The FCC has released a Declaratory Ruling, Order and Notice of Proposed Rulemaking regarding closed captioning and closed captioning requirements for digital receivers, a copy of which is available here.

In the Declaratory Ruling, the FCC clarifies several points regarding video programming distributors' (VPDs') obligations to close-caption digital programming, particularly in light of technological changes inherent in the digital television transition.

First, the FCC makes clear that although a particular digital channel may be exempt from the captioning rules for other reasons, no digital channel, including an HD channel, is automatically exempt from the captioning rules simply because it is being transmitted in digital.

Second, even where a digital channel is exempt from the captioning rules because it is subject to a self-implementing exemption or the undue burden standard, the VPD is still obligated to pass through any captioning it receives, even on rebroadcasts of programs, but is not obligated to create new digital captions where only analog captions are provided.

Third, where an existing broadcaster ceases operations on its current analog channel after the completion of the digital transition and commences or continues to air programming on its main digital channel, that broadcaster is required to caption its main digital channel pursuant to the relevant captioning benchmarks, as if there had been no change. The broadcaster will not be entitled to the self-implementing exemption that pertains to channels that generated less than $3 million in revenue during the previous year.

The FCC further clarifies that the "new network" exemption does not apply to a channel that merely transitions from analog to digital. Where a licensee chooses to multicast, the multicast channels do not constitute a new network. Moreover, in order for VPDs to count captioned digital programming toward the closed captioning requirements, they must transmit captions in the CEA-608 (analog) standard after February 17, 2009 so that they can be decoded in analog sets.

In the accompanying Order, the FCC amends its rules to provide for more efficient complaint processes and methods for consumers to contact distributors and the Commission with concerns about closed captioning, including by using FCC complaint form 2000-C. In addition, VPDs will be required to make available two different kinds of contact information—contact information for the receipt and handling of immediate closed captioning concerns by consumers, and contact information for lodging other closed captioning complaints.

Finally, in the Notice of Proposed Rulemaking, the FCC seeks comment on whether and how its exemption for channels producing annual gross revenues of less than $3 million during the previous calendar year should apply to digital broadcasters that multicast. In other words, the FCC seeks comment on whether each programming stream on a multicast signal constitutes a separate channel (as the FCC has to date informally advised), or whether the broadcaster's entire operations attributable to its digital allotment should be considered one channel. The Commission also seeks comment with respect to the $3 million revenue threshold, and other matters concerning the revenue exemption. Comment and reply comment dates will be established following Federal Register publication.