Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, 59963-59990 [2011-24703]
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Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
(Catalog of Federal Domestic Assistance No.
97.022, ‘‘Flood Insurance.’’)
Dated: September 13, 2011.
Sandra K. Knight,
Deputy Associate Administrator for
Mitigation, Department of Homeland
Security, Federal Emergency Management
Agency.
[FR Doc. 2011–24898 Filed 9–27–11; 8:45 am]
BILLING CODE 9110–12–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 15 and 79
[MB Docket No. 11–154; FCC 11–138]
Closed Captioning of Internet ProtocolDelivered Video Programming:
Implementation of the Twenty-First
Century Communications and Video
Accessibility Act of 2010
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the
Commission proposes rules to
implement provisions of the TwentyFirst Century Communications and
Video Accessibility Act of 2010
(‘‘CVAA’’) that mandate rules for closed
captioning of certain video
programming delivered using Internet
protocol (‘‘IP’’). The Commission seeks
comment on rules that would apply to
the distributors, providers, and owners
of IP-delivered video programming, as
well as the devices that display such
programming.
SUMMARY:
Comments are due on or before
October 18, 2011; reply comments are
due on or before October 28, 2011.
Written PRA comments on the proposed
information collection requirements
contained herein must be submitted by
the public, Office of Management and
Budget (OMB), and other interested
parties on or before November 28, 2011.
ADDRESSES: You may submit comments,
identified by MB Docket No. 11–154 by
any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s Electronic Comment
Filing System (ECFS) Web Site: https://
fjallfoss.fcc.gov/ecfs/. Follow the
instructions for submitting comments.
• Mail: Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
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Secretary, Federal Communications
Commission.
∑ People with Disabilities: Contact the
FCC to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by e-mail: FCC504@fcc.gov
or phone: 202–418–0530 or TTY: 202–
418–0432.
In addition to filing comments with
the Secretary, a copy of any comments
on the Paperwork Reduction Act
proposed information collection
requirements contained herein should
be submitted to the Federal
Communications Commission via e-mail
to PRA@fcc.gov and to Nicholas A.
Fraser, Office of Management and
Budget, via e-mail to
Nicholas_A._Fraser@omb.eop.gov or via
fax at 202–395–5167. For detailed
instructions for submitting comments
and additional information on the
rulemaking process, see the
SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT: For
additional information on this
proceeding pertaining to Section 202 of
the CVAA, contact Diana Sokolow,
Diana.Sokolow@fcc.gov, of the Policy
Division, Media Bureau, (202) 418–
2120. For additional information on this
proceeding pertaining to Section 203 of
the CVAA, contact Jeffrey Neumann,
Jeffrey.Neumann@fcc.gov, of the
Engineering Division, Media Bureau,
(202) 418–7000. For additional
information concerning the Paperwork
Reduction Act information collection
requirements contained in this
document, send an e-mail to
PRA@fcc.gov or contact Cathy Williams
at (202) 418–2918.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Notice of
Proposed Rulemaking, FCC 11–138,
adopted and released on September 19,
2011. The full text is available for public
inspection and copying during regular
business hours in the FCC Reference
Center, Federal Communications
Commission, 445 12th Street, SW., CY–
257, Washington, DC 20554. This
document will also be available via
ECFS at https://fjallfoss.fcc.gov/ecfs/.
Documents will be available
electronically in ASCII, Word 97, and/
or Adobe Acrobat. The complete text
may be purchased from the
Commission’s copy contractor, 445 12th
Street, SW., Room CY–B402,
Washington, DC 20554. Alternative
formats are available for people with
disabilities (Braille, large print,
electronic files, audio format), by
sending an e-mail to fcc504@fcc.gov or
calling the Commission’s Consumer and
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59963
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
This document contains proposed
information collection requirements. As
part of its continuing effort to reduce
paperwork burden and as required by
the Paperwork Reduction Act (PRA) of
1995 (44 U.S.C. 3501–3520), the Federal
Communications Commission invites
the general public and other Federal
agencies to comment on the following
information collection(s). Public and
agency comments are due November 28,
2011.
Comments should address: (a)
Whether the proposed collection of
information is necessary for the proper
performance of the functions of the
Commission, including whether the
information shall have practical utility;
(b) the accuracy of the Commission’s
burden estimates; (c) ways to enhance
the quality, utility, and clarity of the
information collected; and (d) ways to
minimize the burden of the collection of
information on the respondents,
including the use of automated
collection techniques or other forms of
information technology. In addition,
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, see 44 U.S.C. 3506(c)(4),
we seek specific comment on how we
might ‘‘further reduce the information
collection burden for small business
concerns with fewer than 25
employees.’’
To view or obtain a copy of this
information collection request (ICR)
submitted to OMB: (1) Go to this OMB/
GSA Web page: https://www.reginfo.gov/
public/do/PRAMain, (2) look for the
section of the Web page called
‘‘Currently Under Review,’’ (3) click on
the downward-pointing arrow in the
‘‘Select Agency’’ box below the
‘‘Currently Under Review’’ heading, (4)
select ‘‘Federal Communications
Commission’’ from the list of agencies
presented in the ‘‘Select Agency’’ box,
(5) click the ‘‘Submit’’ button to the
right of the ‘‘Select Agency’’ box, and (6)
when the list of FCC ICRs currently
under review appears, look for the OMB
control number of this ICR as show in
the SUPPLEMENTARY INFORMATION section
below (or its title if there is no OMB
control number) and then click on the
ICR Reference Number. A copy of the
FCC submission to OMB will be
displayed.
OMB Control Number: 3060–XXXX.
Title: Section 79.4, Closed Captioning
of Video Programming Delivered Using
Internet Protocol.
Form Number: Not applicable.
Type of Review: New collection.
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Respondents: Individuals or
households; Businesses or other forprofit entities; Not-for-profit
institutions.
Number of Respondents and
Responses: 1,140 respondents; 12,225
responses.
Estimated Time per Response: 0.084–
5 hours.
Frequency of Response: On occasion
reporting requirement; Recordkeeping
requirement.
Obligation to Respond: Voluntary and
required to obtain or retain benefits. The
statutory authority for this collection of
information is contained in 47 U.S.C.
154(i), 154(j), 303(r), and 613.
Total Annual Burden: 6,140 hours.
Total Annual Costs: $420,000.
Privacy Act Impact Assessment: Yes.
The Privacy Impact Assessment (PIA)
was completed on June 28, 2007. It may
be reviewed at: https://www.fcc.gov/
omd/privacyact/
Privacy_Impact_Assessment.html. The
Commission is in the process of
updating the PIA to incorporate various
revisions made to the SORN.
Nature and Extent of Confidentiality:
Confidentiality is an issue to the extent
that individuals and households
provide personally identifiable
information, which is covered under the
FCC’s system of records notice (SORN),
FCC/CGB–1, ‘‘Informal Complaints and
Inquiries.’’ As required by the Privacy
Act, 5 U.S.C. 552a, the Commission also
published a SORN, FCC/CGB–1
‘‘Informal Complaints and Inquiries’’, in
the Federal Register on December 15,
2009 (74 FR 66356) which became
effective on January 25, 2010.
Needs and Uses: The Commission is
seeking approval for this proposed
information collection from the Office of
Management and Budget (OMB). On
September 19, 2011, the Commission
released a Notice of Proposed
Rulemaking, MB Docket No. 11–154;
FCC 11–138. This rulemaking proposed
information collection requirements that
support the Commission’s IP closed
captioning rules that would be codified
at 47 CFR 79.4, as required by the
CVAA.
The proposed information collection
requirements consist of:
Certifications if Captions Are Not
Required
Pursuant to proposed 47 CFR
79.4(c)(1)(i), video programming owners
must send program files to video
programming distributors and providers
either with captions as required by
Section 79.4, or with a dated
certification that captions are not
required for a specified reason.
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Pursuant to proposed 47 CFR
79.4(c)(1)(ii), video programming
owners must provide video
programming distributors and providers
with any revised certifications and
newly required captions (if captions
were not previously delivered) within
seven days of the underlying change.
Pursuant to proposed 47 CFR
79.4(c)(2)(ii), video programming
distributors and providers must retain
all certifications received from video
programming owners pursuant to
proposed 47 CFR 79.4(c)(1)(i)–(ii) for so
long as the video programming
distributor or provider makes the
certified programming available to end
users through a distribution method that
uses IP and thereafter for at least one
calendar year.
Petitions for Exemption Based on
‘‘Economic Burden’’
Pursuant to proposed 47 CFR 79.4(e),
a video programming provider or owner
may petition the Commission for a full
or partial exemption from the closed
captioning requirements for IP-delivered
video programming based upon a
showing that they would be
economically burdensome.
Petitions for exemption must by filed
with the Commission, placed on Public
Notice, and be subject to comment from
the public.
Complaints Alleging Violations of the
Closed Captioning Rules for IPDelivered Video Programming
Pursuant to proposed 47 CFR
79.4(f)(1), a complaint alleging a
violation of the closed captioning rules
for IP-delivered video programming may
be filed with the Commission. Proposed
47 CFR 79.4(f)(1) would require such a
complaint to be in writing, and to
include:
The name and address of the
complainant;
The name and postal address, Web
site, or e-mail address of the video
programming distributor, provider, and/
or owner against whom the complaint is
alleged, and information sufficient to
identify the video programming
involved;
Information sufficient to identify the
software or device used to view the
program;
A statement of facts sufficient to show
that the video programming distributor,
provider, and/or owner has violated or
is violating the Commission’s rules, and,
if applicable, the date and time of the
alleged violation;
The specific relief or satisfaction
sought by the complainant; and
The complainant’s preferred format or
method of response to the complaint
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(such as letter, facsimile transmission,
telephone (voice/TRS/TTY), e-mail, or
some other method that would best
accommodate the complainant).
The Commission is seeking OMB
approval for the proposed information
collection requirements.
Summary of the Notice of Proposed
Rulemaking
I. Introduction
1. The Twenty-First Century
Communications and Video
Accessibility Act of 2010 (‘‘CVAA’’)
requires the Federal Communications
Commission (‘‘Commission’’) to revise
its regulations to mandate closed
captioning on certain video
programming delivered using Internet
protocol (‘‘IP’’).1 In this Notice of
Proposed Rulemaking (‘‘NPRM’’), we
initiate a proceeding that will fulfill this
requirement. We seek comment on
proposals that would better enable
individuals who are deaf or hard of
hearing to view IP-delivered video
programming, by requiring that
programming be provided with closed
captions if it was shown on television
with captions after the effective date of
the rules adopted pursuant to this
proceeding. We also seek comment on
requirements for the devices that are
subject to the CVAA’s new closed
captioning requirements.2 Our goal is to
require the provision of closed captions
with IP-delivered video programming in
the manner most helpful to consumers,
while ensuring that our regulations do
not create undue economic burdens for
the distributors, providers, and owners
of online video programming.
2. Closed captioning is an assistive
technology that provides individuals
who are deaf or hard of hearing with
access to television programming.
Closed captioning displays the audio
portion of a television signal as printed
words on the television screen. Existing
regulations require the use of closed
captioning on television.3 Until now,
however, closed captioning has not been
required for IP-delivered video
programming. That changed with the
enactment of the CVAA. Specifically,
Section 202(b) of the CVAA revised
Section 713 of the Communications Act
of 1934, as amended (the ‘‘Act’’), to
require the Commission to ‘‘revise its
regulations to require the provision of
1 Public Law 111–260, 124 Stat. 2751, § 202(b)
(2010). See also Amendment of Twenty-First
Century Communications and Video Accessibility
Act of 2010, Public Law 111–265, 124 Stat. 2795
(2010) (making technical corrections to the CVAA).
2 See Public Law 111–260, § 203.
3 See 47 CFR 79.1 (setting forth the requirements
for closed captioning of video programming on
television).
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closed captioning on video
programming delivered using Internet
protocol that was published or exhibited
on television with captions after the
effective date of such regulations.4
3. The CVAA also required the
Chairman of the Commission to
establish an advisory committee known
as the Video Programming Accessibility
Advisory Committee (‘‘VPAAC’’).5
Section 201(e)(1) of the CVAA required
the VPAAC to submit a report on closed
captioning to the Commission six
months after its first meeting, or by July
13, 2011.6 The VPAAC submitted this
report on July 12, 2011.7 By statute,
4 47
U.S.C. 613(c)(2)(A).
Law 111–260, § 201(a) (providing that,
within 60 days of the CVAA’s enactment, the
Chairman must establish an advisory committee).
The CVAA was enacted on October 8, 2010, and the
Commission announced the establishment of the
VPAAC on December 7, 2010. See Notice, Video
Programming and Emergency Access Advisory
Committee Announcement of Members, DA 10–
2320, 76 FR 2686, January 14, 2011; see also Public
Notice, Erratum, Video Programming and
Emergency Access Advisory Committee
Announcement of Members (rel. Jan. 7, 2011).
Although in the CVAA, this advisory committee is
formally known as the ‘‘Video Programming and
Emergency Access Advisory Committee,’’ its
working name was shortened to the ‘‘Video
Programming Accessibility Advisory Committee’’ in
order to avoid confusion with a second advisory
committee required by the CVAA that is addressing
9–1–1 emergency access issues. See Public Law
111–260, § 106 (directing the Commission to
establish an ‘‘Emergency Access Advisory
Committee’’).
6 Section 201(e)(1) of the CVAA required the
VPAAC’s report to include:
(A) A recommended schedule of deadlines for the
provision of closed captioning service.
(B) An identification of the performance
objectives for protocols, technical capabilities, and
technical procedures needed to permit content
providers, content distributors, Internet service
providers, software developers, and device
manufacturers to reliably encode, transport, receive,
and render closed captions of video programming,
except for consumer generated media, delivered
using Internet protocol.
(C) An identification of additional protocols,
technical capabilities, and technical procedures
beyond those available as of the date of enactment
of the [CVAA] for the delivery of closed captions
of video programming, except for consumer
generated media, delivered using Internet protocol
that are necessary to meet the performance
objectives identified under subparagraph (B).
(D) A recommendation for technical standards to
address the performance objectives identified in
subparagraph (B).
(E) A recommendation for any regulations that
may be necessary to ensure compatibility between
video programming, except for consumer generated
media, delivered using Internet protocol and
devices capable of receiving and displaying such
programming in order to facilitate access to closed
captions.
Public Law 111–260, § 201(e)(1).
7 See First Report of the Video Programming
Accessibility Advisory Committee on the TwentyFirst Century Communications and Video
Accessibility Act of 2010: Closed Captioning of
Video Programming Delivered Using Internet
Protocol, July 12, 2011, available at https://
transition.fcc.gov/cgb/dro/VPAAC/
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within six months of the submission of
the VPAAC Report, the Commission
must issue final regulations to require
the provision of closed captioning on IPdelivered video programming.8
Accordingly, the Commission must
revise its regulations by January 12,
2012.9 By the same date, pursuant to
Section 203 of the CVAA, the
Commission must revise its regulations
to include any technical standards,
protocols, and procedures needed for
the transmission of closed captioning
delivered using IP, to ensure that certain
apparatus are capable of rendering,
passing through, or otherwise
permitting the display of closed
captions for end users.10
We consider below revisions to our
rules that would implement the
requirements of Sections 202(b) and 203
of the CVAA, as well as the conforming
amendment set forth in Section 202(c)
of the CVAA. These proposals could
fulfill Congress’ goal of enabling
consumers who are deaf or hard of
hearing to have access to IP-delivered
video programming. As discussed
below, we seek comment on rule
changes that would:
∑ Specify the obligations of entities
subject to Section 202(b) by:
∑ Requiring video programming
owners to send required caption files for
IP-delivered video programming to
video programming distributors and
video programming providers along
with program files;
∑ Requiring video programming
distributors and video programming
providers to enable the rendering or
pass through of all required captions to
the end user; and
∑ Requiring the quality of all required
captioning of IP-delivered video
programming to be of at least the same
quality as the captioning of the same
programming when shown on
television; 11
∑ Create a schedule of deadlines by
which:
Æ All prerecorded and unedited
programming subject to the new
requirements must be captioned within
six months of publication of the rules in
the Federal Register;
Æ All live and near-live programming
subject to the new requirements must be
captioned within 12 months of
First_VPAAC_Report_to_the_FCC_7-1111_FINAL.pdf (‘‘VPAAC Report’’).
8 47 U.S.C. 613(c)(2)(A).
9 See id.
10 Public Law 111–260, § 203(a)–(b), (d).
11 See Section III.A., infra. As discussed below, a
covered entity may be permitted to improve upon
the quality of the captioning of IP-delivered video
programming.
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publication of the rules in the Federal
Register; and
Æ All prerecorded and edited
programming subject to the new
requirements must be captioned within
18 months of publication of the rules in
the Federal Register; 12
∑ Craft procedures by which video
programming providers and video
programming owners may petition the
Commission for exemptions from the
new requirements based on economic
burden; 13
∑ Establish a mechanism to make
information about video programming
subject to the CVAA available to video
programming providers and
distributors, by requiring video
programming owners to provide
programming for IP delivery either with
captions, or with a certification that
captions are not required for a stated
reason; 14
∑ Decline to adopt particular
technical standards for IP-delivered
video programming; 15
∑ Decline to treat a de minimis failure
to comply with the new rules as a
violation, and permit entities to comply
with the new requirements by alternate
means; 16 and
∑ Adopt procedures for complaints
alleging a violation of the new
requirements.17 Additionally, we seek
comment on the appropriate
requirements for devices subject to the
closed captioning requirements of
Section 203.18
II. Background
A. History of Closed Captioning
5. Captions first appeared on
television in the early 1970s in an ‘‘open
captioning format’’ by which the text
was transmitted with the video in a
manner that was visible to all viewers.19
In 1977, the Commission adopted rules
providing that line 21 of the vertical
blanking interval (‘‘VBI’’) would be used
primarily for the transmission of closed
captioning to analog receivers.20 For
12 See
Section III.B., infra.
Section III.C., infra.
14 See Section III.D., infra.
15 See Section III.E., infra.
16 See Section III.F., infra.
17 See Section III.G., infra.
18 See Section IV., infra.
19 See Closed Captioning and Video Description
of Video Programming, Implementation of Section
305 of the Telecommunications Act of 1996, Video
Programming Accessibility, FCC 96–318, 61 FR
42249, August 14, 1996.
20 See TV Captioning for the Deaf, Report and
Order, 63 FCC 2d 378 (1977). See also Permissible
Uses of the Vertical Blanking Interval, FCC 93–235,
58 FR 29981, May 25, 1993 (permitting enhanced
closed captioning and other broadcast-related
information services on line 21, field 2 of the VBI).
13 See
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analog television, closed captioning is
transmitted through encoded data
within the television signal’s VBI
‘‘which, when decoded, provides a
visual depiction of information
simultaneously being presented on the
aural channel (captions).21 Since closed
captioning is hidden as encoded data
transmitted within the television signal,
receivers can be (and are) designed to
allow consumers to turn the captioning
on and off.22 In addition to displaying
the audio portion of a television signal
as printed words, captions may identify
speakers, sound effects, music, and
laughter.23
6. The Television Decoder Circuitry
Act of 1990 (‘‘TDCA’’) 24 required all
television receivers with screen sizes of
13 inches or larger, manufactured or
sold in the United States, to possess
closed captioning capability.25 In the
years that followed, the use of closed
captioning increased somewhat, through
the voluntary efforts of the video
programming industry.26 As the number
of channels of video programming
increased, Congress remained
concerned that ‘‘video programming
through all delivery systems should be
accessible’’ to individuals who are deaf
or hard of hearing.27
7. In the Telecommunications Act of
1996, Congress added a new section
entitled ‘‘Video Programming
Accessibility’’ to the Act.28 To ensure
access for individuals with hearing
disabilities, Section 713 of the Act
requires the closed captioning of video
programming.29 In 1997, the
Commission adopted rules and
implementation schedules for closed
captioning of video programming, as
required by Section 713.30 The
schedules varied based on whether
programming is analog or digital,
Spanish or English, and whether it is
pre-rule (i.e., older) or new
programming. Today, all new English
and Spanish language television
programming that is subject to the rule
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21 47
CFR 73.682(a)(22)(i).
22 See 2008 Closed Captioning Order, FCC 08–
255, 74 FR 1594, January 13, 2009 (‘‘2008 Closed
Captioning Order’’).
23 See id.
24 Public Law 101–431, 104 Stat. 960 (1990)
(codified at 47 U.S.C. 303(u), 330(b)).
25 See TDCA Order, FCC 91–119, 56 FR 27200,
June 13, 1991 (‘‘TDCA Order’’).
26 See 1997 Closed Captioning Order, FCC 97–
279, 62 FR 48487, September 16, 1997 (‘‘1997
Closed Captioning Order’’), recon. granted in part,
FCC 98–236, 63 FR 55959, October 20, 1998.
27 H.R. Rep. No. 104–204, 104th Cong., 1st Sess.
at 113–14 (1995).
28 See Section 305 of the Telecommunications
Act of 1996, Public Law 104–104, 110 Stat. 56
(codified at 47 U.S.C. 613).
29 47 U.S.C. 613.
30 See generally 1997 Closed Captioning Order.
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must be provided with closed
captions,31 and 75 percent of pre-rule
English language television
programming that is subject to the rule
must be provided with closed
captions.32 In 2000, the Commission
adopted rules governing the display of
captions on digital receivers, and the
Commission’s rules now specify
technical standards for the reception
and display of captioning on both
analog and digital receivers.33
B. IP-Delivered Closed Captioning and
Sections 202(b) and (c) of the CVAA
8. Today, IP-delivered video
programming takes a number of forms,
such as programming delivered to a
personal computer, tablet device,
cellular telephone, game console, Bluray player, or set top box. The
Commission previously recognized that
the Internet has become a powerful
method of video programming
distribution, and that the amount of
video content available on the Internet
is continuing to increase significantly
each year, as consumers increasingly
utilize the Internet for this purpose.34
The Internet’s role in video
programming delivery ‘‘has progressed
from negligible just a few years ago to
an increasingly mainstream role
today.’’ 35 Although much IP-delivered
video programming remains
inaccessible to individuals who are deaf
or hard of hearing, certain entities have
taken voluntarily measures to begin
including captions on some of their
programming.36
9. Through the CVAA, Congress
sought to ‘‘update the communications
laws to help ensure that individuals
with disabilities are able to fully utilize
communications services and
equipment and better access video
programming.’’ 37 The Committee
reports state that, while modern
technology such as the Internet has
31 47
CFR 79.1(b)(1)(iv), 79.1(b)(3)(iv).
CFR 79.1(b)(2)(ii). As of January 1, 2012, 75
percent of pre-rule Spanish language television
programming that is subject to the rule will be
required to be provided with closed captions. See
47 CFR 79.1(b)(4)(ii).
33 47 CFR 15.119, 15.122.
34 Applications of Comcast Corp., General Electric
Co. and NBC Universal, Inc. For Consent to Assign
Licenses and Transfer Control of Licenses,
Memorandum Opinion and Order, 26 FCC Rcd
4238, 4256, para. 41 (2011) (‘‘Comcast-NBCU
Order’’).
35 Id. at 4262, para. 60.
36 For example, we are aware that Apple, CBS,
Comcast, DISH, Disney/ABC, Fox, Hulu, NBC,
Netflix, Time Warner Cable, and YouTube/Google
currently provide captions for certain IP-delivered
video programming.
37 See S. Rep. No. 111–386, 111th Cong., 2d Sess.
at 1 (2010); H.R. Rep. No. 111–563, 111th Cong., 2d
Sess. at 19 (2010).
32 47
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everyday benefits, those benefits are not
always accessible to people with
disabilities.38 Section 202(b) of the
CVAA requires the Commission to
revise its regulations to require closed
captioning of IP-delivered video
programming that was shown on
television with captions after the
effective date of the new regulations.39
10. The CVAA applies broadly to the
distributors, providers, and owners of
IP-delivered video programming.
Specifically, Section 202(b) of the
CVAA amends Section 713 of the Act to
require the Commission’s regulations to
‘‘include an appropriate schedule of
deadlines for the provision of closed
captioning, taking into account whether
such programming is prerecorded and
edited for Internet distribution, or
whether such programming is live or
near-live and not edited for Internet
distribution.40 The Commission may
delay or waive the requirements if
application to live IP-delivered video
programming is ‘‘economically
burdensome to providers of video
programming or program owners, ’’ 41
and it may exempt a ‘‘service, class of
service, program, class of program,
equipment, or class of equipment for
which the Commission has determined
that the application of such regulations
would be economically burdensome for
the provider of such service, program, or
equipment. ’’ 42 Section 202(b) of the
CVAA also requires the Commission to
‘‘establish a mechanism to make
available to video programming
providers and distributors information
on video programming subject to the
[CVAA] on an ongoing basis. ’’ 43
Section 202(b) further directs the
Commission not to find that a de
minimis failure is a violation,44 and to
permit entities to meet the new
requirements by alternate means.45
Finally, Section 202(c) of the CVAA
consists of a ‘‘conforming amendment’’
to Section 713(d) of the Act, regarding
the process for petitioning for an
exemption.46
38 See S. Rep. No. 111–386 at 1–2; H.R. Rep. No.
111–563 at 19.
39 The CVAA defines ‘‘Internet protocol’’ as
including ‘‘Transmission Control Protocol and a
successor protocol or technology to Internet
protocol.’’ Public Law 111–260, § 206(5).
40 47 U.S.C. 613(c)(2)(B).
41 47 U.S.C. 613(c)(2)(C).
42 47 U.S.C. 613(c)(2)(D)(ii).
43 47 U.S.C. 613(c)(2)(D)(v).
44 47 U.S.C. 613(c)(2)(D)(vii).
45 47 U.S.C. 613(c)(3).
46 47 U.S.C. 613(d). Neither the statute nor the
legislative history explains what Congress meant by
characterizing the amendment as ‘‘conforming.’’
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C. Section 203 of the CVAA
Congress also determined that the
objectives of the CVAA could not be met
unless the devices that consumers use to
view video programming, including
those devices that may be small and
portable, are able to display closed
captions. Therefore, it enacted Section
203(a), requiring ‘‘that [the] devices
consumers use to view video
programming are able to display closed
captions.’’ 47 To do this, Congress
directed the Commission to enact
provisions that require all ‘‘apparatus
designed to receive or play back video
programming transmitted
simultaneously with sound * * * be
equipped with built-in closed caption
decoder circuitry or capability’’ 48 and
contain exceptions only for those
devices which are ‘‘display-only video
monitors with no playback
capability’’ 49 and devices with picture
screens less than 13 inches for which
meeting the regulation is not
‘‘achievable.’’ 50 Additionally, the
Commission must require that all
devices ‘‘designed to record video
programming * * * [must] enable the
rendering or the pass-through of closed
captions’’ 51 and that the
‘‘interconnection mechanisms and
standards for digital video source
devices are available to * * * permit or
render the display of closed
captions.’’ 52
12. Taken together, these statutory
provisions seek to encompass many
devices on which consumers view
video, such as portable media players,
personal computers, televisions, and the
devices consumers connect to their
televisions to access programming via
the Internet and other sources. As in
Section 202(b), the Commission is
required to prescribe regulations within
six months of the VPAAC Report and to
provide that entities may meet the
47 S. Rep. No. 111–386 at 14; H.R. Rep. No. 111–
563 at 30
48 47 U.S.C. 303(u)(1).
49 47 U.S.C. 303(u)(2)(B).
50 47 U.S.C. 303(u)(2)(A). In determining whether
the requirements of a provision are achievable, the
Commission shall consider the following factors: (1)
The nature and cost of the steps needed to meet the
requirements of this section with respect to the
specific equipment or service in question; (2) the
technical and economic impact on the operation of
the manufacturer or provider and on the operation
of the specific equipment or service in question,
including on the development and deployment of
new communications technologies; (3) the type of
operations of the manufacturer or provider; and (4)
the extent to which the service provider or
manufacturer in question offers accessible services
or equipment containing varying degrees of
functionality and features, and offered at differing
price points. 47 U.S.C. 617(g)(1)–(4).
51 47 U.S.C. 303(z)(1).
52 47 U.S.C. 303(z)(2).
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requirements of these provisions
through ‘‘alternate means.’’ 53
D. VPAAC Working Group 1 and Its
Report
13. The VPAAC’s first meeting was
held at the Commission on January 13,
2011, and a second meeting was held on
May 5, 2011. During the first meeting,
the VPAAC was divided into four
working groups; Working Group 1 took
on the task of examining ‘‘issues
involved in transferring closed captions
provided on television programs to the
online environment.’’ 54 In addition to
work conducted at the January and May
meetings, Working Group 1 conferred
and collaborated on these issues
through weekly conference calls, regular
e-mail correspondence, and the group’s
workshare Web site (or ‘‘wiki’’). 55 The
Media Bureau also conducted informal
meetings with online video
programming distributors, broadcast
networks, multichannel video
programming distributors (‘‘MVPDs’’),
consumer advocacy groups, and others
that were interested in discussing
Section 202 of the CVAA in anticipation
of the Media Bureau’s receipt of the
VPAAC Report and its preparation of
this NPRM.
14. As noted above, the VPAAC
submitted its report on July 12, 2011.
The VPAAC Report provided
suggestions for how the Commission’s
regulations on IP closed captioning
should address caption completeness,
placement, accuracy, and timing, as
well as specific technical requirements
that a user’s Internet-connected media
players should support.56 The VPAAC
Report went on to describe technical
requirements for the delivery of closed
captioning of IP-delivered television
programming, suggesting that the
Commission require a single
interchange format but not a single
delivery format for IP closed
captioning.57 Next, the VPAAC Report
described ‘‘the technical capabilities
and procedures needed for entities to
53 Public
Law 111–260, § 203(d)(1), (e).
VPAAC Report at 4.
55 See id. at 5.
56 See id. at 13–16.
57 See id. at 16–20. The VPAAC Report proposed
defining ‘‘interchange format’’ as ‘‘[t]he encoded
caption data that preserves all of the original
semantic information and text * * * and allows
easy conversion to other formats.’’ See id. at 18. See
also id. at 22 (‘‘By ‘interchange format’ we mean the
format of closed-captioning data carried within
television content as it is distributed from the
content provider to programming distributors.’’).
The VPAAC Report proposed defining ‘‘delivery
format’’ as ‘‘[t]he encoded caption data contained
within a download or stream of content to a
consumer device in either the standard interchange
format or a different network-specific or videoplayer-specific format * * *.’’ See id. at 18.
54 See
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reliably encode, transport, receive and
render broadcast-television closed
captions over the Internet.58 The
VPAAC Report discussed three
interfaces that may require
standardization—(i) interchange formats
(i.e., between video programming
owners and video programming
distributors/providers), (ii) delivery file
formats (i.e., between video
programming distributors/providers and
user devices), and (iii) linkages to users’’
captioning display controls (i.e.,
between devices or between software
and firmware running on one device).59
The VPAAC Report also briefly
discussed potential developments in IPdelivered closed captioning 60 and
proposed a schedule of deadlines for the
provision of closed captioning over
IP. 61 We describe the VPAAC
recommendations more specifically in
the context of our discussion of Sections
202 and 203 below.62
III. Section 202(b) of the CVAA
A. Entities Subject to Section 202(b) of
the CVAA and Their Obligations
Various provisions of Section 202(b)
of the CVAA reference ‘‘video
programming distributors’’ (‘‘VPDs’’),
‘‘video programming providers’’
(‘‘VPPs’’), and ‘‘video programming
owners’’ (‘‘VPOs’’). We seek comment
on how the Commission should define
these terms.63 The CVAA provides some
guidance on the definition of the first
two terms, requiring the Commission to
‘‘clarify that, for the purposes of
implementation, [sic] of this subsection,
the terms ‘video programming
distributors’ and ‘video programming
providers’ include an entity that makes
available directly to the end user video
programming through a distribution
58 See
id. at 21–28.
id. at 22–23, 26–28. We discuss interchange
and delivery formats in Sections III.E. and IV.B.,
infra.
60 See id. at 28–29.
61 See id. at 29–30. The VPAAC Report also
contains three appendices. Appendix A contains a
summary of recommended DTV receiver
requirements. See id. at 31–32. Appendix B lists
‘‘best practices’’ for closed captioning of IPdelivered video programming. See id. at 33 (noting
that ‘‘there is not consensus about whether these
practices should be mandated or only offered as
suggestions’’); see also id. at 13 n. 29. Lastly,
Appendix C details unresolved issues that the
VPAAC recommended the Commission consider in
the NPRM. See id. at 34–35.
62 See Sections III. and IV., infra.
63 Our use of the terms VPD and VPP in this
NPRM is meant to reference our proposed
definitions of those terms in this context, and not
to invoke any use of those terms in other contexts,
including in our television closed captioning or
video description rules. This NPRM does not
propose any modifications to our television closed
captioning rules.
59 See
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method that uses Internet protocol.’’ 64
We propose to define VPD and VPP as
having the same meaning, because there
does not seem to be a practical benefit
in distinguishing between the two for
purposes of Section 202(b) of the CVAA.
We seek comment on this proposal. In
addition, in recognition of the broad
reach that Congress intended for Section
202(b), we propose to define both a VPD
and a VPP as any entity that makes
available directly to the end user video
programming through a distribution
method that uses IP. Further, we
propose to define a VPO as any person
or entity that owns the copyright of the
video programming delivered to the end
user through a distribution method that
uses IP. We seek comment on these
proposed definitions. Should the
Commission instead define VPDs and
VPPs separately, and if so, how should
those definitions differ from one
another? 65 If we were to define VPDs
and VPPs differently from one another,
what would be the effect on provisions
of the CVAA that apply to VPPs and
VPOs but not VPDs? Will a significant
number of small entities be covered by
the proposed definition of VPD/VPP? If
multiple video programming
distributors/providers are involved in
making video programming available to
the end user, but only one distributor/
provider directly makes the video
programming available to the end user,
where do the distributors/providers in
the middle of the chain fit within our
proposed definitions? Should the
definition of VPO include anything in
addition to the person or entity that
owns the copyright of the IP-delivered
video programming, for example, any
person or entity to which the copyright
owner licenses IP-delivered video
programming?
16. The CVAA requires the
Commission to ‘‘describe the
64 47 U.S.C. 613(c)(2)(D)(iii). The Commission’s
rules currently define VPDs and VPPs but these
definitions apply only to the closed captioning of
video programming that is being distributed and
exhibited on television. Specifically, our rules
define a ‘‘video programming distributor’’ as ‘‘[a]ny
television broadcast station licensed by the
Commission and any [MVPD] * * * and any other
distributor of video programming for residential
reception that delivers such programming directly
to the home and is subject to the jurisdiction of the
Commission.’’ 47 CFR 79.1(a)(2). In addition, our
rules define a ‘‘video programming provider’’ as
‘‘[a]ny video programming distributor and any other
entity that provides video programming that is
intended for distribution to residential households
including, but not limited to broadcast or
nonbroadcast television network and the owners of
such programming.’’ 47 CFR 79.1(a)(3).
65 The definition of VPD and VPP may be
particularly relevant insofar as certain provisions of
Sections 202(b) and (c) refer to VPPs and VPOs, but
not VPDs. See, e.g., 47 U.S.C. 613(c)(2)(C),
(c)(2)(D)(vii), (d)(3).
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responsibilities of video programming
providers or distributors and video
programming owners.’’ 66 We propose to
require VPOs to send program files to
VPDs/VPPs with all required captions,
and, as contemplated by Section 202(b),
to require VPDs/VPPs to enable ‘‘the
rendering or pass through’’ of all
required captions to the end user.67
When a VPD/VPP receives a program
file with required captions, it would be
required to include those captions at the
time it makes the program file available
to end users.68 We seek comment on
these proposals as well as other
appropriate responsibilities of VPDs/
VPPs and VPOs under Section 202(b) of
the CVAA.69 For example, should we
require the VPD/VPP to provide a
mechanism, such as a button or icon, on
its Web site which would allow
consumers to easily access closed
captioning? If a VPO licenses its content
to a third party for Internet distribution,
what are the obligations of that third
party licensee? If a VPD/VPP knows or
reasonably should have known that a
program is required to include captions,
but the VPO failed to provide such
captions, what obligations should the
VPD/VPP have to obtain such captions
before providing the programming to the
end user? In an enforcement proceeding,
what types of evidence could be
considered to establish the VPD/VPP’s
knowledge, and should the VPD/VPP
bear the burden of proof on that issue?
Should the VPD/VPP have an obligation
to determine whether the programming
is subject to captioning requirements
before providing it to the end user? In
addition, what liability should the VPD/
VPP face should it decide to provide the
program to end users without the
required captions? 70 In such a situation,
66 47
U.S.C. 613(c)(2)(D)(iv).
also Section III.D., infra (discussing a
proposed mechanism that would require VPOs
providing a video program to VPDs/VPPs for IP
delivery to provide the program either with
captions, or with a certification that captions are
not required for a reason stated in the certification).
Congress did not explain what it meant by enabling
‘‘the rendering or pass through’’ but we presume
that Congress meant that VPDs/VPPs must ensure
that closed captions are transmitted appropriately.
68 We propose in Section III.D., infra, that when
a program previously provided to a VPD/VPP
without captions becomes subject to the captioning
requirement, the VPO must send a certification to
that effect to VPDs/VPPs within seven days, and the
VPD/VPP must make captions available within five
days of receipt of the revised certification.
69 The VPAAC indicated that it did not have
sufficient time to determine the responsibilities of
various stakeholders. See VPAAC Report at 34.
70 Section 713(h) of the Act previously provided,
‘‘Nothing in this section shall be construed to
authorize any private right of action to enforce any
requirement of this section or any regulation
thereunder. The Commission shall have exclusive
jurisdiction with respect to any complaint under
this section.’’ Section 202(a) of the CVAA
67See
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should both the VPD/VPP and VPO be
held responsible for the violation? We
seek comment generally on the
responsibilities that VPDs/VPPs should
have to ensure that video programming
has the required captions before they
pass it through to viewers. Should we
require VPDs/VPPs to include on their
Web sites program listings that indicate
whether a particular program is
captioned? If multiple video
programming distributors/providers are
involved in making video programming
available to the end user, what are the
obligations of the distributors/providers
in the middle of the chain? For example,
would the distributors/providers in the
middle of the chain be required to
enable the rendering or pass through of
all required captions?
17. In addition to requiring the
presence of captions, we seek comment
on whether our rules for closed
captioning of IP-delivered video
programming should include any
required performance objectives. It is
important that, in considering this issue,
the Commission balances the interests
of users of closed captioning against the
concern that overly burdensome
standards may cause VPDs/VPPs to
refrain from posting videos online. The
VPAAC Report made a number of
proposals regarding the quality of
captions of IP-delivered video
programming:
(1) That the Commission require IPdelivered captions to be complete, such
that ‘‘[n]othing must be lost in
transcoding when converting captions
between conventional broadcast
captioning formats and Internet;’’ 71
(2) That ‘‘[f]or Internet-delivered
caption content, the positioning
information as originally authored shall
be made available to the consumer
device;’’ 72
(3) That the accuracy of IP-delivered
video programming must be ‘‘equal to or
greater than the accuracy of captions
shown on television;’’ 73
(4) That the Commission require IPdelivered captions to possess sufficient
timing, such that ‘‘[a]ll processing
through the distribution chain,
including transcoding, must provide a
timing experience that is equal to or an
improvement to the timing of captions
redesignated former Section 713(h) as Section
713(j). See Public Law 111–260, § 202(a). This
provision applies to the Commission’s IP closed
captioning regulations promulgated in accordance
with the CVAA’s revisions to Section 713 of the
Act, in addition to the Commission’s existing closed
captioning regulations.
71 See VPAAC Report at 13.
72 See id. at 13–14.
73See id. at 14.
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provided in the captioning shown on
television;’’ 74 and
(5) That a user’s Internet-connected
media players should support the ability
to change character color, opacity, size,
font, background color and opacity,
character edge attributes, window color,
and language.75
We note that Part 15 of the
Commission’s rules currently contains
certain required user controls for
television closed captions, including the
ability to change text color, opacity,
size, font, background color and opacity,
character edge attributes, and window
color.76
18. It appears that Congress intended,
at a minimum, that captions of IPdelivered video programming should be
of at least the same quality as captions
shown on television. Accordingly, we
propose to adopt a rule requiring the
captioning of IP-delivered video
programming to be of at least the same
quality as the television captions for
that programming. An evaluation of
‘‘quality’’ could include the
consideration of such factors as
completeness, placement, accuracy, and
timing, all of which the VPAAC
suggested that we consider. We seek
comment as to whether the inclusion of
any of these factors would lead to
unintended consequences such as
requiring a large amount of resources to
be expended to comply. We
contemplate that a requirement for
captions of IP-delivered video
programming to be of at least the same
quality as captions of television
programming would require IPdelivered captions to include the same
user tools, such as the ability to change
caption font and size. These proposals
are consistent with the VPAAC’s
recommendation that captions of IPdelivered video programming should
provide consumers with an experience
that is equal to or better than the
comparable television experience.77 We
seek comment on these proposals,
which could help benefit consumers,
while ensuring that compliance with
our new rules is as similar as possible
to compliance with existing rules for
television closed captioning.
19. In meetings with Commission
staff, certain VPDs/VPPs expressed
concern that they would be unable to
provide captions that are ‘‘better than’’
those available on television because
74 See
id.
id. at 15–16.
76See 47 CFR 15.122.
77 See, e.g., VPAAC Report at 13 (‘‘the consumer
must be given an experience that is equal to, if not
better than, the experience provided as the content
was originally aired on television using the CEA–
608/708 system’’).
75See
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improving the captions would violate
the VPO’s copyright. Under our
proposal, however, VPDs/VPPs would
not be required to improve caption
quality; rather, they would be required
to ensure that the quality of captions
does not decline when delivered via IP
as compared to when shown on
television. To the extent that VPDs/
VPPs have permission to alter captions
on the programming so that they
improve the viewing experience, we
propose that they be permitted to do
so.78 We seek comment on any
copyright concerns implicated by our
proposals, including how we should
balance any desire for certain user
controls against a VPO’s copyright
protections.
20. Section 202(a) of the CVAA
defines ‘‘video programming’’ as
‘‘programming by, or generally
considered comparable to programming
provided by a television broadcast
station, but not including consumergenerated media (as defined in section
3).’’ 79 Section 3 of the Act, as revised
by the CVAA, defines ‘‘consumer
generated media’’ as ‘‘content created
and made available by consumers to
online Web sites and services on the
Internet, including video, audio, and
multimedia content.’’ 80 The Senate and
House Committee reports do not shed
further light on the terms ‘‘video
programming’’ and ‘‘consumergenerated media.’’ 81 We seek comment
78For example, if programming was shown live
on television and then re-shown over the Internet,
a VPD/VPP with permission may want to fix
mistakes that occurred as a result of real-time
captioning. While we do not propose requiring the
correction of such errors, we encourage VPDs/VPPs
to make corrections where permitted and feasible,
given that the subject programming will be
available on an ongoing basis to viewers on the
VPD/VPP’s Web site. We believe that such
improvements could significantly enhance the
viewing experience of people who are deaf or hard
of hearing.
79 47 U.S.C. 613(h)(2). We note that this definition
of ‘‘video programming’’ is almost identical to the
definition set forth in Section 602(20) of the Act.
See 47 U.S.C. 522(20) (defining ‘‘video
programming’’ as ‘‘programming provided by, or
generally considered comparable to programming
provided by, a television broadcast station’’). See
also Implementation of the Child Safe Viewing Act;
Examination of Parental Control Technologies for
Video or Audio Programming, FCC 09–14, 74 FR
11334, para. 8, March 17, 2009 (seeking comment
on whether the definition of the term ‘‘video
programming’’ from Section 602(20) of the Act is
the definition that the Commission should use for
purposes of the Child Safe Viewing Act, and asking
whether that term includes videos provided on
Internet video hosting sites such as YouTube).
8047 U.S.C. 153(54).
81 The Senate Committee report echoed the
Section 3 definition of ‘‘consumer generated
media,’’ stating that that term ‘‘encompasses
content created and made available by consumers
to Internet Web sites and venues, including audio,
video, and multimedia content.’’ See S. Rep. No.
111–386 at 5–6.
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on the scope of these definitions. We
seek specific examples of IP-delivered
video programming that is not
comparable to programming provided
by a television broadcast station, and
examples of consumer-generated IPdelivered video programming, both of
which would be exempt from the
CVAA’s captioning requirements. We
also seek specific examples of IPdelivered video programming that is
comparable to programming provided
by a television broadcast station. Does
‘‘consumer-generated media’’ include
content that has been published or
exhibited on television with captions,
which is made available online by
individual consumers without the
consent of the VPO?
21. We propose to apply the
captioning requirements of Section
202(b) to full-length programming, and
not to video clips or outtakes.82 We seek
comment on what Congress meant by
the phrase ‘‘full-length programming.’’
We propose to define ‘‘outtakes’’ as
content that is not used in an edited
version of video programming shown on
television, and we invite comment on
this proposal. We propose to define
‘‘video clips’’ as small sections of a
larger video programming presentation,
and we invite comment on this
proposal.83 Should we specify the
definition of ‘‘video clips’’ by providing
a maximum duration of the video
programming that constitutes a ‘‘clip,’’
or by providing that the length of a
‘‘video clip’’ may not exceed a certain
percentage of the overall length of the
video program? When a full-length
program is posted online in multiple
segments, to enable consumers to access
a particular segment of the program,
does each segment constitute a video
clip?
22. We seek comment on whether IPdelivered content that has aired on
television only in another country, and
not in this country, is exempt from the
CVAA’s captioning requirements.
Although not explicitly stated in the
CVAA, it appears that the best reading
of the statute requires closed captioning
on IP-delivered video programming that
was published or exhibited on
television in this country with captions
after the effective date of the
82 See 47 U.S.C. 613(h)(2) (‘‘The term ‘video
programming’ means programming by, or generally
considered comparable to programming provided
by a television broadcast station * * *’’); see also
S. Rep. No. 111–386 at 13–14 (‘‘The Committee
intends, at this time, for the regulations to apply to
full-length programming and not to video clips or
outtakes.’’); H.R. Rep. No. 111–563 at 30 (same).
83 This is consistent with the Comcast-NBCU
Order, which explained that ‘‘short programming
segments’’ are ‘‘also known as clips.’’ See 26 FCC
Rcd at 4358 (Appendix A: Conditions).
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regulations, and we seek comment on
this determination. It appears that the
differing caption standards in foreign
countries could hinder the process of
transferring those captions to a suitable
format for U.S. consumers and seek
comment on this understanding.
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B. Schedule of Deadlines
23. Pursuant to the CVAA, the
Commission must, by January 12, 2012,
‘‘revise its regulations to require the
provision of closed captioning on video
programming delivered using Internet
protocol that was published or exhibited
on television with captions after the
effective date of such regulations.’’ 84
The regulations must ‘‘include an
appropriate schedule of deadlines for
the provision of closed captioning,
taking into account whether such
programming is prerecorded and edited
for Internet distribution, or whether
such programming is live or near-live
and not edited for Internet
distribution.’’ 85 Further, the regulations
must define the phrases ‘‘near-live
programming’’ and ‘‘edited for Internet
distribution.’’ 86 Below, we seek
comment on the definitions of ‘‘live
programming,’’ ‘‘near-live
programming,’’ ‘‘prerecorded
programming,’’ and ‘‘edited for Internet
distribution.’’ We propose to apply
these definitions solely to regulations of
IP closed captioning pursuant to the
CVAA, and we seek comment on that
proposal. Further, below we seek
comment on the appropriate schedule of
deadlines for the provision of closed
captioning.
24. The VPAAC proposed to define
‘‘live programming’’ as ‘‘programming
created and presented on television and
simulcast for Internet distribution to the
end user as it airs on television.’’ 87
Based on conversations with members
of the VPAAC, we understand that the
definition of ‘‘live programming’’ was
meant to encompass programming such
as news, sports, and awards shows, for
which captioning cannot be done in
advance, rather than a ‘‘simulcast’’ in
which potentially prerecorded
programming is shown on television
and the Internet simultaneously.88 We
note that, in the recent Video
Description Order, the Commission
defined ‘‘live programming’’ in that
context as ‘‘programming aired
substantially simultaneously with its
84 47
U.S.C. 613(c)(2)(A).
U.S.C. 613(c)(2)(B).
86 47 U.S.C. 613(c)(2)(D)(i).
87 See VPAAC Report at 29.
88 We understand that a simulcast may either
involve live programming or prerecorded
programming.
85 47
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performance.’’ 89 The definition of ‘‘live
programming’’ in the Video Description
Order could achieve the same objective
as the definition of ‘‘live programming’’
proposed by the VPAAC. In the context
of our IP closed captioning rules,
however, we believe it is important to
clarify that programming is ‘‘live’’ if it
is shown live on television.
Accordingly, we propose defining ‘‘live
programming’’ as video programming
that is shown on television substantially
simultaneously with its performance.
The phrase ‘‘substantially
simultaneously’’ contemplates that live
programming may include a slight
delay, for example, to prevent certain
objectionable material from airing. We
seek comment on this proposal. We
understand that additional processes
may need to be put in place to facilitate
the captioning of live programming
when it is delivered using IP, and we
seek comment on what those processes
entail and who would be responsible for
them.
25. In addition, given the VPAAC’s
use of the word ‘‘simulcast’’ in its
proposed definition of ‘‘live
programming,’’ we also seek comment
on whether there are additional
difficulties in providing captioning of
IP-delivered video programming, when
the programming is shown on television
and the Internet simultaneously. If so,
should we provide a lengthier deadline
by which simulcast programming must
comply with Section 202(b)?
26. The VPAAC proposed to define
‘‘near-live programming’’ as ‘‘any
programming that was produced from
start to finish within 12 hours of being
published or exhibited on television.’’ 90
As referenced in Appendix C to the
VPAAC Report, we understand that
members of the industry and consumer
groups expressed differing views as to
whether the definition of ‘‘near-live
programming’’ should reference
programming that was ‘‘substantively
produced’’ within 12 hours of being
shown on television. We understand
based on conversations with members of
the VPAAC that ‘‘substantively
produced’’ means programming that is
largely, but not entirely, produced
within 12 hours of being shown on
television. For example, a news
magazine may include a number of live
89 See Video Description Order, FCC 11–126, 76
FR 55585, para. 40, September 8, 2011 (‘‘Video
Description Order’’).
90 See VPAAC Report at 29. The VPAAC
indicated that industry and consumer groups were
not in agreement as to the proposed definition of
‘‘near-live programming.’’ See id. at 34–35. Further,
the VPAAC indicated its understanding ‘‘that this
definition of near-live programming is only to be
used for determining the schedule of deadlines for
the provision of closed captioning.’’ See id. at 35.
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segments, but it may also include some
segments that were recorded and
produced weeks or months earlier. It
appears that VPDs/VPPs and/or VPOs
may need to put additional processes in
place to handle captioning of certain
video programming that is
predominantly, but not entirely,
recorded and produced within 12 hours
of its distribution, such as some news
magazines, because the audio may be
captioned as the program is shown on
television. Accordingly, we propose to
modify the VPAAC’s proposed
definition, and instead to define ‘‘nearlive programming’’ as video
programming that is substantively
recorded and produced within 12 hours
of its distribution to television
viewers.91 We invite comment on this
proposal. How should we define
‘‘substantively recorded and produced’’?
Should we require a certain percentage
of a program to be recorded and
produced within 12 hours of the
program being shown on television, for
the program to be considered
‘‘substantively produced’’ within that
timeframe? What are examples of
programming that we should consider
‘‘near-live’’? What additional processes
would need to be put in place to
facilitate the captioning of such nearlive programming when it is delivered
using IP, and who would be responsible
for those processes? 92 In lieu of our
proposed definition of ‘‘near-live
programming,’’ should we instead
define that phrase as it is defined in the
Video Description Order, which is
‘‘programming performed and recorded
less than 24 hours prior to the time it
was first aired,’’ 93 or would that
definition be too narrow in the IP91 If a program is not live, and is not substantively
recorded and produced within 12 hours of its
distribution to television viewers, then we propose
that it would be considered prerecorded, as
explained below.
92 We note that, in the Video Description Order,
the Commission adopted its proposal to define
‘‘near-live programming’’ as ‘‘programming
performed and recorded less than 24 hours prior to
the time it was first aired.’’ See Video Description
Order at para. 40. We note that there are differences
between video description and closed captioning
which may necessitate different definitions. First,
the definitions of ‘‘live programming’’ and ‘‘nearlive programming’’ in the video description context
had the ‘‘primary purpose [of] determin[ing] which
nonbroadcast networks are excluded from the top
five. * * *’’ See id. at para. 42. In contrast, the
purpose of these definitions in the IP closed
captioning context is to determine the date by
which live and near-live programming must comply
with our new requirements. Second, a shorter
timeframe within which the performance and
recording must occur for a program to be
considered ‘‘near-live’’ in the closed captioning
context may be appropriate since closed captioning
can, in fact, be done live, whereas video description
of television programming generally is not.
93 See id. at para. 40.
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delivered video programming context,
insofar as it excludes programming that
consists of both live segments and
prerecorded programming?
27. The VPAAC proposed definitions
for programming that is ‘‘prerecorded
and edited for Internet distribution to
the end user,’’ 94 and for programming
that is ‘‘prerecorded and unedited for
Internet distribution to the end user’’ 95
Rather than adopt these two definitions,
however, we think it would be clearer
to define the terms ‘‘prerecorded
programming’’ and ‘‘edited for Internet
distribution.’’ 96 We propose to define
‘‘prerecorded programming’’ as video
programming that is not ‘‘live’’ or ‘‘nearlive.’’ Also, based on the VPAAC’s
recommendation, we propose to define
video programming that is ‘‘edited for
Internet distribution’’ as video
programming whose television version
is substantially edited prior to its
Internet distribution. We tentatively
agree with the VPAAC that examples of
‘‘substantial edits’’ include when scenes
are deleted or scores are changed from
the television version,97 and that
changes to the number or duration of
advertisements from the television
version do not constitute ‘‘substantial
edits.’’ We seek comment on these
definitions. How should we distinguish
‘‘substantial edits’’ from ‘‘insubstantial
edits’’? To what extent do VPDs/VPPs
edit content for Internet distribution,
and what is the nature of such editing?
We assume that any editing that is
subject to these definitions does not run
afoul of copyright law. Is most
prerecorded programming unedited for
Internet distribution, as we have
proposed defining that phrase?
28. The VPAAC proposed the
following schedule of deadlines for
compliance with the new requirements
for closed captioning of IP-delivered
video programming that is published or
94 The VPAAC’s proposed definition is ‘‘any
programming that is prerecorded and has been
substantially edited for Internet distribution to the
end user.’’ See VPAAC Report at 30. The VPAAC
suggested that substantial edits may include
deleting scenes or substituting music scores due to
rights restrictions. See id.
95 The VPAAC’s proposed definition is ‘‘any
programming that is prerecorded and has not been
substantially edited for Internet distribution to the
end user.’’ See id. The VPAAC suggested that
insubstantial edits may include changes to the
number or duration of advertisements. See id.
96 This is also consistent with the CVAA’s
requirement that we define ‘‘edited for Internet
distribution.’’ See 47 U.S.C. 613(c)(2)(D)(i).
97 According to the VPAAC, rights restrictions
necessitating such edits would prevent broadcasters
from repurposing the television captions on such
programming for Internet distribution to the end
user. See VPAAC Report at 30. We note that any
adopted definition should not permit VPDs or VPPs
to edit programming in a manner that copyright law
would otherwise prohibit.
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exhibited on television with captions
after the effective date of the new rules:
(1) For programming that is prerecorded
and not edited for Internet distribution,
a compliance deadline of six months
after the rules are published in the
Federal Register; (2) for programming
that is live or near-live, a compliance
deadline of 12 months after the rules are
published in the Federal Register; and
(3) for programming that is prerecorded
and edited for Internet distribution, a
compliance deadline of 18 months after
the rules are published in the Federal
Register.98 We seek comment on the
VPAAC’s suggested schedule of
deadlines. We believe that these
compliance deadlines are reasonable,
given that they have been agreed upon
by the VPAAC, which includes industry
representatives that will have to comply
with our new rules as well as consumer
groups that have a strong interest in
ensuring that our rules are implemented
as quickly as possible. If commenters do
not believe that these compliance
deadlines are reasonable, we invite
them to propose alternative compliance
deadlines, with explanations as to why
those deadlines would be more
appropriate, along with a discussion of
the burden to comply with the proposed
deadlines. We seek comment also on
why a lengthier compliance deadline is
justified or necessary for programming
that is live or near-live, and for
programming that is prerecorded and
edited for Internet distribution.
C. Exemption Process Where
Economically Burdensome
29. In the CVAA, Congress amended
Section 713(d)(3) of the Act by replacing
the term ‘‘undue burden’’ with the term
‘‘economically burdensome.’’
Specifically, Section 202(c) of the CVAA
contains a conforming amendment
providing details on an exemption
process by which:
a provider of video programming or program
owner may petition the Commission for an
exemption from the requirements of this
section, and the Commission may grant such
petition upon a showing that the
requirements contained in this section would
be economically burdensome. During the
pendency of such a petition, such provider
or owner shall be exempt from the
requirements of this section. The
Commission shall act to grant or deny any
such petition, in whole or in part, within 6
months after the Commission receives such
petition, unless the Commission finds that an
extension of the 6-month period is necessary
to determine whether such requirements are
economically burdensome.99
98 See
99 47
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U.S.C. 613(d)(3).
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The Senate Committee on Commerce,
Science, and Transportation encouraged
the Commission, in determining
whether the requirements enacted under
Section 202(b) are ‘‘economically
burdensome,’’ to consider the factors
listed in pre-existing Section 713(e) of
the Act.100 Section 713(e) provides that
the following factors should be
considered in determining whether
closed captioning requirements for
television programming would result in
an undue economic burden: ‘‘(1) The
nature and cost of the closed captions
for the programming; (2) the impact on
the operation of the provider or program
owner; (3) the financial resources of the
provider or program owner; and (4) the
type of operations of the provider or
program owner.’’ 101
30. We propose to create a process by
which VPPs and VPOs may petition the
Commission for a full or partial
exemption of their captioning
obligations based on economic burden,
comparable to the Commission’s
procedures for exemptions based on
undue burden applicable to our
television closed captioning rules.102
Since the factors that Congress
encouraged the Commission to consider
here in determining whether application
of our new rules are ‘‘economically
burdensome’’ are identical to the factors
used to determine whether the
television closed captioning rules
impose an ‘‘undue burden,’’ it appears
that Congress intended that ‘‘economic
burden’’ in this context would have the
same meaning as ‘‘undue burden’’ in the
television closed captioning context.
Accordingly, we propose to define the
term ‘‘economically burdensome’’ as
imposing significant difficulty or
expense.103 We further propose, in
accordance with our television closed
captioning rules,104 that petitioners be
required to support a petition for
exemption with sufficient evidence to
demonstrate that compliance with the
new requirements would be
economically burdensome. In
determining whether the requirements
for closed captioning of IP-delivered
100 See
S. Rep. No. 111–386 at 14.
U.S.C. 613(e).
102 See 47 CFR 79.1(f). The process we propose
to adopt herein is consistent with the Video
Description Order, in which we adopted our
proposal ‘‘to reinstate the previously adopted
process for requesting an individual exemption
from our rules, replacing the term ‘undue burden’
with ‘economically burdensome,’ while using the
same range of factors previously applied under the
undue burden standard.’’ See Video Description
Order at para. 43 (footnote omitted).
103 In the Video Description Order, we also
defined ‘‘economically burdensome’’ as ‘‘imposing
significant difficulty or expense.’’ See id. at para. 44
and Final Rules.
104 47 CFR 79.1(f)(2).
101 47
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video programming would be
economically burdensome, we propose
that the Commission consider the four
factors listed above. In addition, as
under the Commission’s current rules in
the television context, we propose that
the petitioner be required to describe
any other factors that it deems relevant
to the Commission’s final
determination, and any available
alternatives that might constitute a
reasonable substitute for the closed
captioning requirements.105 Finally, we
propose that the Commission evaluate
the extent to which a petitioner has
successfully proven an economic
burden on a case-by-case basis, with
regard to the individual outlet or
programming in question, and that the
Commission could deny or approve a
petition in whole or in part. We seek
comment on these proposals.
31. Regarding the exemption process,
we propose to require the petitioner to
file with the Commission an original
and two copies of a petition requesting
an exemption based on the
economically burdensome standard, and
all subsequent pleadings. Should we
instead require electronic filing? We
further propose that the Commission
place the petition on public notice, with
comments or oppositions due within 30
days of the public notice, and the
petitioner’s reply to any comments or
oppositions due within 20 days of the
close of the comment period. Next, we
propose that parties filing comments or
oppositions serve the petitioner with a
copy and include a certification that the
petitioner was served with a copy, and
that parties filing replies to comments or
oppositions serve the commenting or
opposing party with a copy and include
a certification that the party was served
with a copy. We propose that parties
filing petitions and responsive
pleadings include a detailed, full
showing, supported by affidavit, of any
facts or considerations relied on. We
propose codifying the statutory
requirement that the Commission
consider the VPP or VPO subject to an
exemption request to be exempt from
the IP closed captioning requirements
while the exemption petition is
pending.106 We seek comment on these
proposals. We note that the CVAA
permits VPPs and VPOs to petition the
105 See 47 CFR 79.1(f)(3) (containing the
comparable rule in the television closed captioning
context).
106 47 U.S.C. 613(d)(3). Section 202(c) of the
CVAA requires the Commission to resolve such
exemption petitions within six months of their
receipt, unless the Commission finds that an
extension of the six month period is necessary to
determine whether the requirements are
economically burdensome. 47 U.S.C. 613(d)(3).
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Commission for an exemption.
Although we have proposed defining
VPP and VPD to mean the same
thing,107 if we ultimately define them
differently, should we conclude that
Congress intended both VPPs and VPDs
to benefit from the economic exemption
process? 108
32. In addition to case-by-case
exemptions discussed above, the CVAA
permits the Commission to ‘‘exempt any
service, class of service, program, class
of program, equipment, or class of
equipment for which the Commission
has determined that the application of
such regulations would be economically
burdensome for the provider of such
service, program, or equipment.’’ 109 We
note that the existing rules for closed
captioning of television programming
contain a number of categorical
exemptions.110 Since the new
requirements for closed captioning of
IP-delivered video programming will
not be triggered unless the programming
is shown on television with captions
after the effective date of the new rules,
it seems that the inclusion of the
previous categorical exemptions in our
new rules would generally be
duplicative. In other words, if a program
is not captioned on television because it
is subject to one of the existing
categorical exemptions, then it will not
be required to be captioned when
delivered via IP. For this reason, it does
not appear that the categorical
exemptions found in the television
closed captioning rules are applicable
here, and we seek comment on adopting
this approach. Further, the CVAA makes
no distinction as to whether the
television programming must be
captioned under the Commission’s
television captioning rules or whether
107 See
Section III.A., supra.
47 U.S.C. 613(c)(2)(D)(iii) (clarifying that
VPDs and VPPs both include entities that make IPdelivered video programming available directly to
the end user).
109 47 U.S.C. 613(c)(2)(D)(ii). The VPAAC did not
address ‘‘the determination of economically
burdensome relative to services, programs and
equipment.’’ See VPAAC Report at 35.
110 See 47 CFR 79.1(d). The Commission created
exemptions for the following categories of programs
and providers: programming subject to contractual
captioning restrictions; video programming or a
video programming provider for which the
captioning requirement has been waived;
programming other than English or Spanish
language; primarily textual programming;
programming distributed in the late night hours;
interstitials, promotional announcements and
public service announcements; Educational
Broadband Service programming; locally produced
and distributed non-news programming with no
repeat value; programming on new networks;
primarily non-vocal music programming;
captioning expense in excess of two percent of gross
revenues; channels producing revenues of under
$3,000,000; and locally produced educational
programming.
108 See
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the captioning was included
voluntarily. Accordingly, we believe
that once programming is captioned on
television, it must be captioned when
delivered via IP—even if it otherwise
would have been subject to one of our
television closed captioning
exemptions. We seek comment on this
proposal as well. If a program with
audio in a language other than English
or Spanish is captioned on television,
even though such captioning is not
required,111 should we require the
program to include captions when
delivered via IP?
33. The CVAA also permits the
Commission to delay or waive the
applicability of its IP closed captioning
rules to live programming ‘‘to the extent
the Commission finds that the
application of the regulation to live
video programming delivered using
Internet protocol with captions after the
effective date of such regulations would
be economically burdensome to
providers of video programming or
program owners.’’ 112 The VPAAC
considered the special nature of live
programming by proposing a longer
compliance deadline for live
programming than for prerecorded and
unedited video programming. Given
that the VPAAC recommendation
reflects a consensus achieved by
representatives of both consumers and
the affected industries, we propose not
to institute any further delay or waiver
of the applicability of the Commission’s
new IP closed captioning rules to live
programming at this time, and we seek
comment on this proposal.
D. Mechanism for Information on Video
Programming Subject to the CVAA
34. The CVAA requires the
Commission to ‘‘establish a mechanism
to make available to video programming
providers and distributors information
on video programming subject to the
[CVAA] on an ongoing basis.’’ 113 The
purpose of the mechanism would be to
ensure that VPDs/VPPs have a way of
finding out whether the video
programming they intend to make
available via IP has been shown on
television with captions after the
effective date of the new rules. The
111 See 47 CFR 79.1(d)(3) (exempting from the
television closed captioning requirements ‘‘[a]ll
programming for which the audio is in a language
other than English or Spanish, except that scripted
programming that can be captioned using the
‘electronic news room’ technique is not exempt’’).
The ‘‘electronic news room’’ television captioning
technique creates captions from a news script
computer or teleprompter, and it is commonly used
for live newscasts.
112 47 U.S.C. 613(c)(2)(C).
113 47 U.S.C. 613(c)(2)(D)(v).
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CVAA further explains that the new
regulations of IP closed captioning:
shall consider that the video programming
provider or distributor shall be deemed in
compliance if such entity enables the
rendering or pass through of closed captions
and makes a good faith effort to identify
video programming subject to the [CVAA]
using the mechanism [referenced above].114
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35. Accordingly, we seek comment on
the ‘‘mechanism’’ that should be used to
make available to VPDs/VPPs
information on video programming that
must be captioned when delivered via
IP. We presume that VPOs are in the
best position to know if captions are
required for a particular program (i.e.,
whether the program has been shown on
television with captions after the
effective date of the new rules). We seek
comment on this presumption. We
propose to require VPOs providing
video programming to VPDs/VPPs for IP
delivery to provide each program either
with captions simultaneously, or with a
dated certification stating that captions
are not required for a reason stated in
the certification. Suitable reasons for a
VPO to provide a program without
captions might include, for example,
that the program is not a full-length
program,115 has not been ‘‘published or
exhibited on television with captions
after the effective date of’’ the new
rules,116 or has been exempted from the
requirements.117 Are VPOs aware of the
identity of all VPDs/VPPs that are
authorized to make the VPO’s video
programming available directly to the
end user through a distribution method
that uses IP? Would VPDs/VPPs and
VPOs need to revise their contractual
agreements to reflect their new
obligations? Do VPOs have contracts
with all VPDs/VPPs that are authorized
to make the VPO’s programming
available to end users via IP, and if not,
would the proposed certifications be
workable?
36. We also propose to require VPDs/
VPPs to retain all such VPO
certifications for as long as they make
the certified programming available to
end users through a distribution method
that uses IP and at least one calendar
year thereafter. Because the CVAA
provides that the Commission shall
consider a VPD/VPP ‘‘in compliance if
114 47 U.S.C. 613(c)(2)(D)(vi). The VPAAC did not
address the definition of a ‘‘good faith effort to
identify video programming’’ subject to the CVAA.
See VPAAC Report at 35.
115 See Section III.A., supra.
116 See 47 U.S.C. 613(c)(2)(A). Thus, the CVAA’s
requirements for captioning of IP-delivered video
programming are not triggered unless the
programming is published or exhibited on
television with captions after the effective date of
the new rules.
117 See Section III.C., supra.
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such entity enables the rendering or
pass through of closed captions and
makes a good faith effort to identify
video programming subject to the
[CVAA] using the mechanism,’’ it seems
that generally a VPD/VPP would not be
subject to an enforcement action if it
relied in good faith on a VPO’s
erroneous certification that captioning
was not required for a particular
program and did not know or have
reason to know (at any time) that the
certification was erroneous. If a VPP/
VPD knew or should have known that
a certification was erroneous,118 the
Commission could take action against
the VPP/VPD as well as (or instead of)
against the VPO that submitted the
erroneous certification. Otherwise,
however, the Commission’s recourse in
the case of a faulty certification would
be enforcement action against the VPO
only. We seek comment on how we
should approach closed captioning
compliance certifications, including
comments on whether and how the
inclusion of indemnification clauses in
contracts between VPDs/VPPs and VPOs
may affect the effectiveness of our
proposed approach. We seek comment
also on the situation where a VPO may
pass along captions for a program but,
as a legal matter, the captions are not
required for that program because the
program has not been shown on
television with captions after the
effective date of the new rules. Would
the Commission have the authority to
require the VPD/VPP to enable the
rendering or pass through of such
captions, when they are provided by the
VPO? Or instead, should the VPO make
known to the VPDs/VPPs that
captioning is not required under
Commission rules for that IP-delivered
program even though the VPO is
sending captions to the VPD/VPP? We
recognize that, while a program may not
be subject to the captioning
requirements as of the effective date of
the new rules, it might later become
subject to the requirements, once the
program is re-run on television with
captions after the effective date.
Accordingly, we propose to require
VPOs to keep their certifications
current, and to provide VPDs/VPPs with
any revised information as to the
captioning status of previously
delivered programming within seven
days of the underlying change (i.e.,
within seven days of a program being
shown on television with captions for
118 Paragraph 16, above, includes questions
regarding what types of evidence could be
considered in an enforcement proceeding to
determine a VPD/VPP’s knowledge and who should
bear the burden of proof on that issue.
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the first time after the effective date of
the new rules). If the underlying change
of status requires that the programming
at issue be captioned pursuant to the
CVAA, we propose to require the VPO
also to deliver within seven days the
caption file, if not previously delivered,
to the VPDs/VPPs. We also propose to
require VPDs/VPPs to make required
captions available online within five
days of the receipt of an updated
certification.119 We seek comment on
the five day timeframe, which would
provide VPDs/VPPs with time to update
their existing program files.120 Are
seven and five days, respectively,
appropriate timeframes within which to
require VPOs to provide updated
certifications, and to require VPDs/VPPs
to provide newly required captions?
37. In the alternative to the
certification proposal discussed above,
we seek comment on other types of
‘‘mechanisms’’ the Commission could
adopt to ensure that VPDs/VPPs know
which programming is required to be
captioned. For example, should we
simply permit the relevant parties to
effectuate a mechanism through private
contracts? 121 Or, should we instead
require VPOs to send, along with the
program and caption files, encoded
information informing the VPDs/VPPs
as to whether the program has been
captioned on television (to the extent it
is technically possible to do so)? Or,
rather than place requirements on the
relationship between the VPO and the
VPD/VPP, we could require VPDs/VPPs
to provide certain information to
consumers, demonstrating that the
VPDs/VPPs have complied with our
regulations. Do we have authority to
require VPDs/VPPs to provide certain
information to consumers? If so, should
we require the VPD/VPP to provide
information to consumers such as: The
name of the program, and information
sufficient to identify the episode; the
identity of the VPD/VPP responsible for
delivering the program; the device or
software on which the consumer is
watching the program (to the extent
known); 122 and whether the program is
119 This five day timeframe would not apply to
programming for which the schedule of deadlines
was not yet triggered. See Section III.B., supra.
120 In contrast, when a VPD/VPP receives a
program initially with required captions, we see no
need to provide for a delay between receipt of the
captions and the date by which captions must be
made available with the program, since there is no
existing file to update.
121 A private contractual mechanism might, for
example, obligate the contracting VPO to provide
all required captions for IP delivery, while requiring
the contracting VPD/VPP to enable the rendering or
pass through of all such captions to the end user.
122 The device or software is an important
consideration because if the consumer is viewing
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required to include captioning, and, if
not, an explanation. This information
could be provided to consumers along
with the IP-delivered video
programming, for example, as a link
from or a pop-up window adjacent to
the programming. Overall, this approach
would equip consumers with useful
information and might lead to fewer—
and better supported—complaints.
While requiring VPDs/VPPs to provide
this information with IP-delivered video
programming would necessitate a
certain level of coordination with VPOs,
thus investing VPDs/VPPs and VPOs in
the process, we recognize that this
approach could pose technical
challenges that may have to be
overcome and could impose costs on the
relevant parties. Accordingly, we seek
comment on the costs and benefits of
such an approach.
38. Still another approach would be
for the Commission to rely on
independent third parties to provide
databases containing information on all
video programming that is shown on
television with captions after the
effective date of the new rules. For
example, we know that there are
companies today that already collect
this information and it is available for
purchase by the Commission and other
parties.123 An advantage of this
approach is that, potentially, it could
allow any VPD/VPP to go to an
independent source to verify whether
the programming it wishes to exhibit
must be shown with captions when
delivered via IP. Consumers, too, might
be able to access this database to learn
whether programs they wish to watch
are required to contain captions.124
What technical and administrative
difficulties would the use and
maintenance of such a database create?
Who would fund such a database? To
what extent could such a database be
automated? What other type of
‘‘mechanisms’’ could the Commission
establish to ensure that VPDs/VPPs have
up-to-date information about the
IP-delivered video programming through a device
or software that is not required to support captions,
that would explain why a consumer is unable to
view required captions. We understand that it is
possible for a device itself to fill in the information
on the device’s identity, without direct involvement
of the VPD/VPP.
123 Rovi and Tribune Media Services are
examples of two such companies. Through their
databases, they currently maintain information on
when programs are shown on television with
captions. This information could be used to
determine when the CVAA’s captioning
requirements are triggered.
124 Consumers then may be less likely to file
complaints about programs that are not covered by
the CVAA, thereby conserving resources for the
Commission and covered entities.
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captioning status of the programming
they intend to show?
E. Technical Standards for IP-Delivered
Video Programming
39. CEA–608 is the technical standard
used for analog closed captioning, and
CEA–708 is the technical standard used
for digital closed captioning.125 The
VPAAC stated that CEA–708 ‘‘provides
for a rich set of features and capabilities
above and beyond those supported by
CEA–608 captions. In addition, CEA–
608 captions can be transported within
708.’’ 126 Because millions of
households today still use analog
television receivers that cannot decode
CEA–708 captions, CEA–608 captions
remain relevant.127 On the Internet,
there are currently multiple closed
captioning formats.128 In light of the
decades of video programming that has
been captioned using the CEA–608/708
standards, the VPAAC concluded that
‘‘a standard format must be specified for
these captions to be delivered via
Internet protocols in such a way that the
consumer’s experience is in no way
degraded.’’ 129 Specifically, the VPAAC
suggested ‘‘that there be a single
standard interchange format for content
providers to encode closed captions into
programming before they distribute it,’’
such that video programming would not
need to be re-captioned to comply with
different standards.130 Regarding
delivery format, the VPAAC suggested
that there should not be a single
standard, so as to provide the Internet
with sufficient flexibility to evolve.131
The VPAAC stated that ‘‘distributors of
programming services and applications
must be required to (a) receive the
captioned content from the content
provider encoded in the standard
interchange format, and then (b) ensure
that any reformatting performed before
delivery to end users (consumers) is
supported by the applications and
devices * * * used for playback.
* * * 132
40. We seek comment on whether to
specify a particular standard for the
interchange format or delivery format of
IP-delivered video programming subject
to Section 202(b) of the CVAA. We note
125 See,
e.g., VPAAC Report at 8–9.
id. at 9.
127 See id.
128 See id. at 11–12.
129 See id. at 17.
130 See id.
131 See VPAAC Report at 17.
132 See VPAAC Report at 17. In other words, ‘‘For
interchange purposes, captions may be encoded in
the single, defined interchange format; for delivery
purposes, captions may be encoded either in
interchange or delivery formats as long as captions
are always available to all video users.’’ See id. at
18.
126 See
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that closed captions are included on
certain IP-delivered video programming
today, even in the absence of a single
standard for the interchange format or
the delivery format. Accordingly, we
propose to refrain from specifying any
particular standard for the interchange
format or delivery format of IP-delivered
video programming at this time, in order
to foster the maximum amount of
technological innovation. We seek
comment on this proposal. How
necessary is it for the Commission to
select an interchange and delivery
format standard? If we decide to deem
a particular standard compliant, what
should that standard be? After
considering several standards, the
VPAAC recommended the Society of
Motion Picture and Television
Engineers (‘‘SMPTE’’) Timed Text
(‘‘SMPTE–TT’’) standard for the
interchange format because it ‘‘best
meets all the requirements’’ and because
it ‘‘is already being employed in
production environments to repurpose
television content for Internet use.’’ 133
At this juncture, however, we do not
propose adopting a specific interchange
format because it is our understanding
that the interchange format involves
negotiations between the VPO and the
VPD/VPP, which typically require the
entities involved to reach a mutually
agreeable solution. It makes sense that,
if SMPTE–TT is the best interchange
format, the industry will settle on that
format without Commission
intervention and, if it is not, they will
come to a different agreed-upon format.
Further, the proposal to mandate
particular features that must be
supported 134 will, in effect, ensure a
robust interchange format. If ultimately
we do decide to deem a particular
standard compliant, should we permit
the parties to petition the Commission
to use ‘‘alternate means’’ rather than the
standard we adopt? 135 Should we
require accommodation of both in-band
and out-of-band delivery of closed
captions? 136 What are the benefits and
harms of specifying a particular
133 See
id. at 26.
Section III.A., supra (proposing a
requirement that the same user tools, such as the
ability to change caption font and size, which are
available on television, should be made available
for IP-delivered video programming).
135 See Section III.F., infra.
136 See VPAAC Report at 24 (‘‘* * * VPAAC
recommends that platforms and applications
accommodate in-band and/or out-of-band delivery
techniques as appropriate.’’). When closed captions
are delivered ‘‘in-band,’’ they are ‘‘embedded in the
video data stream or file,’’ which is likely ‘‘the most
optimal delivery method for live simulating [sic] of
a television channel.’’ See id. at 23–24. When
closed captions are delivered ‘‘out-of-band,’’ they
are ‘‘a separate data stream or file from the video,’’
which is ‘‘more flexible.’’ See id.
134 See
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‘‘interchange format’’ or ‘‘delivery
format’’ for IP-delivered video
programming subject to Section 202(b)
of the CVAA?
F. De Minimis Failure To Comply and
Alternate Means of Compliance
41. Section 202(b) of the CVAA
requires the Commission’s regulations
to ‘‘provide that de minimis failure to
comply with such regulations by a video
programming provider or owner shall
not be treated as a violation of the
regulations.’’ 137 The statute and
legislative history do not elaborate upon
the meaning of ‘‘de minimis failure to
comply.’’ We seek comment on what
constitutes a ‘‘de minimis failure to
comply.’’ In determining whether a
failure to comply is de minimis, we
propose to consider the particular
circumstances of the failure to comply,
including the type of failure, the reason
for the failure, whether the failure was
one-time or continuing, and the
timeframe within which the failure was
remedied. We seek comment on this
proposal and any other factors that
should be considered in determining
what constitutes a ‘‘de minimis failure
to comply.’’
42. Congress determined in the CVAA
that an entity may meet the
requirements of Section 202(b) of the
CVAA ‘‘through alternate means than
those prescribed by regulations * * * if
the requirements of this section are met,
as determined by the Commission.’’ 138
The statute and legislative history do
not elaborate upon the meaning of
‘‘alternate means’’ in Section 202 of the
CVAA, although the House Committee
explained that in the context of Section
203, alternate means was intended ‘‘to
afford entities maximum flexibility in
meeting the requirement that video
programming delivered using Internet
protocol be captioned,’’ and that the
Commission should ‘‘provide some
flexibility where technical constraints
exist.’’ 139 We seek comment on how to
define this term to best effectuate
Congressional intent. For example, did
Congress mean that the Commission
should permit those subject to the IP
closed captioning requirements to use
alternate technical standards for the
transmission and exhibition of IP closed
captioning? 140 We seek comment on the
‘‘alternate means’’ that we should
consider permissible, with a goal of
fostering technological advancement
through some flexibility, and in
recognition of the fact that a single
standard may not be feasible for all
VPDs/VPPs and VPOs in all
circumstances. Should we require any
‘‘alternate means’’ to provide a viewing
experience that is equal or superior to
that otherwise available to the general
public? If we decline to specify a
particular standard for the interchange
format or delivery format of IP-delivered
video programming, is it still necessary
for us to consider permissible ‘‘alternate
means’’?
G. Complaint Procedures
43. We propose to adopt procedures
for complaints alleging a violation of the
IP closed captioning rules that are
analogous to the procedures the
Commission uses for complaints
alleging a violation of the television
closed captioning rules.’’ 141 With some
modification, it appears that these
proposed complaint procedures
generally would work in the IPdelivered video closed captioning
context. The procedures for complaints
alleging a violation of the television
closed captioning rules require a
complaint to be filed with the
Commission or the video programming
distributor responsible for delivering the
program within 60 days of the problem
with captioning, and they provide that
‘‘[a] complaint must be in writing, must
state with specificity the alleged
Commission rule violated and must
include some evidence of the alleged
rule violation.’’ 142 When the
Commission receives complaints
alleging a violation of the television
closed captioning rules, it forwards the
complaint to the appropriate video
programming distributor (as that term is
defined in the television closed
captioning context), which must
respond in writing to the Commission
and the complainant within 30 days of
receiving the complaint from the
Commission.’’ 143 The television video
programming distributor is required ‘‘to
provide the Commission with sufficient
records and documentation to
demonstrate that it is in compliance
with the Commission’s rules.’’ 144 The
Commission then reviews the
complaint, including all supporting
evidence, and determines if a violation
has occurred.145 The Commission may
request additional information from the
television video programming provider,
if needed.146
141 See
137 47
U.S.C. 613(c)(2)(D)(vii).
138 47 U.S.C. 613(c)(3).
139 H.R. Rep. No. 111–563 at 31.
140 See Section III.E., supra (discussing technical
standards for IP-delivered video programming).
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47 CFR 79.1(g).
47 CFR 79.1(g)(1).
143 See 47 CFR 79.1(g)(2).
144 See 47 CFR 79.1(g)(5).
145 See 47 CFR 79.1(g)(7).
146 See id.
142 See
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44. We seek comment on whether to
apply comparable procedures to
complaints alleging a violation of the
closed captioning rules for IP-delivered
video programming. Is 60 days the
appropriate timeframe within which to
require a complaint about a captioning
problem? Unlike television, where
programs are exhibited at specific times,
Internet programming is available
continuously to any viewer. Given this,
we seek comment on when this 60-day
period should begin to run. Should it
begin to run from the latest date on
which the program was available on the
Internet to consumers without required
captions? How should we handle
intermittent problems where closed
captioning may not be transmitted
continuously or with every streaming
session? Would the best course be to
eliminate the 60-day filing window
altogether as unenforceable in the IPdelivered video programming market?
45. In addressing complaints alleging
a violation of the IP closed captioning
rules, we propose that the Commission
will forward complaints to the named
VPD/VPP and/or VPO, as well as to any
other VPD/VPP and/or VPO that
Commission staff determines may be
involved. Upon receipt of a consumer
complaint, should we require the VPD/
VPP or VPO to attempt to resolve the
dispute with the complainant, before
proceeding with the Commission’s
complaint process? We further propose
to permit the Commission to request
additional information from any
relevant parties when, in the estimation
of Commission staff, such information is
needed to investigate the complaint or
adjudicate potential violation(s) of
Commission rules.147 Generally, we
expect that consumers will direct their
complaints to the VPD/VPP, since that
is the entity from which the consumer
views the programming, but the
Commission could instead, or in
addition, direct any resulting
investigation and subsequent
enforcement action against the VPO to
the extent necessary and appropriate.
The bureau handling the complaint
would be expected to act in an
expeditious fashion to determine which
entity(ies) is/are responsible and
dismiss claims against any others. In
that vein, we seek comment as to
whether a shotclock should be imposed.
In recognition of the breadth of the IPdelivered video programming market,
we propose to state explicitly in the
rules that, although the Commission
will generally require VPDs/VPPs and
147 This flexibility would enable the Commission
to determine which of the entities involved—the
VPD/VPP or VPO—is responsible.
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VPOs to respond to complaints within
30 days, the Commission may lengthen
the required response period on a caseby-case basis (for example, when it is
difficult to determine which entity is
responsible for the alleged violation).
We seek comment on these proposed
complaint procedures. As in the
television context, should we permit
those filing complaints alleging a
violation of the closed captioning
requirements for IP-delivered video
programming to file the complaint
directly with the VPD/VPP first,148 or is
it preferable to require that all
complaints come directly to the
Commission in the first instance? If the
Commission finds that a VPD/VPP or
VPO has violated the requirements for
closed captioning of IP-delivered video
programming, what sanctions or
remedies should it impose? 149 We
propose to adjudicate each complaint on
its merits and employ the full range of
sanctions and remedies available to the
Commission under the Act.
46. Complaints alleging a violation of
the television closed captioning
requirements can be filed online,150 or
by fax or postal mail. We seek comment
on whether the same options should be
available for complaints alleging a
violation of the closed captioning
requirements for IP-delivered video
programming. As in the Video
Description Order, should we instead
permit viewers to file complaints about
a failure to comply with the closed
captioning rules for IP-delivered video
programming by ‘‘any reasonable
means,’’ including any method that
would best accommodate the
complainant? 151 Should the
Commission revise the existing
complaint form for disability access
complaints (Form 2000C) to request
information specific to complaints
involving IP closed captioning? To
foster the Commission’s efficient review
of complaints, should the Commission
decline to consider complaints that do
not include certain information, and if
so, what information should be
required? Such information might
include, for example: (i) The name and
address of the complainant; (ii) the
148 See
47 CFR 79.1(g)(1).
note that in 2004, a petition filed by
consumer groups proposed a base forfeiture of
$8,000 for violations of the Commission’s closed
captioning rules. See Telecommunications for the
Deaf, Inc. et al. Petition for Rulemaking, RM–11065
(July 23, 2004). Petitioners included
Telecommunications for the Deaf, Inc., the National
Association of the Deaf, Self Help for Hard of
Hearing People, the Association for Late Deafened
Adults, Inc., and the Deaf and Hard of Hearing
Consumer Advocacy Network (DHHCAN).
150 See https://www.fcc.gov/complaints.
151 See Video Description Order at para. 55.
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149 We
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name and postal address, Web site, or email address of the VPD/VPP and/or
VPO against whom the complaint is
alleged, and information sufficient to
identify the video programming
involved; (iii) information sufficient to
identify the software or device used to
view the program; (iv) a statement of
facts sufficient to show that the VPD/
VPP and/or VPO has violated or is
violating the Commission’s rules, and, if
applicable, the date and time of the
alleged violation; (v) the specific relief
or satisfaction sought by the
complainant; and (vi) the complainant’s
preferred format or method of response
to the complaint.
47. Section 79.1(i) of our television
closed captioning rules requires video
programming distributors, as that term
is defined in the context of television
closed captioning, to provide certain
contact information. Specifically,
television video programming
distributors must provide contact
information by which consumers may
contact them immediately, at the time
that a captioning problem is
discovered.152 Television video
programming distributors must also
provide contact information for the
receipt and handling of written closed
captioning complaints.153 Television
video programming distributors must
file this contact information with the
Commission, which then makes it
available on a database of television
video programming distributors.154 We
seek comment on whether we should
impose comparable contact information
requirements on VPDs/VPPs as part of
our rules governing closed captioning of
IP-delivered video programming, to
assist consumers wishing to reach out to
VPDs/VPPs about their concerns or
complaints, and to assist the
Commission in resolving complaints.
Instead of providing VPD/VPP contact
information through a database, should
we require VPDs/VPPs to provide this
information directly to viewers of IPdelivered video programming, for
example, through the VPD/VPP’s Web
site? What contact information should
we require VPDs/VPPs to provide
consumers? 155 We also ask whether we
152 See 47 CFR 79.1(i)(1) (requiring television
video programming distributors to ‘‘designate a
telephone number, fax number, and e-mail address
for purposes of receiving and responding
immediately to any closed captioning concerns,’’
and requiring distributors to ‘‘include this
information on their Web sites (if they have a Web
site), in telephone directories, and in billing
statements’’).
153 See 47 CFR 79.1(i)(2).
154 See 47 CFR 79.1(i)(3); https://esupport.fcc.gov/
vpd-search/search.action#scroll/There.
155 See Closed Captioning of Video Programming,
FCC 09–109, 75 FR 7368, February 19, 2010
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should apply any other existing
provisions of the television closed
captioning rules to the rules governing
captioning of IP-delivered video
programming.
IV. Section 203 of the CVAA
A. Scope of Section 203 of the CVAA
and Exempted Apparatus
48. Section 203 of the CVAA seeks to
extend closed captioning requirements
to the devices consumers use to access
video programming.156 Specifically,
Section 203(a) of the CVAA directs the
Commission to require that the devices
consumers use to receive or play back
video programming are equipped to
decode and display closed
captioning,157 while Section 203(b)
extends requirements to devices that
record video and to the interconnection
mechanisms that carry signals from
these source devices to consumer
equipment.158 In this section, we seek to
address the specific classes of devices
subject to these provisions, as well as
those that fall into various statutory
exemptions. Additionally, we address
the issues of what functionality must be
supported by these devices and whether
that functionality may vary based on
specific devices. However, while
Section 203(a) of the CVAA significantly
expands the requirement to implement
closed captioning capabilities to
essentially all apparatus, Section 203
also provides substantial limitations on
this expanded definition. These
limitations—(1) that implementation of
closed captioning capability be
achievable for apparatus with pictures
screens less than 13 inches in size and
for apparatus designed to record video
programming transmitted
simultaneously with sound 159 (2) that
the requirements do not apply to
display-only monitors; 160 and (3) that
the Commission may waive the
requirements for devices which derive
their essential utility from uses other
than video playback 161—demand
varying degrees of interpretation and
clarification.
49. All Apparatus. Section 203(a) of
the CVAA requires that ‘‘if technically
feasible’’ each ‘‘apparatus designed to
(describing the webform by which television video
programming distributors may submit their contact
information). Television video programming
distributors may enter their contact information at
https://esupport.fcc.gov/vpd-data/
login!input.action.
156 See S. Rep. No. 111–386 at 14; H.R. Rep. No.
111–563 at 30–31.
157 Public Law 111–260, § 203(a).
158 Public Law 111–260, § 203(b).
159 47 U.S.C. 303(u)(2)(A), 303(z)(1).
160 47 U.S.C. 303(u)(2)(B).
161 47 U.S.C. 303(u)(2)(C).
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receive or play back video programming
transmitted simultaneously with sound
* * * be equipped with built-in closed
caption decoder circuitry or capability
designed to display closed-captioned
video programming.’’ 162 We seek
comment on the issue of what
constitutes an ‘‘apparatus.’’ How should
the Commission determine whether it is
‘‘technically feasible’’ for apparatus to
meet the requirements of Section 203?
We note that neither the statute nor
legislative history gives us guidance on
a definition of apparatus. Nevertheless,
we begin with the assumption that the
term includes all hardware that is used
in receiving or playing back video
programming. At the same time, we note
that the CVAA gives the Commission
authority to waive the requirements of
its rules requiring the display, render or
pass through of closed captioning for
apparatus or any class of apparatus ‘‘(i)
primarily designed for activities other
than receiving or playing back video
programming transmitted
simultaneously with sound; or (ii) for
equipment designed for multiple
purposes, capable of receiving or
playing video programming transmitted
simultaneously with sound but whose
essential utility is derived from other
purposes.’’ 163
50. Therefore, we seek comment on
how to determine whether hardware is
primarily designed for receiving or
playing back video programming
transmitted simultaneously with sound,
and how to determine whether
hardware derives its essential utility
from receiving and playing back video.
The legislative history expanded on the
availability of waivers by stating that the
Commission may waive the Section 203
closed captioning requirements ‘‘where,
for instance, a consumer typically
purchases a product for a primary
purpose other than viewing video
programming, and access to such
programming is provided on an
incidental basis.’’ 164 In making waiver
decisions, the Commission generally
considers whether special
circumstances exist that warrant
deviation from the general rule, and
whether the waiver will serve the public
interest.165 Accordingly, we seek
comment on the factors that the
Commission should evaluate in
determining whether an apparatus is
eligible for a waiver. Should we
162 47
U.S.C. 303(u)(1)(A).
U.S.C. 303(u)(2)(C).
164 See S. Rep. No. 111–386 at 14; H.R. Rep. No.
111–563 at 30.
165 Northeast Cellular Telephone Co., L.P. v. FCC,
897 F.2d 1164, 1166 (DC Cir. 1990) (citing WAIT
Radio v. FCC, 418 F.2d 1153, 1159 (DC Cir. 1969));
see also 47 CFR 1.3.
163 47
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consider how the apparatus is designed
and marketed? How should we consider
the fact that different people may
consider the same device as having a
different ‘‘essential utility’’? In
recognition of the fact that, as
technology evolves, the ‘‘essential
utility’’ of apparatus may change,
should waivers be temporary, and if so,
what should their duration be and what
process should be used for renewing
waivers? We invite examples of
apparatus that are or are not primarily
designed for receiving or playing back
video programming transmitted
simultaneously with sound, and
examples of apparatus that do or do not
derive their essential utility from
receiving and playing back video.
Where do devices such as video gaming
consoles, cellular telephones, and tablet
devices fit within these criteria? Are
there are any specific classes of
apparatus that warrant the
establishment of a categorical or blanket
waiver, or should all waivers be
addressed case-by-case? We note that
personal computers and video gaming
consoles are used by a large percentage
of viewers of VPDs/VPPs.166 Should we
make any special considerations for
these devices? If the Commission
considers waivers for a particular
‘‘class’’ of apparatus, what factors
should we consider, and how should we
determine what apparatus constitute a
‘‘class’’? Should the Commission adopt
a process for determining whether to
waive the closed captioning
requirements of Section 203 of the
CVAA, or should we handle waivers
pursuant to Section 1.3 of our rules? 167
51. We also seek comment on whether
apparatus also includes software. To
what extent is hardware that is designed
to receive or play back video
programming dependent on software for
its functionality? For example,
consumers view programming intended
to be covered by Section 202 on
personal computers and cellular
telephones. Both a computer and a
cellular phone can be viewed as a single
apparatus or several working together,
such as the processor, memory, and
storage, the display and other peripheral
components, and the operating system
and applications. If software is
considered an apparatus, we seek
comment on how the Commission can
166 Nielsenwire, ‘‘What Netflix Viewers Are
Watching * * * And How,’’ July 27, 2011 at https://
blog.nielsen.com/nielsenwire/online_mobile/whatnetflix-and-hulu-users-are-watching-and-how/
(visited August 30, 2011).
167 See 47 CFR 1.3 (‘‘Any provision of the
[Commission’s rules] may be waived by the
Commission on its own motion or on petition if
good cause therefor is shown.’’).
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ensure compliance, particularly when
software is provided over the Internet
directly to the end user.168
52. Screen Size and Display-Only
Monitors. The closed captioning
requirement of the CVAA is no longer
restricted to television receivers or to
those devices with screens larger than
13 inches, exceptions that were put into
place by the Television Decoder
Circuitry Act.169 As Congress noted,
consumers now view video
programming on smaller and portable
devices, and to the extent ‘‘achievable,’’
closed captioning must be made
available on these devices.170 However,
apparatus that use a picture screen that
is less than 13 inches in size and that
are designed to receive or play back
video must be equipped with built-in
closed caption decoder circuitry or the
capability to display closed captions
only if this is ‘‘achievable.’’ 171
Therefore, while we propose to remove
the screen-size limitation entirely from
Section 15.119 and Section 15.122 of
the Commission’s rules, and to not
include any screen size limitation in our
new rules,172 we address the issue of
achievability below. Additionally, the
CVAA provides that ‘‘any apparatus or
class of apparatus that are display-only
video monitors with no playback
capability are exempt from the
requirements’’ to display or render
captions and we subsequently propose
adopting this exception as written.173
How should the Commission define
devices that qualify for inclusion in this
exempted category of apparatus? It
would seem that Congress intended to
exempt computer monitors with this
language, because the monitor itself
lacks playback capability. We seek
comment on what other devices, if any,
Congress intended to exempt by this
language.
53. Achievability. The CVAA contains
a definition for achievability, directing
that for the purposes of the CVAA,
determining whether a requirement is
achievable consists of evaluating the
following factors: (1) The nature and
cost of the steps needed to meet the
requirements of this section with
respect to the specific equipment or
168 Section 330(b) of the Act as modified by the
CVAA prohibits the shipment in interstate
commerce, manufacture, assembly or import from a
foreign country of apparatus violating the rules we
adopt in this proceeding.
169 Public Law 101–431, 104 Stat. 960 (1990).
Previously codified at 47 U.S.C. 303(u), 330(b).
170 S. Rep. No. 111–386 at 14.
171 47 U.S.C. 303(u)(2)(A).
172 47 CFR 15.119 (closed captioning
requirements for analog television receivers), 47
CFR 15.122 (closed captioning requirements for
digital television receivers).
173 47 U.S.C. 303(u)(2)(B).
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service in question; (2) the technical and
economic impact on the operation of the
manufacturer or provider and on the
operation of the specific equipment or
service in question, including on the
development and deployment of new
communications technologies; (3) the
type of operations of the manufacturer
or provider; and (4) the extent to which
the service provider or manufacturer in
question offers accessible services or
equipment containing varying degrees
of functionality and features, and
offered at differing price points.174 We
seek comment on how to apply this
definition to apparatus subject to
Section 203 of the CVAA. Under this
definition, what classes of devices that
are otherwise designed to display or
record video are nevertheless incapable
of supporting closed captioning? Is there
a screen size or resolution at which it
would become so difficult to read
captions that there would be no benefit
to justify the cost of including this
capability? Are there devices which
simultaneously contain the processing
power to display video yet are incapable
of processing the additional data
necessary to display closed captions?
Finally, what characteristics of a
manufacturer’s operations should the
Commission consider in determining
whether it is achievable for that
manufacturer to include closed caption
capability in a device with a screen size
less than 13 inches? For example,
should the Commission consider
whether the manufacturer is a small
business, and if so, is there an existing
definition of ‘‘small business’’ that the
Commission should apply? How should
an evaluation of what is ‘‘achievable’’
differ from an evaluation of what is
‘‘technically feasible’’? 175
54. Recording Devices. In addition to
devices that consumers use to directly
view video, those that record video
must also have closed-captioning
capability. Specifically, the CVAA
added Section 303(z) to the Act, which
requires that, ‘‘if achievable * * *
apparatus designed to record video
programming * * * [must] enable the
rendering or the pass-through of closed
captions.’’ 176 Thus, we seek comment
on codifying this requirement verbatim
in our rules and interpreting
‘‘apparatus’’ that are designed to ‘‘record
video programming’’ to also include
hardware-only products. We seek
comment on whether we should also
interpret ‘‘apparatus’’ that are designed
to ‘‘record video programming’’ to
include software-only products, such as
174 47
U.S.C. 617(g).
para. 49, supra.
176 47 U.S.C. 303(z)(1).
175 See
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software designed to enable a PC to
function as a video recording platform.
While some devices, such as digital
video recorders, plainly appear to be
covered by this section, other devices,
such as network-connected hard drives,
also can be used to record video. For
example, home-networking protocol
suites, such as DLNA,177 permit
networked devices, such as computers
and hard-drives, to be used for video
storage while control of those devices is
accomplished by a combination of
software running on the device itself
and on devices accessing or
manipulating the video stream. We seek
comment on the proper scope of the
definition of ‘‘apparatus designed to
record video programming.’’
Additionally, to the extent the
definition of ‘‘achievable’’ differs from
that discussed above, we seek comment
on determining the capabilities of
recording devices relative to display
devices.
55. Interconnection Mechanisms.
Finally, the CVAA directs the
Commission to regulate interconnection
mechanisms. Specifically, the CVAA
requires that ‘‘interconnection
mechanisms and standards for digital
video source devices [be] available to
carry from the source device to the
consumer equipment the information
necessary to permit or render the
display of closed captions.’’ 178 We seek
input on how this objective can best be
achieved. Is it sufficient to require that
intermediate devices, such as set-top
boxes and digital video recorders, be
capable of conveying closed captions to
display devices and to assume that
standards for interconnection will be
developed as necessary? Does the
Commission need to extend its
regulations to manufacturers or
standards bodies that develop and
deploy these interconnection
mechanisms to ensure that they are
capable of conveying closed captioning
information? Should the Commission
take a more active role in requiring a
particular standard? We additionally
seek comment on what specific
connections Congress intended to be
covered by this provision. For example,
component video connections and
HDMI, used to transmit high definition
video signals from a set-top box or
computer to a television or monitor, do
not carry closed captions.179 However,
based on our requirements, those
devices connected to the television or
monitor via HDMI or component video
would be required to render the
captions prior to transmitting the video
signal. Did Congress intend to cover
home networking connections, such as
WiFi or Multimedia Over Coax (MoCA),
and if so, should we instead direct our
attention to the protocol suites which
use these interconnection technologies,
such as DLNA? We seek comment on
what it means to carry the necessary
information to ‘‘permit or render the
display of closed captions’’ and what
existing technologies satisfy this
requirement.
177 See Digital Living Network Alliance, https://
www.dlna.org.
178 47 U.S.C. 303(z)(2).
179 See Does HDMI Support Closed Captioning?
High Definition Multimedia Interface, Frequently
Asked Questions https://www.hdmi.org/
learningcenter/faq.aspx#117. Captions are rendered
by the host device, such as a set-top box and
transmitted in an open matter, rendered into the
video stream. While this makes captioning
available, it does not utilize the functionality built
into the end device, which some consumers may
prefer.
180 Public Law 111–260, § 203(c).
181 VPAAC Report at 13–16.
182 Id. at 15.
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B. Obligations Under Section 203 of the
CVAA
56. In this NPRM, we also seek
comment on the features and
specifications that must be supported by
the devices covered by Section 203.
Section 203(c) requires that the
Commission prescribe performance and
display standards for built-in decoder
circuitry or capability designed to
display closed captioned video
programming.180 The VPAAC Report
addresses this issue, recommending a
feature set which mirrors that available
on television receivers and we propose
rules requiring these same features.
These capabilities include the
presentation of captions, via roll-up,
pop-on, or paint-on techniques, and the
setting of semantically significant
character formatting, as well as
capabilities regarding character color,
character opacity, character size, fonts,
caption background, character edge
attributes, caption window color, and
language selection.181 We further
propose, pursuant to the VPAAC
recommendation, that these settings be
user configurable and that the user’s
selection be retained between viewing
sessions, though where the user has not
made a selection, the settings provided
by the content owner are displayed.182
While the VPAAC states that the
functionality in an IP world should not
be less than what is provided to
consumers through digital television,
there are other features the VPAAC
Report identifies as components of the
‘‘experience’’ that must be provided to
users, but that are not included in the
VPAAC Report’s discussion of specific
capabilities, such as the user-controlled
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placement of captions.183 We seek
comment on the list of features included
in the VPAAC Report, especially
whether the requirements must be
modified for specific classes of devices,
such as those with very small screens or
those with limited processing power. To
what extent beyond what is currently
available should users be able to control
the appearance of their captions through
user tools on video apparatus? Which
aspects must, and which may, be usercontrollable? Is there a need to require
such functionality to ensure
compliance? We also seek comment on
the inherent differences, technical and
otherwise, in the rendering of captions
on Internet-connected devices (e.g., on a
Web browser or a smartphone app)
versus television receivers? What are the
inherent differences, technical and
otherwise, in the rendering of captions
on mobile devices versus fixed-use
television and video receivers?
57. We seek comment on what
standards, if any, the Commission
should mandate to implement the goals
of Section 203 of the CVAA. In
particular, we seek comment on
whether we should adopt a particular
delivery file format that devices must
support. The VPAAC Report discusses
three use cases of how content can be
distributed via the Internet to consumer
devices: Use Case 1, where content is
delivered to an unaffiliated device; Use
Case 2, where content is delivered to a
Web browser; and Use Case 3, where
content is delivered to a managed
device or application.184 The VPAAC
Report concludes that Use Cases 2 and
3 ‘‘require a specific standard
distribution format based on standards
developed within an open process by
recognized industry standard-setting
organizations;’’ however it does not
identify what that standard should
be.185 When the Commission initially
adopted rules for closed captioning, it
adopted certain standards for delivery
and decoding of captions and made
those standards mandatory for all
devices capable of receiving television
content.186 In those cases, however, a
clear industry standard and consensus
on the format already existed, and the
standard was applied with respect to
one television delivery standard.
Furthermore, television programmers
rarely maintain any relationship with
the devices displaying the content they
provide. In the Internet-delivery
183 Id.
at 34, Appendix C.
at 18–20.
185 Id. at 27.
186 See DTV Receiver Closed Captioning Order,
FCC 00–259, 65 FR 58467, September 29, 2000
(‘‘DTV Receiver Closed Captioning Order’’); TDCA
Order.
184 Id.
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context, however, VPDs/VPPs deliver
content in many different formats, each
continually evolving, and a
Commission-mandated standard could
restrict industry innovation. Conversely,
Congress clearly envisioned consumers
being able to access closed captions
contained in any programming on any
device that is capable of displaying the
associated video, and a lack of standards
could make this goal more difficult and
costly to achieve.187 Furthermore, the
relationship between the content
provider and the device or software
provider may be such that the VPP/VPD
could contract with device
manufacturers to support captions in
the format the VPP/VPD chooses. With
respect to Use Case 1, the VPAAC
Report concludes that a common file
format is required, and suggests SMPTETT as that format.188 We seek comment
on whether we should require a
particular delivery standard or
standards to be supported on devices
pursuant to Section 203 of the CVAA.
As an alternative, would a more general
rule requiring that devices capable of
receiving unaffiliated content from
VPPs/VPDs be capable of decoding and
rendering captions transmitted by VPPs/
VPDs be preferable to achieve the goals
of the CVAA?
58. Alternate Means of Compliance.
The CVAA permits that ‘‘an entity may
meet the requirements of sections
303(u), 303(z), and 330(b) of the [Act]
through alternate means than those
prescribed by regulations * * * as
determined by the Commission.’’ 189 We
seek comment on a process by which
the Commission may determine that the
alternate means selected by a party
nevertheless meet the requirements of
the preceding sections. Additionally, are
there some requirements above that
cannot be met via alternate means, such
as the use of a standardized
interconnection or the functional
requirements prescribed above? 190
59. Location of Rules within the Code
of Federal Regulations and
Miscellaneous Issues. Finally, we seek
comment on any other issues that need
to be addressed by the Commission to
meet the CVAA’s objective of ensuring
that consumers can receive closed
captions on video apparatus covered by
the Act. For example, while we
currently propose to create and modify
requirements in Part 15 of the
Commission’s rules, we seek comment
on whether a more appropriate location
59979
for these rules would be proximate to
the existing closed captioning and video
description rules in Part 79, or as a new,
video-device specific section created to
consolidate the device rules other than
those relating to reception of radio
frequency signals that the Commission
currently maintains Part 15 of the
Commission’s rules contains numerous
ancillary obligations (such as
certification or verification) and
attendant definitions which may or may
not be beneficial to the overall goals of
the rules. By creating a new section, we
could consolidate various rule parts
related to video devices, including other
video device rules contained in Title 47
of the CFR that are not directly related
to the reception of radio frequency
signals. In this case, for example,
Section 15.122, the closed captioning
rules for digital television, could be
moved, and Section 15.119 could be
moved if it is still necessary, or else
deleted. Are there additional benefits or
implications to separating device rules
for closed captioning from the general
Part 15 requirements?
C. Schedule of Deadlines
60. While the CVAA specifies that the
Commission must promulgate rules
within six months of the submission of
the VPAAC Report, it does not specify
the timeframe by which those
regulations must become effective.191
Additionally, while the VPAAC Report
recommends timeframes by which
closed captioning must be made
available, it does not address the
timeframe on which devices must
become compliant.192 It notes that one
group suggested that a minimum of 24
months would be required to implement
the features discussed above, but that
others thought this time period was too
long.193 We seek comment on the
appropriate timeframe to implement
closed captioning technical
requirements pursuant to Section 203 of
the CVAA. Should features or device
classes be phased in, accelerating the
deployment of devices for which the
addition of closed captioning is easy,
while allowing more time for those
parties that need it? We note that the
Commission allowed slightly less than
24 months for device manufacturers to
design and build DTV closed captioning
display functionality into their
products.194 Is this timeframe
191 Public
Law 111–260, § 203(d).
Report at 34.
192 VPAAC
187 See S. Rep. No. 111–386 at 14; H.R. Rep. No.
111–563 at 30.
188 VPAAC Report at 27.
189 Public Law 111–260, § 203(e).
190 See para. 55, supra.
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193 Id.
194 See DTV Receiver Closed Captioning Order, 65
FR 58467. (The order was adopted on July 21, 2000,
released on July 31, 2000, and published in the
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62. As required by the Regulatory
Flexibility Act of 1980, as amended
(‘‘RFA’’),196 the Commission has
prepared this present Initial Regulatory
Flexibility Analysis (‘‘IRFA’’)
concerning the possible significant
economic impact on small entities by
the policies and rules proposed in this
Notice of Proposed Rulemaking
(‘‘NPRM’’). Written public comments are
requested on this IRFA. Comments must
be identified as responses to the IRFA
and must be filed by in accordance with
the same filing deadlines for comments
on the NPRM. The Commission will
send a copy of the NPRM, including this
IRFA, to the Chief Counsel for Advocacy
of the Small Business Administration
(‘‘SBA’’).197 In addition, the NPRM and
IRFA (or summaries thereof) will be
published in the Federal Register.198
1. Need for, and Objectives of, the
Proposed Rule Changes
63. The Twenty-First Century
Communications and Video
Accessibility Act of 2010 (‘‘CVAA’’)
requires the Federal Communications
Commission (‘‘Commission’’) to revise
its regulations to mandate closed
captioning on certain video
programming delivered using Internet
protocol (‘‘IP’’).199 In the NPRM, we
initiate a proceeding that will fulfill this
requirement. We seek comment on
proposals that would better enable
individuals who are deaf or hard of
hearing to view IP-delivered video
programming, by requiring that
programming be provided with closed
captions if it was shown on television
with captions after the effective date of
the rules adopted pursuant to this
proceeding. We also seek comment on
requirements for the devices that are
subject to the CVAA’s new closed
captioning requirements.200 Our goal is
to require the provision of closed
captions with IP-delivered video
programming in the manner most
helpful to consumers, while ensuring
that our regulations do not create undue
economic burdens for the distributors,
providers, and owners of online video
programming.
64. Closed captioning is an assistive
technology that provides individuals
who are deaf or hard of hearing with
access to television programming.
Closed captioning displays the audio
portion of a television signal as printed
words on the television screen. Existing
regulations require the use of closed
captioning on television.201 Until now,
however, closed captioning has not been
required for IP-delivered video
programming. That changed with the
enactment of the CVAA. Specifically,
Section 202(b) of the CVAA revised
Section 713 of the Communications Act
of 1934, as amended, to require the
Commission to ‘‘revise its regulations to
require the provision of closed
captioning on video programming
delivered using Internet protocol that
was published or exhibited on
television with captions after the
effective date of such regulations.’’ 202
65. The CVAA also required the
Chairman of the Commission to
establish an advisory committee known
Federal Register on September 29, 2000. The rules
became effective on July 1, 2002.)
195 See Section III. B., supra.
196 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601–
612, has been amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
(SBREFA), Public Law 104–121, Title II, 110 Stat.
857 (1996).
197 See 5 U.S.C. 603(a).
198 See id.
199 Public Law 111–260, 124 Stat. 2751, § 202(b)
(2010). See also Amendment of Twenty-First
Century Communications and Video Accessibility
Act of 2010, Public Law 111–265, 124 Stat. 2795
(2010) (making technical corrections to the CVAA).
200 See Public Law 111–260, § 203.
201 See 47 CFR 79.1 (setting forth the
requirements for closed captioning of video
programming on television).
202 47 U.S.C. 613(c)(2)(A).
appropriate in light of the current
electronics manufacturing process?
Would it be an appropriate timeframe if
we define ‘‘apparatus’’ to include
software? If we adopt the compliance
schedule for VPPs/VPDs discussed
above (varying from six to 18 months,
depending on the nature of the
programming),195 should we also ensure
that some or all devices that will be
used to access those services will be
capable of decoding closed captions
when they are available?
V. Conclusion
61. In conclusion, in this NPRM, we
seek comment on proposed rules that
would require IP-delivered video
programming to include closed captions
if that programming is shown on
television with captions after the
effective date of our new rules. We
further seek comment on proposed rules
that would require this capability for
nearly all devices that consumers use to
access IP-delivered video programming.
These proposals seek to further the
intent of Congress to give individuals
who are deaf or hard of hearing better
access to IP-delivered video
programming.
VI. Procedural Matters
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as the Video Programming Accessibility
Advisory Committee (‘‘VPAAC’’).203
Section 201(e)(1) of the CVAA required
the VPAAC to submit a report on closed
captioning to the Commission six
months after its first meeting, or by July
13, 2011.204 The VPAAC submitted this
report on July 12, 2011.205 By statute,
within six months of the submission of
the VPAAC Report, the Commission
must issue final regulations to require
the provision of closed captioning on IPdelivered video programming.206
Accordingly, the Commission must
revise its regulations by January 12,
2012.207 By the same date, pursuant to
Section 203 of the CVAA, the
Commission must revise its regulations
to include any technical standards,
protocols, and procedures needed for
the transmission of closed captioning
delivered using IP, to ensure that certain
apparatus are capable of rendering,
passing through, or otherwise
permitting the display of closed
captions for end users.208
66. The NPRM considers revisions to
our rules that would implement the
requirements of Sections 202(b) and 203
of the CVAA, as well as the conforming
amendment set forth in Section 202(c)
of the CVAA. These proposals could
fulfill Congress’ goal of enabling
consumers who are deaf or hard of
hearing to access IP-delivered video
programming. The NPRM seeks
comment on rule changes that would:
• Specify the obligations of entities
subject to Section 202(b) by:
Æ Requiring video programming
owners to send required caption
files for IP-delivered video
programming to video programming
distributors and video programming
providers along with program files;
Æ Requiring video programming
distributors and video programming
providers to enable the rendering or
pass through of all required
captions to the end user; and
Æ Requiring the quality of all required
captioning of IP-delivered video
programming to be of at least the
same quality as the captioning of
203 Public
Law 111–260, § 201(a).
§ 201(e)(1).
205 See First Report of the Video Programming
Accessibility Advisory Committee on the TwentyFirst Century Communications and Video
Accessibility Act of 2010: Closed Captioning of
Video Programming Delivered Using Internet
Protocol, July 12, 2011, available at https://
transition.fcc.gov/cgb/dro/VPAAC/
First_VPAAC_Report_to_the_FCC_7-1111_FINAL.pdf (‘‘VPAAC Report’’).
206 47 U.S.C. 613(c)(2)(A).
207 See id.
208 Public Law 111–260, § 203(a)–(b), (d).
204 Id.,
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the same programming when shown
on television;209
• Create a schedule of deadlines by
which:
Æ All prerecorded and unedited
programming subject to the new
requirements must be captioned
within six months of publication of
the rules in the Federal Register;
Æ All live and near-live programming
subject to the new requirements
must be captioned within 12
months of publication of the rules
in the Federal Register; and
Æ All prerecorded and edited
programming subject to the new
requirements must be captioned
within 18 months of publication of
the rules in the Federal Register; 210
• Craft procedures by which video
programming providers and video
programming owners may petition
the Commission for exemptions
from the new requirements based
on economic burden; 211
• Establish a mechanism to make
information about video
programming subject to the CVAA
available to video programming
providers and distributors, by
requiring video programming
owners to provide programming for
IP delivery either with captions, or
with a certification that captions are
not required for a stated reason; 212
• Decline to adopt particular technical
standards for IP-delivered video
programming; 213
• Decline to treat a de minimis failure
to comply with the new rules as a
violation, and permit entities to
comply with the new requirements
by alternate means; 214 and
• Adopt procedures for complaints
alleging a violation of the new
requirements.215
Additionally, we seek comment on
the appropriate requirements for devices
subject to the closed captioning
requirements of Section 203.216
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2. Legal Basis
67. The proposed action is authorized
pursuant to Sections 4(i), 4(j), 303,
330(b), 713, and 716 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 154(j), 303,
330(b), 613, and 617.
209 See
NPRM, Section III.A.
id., Section III.B.
211 See id., Section III.C.
212 See id., Section III.D.
213 See id., Section III.E.
214 See id., Section III.F.
215 See id., Section III.G.
216 See id., Section IV.
210 See
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3. Description and Estimate of the
Number of Small Entities To Which the
Proposed Rules Will Apply
68. The RFA directs agencies to
provide a description of and, where
feasible, an estimate of the number of
small entities that may be affected by
the proposed rules, if adopted.217 The
RFA generally defines the term ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’ 218 In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
under the Small Business Act.219 A
small business concern is one which: (1)
Is independently owned and operated;
(2) is not dominant in its field of
operation; and (3) satisfies any
additional criteria established by the
SBA.220 Below, we provide a
description of such small entities, as
well as an estimate of the number of
such small entities, where feasible.
69. Small Businesses, Small
Organizations, and Small Governmental
Jurisdictions. Our action may, over time,
affect small entities that are not easily
categorized at present. We therefore
describe here, at the outset, three
comprehensive, statutory small entity
size standards.221 First, nationwide,
there are a total of approximately 27.5
million small businesses, according to
the SBA.222 In addition, a ‘‘small
organization’’ is generally ‘‘any not-forprofit enterprise which is independently
owned and operated and is not
dominant in its field.’’ 223 Nationwide,
as of 2007, there were approximately
1,621,315 small organizations.224
Finally, the term ‘‘small governmental
jurisdiction’’ is defined generally as
‘‘governments of cities, towns,
townships, villages, school districts, or
217 5
U.S.C. 603(b)(3).
U.S.C. 601(6).
219 5 U.S.C. 601(3) (incorporating by reference the
definition of ‘‘small business concern’’ in 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory
definition of a small business applies ‘‘unless an
agency, after consultation with the Office of
Advocacy of the Small Business Administration
and after opportunity for public comment,
establishes one or more definitions of such term
which are appropriate to the activities of the agency
and publishes such definition(s) in the Federal
Register.’’ 5 U.S.C. 601(3).
220 15 U.S.C. 632. Application of the statutory
criteria of dominance in its field of operation and
independence are sometimes difficult to apply in
the context of broadcast television. Accordingly, the
Commission’s statistical account of television
stations may be over-inclusive.
221 See 5 U.S.C. 601(3)–(6).
222 See SBA, Office of Advocacy, ‘‘Frequently
Asked Questions,’’ https://web.sba.gov/faqs (last
visited May 6, 2011; figures are from 2009).
223 5 U.S.C. 601(4).
224 Independent Sector, The New Nonprofit
Almanac & Desk Reference (2010).
218 5
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special districts, with a population of
less than fifty thousand.’’ 225 Census
Bureau data for 2011 indicate that there
were 89,476 local governmental
jurisdictions in the United States.226 We
estimate that, of this total, as many as
88,506 entities may qualify as ‘‘small
governmental jurisdictions.’’ 227 Thus,
we estimate that most governmental
jurisdictions are small.
70. Cable Television Distribution
Services. Since 2007, these services
have been defined within the broad
economic census category of Wired
Telecommunications Carriers; that
category is defined as follows: ‘‘This
industry comprises establishments
primarily engaged in operating and/or
providing access to transmission
facilities and infrastructure that they
own and/or lease for the transmission of
voice, data, text, sound, and video using
wired telecommunications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies.’’ 228 The SBA has
developed a small business size
standard for this category, which is: All
such firms having 1,500 or fewer
employees. Census data for 2007, which
supersede data contained in the 2002
Census, show that there were 1,383
firms that operated that year.229 Of those
1,383, 1,368 had fewer than 100
employees, and 15 firms had more than
100 employees. Thus under this
category and the associated small
225 5
U.S.C. 601(5).
Census Bureau, Statistical Abstract of the
United States: 2011, Table 427 (2007).
227 The 2007 U.S Census data for small
governmental organizations are not presented based
on the size of the population in each such
organization. There were 89,476 small
governmental organizations in 2007. If we assume
that county, municipal, township and school
district organizations are more likely than larger
governmental organizations to have populations of
50,000 or less, the total of these organizations is
52,125. If we make the same assumption about
special districts, and also assume that special
districts are different from county, municipal,
township, and school districts, in 2007 there were
37,381 special districts. Therefore, of the 89,476
small governmental organizations documented in
2007, as many as 89,506 may be considered small
under the applicable standard. This data may
overestimate the number of such organizations that
has a population of 50,000 or less. U.S. CENSUS
BUREAU, STATISTICAL ABSTRACT OF THE
UNITED STATES 2011, Tables 427, 426 (Data cited
therein are from 2007).
228 U.S. Census Bureau, 2007 NAICS Definitions,
‘‘517110 Wired Telecommunications Carriers,’’
(partial definition), https://www.census.gov/naics/
2007/def/ND517110.HTM#N517110 (last visited
Oct. 21, 2009).
229 U.S. Census Bureau, 2007 Economic Census,
Sector 51, 2007 NAICS code 517210 (rel. Oct. 20,
2009), https://factfinder.census.gov/servlet/
IBQTable?_bm=y&-geo&_id=&fds&_name=EC0700A1&-_skip=700&ds_name=EC0751SSSZ5&-_lang=en.
226 U.S.
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business size standard, the majority of
such firms can be considered small.
71. Cable Companies and Systems.
The Commission has also developed its
own small business size standards, for
the purpose of cable rate regulation.
Under the Commission’s rules, a ‘‘small
cable company’’ is one serving 400,000
or fewer subscribers, nationwide.230
Industry data indicate that, of 1,076
cable operators nationwide, all but
eleven are small under this size
standard.231 In addition, under the
Commission’s rules, a ‘‘small system’’ is
a cable system serving 15,000 or fewer
subscribers.232 Industry data indicate
that, of 6,635 systems nationwide, 5,802
systems have under 10,000 subscribers,
and an additional 302 systems have
10,000–19,999 subscribers.233 Thus,
under this second size standard, most
cable systems are small.
72. Cable System Operators. The
Communications Act of 1934, as
amended, also contains a size standard
for small cable system operators, which
is ‘‘a cable operator that, directly or
through an affiliate, serves in the
aggregate fewer than 1 percent of all
subscribers in the United States and is
not affiliated with any entity or entities
whose gross annual revenues in the
aggregate exceed $250,000,000.’’ 234 The
Commission has determined that an
operator serving fewer than 677,000
subscribers shall be deemed a small
operator, if its annual revenues, when
combined with the total annual
revenues of all its affiliates, do not
exceed $250 million in the aggregate.235
Industry data indicate that, of 1,076
cable operators nationwide, all but ten
are small under this size standard.236
230 47 CFR 76.901(e). The Commission
determined that this size standard equates
approximately to a size standard of $100 million or
less in annual revenues. Implementation of Sections
of the 1992 Cable Act: Rate Regulation, FCC 95–
196, 60 FR 35854, July 12, 1995.
231 These data are derived from: R.R. Bowker,
Broadcasting & Cable Yearbook 2006, ‘‘Top 25
Cable/Satellite Operators,’’ pages A–8 & C–2 (data
current as of June 30, 2005); Warren
Communications News, Television & Cable
Factbook 2006, ‘‘Ownership of Cable Systems in the
United States,’’ pages D–1805 to D–1857.
232 47 CFR 76.901(c).
233 Warren Communications News, Television &
Cable Factbook 2008, ‘‘U.S. Cable Systems by
Subscriber Size,’’ page F–2 (data current as of Oct.
2007). The data do not include 851 systems for
which classifying data were not available.
234 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) &
nn. 1–3.
235 47 CFR 76.901(f); see Public Notice, FCC
Announces New Subscriber Count for the Definition
of Small Cable Operator, DA 01–158 (Cable
Services Bureau, Jan. 24, 2001).
236 These data are derived from: R.R. Bowker,
Broadcasting & Cable Yearbook 2006, ‘‘Top 25
Cable/Satellite Operators,’’ pages A–8 & C–2 (data
current as of June 30, 2005); Warren
Communications News, Television & Cable
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We note that the Commission neither
requests nor collects information on
whether cable system operators are
affiliated with entities whose gross
annual revenues exceed $250
million,237 and therefore we are unable
to estimate more accurately the number
of cable system operators that would
qualify as small under this size
standard.
73. Direct Broadcast Satellite (‘‘DBS’’)
Service. DBS service is a nationally
distributed subscription service that
delivers video and audio programming
via satellite to a small parabolic ‘‘dish’’
antenna at the subscriber’s location.
DBS, by exception, is now included in
the SBA’s broad economic census
category, ‘‘Wired Telecommunications
Carriers,’’ 238 which was developed for
small wireline firms. Under this
category, the SBA deems a wireline
business to be small if it has 1,500 or
fewer employees.239 To gauge small
business prevalence for the DBS service,
the Commission relies on data currently
available from the U.S. Census for the
year 2007. According to that source,
there were 3,188 firms that in 2007 were
Wired Telecommunications Carriers. Of
these, 3,144 operated with less than
1,000 employees, and 44 operated with
more than 1,000 employees. However,
as to the latter 44 there is no data
available that shows how many
operated with more than 1,500
employees. Based on this data, the
majority of these firms can be
considered small.240 Currently, only two
entities provide DBS service, which
requires a great investment of capital for
operation: DIRECTV and EchoStar
Communications Corporation
(‘‘EchoStar’’) (marketed as the DISH
Network).241 Each currently offers
Factbook 2006, ‘‘Ownership of Cable Systems in the
United States,’’ pages D–1805 to D–1857.
237 The Commission does receive such
information on a case-by-case basis if a cable
operator appeals a local franchise authority’s
finding that the operator does not qualify as a small
cable operator pursuant to sec. 76.901(f) of the
Commission’s rules. See 47 CFR 76.909(b).
238 See 13 CFR 121.201, NAICS code 517110
(2007).
239 13 CFR 121.201, NAICS code 517110 (2007).
240 See https://www.factfinder.census.gov/servlet/
IBQTable?_bm=y&-geo_id=&fds_name=EC0700A1&-_skip=600&ds_name=EC0751SSSZ5&-_lang=en.
241 See Annual Assessment of the Status of
Competition in the Market for the Delivery of Video
Programming, Thirteenth Annual Report, 24 FCC
Rcd 542, 580, para. 74 (2009) (‘‘13th Annual
Report’’). We note that, in 2007, EchoStar
purchased the licenses of Dominion Video Satellite,
Inc. (‘‘Dominion’’) (marketed as Sky Angel). See
Public Notice, ‘‘Policy Branch Information; Actions
Taken,’’ Report No. SAT–00474, 22 FCC Rcd 17776
(IB 2007).
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subscription services. DIRECTV 242 and
EchoStar 243 each report annual
revenues that are in excess of the
threshold for a small business. Because
DBS service requires significant capital,
we believe it is unlikely that a small
entity as defined by the SBA would
have the financial wherewithal to
become a DBS service provider.
74. Satellite Telecommunications
Providers. Two economic census
categories address the satellite industry.
The first category has a small business
size standard of $15 million or less in
average annual receipts, under SBA
rules.244 The second has a size standard
of $25 million or less in annual
receipts.245
75. The category of Satellite
Telecommunications ‘‘comprises
establishments primarily engaged in
providing telecommunications services
to other establishments in the
telecommunications and broadcasting
industries by forwarding and receiving
communications signals via a system of
satellites or reselling satellite
telecommunications.’’ 246 Census
Bureau data for 2007 show that 512
Satellite Telecommunications firms
operated for that entire year.247 Of this
total, 464 firms had annual receipts of
under $10 million, and 18 firms had
receipts of $10 million to
$24,999,999.248 Consequently, the
Commission estimates that the majority
of Satellite Telecommunications firms
are small entities that might be affected
by our proposed action.
76. The second category, i.e. ‘‘All
Other Telecommunications’’ comprises
‘‘establishments primarily engaged in
providing specialized
telecommunications services, such as
satellite tracking, communications
telemetry, and radar station operation.
This industry also includes
establishments primarily engaged in
providing satellite terminal stations and
associated facilities connected with one
or more terrestrial systems and capable
242 As of June 2006, DIRECTV is the largest DBS
operator and the second largest MVPD, serving an
estimated 16.20% of MVPD subscribers nationwide.
See 13th Annual Report, 24 FCC Rcd at 687, Table
B–3.
243 As of June 2006, DISH Network is the second
largest DBS operator and the third largest MVPD,
serving an estimated 13.01% of MVPD subscribers
nationwide. Id. As of June 2006, Dominion served
fewer than 500,000 subscribers, which may now be
receiving ‘‘Sky Angel’’ service from DISH Network.
See id. at 581, para. 76.
244 13 CFR 121.201, NAICS code 517410.
245 13 CFR 121.201, NAICS code 517919.
246 U.S. Census Bureau, 2007 NAICS Definitions,
‘‘517410 Satellite Telecommunications.’’
247 See https://factfinder.census.gov/servlet/
IBQTable?_bm=y&-geo&_id=&-_skip=900&ds_name=EC0751SSSZ4-_lang=en
248 See id.
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of transmitting telecommunications to,
and receiving telecommunications from,
satellite systems. Establishments
providing Internet services or voice over
Internet protocol (VoIP) services via
client-supplied telecommunications
connections are also included in this
industry.’’ 249 For this category, Census
Bureau data for 2007 show that there
were a total of 2,383 firms that operated
for the entire year.250 Of this total, 2,346
firms had annual receipts of under $25
million and 37 firms had annual
receipts of $25 million to
$49,999,999.251 Consequently, the
Commission estimates that the majority
of All Other Telecommunications firms
are small entities that might be affected
by our action.
77. Television Broadcasting. The SBA
defines a television broadcasting station
as a small business if such station has
no more than $14.0 million in annual
receipts.252 Business concerns included
in this industry are those ‘‘primarily
engaged in broadcasting images together
with sound.’’ 253 The Commission has
estimated the number of licensed
commercial television stations to be
1,390.254 According to Commission staff
review of the BIA Kelsey Inc. Media
Access Pro Television Database (BIA) as
of January 31, 2011, 1,006 (or about 78
percent) of an estimated 1,298
commercial television stations 255 in the
United States have revenues of $14
million or less and, thus, qualify as
small entities under the SBA definition.
249 https://www.census.gov/cgi-bin/sssd/naics/
naicsrch?code=517919&search=
2007%20NAICS%20Search.
250 See https://factfinder.census.gov/servlet/
IBQTable?_bm=y&-geo_id=-_skip=900
ds_name=EC0751SSSZ4&-_lang=en.
251 See id.
252 See 13 CFR 121.201, NAICS Code 515120
(2007).
253 Id. This category description continues,
‘‘These establishments operate television
broadcasting studios and facilities for the
programming and transmission of programs to the
public. These establishments also produce or
transmit visual programming to affiliated broadcast
television stations, which in turn broadcast the
programs to the public on a predetermined
schedule. Programming may originate in their own
studios, from an affiliated network, or from external
sources.’’ Separate census categories pertain to
businesses primarily engaged in producing
programming. See Motion Picture and Video
Production, NAICS code 512110; Motion Picture
and Video Distribution, NAICS Code 512120;
Teleproduction and Other Post-Production
Services, NAICS Code 512191; and Other Motion
Picture and Video Industries, NAICS Code 512199.
254 See News Release, ‘‘Broadcast Station Totals
as of December 31, 2010,’’ 2011 WL 484756 (F.C.C.)
(dated Feb. 11, 2011) (‘‘Broadcast Station Totals’’);
also available at https://www.fcc.gov/Daily_Releases/
Daily_Business/2011/db0211/DOC–304594A1.pdf’’.
255 We recognize that this total differs slightly
from that contained in Broadcast Station Totals;
however, we are using BIA’s estimate for purposes
of this revenue comparison.
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The Commission has estimated the
number of licensed noncommercial
educational (‘‘NCE’’) television stations
to be 391.256 We note, however, that, in
assessing whether a business concern
qualifies as small under the above
definition, business (control)
affiliations 257 must be included. Our
estimate, therefore, likely overstates the
number of small entities that might be
affected by our action, because the
revenue figure on which it is based does
not include or aggregate revenues from
affiliated companies. The Commission
does not compile and otherwise does
not have access to information on the
revenue of NCE stations that would
permit it to determine how many such
stations would qualify as small entities.
78. In addition, an element of the
definition of ‘‘small business’’ is that the
entity not be dominant in its field of
operation. We are unable at this time to
define or quantify the criteria that
would establish whether a specific
television station is dominant in its field
of operation. Accordingly, the estimate
of small businesses to which rules may
apply do not exclude any television
station from the definition of a small
business on this basis and are therefore
over-inclusive to that extent. Also, as
noted, an additional element of the
definition of ‘‘small business’’ is that the
entity must be independently owned
and operated. We note that it is difficult
at times to assess these criteria in the
context of media entities and our
estimates of small businesses to which
they apply may be over-inclusive to this
extent.
79. Open Video Services. Open Video
Service (OVS) systems provide
subscription services.258 The open video
system (‘‘OVS’’) framework was
established in 1996, and is one of four
statutorily recognized options for the
provision of video programming
services by local exchange carriers.259
The OVS framework provides
opportunities for the distribution of
video programming other than through
cable systems. Because OVS operators
provide subscription services,260 OVS
falls within the SBA small business size
standard covering cable services, which
is ‘‘Wired Telecommunications
256 See
Broadcast Station Totals.
concerns] are affiliates of each
other when one concern controls or has the power
to control the other or a third party or parties
controls or has to power to control both.’’ 13 CFR
121.103(a)(1).
258 See 47 U.S.C. 573.
259 47 U.S.C. 571(a)(3)–(4). See 13th Annual
Report, 24 FCC Rcd at 606, para. 135.
260 See 47 U.S.C. 573.
257 ‘‘[Business
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59983
Carriers.’’ 261 The SBA has developed a
small business size standard for this
category, which is: all such firms having
1,500 or fewer employees. To gauge
small business prevalence for the OVS
service, the Commission relies on data
currently available from the U.S. Census
for the year 2007. According to that
source, there were 3,188 firms that in
2007 were Wired Telecommunications
Carriers. Of these, 3,144 operated with
less than 1,000 employees, and 44
operated with more than 1,000
employees. However, as to the latter 44
there is no data available that shows
how many operated with more than
1,500 employees. Based on this data, the
majority of these firms can be
considered small.262 In addition, we
note that the Commission has certified
some OVS operators, with some now
providing service.263 Broadband service
providers (‘‘BSPs’’) are currently the
only significant holders of OVS
certifications or local OVS franchises.264
The Commission does not have
financial or employment information
regarding the entities authorized to
provide OVS, some of which may not
yet be operational. Thus, at least some
of the OVS operators may qualify as
small entities. The Commission further
notes that it has certified approximately
45 OVS operators to serve 75 areas, and
some of these are currently providing
service.265 Affiliates of Residential
Communications Network, Inc. (‘‘RCN’’)
received approval to operate OVS
systems in New York City, Boston,
Washington, DC, and other areas. RCN
has sufficient revenues to assure that
they do not qualify as a small business
entity. Little financial information is
available for the other entities that are
authorized to provide OVS and are not
yet operational. Given that some entities
authorized to provide OVS service have
not yet begun to generate revenues, the
Commission concludes that up to 44
OVS operators (those remaining) might
qualify as small businesses that may be
affected by the rules and policies
adopted herein.
261 U.S. Census Bureau, 2007 NAICS Definitions,
‘‘517110 Wired Telecommunications Carriers’’;
https://www.census.gov/naics/2007/def/ND517110.
HTM#N517110.
262 See https://factfinder.census.gov/servlet/IBQ
Table?_bm=y&-fds_name=EC0700A1&-geo_id=&-_
skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
263 A list of OVS certifications may be found at
https://www.fcc.gov/mb/ovs/csovscer.html.
264 See 13th Annual Report, 24 FCC Rcd at 606–
07, para. 135. BSPs are newer firms that are
building state-of-the-art, facilities-based networks to
provide video, voice, and data services over a single
network.
265 See https://www.fcc.gov/mb/ovs/csovscer.html
(current as of February 2007).
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80. Cable and Other Subscription
Programming. The Census Bureau
defines this category as follows: ‘‘This
industry comprises establishments
primarily engaged in operating studios
and facilities for the broadcasting of
programs on a subscription or fee basis.
* * * These establishments produce
programming in their own facilities or
acquire programming from external
sources. The programming material is
usually delivered to a third party, such
as cable systems or direct-to-home
satellite systems, for transmission to
viewers.’’ 266 To gauge small business
prevalence in the Cable and Other
Subscription Programming industries,
the Commission relies on data currently
available from the U.S. Census for the
year 2007. According to that source,
which supersedes data from the 2002
Census, there were 396 firms that in
2007 were engaged in production of
Cable and Other Subscription
Programming. Of these, 386 operated
with less than 1,000 employees, and 10
operated with more than 1,000
employees. However, as to the latter 10
there is no data available that shows
how many operated with more than
1,500 employees. Thus, under this
category and associated small business
size standard, the majority of firms can
be considered small.267
81. Motion Picture and Video
Production. The Census Bureau defines
this category as follows: ‘‘This industry
comprises establishments primarily
engaged in producing, or producing and
distributing motion pictures, videos,
television programs, or television
commercials.’’ 268 We note that firms in
this category may be engaged in various
industries, including cable
programming. Specific figures are not
available regarding how many of these
firms produce and/or distribute
programming for cable television. To
gauge small business prevalence in the
Motion Picture and Video Production
industries, the Commission relies on
data currently available from the U.S.
Census for the year 2007. The size
standard established by the SBA for this
business category is that annual receipts
of $29.5 million or less determine that
a business is small.269 According to the
2007 Census, there were 9,095 firms that
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266 U.S.
Census Bureau, 2007 NAICS Definitions,
‘‘515210 Cable and Other Subscription
Programming’’; https://www.census.gov/naics/2007/
def/ND515210.
267 See https://factfinder.census.gov/servlet/IBQ
Table?_bm=y&-fds_name=EC0700A1&-geo_id=&-_
skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
268 U.S. Census Bureau, 2007 NAICS Definitions,
NAICS Code 512110, https://www.census.gov/cgibin/sssd/naics/naicsrch?code=512110&search=
2007%20NAICS%20Search.
269 13 CFR 121.201, NAICS Code 512110.
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in 2007 were engaged in Motion Picture
and Video Production. Of these, 8,995
had annual receipts of $24,999,999 or
less, and 100 had annual receipts
ranging from not less that $25,000,000
to $100,000,000 or more.270 Thus, under
this category and associated small
business size standard, the majority of
firms can be considered small.
82. Motion Picture and Video
Distribution. The Census Bureau defines
this category as follows: ‘‘This industry
comprises establishments primarily
engaged in acquiring distribution rights
and distributing film and video
productions to motion picture theaters,
television networks and stations, and
exhibitors.’’ 271 We note that firms in
this category may be engaged in various
industries, including cable
programming. Specific figures are not
available regarding how many of these
firms produce and/or distribute
programming for cable television. To
gauge small business prevalence in the
Motion Picture and Video Distribution
industries, the Commission relies on
data currently available from the U.S.
Census for the year 2007. Based on the
SBA size standard of annual receipts of
29.5 million dollars,272 and according to
that 2007 Census source, which
supersedes data from the 2002 Census,
there were 450 firms that in 2007 were
engaged in Motion Picture and Video
Distribution. Of that number, 434
received annual receipts of $24,999,999
or less, and 16 received annual receipts
ranging from $25,000,000 to
$100,000,000 or more. Thus, under this
category and associated small business
size standard, the majority of firms can
be considered small.273
83. Small Incumbent Local Exchange
Carriers (LECs). We have included small
incumbent local exchange carriers in
this present RFA analysis. As noted
above, a ‘‘small business’’ under the
RFA is one that, inter alia, meets the
pertinent small business size standard
(e.g., a telephone communications
business having 1,500 or fewer
employees), and ‘‘is not dominant in its
field of operation.’’ 274 The SBA’s Office
of Advocacy contends that, for RFA
purposes, small incumbent local
exchange carriers are not dominant in
270 See https://factfinder.census.gov/servlet/
IBQTable?_bm=y&-geo_id=&-fds&_name=EC0
700A1&-_skip=200&-ds_name=EC0751SSSZ5&-_
lang=en.
271 See U.S. Census Bureau, 2007 NAICS
Definitions, NAICS Code 512110, https://
www.census.gov/cgi-bin/sssd/naics/naicsrch?code=
512110&search=2007%20NAICS%20Search.
272 13 CFR 121.201, NAICS Code 512110.
273 See https://factfinder.census.gov/servlet/IBQ
Table?_bm=y&-geo_id=&-fds_name=EC0700A1&_skip=200&-ds_name=EC0751SSSZ5&-_lang=en.
274 15 U.S.C. 632.
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their field of operation because any such
dominance is not ‘‘national’’ in
scope.275 We have therefore included
small incumbent local exchange carriers
in this RFA analysis, although we
emphasize that this RFA action has no
effect on Commission analyses and
determinations in other, non-RFA
contexts.
84. Incumbent Local Exchange
Carriers (Incumbent LECs). Neither the
Commission nor the SBA has developed
a small business size standard
specifically for incumbent local
exchange services. The appropriate size
standard under SBA rules is for the
category Wired Telecommunications
Carriers. Under that size standard, such
a business is small if it has 1,500 or
fewer employees.276 Census Bureau data
for 2007, which now supersede data
from the 2002 Census, show that there
were 3,188 firms in this category that
operated for the entire year. Of this
total, 3,144 had employment of 999 or
fewer, and 44 firms had had
employment of 1,000 or more.
According to Commission data, 1,307
carriers reported that they were
incumbent local exchange service
providers.277 Of these 1,307 carriers, an
estimated 1,006 have 1,500 or fewer
employees and 301 have more than
1,500 employees.278 Consequently, the
Commission estimates that most
providers of local exchange service are
small entities that may be affected by
the rules and policies proposed in the
NPRM. Thus under this category and
the associated small business size
standard, the majority of these
incumbent local exchange service
providers can be considered small
providers.279
85. Competitive Local Exchange
Carriers (Competitive LECs),
Competitive Access Providers (CAPs),
Shared-Tenant Service Providers, and
Other Local Service Providers. Neither
the Commission nor the SBA has
275 Letter from Jere W. Glover, Chief Counsel for
Advocacy, SBA, to William E. Kennard, Chairman,
FCC (May 27, 1999). The Small Business Act
contains a definition of ‘‘small-business concern,’’
which the RFA incorporates into its own definition
of ‘‘small business.’’ See 15 U.S.C. 632(a) (‘‘Small
Business Act’’); 5 U.S.C. 601(3) (‘‘RFA’’). SBA
regulations interpret ‘‘small business concern’’ to
include the concept of dominance on a national
basis. See 13 CFR 121.102(b).
276 13 CFR 121.201, NAICS code 517110.
277 See Trends in Telephone Service, Federal
Communications Commission, Wireline
Competition Bureau, Industry Analysis and
Technology Division at Table 5.3 (Sept. 2010)
(‘‘Trends in Telephone Service’’).
278 See id.
279 See https://factfinder.census.gov/servlet/
IBQTable?_bm=y&-fds_name=EC0700A1&-geo
_id=&-_skip=600&-ds_name=EC0751SSSZ5&_lang=en.
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developed a small business size
standard specifically for these service
providers. The appropriate size standard
under SBA rules is for the category
Wired Telecommunications Carriers.
Under that size standard, such a
business is small if it has 1,500 or fewer
employees.280 Census Bureau data for
2007, which now supersede data from
the 2002 Census, show that there were
3,188 firms in this category that
operated for the entire year. Of this
total, 3,144 had employment of 999 or
fewer, and 44 firms had had
employment of 1,000 employees or
more. Thus under this category and the
associated small business size standard,
the majority of these Competitive LECs,
CAPs, Shared-Tenant Service Providers,
and Other Local Service Providers can
be considered small entities.281
According to Commission data, 1,442
carriers reported that they were engaged
in the provision of either competitive
local exchange services or competitive
access provider services.282 Of these
1,442 carriers, an estimated 1,256 have
1,500 or fewer employees and 186 have
more than 1,500 employees.283 In
addition, 17 carriers have reported that
they are Shared-Tenant Service
Providers, and all 17 are estimated to
have 1,500 or fewer employees.284 In
addition, 72 carriers have reported that
they are Other Local Service
Providers.285 Of the 72, seventy have
1,500 or fewer employees and two have
more than 1,500 employees.286
Consequently, the Commission
estimates that most providers of
competitive local exchange service,
competitive access providers, SharedTenant Service Providers, and Other
Local Service Providers are small
entities that may be affected by rules
adopted pursuant to the NPRM.
86. Radio and Television
Broadcasting and Wireless
Communications Equipment
Manufacturing. The Census Bureau
defines this category as follows: ‘‘This
industry comprises establishments
primarily engaged in manufacturing
radio and television broadcast and
wireless communications equipment.
Examples of products made by these
establishments are: Transmitting and
receiving antennas, cable television
equipment, GPS equipment, pagers,
280 13
CFR 121.201, NAICS code 517110.
https://factfinder.census.gov/servlet/
IBQTable?_bm=y&-fds&_name=EC0700A1&-geo
_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_
lang=en.
282 See Trends in Telephone Service at Table 5.3.
283 See id.
284 See id.
285 See id.
286 See id.
281 See
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cellular phones, mobile
communications equipment, and radio
and television studio and broadcasting
equipment.’’ 287 The SBA has developed
a small business size standard for Radio
and Television Broadcasting and
Wireless Communications Equipment
Manufacturing, which is: All such firms
having 750 or fewer employees.
According to Census Bureau data for
2007, there were a total of 939
establishments in this category that
operated for part or all of the entire year.
According to Census bureau data for
2007, there were a total of 919 firms in
this category that operated for the entire
year. Of this total, 771 had less than 100
employees and 148 had more than 100
employees.288 Thus, under that size
standard, the majority of firms can be
considered small.
87. Audio and Video Equipment
Manufacturing. The SBA has classified
the manufacturing of audio and video
equipment under in NAICS Codes
classification scheme as an industry in
which a manufacturer is small if it has
less than 750 employees.289 Data
contained in the 2007 U.S. Census
indicate that 491 establishments
operated in that industry for all or part
of that year. In that year, 376
establishments had between 1 and 19
employees; 80 had between 20 and 99
employees; and 35 had more than 100
employees.290 Thus, under the
applicable size standard, a majority of
manufacturers of audio and video
equipment may be considered small.
88. Internet Publishing and
Broadcasting and Web Search Portals.
The Census Bureau defines this category
to include ‘‘* * * establishments
primarily engaged in (1) publishing and/
or broadcasting content on the Internet
exclusively or (2) operating Web sites
that use a search engine to generate and
maintain extensive databases of Internet
addresses and content in an easily
searchable format (and known as Web
search portals). The publishing and
broadcasting establishments in this
industry do not provide traditional
(non-Internet) versions of the content
that they publish or broadcast. They
provide textual, audio, and/or video
content of general or specific interest on
the Internet exclusively. Establishments
known as Web search portals often
provide additional Internet services,
such as e-mail, connections to other
Web sites, auctions, news, and other
limited content, and serve as a home
base for Internet users.’’
89. In this category, the SBA has
deemed an Internet publisher or Internet
broadcaster or the provider of a Web
search portal on the Internet to be small
if it has fewer than 500 employees.291
For this category of manufacturers,
Census data for 2007, which supersede
similar data from the 2002 Census, show
that there were 2,705 such firms that
operated that year.292 Of those 2,705
firms, 2,682 (approximately 99%) had
fewer than 500 employees and, thus,
would be deemed small under the
applicable SBA size standard.293
Accordingly, the majority of
establishments in this category can be
considered small under that standard.
90. Closed Captioning Services. These
entities would be indirectly affected by
our proposed action. The SBA has
developed two small business size
standards that may be used for closed
captioning services. The two size
standards track the economic census
categories, ‘‘Teleproduction and Other
Postproduction Services’’ and ‘‘Court
Reporting and Stenotype Services.’’
91. The first category of
Teleproduction and Other
Postproduction Services ‘‘comprises
establishments primarily engaged in
providing specialized motion picture or
video postproduction services, such as
editing, film/tape transfers, subtitling,
credits, closed captioning, and
animation and special effects.’’ The
relevant size standard for small
businesses in these services is an annual
revenue of less than $29.5 million.294
For this category, Census Bureau Data
for 2007 indicate that there were 1,605
firms that operated in this category for
the entire year. Of that number, 1,597
had receipts totaling less than
$29,500,000.295 Consequently we
estimate that the majority of
Teleproduction and Other
Postproduction Services firms are small
291 13
287 The
NAICS Code for this service 334220. See
13 CFR 121.201. See also https://
factfinder.census.gov/servlet/IBQTable?_bm=y&fds_name=EC0700A1&-geo_id=&-_skip=300&ds_name=EC0731SG2&-_lang=en’’.
288 See https://factfinder.census.gov/servlet/
IBQTable?_bm=y&-geo_id=&fds_name=EC0700A1&-_skip=4500&ds_name=EC0731SG3&-_lang=en..
289 13 CFR 121.201, NAICS Code 334310.
290 https://factfinder.census.gov/servlet/
IBQTable?_bm=y&-geo_id=&-_skip=300&ds_name=EC0731I1&-_lang=en.
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CFR 121.201, NAICS Code 519130.
Census Bureau, American FactFinder,
2007 Economic Census, Industry Series, Industry
Statistics by Employment Size, NAICS code 519130
(rel. Nov. 19, 2010); https://factfinder.census.gov.
293 Id.
294 U.S. Census Bureau, 2002 NAICS Definitions,
‘‘512191 Teleproduction and Other Postproduction
Services’’; https://www.census.gov/epcd/naics02/
def/NDEF512.HTM. The size standard is $29.5
million.
295 https://factfinder.census.gov/servlet/
IBQTable?_bm=y&-geo&_id=&-_skip=300&ds_name=EC0751SSSZ5&-_lang=en.
292 U.S.
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entities that might be affected by our
proposed actions.
92. The second category of Court
Reporting and Stenotype Services
‘‘comprises establishments primarily
engaged in providing verbatim reporting
and stenotype recording of live legal
proceedings and transcribing
subsequent recorded materials.’’ The
size standard for small businesses in
these services is an annual revenue of
less than $7 million.296 For this
category, Census Bureau data for 2007
show that there were 2,706 firms that
operated for the entire year. Of this
total, 2,590 had annual receipts of under
$5 million, and 19 firms had receipts of
$5 million to $9,999,999.297
Consequently, we estimate that the
majority of Court Reporting and
Stenotype Services firms are small
entities that might be affected by our
proposed action.
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4. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
93. The NPRM proposes requiring
video programming owners (‘‘VPOs’’) to
send program files to video
programming distributors (‘‘VPDs’’) and
video programming providers (‘‘VPPs’’)
either with captions, or with a dated
certification that captions are not
required for a reason stated in the
certification.298 When a program newly
becomes subject to the captioning
requirements, the NPRM proposes
requiring VPOs to provide VPDs/VPPs
with any revised certifications and
newly required captions (if captions
were not previously delivered) within
seven days of the underlying change.299
VPDs/VPPs would be required to retain
all such VPO certifications for so long
as they make the certified programming
available to end users through a
distribution method that uses IP, and for
at least one calendar year thereafter.300
94. The NPRM proposes creating a
process by which VPPs and VPOs may
petition the Commission for a full or
partial exemption of the requirements
for closed captioning of IP-delivered
video programming, which the
Commission may grant upon a finding
that the requirements would be
economically burdensome.301 The
296 U.S. Census Bureau, 2002 NAICS Definitions,
‘‘561492 Court Reporting and Stenotype Services’’;
https://www.census.gov/epcd/naics02/def/
NDEF561.HTM.The size standard is $7 million.
297 https://factfinder.census.gov/servlet/
IBQTable?_bm=y&-geo_id=&fds_name=EC0700A1&-_skip=400&ds_name=EC0756SSSZ4&-_lang=en.
298 See NPRM, Section III.D.
299 See id.
300 See id.
301 See NPRM, Section III.C.
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NPRM also proposes adopting
procedures for complaints alleging a
violation of the IP closed captioning
rules.302
5. Steps Taken To Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
95. The RFA requires an agency to
describe any significant alternatives that
it has considered in reaching its
proposed approach, which may include
the following four alternatives (among
others): (1) The establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities.303
96. We note that our discussion of
alternatives is circumscribed because of
the specificity of Sections 202(b), (c)
and 203 of the CVAA. The CVAA does,
however, recognize the special concerns
of small entities by creating an
exemption process where compliance
with the rules would be economically
burdensome. In furtherance of this
statutory requirement, the NPRM
proposes procedures enabling the
Commission to grant exemptions to the
rules governing closed captioning of IPdelivered video programming, where a
petitioner has shown it would be an
economic burden (i.e., a significant
difficulty or expense).304 This
exemption process would allow the
Commission to address the impact of
the rules on individual entities,
including smaller entities, and modify
the rules to accommodate individual
circumstances. The exemption
procedures proposed in the NPRM were
specifically designed to ameliorate the
impact of the rules for closed captioning
of IP-delivered video programming in a
manner consistent with the objective of
increasing the availability of captioned
programming.
97. Overall, in proposing rules
governing the closed captioning of IPdelivered video programming, we
believe that we have appropriately
balanced the interests of individuals
who are deaf or hard of hearing against
the interests of the entities who will be
subject to the rules, including those that
are smaller entities. Our efforts are
consistent with Congress’ goal of
302 See
id., Section III.G.
303 5 U.S.C. 603(c)(1)–(c)(4).
304 See NPRM, Section III.C.
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‘‘updat[ing] the communications laws to
help ensure that individuals with
disabilities are able to fully utilize
communications services and
equipment and better access video
programming.’’ 305
6. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rule
98. None.
B. Initial Paperwork Reduction Act of
1995 Analysis
99. This document contains proposed
new information collection
requirements. The Commission, as part
of its continuing effort to reduce
paperwork burdens, invites the general
public and the Office of Management
and Budget (OMB) to comment on the
information collection requirements
contained in this document, as required
by the Paperwork Reduction Act of
1995. In addition, pursuant to the Small
Business Paperwork Relief Act of 2002,
we seek specific comment on how we
might ‘‘further reduce the information
collection burden for small business
concerns with fewer than 25
employees.’’
C. Ex Parte Rules
100. Permit-But-Disclose. The
proceeding this NPRM initiates shall be
treated as a ‘‘permit-but-disclose’’
proceeding in accordance with the
Commission’s ex parte rules.306 Persons
making ex parte presentations must file
a copy of any written presentation or a
memorandum summarizing any oral
presentation within two business days
after the presentation (unless a different
deadline applicable to the Sunshine
period applies). Persons making oral ex
parte presentations are reminded that
memoranda summarizing the
presentation must (1) list all persons
attending or otherwise participating in
the meeting at which the ex parte
presentation was made, and (2)
summarize all data presented and
arguments made during the
presentation. If the presentation
consisted in whole or in part of the
presentation of data or arguments
already reflected in the presenter’s
written comments, memoranda or other
filings in the proceeding, the presenter
may provide citations to such data or
arguments in his or her prior comments,
memoranda, or other filings (specifying
the relevant page and/or paragraph
numbers where such data or arguments
can be found) in lieu of summarizing
305 See S. Rep. No. 111–386, 111th Cong., 2d Sess.
at 1 (2010); H.R. Rep. No. 111–563, 111th Cong., 2d
Sess. at 19 (2010).
306 47 CFR 1.1200 et seq.
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them in the memorandum. Documents
shown or given to Commission staff
during ex parte meetings are deemed to
be written ex parte presentations and
must be filed consistent with rule
1.1206(b). In proceedings governed by
rule 1.49(f) or for which the
Commission has made available a
method of electronic filing, written ex
parte presentations and memoranda
summarizing oral ex parte
presentations, and all attachments
thereto, must be filed through the
electronic comment filing system
available for that proceeding, and must
be filed in their native format (e.g., .doc,
.xml, .ppt, searchable .pdf). Participants
in this proceeding should familiarize
themselves with the Commission’s ex
parte rules.
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D. Filing Requirements
101. Comments and Replies. Pursuant
to Sections 1.415 and 1.419 of the
Commission’s rules,307 interested
parties may file comments and reply
comments on or before the dates
indicated in the DATES section of this
document. Comments may be filed
using: (1) The Commission’s Electronic
Comment Filing System (‘‘ECFS’’), (2)
the Federal Government’s eRulemaking
Portal, or (3) by filing paper copies.308
We strongly encourage commenters to
indicate which portions of their
comments and reply comments pertain
to Section 202 of the CVAA, and which
portions of their comments and reply
comments pertain to Section 203 of the
CVAA.
• Electronic Filers: Comments may be
filed electronically using the Internet by
accessing the ECFS: https://www.fcc.gov/
cgb/ecfs/’’ or the Federal eRulemaking
Portal: https://www.regulations.gov .
• Paper Filers: Parties who choose to
file by paper must file an original and
one copy of each filing. If more than one
docket or rulemaking number appears in
the caption of this proceeding, filers
must submit two additional copies for
each additional docket or rulemaking
number.
Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
Æ All hand-delivered or messengerdelivered paper filings for the
Commission’s Secretary must be
id. 1.415, 1419.
Electronic Filing of Documents in
Rulemaking Proceedings, Report and Order, 63 FR
24121, May 1, 1998.
delivered to Room TW–A325 at FCC
Headquarters, 445 12th Street, SW.,
Washington, DC 20554. All hand
deliveries must be held together with
rubber bands or fasteners. Any
envelopes must be disposed of before
entering the building. The filing hours
are 8 a.m. to 7 p.m.
Æ Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9300
East Hampton Drive, Capitol Heights,
MD 20743.
Æ U.S. Postal Service first-class,
Express, and Priority mail must be
addressed to 445 12th Street, SW.,
Washington, DC 20554.
102. Availability of Documents.
Comments, reply comments, and ex
parte submissions will be publically
available online via ECFS.309 These
documents will also be available for
public inspection during regular
business hours in the FCC Reference
Information Center, which is located in
Room CY–A257 at FCC Headquarters,
445 12th Street, SW., Washington, DC
20554. The Reference Information
Center is open to the public Monday
through Thursday from 8 a.m. to 4:30
p.m. and Friday from 8 a.m. to 11:30
a.m.
103. People with Disabilities: To
request materials in accessible formats
for people with disabilities (Braille,
large print, electronic files, audio
format), send an e-mail to
fcc504@fcc.gov or call the FCC’s
Consumer and Governmental Affairs
Bureau at 202–418–0530 (voice), 202–
418–0432 (tty).
104. Additional Information. For
additional information on this
proceeding pertaining to Section 202 of
the CVAA, contact Diana Sokolow,
Diana.Sokolow@fcc.gov, of the Policy
Division, Media Bureau, (202) 418–
2120. For additional information on this
proceeding pertaining to Section 203 of
the CVAA, contact Jeffrey Neumann,
Jeffrey.Neumann@fcc.gov, of the
Engineering Division, Media Bureau,
(202) 418–7000.
VII. Ordering Clauses
105. Accordingly, it is ordered that
pursuant to the authority contained in
sections 4(i), 4(j), 303, 330(b), 713, and
716 of the Communications Act of 1934,
as amended, 47 U.S.C. 154(i), 154(j),
303, 330(b), 613, and 617, this Notice of
Proposed Rulemaking is adopted.
106. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
307 See
308 See
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309 Documents will generally be available
electronically in ASCII, Microsoft Word, and/or
Adobe Acrobat.
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Information Center, shall send a copy of
this Notice of Proposed Rulemaking,
including the Initial Regulatory
Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small
Business Administration.
List of Subjects
47 CFR Part 15
Communications equipment,
Labeling, and Reporting and
recordkeeping requirements.
47 CFR Part 79
Cable television operators,
Multichannel video programming
distributors (MVPDs), Satellite
television service providers, Television
broadcasters.
Federal Communications Commission
Marlene H. Dortch,
Secretary.
For the reasons discussed in the
preamble, the Federal Communications
Commission proposes to amend 47 CFR
parts 15 and 79 as follows:
PART 15—RADIO FREQUENCY
DEVICES
1. The authority citation for part 15 is
revised to read as follows:
Authority: 47 U.S.C. 154, 302(a), 303, 304,
307, 330, 336, 544a, 549, and 617.
2. Section 15.119 is amended by
revising paragraph (a) to read as follows:
(a)(1) Effective July 1, 1993, all TV
broadcast receivers with picture screens
33 cm (13 in) or larger in diameter
shipped in interstate commerce,
manufactured, assembled, or imported
from any foreign country into the
United States shall comply with the
provisions of this section.
Note to paragraph (a)(1): This paragraph
places no restriction on the shipping or sale
of television receivers that were
manufactured before July 1, 1993.
(2) Effective [Effective Date of the
rule], all television receivers shipped in
interstate commerce, manufactured,
assembled, or imported from any foreign
country into the United States shall
comply with the provisions of this
section, except for television receivers
with picture screens measuring less
than 13 inches diagonally for which this
is not achievable.
*
*
*
*
*
3. Section 15.122 is amended by
revising paragraph (a)(1) to read as
follows:
(a)(1) Effective [Effective Date of the
rule], all digital television receivers and
all separately sold DTV tuners shipped
in interstate commerce, manufactured or
imported for use in the United States
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shall comply with the provisions of this
section, except for digital television
receivers with picture screens
measuring less than 13 inches
diagonally for which this is not
achievable.
*
*
*
*
*
4. Add § 15.125 to read as follows:
srobinson on DSK4SPTVN1PROD with PROPOSALS
§ 15.125 Closed caption decoder
requirements for video devices.
(a) Effective [Effective Date of the
rule], all apparatus designed to receive
or play back video programming
transmitted simultaneously with sound
manufactured or imported for use in the
United States and not subject to § 15.119
or § 15.122 of these rules, or is not a
display-only video monitor with no
playback capability shall comply with
the provisions of this section.
(b) Specific Technical Capabilities.
All apparatus subject to paragraph (a) of
this section, except exempt apparatus
and apparatus with picture screens
measuring less than 13 inches for which
these requirements are not achievable,
shall have the following technical
capabilities:
(1) All apparatus shall implement
‘‘pop-on,’’ ‘‘roll-up,’’ and ‘‘paint-on’’
presentation of captions.
(2) All apparatus shall make available
semantically significant formatting,
such as italics, text color and
underlining.
(3) All apparatus shall implement
consumer selectability of caption
availability, including turning captions
on and off, selecting font size, selecting
style, selecting color, and selecting
background color and background
opacity.
(4) All apparatus shall provide for the
user selection of language, where
available multiple languages or caption
versions are available.
(5) All apparatus shall preserve
original caption information regarding
position, font, formatting, color, style,
background, opacity, and presentation
mode and display captions with such
attributes where consumer selection of
alternative attributes has not occurred or
where consumer selection of default
attributes has occurred.
(6) All apparatus shall maintain user
selection among video viewing session
and provide the ability to preview
selection of options in this section.
5. Add § 15.126 to read as follows:
§ 15.126 Closed caption requirements for
video recording devices.
(a) Effective [Effective Date of the
rule], all apparatus designed to record
video programming transmitted
simultaneously with sound
manufactured or imported for use in the
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United States and not subject to § 15.119
or § 15.122 of these rules shall comply
with the provisions of this section, if
achievable.
(b) All devices must enable the
rendering of captions consistent with
§ 15.125 or enable the pass-through of
closed-captioning data utilizing closedcaptioning standards for transmission or
closed-captioning capable
interconnection mechanisms.
PART 79—CLOSED CAPTIONING AND
VIDEO DESCRIPTION OF VIDEO
PROGRAMMING
6. The authority citation for part 79
continues to read as follows:
Authority: 47 U.S.C. 151, 152(a), 154(i),
303, 307, 309, 310, 613.
7. Add § 79.4 to read as follows:
§ 79.4 Closed captioning of video
programming delivered using Internet
protocol.
(a) Definitions. For purposes of this
section the following definitions shall
apply:
(1) Video programming. Programming
provided by, or generally considered
comparable to programming provided
by, a television broadcast station, but
not including consumer-generated
media.
(2) Full-length video programming.
Video programming that is not video
clips or outtakes.
(3) Video programming distributor or
video programming provider. Any entity
that makes available directly to the end
user video programming through a
distribution method that uses Internet
protocol.
(4) Video programming owner. Any
person or entity that owns the copyright
of the video programming delivered to
the end user through a distribution
method that uses Internet protocol.
(5) Internet protocol. Includes
Transmission Control Protocol and any
successor protocol or technology to
Internet protocol.
(6) Closed captioning. The visual
display of the audio portion of video
programming.
(7) Live programming. Video
programming that is shown on
television substantially simultaneously
with its performance.
(8) Near-live programming. Video
programming that is substantively
recorded and produced within 12 hours
of its distribution to television viewers.
(9) Prerecorded programming. Video
programming that is not ‘‘live’’ or ‘‘nearlive.’’
(10) Edited for Internet distribution.
Video programming whose television
version is substantially edited prior to
its Internet distribution.
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(11) Consumer-generated media.
Content created and made available by
consumers to online Web sites and
services on the Internet, including
video, audio, and multimedia content.
(12) Video clips. Small sections of a
larger video programming presentation.
(13) Outtakes. Content that is not used
in an edited version of video
programming shown on television.
(14) Nonexempt programming. Video
programming that is not exempted
under paragraph (e) of this section and,
accordingly, is subject to closed
captioning requirements set forth in this
section.
(b) Requirements for closed
captioning of Internet protocol-delivered
video programming. All nonexempt fulllength video programming delivered
using Internet protocol must be
provided with closed captions if the
programming was published or
exhibited on television in the United
States with captions after [Effective Date
of the rule], in accordance with the
following schedule:
(1) As of [Date six months after the
rule is published in the Federal
Register], all prerecorded programming
that is not edited for Internet
distribution must be provided with
captions.
(2) As of [Date 12 months after the
rule is published in the Federal
Register], all live and near-live
programming must be provided with
captions.
(3) As of [Date 18 months after the
rule is published in the Federal
Register], all prerecorded programming
that is edited for Internet distribution
must be provided with captions.
(c) Obligations of video programming
owners, distributors and providers.
(1) Obligations of video programming
owners. Video programming owners
must:
(i) Send program files to video
programming distributors and providers
either with captions as required by this
section, or with a dated certification that
captions are not required for a specified
reason.
(ii) Provide video programming
distributors and providers with any
revised certifications and newly
required captions (if captions were not
previously delivered) within seven days
of the underlying change.
(2) Obligations of video programming
distributors and providers. Video
programming distributors and providers
must:
(i) Enable the rendering or pass
through of all required captions to the
end user.
(ii) Retain all certifications received
from video programming owners
E:\FR\FM\28SEP1.SGM
28SEP1
srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
pursuant to § 79.4(c)(1)(i) and (ii) for so
long as the video programming
distributor or provider makes the
certified programming available to end
users through a distribution method that
uses Internet protocol and thereafter for
at least one calendar year.
(iii) Make required captions available
within five days of the receipt of an
updated certification pursuant to
§ 79.4(c)(1)(ii).
(3) A video programming provider or
owner’s de minimis failure to comply
with this section shall not be treated as
a violation of the requirements.
(4) A video programming distributor,
provider, or owner may meet the
requirements of this section through
alternate means if the requirements of
this section are met, as determined by
the Commission.
(d) Determination of compliance. To
be considered captioned, the quality of
the captioning of IP-delivered video
programming must be at least equal to
the quality of the captioning of that
programming when shown on
television. In evaluating quality, the
Commission may consider such factors
as completeness, placement, accuracy,
and timing.
(e) Procedures for exemptions based
on economic burden. (1) A video
programming provider or owner may
petition the Commission for a full or
partial exemption from the closed
captioning requirements of this section,
which the Commission may grant upon
a finding that the requirements would
be economically burdensome.
(2) The petitioner must support a
petition for exemption with sufficient
evidence to demonstrate that
compliance with the requirements for
closed captioning of video programming
delivered via Internet protocol would be
economically burdensome. The term
‘‘economically burdensome’’ means
imposing significant difficulty or
expense. The Commission will consider
the following factors when determining
whether the requirements for closed
captioning of Internet protocoldelivered video programming would be
economically burdensome:
(i) The nature and cost of the closed
captions for the programming;
(ii) The impact on the operation of the
video programming provider or owner;
(iii) The financial resources of the
video programming provider or owner;
and
(iv) The type of operations of the
video programming provider or owner.
(3) In addition to these factors, the
petitioner must describe any other
factors it deems relevant to the
Commission’s final determination and
any available alternatives that might
VerDate Mar<15>2010
17:03 Sep 27, 2011
Jkt 223001
constitute a reasonable substitute for the
closed captioning requirements of this
section including, but not limited to,
text or graphic display of the content of
the audio portion of the programming.
The Commission will evaluate
economic burden with regard to the
individual outlet or programming.
(4) The petitioner must file an original
and two (2) copies of a petition
requesting an exemption based on the
economically burdensome standard in
this paragraph, and all subsequent
pleadings, in accordance with § 0.401(a)
of this chapter.
(5) The Commission will place the
petition on public notice.
(6) Any interested person may file
comments or oppositions to the petition
within 30 days of the public notice of
the petition. Within 20 days of the close
of the comment period, the petitioner
may reply to any comments or
oppositions filed.
(7) Persons that file comments or
oppositions to the petition must serve
the petitioner with copies of those
comments or oppositions and must
include a certification that the petitioner
was served with a copy.
Parties filing replies to comments or
oppositions must serve the commenting
or opposing party with copies of such
replies and shall include a certification
that the party was served with a copy.
(8) Upon a finding of good cause, the
Commission may lengthen or shorten
any comment period and waive or
establish other procedural requirements.
(9) Persons filing petitions and
responsive pleadings must include a
detailed, full showing, supported by
affidavit, of any facts or considerations
relied on.
(10) The Commission may deny or
approve, in whole or in part, a petition
for an economic burden exemption from
the closed captioning requirements of
this section. The Commission shall act
to deny or approve any such petition, in
whole or in part, within 6 months after
the Commission receives such petition,
unless the Commission finds that an
extension of the 6-month period is
necessary to determine whether such
requirements are economically
burdensome.
(11) During the pendency of an
economic burden determination, the
Commission will consider the video
programming provider or owner subject
to the request for exemption as exempt
from the requirements of this section.
(f) Complaint procedures. (1)
Complaints concerning an alleged
violation of the closed captioning
requirements of this section shall be
filed with the Commission. A complaint
must be in writing and must include:
PO 00000
Frm 00064
Fmt 4702
Sfmt 4702
59989
(i) The name and address of the
complainant;
(ii) The name and postal address, Web
site, or e-mail address of the video
programming distributor, provider, and/
or owner against whom the complaint is
alleged, and information sufficient to
identify the video programming
involved;
(iii) Information sufficient to identify
the software or device used to view the
program;
(iv) A statement of facts sufficient to
show that the video programming
distributor, provider, and/or owner has
violated or is violating the
Commission’s rules, and, if applicable,
the date and time of the alleged
violation;
(v) The specific relief or satisfaction
sought by the complainant; and
(vi) The complainant’s preferred
format or method of response to the
complaint (such as letter, facsimile
transmission, telephone (voice/TRS/
TTY), e-mail, or some other method that
would best accommodate the
complainant).
(2) The Commission will forward
complaints to the named video
programming distributor, provider, and/
or owner, as well as to any other video
programming distributor, provider, and/
or owner that Commission staff
determines may be involved. The video
programming distributor, provider, and/
or owner must respond to the complaint
in writing, to the Commission and the
complainant, within the time that the
Commission specifies when forwarding
the complaint, generally within thirty
(30) days. The Commission may specify
response periods longer than 30 days on
a case-by-case basis.
(3) In response to a complaint, video
programming distributors, providers,
and/or owners shall file with the
Commission sufficient records and
documentation to prove that the
responding entity was (and remains) in
compliance with the Commission’s
rules. Conclusory or insufficiently
supported assertions of compliance will
not carry a video programming
distributor’s, provider’s, or owner’s
burden of proof.
(4) The Commission will review all
relevant information provided by the
complainant and the subject video
programming distributors, providers,
and/or owners, as well as any additional
information the Commission deems
relevant from its files or public sources.
The Commission may request additional
information from any relevant parties
when, in the estimation of Commission
staff, such information is needed to
investigate the complaint or adjudicate
potential violation(s) of Commission
E:\FR\FM\28SEP1.SGM
28SEP1
59990
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
rules. When the Commission requests
additional information, parties to whom
such requests are addressed must
provide the requested information
within the time period the Commission
specifies.
(5) To demonstrate closed captioning
compliance, video programming
distributors or providers may rely on
certifications from video programming
owners, as provided for in § 79.4(c)(1)(i)
and (ii), unless, at any time, the video
programming distributor or provider
seeking to rely upon the certification
knew or should have known that the
certification was false or erroneous. The
Commission may take enforcement
action against video programming
distributors, providers, or owners with
respect to false or erroneous
certifications.
(6) If the Commission finds that a
video programming distributor,
provider, or owner has violated the
closed captioning requirements of this
section, it may employ the full range of
sanctions and remedies available under
the Act against any or all of the
violators.
(g) Private rights of action prohibited.
Nothing in this section shall be
construed to authorize any private right
of action to enforce any requirement of
this section. The Commission shall have
exclusive jurisdiction with respect to
any complaint under this section.
[FR Doc. 2011–24703 Filed 9–22–11; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R8–ES–2010–0076; MO
92210–0–0009]
RIN 1018–AX18
Endangered and Threatened Wildlife
and Plants; Revised Endangered
Status, Revised Critical Habitat
Designation, and Taxonomic Revision
for Monardella linoides ssp. viminea
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
comment period.
srobinson on DSK4SPTVN1PROD with PROPOSALS
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), announce the
reopening of the comment period on the
June 9, 2011, proposed rule to revise the
listing and critical habitat designation
for Monardella viminea (willowy
monardella) under the Endangered
Species Act of 1973, as amended (Act)
SUMMARY:
VerDate Mar<15>2010
17:03 Sep 27, 2011
Jkt 223001
(76 FR 33880). We also announce the
availability of a draft economic analysis
(DEA) of the proposed revised
designation of critical habitat for
Monardella viminea and an amended
required determinations section of the
proposal. In the proposed rule that
published June 9, 2011 (76 FR 33880),
we recognized the taxonomic split of the
listed entity, Monardella linoides ssp.
viminea, into two distinct full species:
Monardella viminea (willowy
monardella) and Monardella stoneana
(Jennifer’s monardella). We proposed to
retain the listing status of Monardella
viminea as endangered; we proposed to
remove protections afforded by the Act
from those individuals now recognized
as a separate species, Monardella
stoneana, because the new species does
not meet the definition of endangered or
threatened under the Act; and we
proposed revised critical habitat for
Monardella viminea. We are reopening
the comment period to allow all
interested parties an opportunity to
comment simultaneously on the
proposed listing determinations and
critical habitat designation, the
associated DEA, and the amended
required determinations section.
Comments previously submitted need
not be resubmitted, as they will be fully
considered in preparation of the final
rule.
DATES: We will consider comments
received on or before October 28, 2011.
Comments must be received by 11:59
p.m. Eastern Time on the closing date.
Any comments that we receive after the
closing date may not be considered in
the final decision on this action.
ADDRESSES: You may submit written
comments by one of the following
methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. Search for Docket
No. FWS–R8–ES–2010–0076, which is
the docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–R8–ES–2010–
0076; Division of Policy and Directives
Management; U.S. Fish and Wildlife
Service; 4401 N. Fairfax Drive, MS
2042–PDM; Arlington, VA 22203.
We will post all comments on
https://www.regulations.gov. This
generally means that we will post any
personal information you provide us
(see the Public Comments section below
for more information).
FOR FURTHER INFORMATION CONTACT: Jim
Bartel, Field Supervisor, U.S. Fish and
Wildlife Service, Carlsbad Fish and
Wildlife Office, 6010 Hidden Valley
Road, Suite 101, Carlsbad, CA 92011;
PO 00000
Frm 00065
Fmt 4702
Sfmt 4702
telephone 760–431–9440; facsimile
760–431–5901. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and
information during this reopened
comment period on our proposed
revised designation of critical habitat for
Monardella viminea published in the
Federal Register on June 9, 2011 (76 FR
33880), our DEA of the proposed
designation, and the amended required
determinations provided in this
document. We will consider comments
and information from all interested
parties. We are particularly interested in
comments and information concerning:
(1) Specific information regarding our
recognition of Monardella viminea and
M. stoneana at the species rank, on the
segregation of ranges of M. stoneana and
M. viminea, and on our proposals that
M. viminea should remain listed as
endangered and that M. stoneana does
not warrant listing under the Act (16
U.S.C. 1531 et seq.).
(2) Any available information on
known or suspected threats and
proposed or ongoing development
projects with the potential to threaten
either Monardella viminea or M.
stoneana.
(3) The effects of potential threat
factors to both Monardella viminea and
M. stoneana that are the basis for a
listing determination under section 4(a)
of the Act, which are:
(a) The present or threatened
destruction, modification, or
curtailment of the species’ habitat or
range;
(b) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(c) Disease or predation;
(d) The inadequacy of existing
regulatory mechanisms; or
(e) Other natural or manmade factors
affecting its continued existence.
(4) Specific information regarding
impacts of fire on Monardella viminea
or M. stoneana individuals or their
habitat.
(5) The reasons why we should or
should not designate habitat as ‘‘critical
habitat’’ under section 4 of the Act for
Monardella viminea including whether
there are threats to the species from
human activity, the degree of which can
be expected to increase due to the
designation, and whether that increase
in threats outweighs the benefit of
designation such that the designation of
critical habitat may not be prudent.
(6) Specific information on:
E:\FR\FM\28SEP1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Proposed Rules]
[Pages 59963-59990]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24703]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 15 and 79
[MB Docket No. 11-154; FCC 11-138]
Closed Captioning of Internet Protocol-Delivered Video
Programming: Implementation of the Twenty-First Century Communications
and Video Accessibility Act of 2010
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission proposes rules to implement
provisions of the Twenty-First Century Communications and Video
Accessibility Act of 2010 (``CVAA'') that mandate rules for closed
captioning of certain video programming delivered using Internet
protocol (``IP''). The Commission seeks comment on rules that would
apply to the distributors, providers, and owners of IP-delivered video
programming, as well as the devices that display such programming.
DATES: Comments are due on or before October 18, 2011; reply comments
are due on or before October 28, 2011. Written PRA comments on the
proposed information collection requirements contained herein must be
submitted by the public, Office of Management and Budget (OMB), and
other interested parties on or before November 28, 2011.
ADDRESSES: You may submit comments, identified by MB Docket No. 11-154
by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Electronic Comment
Filing System (ECFS) Web Site: https://fjallfoss.fcc.gov/ecfs/. Follow
the instructions for submitting comments.
Mail: Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail. All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act proposed information collection
requirements contained herein should be submitted to the Federal
Communications Commission via e-mail to PRA@fcc.gov and to Nicholas A.
Fraser, Office of Management and Budget, via e-mail to Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-5167. For detailed
instructions for submitting comments and additional information on the
rulemaking process, see the SUPPLEMENTARY INFORMATION section of this
document.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding pertaining to Section 202 of the CVAA, contact Diana
Sokolow, Diana.Sokolow@fcc.gov, of the Policy Division, Media Bureau,
(202) 418-2120. For additional information on this proceeding
pertaining to Section 203 of the CVAA, contact Jeffrey Neumann,
Jeffrey.Neumann@fcc.gov, of the Engineering Division, Media Bureau,
(202) 418-7000. For additional information concerning the Paperwork
Reduction Act information collection requirements contained in this
document, send an e-mail to PRA@fcc.gov or contact Cathy Williams at
(202) 418-2918.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking, FCC 11-138, adopted and released on September
19, 2011. The full text is available for public inspection and copying
during regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street, SW., CY-257, Washington, DC
20554. This document will also be available via ECFS at https://fjallfoss.fcc.gov/ecfs/. Documents will be available electronically in
ASCII, Word 97, and/or Adobe Acrobat. The complete text may be
purchased from the Commission's copy contractor, 445 12th Street, SW.,
Room CY-B402, Washington, DC 20554. Alternative formats are available
for people with disabilities (Braille, large print, electronic files,
audio format), by sending an e-mail to fcc504@fcc.gov or calling the
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530
(voice), (202) 418-0432 (TTY).
This document contains proposed information collection
requirements. As part of its continuing effort to reduce paperwork
burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44
U.S.C. 3501-3520), the Federal Communications Commission invites the
general public and other Federal agencies to comment on the following
information collection(s). Public and agency comments are due November
28, 2011.
Comments should address: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment
on how we might ``further reduce the information collection burden for
small business concerns with fewer than 25 employees.''
To view or obtain a copy of this information collection request
(ICR) submitted to OMB: (1) Go to this OMB/GSA Web page: https://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the Web
page called ``Currently Under Review,'' (3) click on the downward-
pointing arrow in the ``Select Agency'' box below the ``Currently Under
Review'' heading, (4) select ``Federal Communications Commission'' from
the list of agencies presented in the ``Select Agency'' box, (5) click
the ``Submit'' button to the right of the ``Select Agency'' box, and
(6) when the list of FCC ICRs currently under review appears, look for
the OMB control number of this ICR as show in the SUPPLEMENTARY
INFORMATION section below (or its title if there is no OMB control
number) and then click on the ICR Reference Number. A copy of the FCC
submission to OMB will be displayed.
OMB Control Number: 3060-XXXX.
Title: Section 79.4, Closed Captioning of Video Programming
Delivered Using Internet Protocol.
Form Number: Not applicable.
Type of Review: New collection.
[[Page 59964]]
Respondents: Individuals or households; Businesses or other for-
profit entities; Not-for-profit institutions.
Number of Respondents and Responses: 1,140 respondents; 12,225
responses.
Estimated Time per Response: 0.084-5 hours.
Frequency of Response: On occasion reporting requirement;
Recordkeeping requirement.
Obligation to Respond: Voluntary and required to obtain or retain
benefits. The statutory authority for this collection of information is
contained in 47 U.S.C. 154(i), 154(j), 303(r), and 613.
Total Annual Burden: 6,140 hours.
Total Annual Costs: $420,000.
Privacy Act Impact Assessment: Yes. The Privacy Impact Assessment
(PIA) was completed on June 28, 2007. It may be reviewed at: https://www.fcc.gov/omd/privacyact/Privacy_Impact_Assessment.html. The
Commission is in the process of updating the PIA to incorporate various
revisions made to the SORN.
Nature and Extent of Confidentiality: Confidentiality is an issue
to the extent that individuals and households provide personally
identifiable information, which is covered under the FCC's system of
records notice (SORN), FCC/CGB-1, ``Informal Complaints and
Inquiries.'' As required by the Privacy Act, 5 U.S.C. 552a, the
Commission also published a SORN, FCC/CGB-1 ``Informal Complaints and
Inquiries'', in the Federal Register on December 15, 2009 (74 FR 66356)
which became effective on January 25, 2010.
Needs and Uses: The Commission is seeking approval for this
proposed information collection from the Office of Management and
Budget (OMB). On September 19, 2011, the Commission released a Notice
of Proposed Rulemaking, MB Docket No. 11-154; FCC 11-138. This
rulemaking proposed information collection requirements that support
the Commission's IP closed captioning rules that would be codified at
47 CFR 79.4, as required by the CVAA.
The proposed information collection requirements consist of:
Certifications if Captions Are Not Required
Pursuant to proposed 47 CFR 79.4(c)(1)(i), video programming owners
must send program files to video programming distributors and providers
either with captions as required by Section 79.4, or with a dated
certification that captions are not required for a specified reason.
Pursuant to proposed 47 CFR 79.4(c)(1)(ii), video programming
owners must provide video programming distributors and providers with
any revised certifications and newly required captions (if captions
were not previously delivered) within seven days of the underlying
change.
Pursuant to proposed 47 CFR 79.4(c)(2)(ii), video programming
distributors and providers must retain all certifications received from
video programming owners pursuant to proposed 47 CFR 79.4(c)(1)(i)-(ii)
for so long as the video programming distributor or provider makes the
certified programming available to end users through a distribution
method that uses IP and thereafter for at least one calendar year.
Petitions for Exemption Based on ``Economic Burden''
Pursuant to proposed 47 CFR 79.4(e), a video programming provider
or owner may petition the Commission for a full or partial exemption
from the closed captioning requirements for IP-delivered video
programming based upon a showing that they would be economically
burdensome.
Petitions for exemption must by filed with the Commission, placed
on Public Notice, and be subject to comment from the public.
Complaints Alleging Violations of the Closed Captioning Rules for IP-
Delivered Video Programming
Pursuant to proposed 47 CFR 79.4(f)(1), a complaint alleging a
violation of the closed captioning rules for IP-delivered video
programming may be filed with the Commission. Proposed 47 CFR
79.4(f)(1) would require such a complaint to be in writing, and to
include:
The name and address of the complainant;
The name and postal address, Web site, or e-mail address of the
video programming distributor, provider, and/or owner against whom the
complaint is alleged, and information sufficient to identify the video
programming involved;
Information sufficient to identify the software or device used to
view the program;
A statement of facts sufficient to show that the video programming
distributor, provider, and/or owner has violated or is violating the
Commission's rules, and, if applicable, the date and time of the
alleged violation;
The specific relief or satisfaction sought by the complainant; and
The complainant's preferred format or method of response to the
complaint (such as letter, facsimile transmission, telephone (voice/
TRS/TTY), e-mail, or some other method that would best accommodate the
complainant).
The Commission is seeking OMB approval for the proposed information
collection requirements.
Summary of the Notice of Proposed Rulemaking
I. Introduction
1. The Twenty-First Century Communications and Video Accessibility
Act of 2010 (``CVAA'') requires the Federal Communications Commission
(``Commission'') to revise its regulations to mandate closed captioning
on certain video programming delivered using Internet protocol
(``IP'').\1\ In this Notice of Proposed Rulemaking (``NPRM''), we
initiate a proceeding that will fulfill this requirement. We seek
comment on proposals that would better enable individuals who are deaf
or hard of hearing to view IP-delivered video programming, by requiring
that programming be provided with closed captions if it was shown on
television with captions after the effective date of the rules adopted
pursuant to this proceeding. We also seek comment on requirements for
the devices that are subject to the CVAA's new closed captioning
requirements.\2\ Our goal is to require the provision of closed
captions with IP-delivered video programming in the manner most helpful
to consumers, while ensuring that our regulations do not create undue
economic burdens for the distributors, providers, and owners of online
video programming.
---------------------------------------------------------------------------
\1\ Public Law 111-260, 124 Stat. 2751, Sec. 202(b) (2010). See
also Amendment of Twenty-First Century Communications and Video
Accessibility Act of 2010, Public Law 111-265, 124 Stat. 2795 (2010)
(making technical corrections to the CVAA).
\2\ See Public Law 111-260, Sec. 203.
---------------------------------------------------------------------------
2. Closed captioning is an assistive technology that provides
individuals who are deaf or hard of hearing with access to television
programming. Closed captioning displays the audio portion of a
television signal as printed words on the television screen. Existing
regulations require the use of closed captioning on television.\3\
Until now, however, closed captioning has not been required for IP-
delivered video programming. That changed with the enactment of the
CVAA. Specifically, Section 202(b) of the CVAA revised Section 713 of
the Communications Act of 1934, as amended (the ``Act''), to require
the Commission to ``revise its regulations to require the provision of
[[Page 59965]]
closed captioning on video programming delivered using Internet
protocol that was published or exhibited on television with captions
after the effective date of such regulations.\4\
---------------------------------------------------------------------------
\3\ See 47 CFR 79.1 (setting forth the requirements for closed
captioning of video programming on television).
\4\ 47 U.S.C. 613(c)(2)(A).
---------------------------------------------------------------------------
3. The CVAA also required the Chairman of the Commission to
establish an advisory committee known as the Video Programming
Accessibility Advisory Committee (``VPAAC'').\5\ Section 201(e)(1) of
the CVAA required the VPAAC to submit a report on closed captioning to
the Commission six months after its first meeting, or by July 13,
2011.\6\ The VPAAC submitted this report on July 12, 2011.\7\ By
statute, within six months of the submission of the VPAAC Report, the
Commission must issue final regulations to require the provision of
closed captioning on IP-delivered video programming.\8\ Accordingly,
the Commission must revise its regulations by January 12, 2012.\9\ By
the same date, pursuant to Section 203 of the CVAA, the Commission must
revise its regulations to include any technical standards, protocols,
and procedures needed for the transmission of closed captioning
delivered using IP, to ensure that certain apparatus are capable of
rendering, passing through, or otherwise permitting the display of
closed captions for end users.\10\
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\5\ Public Law 111-260, Sec. 201(a) (providing that, within 60
days of the CVAA's enactment, the Chairman must establish an
advisory committee). The CVAA was enacted on October 8, 2010, and
the Commission announced the establishment of the VPAAC on December
7, 2010. See Notice, Video Programming and Emergency Access Advisory
Committee Announcement of Members, DA 10-2320, 76 FR 2686, January
14, 2011; see also Public Notice, Erratum, Video Programming and
Emergency Access Advisory Committee Announcement of Members (rel.
Jan. 7, 2011). Although in the CVAA, this advisory committee is
formally known as the ``Video Programming and Emergency Access
Advisory Committee,'' its working name was shortened to the ``Video
Programming Accessibility Advisory Committee'' in order to avoid
confusion with a second advisory committee required by the CVAA that
is addressing 9-1-1 emergency access issues. See Public Law 111-260,
Sec. 106 (directing the Commission to establish an ``Emergency
Access Advisory Committee'').
\6\ Section 201(e)(1) of the CVAA required the VPAAC's report to
include:
(A) A recommended schedule of deadlines for the provision of
closed captioning service.
(B) An identification of the performance objectives for
protocols, technical capabilities, and technical procedures needed
to permit content providers, content distributors, Internet service
providers, software developers, and device manufacturers to reliably
encode, transport, receive, and render closed captions of video
programming, except for consumer generated media, delivered using
Internet protocol.
(C) An identification of additional protocols, technical
capabilities, and technical procedures beyond those available as of
the date of enactment of the [CVAA] for the delivery of closed
captions of video programming, except for consumer generated media,
delivered using Internet protocol that are necessary to meet the
performance objectives identified under subparagraph (B).
(D) A recommendation for technical standards to address the
performance objectives identified in subparagraph (B).
(E) A recommendation for any regulations that may be necessary
to ensure compatibility between video programming, except for
consumer generated media, delivered using Internet protocol and
devices capable of receiving and displaying such programming in
order to facilitate access to closed captions.
Public Law 111-260, Sec. 201(e)(1).
\7\ See First Report of the Video Programming Accessibility
Advisory Committee on the Twenty-First Century Communications and
Video Accessibility Act of 2010: Closed Captioning of Video
Programming Delivered Using Internet Protocol, July 12, 2011,
available at https://transition.fcc.gov/cgb/dro/VPAAC/First_VPAAC_Report_to_the_FCC_7-11-11_FINAL.pdf (``VPAAC Report'').
\8\ 47 U.S.C. 613(c)(2)(A).
\9\ See id.
\10\ Public Law 111-260, Sec. 203(a)-(b), (d).
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We consider below revisions to our rules that would implement the
requirements of Sections 202(b) and 203 of the CVAA, as well as the
conforming amendment set forth in Section 202(c) of the CVAA. These
proposals could fulfill Congress' goal of enabling consumers who are
deaf or hard of hearing to have access to IP-delivered video
programming. As discussed below, we seek comment on rule changes that
would:
Specify the obligations of entities subject to Section
202(b) by:
Requiring video programming owners to send required
caption files for IP-delivered video programming to video programming
distributors and video programming providers along with program files;
Requiring video programming distributors and video
programming providers to enable the rendering or pass through of all
required captions to the end user; and
Requiring the quality of all required captioning of IP-
delivered video programming to be of at least the same quality as the
captioning of the same programming when shown on television; \11\
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\11\ See Section III.A., infra. As discussed below, a covered
entity may be permitted to improve upon the quality of the
captioning of IP-delivered video programming.
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Create a schedule of deadlines by which:
[cir] All prerecorded and unedited programming subject to the new
requirements must be captioned within six months of publication of the
rules in the Federal Register;
[cir] All live and near-live programming subject to the new
requirements must be captioned within 12 months of publication of the
rules in the Federal Register; and
[cir] All prerecorded and edited programming subject to the new
requirements must be captioned within 18 months of publication of the
rules in the Federal Register; \12\
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\12\ See Section III.B., infra.
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Craft procedures by which video programming providers and
video programming owners may petition the Commission for exemptions
from the new requirements based on economic burden; \13\
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\13\ See Section III.C., infra.
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Establish a mechanism to make information about video
programming subject to the CVAA available to video programming
providers and distributors, by requiring video programming owners to
provide programming for IP delivery either with captions, or with a
certification that captions are not required for a stated reason; \14\
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\14\ See Section III.D., infra.
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Decline to adopt particular technical standards for IP-
delivered video programming; \15\
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\15\ See Section III.E., infra.
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Decline to treat a de minimis failure to comply with the
new rules as a violation, and permit entities to comply with the new
requirements by alternate means; \16\ and
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\16\ See Section III.F., infra.
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Adopt procedures for complaints alleging a violation of
the new requirements.\17\ Additionally, we seek comment on the
appropriate requirements for devices subject to the closed captioning
requirements of Section 203.\18\
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\17\ See Section III.G., infra.
\18\ See Section IV., infra.
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II. Background
A. History of Closed Captioning
5. Captions first appeared on television in the early 1970s in an
``open captioning format'' by which the text was transmitted with the
video in a manner that was visible to all viewers.\19\ In 1977, the
Commission adopted rules providing that line 21 of the vertical
blanking interval (``VBI'') would be used primarily for the
transmission of closed captioning to analog receivers.\20\ For
[[Page 59966]]
analog television, closed captioning is transmitted through encoded
data within the television signal's VBI ``which, when decoded, provides
a visual depiction of information simultaneously being presented on the
aural channel (captions).\21\ Since closed captioning is hidden as
encoded data transmitted within the television signal, receivers can be
(and are) designed to allow consumers to turn the captioning on and
off.\22\ In addition to displaying the audio portion of a television
signal as printed words, captions may identify speakers, sound effects,
music, and laughter.\23\
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\19\ See Closed Captioning and Video Description of Video
Programming, Implementation of Section 305 of the Telecommunications
Act of 1996, Video Programming Accessibility, FCC 96-318, 61 FR
42249, August 14, 1996.
\20\ See TV Captioning for the Deaf, Report and Order, 63 FCC 2d
378 (1977). See also Permissible Uses of the Vertical Blanking
Interval, FCC 93-235, 58 FR 29981, May 25, 1993 (permitting enhanced
closed captioning and other broadcast-related information services
on line 21, field 2 of the VBI).
\21\ 47 CFR 73.682(a)(22)(i).
\22\ See 2008 Closed Captioning Order, FCC 08-255, 74 FR 1594,
January 13, 2009 (``2008 Closed Captioning Order'').
\23\ See id.
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6. The Television Decoder Circuitry Act of 1990 (``TDCA'') \24\
required all television receivers with screen sizes of 13 inches or
larger, manufactured or sold in the United States, to possess closed
captioning capability.\25\ In the years that followed, the use of
closed captioning increased somewhat, through the voluntary efforts of
the video programming industry.\26\ As the number of channels of video
programming increased, Congress remained concerned that ``video
programming through all delivery systems should be accessible'' to
individuals who are deaf or hard of hearing.\27\
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\24\ Public Law 101-431, 104 Stat. 960 (1990) (codified at 47
U.S.C. 303(u), 330(b)).
\25\ See TDCA Order, FCC 91-119, 56 FR 27200, June 13, 1991
(``TDCA Order'').
\26\ See 1997 Closed Captioning Order, FCC 97-279, 62 FR 48487,
September 16, 1997 (``1997 Closed Captioning Order''), recon.
granted in part, FCC 98-236, 63 FR 55959, October 20, 1998.
\27\ H.R. Rep. No. 104-204, 104th Cong., 1st Sess. at 113-14
(1995).
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7. In the Telecommunications Act of 1996, Congress added a new
section entitled ``Video Programming Accessibility'' to the Act.\28\ To
ensure access for individuals with hearing disabilities, Section 713 of
the Act requires the closed captioning of video programming.\29\ In
1997, the Commission adopted rules and implementation schedules for
closed captioning of video programming, as required by Section 713.\30\
The schedules varied based on whether programming is analog or digital,
Spanish or English, and whether it is pre-rule (i.e., older) or new
programming. Today, all new English and Spanish language television
programming that is subject to the rule must be provided with closed
captions,\31\ and 75 percent of pre-rule English language television
programming that is subject to the rule must be provided with closed
captions.\32\ In 2000, the Commission adopted rules governing the
display of captions on digital receivers, and the Commission's rules
now specify technical standards for the reception and display of
captioning on both analog and digital receivers.\33\
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\28\ See Section 305 of the Telecommunications Act of 1996,
Public Law 104-104, 110 Stat. 56 (codified at 47 U.S.C. 613).
\29\ 47 U.S.C. 613.
\30\ See generally 1997 Closed Captioning Order.
\31\ 47 CFR 79.1(b)(1)(iv), 79.1(b)(3)(iv).
\32\ 47 CFR 79.1(b)(2)(ii). As of January 1, 2012, 75 percent of
pre-rule Spanish language television programming that is subject to
the rule will be required to be provided with closed captions. See
47 CFR 79.1(b)(4)(ii).
\33\ 47 CFR 15.119, 15.122.
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B. IP-Delivered Closed Captioning and Sections 202(b) and (c) of the
CVAA
8. Today, IP-delivered video programming takes a number of forms,
such as programming delivered to a personal computer, tablet device,
cellular telephone, game console, Blu-ray player, or set top box. The
Commission previously recognized that the Internet has become a
powerful method of video programming distribution, and that the amount
of video content available on the Internet is continuing to increase
significantly each year, as consumers increasingly utilize the Internet
for this purpose.\34\ The Internet's role in video programming delivery
``has progressed from negligible just a few years ago to an
increasingly mainstream role today.'' \35\ Although much IP-delivered
video programming remains inaccessible to individuals who are deaf or
hard of hearing, certain entities have taken voluntarily measures to
begin including captions on some of their programming.\36\
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\34\ Applications of Comcast Corp., General Electric Co. and NBC
Universal, Inc. For Consent to Assign Licenses and Transfer Control
of Licenses, Memorandum Opinion and Order, 26 FCC Rcd 4238, 4256,
para. 41 (2011) (``Comcast-NBCU Order'').
\35\ Id. at 4262, para. 60.
\36\ For example, we are aware that Apple, CBS, Comcast, DISH,
Disney/ABC, Fox, Hulu, NBC, Netflix, Time Warner Cable, and YouTube/
Google currently provide captions for certain IP-delivered video
programming.
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9. Through the CVAA, Congress sought to ``update the communications
laws to help ensure that individuals with disabilities are able to
fully utilize communications services and equipment and better access
video programming.'' \37\ The Committee reports state that, while
modern technology such as the Internet has everyday benefits, those
benefits are not always accessible to people with disabilities.\38\
Section 202(b) of the CVAA requires the Commission to revise its
regulations to require closed captioning of IP-delivered video
programming that was shown on television with captions after the
effective date of the new regulations.\39\
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\37\ See S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010);
H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19 (2010).
\38\ See S. Rep. No. 111-386 at 1-2; H.R. Rep. No. 111-563 at
19.
\39\ The CVAA defines ``Internet protocol'' as including
``Transmission Control Protocol and a successor protocol or
technology to Internet protocol.'' Public Law 111-260, Sec. 206(5).
---------------------------------------------------------------------------
10. The CVAA applies broadly to the distributors, providers, and
owners of IP-delivered video programming. Specifically, Section 202(b)
of the CVAA amends Section 713 of the Act to require the Commission's
regulations to ``include an appropriate schedule of deadlines for the
provision of closed captioning, taking into account whether such
programming is prerecorded and edited for Internet distribution, or
whether such programming is live or near-live and not edited for
Internet distribution.\40\ The Commission may delay or waive the
requirements if application to live IP-delivered video programming is
``economically burdensome to providers of video programming or program
owners, '' \41\ and it may exempt a ``service, class of service,
program, class of program, equipment, or class of equipment for which
the Commission has determined that the application of such regulations
would be economically burdensome for the provider of such service,
program, or equipment. '' \42\ Section 202(b) of the CVAA also requires
the Commission to ``establish a mechanism to make available to video
programming providers and distributors information on video programming
subject to the [CVAA] on an ongoing basis. '' \43\ Section 202(b)
further directs the Commission not to find that a de minimis failure is
a violation,\44\ and to permit entities to meet the new requirements by
alternate means.\45\ Finally, Section 202(c) of the CVAA consists of a
``conforming amendment'' to Section 713(d) of the Act, regarding the
process for petitioning for an exemption.\46\
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\40\ 47 U.S.C. 613(c)(2)(B).
\41\ 47 U.S.C. 613(c)(2)(C).
\42\ 47 U.S.C. 613(c)(2)(D)(ii).
\43\ 47 U.S.C. 613(c)(2)(D)(v).
\44\ 47 U.S.C. 613(c)(2)(D)(vii).
\45\ 47 U.S.C. 613(c)(3).
\46\ 47 U.S.C. 613(d). Neither the statute nor the legislative
history explains what Congress meant by characterizing the amendment
as ``conforming.''
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[[Page 59967]]
C. Section 203 of the CVAA
Congress also determined that the objectives of the CVAA could not
be met unless the devices that consumers use to view video programming,
including those devices that may be small and portable, are able to
display closed captions. Therefore, it enacted Section 203(a),
requiring ``that [the] devices consumers use to view video programming
are able to display closed captions.'' \47\ To do this, Congress
directed the Commission to enact provisions that require all
``apparatus designed to receive or play back video programming
transmitted simultaneously with sound * * * be equipped with built-in
closed caption decoder circuitry or capability'' \48\ and contain
exceptions only for those devices which are ``display-only video
monitors with no playback capability'' \49\ and devices with picture
screens less than 13 inches for which meeting the regulation is not
``achievable.'' \50\ Additionally, the Commission must require that all
devices ``designed to record video programming * * * [must] enable the
rendering or the pass-through of closed captions'' \51\ and that the
``interconnection mechanisms and standards for digital video source
devices are available to * * * permit or render the display of closed
captions.'' \52\
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\47\ S. Rep. No. 111-386 at 14; H.R. Rep. No. 111-563 at 30
\48\ 47 U.S.C. 303(u)(1).
\49\ 47 U.S.C. 303(u)(2)(B).
\50\ 47 U.S.C. 303(u)(2)(A). In determining whether the
requirements of a provision are achievable, the Commission shall
consider the following factors: (1) The nature and cost of the steps
needed to meet the requirements of this section with respect to the
specific equipment or service in question; (2) the technical and
economic impact on the operation of the manufacturer or provider and
on the operation of the specific equipment or service in question,
including on the development and deployment of new communications
technologies; (3) the type of operations of the manufacturer or
provider; and (4) the extent to which the service provider or
manufacturer in question offers accessible services or equipment
containing varying degrees of functionality and features, and
offered at differing price points. 47 U.S.C. 617(g)(1)-(4).
\51\ 47 U.S.C. 303(z)(1).
\52\ 47 U.S.C. 303(z)(2).
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12. Taken together, these statutory provisions seek to encompass
many devices on which consumers view video, such as portable media
players, personal computers, televisions, and the devices consumers
connect to their televisions to access programming via the Internet and
other sources. As in Section 202(b), the Commission is required to
prescribe regulations within six months of the VPAAC Report and to
provide that entities may meet the requirements of these provisions
through ``alternate means.'' \53\
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\53\ Public Law 111-260, Sec. 203(d)(1), (e).
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D. VPAAC Working Group 1 and Its Report
13. The VPAAC's first meeting was held at the Commission on January
13, 2011, and a second meeting was held on May 5, 2011. During the
first meeting, the VPAAC was divided into four working groups; Working
Group 1 took on the task of examining ``issues involved in transferring
closed captions provided on television programs to the online
environment.'' \54\ In addition to work conducted at the January and
May meetings, Working Group 1 conferred and collaborated on these
issues through weekly conference calls, regular e-mail correspondence,
and the group's workshare Web site (or ``wiki''). \55\ The Media Bureau
also conducted informal meetings with online video programming
distributors, broadcast networks, multichannel video programming
distributors (``MVPDs''), consumer advocacy groups, and others that
were interested in discussing Section 202 of the CVAA in anticipation
of the Media Bureau's receipt of the VPAAC Report and its preparation
of this NPRM.
---------------------------------------------------------------------------
\54\ See VPAAC Report at 4.
\55\ See id. at 5.
---------------------------------------------------------------------------
14. As noted above, the VPAAC submitted its report on July 12,
2011. The VPAAC Report provided suggestions for how the Commission's
regulations on IP closed captioning should address caption
completeness, placement, accuracy, and timing, as well as specific
technical requirements that a user's Internet-connected media players
should support.\56\ The VPAAC Report went on to describe technical
requirements for the delivery of closed captioning of IP-delivered
television programming, suggesting that the Commission require a single
interchange format but not a single delivery format for IP closed
captioning.\57\ Next, the VPAAC Report described ``the technical
capabilities and procedures needed for entities to reliably encode,
transport, receive and render broadcast-television closed captions over
the Internet.\58\ The VPAAC Report discussed three interfaces that may
require standardization--(i) interchange formats (i.e., between video
programming owners and video programming distributors/providers), (ii)
delivery file formats (i.e., between video programming distributors/
providers and user devices), and (iii) linkages to users'' captioning
display controls (i.e., between devices or between software and
firmware running on one device).\59\ The VPAAC Report also briefly
discussed potential developments in IP-delivered closed captioning \60\
and proposed a schedule of deadlines for the provision of closed
captioning over IP. \61\ We describe the VPAAC recommendations more
specifically in the context of our discussion of Sections 202 and 203
below.\62\
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\56\ See id. at 13-16.
\57\ See id. at 16-20. The VPAAC Report proposed defining
``interchange format'' as ``[t]he encoded caption data that
preserves all of the original semantic information and text * * *
and allows easy conversion to other formats.'' See id. at 18. See
also id. at 22 (``By `interchange format' we mean the format of
closed-captioning data carried within television content as it is
distributed from the content provider to programming
distributors.''). The VPAAC Report proposed defining ``delivery
format'' as ``[t]he encoded caption data contained within a download
or stream of content to a consumer device in either the standard
interchange format or a different network-specific or video-player-
specific format * * *.'' See id. at 18.
\58\ See id. at 21-28.
\59\ See id. at 22-23, 26-28. We discuss interchange and
delivery formats in Sections III.E. and IV.B., infra.
\60\ See id. at 28-29.
\61\ See id. at 29-30. The VPAAC Report also contains three
appendices. Appendix A contains a summary of recommended DTV
receiver requirements. See id. at 31-32. Appendix B lists ``best
practices'' for closed captioning of IP-delivered video programming.
See id. at 33 (noting that ``there is not consensus about whether
these practices should be mandated or only offered as
suggestions''); see also id. at 13 n. 29. Lastly, Appendix C details
unresolved issues that the VPAAC recommended the Commission consider
in the NPRM. See id. at 34-35.
\62\ See Sections III. and IV., infra.
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III. Section 202(b) of the CVAA
A. Entities Subject to Section 202(b) of the CVAA and Their Obligations
Various provisions of Section 202(b) of the CVAA reference ``video
programming distributors'' (``VPDs''), ``video programming providers''
(``VPPs''), and ``video programming owners'' (``VPOs''). We seek
comment on how the Commission should define these terms.\63\ The CVAA
provides some guidance on the definition of the first two terms,
requiring the Commission to ``clarify that, for the purposes of
implementation, [sic] of this subsection, the terms `video programming
distributors' and `video programming providers' include an entity that
makes available directly to the end user video programming through a
distribution
[[Page 59968]]
method that uses Internet protocol.'' \64\ We propose to define VPD and
VPP as having the same meaning, because there does not seem to be a
practical benefit in distinguishing between the two for purposes of
Section 202(b) of the CVAA. We seek comment on this proposal. In
addition, in recognition of the broad reach that Congress intended for
Section 202(b), we propose to define both a VPD and a VPP as any entity
that makes available directly to the end user video programming through
a distribution method that uses IP. Further, we propose to define a VPO
as any person or entity that owns the copyright of the video
programming delivered to the end user through a distribution method
that uses IP. We seek comment on these proposed definitions. Should the
Commission instead define VPDs and VPPs separately, and if so, how
should those definitions differ from one another? \65\ If we were to
define VPDs and VPPs differently from one another, what would be the
effect on provisions of the CVAA that apply to VPPs and VPOs but not
VPDs? Will a significant number of small entities be covered by the
proposed definition of VPD/VPP? If multiple video programming
distributors/providers are involved in making video programming
available to the end user, but only one distributor/provider directly
makes the video programming available to the end user, where do the
distributors/providers in the middle of the chain fit within our
proposed definitions? Should the definition of VPO include anything in
addition to the person or entity that owns the copyright of the IP-
delivered video programming, for example, any person or entity to which
the copyright owner licenses IP-delivered video programming?
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\63\ Our use of the terms VPD and VPP in this NPRM is meant to
reference our proposed definitions of those terms in this context,
and not to invoke any use of those terms in other contexts,
including in our television closed captioning or video description
rules. This NPRM does not propose any modifications to our
television closed captioning rules.
\64\ 47 U.S.C. 613(c)(2)(D)(iii). The Commission's rules
currently define VPDs and VPPs but these definitions apply only to
the closed captioning of video programming that is being distributed
and exhibited on television. Specifically, our rules define a
``video programming distributor'' as ``[a]ny television broadcast
station licensed by the Commission and any [MVPD] * * * and any
other distributor of video programming for residential reception
that delivers such programming directly to the home and is subject
to the jurisdiction of the Commission.'' 47 CFR 79.1(a)(2). In
addition, our rules define a ``video programming provider'' as
``[a]ny video programming distributor and any other entity that
provides video programming that is intended for distribution to
residential households including, but not limited to broadcast or
nonbroadcast television network and the owners of such
programming.'' 47 CFR 79.1(a)(3).
\65\ The definition of VPD and VPP may be particularly relevant
insofar as certain provisions of Sections 202(b) and (c) refer to
VPPs and VPOs, but not VPDs. See, e.g., 47 U.S.C. 613(c)(2)(C),
(c)(2)(D)(vii), (d)(3).
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16. The CVAA requires the Commission to ``describe the
responsibilities of video programming providers or distributors and
video programming owners.'' \66\ We propose to require VPOs to send
program files to VPDs/VPPs with all required captions, and, as
contemplated by Section 202(b), to require VPDs/VPPs to enable ``the
rendering or pass through'' of all required captions to the end
user.\67\ When a VPD/VPP receives a program file with required
captions, it would be required to include those captions at the time it
makes the program file available to end users.\68\ We seek comment on
these proposals as well as other appropriate responsibilities of VPDs/
VPPs and VPOs under Section 202(b) of the CVAA.\69\ For example, should
we require the VPD/VPP to provide a mechanism, such as a button or
icon, on its Web site which would allow consumers to easily access
closed captioning? If a VPO licenses its content to a third party for
Internet distribution, what are the obligations of that third party
licensee? If a VPD/VPP knows or reasonably should have known that a
program is required to include captions, but the VPO failed to provide
such captions, what obligations should the VPD/VPP have to obtain such
captions before providing the programming to the end user? In an
enforcement proceeding, what types of evidence could be considered to
establish the VPD/VPP's knowledge, and should the VPD/VPP bear the
burden of proof on that issue? Should the VPD/VPP have an obligation to
determine whether the programming is subject to captioning requirements
before providing it to the end user? In addition, what liability should
the VPD/VPP face should it decide to provide the program to end users
without the required captions? \70\ In such a situation, should both
the VPD/VPP and VPO be held responsible for the violation? We seek
comment generally on the responsibilities that VPDs/VPPs should have to
ensure that video programming has the required captions before they
pass it through to viewers. Should we require VPDs/VPPs to include on
their Web sites program listings that indicate whether a particular
program is captioned? If multiple video programming distributors/
providers are involved in making video programming available to the end
user, what are the obligations of the distributors/providers in the
middle of the chain? For example, would the distributors/providers in
the middle of the chain be required to enable the rendering or pass
through of all required captions?
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\66\ 47 U.S.C. 613(c)(2)(D)(iv).
\67\See also Section III.D., infra (discussing a proposed
mechanism that would require VPOs providing a video program to VPDs/
VPPs for IP delivery to provide the program either with captions, or
with a certification that captions are not required for a reason
stated in the certification). Congress did not explain what it meant
by enabling ``the rendering or pass through'' but we presume that
Congress meant that VPDs/VPPs must ensure that closed captions are
transmitted appropriately.
\68\ We propose in Section III.D., infra, that when a program
previously provided to a VPD/VPP without captions becomes subject to
the captioning requirement, the VPO must send a certification to
that effect to VPDs/VPPs within seven days, and the VPD/VPP must
make captions available within five days of receipt of the revised
certification.
\69\ The VPAAC indicated that it did not have sufficient time to
determine the responsibilities of various stakeholders. See VPAAC
Report at 34.
\70\ Section 713(h) of the Act previously provided, ``Nothing in
this section shall be construed to authorize any private right of
action to enforce any requirement of this section or any regulation
thereunder. The Commission shall have exclusive jurisdiction with
respect to any complaint under this section.'' Section 202(a) of the
CVAA redesignated former Section 713(h) as Section 713(j). See
Public Law 111-260, Sec. 202(a). This provision applies to the
Commission's IP closed captioning regulations promulgated in
accordance with the CVAA's revisions to Section 713 of the Act, in
addition to the Commission's existing closed captioning regulations.
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17. In addition to requiring the presence of captions, we seek
comment on whether our rules for closed captioning of IP-delivered
video programming should include any required performance objectives.
It is important that, in considering this issue, the Commission
balances the interests of users of closed captioning against the
concern that overly burdensome standards may cause VPDs/VPPs to refrain
from posting videos online. The VPAAC Report made a number of proposals
regarding the quality of captions of IP-delivered video programming:
(1) That the Commission require IP-delivered captions to be
complete, such that ``[n]othing must be lost in transcoding when
converting captions between conventional broadcast captioning formats
and Internet;'' \71\
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\71\ See VPAAC Report at 13.
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(2) That ``[f]or Internet-delivered caption content, the
positioning information as originally authored shall be made available
to the consumer device;'' \72\
---------------------------------------------------------------------------
\72\ See id. at 13-14.
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(3) That the accuracy of IP-delivered video programming must be
``equal to or greater than the accuracy of captions shown on
television;'' \73\
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\73\See id. at 14.
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(4) That the Commission require IP-delivered captions to possess
sufficient timing, such that ``[a]ll processing through the
distribution chain, including transcoding, must provide a timing
experience that is equal to or an improvement to the timing of captions
[[Page 59969]]
provided in the captioning shown on television;'' \74\ and
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\74\ See id.
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(5) That a user's Internet-connected media players should support
the ability to change character color, opacity, size, font, background
color and opacity, character edge attributes, window color, and
language.\75\
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\75\See id. at 15-16.
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We note that Part 15 of the Commission's rules currently contains
certain required user controls for television closed captions,
including the ability to change text color, opacity, size, font,
background color and opacity, character edge attributes, and window
color.\76\
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\76\See 47 CFR 15.122.
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18. It appears that Congress intended, at a minimum, that captions
of IP-delivered video programming should be of at least the same
quality as captions shown on television. Accordingly, we propose to
adopt a rule requiring the captioning of IP-delivered video programming
to be of at least the same quality as the television captions for that
programming. An evaluation of ``quality'' could include the
consideration of such factors as completeness, placement, accuracy, and
timing, all of which the VPAAC suggested that we consider. We seek
comment as to whether the inclusion of any of these factors would lead
to unintended consequences such as requiring a large amount of
resources to be expended to comply. We contemplate that a requirement
for captions of IP-delivered video programming to be of at least the
same quality as captions of television programming would require IP-
delivered captions to include the same user tools, such as the ability
to change caption font and size. These proposals are consistent with
the VPAAC's recommendation that captions of IP-delivered video
programming should provide consumers with an experience that is equal
to or better than the comparable television experience.\77\ We seek
comment on these proposals, which could help benefit consumers, while
ensuring that compliance with our new rules is as similar as possible
to compliance with existing rules for television closed captioning.
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\77\ See, e.g., VPAAC Report at 13 (``the consumer must be given
an experience that is equal to, if not better than, the experience
provided as the content was originally aired on television using the
CEA-608/708 system'').
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19. In meetings with Commission staff, certain VPDs/VPPs expressed
concern that they would be unable to provide captions that are ``better
than'' those available on television because improving the captions
would violate the VPO's copyright. Under our proposal, however, VPDs/
VPPs would not be required to improve caption quality; rather, they
would be required to ensure that the quality of captions does not
decline when delivered via IP as compared to when shown on television.
To the extent that VPDs/VPPs have permission to alter captions on the
programming so that they improve the viewing experience, we propose
that they be permitted to do so.\78\ We seek comment on any copyright
concerns implicated by our proposals, including how we should balance
any desire for certain user controls against a VPO's copyright
protections.
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\78\For example, if programming was shown live on television and
then re-shown over the Internet, a VPD/VPP with permission may want
to fix mistakes that occurred as a result of real-time captioning.
While we do not propose requiring the correction of such errors, we
encourage VPDs/VPPs to make corrections where permitted and
feasible, given that the subject programming will be available on an
ongoing basis to viewers on the VPD/VPP's Web site. We believe that
such improvements could significantly enhance the viewing experience
of people who are deaf or hard of hearing.
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20. Section 202(a) of the CVAA defines ``video programming'' as
``programming by, or generally considered comparable to programming
provided by a television broadcast station, but not including consumer-
generated media (as defined in section 3).'' \79\ Section 3 of the Act,
as revised by the CVAA, defines ``consumer generated media'' as
``content created and made available by consumers to online Web sites
and services on the Internet, including video, audio, and multimedia
content.'' \80\ The Senate and House Committee reports do not shed
further light on the terms ``video programming'' and ``consumer-
generated media.'' \81\ We seek comment on the scope of these
definitions. We seek specific examples of IP-delivered video
programming that is not comparable to programming provided by a
television broadcast station, and examples of consumer-generated IP-
delivered video programming, both of which would be exempt from the
CVAA's captioning requirements. We also seek specific examples of IP-
delivered video programming that is comparable to programming provided
by a television broadcast station. Does ``consumer-generated media''
include content that has been published or exhibited on television with
captions, which is made available online by individual consumers
without the consent of the VPO?
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\79\ 47 U.S.C. 613(h)(2). We note that this definition of
``video programming'' is almost identical to the definition set
forth in Section 602(20) of the Act. See 47 U.S.C. 522(20) (defining
``video programming'' as ``programming provided by, or generally
considered comparable to programming provided by, a television
broadcast station''). See also Implementation of the Child Safe
Viewing Act; Examination of Parental Control Technologies for Video
or Audio Programming, FCC 09-14, 74 FR 11334, para. 8, March 17,
2009 (seeking comment on whether the definition of the term ``video
programming'' from Section 602(20) of the Act is the definition that
the Commission should use for purposes of the Child Safe Viewing
Act, and asking whether that term includes videos provided on
Internet video hosting sites such as YouTube).
\80\47 U.S.C. 153(54).
\81\ The Senate Committee report echoed the Section 3 definition
of ``consumer generated media,'' stating that that term
``encompasses content created and made available by consumers to
Internet Web sites and venues, including audio, video, and
multimedia content.'' See S. Rep. No. 111-386 at 5-6.
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21. We propose to apply the captioning requirements of Section
202(b) to full-length programming, and not to video clips or
outtakes.\82\ We seek comment on what Congress meant by the phrase
``full-length programming.'' We propose to define ``outtakes'' as
content that is not used in an edited version of video programming
shown on television, and we invite comment on this proposal. We propose
to define ``video clips'' as small sections of a larger video
programming presentation, and we invite comment on this proposal.\83\
Should we specify the definition of ``video clips'' by providing a
maximum duration of the video programming that constitutes a ``clip,''
or by providing that the length of a ``video clip'' may not exceed a
certain percentage of the overall length of the video program? When a
full-length program is posted online in multiple segments, to enable
consumers to access a particular segment of the program, does each
segment constitute a video clip?
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\82\ See 47 U.S.C. 613(h)(2) (``The term `video programming'
means programming by, or generally considered comparable to
programming provided by a television broadcast station * * *''); see
also S. Rep. No. 111-386 at 13-14 (``The Committee intends, at this
time, for the regulations to apply to full-length programming and
not to video clips or outtakes.''); H.R. Rep. No. 111-563 at 30
(same).
\83\ This is consistent with the Comcast-NBCU Order, which
explained that ``short programming segments'' are ``also known as
clips.'' See 26 FCC Rcd at 4358 (Appendix A: Conditions).
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22. We seek comment on whether IP-delivered content that has aired
on television only in another country, and not in this country, is
exempt from the CVAA's captioning requirements. Although not explicitly
stated in the CVAA, it appears that the best reading of the statute
requires closed captioning on IP-delivered video programming that was
published or exhibited on television in this country with captions
after the effective date of the
[[Page 59970]]
regulations, and we seek comment on this determination. It appears that
the differing caption standards in foreign countries could hinder the
process of transferring those captions to a suitable format for U.S.
consumers and seek comment on this understanding.
B. Schedule of Deadlines
23. Pursuant to the CVAA, the Commission must, by January 12, 2012,
``revise its regulations to require the provision of closed captioning
on video programming delivered using Internet protocol that was
published or exhibited on television with captions after the effective
date of such regulations.'' \84\ The regulations must ``include an
appropriate schedule of deadlines for the provision of closed
captioning, taking into account whether such programming is prerecorded
and edited for Internet distribution, or whether such programming is
live or near-live and not edited for Internet distribution.'' \85\
Further, the regulations must define the phrases ``near-live
programming'' and ``edited for Internet distribution.'' \86\ Below, we
seek comment on the definitions of ``live programming,'' ``near-live
programming,'' ``prerecorded programming,'' and ``edited for Internet
distribution.'' We propose to apply these definitions solely to
regulations of IP closed captioning pursuant to the CVAA, and we seek
comment on that proposal. Further, below we seek comment on the
appropriate schedule of deadlines for the provision of closed
captioning.
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\84\ 47 U.S.C. 613(c)(2)(A).
\85\ 47 U.S.C. 613(c)(2)(B).
\86\ 47 U.S.C. 613(c)(2)(D)(i).
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24. The VPAAC proposed to define ``live programming'' as
``programming created and presented on television and simulcast for
Internet distribution to the end user as it airs on television.'' \87\
Based on conversations with members of the VPAAC, we understand that
the definition of ``live programming'' was meant to encompass
programming such as news, sports, and awards shows, for which
captioning cannot be done in advance, rather than a ``simulcast'' in
which potentially prerecorded programming is shown on television and
the Internet simultaneously.\88\ We note that, in the recent Video
Description Order, the Commission defined ``live programming'' in that
context as ``programming aired substantially simultaneously with its
performance.'' \89\ The definition of ``live programming'' in the Video
Description Order could achieve the same objective as the definition of
``live programming'' proposed by the VPAAC. In the context of our IP
closed captioning rules, however, we believe it is important to clarify
that programming is ``live'' if it is shown live on television.
Accordingly, we propose defining ``live programming'' as video
programming that is shown on television substantially simultaneously
with its performance. The phrase ``substantially simultaneously''
contemplates that live programming may include a slight delay, for
example, to prevent certain objectionable material from airing. We seek
comment on this proposal. We understand that additional processes may
need to be put in place to facilitate the captioning of live
programming when it is delivered using IP, and we seek comment on what
those processes entail and who would be responsible for them.
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\87\ See VPAAC Report at 29.
\88\ We understand that a simulcast may either involve live
programming or prerecorded programming.
\89\ See Video Description Order, FCC 11-126, 76 FR 55585, para.
40, September 8, 2011 (``Video Description Order'').
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25. In addition, given the VPAAC's use of the word ``simulcast'' in
its proposed definition of ``live programming,'' we also seek comment
on whether there are additional difficulties in providing captioning of
IP-delivered video programming, when the programming is shown on
television and the Internet simultaneously. If so, should we provide a
lengthier deadline by which simulcast programming must comply wi
