In January 2012, the Federal Communications Commission (“FCC”) released a Report and Order adopting rules implementing the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”) that governs closed captioning of video programming delivered using Internet Protocol (“IP”). (See our Client Advisory dated January 31, 2012).

The FCC has now released an Order on Reconsideration (“Order”) of that Report and Order, along with a Further Notice of Proposed Rulemaking (“FNPRM”). In the Order, the FCC addressed petitions asking the agency to reconsider (1) certain rules covering apparatus for viewing video programming, (2) the rules allowing video programming providers (“VPPs”) and distributors (“VPDs”) to enable either the rendering or pass through of captions, and (3) its decision to exclude video clips from the IP closed captioning rules. In the FNPRM, the FCC requested comment on (1) device manufacturers’ ability to ensure synchronization of captions with the corresponding video as well as (2) how the closed captioning rules for devices should apply to DVD and Blu-ray players.

Reconsideration of Apparatus Rules. The Petition filed by the Consumer Electronics Association (“CEA”) first sought reconsideration of the scope of the rules requiring closed captioning capability in certain digital apparatus. In a three-part response to this first request, the FCC affirmed its decision that the rules apply to apparatus “designed to receive or play back video programming transmitted simultaneously with sound,” where “designed to” is defined by the functionality of the device, not its manufacturer’s intent. Next, the FCC revised its definition of video player to clarify that the apparatus rules only apply to devices capable of displaying “video programming,” not video in general, with “video programming” defined in the CVAA as “programming by, or generally considered comparable to” television broadcast programming. Third, the FCC granted narrow waivers to two classes of devices that are “primarily designed” for activities unrelated to the display of covered video programming (such as the capture or display of still images or consumer-generated images or video) but that have a limited capability to “display video programming transmitted simultaneously with sound.” The FCC used the example of a standalone digital camera as a device that would fall under one of these waivers, but contrasted that with an Android device, which would still fall under the rules.

The FCC granted CEA’s request for clarification that the January 1, 2014 compliance deadline refers only to the date of manufacture of the covered digital apparatus – devices manufactured before that date are not subject to these closed captioning rules.

Finally, the FCC issued a FNPRM to gather more information before resolving CEA’s final request and a Petition for Reconsideration filed by various consumer groups. In response to the CEA petition, the FCC affirmed that removable media players are generally covered by the apparatus rules but that there are several outstanding issues concerning how the rules should be applied to DVD and Blu-ray players; thus, the FCC extended the January 1, 2014 deadline for those devices pending the resolution of the FNPRM. In response to the consumer groups’ petition, the FCC invited comments on whether to impose closed captioning synchronization requirements on apparatus. The FCC noted that commenters disagree on whether apparatus can cause caption synchronization problems and whether existing standards are sufficient to enable apparatus manufacturers to address synchronization.

Reconsideration of VPP and VPD Rules. In the Order, the FCC denied a petition by TVGuardian, LLC asking the Commission to reconsider its decision to allow VPPs and VPDs to either enable the rendering or pass through of captions and instead require the pass through of caption data. The Order reaffirmed that VPPs and VPDs have the option of either means of conveying caption data to the end user or consumer device.

Reconsideration of Captioning of Video Clips. The FCC was asked to reconsider its decision to apply the IP closed captioning rules only to full-length video programming, but not to video clips and outtakes. However, the FCC decided to defer whether to reconsider this decision, directing the Media Bureau to issue a Public Notice seeking data on industry’s progress in captioning IP-delivered video clips.

DVD and Blu-ray Players. With regard to DVD players, the FCC explained that some, but not all, DVD players include captioning capability. And among those that do, they may only include captioning through their analog, but not digital, video outputs. The FNPRM asks whether the FCC should require an analog output to pass-through captions, but otherwise not require that all video outputs on a DVD player be capable of transmitting closed captioning data, as mandated for other apparatus. The FCC noted that the DVD market is declining and many DVD players are low-cost; consequently, the FNPRM seeks comment on how such a requirement might impact the market.

As for Blu-ray players, there is not an industry-wide standard for closed captioning on Blu-ray discs. Therefore, the FNPRM asks for comment on whether a requirement that Blu-ray players render or pass through captions would encourage the development of such a standard. The FNPRM also seeks comment on whether the subtitles already included on Blu-ray discs are sufficient to satisfy the law’s closed captioning requirements.

Comments on the FNPRM are due November 4, 2013, and reply comments are due December 4, 2013.