digital picture frames—provided they are “not primarily designed to display still photographs and video.”  Here again, the FCC will look to a device’s functionality, examining whether the ability to display video programming is merely incidental or not.

The FCC addressed other issues as well in the Recon Order, including the denial of TVGuardian’s request that the Commission revise its rules to allow video programming providers and distributors to either render the captions or pass through captions to end users, rather than simply require that providers and distributors pass through closed captioning data to end user equipment.  The Commission, in the Recon Order, also addressed issues related to removable media players (e.g., DVD and Blu-Ray players), including the issuance of a waiver noting that that all DVD player outputs need not comply with closed captioning capability rules and an extension of the deadline for Blue-Ray players to come into compliance, at least until resolution of the accompanying FNPRM, which directs the Media Bureau to issue a public notice soliciting comments on the issue within the next six months.

In the FNPRM, the FCC seeks “further information necessary to determine whether the Commission should impose synchronization requirements on device manufacturers.”  That is, the FCC seeks more information as it decides whether to “require apparatus manufacturers to ensure that their apparatus synchronize the appearance of closed captions with the display of the corresponding video.”  In the Report and Order, the FCC had declined to impose synchronization requirements on apparatus manufacturers, instead placing the obligation on video programming distributors and providers.  The consumer groups, in their petition for reconsideration, argued that apparatus itself may cause synchronization problems regardless of the actions of distributors and providers.  Comments on the FNPRM will be due sixty and ninety days after publication of the Recon Order and FNPRM in the Federal Register.