On Feb. 24, 2014, the FCC released the text of the Report and Order (R&O), Declaratory Ruling, and Further Notice of Proposed Rulemaking (FNPRM), which it adopted at its February Open Meeting, addressing the petition of Telecommunications for the Deaf and Hard of Hearing, Inc. and other advocacy groups which sought new rules governing the quality and technical compliance of closed captioning for televised video programming. As widely anticipated and as discussed in our prior advisory, the FCC promulgated rules establishing non-technical TV captioning quality standards to take effect next year, the details of which are analyzed below.
The R&O also modifies existing programmer certification requirements to require video programming distributors (VPDs, i.e., cable operators, satellite providers, broadcasters and their equivalents) to use best efforts to obtain certification from programmers that they, and their vendors/captioners, are adhering to “best practices.” It also codifies new requirements governing MVPD monitoring and maintenance for pass-through equipment, including record keeping, and subjects broadcasters relying upon the Electronic Newsroom Technique for captioning to “best practices” as well.
Perhaps as significant as the rules that were adopted, however, are the actions the FCC declined to take, though many of those are the subject of ongoing consideration in the FNPRM. For example, the FCC declined to shift regulatory compliance responsibility for captioning from VPDs to programmers at this time, deciding instead to continue to rely upon private contracts and an enhanced programmer certification process as the means for ensuring coordination in the captioning process from the programming production to the distribution stage. The FCC also declined to adopt specific captioning quality performance metrics or to impose best practices on VPDs. While the FCC imposed requirements on VPDs related to pass through equipment, it declined to require VPDs to submit reports of actual compliance at this time, but rather requires that VPDs be prepared to produce their monitoring and maintenance records if an enforcement action arises. The FCC further declined to eliminate the use of Electronic Newsroom Technique (ENT), deciding instead to require broadcasters using ENT to follow enhanced “best practice” procedures or fall under a “compliance ladder.” The FCC also decided against adopting base forfeiture amounts for non-compliance at this time.
Other significant issues raised in the FNPRM include: possible shifting of some captioning regulatory compliance to programmers directly; elimination of exemptions from closed captioning requirements, including those for channels with less than $3 million in annual gross revenue and/or that are new networks (first four years of existence), for ads of less than five minutes and promos/PSAs, and for late-night programming, among others; the likely extension of ENT scripting and crawl requirements to non-broadcast networks; possibly requiring that live programming captions be perfected prior to re-air; possible imposition of specific intervals for VPD equipment monitoring and maintenance; possible implementation of a public-facing dashboard for captioning complaints; and possible rules governing technical display issues.
Report and Order
The R&O takes the following steps to address numerous complaints that the FCC has received concerning the quality of captions over the more than 15 years since it first adopted the captioning rules, and the 10 years since the first petition was filed seeking captioning quality rules and related changes. These complaints included that captions were missing, garbled, incomplete, inaccurate, misspelled, non-synchronous, or blocked other onscreen content. The R&O notes that captioning quality has not evolved as anticipated since the rules were first adopted, and that the market for captioning services has become competitive, so much so that it appears some entities subject to the rules are using lowest-cost services with less concern for the quality of the captions produced.
The R&O thus adopts codified quality standards for the captions themselves, modifies the programmer certification process for VPDs and requires them to police non-certifying programmers, requires broadcasters that continue to rely on ENT for captioning to adhere to best practices or be subject to FCC oversight and possible enforcement action through what is referred to as a “compliance ladder,” and imposes new recordkeeping requirements on VPDs to ensure they are monitoring, maintaining and checking equipment used to pass through captions to television viewers.
Captioning Quality Standards
Effective no sooner than January 2015, the FCC imposed captioning quality standards in four categories: 1) accuracy; 2) synchronicity; 3) completeness; and 4) placement.
Accuracy: To be considered accurate, captions must match the spoken words in the program’s dialogue, in the original language, to the fullest extent possible, and must also include the full lyrics of any music included in the audio track. For dialogue, this means that all of the words must be included in the captioning in the proper order, with no paraphrasing or substitution, and with proper spelling and punctuation. Nonverbal information is also required to be captioned, such as the identity of the speaker and whether music or audience reactions are present, and the captions must be legible.
Synchronicity: To be considered synchronous, captions must appear and end at the same time as speech or sounds begin and end, and must appear on the screen at a speed that is readable.
Completeness: To be considered complete, captions must run from the beginning of a program to its end, to the extent possible.
Placement: To be considered properly placed, captions must not block other important visual content, such as character faces, featured text, or other essential information.
The FCC acknowledges that compliance with these four quality standards will depend in part on the type of programming to which the captioning is applied. Thus, the FCC discusses how the standards will apply to pre-recorded, live, and near-live programming (and to re-feeds of the latter two categories). For pre-recorded programming, which generally uses offline captions added to a program after it is produced but before it airs, captioning will be considered compliant if it contains no more than de minimis errors. The FCC does not quantify the de minimis standard but rather only noted that it will be evaluated in a flexible manner based on several factors regarding the nature of the captioning failure. Real-time captioning methods may also be used for pre-recorded programming under certain circumstances when it is necessary to do so, but are discouraged.
For live and near-live programming (defined as programming performed concurrently with broadcast or recorded less than 24 hours before air, respectively), the FCC will take into consideration the hurdles involved with captioning, acknowledging that there are limited opportunities to review or edit captions for compliance with quality standards. The Order includes numerous suggestions pulled from the record that are designed to improve caption quality for live programming. These include programmers providing captioners with advance materials (like relevant vocabulary) and high-quality audio signals to improve accuracy and synchronicity, and/or programmers using measures such as fade outs, advance delivery of audio to captioners, or lingering captions on subsequent advertisements/programs to promote complete captioning of a program.
In the case of near-live programming, the FCC encourages programmers to provide scripts or near-completed programs to captioners, or to provide access to a live feed of the taping of near-live content, and suggested that editing and synchronizing of captions could then be done on completed programs in the time between taping and airing, to the extent possible. For live or near-live programming that is later re-aired, the FCC encouraged the use of offline captioning methods to edit and improve captions prior to re-airing.
Programmer Certification Process
As with the prior captioning rules, ultimate responsibility for compliance with the captioning quality standards will rest with VPDs, who are then expected to assign responsibility to programming networks contractually. However, the Order includes a much greater focus on the role of programmers, as the FCC recognized the balance between assigning responsibility to VPDs who are customer-facing and programmers who have control over the captioning process.
Under the new rules, VPDs may meet their legal obligation by using best efforts to obtain a certification from the video programmer that the programmer either complies with the captioning quality standards or adheres to best practices for video programmers specified in the R&O and in the new rules the FCC adopted, or that a specific exemption, identified in the certification, applies to the programmer (or its programs). VPDs may continue to seek certifications directly from programmers but may also check websites or other locations to find “widely available” certifications posted by programmers. Significantly, VPDs must report any non-certifying programmers to the FCC. Should a VPD meet these best efforts requirements, it will be free from sanctions for captioning violations outside of the VPD’s control.
In crafting its rules and the R&O, the FCC drew upon several sets of best practices proposed by industry and other stakeholders. The R&O includes a lengthy recitation of best practices for video programmers, real-time captioning venders, real-time individual captioners, and offline captioning vendors and captioners.
Regarding complaints, the FCC adopted a consumer-complaint-driven procedure, as it uses for captioning generally. For captioning-quality complaints submitted to the FCC, the FCC will forward them to a covered entity only if the complaint contains sufficient specific information.
The FCC declines to phase out or prohibit the use of ENT, a captioning technique by which dialogue from a teleprompter or script computer is automatically converted into captions. The primary complaint with this technique is that it often fails to account for off-script dialogue. Under the existing captioning rules, the four major national broadcast networks, their affiliates in the 25 largest DMAs, and national non-broadcast networks serving at least 50% of all MVPD households may not use ENT to caption live programming.
In the Order, the FCC amends its rules for broadcast stations allowed to utilize ENT to incorporate ENT best practices initially proposed by the National Association of Broadcasters (NAB), while declining to apply the new ENT rules to non-broadcast networks serving less than 50 percent of homes subscribing to MVPD services. The best practices include scripting more in-studio news, sports, weather and entertainment programming, using visual information and increased scripting for weather interstitials within news programs, providing ENT training for news staff, and designating an ENT coordinator for compliance purposes. The FCC will require broadcasters (or NAB on their behalf) to develop a joint report with consumer groups assessing the efficacy of the new ENT measures after one year. The FCC also adopts a compliance ladder approach similar to one proposed by NAB in which complaints or a pattern of possible noncompliance with ENT rules leads to escalating consequences for the broadcast station/network at issue.
VPD Equipment Monitoring
The Order imposes new technical rules on VPDs, including requirements to monitor equipment to ensure that captions are being properly passed through to customers and to take necessary corrective measures to ensure that relevant equipment is in working order. Although VPDs are not required to monitor every program on every channel for compliance with the captioning standards, VPDs must instead conduct technical equipment checks. In addition, VPDs must keep records of their maintenance, monitoring and technical checking activities to respond to consumer complaints and to provide the FCC with sufficient information to evaluate the VPD’s compliance with the captioning rules. The records, which need not be in any particular format, must be kept for at least two years, and are producible to the FCC upon request by the agency.
The FCC also extended a preexisting exemption from the captioning rules that previously applied to channels producing annual gross revenues of less than $3 million to each programming stream on a multicast broadcast signal. That is, each stream on a multicast signal will be considered separately for purposes of the $3 million exemption. The FCC declined to create specific sanctions or remedies for closed captioning violations, but will continue to apply forfeitures and other sanctions as determined on a case-by-case basis. Finally, the FCC mandated that petitions for closed captioning exemptions due to economic burden, as well as comments on and oppositions to such petitions, must now be filed electronically. Such petitions, which traditionally have sought to remove captioning obligations from qualifying programmers, may now also more narrowly seek exemption from the new captioning quality standards.
Virtually all of the new rules adopted in the R&O will take effect no earlier than January 2015, and perhaps later than that if the process of securing approval from the Office of Management and Budget pushes beyond that date. The new ENT rules take effect 90 days after Federal Register publication.
In its Declaratory Ruling, the FCC clarified several issues that have been unclear since the time the original captioning rules were adopted. Specifically, the FCC confirmed that bilingual English/Spanish programs are subject to the same captioning requirements as programming entirely in one language or the other, and that programs that are in neither English nor Spanish but nonetheless contain snippets of English or Spanish need not be captioned. Similarly, the FCC confirmed that all on-demand programming must comply with relevant captioning rules, unless it is subject to an applicable exemption. The FCC also stated that all VPDs must make contact information available to consumers for complaints or other communication purposes, even if a given VPD is exempt from certain captioning rules. Finally, the FCC reminded low power television (LPTV) stations that they, too, must comply with the closed captioning rules. These clarifications apply immediately, insofar as they are explications of existing captioning obligations.
Further Notice of Proposed Rulemaking
A lengthy FNPRM covering numerous additional aspects of the captioning quality standards and the captioning rules in general accompanied the R&O and Declaratory Ruling. At the outset, the FNPRM addresses the potential reapportionment of responsibility for meeting closed captioning obligations. In this section of the FNPRM, which has an earlier deadline for comments than the other portions (30 days after publication in the Federal Register), the FCC asks whether it should shift some portion of the responsibility for captioning compliance from VPDs to video programmers, as was the case with parts of the FCC’s recent IP Captioning Order. Along these lines, the FCC seeks comment on a burden-shifting enforcement model proposed by Comcast, in which a VPD would hold the initial burden for investigating a captioning concern but could shift the burden for rectifying the problem to a video programming owner if the issue is within the programming owner’s control.
Regarding quality standards, the FCC raises several questions about live and near-live programming. It seeks comments on ways to improve synchronicity between audio and captions for live programming, as well as information regarding methods to avoid captions being cut off when a program transitions to a commercial or concludes. For near-live programming, the FNPRM invites comment on whether the current definition of near-live programming is appropriate and whether there are additional ways the quality of near-live captioning might be improved. The FCC also asks whether it should require the use of offline captioning for live or near-live programming that is later re-aired.
On the ENT issue, the FCC seeks comments on whether it should apply the new ENT requirements to non-broadcast networks that serve less than 50 percent of all MVPD-subscribing households.
Comments are also solicited on several issues related to compliance efforts. For instance, the FCC asks about the intervals and frequency with which technical equipment checks should be required. Regarding customer complaints, the FCC inquires whether it should adopt NCTA’s best practices for resolving customer concerns, and whether it should establish a public-facing “dashboard” to provide transparency on captioning-related complaints. The FCC also asks several questions concerning captioning outages, including whether to require VPDs to notify consumers and/or the FCC in the event an outage occurs (such as through the VPD’s website and an onscreen crawl during the captioning outage), whether to require outage reporting to the FCC, and whether other entities like programmers should share outage responsibilities. Questions regarding VPD contact information and privacy concerns surrounding customer complaints also appear in the FNPRM.
The FCC additionally seeks comment on the possible elimination of pre-existing exemptions from closed captioning requirements, including the new network exemption, under which broadcast or non-broadcast networks are exempt from closed captioning for their first four years after launch. Specifically, the FCC asks whether it should preserve the exemption, or whether it should modify it in some way (with, for instance, shorter time periods or different definitions of what constitutes a “network”). The FNPRM inquires whether networks previously operating abroad and launching in the U.S. should be eligible for the exemption, and whether and how the exemption should apply to networks formed via merger of existing networks. The FCC also asks related questions regarding the proposed elimination of other exemptions under the closed captioning rules, such as the advertising exclusion and exemptions like those for late night programming, for local non-news programming with no repeat value, and for promos, PSAs and other announcements of 10 minutes or less.
Finally, the FCC addresses several technical issues. First, the FCC seeks comment on the success or lack thereof of the CEA-708 display standards, which give viewers the ability to customize certain aspects of how captions appear (e.g., font, size, color, etc.). Second, the FCC inquires about various on-screen obstructions of captioning, such as split-screens, credits, and graphics. Third, the FCC asks series of questions designed to build the record on the capabilities of two new technologies, 3D TV and Ultra HDTV.
Comments on issues not pertaining to the VPD-programmer split of responsibility for captioning compliance will be due 90 days after the FNPRM’s publication in the Federal Register, with replies due 30 days after the initial comments.