While the Federal Communications Commission (FCC) already requires that most English-language video programming be closed captioned for the hearing impaired, the FCC earlier this month issued a reminder that Spanish-language programming will also be subject to these requirements as of Jan. 1, 2010, and reminding video programming distributors of their obligations to make all emergency information accessible to persons with hearing and vision disabilities. These reminders were issued while we await the effective date of rules released in January dealing with contact information requirements and the process that video distributors must go through in dealing with complaints about captioning issues—rules that are not yet effective.

In a public notice released on Sept. 3, 2009, the FCC reminded video programming distributors that as of Jan. 1, 2010, 100 percent of new, nonexempt Spanish-language programming must be closed captioned. In a second public notice released on Sept. 3, 2009, the FCC clarified certain aspects of video programming distributors’ obligation to make emergency information accessible to persons with hearing and vision disabilities. Finally, the FCC's June erratum concerning the publication of contact information under the revised rules was published in the Federal Register on Sept. 11, 2009, but expressly states that the rule change is not effective until the FCC publishes a separate document in the Federal Register announcing the effective date.

While the publications are addressed to “video programming distributors”—i.e., broadcasters, cable operators, and DBS providers—the entities directly subject to the rules, networks and producers, should take note of these recent developments as well because, as a practical matter, distributors generally assign captioning responsibilities to program networks and program producers whose programming they distribute.

Increased Spanish-language programming captioning obligation

The FCC’s closed captioning rules currently require video programming distributors offering Spanish-language programming to caption at least 1,350 hours of new nonexempt Spanish-language programming each calendar quarter. New Spanish-language programming is defined as Spanish-language programming that is first published or exhibited on or after Jan. 1, 1998 (for analog programming), or on or after July 1, 2002 (for digital programming). Effective Jan. 1, 2010, 100 percent of new nonexempt Spanish-language programming must be closed captioned.

Some of the major categories of exempt programming include programming distributed between 2 a.m. and 6 a.m., programming in languages other than English or Spanish, and advertisements of five minutes’ duration or less (which are not deemed “video programming”) and public service announcements of 10 minutes’ duration or less. A complete list of the exemptions is available on the FCC's Web site.

FCC reminder regarding access to emergency information

The FCC’s rules require distributors that transmit emergency information—defined as information about a current emergency that is intended to further the protection of life, health, safety and property—i.e., critical details of the emergency and how to respond to the emergency—to caption such information. Examples of emergencies covered by the rules include tornadoes, hurricanes, floods, tidal waves, earthquakes, icing and heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closures (and related changes in bus schedules) and warnings and watches of impending changes in weather.

The FCC has been particularly vigilant in its enforcement of captioning publications governing emergency information. In 2005, the FCC issued forfeitures against several broadcast television stations for failure to caption emergency information—the only cases in which the FCC has issued monetary forfeitures for failure to caption. Captioning of emergency information can be technically challenging because it is typically unscheduled programming that is televised live and unscripted.

The Commission’s recent public notice on the subject of emergency information emphasizes three points. First, the Commission reiterated that there are “no exemptions” to its emergency information rule. The FCC has made clear that, while there may be some limited circumstances in which emergency conditions preclude actual captioning of emergency information, the emergency information must still be provided in visually—whether through whiteboard, chalkboard, open captions or any other manner that will convey the gist of the actionable information to the hearing impaired. See Davis Wright Tremaine’s Broadcast Law Blog entries from August 2006 and May 2008 for summaries of some of the FCC’s interpretations of this requirement.

Second, the Commission indicated that in some situations, the requirement to make accessible the critical details of emergency information may not be limited to the immediate geographic areas affected by the emergency. The Commission gave the example of a large-scale disaster in which individuals are evacuated to non-impacted areas. In that situation, the need to comply with the emergency captioning rules extends to areas where evacuees are temporarily relocated.

Finally, the Commission reminded video programming distributors that emergency information provided in the video portion of a regularly scheduled newscast or a newscast that interrupts regular programming must be made accessible to visually impaired persons by aurally describing the emergency information in the main video, a technique known as “video description.” In addition, for emergency information provided in the video portion of programming that is not a regularly scheduled newscast, such as information presented through crawling or scrolling during regular programming or a newscast that interrupts regular programming, the information must be accompanied by an aural tone. The tone is intended to alert visually impaired persons that emergency information is being provided and, therefore, they should turn to other sources, such as radio, for information.

Update on pending new captioning rules

As detailed in our November 2008 advisory and January 2009 update, late last year, the FCC issued a Declaratory Ruling and Order, that, when effective, will impose significant new requirements on video programming distributors for fielding inquiries concerning closed captioning.

Among the new obligations, video programming distributors must make personnel available to address immediate captioning concerns raised by consumers while they are watching a program and must designate a telephone number, fax number and e-mail address for purposes of receiving and responding to these closed captioning concerns. This contact information must be included on the distributors’ Web sites, in billing invoices and in telephone directories (a petition for clarification has been filed to clarify that distributors need only include information in directories if directories already are used). The rules also require distributors to forward complaints on to the entity responsible for captioning, a requirement that has raised customer privacy concerns currently under review by the FCC. Additionally, the rules require distributors to respond to non-immediate concerns in accord with a revised, streamlined consumer complaint process.

These rules contain information collection requirements that must be approved by the Office of Management and Budget (OMB) before the rules become effective. In addition, once the OMB review process is finalized, the FCC will publish a separate notice in the Federal Register announcing the effective date of the rules. It is expected that the notice will be published in the near future once the Commission clarifies certain discrete aspects of the rules at the request of distributors.

As noted in Davis Wright Tremaine's June 2009 advisory, on June 7, 2009, the FCC released a brief erratum that clarifies the obligations of video programming distributors (including broadcasters and cable operators) to make contact information available to consumers for the receipt and handling of their immediate (during airing of programming) closed captioning. The erratum was published in the Federal Register on Sept. 11, 2009, but expressly states that the rule is not effective until the FCC publishes a separate document in the Federal Register announcing the effective date.

Finally, we should note that we are still awaiting an FCC decision on the closed captioning obligations of television broadcasters as they apply to digital multichannel operations. The Commission adopted a Further Notice of Proposed Rulemaking asking whether each digital multicast stream provided by a broadcaster should be recognized as a separate channel for purposes of the captioning exemption for video providers with annual revenues of less than $3 million, or whether all of the annual revenues from all of a broadcaster’s streams should be aggregated in assessing that exemption benchmark.