Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, 39619-39628 [2013-15718]
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Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Rules and Regulations
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this Report and Order in WC Docket No.
10–132 is adopted. The requirements of
this Report and Order shall be effective
30 days after publication in the Federal
Register.
Federal Communications Commission.
Sheryl Todd,
Deputy Secretary.
[FR Doc. 2013–15642 Filed 7–1–13; 8:45 am]
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[MB Docket No. 11–154; FCC 13–84]
Closed Captioning of Internet ProtocolDelivered Video Programming:
Implementation of the Twenty-First
Century Communications and Video
Accessibility Act of 2010
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
The Commission affirms,
modifies, and clarifies certain decisions
adopted in the Report and Order in MB
Docket No. 11–154 regarding closed
captioning requirements for video
programming delivered using Internet
protocol (‘‘IP’’) and apparatus used by
consumers to view video programming.
The action is taken in response to three
petitions for reconsideration of the
Report and Order, which adopted rules
governing the closed captioning
requirements for the owners, providers,
and distributors of IP-delivered video
programming and rules governing the
closed captioning capabilities of certain
apparatus on which consumers view
video programming.
DATES: Effective August 1, 2013.
FOR FURTHER INFORMATION CONTACT:
Diana Sokolow, Diana.Sokolow@fcc.gov,
or Maria Mullarkey,
Maria.Mullarkey@fcc.gov, of the Policy
Division, Media Bureau, (202) 418–
2120.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order on
Reconsideration, FCC 13–84, adopted
on June 13, 2013 and released on June
14, 2013. The full text of this document
is available for public inspection and
copying during regular business hours
in the FCC Reference Center, Federal
Communications Commission, 445 12th
Street, SW., Room CY–A257,
Washington, DC 20554. This document
will also be available via ECFS at https://
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SUMMARY:
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Summary of the Order on
Reconsideration
I. Introduction
1. In this Order on Reconsideration,
we affirm, modify, and clarify certain
decisions adopted in the Report and
Order in MB Docket No. 11–154
regarding closed captioning
requirements for video programming
delivered using Internet protocol (‘‘IP’’)
and apparatus used by consumers to
view video programming. The actions
we take will provide the industry and
consumers with certainty about the
scope of the captioning obligations
before the January 1, 2014 compliance
deadline for apparatus.
2. Specifically, we address three
petitions for reconsideration of the
Report and Order, which adopted rules
governing the closed captioning
requirements for the owners, providers,
and distributors of IP-delivered video
programming and rules governing the
closed captioning capabilities of certain
apparatus on which consumers view
video programming. First, we address
the Petition for Reconsideration of the
Consumer Electronics Association
(‘‘CEA’’) by: (1) Granting narrow class
waivers for certain apparatus that are
primarily designed for activities other
than receiving or playing back video
programming, while denying CEA’s
broader request that the Commission
narrow the scope of § 79.103 of its rules;
(2) denying CEA’s request that
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39619
removable media players are not subject
to the closed captioning requirements
but, at the same time, temporarily
extending the compliance deadlines for
Blu-ray players as well as for those DVD
players that do not currently render or
pass through captions, pending
resolution of the Further Notice of
Proposed Rulemaking (‘‘FNPRM’’); 1 and
(3) granting CEA’s request to modify the
January 1, 2014 deadline applicable to
apparatus to refer only to the date of
manufacture, and not to the date of
importation, shipment, or sale. Second,
we deny the Petition for
Reconsideration of TVGuardian, LLC
(‘‘TVGuardian’’), which requests that
the Commission reconsider its decision
to allow video programming providers
and distributors to enable the rendering
or pass through of captions to end users
and instead to require video
programming providers and
distributors, and digital source devices,
to pass through closed captioning data
to consumer equipment. Third, we
address the Petition for Reconsideration
of Consumer Groups by: (1) deferring
resolution of whether to reconsider the
Commission’s decision to exclude video
clips from the scope of the IP closed
captioning rules, and directing the
Media Bureau to issue a Public Notice
to seek updated information on this
topic within six months; and (2) issuing
an FNPRM to obtain further information
necessary to determine whether the
Commission should impose
synchronization requirements on device
manufacturers. Our goal in this
proceeding remains to implement
Congress’s intent to better enable
individuals who are deaf or hard of
hearing to view video programming. In
considering the requests made in the
petitions for reconsideration, we have
evaluated the effect on consumers who
are deaf or hard of hearing as well as the
cost of compliance to affected entities.
II. Background
3. On October 8, 2010, President
Obama signed into law the Twenty-First
Century Communications and Video
Accessibility Act of 2010 (‘‘CVAA’’).
The CVAA required the Commission, by
January 12, 2012, to establish closed
captioning rules for the owners,
providers, and distributors of IPdelivered video programming, and for
certain apparatus on which consumers
view video programming. The CVAA
also required the Commission to
establish an advisory committee known
as the Video Programming Accessibility
1 The FNPRM, adopted with the Order on
Reconsideration, is published elsewhere in this
publication.
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Advisory Committee (‘‘VPAAC’’), which
submitted its statutorily mandated
report on closed captioning of IPdelivered video programming to the
Commission on July 12, 2011 (‘‘VPAAC
First Report’’). The Commission
initiated this proceeding in September
2011, and it adopted the Report and
Order on January 12, 2012. In the NPRM
and the Report and Order, the
Commission provided extensive
background information regarding the
history of closed captioning, IPdelivered closed captioning, applicable
provisions of the CVAA, the VPAAC
First Report, and the evolution of video
programming distribution, which we
need not repeat here.
4. The Report and Order was
published in the Federal Register on
March 30, 2012. CEA, TVGuardian, and
Consumer Groups each filed a timely
petition for reconsideration within 30
days of the Federal Register publication
date. Each of the petitions for
reconsideration is discussed in turn
below.
III. Order On Reconsideration
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A. Petition for Reconsideration of the
Consumer Electronics Association
1. Scope of the Apparatus Closed
Captioning Rules
5. As explained below, we address
CEA’s claims regarding the scope of the
Commission’s apparatus closed
captioning rules, adopted pursuant to
section 203 of the CVAA, by: (1)
Affirming the Commission’s decision
that, to determine what an apparatus
was ‘‘designed to’’ accomplish, we
should consider the capabilities of the
apparatus and not the manufacturer’s
subjective intent; (2) revising the note to
paragraph (a) of § 79.103 of our rules to
be more consistent with the statute; and
(3) exempting through waiver certain
narrow classes of apparatus that are
primarily designed for activities
unrelated to receiving or playing back
video programming 2 transmitted
simultaneously with sound.
6. Meaning of ‘‘designed to.’’ We
affirm the Commission’s decision in the
Report and Order that the determination
of whether an apparatus was ‘‘designed
to receive or play back video
programming transmitted
simultaneously with sound’’ and
therefore covered by section 203 of the
CVAA, should turn on the capabilities
2 Herein
we use the phrase ‘‘video programming’’
as the CVAA defines the term, which is
‘‘programming by, or generally considered
comparable to programming provided by a
television broadcast station, but not including
consumer-generated media. . . .’’ 47 U.S.C.
613(h)(2).
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of the apparatus, not the manufacturer’s
intent. CEA argues that the statutory
phrase ‘‘designed to’’ suggests that the
closed captioning apparatus rules may
only reach apparatus that the
manufacturer intends to receive, play
back, or record video programming.3 We
disagree. Nowhere does the statute
reference the ‘‘intent’’ underlying the
design and manufacture of an apparatus.
7. We disagree with CEA that
Congress meant its use of the word
‘‘designed’’ to impose a consideration of
the manufacturer’s intent. Instead, we
reiterate our finding in the Report and
Order that we should look to the
device’s functionality, i.e., whether it is
capable of receiving or playing back
video programming, to determine what
the device was designed to accomplish.
CEA’s proposed approach of
considering the manufacturer’s intent
would allow the manufacturer
unilaterally to dictate whether an
apparatus falls within the scope of the
rules, which could harm consumers by
making compliance with the apparatus
closed captioning requirements
effectively voluntary. Such an approach
would not be consistent with Congress’s
intent to ‘‘ensure[] that devices
consumers use to view video
programming are able to display closed
captions,’’ because devices that
consumers actually use to view video
programming might not have closed
captioning capability if manufacturers
could evade our requirements by
claiming that they did not intend such
use. CEA has not raised any new
arguments that persuade us that the
Commission’s reasoning in the Report
and Order was incorrect. Accordingly,
we affirm our findings in the Report and
Order and deny CEA’s petition for
reconsideration on this issue.
8. Definition of video player. We
revise our definition of ‘‘apparatus’’ to
make clear that the ‘‘video players’’ it
includes are those capable of displaying
video programming transmitted
simultaneously with sound. The note to
paragraph (a) of § 79.103 of our rules
currently reads: ‘‘Apparatus includes
the physical device and the video
players that manufacturers install into
the devices they manufacture before
sale, whether in the form of hardware,
software, or a combination of both, as
well as any video players that
manufacturers direct consumers to
3 Consumer Groups point out that CEA fails to
add any substance to its argument on this issue
from what it argued during the rulemaking
proceeding, and argue that the Commission should
reject the argument again. CEA disagrees, citing to
specific new facts and arguments that it presented
in its petition, and arguing that reconsideration is
warranted to serve the public interest.
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install after sale.’’ CEA argues that the
Commission should revise the note to
§ 79.103(a) of our rules to replace the
term ‘‘video player’’ with ‘‘video
programming player,’’ and that we
should define a ‘‘video programming
player’’ as ‘‘a component, application,
or system that is specifically intended
by the manufacturer to enable access to
video programming, not video in
general.’’ CEA claims that its approach
would be consistent with Congress’s
intent to limit the application of the
apparatus closed captioning rules to
apparatus containing a subset of video
players, not all video players, and that
the Commission’s approach in the
Report and Order exceeded its statutory
authority by going beyond this intent.
Consumer Groups indicate their broad
opposition to CEA’s arguments, but they
do not make more specific assertions
regarding the definition of ‘‘video
players’’ subject to our rules.
9. To address CEA’s argument that our
rules should only reach a subset of
video players, and to make the language
in our rule more consistent with the
statute, we revise the note to § 79.103(a)
of our rules to replace references to
‘‘video players’’ with ‘‘video player(s)
capable of displaying video
programming transmitted
simultaneously with sound.’’ Here, as
elsewhere in the rules adopted in the
Report and Order, we intend the term
‘‘video programming’’ to have the same
meaning it was given in the CVAA.
Accordingly, a video player that is not
capable of displaying programming
provided by, or generally considered
comparable to programming provided
by, a television broadcast station,
excluding consumer-generated media, is
not subject to the rules. For example, a
video player that is only capable of
displaying home videos that a consumer
recorded on the device is not ‘‘capable
of displaying video programming
transmitted simultaneously with
sound.’’ We believe that by clarifying
the language of our rules to specify
video players that are capable of
displaying ‘‘video programming
transmitted simultaneously with
sound,’’ we will address CEA’s
fundamental concern that our definition
of ‘‘apparatus’’ should be consistent
with the CVAA.
10. We decline to replace the term
‘‘video player’’ with ‘‘video
programming player’’ in the note to
§ 79.103(a). CEA’s proposed definition
of ‘‘video programming player’’ relies
upon a consideration of the
manufacturer’s intent, by defining a
‘‘video programming player’’ as ‘‘a
component, application, or system that
is specifically intended by the
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manufacturer to enable access to video
programming.’’ As discussed above, we
disagree with CEA that we should look
to manufacturer intent. In any event,
such a change is unnecessary because
the revised definition we adopt in this
Order on Reconsideration accomplishes
CEA’s goal of making the definition no
broader than Congress intended.
11. Narrow class waivers for certain
apparatus. Even with the clarification
above that our closed captioning
apparatus rules cover video players
capable of displaying video
programming transmitted
simultaneously with sound, we find a
waiver to be appropriate for certain
narrow classes of apparatus. For
example, digital still cameras may be
covered by our apparatus rules because
they may enable consumers to use a
memory card to view video
programming via the apparatus’s video
player. Accordingly, in response to
CEA’s petition for reconsideration, we
now exempt through waiver certain
narrow classes of apparatus that are
‘‘primarily designed’’ for activities
unrelated to receiving or playing back
video programming transmitted
simultaneously with sound. The CVAA
provides the Commission with
authority, on its own motion or in
response to a petition, to waive the
apparatus closed captioning
requirements for any apparatus or class
of apparatus ‘‘primarily designed for
activities other than receiving or playing
back video programming transmitted
simultaneously with sound.’’ The
Report and Order stated that such
waivers will be addressed on a case-bycase basis and rejected overly broad
waiver requests made by several
commenters. CEA argues that certain
apparatus, such as digital still cameras
and consumer video cameras, should
not be subject to our rules because their
manufacturers did not intend these
apparatus to be used for receiving or
playing back video programming.
Although, for the reasons stated above,
we do not agree that our analysis turns
on the manufacturer’s intent, we agree
with CEA that these types of devices
should not be subject to our rules and,
as described below, we grant waivers to
those devices that meet the statutory
criteria for waiver as described below.
12. We grant a waiver pursuant to
section 303(u)(2)(C)(i) for two classes of
apparatus that we find, based on the
standard described below, are
‘‘primarily designed for activities other
than receiving or playing back video
programming transmitted
simultaneously with sound.’’ Upon
consideration of that standard, we
conclude that the following two classes
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of apparatus qualify for waiver: (i)
devices that are primarily designed to
capture and display still and/or moving
images consisting of consumergenerated media, or of other images that
are not video programming as defined
under the CVAA and our rules, and that
have limited capability to display video
programming transmitted
simultaneously with sound; 4 and (ii)
devices that are primarily designed to
display still images and that have
limited capability to display video
programming transmitted
simultaneously with sound.5 In
determining whether an apparatus or
class of apparatus falls within the scope
of the ‘‘primarily designed’’ waiver, we
look at the various functions and
capabilities of the apparatus or class of
apparatus. Where the apparatus’s ability
to display video programming, as that
term is defined in the CVAA and our
rules, is only incidental, then we will
determine that such apparatus is
‘‘primarily designed for activities other
than receiving or playing back video
programming transmitted
simultaneously with sound.’’ In
determining whether an apparatus’s
ability to display video programming is
incidental, we objectively look at the
activities for which consumers use the
apparatus, based on the apparatus’s
functions and capabilities and the ease
with which consumers can use the
apparatus to receive or play back video
programming.6 Again, the
4 This category includes, for example, digital still
cameras, digital video cameras, baby monitors,
security cameras, digital video camera microscopes,
digital playback binoculars (which act as a
combination of a binocular and a digital camera),
and digital probes for viewing and playing video of
enclosed spaces (which capture still and/or moving
images of spaces that are difficult to reach). One
factor critical to our waiver analysis is that for the
listed devices, consumers use the video playback
feature or function to play back the consumergenerated images (still or moving) taken by the
device; but it would take additional effort by the
consumer to adapt the device to access video
programming. By contrast, this category does not
include devices such as cell phones that capture
images but that consumers use for other purposes,
including receiving or playing back video
programming transmitted simultaneously with
sound, as evidenced, for example, by the inclusion
of Internet capability on such devices. Finally, we
emphasize that the list of devices identified above
is intended to be merely illustrative, and not
exhaustive, of the types of devices that qualify
under this waiver class.
5 This category includes, for example, digital
picture frames. It does not include digital picture
frames that are primarily designed to display still
photographs and video, because consumers could
use such frames to display video programming, and
thus the frames could operate much like a
television screen.
6 We find that in general, the devices about which
CEA expressed specific concerns (digital still
cameras, digital video cameras, baby monitors,
security cameras, digital video camera microscopes,
digital playback binoculars, digital picture frames
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manufacturer’s subjective intent is not
considered in this analysis.
13. For example, applying this
analysis to digital cameras, we find that
it would be difficult for consumers to
view video programming on digital
cameras with no ability to receive
content from the Internet because doing
so would require transferring video
programming to a memory card on
another device, and then inserting the
memory card into the camera. The
inconvenience of taking these steps in
order to view video programming on the
camera screen, including the fact that a
camera lacks the full panoply of
playback controls typically used to view
video programming, leads us to
conclude that the device’s ability to
display video programming is
incidental. Accordingly, digital cameras
are an example of a device that is
subject to the waiver as part of the first
class of apparatus described above:
devices that are primarily designed to
capture and display still and/or moving
images consisting of consumergenerated media, or of other images that
are not video programming as defined
under the CVAA and our rules, and that
have limited capability to display video
programming transmitted
simultaneously with sound. In contrast,
if a digital camera includes a general
purpose operating system such as
Android, and it can receive content
from the Internet and easily display
video programming transmitted
simultaneously with sound in that
manner, then its ability to display video
programming will be considered to be
more than incidental because it includes
more video playback controls (via its
Internet connectivity) and the ability to
receive content from the Internet
suggests that consumers use the
apparatus to view video programming
available online.
14. As stated above, under the test
described herein, we find the following
two classes of devices will qualify for
waiver: (i) devices that are primarily
designed to capture and display still
and/or moving images consisting of
consumer-generated media, or of other
images that are not video programming
as defined under the CVAA and our
rules, and that have limited capability to
display video programming transmitted
simultaneously with sound; and (ii)
that display photos, and digital probes for viewing
and playing video of enclosed spaces) have only an
incidental ability to view video programming, if
there is any such capability, because consumers
purchase the devices for activities unrelated to
receiving or playing back video programming (for
example, in the case of digital still cameras, for
taking photographs), and consumers cannot easily
use the devices to receive or play back video
programming.
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devices that are primarily designed to
display still images and that have
limited capability to display video
programming transmitted
simultaneously with sound. We find
that identifying the classes of apparatus
that qualify for waiver rather than
identifying a finite set of specific
devices will provide industry with
adequate certainty and will alleviate the
need for manufacturers to seek
individual waivers for each and every
device that meets the specified criteria
for the waiver class.7 If it is unclear
whether a particular apparatus qualifies
for the waiver described herein, or if the
manufacturer seeks a waiver pursuant to
a separate provision of the CVAA that
authorizes waivers for multi-purpose
devices, then the device manufacturer
may file a waiver request, which we will
consider on a case-by-case basis.
15. Although CEA would have
preferred that the Commission amend
its rules so that they do not encompass
certain devices,8 we find that our
approach of defining narrow class
waivers serves the objectives of, and is
most consistent with, the CVAA, which
specifically grants us authority to waive
the closed captioning requirements for
specific classes of apparatus.9 As
explained above, we thus exercise our
discretion to proceed by waiver
consistent with the statute. We expect
that the class waivers granted herein
will provide manufacturers with
certainty as to the status of the devices
7 We find that there is good cause to grant the
waivers. Specifically, the waivers would serve the
public interest by avoiding imposing captioning
compliance costs on apparatus where there is no
evidence that consumers purchase such apparatus
to receive or play back video programming
transmitted simultaneously with sound.
Additionally, the waivers are narrow and consistent
with the CVAA: they apply only to apparatus
primarily designed for activities other than
receiving or playing back video programming
transmitted simultaneously with sound, where any
ability to display video programming is only
incidental.
8 CEA also argues that the presence of a waiver
mechanism cannot save or justify an irrational rule.
9 Manufacturers are free to file additional requests
for waiver with respect to other apparatus or classes
of apparatus and we will rule on those requests
based upon the facts presented. The CVAA provides
the Commission with the authority to waive the
apparatus closed captioning requirements based on
the apparatus’s primary purpose either in response
to a petition by a manufacturer or on its own
motion. 47 U.S.C. 303(u)(2)(C). Thus, we reject
Consumer Groups’ claims that we should decline to
act on CEA’s request in this Order on
Reconsideration and instead should require
manufacturers to file individual requests for waiver.
We find that addressing the waivers herein is the
most administratively efficient approach, and we
note that Consumer Groups have not objected on
the merits to the grant of the waivers for these
narrow classes of apparatus.
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subject to the waivers, and thus, will not
stifle innovation.
2. Application of the Apparatus Rules to
Removable Media Players
16. CEA requests that the Commission
reconsider its legal analysis that
concludes that removable media players
are apparatus covered by § 79.103 of the
Commission’s rules, and thus must be
equipped with capability to display
closed-captioned programming.
Although we deny CEA’s petition for
reconsideration on this issue, we find
that some DVD players currently satisfy
the closed captioning requirements of
the CVAA. With regard to other DVD
players as well as Blu-ray players, we
temporarily extend the deadline for
compliance with our apparatus closed
captioning rules pending resolution of
the FNPRM on this issue.10
17. As an initial matter, we reject two
statutory arguments CEA makes in
support of its request to exempt
removable media players from the scope
of the apparatus closed captioning rules.
First, we reject CEA’s argument that the
phrase ‘‘transmitted simultaneously
with sound’’ appearing in section 203
requires transmission by wire or radio,
and not merely the act of a user playing
back video programming. CEA has
reiterated its previous arguments
regarding this issue, arguing again that
‘‘transmitted’’ means sent across a
distance by wire or radio. The
Commission has already considered,
addressed, and rejected these arguments
in the Report and Order. We reaffirm
the Commission’s prior analysis that the
phrase ‘‘transmitted simultaneously
with sound’’ describes how video
programming is conveyed from the
device to the end user, and not how the
video programming arrives at the
device.11
10 Although DVD players generally are singlepurpose devices, manufacturers often include Bluray players in multi-purpose devices. The extension
granted herein applies only to the removable media
playback function of a DVD or Blu-ray player, and
it does not apply to any other function of a device
that contains a DVD or Blu-ray player. For example,
if a Blu-ray player also records video programming
or receives or plays back IP-delivered video
programming, then the extension does not apply
with respect to the non-removable media playback
function.
11 Section 203 of the CVAA expressly applies to
‘‘apparatus designed to receive or play back video
programming transmitted simultaneously with
sound.’’ 47 U.S.C. 303(u)(1) (emphasis added).
Accordingly, we reject CEA’s claim that the
Commission’s interpretation of ‘‘transmitted
simultaneously with sound’’ as describing how the
video programming is conveyed from the device to
the end user is inconsistent with section 2(a) of the
Communications Act of 1934, as amended (the
‘‘Act’’), which generally limits the Commission’s
jurisdiction to ‘‘interstate and foreign
communication by wire or radio’’ and ‘‘does not
extend to the playback function of a consumer
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18. Second, we reject CEA’s claim that
Congress did not intend to reach
removable media players within the
scope of the closed captioning
requirements, and that their inclusion
thus exceeds Commission authority.
CEA has reiterated its previous
arguments regarding this issue, arguing
that ‘‘Congress meant to extend coverage
to devices that play back content that
was sent to the device by means (e.g.,
via IP) other than traditional
broadcasting or cable service,’’ and not
to ‘‘extend[] captioning requirements to
removable media players.’’ The
Commission has already considered,
addressed, and rejected these arguments
in the Report and Order. We reaffirm
the Commission’s prior analysis in this
proceeding, finding that Congress
indicated that section 203 of the CVAA
applies to ‘‘apparatus designed to
receive or play back video
programming,’’ and it did not limit the
scope of covered apparatus from
reaching apparatus that only play back
video programming as CEA claims.
19. DVD players. Having rejected
CEA’s statutory arguments, we find that
some DVD players currently satisfy the
closed captioning requirements of the
CVAA. For other DVD players we
temporarily extend the deadline for
compliance with our apparatus closed
captioning rules pending resolution of
the FNPRM on this issue. The apparatus
closed captioning rules and the CVAA
itself require apparatus to ‘‘be equipped
with built-in closed caption decoder
circuitry or capability designed to
display closed-captioned video
programming.’’ To the extent that any
DVD players render closed captions,
they are not subject to the extension
granted herein because they comply
with the CVAA and our implementing
rules since they are ‘‘equipped with
built-in closed caption decoder circuitry
. . . designed to display closedcaptioned video programming’’ on a
television. Other DVD players use their
analog output to pass through closed
captions to the television, which then
renders the captions. We find that DVD
players with pass through capability
electronics device designed to play back content
that is outside the scope of the Commission’s
authority.’’ Rather, the plain language of the CVAA
states that the Commission’s apparatus closed
captioning rules apply to apparatus that play back
video programming transmitted simultaneously
with sound, and this specific grant of jurisdiction
is not limited by the authority granted in section
2(a) of the Act. See Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 384–85 (1992) (‘‘it is a
commonplace of statutory construction that the
specific governs the general’’). Nonetheless,
industry members have provided new factual
evidence regarding DVD and Blu-ray players, which
persuades us to grant the extension discussed
below.
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also comply with the CVAA because a
DVD player that passes through closed
captions to the television is ‘‘equipped
with built-in . . . capability designed to
display closed-captioned video
programming.’’ In this scenario, because
a DVD player does not itself contain a
screen, the closed captions contained in
the video programming that is being
accessed through the DVD player are
rendered by the television and
displayed on the television screen, just
as the video programming itself is being
displayed. Thus, DVD players equipped
with an analog output that passes
through closed captioning satisfy the
closed captioning requirement set forth
in section 303(u)(1)(A) of the Act and
our rules because they are equipped
with a capability designed to display
closed-captioned video programming,
i.e., they enable closed captions to be
viewed by consumers on their television
sets.12 At the same time, we recognize
that DVD players that have multiple
outputs, only one of which is an analog
output that passes through closed
captions to the television, may not
comply with the Commission’s
interconnection mechanism rule, which
requires that ‘‘[a]ll video outputs of
covered apparatus shall be capable of
conveying from the source device to the
consumer equipment the information
necessary to permit or render the
display of closed captions.’’ We find
good cause, however, to waive this
requirement because requiring
compliance with this rule would impose
increased costs on otherwise low-cost
devices that have been in the
marketplace for a long time and for
which the market is declining, as
discussed below, and because there is
already some capability for consumers
to view closed captions through the
compliant analog output. Accordingly,
in the instant case, the public interest
benefits of requiring complete
compliance with the Commission’s
interconnection mechanism rule are
outweighed by the additional costs on
manufacturers.
20. Regarding DVD players that do not
either render or pass through closed
captions, policy considerations justify
an extension of the compliance
12 To the extent that video technologies evolve
resulting in consumers viewing video programming
from DVD players on apparatus that are not capable
of rendering and displaying closed captions, we
will revisit this issue to ensure that consumers are
not deprived of access to closed captioning of video
programming. See, e.g., 47 CFR 79.103(b)(1)
(display-only monitors with no playback capability
are exempt from our apparatus closed caption
requirements).
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deadline 13 pending resolution of the
FNPRM on this issue. Manufacturers
have expressed concerns about the costs
of modifying DVD players to render the
closed captioning themselves.
Specifically, the record shows that DVD
players generally have been in the
marketplace for a long time and tend to
be low-cost, and that adding captioning
functionality may have a significant
impact on manufacturing costs that
would not be supported by consumers
in the general public, potentially
curtailing the continued availability of
such devices in the U.S. market.
Because the record demonstrates that
this is a declining market, we are
sensitive to imposing additional costs at
this time without an adequate record.
However, the current record does not
identify the specific costs to
manufacturers of including in DVD
players an analog output that passes
through closed captions to the
television. Nor does it address the
benefits to consumers who are deaf or
hard of hearing were we to require this
pass through obligation, or conversely,
the harm to such consumers were we to
eliminate all closed captioning
obligations for DVD players. Given the
above concerns, we temporarily extend
the deadline for compliance with the
apparatus closed captioning
requirements for DVD players that do
not either render or pass through closed
captions, pending resolution of the
FNPRM on this issue. We find that any
hardship on consumers resulting from a
temporary extension of the compliance
deadline will be minimized because
there are certain models of DVD players
currently available that pass through
closed captions to the television, which
will provide a means for some
individuals who are deaf or hard of
hearing to view closed captions
contained on DVDs.
21. Blu-ray players. For Blu-ray
players, we temporarily extend the
deadline for compliance with our
apparatus closed captioning rules
pending resolution of the FNPRM on
this issue. There is no evidence in the
record to suggest that any Blu-ray
players today either render closed
captioning themselves or pass through
closed captions via the type of analog
output used by DVD players. And, we
have little information on the record as
to what the costs would be for Blu-ray
players to render or pass though
captions. Moreover, we note that many,
if not all, Blu-ray players are capable of
playing DVDs (in addition to Blu-ray
13 The compliance deadline for apparatus closed
captioning otherwise is January 1, 2014. See 47 CFR
79.103(a).
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discs) but the record currently contains
insufficient information regarding the
technical changes required for
manufacturers to ensure that these
players can render or pass through
captions from DVDs. These issues are
further complicated by the fact that Bluray discs today do not contain closed
captions,14 and no industry-wide
standard currently exists for closed
captioning on Blu-ray discs. Given that
there is no closed captioning standard
for Blu-ray discs, Blu-ray players could
not, as a technical matter, render closed
captions on Blu-ray discs in the short
term because manufacturers of the
players would not know what standards
to comply with. Moreover, as the
Commission has previously recognized,
manufacturers require some period of
time to design, develop, test,
manufacture, and make available for
sale new products, which likely could
extend beyond the compliance deadline.
Thus, requiring Blu-ray players to
comply with the apparatus closed
captioning requirements by the January
1, 2014 compliance deadline would
raise special difficulties for
manufacturers. Accordingly we
temporarily extend the compliance
deadline with respect to Blu-ray players,
pending resolution of the FNPRM where
we seek more information on these
issues. We find that any hardship on
consumers resulting from a temporary
extension of the compliance deadline
will be minimized because Blu-ray discs
currently include subtitles, which will
provide a means for some individuals
who are deaf or hard of hearing to
access dialogue. A temporary extension
will provide the Commission with an
opportunity to develop a complete
record with respect to Blu-ray players so
that we can develop a long-term policy
with respect to such devices.
22. Other removable media players.
The temporary extensions granted
herein do not apply to all ‘‘removable
media players’’; rather they are
expressly limited to DVD players that do
not render or pass through closed
captions and Blu-ray players. We
decline to apply this extension more
broadly because, although DVD and Bluray players are the current types of
removable media players in the
marketplace, if new types of ‘‘removable
media players’’ are developed in the
future, we would expect those devices
to be designed with closed captioning
14 Subtitles for the deaf and hard of hearing
(‘‘SDH’’) make some video programming accessible
to consumers who are deaf or hard of hearing via
existing Blu-ray and DVD players. The Commission
explained in the Report and Order that SDH does
not provide all of the features available with closed
captions.
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the CVAA.
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3. Application of the January 1, 2014
Deadline Only to the Date of
Manufacture
23. We grant CEA’s request that we
specify that the January 1, 2014
apparatus compliance deadline refers
only to the date of manufacture, and not
to the date of importation, shipment, or
sale of apparatus manufactured before
that date. In the Report and Order, the
Commission adopted a compliance
deadline of January 1, 2014 for the
apparatus covered by our rules. The
rules that the Commission adopted to
implement this deadline arguably create
some ambiguity as to whether it applies
to the date of importation, manufacture,
or shipment of apparatus. CEA explains
that, while the phrase ‘‘manufactured in
the United States or imported for use in
the United States’’ mirrors provisions of
section 203 of the CVAA,15 the
Commission should clarify that the
rules apply only to devices
manufactured on or after the deadline,
as it has done in other equipment
compliance rules by including
explanatory notes. We agree with CEA
that this clarification would serve the
public interest because manufacturers
can identify and control the date of
manufacture, but the date of importation
is affected by variables outside of the
manufacturer’s control, and thus a
deadline triggered by the date of
importation may be unworkable in
many situations for manufacturers. CEA
also explains that its proposal will have
little effect on the availability of new
compliant products because of the
normally brief interval between a
product’s manufacture and its
importation. Accordingly, we add
explanatory notes to §§ 79.101(a)(2),
79.102(a)(3), 79.103(a), and 79.104(a) of
our rules, to clarify that the new
obligations in the rules apply only to
apparatus manufactured on or after
January 1, 2014. We note that this
approach is consistent with the
Commission’s past practices regarding
similar equipment deadlines.16
24. Consumer Groups claim that
consumer confusion may result from
15 The CVAA does not, however, impose the
January 1, 2014 deadline that the Commission
adopted in the Report and Order, nor does it specify
whether the deadline must apply to the date of
manufacture, the date of importation, or both.
16 See, e.g., Notes to 47 CFR 15.120(a),
79.101(a)(1), 79.102(a)(1), (2). We clarify that our
application of the apparatus compliance deadline
only to the date of manufacture applies only to the
rules and requirements at issue in this proceeding
and not to any other compliance rules, which may
have deadlines that are not based solely on the date
of manufacture.
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CEA’s proposal because consumers
expect that any apparatus for sale after
the January 1, 2014 deadline will be
compliant. Consumer Groups overlook
the fact that nothing in the current
apparatus rules expressly ties the
compliance deadline to the date of sale.
Instead, while the current rules are
ambiguous with respect to the triggering
event for the January 1, 2014
compliance deadline, nothing in the
rules references the date of sale.
Additionally, as CEA explains, while
manufacturers can identify and control
the date of manufacture, the date of sale
is affected by variables outside of the
manufacturer’s control. Further, we
expect that a compliance deadline based
on the date of sale would create
complications for retail vendors with
noncompliant apparatus in their
inventory after the deadline. For all of
these reasons, we conclude that tying
the compliance deadline to date of
manufacture would best serve the
public interest.
25. Further, we agree with CEA that
Consumer Groups’ proposal that we
require manufacturers to label products
to indicate which devices are compliant
or noncompliant after January 1, 2014
should be dismissed as a late-filed
petition for reconsideration of the
Report and Order. Consumer Groups
raised this issue in an opposition but
not in a petition for reconsideration.17
Similarly, we also agree with CEA that
Consumer Groups’ proposed
compliance deadline based on the date
of a product’s sale should be dismissed
as a late-filed petition for
reconsideration of the Report and Order.
Again, Consumer Groups raised this
issue in an opposition but not in a
petition for reconsideration.18
B. Petition for Reconsideration of
TVGuardian, LLC
26. We deny TVGuardian’s petition
requesting that the Commission
17 Additionally, from a practical standpoint, we
note that a labeling requirement would impose
additional compliance costs on manufacturers with
little practical benefit to consumers. Specifically,
labels could provide confusing and misleading
information about the capabilities of apparatus.
Apparatus manufactured prior to January 1, 2014
would not bear the label, even if such apparatus
supported closed captions. Further, a labeling
requirement would extend indefinitely, imposing
costs and burdens on manufacturers despite our
expectation that few, if any, noncompliant
apparatus will be on store shelves within a few
months of the compliance deadline.
18 Additionally, we note that Consumer Groups
misconstrue a reference in the Report and Order to
‘‘mak[ing] available for sale new products’’ as
applying the compliance deadline based upon the
date of sale. This reference was part of a sentence
explaining that it generally takes two years to bring
a new product to market, and it did not apply the
compliance deadline to a product’s date of sale.
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reconsider its decision to allow video
programming providers and distributors
to enable the rendering or pass through
of captions to end users and instead
require video programming providers
and distributors, and digital source
devices, to pass through closed caption
data to consumer equipment.19 In the
Report and Order, the Commission
required video programming providers
and distributors to convey all required
captions to the end user, but it allowed
the provider or distributor to select
whether to render the captions or pass
them through. Pursuant to this
requirement, the Commission stated that
‘‘[w]hen a [video programming provider
or distributor] initially receives a
program with required captions for IP
delivery, we will require the [video
programming provider or distributor] to
include those captions at the time it
makes the program file available to end
users.’’ The Commission also
implemented the interconnection
mechanism provision of the CVAA,
which directs the Commission to
require that ‘‘interconnection
mechanisms and standards for digital
video source devices are available to
carry from the source device to the
consumer equipment the information
necessary to permit or render the
display of closed captions.’’ Consistent
with that provision, the Commission
required all video outputs of covered
apparatus to be capable of conveying
from the source device (such as an
MVPD set-top box) to the consumer
equipment (such as a television) the
information necessary to permit or
render the display of closed captions.
As a result, a digital source device (such
as a set-top box) is permitted to use a
video output such as HDMI, which does
not pass through captions in a closed
manner (i.e., HDMI does not transmit
the closed captions to the receiving
device as data alongside the video
stream), provided the source device
renders the closed captioning (i.e.,
decodes and mixes the closed captions
into the video stream).
27. TVGuardian asks the Commission
to reconsider its finding that video
programming providers and distributors
may enable the rendering (instead of the
pass through) of all required captions to
the end user, and that video outputs of
covered apparatus may convey from the
source device to the consumer
equipment the information necessary to
render the display of closed captions
(instead of passing through the closed
19 Because we reject TVGuardian’s argument on
substantive grounds, we find it unnecessary to
address the procedural arguments raised in various
oppositions filed in this proceeding.
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caption data). TVGuardian claims that
Congress intended to permit the
rendering of captions only if passing
them through would be technically
infeasible. We reject TVGuardian’s
proposed interpretation because such an
approach would effectively read the
term ‘‘or’’ out of the statutory language,
which permits the rendering or the pass
through of closed captions by video
programming providers, distributors,
and interconnection mechanisms, thus
indicating an intent by Congress to
permit alternative means by which a
video programming provider or
distributor and an interconnection
device may satisfy the statute. Not only
is TVGuardian’s proposed interpretation
inconsistent with the statute, but also
nothing in the legislative history
supports TVGuardian’s claim that
Congress only intended to permit the
rendering of closed captions if passing
them through would be technically
infeasible. Had Congress intended to
permit rendering only if pass through is
technically infeasible, it would have
included language to this effect. Instead,
the statute contains no such limitation.
28. The consumer electronics industry
has coalesced around the use of
HDMI,20 which permits the use of
rendered captions but does not pass
through closed captions, meaning that it
only conveys captions when they have
been decoded and mixed into the video
stream. The Commission found in the
Report and Order that HDMI complies
with the interconnection mechanism
requirements, and TVGuardian has not
presented any arguments that persuade
us that the Commission should modify
this determination. Rather, TVGuardian
has reiterated its prior arguments that
the Commission should require HDMI to
pass through closed caption data. The
Commission considered and rejected
such arguments in the Report and Order
when it concluded in implementing the
interconnection mechanism provision of
the CVAA ‘‘that it is sufficient, for
purposes of this provision, if the video
output of a digital source device renders
the closed captioning in the source
device. Accordingly, we find that the
20 TVGuardian asserts that HDMI violates the
existing television closed captioning rules,
seemingly based on the erroneous assumption that
those rules include an interconnection obligation
between the set-top box and the consumer display
device. The television closed captioning rules are
unrelated to the Commission’s implementation of
the CVAA in the Report and Order. In any event,
we agree with commenters that HDMI in fact
complies with the television closed captioning
rules, and that TVGuardian has improperly raised
the issue of HDMI’s compliance with the television
closed captioning rules through a petition for
reconsideration of the Report and Order, which did
not revise or address the television closed
captioning rules.
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manner in which the HDMI connection
carries captions satisfies the statutory
requirement for interconnection
mechanisms.’’ We also find persuasive
commenters’ rebuttal to TVGuardian’s
claim that it would not be costly to
modify HDMI to pass through closed
captions and that no additional
hardware would be needed. We agree
with commenters that the costs of any
required compliance with a pass
through requirement, including both
hardware changes and standard
revisions, would outweigh the benefits,
as we find that any particular benefit to
consumers who are deaf or hard of
hearing is unclear. We note that
TVGuardian’s petition fails to identify
any resulting benefits to individuals
who are deaf or hard of hearing arising
from its proposed interpretation. Rather,
TVGuardian’s request appears to be
focused solely on enabling the use of its
foul language filter, which operates
through the pass through of closed
caption data.21 TVGuardian’s foul
language filter will not operate with
rendered closed captions in the video
stream because the foul language filter
can only read data passed through as
closed captions. Significantly,
Consumer Groups did not file any
comments in support of TVGuardian’s
petition for reconsideration.
29. We also reject TVGuardian’s
claims that the provisions of the CVAA
on recording devices and
interconnection mechanisms must be
read together, which TVGuardian argues
would require the pass through of
closed caption data to consumer
equipment. TVGuardian claims that its
proposed approach is necessary to
ensure that recording devices enable
viewers to activate and deactivate
closed captions, as required by the
CVAA. We instead agree with HDMI
Licensing that nothing about the
Commission’s interpretation of these
two provisions is incompatible, because
a pass through mandate on HDMI is not
needed to enable recording devices to
activate and deactivate closed captions
on recorded programming, as explained
below. Commenters persuasively
express several problems with
TVGuardian’s claims that the
Commission’s interpretation of the
recording device provision and the
interconnection mechanism provision
are inconsistent. Specifically,
commenters explain that the
Commission does not need to change its
21 We note that nothing in our IP closed
captioning rules prevents TVGuardian from
negotiating with video programming distributors or
equipment manufacturers to obtain access to closed
caption data.
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interpretation of these provisions
because most recording devices already
comply with the requirement that they
enable viewers to activate and
deactivate closed captions, and they
explain that most consumer recording
devices such as DVRs do not use
interconnection mechanisms to receive
content in any event so revisions to the
implementation of the interconnection
mechanism provision would have no
effect on those recording devices.22 In
other words, few, if any, recording
devices acquire video programming via
an HDMI connection. Rather, the
overwhelming majority of DVRs acquire
programming via a built-in cable or
over-the-air tuner or via a built-in IP
connection. Thus, recording devices are
merely required to record the closed
captioning stream in addition to the
video stream for consumers to be able to
turn captioning on and off during
playback. Even if a recording device
utilizes HDMI to connect to additional
consumer electronics devices, it may
render closed captions instead of
passing them through, and the
consumer viewing programming on a
recording device may activate and
deactivate the closed captions.
C. Petition for Reconsideration of
Consumer Groups
1. Application of the IP Closed
Captioning Rules to Video Clips
30. At this time, we defer a final
decision on whether to reconsider the
issue of whether ‘‘video clips’’ 23 should
22 We also reject TVGuardian’s assertion that the
word ‘‘permit’’ in the interconnection mechanism
provision (‘‘interconnection mechanisms and
standards for digital video source devices are
available to carry from the source device to the
consumer equipment the information necessary to
permit or render the display of closed captions’’) is
meant to require recording devices and other
consumer equipment to enable the viewer to
activate and deactivate the closed captions, which
it claims requires the pass through of closed caption
data. Rather, as explained above, the CVAA permits
either the rendering or the pass through of closed
captions. The rendering of closed captions prior to
transmission of video over HDMI does not preclude
the viewer from activating and deactivating the
captions, when that function is present in the
source device. In other words, even when HDMI
renders closed captions instead of passing them
through, the viewer may activate and deactivate the
captions. Separately, because as explained above
we are not persuaded by TVGuardian’s central
argument that we should require video
programming providers and distributors and digital
video source devices to pass through closed caption
data to consumer equipment, we need not consider
its claims that we should make other related rule
revisions that would be necessitated by the grant of
its petition. We note that apparatus synchronization
requirements, which TVGuardian references, are
discussed further below.
23 The Commission has defined ‘‘video clips’’ as
‘‘[e]xcerpts of full-length video programming.’’ 47
CFR 79.4(a)(12). It has defined ‘‘full-length video
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be covered by the IP closed captioning
rules, and we will keep the record open
pending the development of additional
information regarding the availability of
captioned video clips.24 To ensure that
the Commission obtains updated
information on this issue, we direct the
Media Bureau to issue a Public Notice
within six months of the date of release
of this Order on Reconsideration,
seeking information on the industry’s
progress in captioning IP-delivered
video clips. Consumer Groups argue
that the Commission should undertake
a reconsideration of this issue at this
time and should find that IP-delivered
‘‘video clips’’ must be captioned.25
Consumers have expressed particular
concern about availability of captioned
news clips, which tend to be live or
near-live. We note that live or near-live
programming only recently became
subject to the IP closed captioning
requirements on March 30, 2013. Now
that this implementation deadline has
passed, we expect that entities subject to
the IP closed captioning rules will have
developed more efficient processes to
handle captioning of live and near-live
programming, including news clips that
are posted on Web sites. Thus we expect
that these entities voluntarily will
caption an increased volume of video
clips, particularly news clips, even
though the Commission’s IP closed
captioning requirements apply to fulllength programming and not video
clips. In the Report and Order, the
Commission ‘‘encourage[d] the industry
to make captions available on all TV
news programming that is made
available online, even if it is made
available through the use of video
clips.’’ Accordingly, we will monitor
industry actions with respect to
programming’’ as ‘‘[v]ideo programming that
appears on television and is distributed to end
users, substantially in its entirety, via Internet
protocol, excluding video clips or outtakes.’’ Id.
79.4(a)(2).
24 Consumer Groups recently submitted a report
on the state of closed captioning of IP-delivered
video programming in which they address the
current lack of captioning of video clips, among
other topics. We note that the Consumer Groups
May 2013 Report also urges the Commission to
impose quality standards on television closed
captioning. This issue is properly addressed in the
pending proceeding on the quality of closed
captioning on television.
25 Google agrees with Consumer Groups that
video clips should be captioned, which would
increase accessibility. Some commenters argue that
Consumer Groups failed to meet the procedural
requirements for petitions for reconsideration.
Consumer Groups respond that there is no
procedural impropriety because reconsideration
would serve the public interest, and in such cases
petitions for reconsideration are always
appropriate. Because we decline, at this time, to
resolve Consumer Groups’ request regarding video
clips, we need not consider these procedural issues
here.
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captioning of video clips, and within six
months we direct the Media Bureau to
issue a Public Notice to seek updated
information on this topic. If the record
developed in response to that Public
Notice demonstrates that consumers are
denied access to critical areas of video
programming due to lack of captioning
of IP-delivered video clips, we may
reconsider our decision on this issue.
2. Propriety of Synchronization
Requirements for Apparatus
31. Consumer Groups argue that the
Commission should reconsider its
decision not to impose any timing
obligations on device manufacturers
pursuant to section 203, and that this
decision contravened Congress’s intent
and the VPAAC’s consensus. In the
Report and Order, the Commission
considered the timing of the
presentation of caption text with respect
to the video in the context of apparatus
requirements, and it concluded that ‘‘it
is inappropriate to . . . address[] the
timing of captions with video, here,’’
concluding instead that ‘‘ensuring that
timing data is properly encoded and
maintained through the captioning
interchange and delivery system is an
obligation of [s]ection 202 [video
programming distributors and
providers] and not of device
manufacturers.’’ Consumer Groups
argue that the Commission should
reconsider this conclusion and instead
should impose on manufacturers
obligations related to the
synchronization of caption text and the
corresponding video. We find that we
need more information before we
resolve this issue, because commenters
disagree as to whether apparatus may
cause captions to appear out of synch
with the video, whether existing
standards would enable manufacturers
to address the timing of captions, and
whether video programming owners,
providers, and distributors are better
suited than manufacturers to ensure
proper captioning synchronization.
Accordingly, in the FNPRM we consider
whether we should impose closed
captioning synchronization
requirements on apparatus, and if so,
what those requirements should entail.
IV. Procedural Matters
A. Regulatory Flexibility Act
32. The Regulatory Flexibility Act of
1980, as amended (‘‘RFA’’) requires that
a regulatory flexibility analysis be
prepared for rulemaking proceedings,
unless the agency certifies that ‘‘the rule
will not have a significant economic
impact on a substantial number of small
entities.’’ The RFA generally defines
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‘‘small entity’’ as having the same
meaning as the terms ‘‘small business,’’
‘‘small organization,’’ and ‘‘small
governmental jurisdiction.’’ In addition,
the term ‘‘small business’’ has the same
meaning as the term ‘‘small business
concern’’ under the Small Business Act.
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
Small Business Administration (SBA).
33. Final Regulatory Flexibility
Certification. As required by the RFA, as
amended, the Commission has prepared
this Final Regulatory Flexibility
Certification of the possible impact on
small entities of the Order on
Reconsideration. In this proceeding, the
Commission’s goal remains to
implement Congress’s intent to better
enable individuals who are deaf or hard
of hearing to view video programming.
The Commission addresses three
petitions for reconsideration of the IP
Closed Captioning Order, which created
rules for the owners, providers, and
distributors of IP-delivered video
programming and for the apparatus on
which consumers view video
programming.
34. Pursuant to the RFA, a Final
Regulatory Flexibility Analysis
(‘‘FRFA’’) was incorporated into the IP
Closed Captioning Order. The instant
Order on Reconsideration grants certain
narrow class waivers of the apparatus
requirements, and grants temporary
extensions of the compliance deadline
to some DVD players and to Blu-ray
players, which will have, if anything, a
positive impact on small entities subject
to the requirements, thereby reducing
any potential economic impact. The
Order on Reconsideration also changes
the Commission’s rules by: (1) Revising
references to ‘‘video programming
players’’ in a note to § 79.103 of our
rules to better conform to the statutory
text of the CVAA; and (2) clarifying that
the January 1, 2014 deadline refers only
to the date of manufacture, and not to
the date of importation, shipment, or
sale. These rule changes merely serve to
better conform the rule language to the
language codified by Congress, and to
clarify the deadline applicable to
apparatus. Therefore, we certify that the
requirements of this Order on
Reconsideration will not have a
significant economic impact on a
substantial number of small entities.
35. The Commission will send a copy
of the Order on Reconsideration,
including a copy of this Final
Regulatory Flexibility Certification, in a
report to Congress pursuant to the
Congressional Review Act, see 5 U.S.C.
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Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Rules and Regulations
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.
B. Paperwork Reduction Act
36. The Order on Reconsideration
does not contain new or modified
information collection requirements
subject to the Paperwork Reduction Act
of 1995 (‘‘PRA’’), Public Law 104–13. In
addition, therefore, it does not contain
any new or modified ‘‘information
collection burden for small business
concerns with fewer than 25
employees,’’ pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4).
emcdonald on DSK67QTVN1PROD with RULES
801(a)(1)(A). In addition, the Order on
Reconsideration and this certification
will be sent to the Chief Counsel for
Advocacy of the Small Business
Administration, and will be published
in the Federal Register. See 5 U.S.C.
605(b).
D. Additional Information
38. For additional information on this
proceeding, contact Diana Sokolow,
Diana.Sokolow@fcc.gov, or Maria
Mullarkey, Maria.Mullarkey@fcc.gov, of
the Media Bureau, Policy Division, (202)
418–2120.
C. Ex Parte Rules
37. Permit-But-Disclose. This
proceeding shall be treated as a ‘‘permitbut-disclose’’ proceeding in accordance
with the Commission’s ex parte rules.
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
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
§ 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
VerDate Mar<15>2010
16:51 Jul 01, 2013
Jkt 229001
V. Ordering Clauses
39. Accordingly, it is ordered that
pursuant to the Twenty-First Century
Communications and Video
Accessibility Act of 2010, Public Law
111–260, 124 Stat. 2751, and the
authority found 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 Order on
Reconsideration is adopted, effective
thirty (30) days after the date of
publication in the Federal Register.
40. It is ordered that, pursuant to the
Twenty-First Century Communications
and Video Accessibility Act of 2010,
Public Law 111–260, 124 Stat. 2751, and
the authority found 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, the Commission’s
rules are hereby amended as set forth
below.
41. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Order on Reconsideration in MB
Docket No. 11–154, including the Final
Regulatory Flexibility Certification, to
the Chief Counsel for Advocacy of the
Small Business Administration.
42. It is further ordered that the
Commission shall send a copy of the
Order on Reconsideration in MB Docket
No. 11–154 in a report to be sent to
Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
43. It is further ordered that CEA’s
Petition for Reconsideration, filed April
30, 2012, is granted in part and denied
in part, to the extent provided herein.
44. It is further ordered that
TVGuardian’s Petition for
Reconsideration, filed April 16, 2012, is
denied.
45. It is further ordered that, pursuant
to the authority found in section
303(u)(2)(C)(i) of the Communications
PO 00000
Frm 00085
Fmt 4700
Sfmt 4700
39627
Act of 1934, as amended, and § 1.3 of
the Commission’s rules, 47 CFR 1.3, a
waiver of the closed captioning
requirements for two narrow classes of
apparatus is granted to the extent
provided herein.
46. It is further ordered that a
temporary extension of the closed
captioning compliance deadline for
DVD players that do not render or pass
through closed captions, and for Blu-ray
players, is granted to the extent
provided herein.
47. It is further ordered that, pursuant
to the authority found in § 1.3 of the
Commission’s rules, 47 CFR 1.3, a
waiver of the Commission’s
interconnection mechanism
requirement for DVD players that use
their analog output to pass through
closed captions to the television is
granted to the extent provided herein.
List of Subjects in 47 CFR Part 79
Cable television operators,
Communications equipment,
Multichannel video programming
distributors (MVPDs), Satellite
television service providers, Television
broadcasters.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 79 as
follows:
PART 79—CLOSED CAPTIONING AND
VIDEO DESCRIPTION OF VIDEO
PROGRAMMING
1. 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, 330, 544a, 613, 617.
2. Amend § 79.101 by adding a note to
paragraph (a)(2) to read as follows:
■
§ 79.101 Closed caption decoder
requirements for analog television
receivers.
(a) * * *
(2) * * *
Note to paragraph (a)(2): This paragraph
places no restrictions on the importing,
shipping, or sale of television receivers that
were manufactured before January 1, 2014.
*
*
*
*
*
3. Amend § 79.102 by adding a note to
paragraph (a)(3) to read as follows:
■
§ 79.102 Closed caption decoder
requirements for digital television receivers
and converter boxes.
(a) * * *
E:\FR\FM\02JYR1.SGM
02JYR1
39628
Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Rules and Regulations
*
ensure regulated entities and the general
public have an accurate critical habitat
map for the species. This action does
not change the designated critical
habitat for the fountain darter.
DATES: This rule is effective July 2,
2013.
■
ADDRESSES:
(3) * * *
Note to paragraph (a)(3): This paragraph
places no restrictions on the importing,
shipping, or sale of digital television
receivers and separately sold DTV tuners that
were manufactured before January 1, 2014.
*
*
*
*
4. Amend § 79.103 by revising the
note to paragraph (a) to read as follows:
§ 79.103 Closed caption decoder
requirements for all apparatus.
(a) * * *
Note 1 to paragraph (a): Apparatus
includes the physical device and the video
player(s) capable of displaying video
programming transmitted simultaneously
with sound that manufacturers install into
the devices they manufacture before sale,
whether in the form of hardware, software, or
a combination of both, as well as any video
players capable of displaying video
programming transmitted simultaneously
with sound that manufacturers direct
consumers to install after sale.
Note 2 to paragraph (a): This paragraph
places no restrictions on the importing,
shipping, or sale of apparatus that were
manufactured before January 1, 2014.
*
*
*
*
*
5. Amend § 79.104 by adding a note to
paragraph (a) to read as follows:
■
§ 79.104 Closed caption decoder
requirements for recording devices.
(a) * * *
Note to paragraph (a): This paragraph
places no restrictions on the importing,
shipping, or sale of apparatus that were
manufactured before January 1, 2014.
*
*
*
*
*
[FR Doc. 2013–15718 Filed 7–1–13; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R2–ES–2013–0064;
4500030114]
RIN 1018–AZ68
Endangered and Threatened Wildlife
and Plants; Critical Habitat Map for the
Fountain Darter
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
emcdonald on DSK67QTVN1PROD with RULES
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), are correcting
the critical habitat map for the fountain
darter (Etheostoma fonticola) in our
regulations. We are taking this action to
SUMMARY:
VerDate Mar<15>2010
16:51 Jul 01, 2013
Jkt 229001
This final rule is available
on the Internet at https://
www.regulations.gov under Docket No.
FWS–R2–ES–2013–0064.
FOR FURTHER INFORMATION CONTACT:
Adam Zerrenner, Field Supervisor, U.S.
Fish and Wildlife Service, Austin
Ecological Services Field Office, 10711
Burnet Road, Suite 200, Austin, TX
78758; telephone 512–490–0057; or
facsimile 512–490–0974. Persons who
use a telecommunications device for the
deaf (TDD) may call the Federal
Information Relay Service (FIRS) at
800–877–8339.
SUPPLEMENTARY INFORMATION: Section
17.95 of the regulations in title 50 of the
Code of Federal Regulations (CFR)
provides critical habitat information,
including maps and textual
descriptions, for endangered and
threatened wildlife.
On July 14, 1980, we published a final
rule (45 FR 47355) designating critical
habitat for the fountain darter; that
critical habitat entry provided both a
correct map and correct textual
description. However, starting with the
1986 publication, and continuing in the
1989 publication through the current
edition, of the CFR, the critical habitat
entry for the fountain darter includes an
incorrect critical habitat map for that
species. Instead of showing the correct
map, the fountain darter’s entry shows
the critical habitat map for the San
Marcos gambusia (Gambusia georgei).
The textual description of the
designated critical habitat for the
fountain darter has remained correct
since its 1980 publication, and the
incorrect map does not match the
correct textual description of critical
habitat.
This final rule removes the incorrect
critical habitat map, and adds in its
place the correct critical habitat map, for
the fountain darter. It does not change
the designated critical habitat for the
fountain darter, as, according to 50 CFR
17.94(b)(2), for critical habitat
designations published and effective on
or prior to May 31, 2012, the map
provided by the Secretary of the Interior
is for reference purposes to guide
Federal Agencies and other interested
parties in locating the general
boundaries of the critical habitat. In
such cases, the map does not, unless
otherwise indicated, constitute the
PO 00000
Frm 00086
Fmt 4700
Sfmt 4700
definition of the boundaries of a critical
habitat.
This action is administrative in
nature. We are providing regulated
entities and the general public with an
accurate critical habitat map, which is
for reference purposes only, for the
fountain darter. This is a final rule. In
accordance with 5 U.S.C. 553(d)(3) of
the Administrative Procedure Act, we
may make this rule effective in less than
30 days if we have ‘‘good cause’’ to do
so. The rule provides an accurate map,
and this action will benefit regulated
entities and the general public.
Therefore, we find that we have ‘‘good
cause’’ to make this rule effective
immediately.
Required Determinations
Regulatory Planning and Review—
Executive Orders 12866 and 13563
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) will review all significant
rules. The OIRA has determined that
this rule is not significant.
Executive Order 13563 reaffirms the
principles of E.O. 12866 while calling
for improvements in the nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq., as amended by the
Small Business Regulatory Enforcement
Fairness Act (SBREFA) of 1996 (Pub. L.
104–121), whenever an agency is
required to publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
effect of the rule on small entities (that
is, small businesses, small
organizations, and small government
jurisdictions). However, no regulatory
flexibility analysis is required if the
head of an agency certifies the rule will
E:\FR\FM\02JYR1.SGM
02JYR1
Agencies
[Federal Register Volume 78, Number 127 (Tuesday, July 2, 2013)]
[Rules and Regulations]
[Pages 39619-39628]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15718]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 79
[MB Docket No. 11-154; FCC 13-84]
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission affirms, modifies, and clarifies certain
decisions adopted in the Report and Order in MB Docket No. 11-154
regarding closed captioning requirements for video programming
delivered using Internet protocol (``IP'') and apparatus used by
consumers to view video programming. The action is taken in response to
three petitions for reconsideration of the Report and Order, which
adopted rules governing the closed captioning requirements for the
owners, providers, and distributors of IP-delivered video programming
and rules governing the closed captioning capabilities of certain
apparatus on which consumers view video programming.
DATES: Effective August 1, 2013.
FOR FURTHER INFORMATION CONTACT: Diana Sokolow, Diana.Sokolow@fcc.gov,
or Maria Mullarkey, Maria.Mullarkey@fcc.gov, of the Policy Division,
Media Bureau, (202) 418-2120.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration, FCC 13-84, adopted on June 13, 2013 and released on
June 14, 2013. The full text of this document is available for public
inspection and copying during regular business hours in the FCC
Reference Center, Federal Communications Commission, 445 12th Street,
SW., Room CY-A257, Washington, DC 20554. This document will also be
available via ECFS at https://fjallfoss.fcc.gov/ecfs/. Documents will be
available electronically in ASCII, Microsoft Word, 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
email to fcc504@fcc.gov or calling the Commission's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Paperwork Reduction Act of 1995 Analysis
This document does not contain new or modified information
collection requirements subject to the Paperwork Reduction Act of 1995
(PRA), Public Law 104-13. In addition, therefore, it does not contain
any new or modified ``information collection burden for small business
concerns with fewer than 25 employees,'' pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4).
Summary of the Order on Reconsideration
I. Introduction
1. In this Order on Reconsideration, we affirm, modify, and clarify
certain decisions adopted in the Report and Order in MB Docket No. 11-
154 regarding closed captioning requirements for video programming
delivered using Internet protocol (``IP'') and apparatus used by
consumers to view video programming. The actions we take will provide
the industry and consumers with certainty about the scope of the
captioning obligations before the January 1, 2014 compliance deadline
for apparatus.
2. Specifically, we address three petitions for reconsideration of
the Report and Order, which adopted rules governing the closed
captioning requirements for the owners, providers, and distributors of
IP-delivered video programming and rules governing the closed
captioning capabilities of certain apparatus on which consumers view
video programming. First, we address the Petition for Reconsideration
of the Consumer Electronics Association (``CEA'') by: (1) Granting
narrow class waivers for certain apparatus that are primarily designed
for activities other than receiving or playing back video programming,
while denying CEA's broader request that the Commission narrow the
scope of Sec. 79.103 of its rules; (2) denying CEA's request that
removable media players are not subject to the closed captioning
requirements but, at the same time, temporarily extending the
compliance deadlines for Blu-ray players as well as for those DVD
players that do not currently render or pass through captions, pending
resolution of the Further Notice of Proposed Rulemaking (``FNPRM'');
\1\ and (3) granting CEA's request to modify the January 1, 2014
deadline applicable to apparatus to refer only to the date of
manufacture, and not to the date of importation, shipment, or sale.
Second, we deny the Petition for Reconsideration of TVGuardian, LLC
(``TVGuardian''), which requests that the Commission reconsider its
decision to allow video programming providers and distributors to
enable the rendering or pass through of captions to end users and
instead to require video programming providers and distributors, and
digital source devices, to pass through closed captioning data to
consumer equipment. Third, we address the Petition for Reconsideration
of Consumer Groups by: (1) deferring resolution of whether to
reconsider the Commission's decision to exclude video clips from the
scope of the IP closed captioning rules, and directing the Media Bureau
to issue a Public Notice to seek updated information on this topic
within six months; and (2) issuing an FNPRM to obtain further
information necessary to determine whether the Commission should impose
synchronization requirements on device manufacturers. Our goal in this
proceeding remains to implement Congress's intent to better enable
individuals who are deaf or hard of hearing to view video programming.
In considering the requests made in the petitions for reconsideration,
we have evaluated the effect on consumers who are deaf or hard of
hearing as well as the cost of compliance to affected entities.
---------------------------------------------------------------------------
\1\ The FNPRM, adopted with the Order on Reconsideration, is
published elsewhere in this publication.
---------------------------------------------------------------------------
II. Background
3. On October 8, 2010, President Obama signed into law the Twenty-
First Century Communications and Video Accessibility Act of 2010
(``CVAA''). The CVAA required the Commission, by January 12, 2012, to
establish closed captioning rules for the owners, providers, and
distributors of IP-delivered video programming, and for certain
apparatus on which consumers view video programming. The CVAA also
required the Commission to establish an advisory committee known as the
Video Programming Accessibility
[[Page 39620]]
Advisory Committee (``VPAAC''), which submitted its statutorily
mandated report on closed captioning of IP-delivered video programming
to the Commission on July 12, 2011 (``VPAAC First Report''). The
Commission initiated this proceeding in September 2011, and it adopted
the Report and Order on January 12, 2012. In the NPRM and the Report
and Order, the Commission provided extensive background information
regarding the history of closed captioning, IP-delivered closed
captioning, applicable provisions of the CVAA, the VPAAC First Report,
and the evolution of video programming distribution, which we need not
repeat here.
4. The Report and Order was published in the Federal Register on
March 30, 2012. CEA, TVGuardian, and Consumer Groups each filed a
timely petition for reconsideration within 30 days of the Federal
Register publication date. Each of the petitions for reconsideration is
discussed in turn below.
III. Order On Reconsideration
A. Petition for Reconsideration of the Consumer Electronics Association
1. Scope of the Apparatus Closed Captioning Rules
5. As explained below, we address CEA's claims regarding the scope
of the Commission's apparatus closed captioning rules, adopted pursuant
to section 203 of the CVAA, by: (1) Affirming the Commission's decision
that, to determine what an apparatus was ``designed to'' accomplish, we
should consider the capabilities of the apparatus and not the
manufacturer's subjective intent; (2) revising the note to paragraph
(a) of Sec. 79.103 of our rules to be more consistent with the
statute; and (3) exempting through waiver certain narrow classes of
apparatus that are primarily designed for activities unrelated to
receiving or playing back video programming \2\ transmitted
simultaneously with sound.
---------------------------------------------------------------------------
\2\ Herein we use the phrase ``video programming'' as the CVAA
defines the term, which is ``programming by, or generally considered
comparable to programming provided by a television broadcast
station, but not including consumer-generated media. . . .'' 47
U.S.C. 613(h)(2).
---------------------------------------------------------------------------
6. Meaning of ``designed to.'' We affirm the Commission's decision
in the Report and Order that the determination of whether an apparatus
was ``designed to receive or play back video programming transmitted
simultaneously with sound'' and therefore covered by section 203 of the
CVAA, should turn on the capabilities of the apparatus, not the
manufacturer's intent. CEA argues that the statutory phrase ``designed
to'' suggests that the closed captioning apparatus rules may only reach
apparatus that the manufacturer intends to receive, play back, or
record video programming.\3\ We disagree. Nowhere does the statute
reference the ``intent'' underlying the design and manufacture of an
apparatus.
---------------------------------------------------------------------------
\3\ Consumer Groups point out that CEA fails to add any
substance to its argument on this issue from what it argued during
the rulemaking proceeding, and argue that the Commission should
reject the argument again. CEA disagrees, citing to specific new
facts and arguments that it presented in its petition, and arguing
that reconsideration is warranted to serve the public interest.
---------------------------------------------------------------------------
7. We disagree with CEA that Congress meant its use of the word
``designed'' to impose a consideration of the manufacturer's intent.
Instead, we reiterate our finding in the Report and Order that we
should look to the device's functionality, i.e., whether it is capable
of receiving or playing back video programming, to determine what the
device was designed to accomplish. CEA's proposed approach of
considering the manufacturer's intent would allow the manufacturer
unilaterally to dictate whether an apparatus falls within the scope of
the rules, which could harm consumers by making compliance with the
apparatus closed captioning requirements effectively voluntary. Such an
approach would not be consistent with Congress's intent to ``ensure[]
that devices consumers use to view video programming are able to
display closed captions,'' because devices that consumers actually use
to view video programming might not have closed captioning capability
if manufacturers could evade our requirements by claiming that they did
not intend such use. CEA has not raised any new arguments that persuade
us that the Commission's reasoning in the Report and Order was
incorrect. Accordingly, we affirm our findings in the Report and Order
and deny CEA's petition for reconsideration on this issue.
8. Definition of video player. We revise our definition of
``apparatus'' to make clear that the ``video players'' it includes are
those capable of displaying video programming transmitted
simultaneously with sound. The note to paragraph (a) of Sec. 79.103 of
our rules currently reads: ``Apparatus includes the physical device and
the video players that manufacturers install into the devices they
manufacture before sale, whether in the form of hardware, software, or
a combination of both, as well as any video players that manufacturers
direct consumers to install after sale.'' CEA argues that the
Commission should revise the note to Sec. 79.103(a) of our rules to
replace the term ``video player'' with ``video programming player,''
and that we should define a ``video programming player'' as ``a
component, application, or system that is specifically intended by the
manufacturer to enable access to video programming, not video in
general.'' CEA claims that its approach would be consistent with
Congress's intent to limit the application of the apparatus closed
captioning rules to apparatus containing a subset of video players, not
all video players, and that the Commission's approach in the Report and
Order exceeded its statutory authority by going beyond this intent.
Consumer Groups indicate their broad opposition to CEA's arguments, but
they do not make more specific assertions regarding the definition of
``video players'' subject to our rules.
9. To address CEA's argument that our rules should only reach a
subset of video players, and to make the language in our rule more
consistent with the statute, we revise the note to Sec. 79.103(a) of
our rules to replace references to ``video players'' with ``video
player(s) capable of displaying video programming transmitted
simultaneously with sound.'' Here, as elsewhere in the rules adopted in
the Report and Order, we intend the term ``video programming'' to have
the same meaning it was given in the CVAA. Accordingly, a video player
that is not capable of displaying programming provided by, or generally
considered comparable to programming provided by, a television
broadcast station, excluding consumer-generated media, is not subject
to the rules. For example, a video player that is only capable of
displaying home videos that a consumer recorded on the device is not
``capable of displaying video programming transmitted simultaneously
with sound.'' We believe that by clarifying the language of our rules
to specify video players that are capable of displaying ``video
programming transmitted simultaneously with sound,'' we will address
CEA's fundamental concern that our definition of ``apparatus'' should
be consistent with the CVAA.
10. We decline to replace the term ``video player'' with ``video
programming player'' in the note to Sec. 79.103(a). CEA's proposed
definition of ``video programming player'' relies upon a consideration
of the manufacturer's intent, by defining a ``video programming
player'' as ``a component, application, or system that is specifically
intended by the
[[Page 39621]]
manufacturer to enable access to video programming.'' As discussed
above, we disagree with CEA that we should look to manufacturer intent.
In any event, such a change is unnecessary because the revised
definition we adopt in this Order on Reconsideration accomplishes CEA's
goal of making the definition no broader than Congress intended.
11. Narrow class waivers for certain apparatus. Even with the
clarification above that our closed captioning apparatus rules cover
video players capable of displaying video programming transmitted
simultaneously with sound, we find a waiver to be appropriate for
certain narrow classes of apparatus. For example, digital still cameras
may be covered by our apparatus rules because they may enable consumers
to use a memory card to view video programming via the apparatus's
video player. Accordingly, in response to CEA's petition for
reconsideration, we now exempt through waiver certain narrow classes of
apparatus that are ``primarily designed'' for activities unrelated to
receiving or playing back video programming transmitted simultaneously
with sound. The CVAA provides the Commission with authority, on its own
motion or in response to a petition, to waive the apparatus closed
captioning requirements for any apparatus or class of apparatus
``primarily designed for activities other than receiving or playing
back video programming transmitted simultaneously with sound.'' The
Report and Order stated that such waivers will be addressed on a case-
by-case basis and rejected overly broad waiver requests made by several
commenters. CEA argues that certain apparatus, such as digital still
cameras and consumer video cameras, should not be subject to our rules
because their manufacturers did not intend these apparatus to be used
for receiving or playing back video programming. Although, for the
reasons stated above, we do not agree that our analysis turns on the
manufacturer's intent, we agree with CEA that these types of devices
should not be subject to our rules and, as described below, we grant
waivers to those devices that meet the statutory criteria for waiver as
described below.
12. We grant a waiver pursuant to section 303(u)(2)(C)(i) for two
classes of apparatus that we find, based on the standard described
below, are ``primarily designed for activities other than receiving or
playing back video programming transmitted simultaneously with sound.''
Upon consideration of that standard, we conclude that the following two
classes of apparatus qualify for waiver: (i) devices that are primarily
designed to capture and display still and/or moving images consisting
of consumer-generated media, or of other images that are not video
programming as defined under the CVAA and our rules, and that have
limited capability to display video programming transmitted
simultaneously with sound; \4\ and (ii) devices that are primarily
designed to display still images and that have limited capability to
display video programming transmitted simultaneously with sound.\5\ In
determining whether an apparatus or class of apparatus falls within the
scope of the ``primarily designed'' waiver, we look at the various
functions and capabilities of the apparatus or class of apparatus.
Where the apparatus's ability to display video programming, as that
term is defined in the CVAA and our rules, is only incidental, then we
will determine that such apparatus is ``primarily designed for
activities other than receiving or playing back video programming
transmitted simultaneously with sound.'' In determining whether an
apparatus's ability to display video programming is incidental, we
objectively look at the activities for which consumers use the
apparatus, based on the apparatus's functions and capabilities and the
ease with which consumers can use the apparatus to receive or play back
video programming.\6\ Again, the manufacturer's subjective intent is
not considered in this analysis.
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\4\ This category includes, for example, digital still cameras,
digital video cameras, baby monitors, security cameras, digital
video camera microscopes, digital playback binoculars (which act as
a combination of a binocular and a digital camera), and digital
probes for viewing and playing video of enclosed spaces (which
capture still and/or moving images of spaces that are difficult to
reach). One factor critical to our waiver analysis is that for the
listed devices, consumers use the video playback feature or function
to play back the consumer-generated images (still or moving) taken
by the device; but it would take additional effort by the consumer
to adapt the device to access video programming. By contrast, this
category does not include devices such as cell phones that capture
images but that consumers use for other purposes, including
receiving or playing back video programming transmitted
simultaneously with sound, as evidenced, for example, by the
inclusion of Internet capability on such devices. Finally, we
emphasize that the list of devices identified above is intended to
be merely illustrative, and not exhaustive, of the types of devices
that qualify under this waiver class.
\5\ This category includes, for example, digital picture frames.
It does not include digital picture frames that are primarily
designed to display still photographs and video, because consumers
could use such frames to display video programming, and thus the
frames could operate much like a television screen.
\6\ We find that in general, the devices about which CEA
expressed specific concerns (digital still cameras, digital video
cameras, baby monitors, security cameras, digital video camera
microscopes, digital playback binoculars, digital picture frames
that display photos, and digital probes for viewing and playing
video of enclosed spaces) have only an incidental ability to view
video programming, if there is any such capability, because
consumers purchase the devices for activities unrelated to receiving
or playing back video programming (for example, in the case of
digital still cameras, for taking photographs), and consumers cannot
easily use the devices to receive or play back video programming.
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13. For example, applying this analysis to digital cameras, we find
that it would be difficult for consumers to view video programming on
digital cameras with no ability to receive content from the Internet
because doing so would require transferring video programming to a
memory card on another device, and then inserting the memory card into
the camera. The inconvenience of taking these steps in order to view
video programming on the camera screen, including the fact that a
camera lacks the full panoply of playback controls typically used to
view video programming, leads us to conclude that the device's ability
to display video programming is incidental. Accordingly, digital
cameras are an example of a device that is subject to the waiver as
part of the first class of apparatus described above: devices that are
primarily designed to capture and display still and/or moving images
consisting of consumer-generated media, or of other images that are not
video programming as defined under the CVAA and our rules, and that
have limited capability to display video programming transmitted
simultaneously with sound. In contrast, if a digital camera includes a
general purpose operating system such as Android, and it can receive
content from the Internet and easily display video programming
transmitted simultaneously with sound in that manner, then its ability
to display video programming will be considered to be more than
incidental because it includes more video playback controls (via its
Internet connectivity) and the ability to receive content from the
Internet suggests that consumers use the apparatus to view video
programming available online.
14. As stated above, under the test described herein, we find the
following two classes of devices will qualify for waiver: (i) devices
that are primarily designed to capture and display still and/or moving
images consisting of consumer-generated media, or of other images that
are not video programming as defined under the CVAA and our rules, and
that have limited capability to display video programming transmitted
simultaneously with sound; and (ii)
[[Page 39622]]
devices that are primarily designed to display still images and that
have limited capability to display video programming transmitted
simultaneously with sound. We find that identifying the classes of
apparatus that qualify for waiver rather than identifying a finite set
of specific devices will provide industry with adequate certainty and
will alleviate the need for manufacturers to seek individual waivers
for each and every device that meets the specified criteria for the
waiver class.\7\ If it is unclear whether a particular apparatus
qualifies for the waiver described herein, or if the manufacturer seeks
a waiver pursuant to a separate provision of the CVAA that authorizes
waivers for multi-purpose devices, then the device manufacturer may
file a waiver request, which we will consider on a case-by-case basis.
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\7\ We find that there is good cause to grant the waivers.
Specifically, the waivers would serve the public interest by
avoiding imposing captioning compliance costs on apparatus where
there is no evidence that consumers purchase such apparatus to
receive or play back video programming transmitted simultaneously
with sound. Additionally, the waivers are narrow and consistent with
the CVAA: they apply only to apparatus primarily designed for
activities other than receiving or playing back video programming
transmitted simultaneously with sound, where any ability to display
video programming is only incidental.
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15. Although CEA would have preferred that the Commission amend its
rules so that they do not encompass certain devices,\8\ we find that
our approach of defining narrow class waivers serves the objectives of,
and is most consistent with, the CVAA, which specifically grants us
authority to waive the closed captioning requirements for specific
classes of apparatus.\9\ As explained above, we thus exercise our
discretion to proceed by waiver consistent with the statute. We expect
that the class waivers granted herein will provide manufacturers with
certainty as to the status of the devices subject to the waivers, and
thus, will not stifle innovation.
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\8\ CEA also argues that the presence of a waiver mechanism
cannot save or justify an irrational rule.
\9\ Manufacturers are free to file additional requests for
waiver with respect to other apparatus or classes of apparatus and
we will rule on those requests based upon the facts presented. The
CVAA provides the Commission with the authority to waive the
apparatus closed captioning requirements based on the apparatus's
primary purpose either in response to a petition by a manufacturer
or on its own motion. 47 U.S.C. 303(u)(2)(C). Thus, we reject
Consumer Groups' claims that we should decline to act on CEA's
request in this Order on Reconsideration and instead should require
manufacturers to file individual requests for waiver. We find that
addressing the waivers herein is the most administratively efficient
approach, and we note that Consumer Groups have not objected on the
merits to the grant of the waivers for these narrow classes of
apparatus.
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2. Application of the Apparatus Rules to Removable Media Players
16. CEA requests that the Commission reconsider its legal analysis
that concludes that removable media players are apparatus covered by
Sec. 79.103 of the Commission's rules, and thus must be equipped with
capability to display closed-captioned programming. Although we deny
CEA's petition for reconsideration on this issue, we find that some DVD
players currently satisfy the closed captioning requirements of the
CVAA. With regard to other DVD players as well as Blu-ray players, we
temporarily extend the deadline for compliance with our apparatus
closed captioning rules pending resolution of the FNPRM on this
issue.\10\
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\10\ Although DVD players generally are single-purpose devices,
manufacturers often include Blu-ray players in multi-purpose
devices. The extension granted herein applies only to the removable
media playback function of a DVD or Blu-ray player, and it does not
apply to any other function of a device that contains a DVD or Blu-
ray player. For example, if a Blu-ray player also records video
programming or receives or plays back IP-delivered video
programming, then the extension does not apply with respect to the
non-removable media playback function.
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17. As an initial matter, we reject two statutory arguments CEA
makes in support of its request to exempt removable media players from
the scope of the apparatus closed captioning rules. First, we reject
CEA's argument that the phrase ``transmitted simultaneously with
sound'' appearing in section 203 requires transmission by wire or
radio, and not merely the act of a user playing back video programming.
CEA has reiterated its previous arguments regarding this issue, arguing
again that ``transmitted'' means sent across a distance by wire or
radio. The Commission has already considered, addressed, and rejected
these arguments in the Report and Order. We reaffirm the Commission's
prior analysis that the phrase ``transmitted simultaneously with
sound'' describes how video programming is conveyed from the device to
the end user, and not how the video programming arrives at the
device.\11\
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\11\ Section 203 of the CVAA expressly applies to ``apparatus
designed to receive or play back video programming transmitted
simultaneously with sound.'' 47 U.S.C. 303(u)(1) (emphasis added).
Accordingly, we reject CEA's claim that the Commission's
interpretation of ``transmitted simultaneously with sound'' as
describing how the video programming is conveyed from the device to
the end user is inconsistent with section 2(a) of the Communications
Act of 1934, as amended (the ``Act''), which generally limits the
Commission's jurisdiction to ``interstate and foreign communication
by wire or radio'' and ``does not extend to the playback function of
a consumer electronics device designed to play back content that is
outside the scope of the Commission's authority.'' Rather, the plain
language of the CVAA states that the Commission's apparatus closed
captioning rules apply to apparatus that play back video programming
transmitted simultaneously with sound, and this specific grant of
jurisdiction is not limited by the authority granted in section 2(a)
of the Act. See Morales v. Trans World Airlines, Inc., 504 U.S. 374,
384-85 (1992) (``it is a commonplace of statutory construction that
the specific governs the general''). Nonetheless, industry members
have provided new factual evidence regarding DVD and Blu-ray
players, which persuades us to grant the extension discussed below.
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18. Second, we reject CEA's claim that Congress did not intend to
reach removable media players within the scope of the closed captioning
requirements, and that their inclusion thus exceeds Commission
authority. CEA has reiterated its previous arguments regarding this
issue, arguing that ``Congress meant to extend coverage to devices that
play back content that was sent to the device by means (e.g., via IP)
other than traditional broadcasting or cable service,'' and not to
``extend[] captioning requirements to removable media players.'' The
Commission has already considered, addressed, and rejected these
arguments in the Report and Order. We reaffirm the Commission's prior
analysis in this proceeding, finding that Congress indicated that
section 203 of the CVAA applies to ``apparatus designed to receive or
play back video programming,'' and it did not limit the scope of
covered apparatus from reaching apparatus that only play back video
programming as CEA claims.
19. DVD players. Having rejected CEA's statutory arguments, we find
that some DVD players currently satisfy the closed captioning
requirements of the CVAA. For other DVD players we temporarily extend
the deadline for compliance with our apparatus closed captioning rules
pending resolution of the FNPRM on this issue. The apparatus closed
captioning rules and the CVAA itself require apparatus to ``be equipped
with built-in closed caption decoder circuitry or capability designed
to display closed-captioned video programming.'' To the extent that any
DVD players render closed captions, they are not subject to the
extension granted herein because they comply with the CVAA and our
implementing rules since they are ``equipped with built-in closed
caption decoder circuitry . . . designed to display closed-captioned
video programming'' on a television. Other DVD players use their analog
output to pass through closed captions to the television, which then
renders the captions. We find that DVD players with pass through
capability
[[Page 39623]]
also comply with the CVAA because a DVD player that passes through
closed captions to the television is ``equipped with built-in . . .
capability designed to display closed-captioned video programming.'' In
this scenario, because a DVD player does not itself contain a screen,
the closed captions contained in the video programming that is being
accessed through the DVD player are rendered by the television and
displayed on the television screen, just as the video programming
itself is being displayed. Thus, DVD players equipped with an analog
output that passes through closed captioning satisfy the closed
captioning requirement set forth in section 303(u)(1)(A) of the Act and
our rules because they are equipped with a capability designed to
display closed-captioned video programming, i.e., they enable closed
captions to be viewed by consumers on their television sets.\12\ At the
same time, we recognize that DVD players that have multiple outputs,
only one of which is an analog output that passes through closed
captions to the television, may not comply with the Commission's
interconnection mechanism rule, which requires that ``[a]ll video
outputs of covered apparatus shall be capable of conveying from the
source device to the consumer equipment the information necessary to
permit or render the display of closed captions.'' We find good cause,
however, to waive this requirement because requiring compliance with
this rule would impose increased costs on otherwise low-cost devices
that have been in the marketplace for a long time and for which the
market is declining, as discussed below, and because there is already
some capability for consumers to view closed captions through the
compliant analog output. Accordingly, in the instant case, the public
interest benefits of requiring complete compliance with the
Commission's interconnection mechanism rule are outweighed by the
additional costs on manufacturers.
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\12\ To the extent that video technologies evolve resulting in
consumers viewing video programming from DVD players on apparatus
that are not capable of rendering and displaying closed captions, we
will revisit this issue to ensure that consumers are not deprived of
access to closed captioning of video programming. See, e.g., 47 CFR
79.103(b)(1) (display-only monitors with no playback capability are
exempt from our apparatus closed caption requirements).
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20. Regarding DVD players that do not either render or pass through
closed captions, policy considerations justify an extension of the
compliance deadline \13\ pending resolution of the FNPRM on this issue.
Manufacturers have expressed concerns about the costs of modifying DVD
players to render the closed captioning themselves. Specifically, the
record shows that DVD players generally have been in the marketplace
for a long time and tend to be low-cost, and that adding captioning
functionality may have a significant impact on manufacturing costs that
would not be supported by consumers in the general public, potentially
curtailing the continued availability of such devices in the U.S.
market. Because the record demonstrates that this is a declining
market, we are sensitive to imposing additional costs at this time
without an adequate record. However, the current record does not
identify the specific costs to manufacturers of including in DVD
players an analog output that passes through closed captions to the
television. Nor does it address the benefits to consumers who are deaf
or hard of hearing were we to require this pass through obligation, or
conversely, the harm to such consumers were we to eliminate all closed
captioning obligations for DVD players. Given the above concerns, we
temporarily extend the deadline for compliance with the apparatus
closed captioning requirements for DVD players that do not either
render or pass through closed captions, pending resolution of the FNPRM
on this issue. We find that any hardship on consumers resulting from a
temporary extension of the compliance deadline will be minimized
because there are certain models of DVD players currently available
that pass through closed captions to the television, which will provide
a means for some individuals who are deaf or hard of hearing to view
closed captions contained on DVDs.
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\13\ The compliance deadline for apparatus closed captioning
otherwise is January 1, 2014. See 47 CFR 79.103(a).
---------------------------------------------------------------------------
21. Blu-ray players. For Blu-ray players, we temporarily extend the
deadline for compliance with our apparatus closed captioning rules
pending resolution of the FNPRM on this issue. There is no evidence in
the record to suggest that any Blu-ray players today either render
closed captioning themselves or pass through closed captions via the
type of analog output used by DVD players. And, we have little
information on the record as to what the costs would be for Blu-ray
players to render or pass though captions. Moreover, we note that many,
if not all, Blu-ray players are capable of playing DVDs (in addition to
Blu-ray discs) but the record currently contains insufficient
information regarding the technical changes required for manufacturers
to ensure that these players can render or pass through captions from
DVDs. These issues are further complicated by the fact that Blu-ray
discs today do not contain closed captions,\14\ and no industry-wide
standard currently exists for closed captioning on Blu-ray discs. Given
that there is no closed captioning standard for Blu-ray discs, Blu-ray
players could not, as a technical matter, render closed captions on
Blu-ray discs in the short term because manufacturers of the players
would not know what standards to comply with. Moreover, as the
Commission has previously recognized, manufacturers require some period
of time to design, develop, test, manufacture, and make available for
sale new products, which likely could extend beyond the compliance
deadline. Thus, requiring Blu-ray players to comply with the apparatus
closed captioning requirements by the January 1, 2014 compliance
deadline would raise special difficulties for manufacturers.
Accordingly we temporarily extend the compliance deadline with respect
to Blu-ray players, pending resolution of the FNPRM where we seek more
information on these issues. We find that any hardship on consumers
resulting from a temporary extension of the compliance deadline will be
minimized because Blu-ray discs currently include subtitles, which will
provide a means for some individuals who are deaf or hard of hearing to
access dialogue. A temporary extension will provide the Commission with
an opportunity to develop a complete record with respect to Blu-ray
players so that we can develop a long-term policy with respect to such
devices.
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\14\ Subtitles for the deaf and hard of hearing (``SDH'') make
some video programming accessible to consumers who are deaf or hard
of hearing via existing Blu-ray and DVD players. The Commission
explained in the Report and Order that SDH does not provide all of
the features available with closed captions.
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22. Other removable media players. The temporary extensions granted
herein do not apply to all ``removable media players''; rather they are
expressly limited to DVD players that do not render or pass through
closed captions and Blu-ray players. We decline to apply this extension
more broadly because, although DVD and Blu-ray players are the current
types of removable media players in the marketplace, if new types of
``removable media players'' are developed in the future, we would
expect those devices to be designed with closed captioning
[[Page 39624]]
capability in mind, as required under the CVAA.
3. Application of the January 1, 2014 Deadline Only to the Date of
Manufacture
23. We grant CEA's request that we specify that the January 1, 2014
apparatus compliance deadline refers only to the date of manufacture,
and not to the date of importation, shipment, or sale of apparatus
manufactured before that date. In the Report and Order, the Commission
adopted a compliance deadline of January 1, 2014 for the apparatus
covered by our rules. The rules that the Commission adopted to
implement this deadline arguably create some ambiguity as to whether it
applies to the date of importation, manufacture, or shipment of
apparatus. CEA explains that, while the phrase ``manufactured in the
United States or imported for use in the United States'' mirrors
provisions of section 203 of the CVAA,\15\ the Commission should
clarify that the rules apply only to devices manufactured on or after
the deadline, as it has done in other equipment compliance rules by
including explanatory notes. We agree with CEA that this clarification
would serve the public interest because manufacturers can identify and
control the date of manufacture, but the date of importation is
affected by variables outside of the manufacturer's control, and thus a
deadline triggered by the date of importation may be unworkable in many
situations for manufacturers. CEA also explains that its proposal will
have little effect on the availability of new compliant products
because of the normally brief interval between a product's manufacture
and its importation. Accordingly, we add explanatory notes to
Sec. Sec. 79.101(a)(2), 79.102(a)(3), 79.103(a), and 79.104(a) of our
rules, to clarify that the new obligations in the rules apply only to
apparatus manufactured on or after January 1, 2014. We note that this
approach is consistent with the Commission's past practices regarding
similar equipment deadlines.\16\
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\15\ The CVAA does not, however, impose the January 1, 2014
deadline that the Commission adopted in the Report and Order, nor
does it specify whether the deadline must apply to the date of
manufacture, the date of importation, or both.
\16\ See, e.g., Notes to 47 CFR 15.120(a), 79.101(a)(1),
79.102(a)(1), (2). We clarify that our application of the apparatus
compliance deadline only to the date of manufacture applies only to
the rules and requirements at issue in this proceeding and not to
any other compliance rules, which may have deadlines that are not
based solely on the date of manufacture.
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24. Consumer Groups claim that consumer confusion may result from
CEA's proposal because consumers expect that any apparatus for sale
after the January 1, 2014 deadline will be compliant. Consumer Groups
overlook the fact that nothing in the current apparatus rules expressly
ties the compliance deadline to the date of sale. Instead, while the
current rules are ambiguous with respect to the triggering event for
the January 1, 2014 compliance deadline, nothing in the rules
references the date of sale. Additionally, as CEA explains, while
manufacturers can identify and control the date of manufacture, the
date of sale is affected by variables outside of the manufacturer's
control. Further, we expect that a compliance deadline based on the
date of sale would create complications for retail vendors with
noncompliant apparatus in their inventory after the deadline. For all
of these reasons, we conclude that tying the compliance deadline to
date of manufacture would best serve the public interest.
25. Further, we agree with CEA that Consumer Groups' proposal that
we require manufacturers to label products to indicate which devices
are compliant or noncompliant after January 1, 2014 should be dismissed
as a late-filed petition for reconsideration of the Report and Order.
Consumer Groups raised this issue in an opposition but not in a
petition for reconsideration.\17\ Similarly, we also agree with CEA
that Consumer Groups' proposed compliance deadline based on the date of
a product's sale should be dismissed as a late-filed petition for
reconsideration of the Report and Order. Again, Consumer Groups raised
this issue in an opposition but not in a petition for
reconsideration.\18\
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\17\ Additionally, from a practical standpoint, we note that a
labeling requirement would impose additional compliance costs on
manufacturers with little practical benefit to consumers.
Specifically, labels could provide confusing and misleading
information about the capabilities of apparatus. Apparatus
manufactured prior to January 1, 2014 would not bear the label, even
if such apparatus supported closed captions. Further, a labeling
requirement would extend indefinitely, imposing costs and burdens on
manufacturers despite our expectation that few, if any, noncompliant
apparatus will be on store shelves within a few months of the
compliance deadline.
\18\ Additionally, we note that Consumer Groups misconstrue a
reference in the Report and Order to ``mak[ing] available for sale
new products'' as applying the compliance deadline based upon the
date of sale. This reference was part of a sentence explaining that
it generally takes two years to bring a new product to market, and
it did not apply the compliance deadline to a product's date of
sale.
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B. Petition for Reconsideration of TVGuardian, LLC
26. We deny TVGuardian's petition requesting that the Commission
reconsider its decision to allow video programming providers and
distributors to enable the rendering or pass through of captions to end
users and instead require video programming providers and distributors,
and digital source devices, to pass through closed caption data to
consumer equipment.\19\ In the Report and Order, the Commission
required video programming providers and distributors to convey all
required captions to the end user, but it allowed the provider or
distributor to select whether to render the captions or pass them
through. Pursuant to this requirement, the Commission stated that
``[w]hen a [video programming provider or distributor] initially
receives a program with required captions for IP delivery, we will
require the [video programming provider or distributor] to include
those captions at the time it makes the program file available to end
users.'' The Commission also implemented the interconnection mechanism
provision of the CVAA, which directs the Commission to require that
``interconnection mechanisms and standards for digital video source
devices are available to carry from the source device to the consumer
equipment the information necessary to permit or render the display of
closed captions.'' Consistent with that provision, the Commission
required all video outputs of covered apparatus to be capable of
conveying from the source device (such as an MVPD set-top box) to the
consumer equipment (such as a television) the information necessary to
permit or render the display of closed captions. As a result, a digital
source device (such as a set-top box) is permitted to use a video
output such as HDMI, which does not pass through captions in a closed
manner (i.e., HDMI does not transmit the closed captions to the
receiving device as data alongside the video stream), provided the
source device renders the closed captioning (i.e., decodes and mixes
the closed captions into the video stream).
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\19\ Because we reject TVGuardian's argument on substantive
grounds, we find it unnecessary to address the procedural arguments
raised in various oppositions filed in this proceeding.
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27. TVGuardian asks the Commission to reconsider its finding that
video programming providers and distributors may enable the rendering
(instead of the pass through) of all required captions to the end user,
and that video outputs of covered apparatus may convey from the source
device to the consumer equipment the information necessary to render
the display of closed captions (instead of passing through the closed
[[Page 39625]]
caption data). TVGuardian claims that Congress intended to permit the
rendering of captions only if passing them through would be technically
infeasible. We reject TVGuardian's proposed interpretation because such
an approach would effectively read the term ``or'' out of the statutory
language, which permits the rendering or the pass through of closed
captions by video programming providers, distributors, and
interconnection mechanisms, thus indicating an intent by Congress to
permit alternative means by which a video programming provider or
distributor and an interconnection device may satisfy the statute. Not
only is TVGuardian's proposed interpretation inconsistent with the
statute, but also nothing in the legislative history supports
TVGuardian's claim that Congress only intended to permit the rendering
of closed captions if passing them through would be technically
infeasible. Had Congress intended to permit rendering only if pass
through is technically infeasible, it would have included language to
this effect. Instead, the statute contains no such limitation.
28. The consumer electronics industry has coalesced around the use
of HDMI,\20\ which permits the use of rendered captions but does not
pass through closed captions, meaning that it only conveys captions
when they have been decoded and mixed into the video stream. The
Commission found in the Report and Order that HDMI complies with the
interconnection mechanism requirements, and TVGuardian has not
presented any arguments that persuade us that the Commission should
modify this determination. Rather, TVGuardian has reiterated its prior
arguments that the Commission should require HDMI to pass through
closed caption data. The Commission considered and rejected such
arguments in the Report and Order when it concluded in implementing the
interconnection mechanism provision of the CVAA ``that it is
sufficient, for purposes of this provision, if the video output of a
digital source device renders the closed captioning in the source
device. Accordingly, we find that the manner in which the HDMI
connection carries captions satisfies the statutory requirement for
interconnection mechanisms.'' We also find persuasive commenters'
rebuttal to TVGuardian's claim that it would not be costly to modify
HDMI to pass through closed captions and that no additional hardware
would be needed. We agree with commenters that the costs of any
required compliance with a pass through requirement, including both
hardware changes and standard revisions, would outweigh the benefits,
as we find that any particular benefit to consumers who are deaf or
hard of hearing is unclear. We note that TVGuardian's petition fails to
identify any resulting benefits to individuals who are deaf or hard of
hearing arising from its proposed interpretation. Rather, TVGuardian's
request appears to be focused solely on enabling the use of its foul
language filter, which operates through the pass through of closed
caption data.\21\ TVGuardian's foul language filter will not operate
with rendered closed captions in the video stream because the foul
language filter can only read data passed through as closed captions.
Significantly, Consumer Groups did not file any comments in support of
TVGuardian's petition for reconsideration.
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\20\ TVGuardian asserts that HDMI violates the existing
television closed captioning rules, seemingly based on the erroneous
assumption that those rules include an interconnection obligation
between the set-top box and the consumer display device. The
television closed captioning rules are unrelated to the Commission's
implementation of the CVAA in the Report and Order. In any event, we
agree with commenters that HDMI in fact complies with the television
closed captioning rules, and that TVGuardian has improperly raised
the issue of HDMI's compliance with the television closed captioning
rules through a petition for reconsideration of the Report and
Order, which did not revise or address the television closed
captioning rules.
\21\ We note that nothing in our IP closed captioning rules
prevents TVGuardian from negotiating with video programming
distributors or equipment manufacturers to obtain access to closed
caption data.
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29. We also reject TVGuardian's claims that the provisions of the
CVAA on recording devices and interconnection mechanisms must be read
together, which TVGuardian argues would require the pass through of
closed caption data to consumer equipment. TVGuardian claims that its
proposed approach is necessary to ensure that recording devices enable
viewers to activate and deactivate closed captions, as required by the
CVAA. We instead agree with HDMI Licensing that nothing about the
Commission's interpretation of these two provisions is incompatible,
because a pass through mandate on HDMI is not needed to enable
recording devices to activate and deactivate closed captions on
recorded programming, as explained below. Commenters persuasively
express several problems with TVGuardian's claims that the Commission's
interpretation of the recording device provision and the
interconnection mechanism provision are inconsistent. Specifically,
commenters explain that the Commission does not need to change its
interpretation of these provisions because most recording devices
already comply with the requirement that they enable viewers to
activate and deactivate closed captions, and they explain that most
consumer recording devices such as DVRs do not use interconnection
mechanisms to receive content in any event so revisions to the
implementation of the interconnection mechanism provision would have no
effect on those recording devices.\22\ In other words, few, if any,
recording devices acquire video programming via an HDMI connection.
Rather, the overwhelming majority of DVRs acquire programming via a
built-in cable or over-the-air tuner or via a built-in IP connection.
Thus, recording devices are merely required to record the closed
captioning stream in addition to the video stream for consumers to be
able to turn captioning on and off during playback. Even if a recording
device utilizes HDMI to connect to additional consumer electronics
devices, it may render closed captions instead of passing them through,
and the consumer viewing programming on a recording device may activate
and deactivate the closed captions.
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\22\ We also reject TVGuardian's assertion that the word
``permit'' in the interconnection mechanism provision
(``interconnection mechanisms and standards for digital video source
devices are available to carry from the source device to the
consumer equipment the information necessary to permit or render the
display of closed captions'') is meant to require recording devices
and other consumer equipment to enable the viewer to activate and
deactivate the closed captions, which it claims requires the pass
through of closed caption data. Rather, as explained above, the CVAA
permits either the rendering or the pass through of closed captions.
The rendering of closed captions prior to transmission of video over
HDMI does not preclude the viewer from activating and deactivating
the captions, when that function is present in the source device. In
other words, even when HDMI renders closed captions instead of
passing them through, the viewer may activate and deactivate the
captions. Separately, because as explained above we are not
persuaded by TVGuardian's central argument that we should require
video programming providers and distributors and digital video
source devices to pass through closed caption data to consumer
equipment, we need not consider its claims that we should make other
related rule revisions that would be necessitated by the grant of
its petition. We note that apparatus synchronization requirements,
which TVGuardian references, are discussed further below.
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C. Petition for Reconsideration of Consumer Groups
1. Application of the IP Closed Captioning Rules to Video Clips
30. At this time, we defer a final decision on whether to
reconsider the issue of whether ``video clips'' \23\ should
[[Page 39626]]
be covered by the IP closed captioning rules, and we will keep the
record open pending the development of additional information regarding
the availability of captioned video clips.\24\ To ensure that the
Commission obtains updated information on this issue, we direct the
Media Bureau to issue a Public Notice within six months of the date of
release of this Order on Reconsideration, seeking information on the
industry's progress in captioning IP-delivered video clips. Consumer
Groups argue that the Commission should undertake a reconsideration of
this issue at this time and should find that IP-delivered ``video
clips'' must be captioned.\25\ Consumers have expressed particular
concern about availability of captioned news clips, which tend to be
live or near-live. We note that live or near-live programming only
recently became subject to the IP closed captioning requirements on
March 30, 2013. Now that this implementation deadline has passed, we
expect that entities subject to the IP closed captioning rules will
have developed more efficient processes to handle captioning of live
and near-live programming, including news clips that are posted on Web
sites. Thus we expect that these entities voluntarily will caption an
increased volume of video clips, particularly news clips, even though
the Commission's IP closed captioning requirements apply to full-length
programming and not video clips. In the Report and Order, the
Commission ``encourage[d] the industry to make captions available on
all TV news programming that is made available online, even if it is
made available through the use of video clips.'' Accordingly, we will
monitor industry actions with respect to captioning of video clips, and
within six months we direct the Media Bureau to issue a Public Notice
to seek updated information on this topic. If the record developed in
response to that Public Notice demonstrates that consumers are denied
access to critical areas of video programming due to lack of captioning
of IP-delivered video clips, we may reconsider our decision on this
issue.
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\23\ The Commission has defined ``video clips'' as ``[e]xcerpts
of full-length video programming.'' 47 CFR 79.4(a)(12). It has
defined ``full-length video programming'' as ``[v]ideo programming
that appears on television and is distributed to end users,
substantially in its entirety, via Internet protocol, excluding
video clips or outtakes.'' Id. 79.4(a)(2).
\24\ Consumer Groups recently submitted a report on the state of
closed captioning of IP-delivered video programming in which they
address the current lack of captioning of video clips, among other
topics. We note that the Consumer Groups May 2013 Report also urges
the Commission to impose quality standards on television closed
captioning. This issue is properly addressed in the pending
proceeding on the quality of closed captioning on television.
\25\ Google agrees with Consumer Groups that video clips should
be captioned, which would increase accessibility. Some commenters
argue that Consumer Groups failed to meet the procedural
requirements for petitions for reconsideration. Consumer Groups
respond that there is no procedural impropriety because
reconsideration would serve the public interest, and in such cases
petitions for reconsideration are always appropriate. Because we
decline, at this time, to resolve Consumer Groups' request regarding
video clips, we need not consider these procedural issues here.
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2. Propriety of Synchronization Requirements for Apparatus
31. Consumer Groups argue that the Commission should reconsider its
decision not to impose any timing obligations on device manufacturers
pursuant to section 203, and that this decision contravened Congress's
intent and the VPAAC's consensus. In the Report and Order, the
Commission considered the timing of the presentation of caption text
with respect to the video in the context of apparatus requirements, and
it concluded that ``it is inappropriate to . . . address[] the timing
of captions with video, here,'' concluding instead that ``ensuring that
timing data is properly encoded and maintained through the captioning
interchange and delivery system is an obligation of [s]ection 202
[video programming distributors and providers] and not of device
manufacturers.'' Consumer Groups argue that the Commission should
reconsider this conclusion and instead should impose on manufacturers
obligations related to the synchronization of caption text and the
corresponding video. We find that we need more information before we
resolve this issue, because commenters disagree as to whether apparatus
may cause captions to appear out of synch with the video, whether
existing standards would enable manufacturers to address the timing of
captions, and whether video programming owners, providers, and
distributors are better suited than manufacturers to ensure proper
captioning synchronization. Accordingly, in the FNPRM we consider
whether we should impose closed captioning synchronization requirements
on apparatus, and if so, what those requirements should entail.
IV. Procedural Matters
A. Regulatory Flexibility Act
32. The Regulatory Flexibility Act of 1980, as amended (``RFA'')
requires that a regulatory flexibility analysis be prepared for
rulemaking proceedings, unless the agency certifies that ``the rule
will not have a significant economic impact on a substantial number of
small entities.'' The RFA generally defines ``small entity'' as having
the same meaning as the terms ``small business,'' ``small
organization,'' and ``small governmental jurisdiction.'' In addition,
the term ``small business'' has the same meaning as the term ``small
business concern'' under the Small Business Act. 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 Small Business Administration
(SBA).
33. Final Regulatory Flexibility Certification. As required by the
RFA, as amended, the Commission has prepared this Final Regulatory
Flexibility Certification of the possible impact on small entities of
the Order on Reconsideration. In this proceeding, the Commission's goal
remains to implement Congress's intent to better enable individuals who
are deaf or hard of hearing to view video programming. The Commission
addresses three petitions for reconsideration of the IP Closed
Captioning Order, which created rules for the owners, providers, and
distributors of IP-delivered video programming and for the apparatus on
which consumers view video programming.
34. Pursuant to the RFA, a Final Regulatory Flexibility Analysis
(``FRFA'') was incorporated into the IP Closed Captioning Order. The
instant Order on Reconsideration grants certain narrow class waivers of
the apparatus requirements, and grants temporary extensions of the
compliance deadline to some DVD players and to Blu-ray players, which
will have, if anything, a positive impact on small entities subject to
the requirements, thereby reducing any potential economic impact. The
Order on Reconsideration also changes the Commission's rules by: (1)
Revising references to ``video programming players'' in a note to Sec.
79.103 of our rules to better conform to the statutory text of the
CVAA; and (2) clarifying that the January 1, 2014 deadline refers only
to the date of manufacture, and not to the date of importation,
shipment, or sale. These rule changes merely serve to better conform
the rule language to the language codified by Congress, and to clarify
the deadline applicable to apparatus. Therefore, we certify that the
requirements of this Order on Reconsideration will not have a
significant economic impact on a substantial number of small entities.
35. The Commission will send a copy of the Order on
Reconsideration, including a copy of this Final Regulatory Flexibility
Certification, in a report to Congress pursuant to the Congressional
Review Act, see 5 U.S.C.
[[Page 39627]]
801(a)(1)(A). In addition, the Order on Reconsideration and this
certification will be sent to the Chief Counsel for Advocacy of the
Small Business Administration, and will be published in the Federal
Register. See 5 U.S.C. 605(b).
B. Paperwork Reduction Act
36. The Order on Reconsideration does not contain new or modified
information collection requirements subject to the Paperwork Reduction
Act of 1995 (``PRA''), Public Law 104-13. In addition, therefore, it
does not contain any new or modified ``information collection burden
for small business concerns with fewer than 25 employees,'' pursuant to
the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
see 44 U.S.C. 3506(c)(4).
C. Ex Parte Rules
37. Permit-But-Disclose. This proceeding shall be treated as a
``permit-but-disclose'' proceeding in accordance with the Commission's
ex parte rules. 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 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 Sec. 1.1206(b). In proceedings governed
by Sec. 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.
D. Additional Information
38. For additional information on this proceeding, contact Diana
Sokolow, Diana.Sokolow@fcc.gov, or Maria Mullarkey,
Maria.Mullarkey@fcc.gov, of the Media Bureau, Policy Division, (202)
418-2120.
V. Ordering Clauses
39. Accordingly, it is ordered that pursuant to the Twenty-First
Century Communications and Video Accessibility Act of 2010, Public Law
111-260, 124 Stat. 2751, and the authority found 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
Order on Reconsideration is adopted, effective thirty (30) days after
the date of publication in the Federal Register.
40. It is ordered that, pursuant to the Twenty-First Century
Communications and Video Accessibility Act of 2010, Public Law 111-260,
124 Stat. 2751, and the authority found 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, the Commission's
rules are hereby amended as set forth below.
41. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Order on Reconsideration in MB Docket No. 11-154,
including the Final Regulatory Flexibility Certification, to the Chief
Counsel for Advocacy of the Small Business Administration.
42. It is further ordered that the Commission shall send a copy of
the Order on Reconsideration in MB Docket No. 11-154 in a report to be
sent to Congress and the Government Accountability Office pursuant to
the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
43. It is further ordered that CEA's Petition for Reconsideration,
filed April 30, 2012, is granted in part and denied in part, to the
extent provided herein.
44. It is further ordered that TVGuardian's Petition for
Reconsideration, filed April 16, 2012, is denied.
45. It is further ordered that, pursuant to the authority found in
section 303(u)(2)(C)(i) of the Communications Act of 1934, as amended,
and Sec. 1.3 of the Commission's rules, 47 CFR 1.3, a waiver of the
closed captioning requirements for two narrow classes of apparatus is
granted to the extent provided herein.
46. It is further ordered that a temporary extension of the closed
captioning compliance deadline for DVD players that do not render or
pass through closed captions, and for Blu-ray players, is granted to
the extent provided herein.
47. It is further ordered that, pursuant to the authority found in
Sec. 1.3 of the Commission's rules, 47 CFR 1.3, a waiver of the
Commission's interconnection mechanism requirement for DVD players that
use their analog output to pass through closed captions to the
television is granted to the extent provided herein.
List of Subjects in 47 CFR Part 79
Cable television operators, Communications equipment, Multichannel
video programming distributors (MVPDs), Satellite television service
providers, Television broadcasters.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 79 as follows:
PART 79--CLOSED CAPTIONING AND VIDEO DESCRIPTION OF VIDEO
PROGRAMMING
0
1. 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,
330, 544a, 613, 617.
0
2. Amend Sec. 79.101 by adding a note to paragraph (a)(2) to read as
follows:
Sec. 79.101 Closed caption decoder requirements for analog television
receivers.
(a) * * *
(2) * * *
Note to paragraph (a)(2): This paragraph places no restrictions
on the importing, shipping, or sale of television receivers that
were manufactured before January 1, 2014.
* * * * *
0
3. Amend Sec. 79.102 by adding a note to paragraph (a)(3) to read as
follows:
Sec. 79.102 Closed caption decoder requirements for digital
television receivers and converter boxes.
(a) * * *
[[Page 39628]]
(3) * * *
Note to paragraph (a)(3): This paragraph places no restrictions
on the importing, shipping, or sale of digital television receivers
and separately sold DTV tuners that were manufactured before January
1, 2014.
* * * * *
0
4. Amend Sec. 79.103 by revising the note to paragraph (a) to read as
follows:
Sec. 79.103 Closed caption decoder requirements for all apparatus.
(a) * * *
Note 1 to paragraph (a): Apparatus includes the physical device
and the video player(s) capable of displaying video programming
transmitted simultaneously with sound that manufacturers install
into the devices they manufacture before sale, whether in the form
of hardware, software, or a combination of both, as well as any
video players capable of displaying video programming transmitted
simultaneously with sound that manufacturers direct consumers to
install after sale.
Note 2 to paragraph (a): This paragraph places no restrictions
on the importing, shipping, or sale of apparatus that were
manufactured before January 1, 2014.
* * * * *
0
5. Amend Sec. 79.104 by adding a note to paragraph (a) to read as
follows:
Sec. 79.104 Closed caption decoder requirements for recording
devices.
(a) * * *
Note to paragraph (a): This paragraph places no restrictions on
the importing, shipping, or sale of apparatus that were manufactured
before January 1, 2014.
* * * * *
[FR Doc. 2013-15718 Filed 7-1-13; 8:45 am]
BILLING CODE 6712-01-P