Closed Captioning of Video Programming; Telecommunications for the Deaf and Hard of Hearing; Petition for Rulemaking, 17911-17931 [2014-06754]
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Federal Register / Vol. 79, No. 61 / Monday, March 31, 2014 / Rules and Regulations
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 27
Miscellaneous Wireless
Communications Services
CFR Correction
In Title 47 of the Code of Federal
Regulations, Parts 20 to 39, revised as of
October 1, 2013, on page 351, in § 27.50,
the stars following paragraph (d)(1) are
removed and paragraphs (d)(1)(A) and
(B) and (d)(2)(A) and (B) are reinstated
to read as follows:
§ 27.50
Power limits and duty cycle.
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*
(d) * * *
(1) * * *
(A) an equivalent isotropically
radiated power (EIRP) of 3280 watts
when transmitting with an emission
bandwidth of 1 MHz or less;
(B) an EIRP of 3280 watts/MHz when
transmitting with an emission
bandwidth greater than 1 MHz.
(2) * * *
(A) an equivalent isotropically
radiated power (EIRP) of 1640 watts
when transmitting with an emission
bandwidth of 1 MHz or less;
(B) an EIRP of 1640 watts/MHz when
transmitting with an emission
bandwidth greater than 1 MHz.
*
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*
*
*
[FR Doc. 2014–07200 Filed 3–28–14; 8:45 am]
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47 CFR Part 79
[CG Docket No. 05–231; FCC 14–12]
Closed Captioning of Video
Programming; Telecommunications for
the Deaf and Hard of Hearing; Petition
for Rulemaking
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the
Commission adopts non-quantitative
quality standards for the closed
captioning of pre-recorded, live, and
near-live programming to ensure that
caption viewers have full access to
television programming; establishes best
practices for the provision of good
quality captions; imposes new
requirements on broadcasters using
Electronic Newsroom Technique (ENT)
based on a best practices proposal
offered by the National Association of
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SUMMARY:
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Broadcasters (NAB); and takes various
other actions to clarify and improve the
Commission’s closed captioning rules.
DATES: Effective April 30, 2014, except
for 47 CFR 79.1(e)(11)(i) and (ii), which
shall be effective June 30, 2014, and 47
CFR 79.1(c)(3), (e)(11)(iii), (iv) and (v),
(j), and (k) of the Commission’s rules,
which contain new information
collection requirements that have not
been approved by the Office of
Management and Budget (OMB). The
Commission will publish a separate
document in the Federal Register
announcing the effective date.
FOR FURTHER INFORMATION CONTACT: Eliot
Greenwald, Consumer and
Governmental Affairs Bureau, Disability
Rights Office, at (202) 418–2235 or
email Eliot.Greenwald@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Closed
Captioning of Video Programming;
Telecommunications for the Deaf and
Hard of Hearing; Petition for
Rulemaking Report and Order (Order),
document FCC 14–12, adopted on
February 20, 2014 and released on
February 24, 2014, in CG Docket No.
05–231. In document FCC 14–12, the
Commission also seeks comment in an
accompanying Further Notice of
Proposed Rulemaking (FNPRM), which
is summarized in a separate Federal
Register Publication. The full text of
document FCC 14–12 will be available
for public inspection and copying via
ECFS, and during regular business
hours at the FCC Reference Information
Center, Portals II, 445 12th Street SW.,
Room CY–A257, Washington, DC 20554.
It also may be purchased from the
Commission’s duplicating contractor,
Best Copy and Printing, Inc., Portals II,
445 12th Street SW., Room CY–B402,
Washington, DC 20554, telephone: (800)
378–3160, fax: (202) 488–5563, or
Internet: www.bcpiweb.com.
Document FCC 14–12 can also be
downloaded in Word or Portable
Document Format (PDF) at: https://
www.fcc.gov/encyclopedia/disabilityrights-office-headlines. To request
materials in accessible formats for
people with disabilities (Braille, large
print, electronic files, audio format),
send an email to fcc504@fcc.gov or call
the Consumer and Governmental Affairs
Bureau at 202–418–0530 (voice), 202–
418–0432 (TTY).
Final Paperwork Reduction Act of 1995
Analysis
Document FCC 14–12 contains new
information collection requirements.
The Commission, as part of its
continuing effort to reduce paperwork
burdens, will invite the general public
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17911
to comment on the information
collection requirements contained in
document FCC 14–12 as required by the
Paperwork Reduction Act (PRA) of
1995, Public Law 104–13, in a separate
notice that will be published in the
Federal Register.
Synopsis
1. Closed captioning is a technology
that provides visual access to the audio
content of video programs by displaying
this content as printed words on the
television screen. In addition to
displaying text of verbal dialogue,
captions generally identify speakers,
sound effects, music, and audience
reaction. Because closed captioning is
hidden as encoded data transmitted
within the television signal, consumers
can turn the captions on or off.
2. In 1996, Congress added § 713 to
the Communications Act (the Act),
directing the Commission to prescribe
rules for the closed captioning of
televised video programming. 47 U.S.C.
613. Section 713(b) of the Act directs
the Commission to prescribe regulations
to ensure that ‘‘video programming first
published or exhibited after the effective
date of such regulations is fully
accessible through the provision of
closed captions’’ and that ‘‘video
programming providers or owners
maximize the accessibility of video
programming first published or
exhibited prior to the effective date of
such regulations through the provision
of closed captions. . . .’’ In 1997, the
Commission adopted rules that now
require captioning on all new English
and Spanish language programming,
both analog and digital, which is not
specifically exempt from the
Commission’s rules. In addition, 75% of
all nonexempt pre-rule English and
Spanish language programming must be
closed captioned. Closed Captioning
and Video Description of Video
Programming; Implementation of
Section 305 of the Telecommunications
Act of 1996, Video Programming
Accessibility, MM Docket No. 95–176,
Report and Order, (1997 Closed
Captioning Report and Order);
published at 62 FR 48487, September
16, 1997.
3. On July 23, 2004, advocacy groups
representing individuals who are deaf
and hard of hearing (Petitioners or
Consumer Groups) filed a joint petition
for rulemaking (2004 Petition) seeking
amendments to the Commission’s
captioning rules pertaining to matters of
captioning quality, scope, and
enforcement. On September 2, 2004, the
Commission placed the 2004 Petition on
public notice. Consumer and
Governmental Affairs Bureau Reference
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Information Center Petition for
Rulemaking Filed, Public Notice, Report
No. 2670, RM–11065, September 2,
2004. On July 21, 2005, the Commission
released the 2005 Closed Captioning
NPRM granting the 2004 Petition and
initiating a proceeding to examine the
Commission’s closed captioning rules.
Closed Captioning of Video
Programming; Telecommunications for
the Deaf, Inc., Petition for Rulemaking,
CG Docket No. 05–231, Notice of
Proposed Rulemaking, (2005 Closed
Captioning NPRM); published at 70 FR
56150, November 25, 2005.
4. On November 7, 2008, the
Commission released the 2008 Closed
Captioning Decision that responded in
part to the 2004 Petition by amending
the captioning complaint process to
allow consumers to file complaints
directly with the Commission and by
specifying new timelines by which such
complaints must be addressed. Closed
Captioning and Video Programming,
Closed Captioning Requirements for
Digital Television Receivers, CG Docket
No. 05–231, ET Docket No. 99–254,
Declaratory Ruling, Order and Notice of
Proposed Rulemaking, (2008 Closed
Captioning Decision); published at 74
FR 1594, January 13, 2009. The
Commission also adopted rules
requiring VPDs to make available
contact information for the receipt and
handling of immediate closed
captioning concerns by consumers, and
contact information for written closed
captioning complaints. The Commission
has since developed a database to
collect VPD contact information, Closed
Captioning of Video Programming, CG
Docket No. 05–231, Order, (Captioning
Contact Webform Order); published at
75 FR 7368, February 19, 2010, and
issued public notices to inform VPDs of
their obligation to file such contact
information. In the 2008 Closed
Captioning Decision, the Commission
also clarified that all nonexempt digital
programming must be captioned
pursuant to the applicable benchmark
for that type of programming. The
Commission also sought comment on
the extent to which the selfimplementing exemption in
§ 79.1(d)(12) of the Commission’s rules
for video programming channels that
produce annual gross revenues of less
than $3 million during the previous
calendar year should apply to digital
broadcasters that multicast.
5. On October 25, 2010, the Consumer
and Governmental Affairs Bureau (CGB)
issued a Public Notice seeking to refresh
the record in this proceeding. Consumer
and Governmental Affairs Bureau Seeks
to Refresh the Record on Notices of
Proposed Rulemaking Regarding Closed
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Captioning Rules, CG Docket No. 05–
231, ET Docket No. 99–254, Public
Notice, (2010 Refresh Public Notice);
published at 75 FR 70168, November 17,
2010.
7. Need for Standards. Although the
record in this proceeding shows that
some effective quality control
mechanisms for captions have been put
into place during this period, hundreds
of commenters remain dissatisfied with
captioning quality that they claim
impairs the accessibility of television
programming by viewers who are deaf
and hard of hearing. Specifically,
commenters report captions that are
inaccurate, garbled, incomplete,
misspelled and/or misunderstood,
incomprehensible, obscure the speaker,
or significantly lag behind the spoken
words they are intended to convey. This
confirms inconsistencies in the quality
of closed captioning throughout the
industry and supports the Consumer
Groups’ contention that the marketplace
alone has not provided effective
incentives for all providers to maintain
good quality captioning.
8. Accordingly, based on the instant
record, the Commission identifies, in
document FCC 14–12, quality standards
that are necessary to achieve the Act’s
requirement for new video programming
to be ‘‘fully accessible through the
provision of closed captions,’’ and for
‘‘video programming providers or
owners [to] maximize the accessibility
of video programming first published or
exhibited prior to the effective date of
such regulations through the provision
of closed captions. . . .’’ 47 U.S.C.
613(b). These standards will help ensure
the uniform provision of good quality
captions as intended by Congress and
will provide a mechanism for
addressing consumer complaints about
captioning problems. The Commission
expects that the quality standards the
Commission now adopts will have little
impact on the operations of entities that
already have quality control systems
that provide high quality captioning.
9. Section 202 of the Twenty-First
Century Communications and Video
Accessibility Act of 2010 (CVAA),
Public Law 111–260, 124 Stat. 2751
(October 8, 2010), technical
amendments, Public Law 111–265, 124
Stat. 2795 (October 8, 2010), requires
the Commission to mandate closed
captioning on video programming
delivered using Internet protocol (‘‘IP’’)
when such programming is shown on
television with captions after the
effective date of the Commission rules.
In January 2012, the Commission
adopted rules to implement section 202,
requiring that captioning of IP-delivered
programs be of at least the same quality
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as when such programs are shown on
television. Closed Captioning of Internet
Protocol-Delivered Video Programming:
Implementation of the Twenty-First
Century Communications and Video
Accessibility Act of 2010, MB Docket
No. 11–154, Report and Order, (IP
Captioning Report and Order);
published at 77 FR 19480, March 30,
2012. The expanded availability of
television programming on the Internet
that will result from implementation of
this section of the CVAA makes
ensuring the quality of captioning on
shows aired on television in the first
instance all the more important.
10. Accuracy, Synchronicity,
Completeness and Placement.
Document FCC 14–12 amends the
Commission’s rules, as described below,
to require that captions (1) accurately
reflect what is in the program’s audio
track by matching the dialogue, music,
and sounds, and identify the speakers;
(2) are delivered synchronously with the
corresponding dialogue and other
sounds at a speed that can be read by
viewers; (3) are complete for the entire
program; and (4) do not obscure
important on-screen information and are
not obscured by other information on
the screen. Each of these four
components is essential to ensure that
video programming is fully accessible to
people who are deaf and hard of hearing
through the provision of closed
captions.
11. Accuracy. In order to be accurate,
captions must match the spoken words
in the dialogue, in their original
language (English or Spanish), to the
fullest extent possible and include full
lyrics when provided on the audio
track. To accurately convey the dialogue
in a program, closed captions need to
contain all words in the order spoken,
without paraphrasing or substituting
words for proper names and places,
contain proper spelling (including
appropriate homophones, such as
‘‘their,’’ not ‘‘there’’), and provide, as
needed to understand the program,
appropriate punctuation and
capitalization to reflect natural
linguistic breaks and the flow of the
dialogue, the proper tense, and the
accurate representation of numbers
(including currency figures with
appropriate symbols or words).
Paraphrasing generally should not be
used where the entirety of the dialogue
can be conveyed through captions.
Nevertheless, in certain circumstances,
paraphrasing may be necessary to
ensure that the intended audience can
capture the content of the program. For
example, at times, paraphrasing may be
needed if time does not permit
providing verbatim captions, such as
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when the time lag between when the
dialogue occurs and the captions appear
on live programming would prevent
complete captioning of the program’s
audio content unless summarization
occurs.
12. Accurate captions do not rewrite
dialogue, or use synonyms to replace
actual dialogue. Where necessary to
understand a program’s content,
accurate captions also convey the
manner and tone of the speaker’s voice.
Similarly, where slang or grammatical
errors are intentionally used in a
program’s dialogue, accuracy dictates
that captions mirror such slang and
errors. Accuracy also requires that
utterances (e.g., ‘‘um’’) and false starts
be captioned if needed for the viewer to
understand the program. In addition,
except as prohibited by 47 CFR 73.3999
of the Commission’s rules, which
restricts the broadcast of obscene and
indecent material pursuant to 18 U.S.C.
1464, in which case both aural and
closed captioned programming must be
treated equivalently, aural words and
phrases that may appear objectionable
to the program owner, provider or VPD
or to the captioning agency when put in
writing must nevertheless be captioned
verbatim if made audible to the general
public in a program’s dialogue.
13. In order to be accurate, captions
must also provide nonverbal
information that is not observable, such
as who is speaking, the existence of
music (even when there are no lyrics to
be captioned), sound effects, and
audience reaction, to the greatest extent
possible, given the nature of the
program. If there is more than one
speaker, the proper placement of
captions dictates that each speaker be
identified, through caption
identification or caption placement, so
that viewers can understand who is
speaking at any given time. When a
speaker is not on the screen,
identification of that individual in the
caption text must also be provided if
viewers not using captions are able,
from the program’s audio content, to
discern the speaker’s identity. Finally,
in order to be considered accurate,
captions must also be legible, with
appropriate spacing between words to
allow for readability.
14. Synchronicity. In order to be
synchronous, captions must coincide
with their corresponding spoken words
and sounds to the greatest extent
possible, given the type of the
programming. This means that captions
should begin to appear at the time that
the corresponding speech or sounds
begin and end approximately when the
speech or sounds end. In addition,
synchronicity requires that captions be
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displayed on the screen at a speed that
can be read by viewers. While the
Commission recognizes that everyone
reads at a different speed, captions
should not blink on and off at a speed
that is too quick to read or otherwise be
paced at a speed that is difficult to read.
15. Program Completeness. In order
for a program’s captions to be complete,
captions must run from the beginning to
the end of the program, to the fullest
extent possible.
16. Placement. To be appropriately
placed, captions should not block other
important visual content on the screen
including, but not limited to, character
faces, featured text (e.g., weather or
other news updates, graphics and
credits), and other information that is
essential to understanding a program’s
content when the closed captioning
feature is activated. Appropriate caption
placement also dictates that the caption
font be sized appropriately for legibility,
and that captions be adequately
positioned so they do not run off the
edge of the video screen. Application of
Standards to Types of Programming. For
purposes of assessing compliance with
respect to each of these components, the
Commission will consider the type of
programming at issue, i.e., pre-recorded,
live, or near live programming, and
thereby take into account, among other
things, the time available to review and
edit captions on the particular type of
programming prior to its distribution
and display to viewers. Although, for
purposes of addressing captioning
complaints with respect to live and
near-live programming, the Commission
will take into consideration the lack of
an opportunity to review and edit
captions on these types of programming,
captions must make all types of
programming understandable to the
fullest extent possible, so that viewers
who rely on captions have a comparable
viewing experience to those who can
hear the audio portion of the
programming.
17. Pre-recorded programming. Prerecorded programming is programming
that is produced, recorded, and edited
in advance of its first airing on
television. Generally, captioning done
for pre-recorded programming is
referred to as offline captioning, which
is the process of adding captions to a
program after it has been produced, and
combining these captions with the
program before it airs. Because the
period between the time that a
captioning agency receives the program
and the airing date is sufficient to allow
the careful review and editing of
captions to ensure accuracy,
synchronicity, program completeness,
and appropriate placement, captioning
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will be considered to comply with the
Commission’s captioning quality
standards if it contains no other errors
than those we consider de minimis.
Rather than specifying particular criteria
that it will apply for a de minimis
determination, in determining whether
a failure to comply with the captioning
quality standards is de minimis, the
Commission will consider the particular
circumstances presented, including the
type of failure, the reason for the failure,
whether the failure was one-time or
continuing, the degree to which the
program was understandable despite the
errors, and the time frame within which
corrective action was taken to prevent
such failures from reoccurring.
18. Use of real-time captioning
techniques for pre-recorded
programming. Although offline
captioning techniques are generally
used for pre-recorded programming, at
times programming providers use realtime captioning techniques, which
generate and add captions to their prerecorded programming as it airs to the
public. Although industry indicates that
real-time captioning for pre-recorded
programming is sometimes necessary,
the record reflects that real-time
captioning methods can result in a
greater number of errors, greater
omissions than captions carefully
prepared and reviewed in advance, and
greater lag time between when the
words are spoken and captions appear,
making it difficult to follow who is
speaking during a program. The
National Cable and
Telecommunications Association
(NCTA) has proposed Best Practices that
state that a programmer will ensure that
pre-recorded programs generally are
captioned offline before airing except
when, ‘‘in the exercise of a
programmer’s commercially reasonable
judgment,’’ circumstances require realtime or live display techniques for prerecorded programming. Accordingly,
the Commission expects that as a
general matter, the use of real-time
captioning methods for pre-recorded
programming will be limited to only
those situations when it is necessary to
do so. After the captioning quality
standards have been in effect for one
year, the Commission will review the
extent to which the circumstances
permitting the continued use of realtime captioning techniques for prerecorded programming have been
successful in improving captioning
quality on this type of programming as
part of an overall review of the Best
Practices (discussed below). Depending
on the outcome of this review, the
Commission will consider additional
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action to further limit the use of realtime techniques on pre-recorded
programming, if necessary.
19. Live Programming. Document FCC
14–12 defines live programming as
video programming that is shown on
television substantially simultaneously
with its performance. Captioning for
live programming, referred to as ‘‘realtime’’ captioning, is generated and
combined with programming while it is
being aired, and there is little or no
opportunity to edit the captioning for
accuracy, synchronicity, program
completeness, and placement prior to
airing.
20. Accuracy. The Commission
recognizes the greater hurdles involved
with captioning live programming,
given the simultaneous production of
captions as the programming is aired,
and the lack of time for the review and
correction of captions. The Captioning
Vendors Best Practices suggest a number
of measures that VPDs can specify in
their contracts with programmers to be
taken to reduce errors and to produce
more complete and timely captions,
including providing captioners advance
notice of vocabulary that the program is
likely to use; ensuring that captioners
are equipped with reliable, high speed
Internet, multiple telephone lines and
backup plans to minimize caption
interruption due to malfunctions;
providing captioning agencies with high
quality audio program signals; and
requiring appropriate captioner training
and skills. The Commission encourages
the continued use of these measures and
other measures that are technically
feasible, to provide live captions
provide an accurate presentation of
aural content.
21. Nonetheless, the Commission
recognizes that it may be impossible,
using today’s technologies, to always
achieve fully accurate captioning on live
programming. In considering
complaints on captioning quality of live
programming, the Commission will take
into consideration the nature of this
programming and the challenges
associated with accurately captioning
such programming. The overall
objective is to ensure that closed
captions convey a program’s content so
that the program is fully accessible to
viewers. The Commission will address
complaints by considering, on a case-bycase basis, the overall accuracy or
understandability of the programming,
the ability of the captions to convey the
aural content of the program in a
manner equivalent to the aural track, the
extent to which the captioning errors
prevented viewers from having access to
the programming, and whether the VPD
made best efforts to receive certification
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from programmers that the programmer
is either in compliance with the
Commission’s non-technical quality
standards or with the Best Practices
adopted herein, or is exempt from the
captioning obligations.
22. Synchronicity. The Commission
recognizes that a slight delay in the
delivery of live captions is inevitable
due to the time it takes for the captioner
to hear the program, provide the
captions, and have the captions
transmitted to the viewer and will
consider such technical limitations
when reviewing consumer allegations of
non-compliance regarding the lack of
synchronicity between a live program’s
audio track and its captions. At the
same time, in an effort to eliminate
delays that prevent caption viewers
from understanding a program’s
content, there are measures a
programmer can take to keep the delay
in their presentation of live captions to
a minimum, consistent with an accurate
presentation of what is said, so that the
time between when words are spoken or
sounds occur and captions appear does
not interfere with the ability of viewers
to follow the program. For example,
VPDs can specify in their contracts with
programmers that the programmers will
provide captioners with advance
materials that help them to generate
caption text as they hear a program’s
audio, provide high quality audio
program signals to reduce caption lag
times, and enter into contracts with
captioning agencies that require
appropriate captioner training and skills
to reduce captioning delays while a
program is being aired.
23. Program Completeness. The
Commission recognizes that the delays
inherent in sending caption
transmissions on live programs to
viewers pose particular challenges with
respect to ensuring that the entire
program is captioned up to its very last
second. The preceding paragraphs have
noted various measures that
programmers and captioners can take to
minimize the lag time between a
program’s audio content and its
captions; shortening the lag time for
real-time captions will help provide a
more complete program. In addition, to
the extent technically feasible, the
Commission encourages entities that
send the audio feed to the live captioner
to alert the captioner that a program’s
end is imminent, so that the captioner
can paraphrase or abbreviate the
remaining text before the program cuts
off. Finally, to the extent available, the
Commission encourages use of the
following measures to capture as much
of a live program as possible through
captions: (1) A fade out after the last
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scene to add a few seconds for the
transition to the next program content,
(2) advance delivery of the audio to
captioners by a few seconds, and (3)
allowing captions remaining at the end
of a program’s audio to be placed in a
location on the screen during captions
on that advertisement or program.
24. Placement. Entities certifying to
their compliance with the captioning
quality standards will be considered to
comply with the Commission’s
placement standards if they ensure the
proper placement of captions on the
screen to avoid obscuring on-screen
information and graphics to the extent
possible. However, the Commission
recognizes that placement errors may be
more frequent with certain types of live
programming than with pre-recorded
programming. The Commission will
take into consideration the type and
nature of the programming when
considering complaints regarding
violations of the placement standard.
25. Near-Live Programming. The
Commission defines near-live
programming as video programming
performed and recorded less than 24
hours prior to the time it was first aired
on television. The production schedules
for near-live programming often do not
afford an opportunity for reviewing and
editing captions equivalent to offline
captioning processes. Rather, because of
the short turnaround time between
taping and airing, programmers
typically use real time-captioning
techniques for this type of
programming. For purposes of the
caption quality standards discussed
above, the Commission will treat nearlive programming as if it were live
programming. The Commission agrees
with Petitioners that editing and
synchronization of captions on near-live
programming should be performed
during the hours between taping and
airing to the extent there is sufficient
time for such activities.
26. Document FCC 14–12 also
encourages the adoption of either of two
industry practices to improve the
quality of near-live programming. First,
in advance of a program’s airing,
programmers may be able to deliver a
complete program script or a nearcompleted program to a captioning
agency, which the agency can then use
to create a caption file that is later
combined simultaneously with the
program when it is aired. The process of
synchronizing captions that were
originally produced in real-time is
known as ‘‘live display,’’ and it can
serve to reduce errors and long lag times
that can occur with real-time
captioning. Alternatively, programmers
may be able to provide a captioning
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agency with access to a live feed of the
taping of near-live programming,
enabling a captioner to generate
captions while the program is being
taped. The captioner can then improve
the captions for accuracy, synchronicity,
program completeness and placement
prior to its airing. During these
intervening hours, the programming
provider also could inform the
captioning agency about any edits made
to the show prior to airing.
27. Program Re-feeds of Live and
Near-Live Programming. Captioning
vendors have submitted best practices
proposals encouraging the use of offline
captioning for live and near-live
programs that initially have been
captioned using real-time captioning
techniques, but that are later re-aired on
television. The Commission believes
that such practice will more effectively
match the program’s audio content and
thereby ensure the full television access
through captioning. While offline
captioning may not always be possible,
the Commission encourages it and other
steps to be taken that are necessary to
achieve improved accuracy,
synchronicity, completeness and
placement of captions on such programs
prior to their being re-aired. For
example, to the extent feasible, the
Commission encourages efforts to
correct errors inadvertently made and
timing lags that occurred when the
program first aired with real-time
captions.
28. VPD Obligations. In the Closed
Captioning Report and Order, the
Commission chose to place exclusive
responsibility for compliance with the
closed captioning requirements on VPDs
because they are ultimately responsible
for ensuring the delivery of
programming to consumers. Because
VPDs are the entities that provide video
programming directly to consumers’
homes, keeping them in the chain of
responsibility will provide consumers
an entity to which they can address
their complaints, and VPDs can assist in
identifying other entities responsible for
the captioning quality errors.
Accordingly, document FCC 14–12
imposes obligations on VPDs to ensure
compliance with the captioning quality
standards.
29. For the purposes of document FCC
14–12, all references to VPDs are as
defined in § 79.1 of the Commission’s
rules, unless otherwise noted. To avoid
possible ambiguity, the Commission
changes the heading for § 79.1 of its
rules to now read ‘‘Closed captioning of
televised programming.’’ Section 79.1(a)
of the Commission’s rules defines VPD
as (1) any television broadcast station
licensed by the Commission; (2) any
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multichannel video programming
distributor (MVPD) as defined in
§ 76.1000(e) of the Commission’s rules;
and (3) any other distributor of video
programming for residential reception
that delivers such programming directly
to the home and is subject to the
jurisdiction of the Commission. A
different definition of VPD is used for
purposes of programming distributed on
the Internet under § 79.4 of the
Commission’s rules. 47 CFR 79.4(a)(3).
30. In acknowledgment of the critical
role that video programmers play in the
delivery of captions, each VPD must
exercise best efforts to obtain a
certification from each of its video
programmers, by requesting, in writing,
that each programmer that supplies it
with programming provide a
certification attesting that the
programmer either (1) complies with the
captioning quality standards adopted
herein; (2) adheres to the Best Practices
for video programmers set forth below,
or (3) is exempt from the closed
captioning rules under one or more
properly attained exemptions, in which
case such certification must identify the
specific exemption claimed. In addition,
the VPD must request, in writing, that
the programmer make such certification
widely available within 30 days after
receiving a written request from the
VPD. VPDs will further have the
obligation to check Web sites or other
widely available locations used for the
purpose of posting widely available
certifications, to determine which of
their programmers have certified their
compliance. VPDs that locate a
programmer’s certification on the
programmer’s Web site or other widely
available location used for the purpose
of posting certifications as of the
effective date of these rules will be
deemed in compliance with this best
efforts obligation even if the VPD did
not previously notify such programmer,
in writing, of the need for this
certification directly to such
programmer. VPDs that fail to exercise
best efforts to obtain the certification
noted above may be subject to
enforcement action.
31. If a video programmer does not
provide the certification noted above,
and if the VPD nevertheless carries the
programmer’s programming, it must
report the non-certifying programmer to
the Commission. The Consumer and
Governmental Affairs Bureau will issue
a Public Notice announcing the proper
procedure for submitting such reports to
the Commission. The Commission will
compile a list of such programmers that
will become available in a public
database maintained by the
Commission. If a VPD uses its best
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efforts to obtain one of these
certifications from each of its
programmers, and it reports to the
Commission the identity of any
programmer whose programming the
VPD carries who has refused to provide
the requested certification, no sanctions
will be imposed on the VPD as a result
of any captioning violations that are
outside the control of the VPD. MVPDs
will not need to obtain the above
certifications from broadcast television
stations that are carried on the MVPDs’
systems because broadcast television
stations themselves are VPDs, and the
Commission is exercising direct
authority over all VPDs with regard to
the captioning quality rules adopted
herein.
32. These requirements will become
effective upon the latter of January 15,
2015 or a date announced in a public
notice published in the Federal Register
following approval by the Office of
Management and Budget of the
modified information collection
requirements under the Paperwork
Reduction Act of 1995.
33. Best Practices. A number of
parties to this proceeding, including
VPDs, video programmers, captioning
vendors, and consumers, have proposed
Best Practices to ensure caption quality.
Adherence to the Best Practices will
provide the captioning industry with
concrete steps it can take to achieve
quality captions and ensure that caption
quality problems that do arise are
quickly resolved. One year after
implementation of the rules adopted
herein, the Commission will assess the
extent to which its prediction about the
effectiveness of these Best Practices has
been accurate. If the Commission finds
that this approach is not effective in
ensuring the production and
distribution of good quality captions,
the Commission will revisit these rules
to the extent necessary.
34. Video Programmer Best Practices.
To satisfy its obligation to exercise its
best efforts to obtain certification from
its programmers regarding closed
caption quality, a VPD may seek
certification from its video programmers
that they will adhere to the following
practices.
• Agreements with captioning
services. Video programmers complying
with the Best Practices will take the
following actions to promote the
provision of high quality television
closed captions through new or renewed
agreements with captioning vendors:
Æ Performance requirements. Include
performance requirements designed to
promote the creation of high quality
closed captions for video programming
substantially comparable to the
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Captioning Vendors Best Practices set
forth below. Some programmers may
contract with captioning agencies that
employ practices that vary somewhat
from the Captioning Vendor Best
Practices but nonetheless generate high
quality closed captions for video
programming. To provide the captioning
industry with flexibility, compliance
with these Best Practices will include
compliance with performance
requirements that are comparable to
these practices. Such requirements
should adhere to the basic tenets of the
requirements set forth in document FCC
14–12, and will qualify only if they are
designed to achieve captions that are
accurate, synchronous, complete and
appropriately placed, as required by
these new standards.
Æ Verification. Include a means of
verifying compliance with the above
performance requirements such as
through periodic spot checks of
captioned programming.
Æ Training. Include provisions
designed to ensure that captioning
vendors’ employees and contractors
who provide caption services have
received appropriate training and that
there is oversight of individual
captioners’ performance.
• Operational best practices. Video
programmers complying with the Best
Practices will take the following actions
to promote delivery of high quality
television captions through improved
operations:
Æ Preparation materials. To the
extent available, provide captioning
vendors with advance access to
preparation materials such as show
scripts, lists of proper names (people
and places), and song lyrics used in the
program, as well as to any dress
rehearsal or rundown that is available
and relevant.
Æ Quality audio. Make commercially
reasonable efforts to provide captioning
vendors with access to a high quality
program audio signal to promote
accurate transcription and minimize
latency.
Æ Captioning for pre-recorded
programming.
D The presumption is that prerecorded programs, excluding programs
that initially aired with real-time
captions, will be captioned offline
before air except when, in the exercise
of a programmer’s commercially
reasonable judgment, circumstances
require real-time or live display
captioning. Examples of commercially
reasonable exceptions may include
instances when (1) a programmer’s
production is completed too close to
initial air time be captioned offline or
may require editorial changes up to air
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time (e.g., news content, reality shows,
(2) a program is delivered late, (3) there
are technical problems with the caption
file, (4) last minute changes must be
made to later network feeds (e.g., when
shown in a later time zone) due to
unforeseen circumstances, (5) there are
proprietary or confidentiality
considerations, or (6) video
programming networks or channels with
a high proportion of live or topical timesensitive programming, but also some
pre-recorded programs, use real-time
captioning for all content (including
pre-recorded programs) to allow for
immediate captioning of events or
breaking news stories that interrupt
scheduled programming.
D Make reasonable efforts to employ
live display captioning instead of realtime captioning for pre-recorded
programs if the complete program can
be delivered to the caption service
provider in sufficient time prior to
airing.
• Monitoring and remedial best
practices. Video programmers
complying with the Best Practices will
take the following actions aimed at
improving prompt identification and
remediation of captioning errors as they
occur:
Æ Pre-air monitoring of offline
captions. As part of the overall pre-air
quality control process for television
programs, conduct periodic checks of
offline captions on pre-recorded
programs to determine the presence of
captions.
Æ Real-time monitoring of captions.
Monitor television program streams at
point of origination (e.g., monitors
located at the network master control
point or electronic monitoring) to
determine presence of captions.
Æ Programmer and captioning vendor
contacts. Provide to captioning vendors
appropriate staff contacts who can assist
in resolving captioning issues. Make
captioning vendor contact information
readily available in master control or
other centralized location, and contact
captioning vendor promptly if there is a
caption loss or obvious compromise of
captions.
Æ Recording of captioning issues.
Maintain a log of reported captioning
issues, including date, time of day,
program title, and description of the
issue. Beginning one year after the
effective date of the captioning quality
standards, such log shall reflect reported
captioning issues from the prior year.
Æ Troubleshooting protocol. Develop
procedures for troubleshooting
consumer captioning complaints within
the distribution chain, including
identifying relevant points of contact,
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and work to promptly resolve
captioning issues, if possible.
Æ Accuracy spot checks. Within 30
days following notification of a pattern
or trend of complaints from the
Commission, conduct spot checks of
television program captions to assess
caption quality and address any ongoing
concerns.
• Certification procedures for video
programmers. Video programmers
complying with the Best Practices will
certify to video programming
distributors that they comply with the
quality captioning standards or adhere
to Best Practices for video programmers
and will make such certifications
widely available to VPDs, for example,
by posting on affiliate Web sites.
35. Captioning Vendor Best Practices.
As noted above, as part of their Best
Practices, certifying video programmers
must have agreements with captioning
vendors that include performance
requirements that are comparable to the
Captioning Vendor Best Practices set
forth below. These practices are
intended to result in high quality
captions and ensure that captioners
have adequate training and oversight.
The Commission defines ‘‘captioning
vendor’’ (also sometimes referred to in
document FCC 14–12 as a ‘‘captioning
service provider’’) to mean any entity
that is responsible for providing
captioning services to a video
programmer. Consistent with the
Captioning Vendors’ proposal, the
Commission divides these Best Practices
into three sets of practices—first, for
captioning vendors, second, for
individual captioners who generate realtime captions, and third, for the
generation of offline captioning.
36. Best Practices for Real-time (Live)
Captioning Vendors.
• Create and use metrics to assess
accuracy, synchronicity, completeness,
and placement of real-time captions;
• Establish minimum acceptable
standards based upon those metrics
while striving to regularly exceed those
minimum standards;
• Perform frequent and regular
evaluations and sample audits to ensure
those standards are maintained;
• Consider ‘‘accuracy’’ of captions to
be a measurement of the percentage of
correct words out of total words in the
program, calculated by subtracting
number of errors from total number of
words in the program, dividing that
number by total number of words in the
program and converting that number to
a percentage. For example, 7,000 total
words in the program minus 70 errors
equals 6,930 correct words captioned,
divided by 7,000 total words in the
program equals 0.99 or 99% accuracy;
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• Consider at a minimum
mistranslated words, incorrect words,
misspelled words, missing words, and
incorrect punctuation that impedes
comprehension, and misinformation as
errors;
Æ Captions are written in a near-asverbatim style as possible, minimizing
paraphrasing;
Æ The intended message of the
spoken dialogue is conveyed in the
associated captions in a clear and
comprehensive manner;
Æ Music lyrics should accompany
artist performances;
• Consider synchronicity of captions
to be a measurement of lag between the
spoken word supplied by the program
origination point and when captions are
received at the same program
origination point;
• Ensure placement of captions on
screen to avoid obscuring on-screen
information and graphics (e.g., sports
coverage);
• Ensure proper screening, training,
supervision, and evaluation of
captioners by experienced and qualified
real-time captioning experts;
• Ensure there is an infrastructure
that provides technical and other
support to video programmers and
captioners at all times;
• Ensure that captioners are qualified
for the type and difficulty level of the
programs to which they are assigned;
• Utilize a system that verifies
captioners are prepared and in position
prior to a scheduled assignment;
• Ensure that technical systems are
functional and allow for fastest possible
delivery of caption data and that
failover systems are in place to prevent
service interruptions;
• Regularly review discrepancy
reports in order to correct issues and
avoid future issues;
• Respond in a timely manner to
concerns raised by video programmers
or viewers;
• Alert video programmers
immediately if a technical issue needs
to be addressed on their end;
• Inform video programmers of
appropriate use of real-time captioning
(i.e., for live and near-live programming,
and not for pre-recorded programming)
and what is necessary to produce
quality captions, including technical
requirements and the need for
preparatory materials;
• For better coordination for ensuring
high quality captions and for addressing
problems as they arise, understand the
roles and responsibilities of other
stakeholders in the closed-captioning
process, including VPDs, video
programmers, producers, equipment
manufacturers, regulators, and viewers,
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and keep abreast of issues and
developments in those sectors; and
• Ensure that all contracted
captioners adhere to real-time captioner
Best Practices.
37. Best Practices for Real-Time (Live)
Captioners.
• Caption as accurately,
synchronously, completely, and
appropriately placed as possible;
• Ensure they are equipped with a
failover plan to minimize caption
interruption due to captioner or
equipment malfunction;
• Be equipped with reliable, high
speed Internet;
• Be equipped with multiple
telephone lines;
• Prepare as thoroughly as possible
for each program;
• File thorough discrepancy reports
with the captioning vendor in a timely
manner;
• To the extent possible given the
circumstances of the program, ensure
that real-time captions are complete
when the program ends;
• Engage the command that allows
captions to pass at commercials and
conclusion of broadcasts;
• Monitor captions to allow for
immediate correction of errors and
prevention of similar errors appearing or
repeating in captions;
• Perform frequent and regular selfevaluations;
• Perform regular dictionary
maintenance;
• Keep captioning equipment in good
working order and update software and
equipment as needed;
• Possess the technical skills to
troubleshoot technical issues; and
• Keep abreast of current events and
topics that they caption.
38. Best Practices for Offline (Prerecorded) Captioning Vendors and
Captioners.
• Ensure offline captions are
verbatim;
• Ensure offline captions are errorfree;
• Ensure offline captions are
punctuated correctly and in a manner
that facilitates comprehension;
• Ensure offline captions are
synchronized with the audio of the
program;
• Ensure offline captions are
displayed with enough time to be read
completely and that they do not obscure
the visual content;
• Ensure offline captioning is a
complete textual representation of the
audio, including speaker identification
and non-speech information;
• Create or designate a manual of
style to be applied in an effort to
achieve uniformity in presentation;
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• Employ frequent and regular
evaluations to ensure standards are
maintained;
• Inform video programmers of
appropriate uses of real-time and offline
captioning, and strive to provide offline
captioning for pre-recorded
programming;
Æ Encourage use of offline captioning
for live and near-live programming that
originally aired on television and feeds
at a later time;
Æ Encourage use of offline captioning
for all original and library pre-recorded
programming completed well in
advance of its distribution on television;
and
• For better coordination for ensuring
high quality captions and for addressing
problems as they arise, understand the
roles and responsibilities of other
stakeholders in the closed-captioning
process, including VPDs, video
programmers producers, equipment
manufacturers, regulators, and viewers,
and keep abreast of issues and
developments in those sectors.
39. In addition to following the Best
Practices listed above, the Commission
agrees that an ongoing dialogue among
interested parties can help assess the
industry’s progress in implementing
these practices and their impact on
caption quality for television programs,
as well as promote a better
understanding of issues relevant to
caption quality. The Commission
supports commenters’ proposal that
trade associations sponsor an annual
conference with VPDs, programmers,
captioning vendors, representatives of
the deaf and hard of hearing
communities, the Commission, and
other interested parties to review the
state of caption quality on television,
and to discuss developments in
captioning technology and other issues
of concern. The Commission also
encourages industry and consumers to
engage in frequent discussions so that
the myriad of issues associated with
captioning can be resolved to the
mutual satisfaction of industry and
consumers on an ongoing basis.
40. Consumer Complaints. The
Commission will rely on consumers to
bring any potential noncompliance with
its captioning quality standards to the
Commission’s attention. The
Commission disagrees with NCTA’s
argument that informal complaints
regarding caption quality should be
treated as informational filings only,
with no requirement for the covered
entity to investigate or respond to
complaints brought to a company’s
attention. Commission experience with
closed captioning informal complaints
filed pursuant to § 79.1(g) of the
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Commission’s rules has been that they
have been useful in bringing to its
attention and to the attention of
programming entities technical and
other problems that these entities
generally correct after investigating the
problems raised in the informal
complaints. However, CGB will forward
informal complaints only if they contain
the following information: (1) the
channel number, channel name, call
sign, or network; (2) the name of the
MVPD, if applicable; (3) the date and
time when the captioning problem
occurred; (4) the name of the program
with the captioning problem; and (5) a
detailed description of the captioning
problem, including specifics about the
frequency and type of problem (e.g.,
garbling, captions cut off at certain
times or on certain days, and accuracy
problems). CGB will undertake efforts to
work with consumers to obtain
additional information, as needed, to
ensure complete information on
deficient complaints prior to forwarding
these to VPDs in order to ease the
burdens on both consumers and
industry.
41. Use of Electronic Newsroom
Technique (ENT) for Live Programming.
Background. Electronic Newsroom
Technique (ENT) is a technique that can
convert the dialogue included on a
teleprompter script into captions. In the
1997 Closed Captioning Report and
Order, the Commission allowed the use
of ENT for the captioning of newscasts
and other live programming—for
purposes of meeting the captioning
benchmarks—to permit flexibility in the
methods used to create closed captions
and to address the record’s conflicting
accounts at that time as to the number
of available real-time captioners. On
reconsideration, because of the inability
of ENT to capture interviews, field
reports, and late breaking weather and
sports reports, the Commission
narrowed the circumstances under
which captions created with this
technique would be permitted. Closed
Captioning and Video Description of
Video Programming; Implementation of
Section 305 of the Telecommunications
Act of 1996 Video Programming
Accessibility, MM Docket No. 95–196,
Order on Reconsideration, (1998 Closed
Captioning Reconsideration Order); 63
FR 55959, October 20, 1998. The ENT
rule now prohibits the four major
national broadcast networks, their
affiliates in the 25 largest DMAs as
defined by the Nielsen ratings, and
national non-broadcast networks serving
at least 50 percent of all homes
subscribing to multichannel video
programming services from using ENT
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to caption live programming. 47 CFR
79.1(e)(3).
42. The Commission remains
concerned about the inability of ENT, as
it is currently used, to provide full and
equal access to news programming for
all Americans, no matter where they
live. However, while the costs for realtime captioning have dropped
significantly and steps have been taken
to increase the number of real-time
captioners since the Commission’s rules
was adopted in the 1997 Closed
Captioning Report and Order, the
Commission recognizes that many
stations continue to have significant
concerns about their ability to provide
local news if they are denied the
opportunity to provide captions through
ENT, and agrees that the public interest
would not be served were television
stations required to cut back on local
news programming.
43. In document 14–12, the
Commission amends § 79.1(e)(3) of its
rules to describe the manner in which
broadcast stations not subject to the
prohibition on ENT will be deemed in
compliance with the captioning rules if
they continue to use ENT to provide
captioning on their live programming.
The record indicates that these
enhanced ENT procedures, listed below,
offer stations a means to continue using
ENT, and a means to improve caption
quality for consumers, without requiring
all stations to assume the cost of realtime captioning of all news
programming. The Commission
anticipates that these procedures will
ensure that most in-studio
programming, such as weather, sports,
news and entertainment, as well as
breaking news and on-the-scene
programming will be made more
accessible to viewers who are deaf and
hard of hearing.
44. Effective Date. The Commission
will make these requirements effective
90 days after publication in the Federal
Register. To the extent it is not
technically feasible for a particular
station to comply with its new
requirements by this time, the station
may request additional time by seeking
a limited waiver of the effective date,
supported by an appropriate good cause
showing. Any station may, in lieu of
following the enhanced ENT
procedures, provide real-time
captioning on their live programming.
45. ENT Best Practices. Accordingly,
based on the proposals submitted by
NAB, the Commission requires that to
be deemed in compliance with the
Commission rules requiring captioning
of live programming, broadcast stations
that are not subject to the current
prohibition on ENT must adhere to the
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following procedures in the ordinary
course of business if they continue to
use ENT for live programming:
• In-studio produced programming
will be scripted. These scripted
elements will include in-studio news,
sports, weather, and entertainment
programming.
• For weather interstitials where
there may be multiple segments within
a news program, weather information
explaining the visual information on the
screen and conveying forecast
information will be scripted, although
the scripts may not precisely track the
words used on air.
• Pre-produced programming will be
scripted (to the extent technically
feasible).
• If live interviews, live on-the scene
and/or breaking news segments are not
scripted, stations shall supplement them
with crawls, textual information, or
other means (to the extent technically
feasible).
• These provisions do not relieve
stations of their obligations to comply
with requirements regarding the
accessibility of programming providing
emergency information under § 79.2 of
the Commission’s rules. 47 CFR 79.2.
• Stations will provide training to all
news staff on scripting for improving
ENT.
• Stations will appoint an ‘‘ENT
Coordinator’’ accountable for
compliance.
46. One-year ENT Report. Because the
record is not fully developed on how
the new ENT procedures will be applied
by news programmers across the
country, and the extent to which
compliance with these procedures will
fulfill the Act’s requirement for full
access to news programming, the
Commission will reevaluate the
effectiveness of these ENT
enhancements in providing people who
are deaf and hard of hearing with full
access to television news programming
one year after the effective date of the
rules pertaining to ENT. To begin this
process, no later than one year after the
implementation of these ENT
procedures, document FCC 14–12
requires broadcast stations that have
relied on these procedures to prepare
and submit to the Commission a report
on their experiences with following
these new measures, and the extent to
which they have been successful in
providing full and equal access to news
programming. Such report shall be
prepared in consultation with Consumer
Groups and may be prepared by the
NAB on behalf of the affected
broadcasters. The Commission
encourages, as recommended by
Consumer Groups, that such report
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include data to demonstrate the extent
to which ENT captioning meets the
principles of accuracy, completeness,
synchronicity, and placement, the
percentage and quantity of uncaptioned
programming by stations using ENT, the
impact of ENT usage on the ability of
consumers who are deaf and hard of
hearing to access programming,
complaints filed about ENT, the state of
the market for real-time captioners, the
economic need for stations to continue
using ENT in lieu of real-time
captioning, and technological progress
toward achieving improvements with
ENT. Such data can assist the
Commission in evaluating whether a
further proceeding that may include the
phase out of ENT for certain DMAs is
necessary to ensure full access to
televised news programming by people
who are deaf and hard of hearing.
47. Complaints. The Commission will
entertain informal complaints of
noncompliance with the Commission’s
closed captioning rules by those stations
using the above procedures for ENT, but
will forward a complaint to a station
only if it contains the following relevant
information, which the Commission
deems necessary to effectively respond
to such complaint: The television
channel number, network and/or call
sign, the name of the subscription
service, if relevant, the date and time of
the alleged captioning problems, the
name of the program with the alleged
captioning problem, a detailed and
specific description of the captioning
problem, including the frequency and
type of problem.
48. Compliance Ladder. The
Commission further adopts the
following compliance ladder in the
event that complaints gathered by the
Commission indicate a pattern or trend
of noncompliance with the new ENT
rules.
• If the Commission notifies a
broadcast station that the Commission
has identified a pattern or trend of
possible noncompliance by the station,
the station shall respond to the
Commission within 30 days regarding
such possible noncompliance,
describing corrective measures taken,
including those measures the station
may have undertaken in response to
informal complaints and inquiries from
viewers.
• If, after the date for a broadcast
station to respond to the above
notification, the Commission
subsequently notifies the broadcast
station that there is further evidence
indicating a pattern or trend of
noncompliance, the broadcast station
shall submit to the Commission, within
30 days of receiving such subsequent
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notification, an action plan describing
specific measures it will take to bring
the station’s ENT performance into
compliance with the Commission’s
regulations for ENT. Action plans could
include, for example, training of station
personnel, more prominent reminders of
the need for accessibility, and, if
appropriate, the use of improved
equipment. In addition, the station shall
be required to conduct spot checks of its
ENT performance and report to the
Commission on the results of such
action plan and spot checks 180 days
after submission of such action plan.
• If, after the date for submission of
such report on the results of an action
plan, the Commission finds continued
evidence of a pattern or trend of
noncompliance, the Commission will
then consider, through its Enforcement
Bureau, appropriate enforcement action
including admonishments, forfeitures,
and other corrective actions as
necessary that may include a
requirement to cease using ENT, and
instead use real-time captioning for live
programming.
49. In determining whether to require
a station to implement real-time
captioning, the Commission will take
into consideration all relevant
information regarding the nature of the
problem and the station’s efforts to
correct the problem.
50. Video Programming Distributor
Technical Rules. Equipment Monitoring.
Even when captions delivered to VPDs
are complete, accurate, synchronous,
and appropriately located on the screen
in compliance with the Commission’s
captioning quality standards, there still
remains the possibility that technical
problems may prevent these captions
from reaching viewers. In the 1997
Closed Captioning Report and Order,
the Commission adopted a ‘‘passthrough requirement’’ for VPDs to
‘‘ensure that captioned programming is
always delivered to viewers complete
and intact.’’ The Commission stated that
VPDs would ‘‘be responsible for any
steps needed to monitor and maintain
their equipment and signal
transmissions to ensure that the
captioning included with the video
programming reaches consumers,’’ and
cautioned that VPDs were to ‘‘take
corrective measures necessary to ensure
that the captioning is consistently
included with the video programming
delivered to viewers.’’ The Commission
further clarified that it is the ‘‘video
programming distributor’s responsibility
. . . to ensure that the equipment used
to transmit these channels to viewers is
capable of passing the captioning
through along with the programming
[and] is in proper working order.’’
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51. The record shows that technical
problems, which can occur in the
delivery of captions from the point of
origination to the end user, have been
preventing some viewers from being
able to fully access video programming
as required by the Act and the
Commission’s captioning rules. Each
time the program stream is transcoded
or manipulated the captions can become
garbled or disappear, or otherwise have
their quality impaired. The Commission
finds that VPDs could eliminate most
technical captioning glitches if they
have mechanisms in place to monitor
and check their engineering equipment
and procedures. In addition, complaints
would be reduced if these entities
actively monitor and maintain their
equipment to eliminate the occurrence
of technical problems in the first
instance, and to quickly and efficiently
repair such problems that do occur.
52. To ensure full technical
compliance with the pass-through rule,
the Commission reaffirms and codifies
in its rules, its 1997 requirements for
VPDs to take ‘‘any steps needed to
monitor and maintain their equipment
and signal transmissions as part of their
obligation to ensure that the captioning
included with video programming
reaches consumers,’’ and to take any
corrective measures necessary to ensure
that such equipment is in proper
working order. The Commission also
adopts a new rule requiring technical
equipment checks to take place in a
manner that is sufficient to ensure that
captions are passed through to viewers
intact. The Commission expects that
VPDs that already perform equipment
checks and maintain adequate records
to ensure that captions are passed
through to their viewers should not
have to change their practices as a result
of these new rules. Others who have
failed to perform technical equipment
checks or do not currently maintain
records will have to revise their
practices to comply with the obligation
to monitor their equipment for its
proper maintenance.
53. As part of their pass-through
requirement, the Commission reminds
MVPDs that they must also ensure that
the customer premises equipment (e.g.,
set-top boxes) that they provide to
consumers transmit all captions
pursuant to the standards adopted
under the CVAA. Additionally, the
Commission encourages MVPDs to
provide their installers and other
employees who interact with consumers
with information necessary to help
those consumers effectively access
closed captions through their MVPDinstalled devices.
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54. Reporting and Recordkeeping. At
this time, the Commission declines to
impose a requirement for VPDs to report
on their compliance with the captioning
rules. However, as explained below,
document FCC 14–12 adopts a
requirement for VPDs to keep records of
their activities related to the
maintenance, monitoring and technical
checks of their captioning equipment.
The Commission believes that the new
complaint process, which allows
consumers to skip the step of first
contacting a VPD about a complaint and
allows the initial filing of such
complaints with the Commission, has
made it easier for consumers to bring to
the Commission’s attention alleged
violations of the captioning
requirements, and thus reduces the need
for a reporting requirement. However,
the Commission continues to believe
that each VPD should be required to
maintain sufficient data to respond to
consumer complaints and provide the
Commission with information needed to
make a determination as to the VPD’s
compliance with the closed captioning
requirements. Although such
requirement already exists, document
FCC 14–12 now specifies that such data
must include (though it need not be
limited to) information about the VPD’s
efforts to monitor, maintain, and
conduct technical checks of its
captioning equipment and other related
equipment to ensure the pass through of
captions to viewers. The Commission
further requires each VPD to retain such
records and documentation for a period
of at least two years, in order to
effectively respond to a consumer
complaint or Commission inquiry
addressing compliance with the
Commission’s captioning rules. Because
the statute of limitations to impose a
penalty for captioning violations is one
year for some VPDs, and additional time
is needed to obtain the records once the
proceeding has commenced, the
Commission finds that this two-year
document retention rule is reasonable.
Finally, the Commission directs that
VPDs be prepared to submit such data
to the Commission upon request, if
needed to resolve an enforcement
proceeding. A VPD’s efforts to dispute
noncompliance alleged in a complaint
or a Commission inquiry with
conclusory or insufficiently supported
assertions of compliance will not carry
the VPD’s burden of proof to show that
it is in compliance with the
Commission’s rules. In the event that
the Commission finds that these
recordkeeping obligations are
insufficient to achieve compliance with
the closed captioning obligations, the
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Commission may revisit whether to
impose reporting requirements.
55. The recordkeeping requirements
will become effective upon the latter of
January 15, 2015 or a date announced in
a public notice published in the Federal
Register following approval by the
Office of Management and Budget of the
modified information collection
requirements under the Paperwork
Reduction Act of 1995.
56. Treatment of Multicast Streams.
Background. In 1997, the Commission
adopted a closed captioning exemption
for video programming channels that
produced annual gross revenues of less
than $3 million during the previous
calendar year. At that time, the
Commission specified that ‘‘[a]nnual
gross revenues shall be calculated for
each channel individually based on
revenues received in the preceding
calendar year from all sources related to
the programming on that channel.’’ The
Commission did not determine,
however, what constituted a ‘‘channel’’
for purposes of satisfying this selfimplementing exemption. In 1997,
broadcasters used their spectrum
allocation to provide analog
programming on a single channel; with
the advent of digital broadcasting,
broadcasters may use their digital
allotment to provide simultaneously
several streams of programming on the
same 6 MHz of spectrum. This is known
as ‘‘multicasting.’’ In the 2008 Closed
Captioning Decision, the Commission
sought comment on whether, for
purposes of the $3 million exemption,
each programming stream on a multicast
signal constitutes a separate channel for
purposes of the captioning
requirements, or whether the
broadcaster’s entire operations
attributable to its digital allotment
should be considered one channel for
captioning purposes.
57. The Commission concludes that,
for purposes of § 79.1(d)(12) of the
Commission’s rules, each programming
stream on a multicast broadcast signal
will be considered separately for
purposes of determining whether the $3
million annual gross revenue limit has
been satisfied. The Commission agrees
that applying § 79.1(d)(12) of its rules to
each multicast stream separately is
consistent with our ruling in 1997,
which calculated gross revenues for
each channel individually, and in the
way it is applied to MVPDs.
Accordingly, the Commission amends
§ 79.1(d)(12) of its rules to ensure
application of the $3 million exemption
to a channel or stream of programming
when multiple streams of programming
are offered by a broadcaster. The
Commission reminds multicasting
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television broadcasters, however, that
once the annual revenues for a
multicasting stream reach $3 million,
the captioning exemption will not apply
to that stream and, at that point, all
applicable captioning requirements will
apply to that stream. The Commission
will revisit the multicasting issue at a
later time to determine whether the
approach adopted in document FCC 14–
12 is still needed to assure the viability
of multicasting, as well as the extent to
which any change of policy is needed to
ensure the availability of closed
captioning on multicast programming
for people who are deaf and hard of
hearing.
58. Other Matters. Penalties for
Violation of the Closed Captioning
Rules. Petitioners have requested that
the Commission use its existing
forfeiture guidelines to establish a base
forfeiture amount of $8,000 for each
captioning violation, with each hour of
programming below the applicable
benchmark counted as a separate
violation. They also have asked the
Commission to clarify that to the extent
technical problems result in a portion of
a program’s captioning to be garbled or
missing, such program not be counted
toward the applicable captioning
benchmark. In the 2005 Closed
Captioning NPRM, the Commission
sought comment on whether the
Commission should establish specific
per-violation forfeiture amounts for noncompliance with the captioning rules,
and if so, what those amounts should
be.
59. The Commission declines to
create sanctions or remedies for closed
captioning enforcement proceedings
that deviate from the Commission’s
flexible case-by-case approach governed
by § 1.80 of its rules. The Commission
already has sufficient authority to issue
appropriate penalties, and it will
adjudicate complaints on the merits and
employ the full range of sanctions and
remedies available to the Commission
under the Act. In order to encourage
compliance with its rules, the
Commission will consider a wide
variety of factors to determine whether
enforcement is warranted, such as
history of monitoring and maintenance,
complaints received from consumers,
frequency of captioning errors, and
impact of captioning errors on the
viewers’ understandability of the
program. In addition, as provided in
§ 79.1(g)(8) of the Commission’s rules, a
forfeiture penalty may be in addition to
any other penalty that the Commission
may impose.
60. Electronic Filing of Exemption
Requests Section 713(d)(3) of the Act
permits video programming providers or
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owners to petition the Commission for
an exemption from the closed
captioning requirements where it can be
shown that such requirements would be
‘‘economically burdensome.’’ The
Commission has required parties
seeking such exemption to file their
petitions in paper form. In the 2005
Closed Captioning NPRM, the
Commission sought comment on
whether to require or allow the
electronic filing of exemption petitions,
and asked about the impact electronic
filing would have on entities filing such
petitions and parties filing comments or
oppositions to such petitions.
61. In the 2011 Electronic Filing
Report and Order, the Commission
amended certain of its procedural rules
to increase the efficiency of Commission
decision-making and modernize
Commission procedures in the digital
age, including adoption of a
requirement to use electronic filing
whenever technically feasible.
Document FCC 14–12 now amends
Commission rules to require the
electronic filing of individual closed
captioning exemption requests in
machine readable format, and further
revises Commission rules to require that
comments on and oppositions to such
petitions also be filed electronically in
machine readable format. Pursuant to
§ 79.1(f)(7) of the Commission’s rules,
however, any comment on or opposition
to the petition, and any reply, must also
be served on the other party and must
include a certification that the filing was
served on the other party.
62. Correction to 47 CFR 79.1(i)(3) of
the Commission’s rules. The email
address in § 79.1(i)(3) of the
Commission’s rules that is provided for
VPDs to submit contact information for
closed captioning concerns and
complaints is inaccurate. The correct
address is CLOSEDCAPTIONING_POC@
fcc.gov. The Code of Federal Regulations
(CFR) will be amended accordingly.
Declaratory Ruling
63. Mixed Language Programming—
Bilingual English-Spanish Language
Programming. The Commission
confirms that bilingual English-Spanish
programs are subject to the same
obligations with respect to the amount
of required captioned programming as
programming that is entirely in English
or entirely in Spanish. (The Commission
notes, however, that it would not
consider a program to be bilingual if it
has just a few lines of dialogue in the
program’s less predominant language.)
Specifically, all new bilingual EnglishSpanish programming must be closed
captioned, and 75 percent of pre-rule
bilingual English-Spanish programming
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must be closed captioned in their
respective languages at this time.
64. Other Language Programming.
Section 79.1(d)(3) of the Commission’s
rules exempts from the closed
captioning requirements ‘‘. . .
programming for which the audio is in
a language other than English or
Spanish, except that scripted
programming that can be captioned
using the ‘electronic news room’
technique is not exempt.’’ The
Commission confirms that programs
that are in neither English nor Spanish
but contain small amounts or
‘‘snippets’’ of English or Spanish words
that account for only a small percentage
of these programs, are also governed by
§ 79.1(d)(3) of its rules and need not to
be captioned. The Commission reminds
programmers and distributors, however,
that § 79.1(d)(3) of its rules requires the
use of ENT for closed captioning in
instances where scripted programming
would make this possible.
65. Providing VPD Contact
Information Where VPD Is Exempt from
Certain Requirements. The Commission
clarifies that § 79.1(i) of its rules require
all VPDs, even if they are exempt from
certain closed captioning rules, to make
contact information available to
consumers and the Commission for the
handling of immediate concerns and
written complaints about closed
captioning. Because all VPDs, including
those that are exempt from certain
captioning rules, are nevertheless
required to provide captioning pursuant
to the pass-through rule, all VPDs are
subject to the obligation to receive and
respond to complaints.
66. Obligation to Caption ‘‘On
Demand’’ Video Programming. The
Commission confirms that all ‘‘on
demand’’ programming not subject to an
exemption must comply with the
relevant captioning requirements for
new and pre-rule programming. More
specifically, to the extent that ‘‘on
demand’’ programming that airs today is
‘‘new programming,’’ it must be
captioned unless it otherwise qualifies
for an exemption under its rules. To the
extent it is pre-rule programming, it
must comply with the Commission’s
pre-rule 75 percent benchmark.
67. Application of Closed Captioning
Requirements to LPTV Stations. In the
1997 Closed Captioning Report and
Order, the Commission declined to
adopt a specific exemption for low
power television (LPTV) stations, and
included within the definition of VPD,
‘‘[a]ny broadcast station licensed by the
Commission.’’ Because the 1997 Closed
Captioning Report and Order makes
clear the Commission’s intent to require
closed captioning of non-exempt
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programming on all television stations,
including LPTV stations, the
Commission reminds LPTV stations that
they must comply with Part 79 of its
rules.
Final Regulatory Flexibility Analysis
68. Initial Regulatory Flexibility
Analyses (IRFAs) were incorporated in
the Notices of Proposed Rulemaking
(NPRMs) in the 2005 Closed Captioning
NPRM and the 2008 Closed Captioning
Decision in this proceeding. 5 U.S.C.
603. The Commission sought written
public comment on the proposals in the
two NPRMs, including comment on the
two IRFAs. The Commission received
one comment on the IRFA incorporated
in the 2005 Closed Captioning NPRM, as
discussed below. No comments were
received on the IRFA incorporated in
the 2008 Closed Captioning Decision.
This Final Regulatory Flexibility
Analysis (FRFA) conforms to the RFA.
This Report and Order makes certain
modifications to the closed captioning
rules after consideration of the
comments and reply comments received
in response 2005 Closed Captioning
NPRM, the 2008 Closed Captioning
Decision, and the 2010 Refresh Public
Notice.
69. In document FCC 14–12, the
Commission adopts rules governing
non-technical quality standards for
closed captioning; Best Practices for
video programmers, captioning vendors
and captioners designed to ensure high
quality closed captioning; certifications
that VPDs must obtain from video
programmers attesting to video
programmers’ compliance with the
captioning quality standards or video
programmer Best Practices or that the
video programmer is exempt from the
closed captioning rules; enhanced
requirements for the use of ENT and a
compliance ladder process for
broadcasters that follow these practices;
VPD monitoring and maintenance of
equipment and signal transmissions and
technical equipment checks to ensure
greater technical compliance;
maintenance of records of such
monitoring, maintenance, and technical
equipment checks; applicability of the
$3 million exemption to multicast
program streams; and electronic filing of
economically burdensome exemption
requests. These modifications to the
closed captioning rules will serve the
public interest by improving the
availability and quality of closed
captioning and making it easier for the
public to learn whether a petition for
exemption from the closed captioning
rules has been filed.
70. The Commission notes that VPDs
are the entities directly responsible for
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compliance with closed captioning
rules, and may air programming that is
not captioned only if the programming
is not subject to a captioning benchmark
or is exempt from the rules pursuant to
§ 79.1(d) or § 79.1(f) of the
Commission’s rules. Even with regard to
programming that is not produced by a
VPD, the VPD is responsible for
ensuring that the program owner has
certified that it or its programming is
exempt from the closed captioning
rules. Although closed captioning
companies play a vital role in the closed
captioning regime, they are not the
entities that are directly affected by the
Commission’s requirements that video
programming be captioned, because
they are not the entities ultimately
responsible for compliance with the
closed captioning rules. The IRFA
included all multichannel video
programming distributors (MVPDs) and
broadcasters; these are the entities that
are ultimately responsible for closed
captioning. In addition to captioners,
program owners and producers that are
not the video programming distributors
were also omitted from the IRFA, for the
same reason—they are merely indirectly
affected by the rules and are not
ultimately responsible for compliance
with the rules. However, in order to
better inform the public about its
actions and to create a more complete
record, the Commission is including
captioners and video programming
producers in this FRFA.
71. The RFA directs the Commission
to provide a description of and, where
feasible, an estimate of the number of
small entities that will be affected by the
rules. The RFA generally defines the
term ‘‘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
SBA.
72. Small Businesses, Small
Organizations, and Small Governmental
Jurisdictions. As of 2009, small
businesses represented 99.9% of the
27.5 million businesses in the United
States, according to the SBA.
Additionally, a ‘‘small organization’’ is
generally ‘‘any not-for-profit enterprise
which is independently owned and
operated and is not dominant in its
field.’’ Nationwide, as of 2007, there
were approximately 1,621,315 small
organizations. Finally, the term ‘‘small
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governmental jurisdiction’’ is defined
generally as ‘‘governments of cities,
counties, towns, townships, villages,
school districts, or special districts, with
a population of less than fifty
thousand.’’ Census Bureau data for 2007
indicate that there were 89,527
governmental jurisdictions in the
United States. The Commission
estimates that, of this total, as many as
88,761 entities may qualify as ‘‘small
governmental jurisdictions.’’
73. Cable Television Distribution
Services. These services have been
included within the broad economic
census category of Wired
Telecommunications Carriers. The SBA
has developed a small business size
standard for this category, which is all
such firms having 1,500 or fewer
employees. According to data from the
U.S. Census Bureau for the year 2007,
there were 3,188 Wired
Telecommunications Carrier firms that
operated for the entire year in 2007. Of
these, 3,144 operated with less than
1,000 employees, and 44 operated with
1,000 or more employees.
74. Cable Companies and Systems.
Under the Commission’s rules, a ‘‘small
cable company’’ is one serving 400,000
or fewer subscribers, nationwide. 47
CFR 76.901(e) of the Commission’s
rules. Industry data shows that there are
1,100 cable companies. Of this total, all
but 10 incumbent cable companies are
small. In addition, under the
Commission’s rules, a ‘‘small system’’ is
a cable system serving 15,000 or fewer
subscribers. Current Commission
records show 4,945 cable systems
nationwide. Of this total, 4,380 cable
systems have less than 20,000
subscribers, and 565 systems have
20,000 subscribers or more.
75. Cable System Operators (Telecom
Act Standard). The Communications
Act of 1934, as amended, contains a size
standard for small cable system
operators, which is ‘‘a cable operator
that, directly or through an affiliate,
serves in the aggregate fewer than 1
percent of all subscribers in the United
States and is not affiliated with any
entity or entities whose gross annual
revenues in the aggregate exceed
$250,000,000.’’ Based on available data,
all but 10 incumbent cable operators are
small under this size standard.
76. Direct Broadcast Satellite (DBS)
Service. DBS service is a nationally
distributed subscription service that
delivers video and audio programming
via satellite to a small parabolic ‘‘dish’’
antenna at the subscriber’s location.
Currently, only two entities, DIRECTV
and DISH Network provide DBS service,
and neither company is a small
business.
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77. Wireless Cable Systems—
Broadband Radio Service and
Educational Broadband Service.
Wireless cable systems use the
Broadband Radio Service (BRS) and
Educational Broadband Service (EBS) to
transmit video programming to
subscribers. In connection with the 1996
BRS auction, the Commission
established a small business size
standard as an entity that had annual
average gross revenues of no more than
$40 million in the previous three
calendar years. Of the 67 auction
winners, 61 met the definition of a small
business, and of these 61 winners, 48
remain small business licensees. In
addition, there are approximately 392
incumbent BRS licensees that are
considered small entities. Accordingly,
there are currently approximately 440
BRS licensees that are defined as small
businesses under either the SBA or the
Commission’s rules. In 2009, the
Commission conducted Auction 86 for
the sale of 78 BRS licenses, and
established three categories of small
businesses: (i) A bidder with attributed
average annual gross revenues that
exceed $15 million and do not exceed
$40 million for the preceding three
years is a small business; (ii) a bidder
with attributed average annual gross
revenues that exceed $3 million and do
not exceed $15 million for the preceding
three years is a very small business; and
(iii) a bidder with attributed average
annual gross revenues that do not
exceed $3 million for the preceding
three years is an entrepreneur Of the 10
winning bidders, two bidders that
claimed small business status won four
licenses; one bidder that claimed very
small business status won three
licenses; and two bidders that claimed
entrepreneur status won six licenses.
78. In addition, the SBA’s placement
of Cable Television Distribution
Services in the category of Wired
Telecommunications Carriers is
applicable to cable-based Educational
Broadcasting Services. The SBA has
developed a small business size
standard for Wired Telecommunication
Carriers, which is all such businesses
having 1,500 or fewer employees.
According to Census Bureau data for
2007, there were 3,188 Wired
Telecommunications Carrier firms that
operated for the entire year in 2007. Of
these, 3,144 operated with less than
1,000 employees, and 44 operated with
1,000 or more employees. In addition to
Census Bureau data, the Commission’s
internal records indicate that as of
September 2012, there are 2,239 active
EBS licenses. The Commission
estimates that of these 2,239 licenses,
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the majority are held by non-profit
educational institutions and school
districts, which are by statute defined as
small businesses.
79. Open Video Services. Because
OVS operators provide subscription
services, OVS falls within the SBA
small business size standard covering
cable services, which is Wired
Telecommunications Carriers. The SBA
has developed a small business size
standard for this category, which is all
such firms having 1,500 or fewer
employees. According to U.S. Census
data for 2007, there were 3,188 firms
that in 2007 were Wired
Telecommunications Carriers. Of these,
3,144 operated with less than 1,000
employees, and 44 operated with 1,000
or more employees. However, as to the
latter 44 there is no data available that
shows how many operated with more
than 1,500 employees.
80. Television Broadcasting. The SBA
defines a television broadcasting station
as a small business if such station has
no more than $35.5 million in annual
receipts. The Commission has estimated
the number of licensed full power
commercial television stations to be
1,388. According to U.S. Census Bureau
data for 2007, there were 2,076
television broadcasting establishments
in 2007. Of these, 1,515 establishments
had receipts under $10 million, and 561
had receipts of $10 million or more. The
Commission notes, however, that, in
assessing whether a business concern
qualifies as small under the above
definition, business control affiliations
must be included. Because many of
these stations may be held by large
group owners, and the revenue figures
on which the Commission’s estimate is
based does not include or aggregate
revenues from control affiliates, its
estimate likely overstates the number of
small entities that might be affected by
its action.
81. The Commission has estimated
the number of licensed noncommercial
educational (NCE) full power television
stations to be 396. The Commission
does not compile and otherwise does
not have access to information on the
revenue of NCE stations that would
permit it to determine how many such
stations would qualify as small entities.
There are also 428 Class A television
stations and 1,986 low power television
stations (LPTV). Given the nature of
these services, the Commission will
presume that all Class A television and
LPTV licensees qualify as small entities
under the SBA definition.
82. In addition, an element of the
definition of ‘‘small business’’ is that the
entity not be dominant in its field of
operation. The Commission is unable at
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this time to define or quantify the
criteria that would establish whether a
specific television station is dominant
in its field of operation. Accordingly,
the estimate of small businesses to
which rules may apply do not exclude
any television station from the
definition of a small business on this
basis and is therefore over-inclusive to
that extent. Also as noted, an additional
element of the definition of ‘‘small
business’’ is that the entity must be
independently owned and operated.
The Commission notes that it is difficult
at times to assess these criteria in the
context of media entities, and its
estimates of small businesses to which
they apply may be over-inclusive to this
extent.
83. Incumbent Local Exchange
Carriers (ILECs). Neither the
Commission nor the SBA has developed
a small business size standard
specifically for ILECs. The appropriate
size standard under SBA rules is for the
category Wired Telecommunications
Carriers. Under that size standard, such
a business is small if it has 1,500 or
fewer employees and ‘‘is not dominant
in its field of operation.’’ The SBA’s
Office of Advocacy contends that, for
RFA purposes, small ILECs are not
dominant in their field of operation
because any such dominance is not
‘‘national’’ in scope. The Commission
has therefore included small ILECs in
this RFA analysis, although the
Commission emphasizes that this RFA
action has no effect on Commission
analyses and determinations in other,
non-RFA contexts.
84. According to Census Bureau data
for 2007, there were 3,188 firms in this
category that operated for the entire
year. Of this total, 3,144 had
employment of less than 1000
employees, and 44 firms had had
employment of 1,000 or more.
According to Commission data, 1,307
carriers have reported that they are
engaged in the provision of ILEC
services. Of these 1,307 carriers, an
estimated 1,006 have 1,500 or fewer
employees and 301 have more than
1,500 employees.
85. Competitive Local Exchange
Carriers (CLECs), Competitive Access
Providers (CAPs), Shared-Tenant
Service Providers, and Other Local
Service Providers. Neither the
Commission nor the SBA has developed
a small business size standard
specifically for these service providers.
The appropriate size standard under
SBA rules is for the category Wired
Telecommunications Carriers. Under
that size standard, such a business is
small if it has 1,500 or fewer employees.
According to Census Bureau data for
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2007, there were 3,188 firms in this
category that operated for the entire
year. Of this total, 3,144 had
employment of less than 1000
employees, and 44 firms had had
employment of 1,000 employees or
more. According to Commission data,
1,442 carriers reported that they were
engaged in the provision of either CLEC
services or CAP services. Of these 1,442
carriers, an estimated 1,256 have 1,500
or fewer employees and 186 have more
than 1,500 employees. In addition, 17
carriers have reported that they are
Shared-Tenant Service Providers, and
all 17 are estimated to have 1,500 or
fewer employees. Seventy-two carriers
have reported that they are Other Local
Service Providers, and of the 72, 70
have 1,500 or fewer employees and 2
have more than 1,500 employees.
86. Electric Power Distribution
Companies. These entities can provide
video services over power lines (BPL).
The SBA has developed a small
business size standard for this category,
which is all such firms having 1,000 or
fewer employees. Census Bureau data
for 2007 show that there were 1,174
firms that operated for the entire year in
this category. Of these firms, 50 had
1,000 employees or more, and 1,124 had
fewer than 1,000 employees.
87. Cable and Other Subscription
Programming. These entities may be
indirectly affected by the Commission’s
action. The size standard established by
the SBA for this business category is
that annual receipts of $35.5 million or
less determine that a business is small.
According to 2007 Census Bureau data
there were 396 firms that were engaged
in production of Cable and Other
Subscription Programming. Of these,
349 had annual receipts below $25
million, 12 had annual receipts ranging
from $25 million to $49,999,999, and 35
had annual receipts of $50 million or
more.
88. Motion Picture and Video
Production. These entities may be
indirectly affected by its action. The size
standard established by the SBA for this
business category is that annual receipts
of $30 million or less determine that a
business is small. According to 2007
Census Bureau data, there were 9,095
firms that were engaged in Motion
Picture and Video Production. Of these,
8,995 had annual receipts of less than
$25 million, 43 had annual receipts
ranging from $25 million to
$49,999,999, and 57 had annual receipts
of $50 million or more.
89. Internet Publishing and
Broadcasting and Web Search Portals.
These entities may be directly or
indirectly affected by the Commission’s
action. The SBA has deemed an Internet
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publisher or Internet broadcaster or the
provider of a web search portal on the
Internet to be small if it has fewer than
500 employees. Census Bureau data for
2007 show that there were 2,705 such
firms that operated that year. Of those
2,705 firms, 2,682 (approximately 99%)
had fewer than 500 employees, and 23
had 500 or more employees.
90. Closed Captioning Services. These
entities may be directly or indirectly
affected by the Commission’s action.
The SBA has developed two small
business size standards that may be
used for closed captioning services,
which track the economic census
categories, ‘‘Teleproduction and Other
Postproduction Services’’ and ‘‘Court
Reporting and Stenotype Services.’’
91. The relevant size standard for
small businesses in Teleproduction and
Other Postproduction Services is annual
revenue of less than $29.5 million.
Census Bureau data for 2007 indicate
that there were 1,605 firms that operated
in this category for the entire year. Of
that number, 1,587 had annual receipts
totaling less than $25 million, 9 had
annual receipts ranging from $25
million to $49,999,999, and 9 had
annual receipts of $50 million or more.
92. The size standard for small
businesses in Court Reporting and
Stenotype Services is annual revenue of
less than $14 million. Census Bureau
data for 2007 show that there were 2,706
firms that operated for the entire year.
Of this total, 2,687 had annual receipts
of under $10 million, 11 firms had
annual receipts of $10 million to
$24,999,999, and 8 had annual receipts
of $25 million or more.
93. In document FCC 14–12, the
Commission takes the following actions
to improve the quality of closed
captions:
(1) Establishes non-technical
captioning quality standards (e.g.,
accuracy, synchronicity, program
completeness and placement) to
improve the quality of closed
captioning, but does not adopt any
reporting requirements along these
lines.
(2) Adopts Best Practices for video
programmers, captioning vendors and
captioners.
Æ Video programmers that choose to
follow the Best Practices must include
certain provisions in their agreements
with captioning vendors, including
performance requirements comparable
to the captioning vendor Best Practices
adopted in document FCC 14–12; follow
certain operational, monitoring, and
remedial best practices; and make
certifications to VPDs that they comply
with the video programmer Best
Practices widely available.
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Æ Captioning vendors and captioners
following the Best Practices or
performance requirements comparable
to the Best Practices must take actions
to improve the quality of closed
captions, including but not limited to
actions regarding evaluation of
captioning accuracy, captioner
screening, training, and supervision,
and technical systems and expertise.
Æ There are no reporting
requirements associated with the Best
Practices adopted in document FCC 14–
12.
(3) Requires VPDs to make best efforts
obtain certifications from the video
programmers from which they receive
programming attesting that the video
programmers (1) comply with the
captioning quality standards, (2) adhere
to the video programmer Best Practices,
or (3) are exempt from the closed
captioning rules under one or more
properly attained and specified
exemptions.
Æ VPDs are not required to report to
the Commission regarding their efforts
to obtain certifications from video
programmers.
Æ However, if a video programmer
does not provide either of the
certifications noted above, the VPD
must report the non-certifying
programmer to the Commission.
(4) Requires broadcasters that use
ENT to follow certain practices in order
to be deemed in compliance with the
Commission’s rules requiring captioning
of live programming.
(5) Adopts a compliance ladder that
broadcasters following these ENT
practices may use in the event of a
Commission inquiry or investigation.
Æ The compliance ladder calls for
broadcasters to respond to notifications
of noncompliance within 30 days by
describing corrective measures. If a
pattern or trend of noncompliance
continues, the compliance ladder calls
for broadcasters to respond to a
subsequent notification of
noncompliance within 30 days by
setting forth an action plan describing
specific measures it will take to bring
the station’s ENT performance into
compliance with the Commission’s
regulations regarding ENT. In addition,
the station shall be required to conduct
spot checks of its ENT performance and
report to the Commission on the results
of such action plan and spot checks 180
days after submission of such action
plan. If, after the date for submission of
such report on the results of an action
plan, the pattern or trend of
noncompliance continues, the
Commission will then consider, through
its Enforcement Bureau, appropriate
enforcement action.
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(6) Requires broadcasters to create a
report on their experiences using these
ENT practices within one year of the
implementation of these practices.
Æ Such report shall be prepared in
consultation with Consumer Groups and
may be prepared by the National
Association of Broadcasters (NAB) on
behalf of the affected broadcasters.
(7) Specifies that each multicast
program stream of a digital television
station be considered separately for the
purpose of the captioning exemption for
channels producing revenues of less
than $3 million, but does not adopt any
reporting requirements along these
lines.
(8) Requires VPDs to monitor and
maintain their equipment and data
streams and perform technical
equipment checks to ensure greater
technical compliance, and to maintain
records of such monitoring,
maintenance, and technical equipment
checks for at least two years, but does
not adopt any reporting requirements in
this regard.
(9) Requires that petitions for
exemption from the closed captioning
rules, as well as comments or
oppositions to such petitions, be filed
electronically rather than on paper.
94. The RFA requires an agency to
describe any significant, specifically
small business, alternatives that it has
considered in reaching its proposed
approach, which may include the
following four alternatives (among
others): ‘‘(1) The establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance and reporting requirements
under the rule for such small entities;
(3) the use of performance rather than
design standards; and (4) an exemption
from coverage of the rule, or any part
thereof, for such small entities.’’
95. In amending its closed captioning
rules, the Commission believes that it
has minimized the effect on small
entities while making video
programming more accessible to persons
who are deaf and hard of hearing. These
efforts are consistent with the
Congressional goal of increasing the
availability of captioned programming
while preserving the diversity of
available programming. Consistent with
its conclusions in 1997, when the closed
captioning rules were first adopted, the
Commission has limited the exemptions
to the closed captioning rules because it
has determined that all VPDs are
technically capable of delivering
captioning.
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96. However, consistent with the
RFA, several steps were taken to
minimize the impact on small entities.
The captioning quality standards
adopted in the document FCC 14–12 are
performance-orientated and avoid
mandating the use of particular
technologies. In addition, because the
captioning quality standards are
qualitative rather than quantitative, they
afford the industry, including small
entities, flexibility when complying and
do not requiring monitoring of every
program on every channel at all times.
The captioning quality standards also
take into consideration the extent to
which compliance with the standards
can be achieved for various types of
programming, further enhancing the
flexibility provided to the industry,
including small entities, when
complying with the standards.
Moreover, the record in this proceeding
shows that many entities already have
undertaken practices to ensure caption
quality, thereby minimizing any
additional costs imposed by the new
captioning quality standards.
97. Additionally, although document
FCC 14–12 places the obligation to
ensure compliance with the captioning
quality standards on VPDs, VPDs can do
so by making best efforts to obtain
certifications from the video
programmers from which they receive
programming attesting that the video
programmer (1) complies with the
captioning quality standards, (2)
adheres to the video programmer Best
Practices, or (3) is exempt from the
closed captioning rules under one or
more properly attained and specified
exemptions. The certification approach
adopted by Document FCC 14–12
imposes only a minimal burden on
VPDs, including small entities. The
Commission permits the use of widely
available certifications for this purpose,
to obviate the need for individual
contractual certifications, thus greatly
reducing the burden on VPDs. Use of
widely available certifications generally
reduces the burden on small VPDs, who
will generally rely upon widely
available certifications arranged by the
larger VPDs for programming that is
nationwide or regional. In addition,
VPDs that located a programmer’s
certification on the programmer’s Web
site or other widely available location
used for the purpose of posting
certification will be deemed in
compliance with the best efforts
obligation even if the VPD did not
supply prior notification of the need for
this certification to such programmer.
While the Order requires VPDs to report
to the Commission those video
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programmers whose programming the
VPD carries who do not provide the
certification noted above, this
requirement is less burdensome to VPDs
than alternatives such as having VPDs
bear the risk of substandard caption
quality of programming from video
programmers who refuse to provide the
certification.
98. The certification approach and
Best Practices adopted by document
FCC 14–12 may also impose additional
compliance obligations on video
programmers, including small entities,
that elect to certify to compliance with
either the standards or the Best Practices
because they may be required to
implement practices and incur some
additional costs to ensure that the
captioning they provide meets the
Commission’s caption quality standards
or Best Practices. The Best Practices
may also impose additional compliance
obligations on captioning vendors and
captioners, including small entities.
Nevertheless, the Commission believes
the overall burden on video
programmers that choose to certify and
on captioning vendors and captioners
will be minimal for several reasons.
First, the Best Practices are voluntary.
Document FCC 14–12 allows video
programmers the choice between
certifying to compliance with the
caption quality standards or Best
Practices. Video programmers that do
not want to follow the video
programmer Best Practices can instead
certify that they comply with the
captioning quality standards. Second,
the Best Practices provide video
programmers, captioning vendors, and
captioners with flexibility in
establishing performance requirements
designed to promote the creation of high
quality closed captions for video
programming by requiring practices
comparable, but not necessarily
identical, to the captioning vendor Best
Practices. Third, the overall cost burden
on video programmers that choose to
certify will be relatively minimal, as
demonstrated by the record, which
reflects that caption prices have ‘‘fallen
dramatically’’ since the Commission
first implemented its 1997 captioning
rules. Fourth, as noted above, document
FCC 14–12 permits video programmers
to provide widely available
certifications, rather than having to
provide individual certifications to each
requesting VPD, which will
substantially minimize the burden on
video programmers choosing to certify.
99. Document FCC 14–12 declines to
extend the prohibition on ENT to
markets beyond the top 25. In declining
to extend the prohibition on ENT, the
Commission has considered the burden
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17925
that real-time captioning would impose
on broadcast stations in markets beyond
the top 25, including small businesses.
However, document FCC 14–12 does
require broadcast stations that use ENT
to follow certain Best Practices designed
to improve the quality of captions
created using ENT. The ENT Best
Practices will impose minimal burdens
on broadcasters because they are
generally achievable without additional
cost and, for those stations with older
equipment, software upgrades necessary
for compliance with the ENT Best
Practices are available for relatively
nominal cost. In addition, document
FCC 14–12 adopts a compliance ladder
for determining compliance with the
ENT Best Practices, offering broadcast
stations additional flexibility in
complying with the Commission’s ENT
requirements. Document FCC 14–12
does require broadcast stations that rely
on the ENT Best Practices to prepare
and submit to the Commission, within
one year after the effective date of the
rules pertaining to ENT, a report on
their experiences and the extent to
which they have been successful in
providing full and equal access to news
programming. To minimize the burden
on small entities, document FCC 14–12
specifies that the report may be
prepared by the NAB jointly on behalf
of the affected broadcasters.
100. Document FCC 14–12 reduces
the captioning requirements for
television stations that multicast by
extending the provision in § 79.1(d)(12)
of the Commission’s rules, which
exempts video programming providers
from closed captioning where the
distributor’s annual gross revenues from
the channel did not exceed $3 million
for the previous calendar year, to each
programming stream of a multicast
digital television channel. Document
FCC 14–12 does not disturb the existing
exemption in § 79.1(d)(11) of the
Commission’s rules, which excuses a
video programming provider from
spending more than 2 percent of its
annual gross revenues received from a
channel on closed captioning. Sections
79.1(f), 79.1(d)(11) and 79.1(d)(12) of the
Commission’s rules are all intended to
address the problems of small video
programming providers that are not in a
position to devote significant resources
toward closed captioning by relieving
small entities of any burdensome
obligation to provide closed captioning.
The § 79.1(f) mechanism in particular
allows the Commission to address the
impact of these rules on individual
entities and grant exemptions to the
rules to accommodate individual
circumstances.
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101. Document FCC 14–12 declines to
adopt any requirements for VPDs to
annually file reports or certifications
with the Commission. By declining to
adopt reporting requirements, the
Commission has taken into
consideration the burdens that reporting
requirements would impose on VPDs,
including small businesses.
102. However, document FCC 14–12
does require VPDs to maintain records
of equipment monitoring and
maintenance and technical equipment
checks. These recordkeeping
requirements will impose minimal
burdens on VPDs because it is likely
that many covered entities already keep
such records, and document FCC 14–12
does not mandate any specific format
for keeping records, providing covered
entities with flexibility to establish their
own recordkeeping procedures.
Furthermore, the monitoring,
maintenance, and technical equipment
checks adopted in the Order are
performance-orientated and avoid
mandating the use of particular
technologies or processes.
103. Document FCC 14–12 does
modify the procedures for filing
exemption petitions with the
Commission pursuant to § 79.1(f) of its
rules by requiring that such petitions
and responsive pleadings be filed
electronically rather than on paper. This
procedure will make it easier for VPDs
to file such petitions and consumers to
respond to such petitions. Moreover, in
the event any VPD or consumer finds it
burdensome to file electronically, such
VPD or consumer may ask the
Commission for authorization to file on
paper at the time it makes the filing.
104. Federal Rules Which Duplicate,
Overlap, or Conflict With, the
Commission’s Proposals—None.
105. The Commission will send a
copy of document FCC 14–12, including
a copy of the Final Regulatory
Flexibility Certification, to the Chief
Counsel for Advocacy of the SBA.
Congressional Review Act
Document FCC 14–12 shall be
effective April 30, 2014, pursuant to 5
U.S.C. 553(d) and § 1.427(a) of the
Commission’s rules, 47 CFR 1.427(a),
unless otherwise noted.
The final rules contained in 47 CFR
79.1(c)(3), (j), and (k) shall be effective
upon publication in the Federal
Register of a notice announcing the
approval by the Office of Management
and Budget of the modified information
collection requirements under the
Paperwork Reduction Act of 1995 and
an effective date of the rule amendment,
and such effective date shall be no
sooner than January 15, 2015.
The final rules contained in 47 CFR
79.1(e)(11)(i) and (ii) shall be effective
June 30, 2014.
The final rules contained in 47 CFR
79.1(e)(11)(iii), (iv) and (v) shall be
effective upon publication in the
Federal Register of a notice announcing
the approval by the Office of
Management and Budget of the
modified information collection
requirements under the Paperwork
Reduction Act of 1995 and an effective
date of the rule amendment.
The Declaratory Ruling adopted
herein became effective on February 24,
2014.
The Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
document FCC 14–12, including the
Final Regulatory Flexibility
Certification, to the Chief Counsel for
advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 79
Individuals with disabilities,
Reporting and recordkeeping
requirements, Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 79 as
follows:
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106. The Commission will send a
copy of document FCC 14–12 in a report
to be sent to Congress and the
Governmental Accountability Office
pursuant to the Congressional Review
Act, 5 U.S.C. 801(a)(1)(A).
PART 79—CLOSED CAPTIONING AND
VIDEO DESCRIPTION OF VIDEO
PROGRAMMING
Ordering Clauses
Authority: 47 U.S.C. 151, 152(a), 154(i),
303, 307, 309, 310, 330, 544a, 613, 617.
Pursuant to the authority contained in
sections 4(i), 303(r) and 713 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303(r) and
613, document FCC 14–12 is adopted
and the Commission’s rules are
amended.
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1. The authority citation for part 79
continues to read as follows:
■
2. Amend § 79.1 by revising the
section heading and paragraphs (a), (c),
(d)(12), (e)(3), and adding paragraph
(e)(11), revising paragraphs (f)(4), (f)(7),
and (i)(3), and adding paragraphs (j) and
(k), to read as follows:
■
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§ 79.1 Closed captioning of televised video
programming.
(a) Definitions. For purposes of this
section the following definitions shall
apply:
(1) Captioning vendor. Any entity that
is responsible for providing captioning
services to a video programmer.
(2) Closed captioning, or captioning.
The visual display of the audio portion
of video programming pursuant to the
technical specifications set forth in this
part.
(3) Live programming. Video
programming that is shown on
television substantially simultaneously
with its performance.
(4) Near-live programming. Video
programming that is performed and
recorded less than 24 hours prior to the
time it is first aired on television.
(5) New programming. Video
programming that is first published or
exhibited on or after January 1, 1998.
(i) Analog video programming that is
first published or exhibited on or after
January 1, 1998.
(ii) Digital video programming that is
first published or exhibited on or after
July 1, 2002.
(6) Non-exempt programming. Video
programming that is not exempt under
paragraph (d) of this section and,
accordingly, is subject to closed
captioning requirements set forth in this
section.
(7) Prerecorded programming. Video
programming that is not ‘‘live’’ or ‘‘nearlive’’.
(8) Pre-rule programming. (i) Analog
video programming that was first
published or exhibited before January 1,
1998.
(ii) Digital video programming that
was first published or exhibited before
July 1, 2002.
(9) Video programmer. Any entity that
provides video programming that is
intended for distribution to residential
households including, but not limited
to, broadcast or nonbroadcast television
networks and the owners of such
programming.
(10) Video programming.
Programming provided by, or generally
considered comparable to programming
provided by, a television broadcast
station that is distributed and exhibited
for residential use. Video programming
includes advertisements of more than
five minutes in duration but does not
include advertisements of five minutes’
duration or less.
(11) Video programming distributor.
Any television broadcast station
licensed by the Commission and any
multichannel video programming
distributor as defined in § 76.1000(e) of
this chapter, and any other distributor of
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video programming for residential
reception that delivers such
programming directly to the home and
is subject to the jurisdiction of the
Commission. An entity contracting for
program distribution over a video
programming distributor that is itself
exempt from captioning that
programming pursuant to paragraph
(e)(9) of this section shall itself be
treated as a video programming
distributor for purposes of this section
To the extent such video programming
is not otherwise exempt from
captioning, the entity that contracts for
its distribution shall be required to
comply with the closed captioning
requirements of this section.
(12) Video programming provider.
Any video programming distributor and
any other entity that provides video
programming that is intended for
distribution to residential households
including, but not limited to broadcast
or nonbroadcast television network and
the owners of such programming.
*
*
*
*
*
(c) Obligation to pass through
captions of already captioned programs;
obligation to maintain equipment and
monitor for captions. (1) All video
programming distributors shall deliver
all programming received from the
video programming owner or other
origination source containing closed
captioning to receiving television
households with the original closed
captioning data intact in a format that
can be recovered and displayed by
decoders meeting the standards of this
part unless such programming is
recaptioned or the captions are
reformatted by the programming
distributor.
(2) Video programming distributors
shall take any steps needed to monitor
and maintain their equipment and
signal transmissions associated with the
transmission and distribution of closed
captioning to ensure that the captioning
included with video programming
reaches the consumer intact. In any
enforcement proceeding involving
equipment failure, the Commission will
require video programming distributors
to demonstrate that they have monitored
their equipment and signal
transmissions, have performed technical
equipment checks, and have promptly
undertaken repairs as needed to ensure
that equipment is operational and in
good working order.
(3) Each video programming
distributor shall maintain records of the
video programming distributor’s
monitoring and maintenance activities,
which shall include, without limitation,
information about the video
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programming distributor’s monitoring
and maintenance of equipment and
signal transmissions to ensure the pass
through and delivery of closed
captioning to viewers, and technical
equipment checks and other activities to
ensure that captioning equipment and
other related equipment are maintained
in good working order. Each video
programming distributor shall maintain
such records for a minimum of two
years and shall submit such records to
the Commission upon request.
(d) * * *
(12) Channels/Streams producing
revenues of under $3,000,000. No video
programming provider shall be required
to expend any money to caption any
channel or stream of video programming
producing annual gross revenues of less
than $3,000,000 during the previous
calendar year other than the obligation
to pass through video programming
closed captioned when received
pursuant to paragraph (c) of this section.
For the purposes of this paragraph, each
programming stream on a multicast
digital television channel shall be
considered separately for purposes of
the $3,000,000 revenue limit.
*
*
*
*
*
(e) * * *
(3) The major national broadcast
television networks (i.e., ABC, CBS, Fox
and NBC), affiliates of these networks in
the top 25 television markets as defined
by Nielsen’s Designated Market Areas
(DMAs) and national nonbroadcast
networks serving at least 50% of all
homes subscribing to multichannel
video programming services shall not
count electronic newsroom captioned
programming towards compliance with
these rules. The live portions of
noncommercial broadcasters’
fundraising activities that use
automated software to create a
continuous captioned message will be
considered captioned;
*
*
*
*
*
(11) Use of ‘‘Electronic Newsroom
Technique’’ (ENT). (i) A broadcast
station that uses ENT to provide closed
captioning for live programming or
programming originally transmitted live
and that is not subject to the current
prohibition on the use of ENT in
paragraph (e)(3) of this section shall be
deemed in compliance with the
Commission’s rules requiring captioning
of live programming or programming
originally transmitted live if it adheres
to the following procedures in the
ordinary course of business:
(A) In-studio produced news, sports,
weather, and entertainment
programming will be scripted.
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17927
(B) For weather interstitials where
there may be multiple segments within
a news program, weather information
explaining the visual information on the
screen and conveying forecast
information will be scripted, although
the scripts may not precisely track the
words used on air.
(C) Pre-produced programming will
be scripted (to the extent technically
feasible).
(D) If live interviews or live on-the
scene or breaking news segments are not
scripted, stations will supplement them
with crawls, textual information, or
other means (to the extent technically
feasible).
(E) The station will provide training
to all news staff on scripting for
improving ENT.
(F) The station will appoint an ‘‘ENT
Coordinator’’ accountable for
compliance.
(ii) Nothing in this paragraph (e)(11)
shall relieve a broadcast station of its
obligations under § 79.2 of this chapter
regarding the accessibility of
programming providing emergency
information.
(iii) Informal complaints. The
Commission will forward an informal
complaint regarding captioning to a
broadcast station that utilizes ENT to
provide captioning pursuant to the
procedures set forth in paragraph
(e)(11)(i) of this section only if the
informal complaint contains the
television channel number, network, or
call sign, the name of the subscription
service, if relevant, the date and time of
the captioning problems, the name of
the affected program, and a detailed and
specific description of the captioning
problems, including the frequency and
type of problem.
(iv) Compliance. (A) Initial response
to pattern or trend of noncompliance. If
the Commission notifies a broadcast
station that the Commission has
identified a pattern or trend of possible
noncompliance by the station with this
paragraph (e)(11), the station shall
respond to the Commission within 30
days regarding such possible
noncompliance, describing corrective
measures taken, including those
measures the station may have
undertaken in response to informal
complaints and inquiries from viewers.
(B) Corrective action plan. If, after the
date for a broadcast station to respond
to a notification under paragraph
(e)(11)(iv)(A) of this section, the
Commission subsequently notifies the
broadcast station that there is further
evidence indicating a pattern or trend of
noncompliance with this paragraph
(e)(11), the broadcast station shall
submit to the Commission, within 30
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days of receiving such subsequent
notification, an action plan describing
specific measures it will take to bring
the station’s ENT performance into
compliance with this paragraph (e)(11).
In addition, the station shall be required
to conduct spot checks of its ENT
performance and report to the
Commission on the results of such
action plan and spot checks 180 days
after the submission of such action plan.
(C) Continued evidence of a pattern or
trend of noncompliance. If, after the
date for submission of a report on the
results of an action plan and spot checks
pursuant to paragraph (e)(11)(iv)(B) of
this section, the Commission finds
continued evidence of a pattern or trend
of noncompliance, additional
enforcement actions may be taken,
which may include admonishments,
forfeitures, and other corrective actions,
including, but not limited to, requiring
the station to cease using ENT and to
use real-time captioning for live
programming.
(v) Progress report. No later than one
year after the effective date of this
paragraph (e)(11), broadcast stations that
adhere to the procedures set forth in
paragraph (e)(11)(i) shall jointly prepare
and submit to the Commission, in
consultation with individuals who rely
on captions to watch television and
organizations representing such
individuals, a report on their
experiences with following such
procedures, and the extent to which
they have been successful in providing
full and equal access to live
programming.
(f) * * *
(4) A petition requesting an
exemption based on the economically
burdensome standard, and all
subsequent pleadings, shall be filed
electronically in accordance with
§ 0.401(a)(1)(iii) of this chapter.
*
*
*
*
*
(7) Comments or oppositions to the
petition shall be filed electronically and
served on the petitioner and shall
include a certification that the petitioner
was served with a copy. Replies to
comments or oppositions shall be filed
electronically and served on the
commenting or opposing party and shall
include a certification that the
commenting or opposing party was
served with a copy. Comments or
oppositions and replies may be served
upon a party, its attorney, or other duly
constituted agent by delivering or
mailing a copy to the last known
address in accordance with § 1.47 of this
chapter or by sending a copy to the
email address last provided by the
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16:18 Mar 28, 2014
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party, its attorney, or other duly
constituted agent.
*
*
*
*
*
(i) * * *
(3) Providing contact information to
the Commission. Video programming
distributors shall file the contact
information described in this section
with the Commission in one of the
following ways: Through a web form
located on the FCC Web site; with the
Chief of the Disability Rights Office,
Consumer and Governmental Affairs
Bureau; or by sending an email to
CLOSEDCAPTIONING_POC@fcc.gov.
Contact information shall be available to
consumers on the FCC Web site or by
telephone inquiry to the Commission’s
Consumer Center. Distributors shall
notify the Commission each time there
is a change in any of this required
information within 10 business days.
(j) Captioning quality obligation;
standards. (1) A video programming
distributor shall exercise best efforts to
obtain a certification from each video
programmer from which the distributor
obtains programming stating:
(i) That the video programmer’s
programming satisfies the caption
quality standards of paragraph (j)(2) of
this section;
(ii) That in the ordinary course of
business, the video programmer has
adopted and follows the Best Practices
set forth in paragraph (k)(1) of this
section; or
(iii) That the video programmer is
exempt from the closed captioning rules
under one or more properly attained
exemptions. For programmers certifying
exemption from the closed captioning
rules, the video programming
distributor must obtain a certification
from the programmer that specifies the
exact exemption that the programmer is
claiming. Video programming
distributors may satisfy their best efforts
obligation by locating a programmer’s
certification on the programmer’s Web
site or other widely available locations
used for the purpose of posting widely
available certifications. If a video
programming distributor is unable to
locate such certification on the
programmer’s Web site or other widely
available location used for the purpose
of posting such certification, the video
programming distributor must inform
the video programmer in writing that it
must make widely available such
certification within 30 days after
receiving the written request. If a video
programmer does not make such
certification widely available within 30
days after receiving a written request,
the video programming distributor shall
promptly submit a report to the
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Commission identifying such noncertifying video programmer for the
purpose of being placed in a publicly
available database. A video
programming distributor that meets
each of the requirements of this
paragraph shall not be liable for
violations of paragraphs (j)(2) and (3) of
this section to the extent that any such
violations are outside the control of the
video programming distributor.
(2) Captioning quality standards.
Closed captioning shall convey the aural
content of video programming in the
original language (i.e. English or
Spanish) to individuals who are deaf
and hard of hearing to the same extent
that the audio track conveys such
content to individuals who are able to
hear. Captioning shall be accurate,
synchronous, complete, and
appropriately placed as those terms are
defined herein.
(i) Accuracy. Captioning shall match
the spoken words (or song lyrics when
provided on the audio track) in their
original language (English or Spanish),
in the order spoken, without
substituting words for proper names and
places, and without paraphrasing,
except to the extent that paraphrasing is
necessary to resolve any time
constraints. Captions shall contain
proper spelling (including appropriate
homophones), appropriate punctuation
and capitalization, correct tense and use
of singular or plural forms, and accurate
representation of numbers with
appropriate symbols or words. If slang
or grammatical errors are intentionally
used in a program’s dialogue, they shall
be mirrored in the captions. Captioning
shall provide nonverbal information
that is not observable, such as the
identity of speakers, the existence of
music (whether or not there are also
lyrics to be captioned), sound effects,
and audience reaction, to the greatest
extent possible, given the nature of the
program. Captions shall be legible, with
appropriate spacing between words for
readability.
(ii) Synchronicity. Captioning shall
coincide with the corresponding spoken
words and sounds to the greatest extent
possible, given the type of the
programming. Captions shall begin to
appear at the time that the
corresponding speech or sounds begin
and end approximately when the speech
or sounds end. Captions shall be
displayed on the screen at a speed that
permits them to be read by viewers.
(iii) Completeness. Captioning shall
run from the beginning to the end of the
program, to the fullest extent possible.
(iv) Placement. Captioning shall be
viewable and shall not block other
important visual content on the screen,
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including, but not limited to, character
faces, featured text (e.g., weather or
other news updates, graphics and
credits), and other information that is
essential to understanding a program’s
content when the closed captioning
feature is activated. Caption font shall
be sized appropriately for legibility.
Lines of caption shall not overlap one
another and captions shall be
adequately positioned so that they do
not run off the edge of the video screen.
(3) Application of captioning quality
standards. Captioning shall meet the
standards of paragraph (j)(2) of this
section for accuracy, synchronicity,
completeness and placement, except for
de minimis captioning errors. In
determining whether a captioning error
is de minimis, the Commission will
consider the particular circumstances
presented, including the type of failure,
the reason for the failure, whether the
failure was one-time or continuing, the
degree to which the program was
understandable despite the errors, and
the time frame within which corrective
action was taken to prevent such
failures from recurring. When applying
such standards to live and near-live
programming, the Commission will also
take into account, on a case-by-case
basis, the following factors:
(i) Accuracy. The overall accuracy or
understandability of the programming,
the ability of the captions to convey the
aural content of the program in a
manner equivalent to the aural track,
and the extent to which the captioning
errors prevented viewers from having
access to the programming.
(ii) Synchronicity. The extent to
which measures have been taken, to the
extent technically feasible, to keep any
delay in the presentation of captions to
a minimum, consistent with an accurate
presentation of what is being said, so
that the time between when words are
spoken or sounds occur and captions
appear does not interfere with the
ability of viewers to follow the program.
(iii) Completeness. The delays
inherent in sending captioning
transmissions on live programs, and
whether steps have been taken, to the
extent technically feasible, to minimize
the lag between the time a program’s
audio is heard and the time that
captions appear, so that captions are not
cut off when the program transitions to
a commercial or a subsequent program.
(iv) Placement. The type and nature of
the programming and its susceptibility
to unintentional blocking by captions.
(4) Complaints. The Commission will
forward an informal complaint
regarding captioning quality to a video
programming distributor only if the
informal complaint contains the
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channel number, channel name,
network, or call sign; the name of the
multichannel video program distributor,
if applicable; the date and time when
the captioning problem occurred; the
name of the program with the
captioning problem; and a detailed
description of the captioning problem,
including specifics about the frequency
and type of problem (e.g., garbling,
captions cut off at certain times or on
certain days, and accuracy problems).
(k) Captioning Best Practices. (1)
Video Programmer Best Practices. Video
programmers adopting Best Practices
will adhere to the following practices.
(i) Agreements with captioning
services. Video programmers adopting
Best Practices will take the following
actions to promote the provision of high
quality television closed captions
through new or renewed agreements
with captioning vendors.
(A) Performance requirements.
Include performance requirements
designed to promote the creation of high
quality closed captions for video
programming, comparable to those
described in paragraphs (k)(2), (k)(3)
and (k)(4) of this section.
(B) Verification. Include a means of
verifying compliance with such
performance requirements, such as
through periodic spot checks of
captioned programming.
(C) Training. Include provisions
designed to ensure that captioning
vendors’ employees and contractors
who provide caption services have
received appropriate training and that
there is oversight of individual
captioners’ performance.
(ii) Operational Best Practices. Video
programmers adopting Best Practices
will take the following actions to
promote delivery of high quality
television captions through improved
operations.
(A) Preparation materials. To the
extent available, provide captioning
vendors with advance access to
preparation materials such as show
scripts, lists of proper names (people
and places), and song lyrics used in the
program, as well as to any dress
rehearsal or rundown that is available
and relevant.
(B) Quality audio. Make commercially
reasonable efforts to provide captioning
vendors with access to a high quality
program audio signal to promote
accurate transcription and minimize
latency.
(C) Captioning for prerecorded
programming. (1) The presumption is
that pre-recorded programs, excluding
programs that initially aired with realtime captions, will be captioned offline
before air except when, in the exercise
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17929
of a programmer’s commercially
reasonable judgment, circumstances
require real-time or live display
captioning. Examples of commercially
reasonable exceptions may include
instances when:
(i) A programmer’s production is
completed too close to initial air time be
captioned offline or may require
editorial changes up to air time (e.g.,
news content, reality shows),
(ii) A program is delivered late,
(iii) There are technical problems with
the caption file,
(iv) Last minute changes must be
made to later network feeds (e.g., when
shown in a later time zone) due to
unforeseen circumstances,
(v) There are proprietary or
confidentiality considerations, or
(vi) Video programming networks or
channels with a high proportion of live
or topical time-sensitive programming,
but also some pre-recorded programs,
use real-time captioning for all content
(including pre-recorded programs) to
allow for immediate captioning of
events or breaking news stories that
interrupt scheduled programming.
(2) The video programmer will make
reasonable efforts to employ live display
captioning instead of real-time
captioning for prerecorded programs if
the complete program can be delivered
to the caption service provider in
sufficient time prior to airing.
(iii) Monitoring and Remedial Best
Practices. Video programmers adopting
Best Practices will take the following
actions aimed at improving prompt
identification and remediation of
captioning errors when they occur.
(A) Pre-air monitoring of offline
captions. As part of the overall pre-air
quality control process for television
programs, conduct periodic checks of
offline captions on prerecorded
programs to determine the presence of
captions.
(B) Real-time monitoring of captions.
Monitor television program streams at
point of origination (e.g., monitors
located at the network master control
point or electronic monitoring) to
determine presence of captions.
(C) Programmer and captioning
vendor contacts. Provide to captioning
vendors appropriate staff contacts who
can assist in resolving captioning issues.
Make captioning vendor contact
information readily available in master
control or other centralized location,
and contact captioning vendor promptly
if there is a caption loss or obvious
compromise of captions.
(D) Recording of captioning issues.
Maintain a log of reported captioning
issues, including date, time of day,
program title, and description of the
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issue. Beginning one year after the
effective date of the captioning quality
standards, such log should reflect
reported captioning issues from the
prior year.
(E) Troubleshooting protocol. Develop
procedures for troubleshooting
consumer captioning complaints within
the distribution chain, including
identifying relevant points of contact,
and work to promptly resolve
captioning issues, if possible.
(F) Accuracy spot checks. Within 30
days following notification of a pattern
or trend of complaints from the
Commission, conduct spot checks of
television program captions to assess
caption quality and address any ongoing
concerns.
(iv) Certification procedures for video
programmers. Video programmers
adopting Best Practices will certify to
video programming distributors that
they adhere to Best Practices for video
programmers and will make such
certifications widely available to video
programming distributors, for example,
by posting on affiliate Web sites.
(2) Real-Time (Live) Captioning
Vendors Best Practices. (i) Create and
use metrics to assess accuracy,
synchronicity, completeness, and
placement of real-time captions.
(ii) Establish minimum acceptable
standards based upon those metrics
while striving to regularly exceed those
minimum standards.
(iii) Perform frequent and regular
evaluations and sample audits to ensure
those standards are maintained.
(iv) Consider ‘‘accuracy’’ of captions
to be a measurement of the percentage
of correct words out of total words in
the program, calculated by subtracting
number of errors from total number of
words in the program, dividing that
number by total number of words in the
program and converting that number to
a percentage. For example, 7,000 total
words in the program minus 70 errors
equals 6,930 correct words captioned,
divided by 7,000 total words in the
program equals 0.99 or 99% accuracy.
(v) Consider, at a minimum,
mistranslated words, incorrect words,
misspelled words, missing words, and
incorrect punctuation that impedes
comprehension and misinformation as
errors.
(A) Captions are written in a near-asverbatim style as possible, minimizing
paraphrasing.
(B) The intended message of the
spoken dialogue is conveyed in the
associated captions in a clear and
comprehensive manner.
(C) Music lyrics should accompany
artist performances.
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(vi) Consider synchronicity of
captions to be a measurement of lag
between the spoken word supplied by
the program origination point and when
captions are received at the same
program origination point.
(vii) Ensure placement of captions on
screen to avoid obscuring on-screen
information and graphics (e.g., sports
coverage).
(viii) Ensure proper screening,
training, supervision, and evaluation of
captioners by experienced and qualified
real-time captioning experts.
(ix) Ensure there is an infrastructure
that provides technical and other
support to video programmers and
captioners at all times.
(x) Ensure that captioners are
qualified for the type and difficulty
level of the programs to which they are
assigned.
(xi) Utilize a system that verifies
captioners are prepared and in position
prior to a scheduled assignment.
(xii) Ensure that technical systems are
functional and allow for fastest possible
delivery of caption data and that
failover systems are in place to prevent
service interruptions.
(xiii) Regularly review discrepancy
reports in order to correct issues and
avoid future issues.
(xiv) Respond in a timely manner to
concerns raised by video programmers
or viewers.
(xv) Alert video programmers
immediately if a technical issue needs
to be addressed on their end.
(xvi) Inform video programmers of
appropriate use of real-time captioning
(i.e., for live and near-live programming,
and not for prerecorded programming)
and what is necessary to produce
quality captions, including technical
requirements and the need for
preparatory materials.
(xvii) For better coordination for
ensuring high quality captions and for
addressing problems as they arise,
understand the roles and
responsibilities of other stakeholders in
the closed-captioning process, including
broadcasters, producers, equipment
manufacturers, regulators, and viewers,
and keep abreast of issues and
developments in those sectors.
(xviii) Ensure that all contracted
captioners adhere to the Real-Time
Captioners Best Practices contained in
paragraph (k)(4) of this section.
(3) Real-Time Captioners Best
Practices. (i) Caption as accurately,
synchronously, completely, and
appropriately placed as possible, given
the nature of the programming.
(ii) Ensure they are equipped with a
failover plan to minimize caption
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interruption due to captioner or
equipment malfunction.
(iii) Be equipped with reliable, high
speed Internet.
(iv) Be equipped with multiple
telephone lines.
(v) Prepare as thoroughly as possible
for each program.
(vi) File thorough discrepancy reports
with the captioning vendor in a timely
manner.
(vii) To the extent possible given the
circumstances of the program, ensure
that real-time captions are complete
when the program ends.
(viii) Engage the command that allows
captions to pass at commercials and
conclusion of broadcasts.
(ix) Monitor captions to allow for
immediate correction of errors and
prevention of similar errors appearing or
repeating in captions.
(x) Perform frequent and regular selfevaluations.
(xi) Perform regular dictionary
maintenance.
(xii) Keep captioning equipment in
good working order and update software
and equipment as needed.
(xiii) Possess the technical skills to
troubleshoot technical issues.
(xiv) Keep abreast of current events
and topics that they caption.
(4) Offline (Prerecorded) Captioning
Vendors Best Practices. (i) Ensure
offline captions are verbatim.
(ii) Ensure offline captions are errorfree.
(iii) Ensure offline captions are
punctuated correctly and in a manner
that facilitates comprehension.
(iv) Ensure offline captions are
synchronized with the audio of the
program.
(v) Ensure offline captions are
displayed with enough time to be read
completely and that they do not obscure
the visual content.
(vii) Ensure offline captioning is a
complete textual representation of the
audio, including speaker identification
and non-speech information.
(viii) Create or designate a manual of
style to be applied in an effort to
achieve uniformity in presentation.
(ix) Employ frequent and regular
evaluations to ensure standards are
maintained.
(x) Inform video programmers of
appropriate uses of real-time and offline
captioning and strive to provide offline
captioning for prerecorded
programming.
(A) Encourage use of offline
captioning for live and near-live
programming that originally aired on
television and re-feeds at a later time.
(B) Encourage use of offline
captioning for all original and library
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prerecorded programming completed
well in advance of its distribution on
television.
(xi) For better coordination for
ensuring high quality captions and for
addressing problems as they arise,
understand the roles and
responsibilities of other stakeholders in
the closed-captioning process, including
video program distributors, video
programmers, producers, equipment
manufacturers, regulators, and viewers,
and keep abreast of issues and
developments in those sectors.
[FR Doc. 2014–06754 Filed 3–28–14; 8:45 am]
BILLING CODE 6712–01–P
to require contracting officers to
consider the adequacy of an offeror’s or
contractor’s accounting system prior to
agreeing to use performance-based
payments.
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 232 and 252
RIN 0750–AH54
Defense Federal Acquisition
Regulation Supplement; PerformanceBased Payments (DFARS Case 2011–
D045)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to provide detailed guidance
and instructions on the use of the
performance-based payments analysis
tool.
SUMMARY:
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
DATES:
48 CFR Part 219
Small Business Programs
Mr.
Mark Gomersall, 571–372–6099.
SUPPLEMENTARY INFORMATION:
CFR Correction
In Title 48 of the Code of Federal
Regulations, Chapter 2 (Parts 201 to
299), revised as of October 1, 2013, on
page 136, before subpart 219.12, subpart
219.11 is reinstated to read as follows:
■
Subpart 219.11—Price Evaluation
Adjustment for Small Disadvantaged
Business Concerns
219.1101
Effective March 31, 2014.
FOR FURTHER INFORMATION CONTACT:
General.
The determination to use or suspend
the price evaluation adjustment for DoD
acquisitions can be found at https://
www.acq.osd.mil/dpap/dars/classdev/
index.htm.
I. Background
DoD published a proposed rule at 77
FR 4638 on January 30, 2012, to provide
requirements for the use of the
performance-based payments (PBP)
analysis tool. The PBP analysis tool is
a cash-flow model for evaluating
alternative financing arrangements, and
is required to be used by all contracting
officers contemplating the use of
performance-based payments on new
fixed-price type contract awards.
II. Discussion and Analysis
219.1102
emcdonald on DSK67QTVN1PROD with RULES
[72 FR 20763, Apr. 26, 2007]
DoD reviewed the public comments in
the development of the final rule. A
discussion of the comments and the
changes made to the rule as a result of
those comments is provided as follows:
A. Adequate Accounting System
Applicability.
(b) The price evaluation adjustment
also shall not be used in acquisitions
that are for commissary or exchange
resale.
(c) Also, do not use the price
evaluation adjustment in acquisitions
that use tiered evaluation of offers, until
a tier is reached that considers offers
from other than small business
concerns.
[63 FR 41974, Aug. 6, 1998, as amended
at 71 FR 53043, Sept. 8, 2006]
[FR Doc. 2014–07201 Filed 3–28–14; 8:45 am]
BILLING CODE 1505–01–P
VerDate Mar<15>2010
16:18 Mar 28, 2014
Jkt 232001
Comment: One respondent requested
clarification on whether the proposed
rule requires an accounting system
deemed adequate by the Government.
DoD Response: FAR 32.1007(c)
requires the contracting officer to
determine the adequacy of controls
established by the contractor for the
administration of performance-based
payments. Since the contractor will be
required to report total cost incurred to
date based on its existing accounting
system, the contracting officer must
consider the adequacy of the
contractor’s accounting system for
providing reliable cost data. DFARS
232.1003–70, Criteria for use, is added
PO 00000
Frm 00083
Fmt 4700
Sfmt 4700
17931
B. Administratively Burdensome and
Costly
Comment: One respondent stated that
the proposed rule is administratively
burdensome, and that implementation
will surpass the one hour average
burden per response.
DoD Response: Performance-based
payments will be paid for completed
events, but not more frequently than
monthly. Each request for a PBP will
require the contractor to provide two
dollar values: Cumulative value of PBP
events completed to date and total cost
incurred to date. The rule is, therefore,
not administratively burdensome since
it requires the contractor to provide
information that should be readily
available in the contractor’s accounting
system in the ordinary course of
business. Accordingly, DoD estimates,
on average, it will not take more than
one hour per response.
Comment: One respondent requested
clarification regarding in what manner
contractors will be required to verify, or
otherwise state, total costs incurred.
DoD Response: Each request for a PBP
will require the contractor to provide
two dollar values: Cumulative value of
PBPs completed to date and total cost
incurred to date. For DoD verification
purposes, the final rule includes the
requirement for the contractor to
provide access, upon request of the
contracting officer, to the contractor’s
books and records, as necessary, for the
administration of the clause.
Comment: One respondent expressed
concern that since the proposed rule
forces contractors to disclose extensive
cost information and report incurred
costs per milestone, the costs associated
with this reporting obligation will
increase the cost to the Government.
DoD Response: The cost information
to be provided by the contractor takes
two forms: A projected expenditure
profile of total cost per month which is
required once when PBPs are initially
proposed (i.e., as part of the contractor’s
proposed performance-based payments
schedule that includes all performancebased payments events, completion
criteria, event values, etc.) and
cumulative value of PBPs completed to
date and total cost incurred to date,
which are required during the
performance of the contract. The
expenditure profile is a key element in
determining the expected financing
needs over time and is needed by both
parties in order to establish appropriate
E:\FR\FM\31MRR1.SGM
31MRR1
Agencies
[Federal Register Volume 79, Number 61 (Monday, March 31, 2014)]
[Rules and Regulations]
[Pages 17911-17931]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-06754]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 79
[CG Docket No. 05-231; FCC 14-12]
Closed Captioning of Video Programming; Telecommunications for
the Deaf and Hard of Hearing; Petition for Rulemaking
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission adopts non-quantitative
quality standards for the closed captioning of pre-recorded, live, and
near-live programming to ensure that caption viewers have full access
to television programming; establishes best practices for the provision
of good quality captions; imposes new requirements on broadcasters
using Electronic Newsroom Technique (ENT) based on a best practices
proposal offered by the National Association of Broadcasters (NAB); and
takes various other actions to clarify and improve the Commission's
closed captioning rules.
DATES: Effective April 30, 2014, except for 47 CFR 79.1(e)(11)(i) and
(ii), which shall be effective June 30, 2014, and 47 CFR 79.1(c)(3),
(e)(11)(iii), (iv) and (v), (j), and (k) of the Commission's rules,
which contain new information collection requirements that have not
been approved by the Office of Management and Budget (OMB). The
Commission will publish a separate document in the Federal Register
announcing the effective date.
FOR FURTHER INFORMATION CONTACT: Eliot Greenwald, Consumer and
Governmental Affairs Bureau, Disability Rights Office, at (202) 418-
2235 or email Eliot.Greenwald@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Closed
Captioning of Video Programming; Telecommunications for the Deaf and
Hard of Hearing; Petition for Rulemaking Report and Order (Order),
document FCC 14-12, adopted on February 20, 2014 and released on
February 24, 2014, in CG Docket No. 05-231. In document FCC 14-12, the
Commission also seeks comment in an accompanying Further Notice of
Proposed Rulemaking (FNPRM), which is summarized in a separate Federal
Register Publication. The full text of document FCC 14-12 will be
available for public inspection and copying via ECFS, and during
regular business hours at the FCC Reference Information Center, Portals
II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It also
may be purchased from the Commission's duplicating contractor, Best
Copy and Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402,
Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563,
or Internet: www.bcpiweb.com.
Document FCC 14-12 can also be downloaded in Word or Portable
Document Format (PDF) at: https://www.fcc.gov/encyclopedia/disability-rights-office-headlines. To request materials in accessible formats for
people with disabilities (Braille, large print, electronic files, audio
format), send an email to fcc504@fcc.gov or call the Consumer and
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432
(TTY).
Final Paperwork Reduction Act of 1995 Analysis
Document FCC 14-12 contains new information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, will invite the general public to comment on
the information collection requirements contained in document FCC 14-12
as required by the Paperwork Reduction Act (PRA) of 1995, Public Law
104-13, in a separate notice that will be published in the Federal
Register.
Synopsis
1. Closed captioning is a technology that provides visual access to
the audio content of video programs by displaying this content as
printed words on the television screen. In addition to displaying text
of verbal dialogue, captions generally identify speakers, sound
effects, music, and audience reaction. Because closed captioning is
hidden as encoded data transmitted within the television signal,
consumers can turn the captions on or off.
2. In 1996, Congress added Sec. 713 to the Communications Act (the
Act), directing the Commission to prescribe rules for the closed
captioning of televised video programming. 47 U.S.C. 613. Section
713(b) of the Act directs the Commission to prescribe regulations to
ensure that ``video programming first published or exhibited after the
effective date of such regulations is fully accessible through the
provision of closed captions'' and that ``video programming providers
or owners maximize the accessibility of video programming first
published or exhibited prior to the effective date of such regulations
through the provision of closed captions. . . .'' In 1997, the
Commission adopted rules that now require captioning on all new English
and Spanish language programming, both analog and digital, which is not
specifically exempt from the Commission's rules. In addition, 75% of
all nonexempt pre-rule English and Spanish language programming must be
closed captioned. Closed Captioning and Video Description of Video
Programming; Implementation of Section 305 of the Telecommunications
Act of 1996, Video Programming Accessibility, MM Docket No. 95-176,
Report and Order, (1997 Closed Captioning Report and Order); published
at 62 FR 48487, September 16, 1997.
3. On July 23, 2004, advocacy groups representing individuals who
are deaf and hard of hearing (Petitioners or Consumer Groups) filed a
joint petition for rulemaking (2004 Petition) seeking amendments to the
Commission's captioning rules pertaining to matters of captioning
quality, scope, and enforcement. On September 2, 2004, the Commission
placed the 2004 Petition on public notice. Consumer and Governmental
Affairs Bureau Reference
[[Page 17912]]
Information Center Petition for Rulemaking Filed, Public Notice, Report
No. 2670, RM-11065, September 2, 2004. On July 21, 2005, the Commission
released the 2005 Closed Captioning NPRM granting the 2004 Petition and
initiating a proceeding to examine the Commission's closed captioning
rules. Closed Captioning of Video Programming; Telecommunications for
the Deaf, Inc., Petition for Rulemaking, CG Docket No. 05-231, Notice
of Proposed Rulemaking, (2005 Closed Captioning NPRM); published at 70
FR 56150, November 25, 2005.
4. On November 7, 2008, the Commission released the 2008 Closed
Captioning Decision that responded in part to the 2004 Petition by
amending the captioning complaint process to allow consumers to file
complaints directly with the Commission and by specifying new timelines
by which such complaints must be addressed. Closed Captioning and Video
Programming, Closed Captioning Requirements for Digital Television
Receivers, CG Docket No. 05-231, ET Docket No. 99-254, Declaratory
Ruling, Order and Notice of Proposed Rulemaking, (2008 Closed
Captioning Decision); published at 74 FR 1594, January 13, 2009. The
Commission also adopted rules requiring VPDs to make available contact
information for the receipt and handling of immediate closed captioning
concerns by consumers, and contact information for written closed
captioning complaints. The Commission has since developed a database to
collect VPD contact information, Closed Captioning of Video
Programming, CG Docket No. 05-231, Order, (Captioning Contact Webform
Order); published at 75 FR 7368, February 19, 2010, and issued public
notices to inform VPDs of their obligation to file such contact
information. In the 2008 Closed Captioning Decision, the Commission
also clarified that all nonexempt digital programming must be captioned
pursuant to the applicable benchmark for that type of programming. The
Commission also sought comment on the extent to which the self-
implementing exemption in Sec. 79.1(d)(12) of the Commission's rules
for video programming channels that produce annual gross revenues of
less than $3 million during the previous calendar year should apply to
digital broadcasters that multicast.
5. On October 25, 2010, the Consumer and Governmental Affairs
Bureau (CGB) issued a Public Notice seeking to refresh the record in
this proceeding. Consumer and Governmental Affairs Bureau Seeks to
Refresh the Record on Notices of Proposed Rulemaking Regarding Closed
Captioning Rules, CG Docket No. 05-231, ET Docket No. 99-254, Public
Notice, (2010 Refresh Public Notice); published at 75 FR 70168,
November 17, 2010.
7. Need for Standards. Although the record in this proceeding shows
that some effective quality control mechanisms for captions have been
put into place during this period, hundreds of commenters remain
dissatisfied with captioning quality that they claim impairs the
accessibility of television programming by viewers who are deaf and
hard of hearing. Specifically, commenters report captions that are
inaccurate, garbled, incomplete, misspelled and/or misunderstood,
incomprehensible, obscure the speaker, or significantly lag behind the
spoken words they are intended to convey. This confirms inconsistencies
in the quality of closed captioning throughout the industry and
supports the Consumer Groups' contention that the marketplace alone has
not provided effective incentives for all providers to maintain good
quality captioning.
8. Accordingly, based on the instant record, the Commission
identifies, in document FCC 14-12, quality standards that are necessary
to achieve the Act's requirement for new video programming to be
``fully accessible through the provision of closed captions,'' and for
``video programming providers or owners [to] maximize the accessibility
of video programming first published or exhibited prior to the
effective date of such regulations through the provision of closed
captions. . . .'' 47 U.S.C. 613(b). These standards will help ensure
the uniform provision of good quality captions as intended by Congress
and will provide a mechanism for addressing consumer complaints about
captioning problems. The Commission expects that the quality standards
the Commission now adopts will have little impact on the operations of
entities that already have quality control systems that provide high
quality captioning.
9. Section 202 of the Twenty-First Century Communications and Video
Accessibility Act of 2010 (CVAA), Public Law 111-260, 124 Stat. 2751
(October 8, 2010), technical amendments, Public Law 111-265, 124 Stat.
2795 (October 8, 2010), requires the Commission to mandate closed
captioning on video programming delivered using Internet protocol
(``IP'') when such programming is shown on television with captions
after the effective date of the Commission rules. In January 2012, the
Commission adopted rules to implement section 202, requiring that
captioning of IP-delivered programs be of at least the same quality as
when such programs are shown on television. Closed Captioning of
Internet Protocol-Delivered Video Programming: Implementation of the
Twenty-First Century Communications and Video Accessibility Act of
2010, MB Docket No. 11-154, Report and Order, (IP Captioning Report and
Order); published at 77 FR 19480, March 30, 2012. The expanded
availability of television programming on the Internet that will result
from implementation of this section of the CVAA makes ensuring the
quality of captioning on shows aired on television in the first
instance all the more important.
10. Accuracy, Synchronicity, Completeness and Placement. Document
FCC 14-12 amends the Commission's rules, as described below, to require
that captions (1) accurately reflect what is in the program's audio
track by matching the dialogue, music, and sounds, and identify the
speakers; (2) are delivered synchronously with the corresponding
dialogue and other sounds at a speed that can be read by viewers; (3)
are complete for the entire program; and (4) do not obscure important
on-screen information and are not obscured by other information on the
screen. Each of these four components is essential to ensure that video
programming is fully accessible to people who are deaf and hard of
hearing through the provision of closed captions.
11. Accuracy. In order to be accurate, captions must match the
spoken words in the dialogue, in their original language (English or
Spanish), to the fullest extent possible and include full lyrics when
provided on the audio track. To accurately convey the dialogue in a
program, closed captions need to contain all words in the order spoken,
without paraphrasing or substituting words for proper names and places,
contain proper spelling (including appropriate homophones, such as
``their,'' not ``there''), and provide, as needed to understand the
program, appropriate punctuation and capitalization to reflect natural
linguistic breaks and the flow of the dialogue, the proper tense, and
the accurate representation of numbers (including currency figures with
appropriate symbols or words). Paraphrasing generally should not be
used where the entirety of the dialogue can be conveyed through
captions. Nevertheless, in certain circumstances, paraphrasing may be
necessary to ensure that the intended audience can capture the content
of the program. For example, at times, paraphrasing may be needed if
time does not permit providing verbatim captions, such as
[[Page 17913]]
when the time lag between when the dialogue occurs and the captions
appear on live programming would prevent complete captioning of the
program's audio content unless summarization occurs.
12. Accurate captions do not rewrite dialogue, or use synonyms to
replace actual dialogue. Where necessary to understand a program's
content, accurate captions also convey the manner and tone of the
speaker's voice. Similarly, where slang or grammatical errors are
intentionally used in a program's dialogue, accuracy dictates that
captions mirror such slang and errors. Accuracy also requires that
utterances (e.g., ``um'') and false starts be captioned if needed for
the viewer to understand the program. In addition, except as prohibited
by 47 CFR 73.3999 of the Commission's rules, which restricts the
broadcast of obscene and indecent material pursuant to 18 U.S.C. 1464,
in which case both aural and closed captioned programming must be
treated equivalently, aural words and phrases that may appear
objectionable to the program owner, provider or VPD or to the
captioning agency when put in writing must nevertheless be captioned
verbatim if made audible to the general public in a program's dialogue.
13. In order to be accurate, captions must also provide nonverbal
information that is not observable, such as who is speaking, the
existence of music (even when there are no lyrics to be captioned),
sound effects, and audience reaction, to the greatest extent possible,
given the nature of the program. If there is more than one speaker, the
proper placement of captions dictates that each speaker be identified,
through caption identification or caption placement, so that viewers
can understand who is speaking at any given time. When a speaker is not
on the screen, identification of that individual in the caption text
must also be provided if viewers not using captions are able, from the
program's audio content, to discern the speaker's identity. Finally, in
order to be considered accurate, captions must also be legible, with
appropriate spacing between words to allow for readability.
14. Synchronicity. In order to be synchronous, captions must
coincide with their corresponding spoken words and sounds to the
greatest extent possible, given the type of the programming. This means
that captions should begin to appear at the time that the corresponding
speech or sounds begin and end approximately when the speech or sounds
end. In addition, synchronicity requires that captions be displayed on
the screen at a speed that can be read by viewers. While the Commission
recognizes that everyone reads at a different speed, captions should
not blink on and off at a speed that is too quick to read or otherwise
be paced at a speed that is difficult to read.
15. Program Completeness. In order for a program's captions to be
complete, captions must run from the beginning to the end of the
program, to the fullest extent possible.
16. Placement. To be appropriately placed, captions should not
block other important visual content on the screen including, but not
limited to, character faces, featured text (e.g., weather or other news
updates, graphics and credits), and other information that is essential
to understanding a program's content when the closed captioning feature
is activated. Appropriate caption placement also dictates that the
caption font be sized appropriately for legibility, and that captions
be adequately positioned so they do not run off the edge of the video
screen. Application of Standards to Types of Programming. For purposes
of assessing compliance with respect to each of these components, the
Commission will consider the type of programming at issue, i.e., pre-
recorded, live, or near live programming, and thereby take into
account, among other things, the time available to review and edit
captions on the particular type of programming prior to its
distribution and display to viewers. Although, for purposes of
addressing captioning complaints with respect to live and near-live
programming, the Commission will take into consideration the lack of an
opportunity to review and edit captions on these types of programming,
captions must make all types of programming understandable to the
fullest extent possible, so that viewers who rely on captions have a
comparable viewing experience to those who can hear the audio portion
of the programming.
17. Pre-recorded programming. Pre-recorded programming is
programming that is produced, recorded, and edited in advance of its
first airing on television. Generally, captioning done for pre-recorded
programming is referred to as offline captioning, which is the process
of adding captions to a program after it has been produced, and
combining these captions with the program before it airs. Because the
period between the time that a captioning agency receives the program
and the airing date is sufficient to allow the careful review and
editing of captions to ensure accuracy, synchronicity, program
completeness, and appropriate placement, captioning will be considered
to comply with the Commission's captioning quality standards if it
contains no other errors than those we consider de minimis. Rather than
specifying particular criteria that it will apply for a de minimis
determination, in determining whether a failure to comply with the
captioning quality standards is de minimis, the Commission will
consider the particular circumstances presented, including the type of
failure, the reason for the failure, whether the failure was one-time
or continuing, the degree to which the program was understandable
despite the errors, and the time frame within which corrective action
was taken to prevent such failures from reoccurring.
18. Use of real-time captioning techniques for pre-recorded
programming. Although offline captioning techniques are generally used
for pre-recorded programming, at times programming providers use real-
time captioning techniques, which generate and add captions to their
pre-recorded programming as it airs to the public. Although industry
indicates that real-time captioning for pre-recorded programming is
sometimes necessary, the record reflects that real-time captioning
methods can result in a greater number of errors, greater omissions
than captions carefully prepared and reviewed in advance, and greater
lag time between when the words are spoken and captions appear, making
it difficult to follow who is speaking during a program. The National
Cable and Telecommunications Association (NCTA) has proposed Best
Practices that state that a programmer will ensure that pre-recorded
programs generally are captioned offline before airing except when,
``in the exercise of a programmer's commercially reasonable judgment,''
circumstances require real-time or live display techniques for pre-
recorded programming. Accordingly, the Commission expects that as a
general matter, the use of real-time captioning methods for pre-
recorded programming will be limited to only those situations when it
is necessary to do so. After the captioning quality standards have been
in effect for one year, the Commission will review the extent to which
the circumstances permitting the continued use of real-time captioning
techniques for pre-recorded programming have been successful in
improving captioning quality on this type of programming as part of an
overall review of the Best Practices (discussed below). Depending on
the outcome of this review, the Commission will consider additional
[[Page 17914]]
action to further limit the use of real-time techniques on pre-recorded
programming, if necessary.
19. Live Programming. Document FCC 14-12 defines live programming
as video programming that is shown on television substantially
simultaneously with its performance. Captioning for live programming,
referred to as ``real-time'' captioning, is generated and combined with
programming while it is being aired, and there is little or no
opportunity to edit the captioning for accuracy, synchronicity, program
completeness, and placement prior to airing.
20. Accuracy. The Commission recognizes the greater hurdles
involved with captioning live programming, given the simultaneous
production of captions as the programming is aired, and the lack of
time for the review and correction of captions. The Captioning Vendors
Best Practices suggest a number of measures that VPDs can specify in
their contracts with programmers to be taken to reduce errors and to
produce more complete and timely captions, including providing
captioners advance notice of vocabulary that the program is likely to
use; ensuring that captioners are equipped with reliable, high speed
Internet, multiple telephone lines and backup plans to minimize caption
interruption due to malfunctions; providing captioning agencies with
high quality audio program signals; and requiring appropriate captioner
training and skills. The Commission encourages the continued use of
these measures and other measures that are technically feasible, to
provide live captions provide an accurate presentation of aural
content.
21. Nonetheless, the Commission recognizes that it may be
impossible, using today's technologies, to always achieve fully
accurate captioning on live programming. In considering complaints on
captioning quality of live programming, the Commission will take into
consideration the nature of this programming and the challenges
associated with accurately captioning such programming. The overall
objective is to ensure that closed captions convey a program's content
so that the program is fully accessible to viewers. The Commission will
address complaints by considering, on a case-by-case basis, the overall
accuracy or understandability of the programming, the ability of the
captions to convey the aural content of the program in a manner
equivalent to the aural track, the extent to which the captioning
errors prevented viewers from having access to the programming, and
whether the VPD made best efforts to receive certification from
programmers that the programmer is either in compliance with the
Commission's non-technical quality standards or with the Best Practices
adopted herein, or is exempt from the captioning obligations.
22. Synchronicity. The Commission recognizes that a slight delay in
the delivery of live captions is inevitable due to the time it takes
for the captioner to hear the program, provide the captions, and have
the captions transmitted to the viewer and will consider such technical
limitations when reviewing consumer allegations of non-compliance
regarding the lack of synchronicity between a live program's audio
track and its captions. At the same time, in an effort to eliminate
delays that prevent caption viewers from understanding a program's
content, there are measures a programmer can take to keep the delay in
their presentation of live captions to a minimum, consistent with an
accurate presentation of what is said, so that the time between when
words are spoken or sounds occur and captions appear does not interfere
with the ability of viewers to follow the program. For example, VPDs
can specify in their contracts with programmers that the programmers
will provide captioners with advance materials that help them to
generate caption text as they hear a program's audio, provide high
quality audio program signals to reduce caption lag times, and enter
into contracts with captioning agencies that require appropriate
captioner training and skills to reduce captioning delays while a
program is being aired.
23. Program Completeness. The Commission recognizes that the delays
inherent in sending caption transmissions on live programs to viewers
pose particular challenges with respect to ensuring that the entire
program is captioned up to its very last second. The preceding
paragraphs have noted various measures that programmers and captioners
can take to minimize the lag time between a program's audio content and
its captions; shortening the lag time for real-time captions will help
provide a more complete program. In addition, to the extent technically
feasible, the Commission encourages entities that send the audio feed
to the live captioner to alert the captioner that a program's end is
imminent, so that the captioner can paraphrase or abbreviate the
remaining text before the program cuts off. Finally, to the extent
available, the Commission encourages use of the following measures to
capture as much of a live program as possible through captions: (1) A
fade out after the last scene to add a few seconds for the transition
to the next program content, (2) advance delivery of the audio to
captioners by a few seconds, and (3) allowing captions remaining at the
end of a program's audio to be placed in a location on the screen
during captions on that advertisement or program.
24. Placement. Entities certifying to their compliance with the
captioning quality standards will be considered to comply with the
Commission's placement standards if they ensure the proper placement of
captions on the screen to avoid obscuring on-screen information and
graphics to the extent possible. However, the Commission recognizes
that placement errors may be more frequent with certain types of live
programming than with pre-recorded programming. The Commission will
take into consideration the type and nature of the programming when
considering complaints regarding violations of the placement standard.
25. Near-Live Programming. The Commission defines near-live
programming as video programming performed and recorded less than 24
hours prior to the time it was first aired on television. The
production schedules for near-live programming often do not afford an
opportunity for reviewing and editing captions equivalent to offline
captioning processes. Rather, because of the short turnaround time
between taping and airing, programmers typically use real time-
captioning techniques for this type of programming. For purposes of the
caption quality standards discussed above, the Commission will treat
near-live programming as if it were live programming. The Commission
agrees with Petitioners that editing and synchronization of captions on
near-live programming should be performed during the hours between
taping and airing to the extent there is sufficient time for such
activities.
26. Document FCC 14-12 also encourages the adoption of either of
two industry practices to improve the quality of near-live programming.
First, in advance of a program's airing, programmers may be able to
deliver a complete program script or a near-completed program to a
captioning agency, which the agency can then use to create a caption
file that is later combined simultaneously with the program when it is
aired. The process of synchronizing captions that were originally
produced in real-time is known as ``live display,'' and it can serve to
reduce errors and long lag times that can occur with real-time
captioning. Alternatively, programmers may be able to provide a
captioning
[[Page 17915]]
agency with access to a live feed of the taping of near-live
programming, enabling a captioner to generate captions while the
program is being taped. The captioner can then improve the captions for
accuracy, synchronicity, program completeness and placement prior to
its airing. During these intervening hours, the programming provider
also could inform the captioning agency about any edits made to the
show prior to airing.
27. Program Re-feeds of Live and Near-Live Programming. Captioning
vendors have submitted best practices proposals encouraging the use of
offline captioning for live and near-live programs that initially have
been captioned using real-time captioning techniques, but that are
later re-aired on television. The Commission believes that such
practice will more effectively match the program's audio content and
thereby ensure the full television access through captioning. While
offline captioning may not always be possible, the Commission
encourages it and other steps to be taken that are necessary to achieve
improved accuracy, synchronicity, completeness and placement of
captions on such programs prior to their being re-aired. For example,
to the extent feasible, the Commission encourages efforts to correct
errors inadvertently made and timing lags that occurred when the
program first aired with real-time captions.
28. VPD Obligations. In the Closed Captioning Report and Order, the
Commission chose to place exclusive responsibility for compliance with
the closed captioning requirements on VPDs because they are ultimately
responsible for ensuring the delivery of programming to consumers.
Because VPDs are the entities that provide video programming directly
to consumers' homes, keeping them in the chain of responsibility will
provide consumers an entity to which they can address their complaints,
and VPDs can assist in identifying other entities responsible for the
captioning quality errors. Accordingly, document FCC 14-12 imposes
obligations on VPDs to ensure compliance with the captioning quality
standards.
29. For the purposes of document FCC 14-12, all references to VPDs
are as defined in Sec. 79.1 of the Commission's rules, unless
otherwise noted. To avoid possible ambiguity, the Commission changes
the heading for Sec. 79.1 of its rules to now read ``Closed captioning
of televised programming.'' Section 79.1(a) of the Commission's rules
defines VPD as (1) any television broadcast station licensed by the
Commission; (2) any multichannel video programming distributor (MVPD)
as defined in Sec. 76.1000(e) of the Commission's rules; and (3) any
other distributor of video programming for residential reception that
delivers such programming directly to the home and is subject to the
jurisdiction of the Commission. A different definition of VPD is used
for purposes of programming distributed on the Internet under Sec.
79.4 of the Commission's rules. 47 CFR 79.4(a)(3).
30. In acknowledgment of the critical role that video programmers
play in the delivery of captions, each VPD must exercise best efforts
to obtain a certification from each of its video programmers, by
requesting, in writing, that each programmer that supplies it with
programming provide a certification attesting that the programmer
either (1) complies with the captioning quality standards adopted
herein; (2) adheres to the Best Practices for video programmers set
forth below, or (3) is exempt from the closed captioning rules under
one or more properly attained exemptions, in which case such
certification must identify the specific exemption claimed. In
addition, the VPD must request, in writing, that the programmer make
such certification widely available within 30 days after receiving a
written request from the VPD. VPDs will further have the obligation to
check Web sites or other widely available locations used for the
purpose of posting widely available certifications, to determine which
of their programmers have certified their compliance. VPDs that locate
a programmer's certification on the programmer's Web site or other
widely available location used for the purpose of posting
certifications as of the effective date of these rules will be deemed
in compliance with this best efforts obligation even if the VPD did not
previously notify such programmer, in writing, of the need for this
certification directly to such programmer. VPDs that fail to exercise
best efforts to obtain the certification noted above may be subject to
enforcement action.
31. If a video programmer does not provide the certification noted
above, and if the VPD nevertheless carries the programmer's
programming, it must report the non-certifying programmer to the
Commission. The Consumer and Governmental Affairs Bureau will issue a
Public Notice announcing the proper procedure for submitting such
reports to the Commission. The Commission will compile a list of such
programmers that will become available in a public database maintained
by the Commission. If a VPD uses its best efforts to obtain one of
these certifications from each of its programmers, and it reports to
the Commission the identity of any programmer whose programming the VPD
carries who has refused to provide the requested certification, no
sanctions will be imposed on the VPD as a result of any captioning
violations that are outside the control of the VPD. MVPDs will not need
to obtain the above certifications from broadcast television stations
that are carried on the MVPDs' systems because broadcast television
stations themselves are VPDs, and the Commission is exercising direct
authority over all VPDs with regard to the captioning quality rules
adopted herein.
32. These requirements will become effective upon the latter of
January 15, 2015 or a date announced in a public notice published in
the Federal Register following approval by the Office of Management and
Budget of the modified information collection requirements under the
Paperwork Reduction Act of 1995.
33. Best Practices. A number of parties to this proceeding,
including VPDs, video programmers, captioning vendors, and consumers,
have proposed Best Practices to ensure caption quality. Adherence to
the Best Practices will provide the captioning industry with concrete
steps it can take to achieve quality captions and ensure that caption
quality problems that do arise are quickly resolved. One year after
implementation of the rules adopted herein, the Commission will assess
the extent to which its prediction about the effectiveness of these
Best Practices has been accurate. If the Commission finds that this
approach is not effective in ensuring the production and distribution
of good quality captions, the Commission will revisit these rules to
the extent necessary.
34. Video Programmer Best Practices. To satisfy its obligation to
exercise its best efforts to obtain certification from its programmers
regarding closed caption quality, a VPD may seek certification from its
video programmers that they will adhere to the following practices.
Agreements with captioning services. Video programmers
complying with the Best Practices will take the following actions to
promote the provision of high quality television closed captions
through new or renewed agreements with captioning vendors:
[cir] Performance requirements. Include performance requirements
designed to promote the creation of high quality closed captions for
video programming substantially comparable to the
[[Page 17916]]
Captioning Vendors Best Practices set forth below. Some programmers may
contract with captioning agencies that employ practices that vary
somewhat from the Captioning Vendor Best Practices but nonetheless
generate high quality closed captions for video programming. To provide
the captioning industry with flexibility, compliance with these Best
Practices will include compliance with performance requirements that
are comparable to these practices. Such requirements should adhere to
the basic tenets of the requirements set forth in document FCC 14-12,
and will qualify only if they are designed to achieve captions that are
accurate, synchronous, complete and appropriately placed, as required
by these new standards.
[cir] Verification. Include a means of verifying compliance with
the above performance requirements such as through periodic spot checks
of captioned programming.
[cir] Training. Include provisions designed to ensure that
captioning vendors' employees and contractors who provide caption
services have received appropriate training and that there is oversight
of individual captioners' performance.
Operational best practices. Video programmers complying
with the Best Practices will take the following actions to promote
delivery of high quality television captions through improved
operations:
[cir] Preparation materials. To the extent available, provide
captioning vendors with advance access to preparation materials such as
show scripts, lists of proper names (people and places), and song
lyrics used in the program, as well as to any dress rehearsal or
rundown that is available and relevant.
[cir] Quality audio. Make commercially reasonable efforts to
provide captioning vendors with access to a high quality program audio
signal to promote accurate transcription and minimize latency.
[cir] Captioning for pre-recorded programming.
[ssquf] The presumption is that pre-recorded programs, excluding
programs that initially aired with real-time captions, will be
captioned offline before air except when, in the exercise of a
programmer's commercially reasonable judgment, circumstances require
real-time or live display captioning. Examples of commercially
reasonable exceptions may include instances when (1) a programmer's
production is completed too close to initial air time be captioned
offline or may require editorial changes up to air time (e.g., news
content, reality shows, (2) a program is delivered late, (3) there are
technical problems with the caption file, (4) last minute changes must
be made to later network feeds (e.g., when shown in a later time zone)
due to unforeseen circumstances, (5) there are proprietary or
confidentiality considerations, or (6) video programming networks or
channels with a high proportion of live or topical time-sensitive
programming, but also some pre-recorded programs, use real-time
captioning for all content (including pre-recorded programs) to allow
for immediate captioning of events or breaking news stories that
interrupt scheduled programming.
[ssquf] Make reasonable efforts to employ live display captioning
instead of real-time captioning for pre-recorded programs if the
complete program can be delivered to the caption service provider in
sufficient time prior to airing.
Monitoring and remedial best practices. Video programmers
complying with the Best Practices will take the following actions aimed
at improving prompt identification and remediation of captioning errors
as they occur:
[cir] Pre-air monitoring of offline captions. As part of the
overall pre-air quality control process for television programs,
conduct periodic checks of offline captions on pre-recorded programs to
determine the presence of captions.
[cir] Real-time monitoring of captions. Monitor television program
streams at point of origination (e.g., monitors located at the network
master control point or electronic monitoring) to determine presence of
captions.
[cir] Programmer and captioning vendor contacts. Provide to
captioning vendors appropriate staff contacts who can assist in
resolving captioning issues. Make captioning vendor contact information
readily available in master control or other centralized location, and
contact captioning vendor promptly if there is a caption loss or
obvious compromise of captions.
[cir] Recording of captioning issues. Maintain a log of reported
captioning issues, including date, time of day, program title, and
description of the issue. Beginning one year after the effective date
of the captioning quality standards, such log shall reflect reported
captioning issues from the prior year.
[cir] Troubleshooting protocol. Develop procedures for
troubleshooting consumer captioning complaints within the distribution
chain, including identifying relevant points of contact, and work to
promptly resolve captioning issues, if possible.
[cir] Accuracy spot checks. Within 30 days following notification
of a pattern or trend of complaints from the Commission, conduct spot
checks of television program captions to assess caption quality and
address any ongoing concerns.
Certification procedures for video programmers. Video
programmers complying with the Best Practices will certify to video
programming distributors that they comply with the quality captioning
standards or adhere to Best Practices for video programmers and will
make such certifications widely available to VPDs, for example, by
posting on affiliate Web sites.
35. Captioning Vendor Best Practices. As noted above, as part of
their Best Practices, certifying video programmers must have agreements
with captioning vendors that include performance requirements that are
comparable to the Captioning Vendor Best Practices set forth below.
These practices are intended to result in high quality captions and
ensure that captioners have adequate training and oversight. The
Commission defines ``captioning vendor'' (also sometimes referred to in
document FCC 14-12 as a ``captioning service provider'') to mean any
entity that is responsible for providing captioning services to a video
programmer. Consistent with the Captioning Vendors' proposal, the
Commission divides these Best Practices into three sets of practices--
first, for captioning vendors, second, for individual captioners who
generate real-time captions, and third, for the generation of offline
captioning.
36. Best Practices for Real-time (Live) Captioning Vendors.
Create and use metrics to assess accuracy, synchronicity,
completeness, and placement of real-time captions;
Establish minimum acceptable standards based upon those
metrics while striving to regularly exceed those minimum standards;
Perform frequent and regular evaluations and sample audits
to ensure those standards are maintained;
Consider ``accuracy'' of captions to be a measurement of
the percentage of correct words out of total words in the program,
calculated by subtracting number of errors from total number of words
in the program, dividing that number by total number of words in the
program and converting that number to a percentage. For example, 7,000
total words in the program minus 70 errors equals 6,930 correct words
captioned, divided by 7,000 total words in the program equals 0.99 or
99% accuracy;
[[Page 17917]]
Consider at a minimum mistranslated words, incorrect
words, misspelled words, missing words, and incorrect punctuation that
impedes comprehension, and misinformation as errors;
[cir] Captions are written in a near-as-verbatim style as possible,
minimizing paraphrasing;
[cir] The intended message of the spoken dialogue is conveyed in
the associated captions in a clear and comprehensive manner;
[cir] Music lyrics should accompany artist performances;
Consider synchronicity of captions to be a measurement of
lag between the spoken word supplied by the program origination point
and when captions are received at the same program origination point;
Ensure placement of captions on screen to avoid obscuring
on-screen information and graphics (e.g., sports coverage);
Ensure proper screening, training, supervision, and
evaluation of captioners by experienced and qualified real-time
captioning experts;
Ensure there is an infrastructure that provides technical
and other support to video programmers and captioners at all times;
Ensure that captioners are qualified for the type and
difficulty level of the programs to which they are assigned;
Utilize a system that verifies captioners are prepared and
in position prior to a scheduled assignment;
Ensure that technical systems are functional and allow for
fastest possible delivery of caption data and that failover systems are
in place to prevent service interruptions;
Regularly review discrepancy reports in order to correct
issues and avoid future issues;
Respond in a timely manner to concerns raised by video
programmers or viewers;
Alert video programmers immediately if a technical issue
needs to be addressed on their end;
Inform video programmers of appropriate use of real-time
captioning (i.e., for live and near-live programming, and not for pre-
recorded programming) and what is necessary to produce quality
captions, including technical requirements and the need for preparatory
materials;
For better coordination for ensuring high quality captions
and for addressing problems as they arise, understand the roles and
responsibilities of other stakeholders in the closed-captioning
process, including VPDs, video programmers, producers, equipment
manufacturers, regulators, and viewers, and keep abreast of issues and
developments in those sectors; and
Ensure that all contracted captioners adhere to real-time
captioner Best Practices.
37. Best Practices for Real-Time (Live) Captioners.
Caption as accurately, synchronously, completely, and
appropriately placed as possible;
Ensure they are equipped with a failover plan to minimize
caption interruption due to captioner or equipment malfunction;
Be equipped with reliable, high speed Internet;
Be equipped with multiple telephone lines;
Prepare as thoroughly as possible for each program;
File thorough discrepancy reports with the captioning
vendor in a timely manner;
To the extent possible given the circumstances of the
program, ensure that real-time captions are complete when the program
ends;
Engage the command that allows captions to pass at
commercials and conclusion of broadcasts;
Monitor captions to allow for immediate correction of
errors and prevention of similar errors appearing or repeating in
captions;
Perform frequent and regular self-evaluations;
Perform regular dictionary maintenance;
Keep captioning equipment in good working order and update
software and equipment as needed;
Possess the technical skills to troubleshoot technical
issues; and
Keep abreast of current events and topics that they
caption.
38. Best Practices for Offline (Pre-recorded) Captioning Vendors
and Captioners.
Ensure offline captions are verbatim;
Ensure offline captions are error-free;
Ensure offline captions are punctuated correctly and in a
manner that facilitates comprehension;
Ensure offline captions are synchronized with the audio of
the program;
Ensure offline captions are displayed with enough time to
be read completely and that they do not obscure the visual content;
Ensure offline captioning is a complete textual
representation of the audio, including speaker identification and non-
speech information;
Create or designate a manual of style to be applied in an
effort to achieve uniformity in presentation;
Employ frequent and regular evaluations to ensure
standards are maintained;
Inform video programmers of appropriate uses of real-time
and offline captioning, and strive to provide offline captioning for
pre-recorded programming;
[cir] Encourage use of offline captioning for live and near-live
programming that originally aired on television and feeds at a later
time;
[cir] Encourage use of offline captioning for all original and
library pre-recorded programming completed well in advance of its
distribution on television; and
For better coordination for ensuring high quality captions
and for addressing problems as they arise, understand the roles and
responsibilities of other stakeholders in the closed-captioning
process, including VPDs, video programmers producers, equipment
manufacturers, regulators, and viewers, and keep abreast of issues and
developments in those sectors.
39. In addition to following the Best Practices listed above, the
Commission agrees that an ongoing dialogue among interested parties can
help assess the industry's progress in implementing these practices and
their impact on caption quality for television programs, as well as
promote a better understanding of issues relevant to caption quality.
The Commission supports commenters' proposal that trade associations
sponsor an annual conference with VPDs, programmers, captioning
vendors, representatives of the deaf and hard of hearing communities,
the Commission, and other interested parties to review the state of
caption quality on television, and to discuss developments in
captioning technology and other issues of concern. The Commission also
encourages industry and consumers to engage in frequent discussions so
that the myriad of issues associated with captioning can be resolved to
the mutual satisfaction of industry and consumers on an ongoing basis.
40. Consumer Complaints. The Commission will rely on consumers to
bring any potential noncompliance with its captioning quality standards
to the Commission's attention. The Commission disagrees with NCTA's
argument that informal complaints regarding caption quality should be
treated as informational filings only, with no requirement for the
covered entity to investigate or respond to complaints brought to a
company's attention. Commission experience with closed captioning
informal complaints filed pursuant to Sec. 79.1(g) of the
[[Page 17918]]
Commission's rules has been that they have been useful in bringing to
its attention and to the attention of programming entities technical
and other problems that these entities generally correct after
investigating the problems raised in the informal complaints. However,
CGB will forward informal complaints only if they contain the following
information: (1) the channel number, channel name, call sign, or
network; (2) the name of the MVPD, if applicable; (3) the date and time
when the captioning problem occurred; (4) the name of the program with
the captioning problem; and (5) a detailed description of the
captioning problem, including specifics about the frequency and type of
problem (e.g., garbling, captions cut off at certain times or on
certain days, and accuracy problems). CGB will undertake efforts to
work with consumers to obtain additional information, as needed, to
ensure complete information on deficient complaints prior to forwarding
these to VPDs in order to ease the burdens on both consumers and
industry.
41. Use of Electronic Newsroom Technique (ENT) for Live
Programming. Background. Electronic Newsroom Technique (ENT) is a
technique that can convert the dialogue included on a teleprompter
script into captions. In the 1997 Closed Captioning Report and Order,
the Commission allowed the use of ENT for the captioning of newscasts
and other live programming--for purposes of meeting the captioning
benchmarks--to permit flexibility in the methods used to create closed
captions and to address the record's conflicting accounts at that time
as to the number of available real-time captioners. On reconsideration,
because of the inability of ENT to capture interviews, field reports,
and late breaking weather and sports reports, the Commission narrowed
the circumstances under which captions created with this technique
would be permitted. Closed Captioning and Video Description of Video
Programming; Implementation of Section 305 of the Telecommunications
Act of 1996 Video Programming Accessibility, MM Docket No. 95-196,
Order on Reconsideration, (1998 Closed Captioning Reconsideration
Order); 63 FR 55959, October 20, 1998. The ENT rule now prohibits the
four major national broadcast networks, their affiliates in the 25
largest DMAs as defined by the Nielsen ratings, and national non-
broadcast networks serving at least 50 percent of all homes subscribing
to multichannel video programming services from using ENT to caption
live programming. 47 CFR 79.1(e)(3).
42. The Commission remains concerned about the inability of ENT, as
it is currently used, to provide full and equal access to news
programming for all Americans, no matter where they live. However,
while the costs for real-time captioning have dropped significantly and
steps have been taken to increase the number of real-time captioners
since the Commission's rules was adopted in the 1997 Closed Captioning
Report and Order, the Commission recognizes that many stations continue
to have significant concerns about their ability to provide local news
if they are denied the opportunity to provide captions through ENT, and
agrees that the public interest would not be served were television
stations required to cut back on local news programming.
43. In document 14-12, the Commission amends Sec. 79.1(e)(3) of
its rules to describe the manner in which broadcast stations not
subject to the prohibition on ENT will be deemed in compliance with the
captioning rules if they continue to use ENT to provide captioning on
their live programming. The record indicates that these enhanced ENT
procedures, listed below, offer stations a means to continue using ENT,
and a means to improve caption quality for consumers, without requiring
all stations to assume the cost of real-time captioning of all news
programming. The Commission anticipates that these procedures will
ensure that most in-studio programming, such as weather, sports, news
and entertainment, as well as breaking news and on-the-scene
programming will be made more accessible to viewers who are deaf and
hard of hearing.
44. Effective Date. The Commission will make these requirements
effective 90 days after publication in the Federal Register. To the
extent it is not technically feasible for a particular station to
comply with its new requirements by this time, the station may request
additional time by seeking a limited waiver of the effective date,
supported by an appropriate good cause showing. Any station may, in
lieu of following the enhanced ENT procedures, provide real-time
captioning on their live programming.
45. ENT Best Practices. Accordingly, based on the proposals
submitted by NAB, the Commission requires that to be deemed in
compliance with the Commission rules requiring captioning of live
programming, broadcast stations that are not subject to the current
prohibition on ENT must adhere to the following procedures in the
ordinary course of business if they continue to use ENT for live
programming:
In-studio produced programming will be scripted. These
scripted elements will include in-studio news, sports, weather, and
entertainment programming.
For weather interstitials where there may be multiple
segments within a news program, weather information explaining the
visual information on the screen and conveying forecast information
will be scripted, although the scripts may not precisely track the
words used on air.
Pre-produced programming will be scripted (to the extent
technically feasible).
If live interviews, live on-the scene and/or breaking news
segments are not scripted, stations shall supplement them with crawls,
textual information, or other means (to the extent technically
feasible).
These provisions do not relieve stations of their
obligations to comply with requirements regarding the accessibility of
programming providing emergency information under Sec. 79.2 of the
Commission's rules. 47 CFR 79.2.
Stations will provide training to all news staff on
scripting for improving ENT.
Stations will appoint an ``ENT Coordinator'' accountable
for compliance.
46. One-year ENT Report. Because the record is not fully developed
on how the new ENT procedures will be applied by news programmers
across the country, and the extent to which compliance with these
procedures will fulfill the Act's requirement for full access to news
programming, the Commission will reevaluate the effectiveness of these
ENT enhancements in providing people who are deaf and hard of hearing
with full access to television news programming one year after the
effective date of the rules pertaining to ENT. To begin this process,
no later than one year after the implementation of these ENT
procedures, document FCC 14-12 requires broadcast stations that have
relied on these procedures to prepare and submit to the Commission a
report on their experiences with following these new measures, and the
extent to which they have been successful in providing full and equal
access to news programming. Such report shall be prepared in
consultation with Consumer Groups and may be prepared by the NAB on
behalf of the affected broadcasters. The Commission encourages, as
recommended by Consumer Groups, that such report
[[Page 17919]]
include data to demonstrate the extent to which ENT captioning meets
the principles of accuracy, completeness, synchronicity, and placement,
the percentage and quantity of uncaptioned programming by stations
using ENT, the impact of ENT usage on the ability of consumers who are
deaf and hard of hearing to access programming, complaints filed about
ENT, the state of the market for real-time captioners, the economic
need for stations to continue using ENT in lieu of real-time
captioning, and technological progress toward achieving improvements
with ENT. Such data can assist the Commission in evaluating whether a
further proceeding that may include the phase out of ENT for certain
DMAs is necessary to ensure full access to televised news programming
by people who are deaf and hard of hearing.
47. Complaints. The Commission will entertain informal complaints
of noncompliance with the Commission's closed captioning rules by those
stations using the above procedures for ENT, but will forward a
complaint to a station only if it contains the following relevant
information, which the Commission deems necessary to effectively
respond to such complaint: The television channel number, network and/
or call sign, the name of the subscription service, if relevant, the
date and time of the alleged captioning problems, the name of the
program with the alleged captioning problem, a detailed and specific
description of the captioning problem, including the frequency and type
of problem.
48. Compliance Ladder. The Commission further adopts the following
compliance ladder in the event that complaints gathered by the
Commission indicate a pattern or trend of noncompliance with the new
ENT rules.
If the Commission notifies a broadcast station that the
Commission has identified a pattern or trend of possible noncompliance
by the station, the station shall respond to the Commission within 30
days regarding such possible noncompliance, describing corrective
measures taken, including those measures the station may have
undertaken in response to informal complaints and inquiries from
viewers.
If, after the date for a broadcast station to respond to
the above notification, the Commission subsequently notifies the
broadcast station that there is further evidence indicating a pattern
or trend of noncompliance, the broadcast station shall submit to the
Commission, within 30 days of receiving such subsequent notification,
an action plan describing specific measures it will take to bring the
station's ENT performance into compliance with the Commission's
regulations for ENT. Action plans could include, for example, training
of station personnel, more prominent reminders of the need for
accessibility, and, if appropriate, the use of improved equipment. In
addition, the station shall be required to conduct spot checks of its
ENT performance and report to the Commission on the results of such
action plan and spot checks 180 days after submission of such action
plan.
If, after the date for submission of such report on the
results of an action plan, the Commission finds continued evidence of a
pattern or trend of noncompliance, the Commission will then consider,
through its Enforcement Bureau, appropriate enforcement action
including admonishments, forfeitures, and other corrective actions as
necessary that may include a requirement to cease using ENT, and
instead use real-time captioning for live programming.
49. In determining whether to require a station to implement real-
time captioning, the Commission will take into consideration all
relevant information regarding the nature of the problem and the
station's efforts to correct the problem.
50. Video Programming Distributor Technical Rules. Equipment
Monitoring. Even when captions delivered to VPDs are complete,
accurate, synchronous, and appropriately located on the screen in
compliance with the Commission's captioning quality standards, there
still remains the possibility that technical problems may prevent these
captions from reaching viewers. In the 1997 Closed Captioning Report
and Order, the Commission adopted a ``pass-through requirement'' for
VPDs to ``ensure that captioned programming is always delivered to
viewers complete and intact.'' The Commission stated that VPDs would
``be responsible for any steps needed to monitor and maintain their
equipment and signal transmissions to ensure that the captioning
included with the video programming reaches consumers,'' and cautioned
that VPDs were to ``take corrective measures necessary to ensure that
the captioning is consistently included with the video programming
delivered to viewers.'' The Commission further clarified that it is the
``video programming distributor's responsibility . . . to ensure that
the equipment used to transmit these channels to viewers is capable of
passing the captioning through along with the programming [and] is in
proper working order.''
51. The record shows that technical problems, which can occur in
the delivery of captions from the point of origination to the end user,
have been preventing some viewers from being able to fully access video
programming as required by the Act and the Commission's captioning
rules. Each time the program stream is transcoded or manipulated the
captions can become garbled or disappear, or otherwise have their
quality impaired. The Commission finds that VPDs could eliminate most
technical captioning glitches if they have mechanisms in place to
monitor and check their engineering equipment and procedures. In
addition, complaints would be reduced if these entities actively
monitor and maintain their equipment to eliminate the occurrence of
technical problems in the first instance, and to quickly and
efficiently repair such problems that do occur.
52. To ensure full technical compliance with the pass-through rule,
the Commission reaffirms and codifies in its rules, its 1997
requirements for VPDs to take ``any steps needed to monitor and
maintain their equipment and signal transmissions as part of their
obligation to ensure that the captioning included with video
programming reaches consumers,'' and to take any corrective measures
necessary to ensure that such equipment is in proper working order. The
Commission also adopts a new rule requiring technical equipment checks
to take place in a manner that is sufficient to ensure that captions
are passed through to viewers intact. The Commission expects that VPDs
that already perform equipment checks and maintain adequate records to
ensure that captions are passed through to their viewers should not
have to change their practices as a result of these new rules. Others
who have failed to perform technical equipment checks or do not
currently maintain records will have to revise their practices to
comply with the obligation to monitor their equipment for its proper
maintenance.
53. As part of their pass-through requirement, the Commission
reminds MVPDs that they must also ensure that the customer premises
equipment (e.g., set-top boxes) that they provide to consumers transmit
all captions pursuant to the standards adopted under the CVAA.
Additionally, the Commission encourages MVPDs to provide their
installers and other employees who interact with consumers with
information necessary to help those consumers effectively access closed
captions through their MVPD-installed devices.
[[Page 17920]]
54. Reporting and Recordkeeping. At this time, the Commission
declines to impose a requirement for VPDs to report on their compliance
with the captioning rules. However, as explained below, document FCC
14-12 adopts a requirement for VPDs to keep records of their activities
related to the maintenance, monitoring and technical checks of their
captioning equipment. The Commission believes that the new complaint
process, which allows consumers to skip the step of first contacting a
VPD about a complaint and allows the initial filing of such complaints
with the Commission, has made it easier for consumers to bring to the
Commission's attention alleged violations of the captioning
requirements, and thus reduces the need for a reporting requirement.
However, the Commission continues to believe that each VPD should be
required to maintain sufficient data to respond to consumer complaints
and provide the Commission with information needed to make a
determination as to the VPD's compliance with the closed captioning
requirements. Although such requirement already exists, document FCC
14-12 now specifies that such data must include (though it need not be
limited to) information about the VPD's efforts to monitor, maintain,
and conduct technical checks of its captioning equipment and other
related equipment to ensure the pass through of captions to viewers.
The Commission further requires each VPD to retain such records and
documentation for a period of at least two years, in order to
effectively respond to a consumer complaint or Commission inquiry
addressing compliance with the Commission's captioning rules. Because
the statute of limitations to impose a penalty for captioning
violations is one year for some VPDs, and additional time is needed to
obtain the records once the proceeding has commenced, the Commission
finds that this two-year document retention rule is reasonable.
Finally, the Commission directs that VPDs be prepared to submit such
data to the Commission upon request, if needed to resolve an
enforcement proceeding. A VPD's efforts to dispute noncompliance
alleged in a complaint or a Commission inquiry with conclusory or
insufficiently supported assertions of compliance will not carry the
VPD's burden of proof to show that it is in compliance with the
Commission's rules. In the event that the Commission finds that these
recordkeeping obligations are insufficient to achieve compliance with
the closed captioning obligations, the Commission may revisit whether
to impose reporting requirements.
55. The recordkeeping requirements will become effective upon the
latter of January 15, 2015 or a date announced in a public notice
published in the Federal Register following approval by the Office of
Management and Budget of the modified information collection
requirements under the Paperwork Reduction Act of 1995.
56. Treatment of Multicast Streams. Background. In 1997, the
Commission adopted a closed captioning exemption for video programming
channels that produced annual gross revenues of less than $3 million
during the previous calendar year. At that time, the Commission
specified that ``[a]nnual gross revenues shall be calculated for each
channel individually based on revenues received in the preceding
calendar year from all sources related to the programming on that
channel.'' The Commission did not determine, however, what constituted
a ``channel'' for purposes of satisfying this self-implementing
exemption. In 1997, broadcasters used their spectrum allocation to
provide analog programming on a single channel; with the advent of
digital broadcasting, broadcasters may use their digital allotment to
provide simultaneously several streams of programming on the same 6 MHz
of spectrum. This is known as ``multicasting.'' In the 2008 Closed
Captioning Decision, the Commission sought comment on whether, for
purposes of the $3 million exemption, each programming stream on a
multicast signal constitutes a separate channel for purposes of the
captioning requirements, or whether the broadcaster's entire operations
attributable to its digital allotment should be considered one channel
for captioning purposes.
57. The Commission concludes that, for purposes of Sec.
79.1(d)(12) of the Commission's rules, each programming stream on a
multicast broadcast signal will be considered separately for purposes
of determining whether the $3 million annual gross revenue limit has
been satisfied. The Commission agrees that applying Sec. 79.1(d)(12)
of its rules to each multicast stream separately is consistent with our
ruling in 1997, which calculated gross revenues for each channel
individually, and in the way it is applied to MVPDs. Accordingly, the
Commission amends Sec. 79.1(d)(12) of its rules to ensure application
of the $3 million exemption to a channel or stream of programming when
multiple streams of programming are offered by a broadcaster. The
Commission reminds multicasting television broadcasters, however, that
once the annual revenues for a multicasting stream reach $3 million,
the captioning exemption will not apply to that stream and, at that
point, all applicable captioning requirements will apply to that
stream. The Commission will revisit the multicasting issue at a later
time to determine whether the approach adopted in document FCC 14-12 is
still needed to assure the viability of multicasting, as well as the
extent to which any change of policy is needed to ensure the
availability of closed captioning on multicast programming for people
who are deaf and hard of hearing.
58. Other Matters. Penalties for Violation of the Closed Captioning
Rules. Petitioners have requested that the Commission use its existing
forfeiture guidelines to establish a base forfeiture amount of $8,000
for each captioning violation, with each hour of programming below the
applicable benchmark counted as a separate violation. They also have
asked the Commission to clarify that to the extent technical problems
result in a portion of a program's captioning to be garbled or missing,
such program not be counted toward the applicable captioning benchmark.
In the 2005 Closed Captioning NPRM, the Commission sought comment on
whether the Commission should establish specific per-violation
forfeiture amounts for non-compliance with the captioning rules, and if
so, what those amounts should be.
59. The Commission declines to create sanctions or remedies for
closed captioning enforcement proceedings that deviate from the
Commission's flexible case-by-case approach governed by Sec. 1.80 of
its rules. The Commission already has sufficient authority to issue
appropriate penalties, and it will adjudicate complaints on the merits
and employ the full range of sanctions and remedies available to the
Commission under the Act. In order to encourage compliance with its
rules, the Commission will consider a wide variety of factors to
determine whether enforcement is warranted, such as history of
monitoring and maintenance, complaints received from consumers,
frequency of captioning errors, and impact of captioning errors on the
viewers' understandability of the program. In addition, as provided in
Sec. 79.1(g)(8) of the Commission's rules, a forfeiture penalty may be
in addition to any other penalty that the Commission may impose.
60. Electronic Filing of Exemption Requests Section 713(d)(3) of
the Act permits video programming providers or
[[Page 17921]]
owners to petition the Commission for an exemption from the closed
captioning requirements where it can be shown that such requirements
would be ``economically burdensome.'' The Commission has required
parties seeking such exemption to file their petitions in paper form.
In the 2005 Closed Captioning NPRM, the Commission sought comment on
whether to require or allow the electronic filing of exemption
petitions, and asked about the impact electronic filing would have on
entities filing such petitions and parties filing comments or
oppositions to such petitions.
61. In the 2011 Electronic Filing Report and Order, the Commission
amended certain of its procedural rules to increase the efficiency of
Commission decision-making and modernize Commission procedures in the
digital age, including adoption of a requirement to use electronic
filing whenever technically feasible. Document FCC 14-12 now amends
Commission rules to require the electronic filing of individual closed
captioning exemption requests in machine readable format, and further
revises Commission rules to require that comments on and oppositions to
such petitions also be filed electronically in machine readable format.
Pursuant to Sec. 79.1(f)(7) of the Commission's rules, however, any
comment on or opposition to the petition, and any reply, must also be
served on the other party and must include a certification that the
filing was served on the other party.
62. Correction to 47 CFR 79.1(i)(3) of the Commission's rules. The
email address in Sec. 79.1(i)(3) of the Commission's rules that is
provided for VPDs to submit contact information for closed captioning
concerns and complaints is inaccurate. The correct address is
CLOSEDCAPTIONING_POC@fcc.gov. The Code of Federal Regulations (CFR)
will be amended accordingly.
Declaratory Ruling
63. Mixed Language Programming--Bilingual English-Spanish Language
Programming. The Commission confirms that bilingual English-Spanish
programs are subject to the same obligations with respect to the amount
of required captioned programming as programming that is entirely in
English or entirely in Spanish. (The Commission notes, however, that it
would not consider a program to be bilingual if it has just a few lines
of dialogue in the program's less predominant language.) Specifically,
all new bilingual English-Spanish programming must be closed captioned,
and 75 percent of pre-rule bilingual English-Spanish programming must
be closed captioned in their respective languages at this time.
64. Other Language Programming. Section 79.1(d)(3) of the
Commission's rules exempts from the closed captioning requirements ``.
. . programming for which the audio is in a language other than English
or Spanish, except that scripted programming that can be captioned
using the `electronic news room' technique is not exempt.'' The
Commission confirms that programs that are in neither English nor
Spanish but contain small amounts or ``snippets'' of English or Spanish
words that account for only a small percentage of these programs, are
also governed by Sec. 79.1(d)(3) of its rules and need not to be
captioned. The Commission reminds programmers and distributors,
however, that Sec. 79.1(d)(3) of its rules requires the use of ENT for
closed captioning in instances where scripted programming would make
this possible.
65. Providing VPD Contact Information Where VPD Is Exempt from
Certain Requirements. The Commission clarifies that Sec. 79.1(i) of
its rules require all VPDs, even if they are exempt from certain closed
captioning rules, to make contact information available to consumers
and the Commission for the handling of immediate concerns and written
complaints about closed captioning. Because all VPDs, including those
that are exempt from certain captioning rules, are nevertheless
required to provide captioning pursuant to the pass-through rule, all
VPDs are subject to the obligation to receive and respond to
complaints.
66. Obligation to Caption ``On Demand'' Video Programming. The
Commission confirms that all ``on demand'' programming not subject to
an exemption must comply with the relevant captioning requirements for
new and pre-rule programming. More specifically, to the extent that
``on demand'' programming that airs today is ``new programming,'' it
must be captioned unless it otherwise qualifies for an exemption under
its rules. To the extent it is pre-rule programming, it must comply
with the Commission's pre-rule 75 percent benchmark.
67. Application of Closed Captioning Requirements to LPTV Stations.
In the 1997 Closed Captioning Report and Order, the Commission declined
to adopt a specific exemption for low power television (LPTV) stations,
and included within the definition of VPD, ``[a]ny broadcast station
licensed by the Commission.'' Because the 1997 Closed Captioning Report
and Order makes clear the Commission's intent to require closed
captioning of non-exempt programming on all television stations,
including LPTV stations, the Commission reminds LPTV stations that they
must comply with Part 79 of its rules.
Final Regulatory Flexibility Analysis
68. Initial Regulatory Flexibility Analyses (IRFAs) were
incorporated in the Notices of Proposed Rulemaking (NPRMs) in the 2005
Closed Captioning NPRM and the 2008 Closed Captioning Decision in this
proceeding. 5 U.S.C. 603. The Commission sought written public comment
on the proposals in the two NPRMs, including comment on the two IRFAs.
The Commission received one comment on the IRFA incorporated in the
2005 Closed Captioning NPRM, as discussed below. No comments were
received on the IRFA incorporated in the 2008 Closed Captioning
Decision. This Final Regulatory Flexibility Analysis (FRFA) conforms to
the RFA. This Report and Order makes certain modifications to the
closed captioning rules after consideration of the comments and reply
comments received in response 2005 Closed Captioning NPRM, the 2008
Closed Captioning Decision, and the 2010 Refresh Public Notice.
69. In document FCC 14-12, the Commission adopts rules governing
non-technical quality standards for closed captioning; Best Practices
for video programmers, captioning vendors and captioners designed to
ensure high quality closed captioning; certifications that VPDs must
obtain from video programmers attesting to video programmers'
compliance with the captioning quality standards or video programmer
Best Practices or that the video programmer is exempt from the closed
captioning rules; enhanced requirements for the use of ENT and a
compliance ladder process for broadcasters that follow these practices;
VPD monitoring and maintenance of equipment and signal transmissions
and technical equipment checks to ensure greater technical compliance;
maintenance of records of such monitoring, maintenance, and technical
equipment checks; applicability of the $3 million exemption to
multicast program streams; and electronic filing of economically
burdensome exemption requests. These modifications to the closed
captioning rules will serve the public interest by improving the
availability and quality of closed captioning and making it easier for
the public to learn whether a petition for exemption from the closed
captioning rules has been filed.
70. The Commission notes that VPDs are the entities directly
responsible for
[[Page 17922]]
compliance with closed captioning rules, and may air programming that
is not captioned only if the programming is not subject to a captioning
benchmark or is exempt from the rules pursuant to Sec. 79.1(d) or
Sec. 79.1(f) of the Commission's rules. Even with regard to
programming that is not produced by a VPD, the VPD is responsible for
ensuring that the program owner has certified that it or its
programming is exempt from the closed captioning rules. Although closed
captioning companies play a vital role in the closed captioning regime,
they are not the entities that are directly affected by the
Commission's requirements that video programming be captioned, because
they are not the entities ultimately responsible for compliance with
the closed captioning rules. The IRFA included all multichannel video
programming distributors (MVPDs) and broadcasters; these are the
entities that are ultimately responsible for closed captioning. In
addition to captioners, program owners and producers that are not the
video programming distributors were also omitted from the IRFA, for the
same reason--they are merely indirectly affected by the rules and are
not ultimately responsible for compliance with the rules. However, in
order to better inform the public about its actions and to create a
more complete record, the Commission is including captioners and video
programming producers in this FRFA.
71. The RFA directs the Commission to provide a description of and,
where feasible, an estimate of the number of small entities that will
be affected by the rules. The RFA generally defines the term ``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 SBA.
72. Small Businesses, Small Organizations, and Small Governmental
Jurisdictions. As of 2009, small businesses represented 99.9% of the
27.5 million businesses in the United States, according to the SBA.
Additionally, a ``small organization'' is generally ``any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.'' Nationwide, as of 2007, there were
approximately 1,621,315 small organizations. Finally, the term ``small
governmental jurisdiction'' is defined generally as ``governments of
cities, counties, towns, townships, villages, school districts, or
special districts, with a population of less than fifty thousand.''
Census Bureau data for 2007 indicate that there were 89,527
governmental jurisdictions in the United States. The Commission
estimates that, of this total, as many as 88,761 entities may qualify
as ``small governmental jurisdictions.''
73. Cable Television Distribution Services. These services have
been included within the broad economic census category of Wired
Telecommunications Carriers. The SBA has developed a small business
size standard for this category, which is all such firms having 1,500
or fewer employees. According to data from the U.S. Census Bureau for
the year 2007, there were 3,188 Wired Telecommunications Carrier firms
that operated for the entire year in 2007. Of these, 3,144 operated
with less than 1,000 employees, and 44 operated with 1,000 or more
employees.
74. Cable Companies and Systems. Under the Commission's rules, a
``small cable company'' is one serving 400,000 or fewer subscribers,
nationwide. 47 CFR 76.901(e) of the Commission's rules. Industry data
shows that there are 1,100 cable companies. Of this total, all but 10
incumbent cable companies are small. In addition, under the
Commission's rules, a ``small system'' is a cable system serving 15,000
or fewer subscribers. Current Commission records show 4,945 cable
systems nationwide. Of this total, 4,380 cable systems have less than
20,000 subscribers, and 565 systems have 20,000 subscribers or more.
75. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, contains a size standard for
small cable system operators, which is ``a cable operator that,
directly or through an affiliate, serves in the aggregate fewer than 1
percent of all subscribers in the United States and is not affiliated
with any entity or entities whose gross annual revenues in the
aggregate exceed $250,000,000.'' Based on available data, all but 10
incumbent cable operators are small under this size standard.
76. Direct Broadcast Satellite (DBS) Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic ``dish'' antenna
at the subscriber's location. Currently, only two entities, DIRECTV and
DISH Network provide DBS service, and neither company is a small
business.
77. Wireless Cable Systems--Broadband Radio Service and Educational
Broadband Service. Wireless cable systems use the Broadband Radio
Service (BRS) and Educational Broadband Service (EBS) to transmit video
programming to subscribers. In connection with the 1996 BRS auction,
the Commission established a small business size standard as an entity
that had annual average gross revenues of no more than $40 million in
the previous three calendar years. Of the 67 auction winners, 61 met
the definition of a small business, and of these 61 winners, 48 remain
small business licensees. In addition, there are approximately 392
incumbent BRS licensees that are considered small entities.
Accordingly, there are currently approximately 440 BRS licensees that
are defined as small businesses under either the SBA or the
Commission's rules. In 2009, the Commission conducted Auction 86 for
the sale of 78 BRS licenses, and established three categories of small
businesses: (i) A bidder with attributed average annual gross revenues
that exceed $15 million and do not exceed $40 million for the preceding
three years is a small business; (ii) a bidder with attributed average
annual gross revenues that exceed $3 million and do not exceed $15
million for the preceding three years is a very small business; and
(iii) a bidder with attributed average annual gross revenues that do
not exceed $3 million for the preceding three years is an entrepreneur
Of the 10 winning bidders, two bidders that claimed small business
status won four licenses; one bidder that claimed very small business
status won three licenses; and two bidders that claimed entrepreneur
status won six licenses.
78. In addition, the SBA's placement of Cable Television
Distribution Services in the category of Wired Telecommunications
Carriers is applicable to cable-based Educational Broadcasting
Services. The SBA has developed a small business size standard for
Wired Telecommunication Carriers, which is all such businesses having
1,500 or fewer employees. According to Census Bureau data for 2007,
there were 3,188 Wired Telecommunications Carrier firms that operated
for the entire year in 2007. Of these, 3,144 operated with less than
1,000 employees, and 44 operated with 1,000 or more employees. In
addition to Census Bureau data, the Commission's internal records
indicate that as of September 2012, there are 2,239 active EBS
licenses. The Commission estimates that of these 2,239 licenses,
[[Page 17923]]
the majority are held by non-profit educational institutions and school
districts, which are by statute defined as small businesses.
79. Open Video Services. Because OVS operators provide subscription
services, OVS falls within the SBA small business size standard
covering cable services, which is Wired Telecommunications Carriers.
The SBA has developed a small business size standard for this category,
which is all such firms having 1,500 or fewer employees. According to
U.S. Census data for 2007, there were 3,188 firms that in 2007 were
Wired Telecommunications Carriers. Of these, 3,144 operated with less
than 1,000 employees, and 44 operated with 1,000 or more employees.
However, as to the latter 44 there is no data available that shows how
many operated with more than 1,500 employees.
80. Television Broadcasting. The SBA defines a television
broadcasting station as a small business if such station has no more
than $35.5 million in annual receipts. The Commission has estimated the
number of licensed full power commercial television stations to be
1,388. According to U.S. Census Bureau data for 2007, there were 2,076
television broadcasting establishments in 2007. Of these, 1,515
establishments had receipts under $10 million, and 561 had receipts of
$10 million or more. The Commission notes, however, that, in assessing
whether a business concern qualifies as small under the above
definition, business control affiliations must be included. Because
many of these stations may be held by large group owners, and the
revenue figures on which the Commission's estimate is based does not
include or aggregate revenues from control affiliates, its estimate
likely overstates the number of small entities that might be affected
by its action.
81. The Commission has estimated the number of licensed
noncommercial educational (NCE) full power television stations to be
396. The Commission does not compile and otherwise does not have access
to information on the revenue of NCE stations that would permit it to
determine how many such stations would qualify as small entities. There
are also 428 Class A television stations and 1,986 low power television
stations (LPTV). Given the nature of these services, the Commission
will presume that all Class A television and LPTV licensees qualify as
small entities under the SBA definition.
82. In addition, an element of the definition of ``small business''
is that the entity not be dominant in its field of operation. The
Commission is unable at this time to define or quantify the criteria
that would establish whether a specific television station is dominant
in its field of operation. Accordingly, the estimate of small
businesses to which rules may apply do not exclude any television
station from the definition of a small business on this basis and is
therefore over-inclusive to that extent. Also as noted, an additional
element of the definition of ``small business'' is that the entity must
be independently owned and operated. The Commission notes that it is
difficult at times to assess these criteria in the context of media
entities, and its estimates of small businesses to which they apply may
be over-inclusive to this extent.
83. Incumbent Local Exchange Carriers (ILECs). Neither the
Commission nor the SBA has developed a small business size standard
specifically for ILECs. The appropriate size standard under SBA rules
is for the category Wired Telecommunications Carriers. Under that size
standard, such a business is small if it has 1,500 or fewer employees
and ``is not dominant in its field of operation.'' The SBA's Office of
Advocacy contends that, for RFA purposes, small ILECs are not dominant
in their field of operation because any such dominance is not
``national'' in scope. The Commission has therefore included small
ILECs in this RFA analysis, although the Commission emphasizes that
this RFA action has no effect on Commission analyses and determinations
in other, non-RFA contexts.
84. According to Census Bureau data for 2007, there were 3,188
firms in this category that operated for the entire year. Of this
total, 3,144 had employment of less than 1000 employees, and 44 firms
had had employment of 1,000 or more. According to Commission data,
1,307 carriers have reported that they are engaged in the provision of
ILEC services. Of these 1,307 carriers, an estimated 1,006 have 1,500
or fewer employees and 301 have more than 1,500 employees.
85. Competitive Local Exchange Carriers (CLECs), Competitive Access
Providers (CAPs), Shared-Tenant Service Providers, and Other Local
Service Providers. Neither the Commission nor the SBA has developed a
small business size standard specifically for these service providers.
The appropriate size standard under SBA rules is for the category Wired
Telecommunications Carriers. Under that size standard, such a business
is small if it has 1,500 or fewer employees. According to Census Bureau
data for 2007, there were 3,188 firms in this category that operated
for the entire year. Of this total, 3,144 had employment of less than
1000 employees, and 44 firms had had employment of 1,000 employees or
more. According to Commission data, 1,442 carriers reported that they
were engaged in the provision of either CLEC services or CAP services.
Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer
employees and 186 have more than 1,500 employees. In addition, 17
carriers have reported that they are Shared-Tenant Service Providers,
and all 17 are estimated to have 1,500 or fewer employees. Seventy-two
carriers have reported that they are Other Local Service Providers, and
of the 72, 70 have 1,500 or fewer employees and 2 have more than 1,500
employees.
86. Electric Power Distribution Companies. These entities can
provide video services over power lines (BPL). The SBA has developed a
small business size standard for this category, which is all such firms
having 1,000 or fewer employees. Census Bureau data for 2007 show that
there were 1,174 firms that operated for the entire year in this
category. Of these firms, 50 had 1,000 employees or more, and 1,124 had
fewer than 1,000 employees.
87. Cable and Other Subscription Programming. These entities may be
indirectly affected by the Commission's action. The size standard
established by the SBA for this business category is that annual
receipts of $35.5 million or less determine that a business is small.
According to 2007 Census Bureau data there were 396 firms that were
engaged in production of Cable and Other Subscription Programming. Of
these, 349 had annual receipts below $25 million, 12 had annual
receipts ranging from $25 million to $49,999,999, and 35 had annual
receipts of $50 million or more.
88. Motion Picture and Video Production. These entities may be
indirectly affected by its action. The size standard established by the
SBA for this business category is that annual receipts of $30 million
or less determine that a business is small. According to 2007 Census
Bureau data, there were 9,095 firms that were engaged in Motion Picture
and Video Production. Of these, 8,995 had annual receipts of less than
$25 million, 43 had annual receipts ranging from $25 million to
$49,999,999, and 57 had annual receipts of $50 million or more.
89. Internet Publishing and Broadcasting and Web Search Portals.
These entities may be directly or indirectly affected by the
Commission's action. The SBA has deemed an Internet
[[Page 17924]]
publisher or Internet broadcaster or the provider of a web search
portal on the Internet to be small if it has fewer than 500 employees.
Census Bureau data for 2007 show that there were 2,705 such firms that
operated that year. Of those 2,705 firms, 2,682 (approximately 99%) had
fewer than 500 employees, and 23 had 500 or more employees.
90. Closed Captioning Services. These entities may be directly or
indirectly affected by the Commission's action. The SBA has developed
two small business size standards that may be used for closed
captioning services, which track the economic census categories,
``Teleproduction and Other Postproduction Services'' and ``Court
Reporting and Stenotype Services.''
91. The relevant size standard for small businesses in
Teleproduction and Other Postproduction Services is annual revenue of
less than $29.5 million. Census Bureau data for 2007 indicate that
there were 1,605 firms that operated in this category for the entire
year. Of that number, 1,587 had annual receipts totaling less than $25
million, 9 had annual receipts ranging from $25 million to $49,999,999,
and 9 had annual receipts of $50 million or more.
92. The size standard for small businesses in Court Reporting and
Stenotype Services is annual revenue of less than $14 million. Census
Bureau data for 2007 show that there were 2,706 firms that operated for
the entire year. Of this total, 2,687 had annual receipts of under $10
million, 11 firms had annual receipts of $10 million to $24,999,999,
and 8 had annual receipts of $25 million or more.
93. In document FCC 14-12, the Commission takes the following
actions to improve the quality of closed captions:
(1) Establishes non-technical captioning quality standards (e.g.,
accuracy, synchronicity, program completeness and placement) to improve
the quality of closed captioning, but does not adopt any reporting
requirements along these lines.
(2) Adopts Best Practices for video programmers, captioning vendors
and captioners.
[cir] Video programmers that choose to follow the Best Practices
must include certain provisions in their agreements with captioning
vendors, including performance requirements comparable to the
captioning vendor Best Practices adopted in document FCC 14-12; follow
certain operational, monitoring, and remedial best practices; and make
certifications to VPDs that they comply with the video programmer Best
Practices widely available.
[cir] Captioning vendors and captioners following the Best
Practices or performance requirements comparable to the Best Practices
must take actions to improve the quality of closed captions, including
but not limited to actions regarding evaluation of captioning accuracy,
captioner screening, training, and supervision, and technical systems
and expertise.
[cir] There are no reporting requirements associated with the Best
Practices adopted in document FCC 14-12.
(3) Requires VPDs to make best efforts obtain certifications from
the video programmers from which they receive programming attesting
that the video programmers (1) comply with the captioning quality
standards, (2) adhere to the video programmer Best Practices, or (3)
are exempt from the closed captioning rules under one or more properly
attained and specified exemptions.
[cir] VPDs are not required to report to the Commission regarding
their efforts to obtain certifications from video programmers.
[cir] However, if a video programmer does not provide either of the
certifications noted above, the VPD must report the non-certifying
programmer to the Commission.
(4) Requires broadcasters that use ENT to follow certain practices
in order to be deemed in compliance with the Commission's rules
requiring captioning of live programming.
(5) Adopts a compliance ladder that broadcasters following these
ENT practices may use in the event of a Commission inquiry or
investigation.
[cir] The compliance ladder calls for broadcasters to respond to
notifications of noncompliance within 30 days by describing corrective
measures. If a pattern or trend of noncompliance continues, the
compliance ladder calls for broadcasters to respond to a subsequent
notification of noncompliance within 30 days by setting forth an action
plan describing specific measures it will take to bring the station's
ENT performance into compliance with the Commission's regulations
regarding ENT. In addition, the station shall be required to conduct
spot checks of its ENT performance and report to the Commission on the
results of such action plan and spot checks 180 days after submission
of such action plan. If, after the date for submission of such report
on the results of an action plan, the pattern or trend of noncompliance
continues, the Commission will then consider, through its Enforcement
Bureau, appropriate enforcement action.
(6) Requires broadcasters to create a report on their experiences
using these ENT practices within one year of the implementation of
these practices.
[cir] Such report shall be prepared in consultation with Consumer
Groups and may be prepared by the National Association of Broadcasters
(NAB) on behalf of the affected broadcasters.
(7) Specifies that each multicast program stream of a digital
television station be considered separately for the purpose of the
captioning exemption for channels producing revenues of less than $3
million, but does not adopt any reporting requirements along these
lines.
(8) Requires VPDs to monitor and maintain their equipment and data
streams and perform technical equipment checks to ensure greater
technical compliance, and to maintain records of such monitoring,
maintenance, and technical equipment checks for at least two years, but
does not adopt any reporting requirements in this regard.
(9) Requires that petitions for exemption from the closed
captioning rules, as well as comments or oppositions to such petitions,
be filed electronically rather than on paper.
94. The RFA requires an agency to describe any significant,
specifically small business, alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): ``(1) The establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance and
reporting requirements under the rule for such small entities; (3) the
use of performance rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for such small
entities.''
95. In amending its closed captioning rules, the Commission
believes that it has minimized the effect on small entities while
making video programming more accessible to persons who are deaf and
hard of hearing. These efforts are consistent with the Congressional
goal of increasing the availability of captioned programming while
preserving the diversity of available programming. Consistent with its
conclusions in 1997, when the closed captioning rules were first
adopted, the Commission has limited the exemptions to the closed
captioning rules because it has determined that all VPDs are
technically capable of delivering captioning.
[[Page 17925]]
96. However, consistent with the RFA, several steps were taken to
minimize the impact on small entities. The captioning quality standards
adopted in the document FCC 14-12 are performance-orientated and avoid
mandating the use of particular technologies. In addition, because the
captioning quality standards are qualitative rather than quantitative,
they afford the industry, including small entities, flexibility when
complying and do not requiring monitoring of every program on every
channel at all times. The captioning quality standards also take into
consideration the extent to which compliance with the standards can be
achieved for various types of programming, further enhancing the
flexibility provided to the industry, including small entities, when
complying with the standards. Moreover, the record in this proceeding
shows that many entities already have undertaken practices to ensure
caption quality, thereby minimizing any additional costs imposed by the
new captioning quality standards.
97. Additionally, although document FCC 14-12 places the obligation
to ensure compliance with the captioning quality standards on VPDs,
VPDs can do so by making best efforts to obtain certifications from the
video programmers from which they receive programming attesting that
the video programmer (1) complies with the captioning quality
standards, (2) adheres to the video programmer Best Practices, or (3)
is exempt from the closed captioning rules under one or more properly
attained and specified exemptions. The certification approach adopted
by Document FCC 14-12 imposes only a minimal burden on VPDs, including
small entities. The Commission permits the use of widely available
certifications for this purpose, to obviate the need for individual
contractual certifications, thus greatly reducing the burden on VPDs.
Use of widely available certifications generally reduces the burden on
small VPDs, who will generally rely upon widely available
certifications arranged by the larger VPDs for programming that is
nationwide or regional. In addition, VPDs that located a programmer's
certification on the programmer's Web site or other widely available
location used for the purpose of posting certification will be deemed
in compliance with the best efforts obligation even if the VPD did not
supply prior notification of the need for this certification to such
programmer. While the Order requires VPDs to report to the Commission
those video programmers whose programming the VPD carries who do not
provide the certification noted above, this requirement is less
burdensome to VPDs than alternatives such as having VPDs bear the risk
of substandard caption quality of programming from video programmers
who refuse to provide the certification.
98. The certification approach and Best Practices adopted by
document FCC 14-12 may also impose additional compliance obligations on
video programmers, including small entities, that elect to certify to
compliance with either the standards or the Best Practices because they
may be required to implement practices and incur some additional costs
to ensure that the captioning they provide meets the Commission's
caption quality standards or Best Practices. The Best Practices may
also impose additional compliance obligations on captioning vendors and
captioners, including small entities. Nevertheless, the Commission
believes the overall burden on video programmers that choose to certify
and on captioning vendors and captioners will be minimal for several
reasons. First, the Best Practices are voluntary. Document FCC 14-12
allows video programmers the choice between certifying to compliance
with the caption quality standards or Best Practices. Video programmers
that do not want to follow the video programmer Best Practices can
instead certify that they comply with the captioning quality standards.
Second, the Best Practices provide video programmers, captioning
vendors, and captioners with flexibility in establishing performance
requirements designed to promote the creation of high quality closed
captions for video programming by requiring practices comparable, but
not necessarily identical, to the captioning vendor Best Practices.
Third, the overall cost burden on video programmers that choose to
certify will be relatively minimal, as demonstrated by the record,
which reflects that caption prices have ``fallen dramatically'' since
the Commission first implemented its 1997 captioning rules. Fourth, as
noted above, document FCC 14-12 permits video programmers to provide
widely available certifications, rather than having to provide
individual certifications to each requesting VPD, which will
substantially minimize the burden on video programmers choosing to
certify.
99. Document FCC 14-12 declines to extend the prohibition on ENT to
markets beyond the top 25. In declining to extend the prohibition on
ENT, the Commission has considered the burden that real-time captioning
would impose on broadcast stations in markets beyond the top 25,
including small businesses. However, document FCC 14-12 does require
broadcast stations that use ENT to follow certain Best Practices
designed to improve the quality of captions created using ENT. The ENT
Best Practices will impose minimal burdens on broadcasters because they
are generally achievable without additional cost and, for those
stations with older equipment, software upgrades necessary for
compliance with the ENT Best Practices are available for relatively
nominal cost. In addition, document FCC 14-12 adopts a compliance
ladder for determining compliance with the ENT Best Practices, offering
broadcast stations additional flexibility in complying with the
Commission's ENT requirements. Document FCC 14-12 does require
broadcast stations that rely on the ENT Best Practices to prepare and
submit to the Commission, within one year after the effective date of
the rules pertaining to ENT, a report on their experiences and the
extent to which they have been successful in providing full and equal
access to news programming. To minimize the burden on small entities,
document FCC 14-12 specifies that the report may be prepared by the NAB
jointly on behalf of the affected broadcasters.
100. Document FCC 14-12 reduces the captioning requirements for
television stations that multicast by extending the provision in Sec.
79.1(d)(12) of the Commission's rules, which exempts video programming
providers from closed captioning where the distributor's annual gross
revenues from the channel did not exceed $3 million for the previous
calendar year, to each programming stream of a multicast digital
television channel. Document FCC 14-12 does not disturb the existing
exemption in Sec. 79.1(d)(11) of the Commission's rules, which excuses
a video programming provider from spending more than 2 percent of its
annual gross revenues received from a channel on closed captioning.
Sections 79.1(f), 79.1(d)(11) and 79.1(d)(12) of the Commission's rules
are all intended to address the problems of small video programming
providers that are not in a position to devote significant resources
toward closed captioning by relieving small entities of any burdensome
obligation to provide closed captioning. The Sec. 79.1(f) mechanism in
particular allows the Commission to address the impact of these rules
on individual entities and grant exemptions to the rules to accommodate
individual circumstances.
[[Page 17926]]
101. Document FCC 14-12 declines to adopt any requirements for VPDs
to annually file reports or certifications with the Commission. By
declining to adopt reporting requirements, the Commission has taken
into consideration the burdens that reporting requirements would impose
on VPDs, including small businesses.
102. However, document FCC 14-12 does require VPDs to maintain
records of equipment monitoring and maintenance and technical equipment
checks. These recordkeeping requirements will impose minimal burdens on
VPDs because it is likely that many covered entities already keep such
records, and document FCC 14-12 does not mandate any specific format
for keeping records, providing covered entities with flexibility to
establish their own recordkeeping procedures. Furthermore, the
monitoring, maintenance, and technical equipment checks adopted in the
Order are performance-orientated and avoid mandating the use of
particular technologies or processes.
103. Document FCC 14-12 does modify the procedures for filing
exemption petitions with the Commission pursuant to Sec. 79.1(f) of
its rules by requiring that such petitions and responsive pleadings be
filed electronically rather than on paper. This procedure will make it
easier for VPDs to file such petitions and consumers to respond to such
petitions. Moreover, in the event any VPD or consumer finds it
burdensome to file electronically, such VPD or consumer may ask the
Commission for authorization to file on paper at the time it makes the
filing.
104. Federal Rules Which Duplicate, Overlap, or Conflict With, the
Commission's Proposals--None.
105. The Commission will send a copy of document FCC 14-12,
including a copy of the Final Regulatory Flexibility Certification, to
the Chief Counsel for Advocacy of the SBA.
Congressional Review Act
106. The Commission will send a copy of document FCC 14-12 in a
report to be sent to Congress and the Governmental Accountability
Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
Ordering Clauses
Pursuant to the authority contained in sections 4(i), 303(r) and
713 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
303(r) and 613, document FCC 14-12 is adopted and the Commission's
rules are amended.
Document FCC 14-12 shall be effective April 30, 2014, pursuant to 5
U.S.C. 553(d) and Sec. 1.427(a) of the Commission's rules, 47 CFR
1.427(a), unless otherwise noted.
The final rules contained in 47 CFR 79.1(c)(3), (j), and (k) shall
be effective upon publication in the Federal Register of a notice
announcing the approval by the Office of Management and Budget of the
modified information collection requirements under the Paperwork
Reduction Act of 1995 and an effective date of the rule amendment, and
such effective date shall be no sooner than January 15, 2015.
The final rules contained in 47 CFR 79.1(e)(11)(i) and (ii) shall
be effective June 30, 2014.
The final rules contained in 47 CFR 79.1(e)(11)(iii), (iv) and (v)
shall be effective upon publication in the Federal Register of a notice
announcing the approval by the Office of Management and Budget of the
modified information collection requirements under the Paperwork
Reduction Act of 1995 and an effective date of the rule amendment.
The Declaratory Ruling adopted herein became effective on February
24, 2014.
The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, shall send a copy of document FCC 14-12,
including the Final Regulatory Flexibility Certification, to the Chief
Counsel for advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 79
Individuals with disabilities, Reporting and recordkeeping
requirements, Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
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. 79.1 by revising the section heading and paragraphs (a),
(c), (d)(12), (e)(3), and adding paragraph (e)(11), revising paragraphs
(f)(4), (f)(7), and (i)(3), and adding paragraphs (j) and (k), to read
as follows:
Sec. 79.1 Closed captioning of televised video programming.
(a) Definitions. For purposes of this section the following
definitions shall apply:
(1) Captioning vendor. Any entity that is responsible for providing
captioning services to a video programmer.
(2) Closed captioning, or captioning. The visual display of the
audio portion of video programming pursuant to the technical
specifications set forth in this part.
(3) Live programming. Video programming that is shown on television
substantially simultaneously with its performance.
(4) Near-live programming. Video programming that is performed and
recorded less than 24 hours prior to the time it is first aired on
television.
(5) New programming. Video programming that is first published or
exhibited on or after January 1, 1998.
(i) Analog video programming that is first published or exhibited
on or after January 1, 1998.
(ii) Digital video programming that is first published or exhibited
on or after July 1, 2002.
(6) Non-exempt programming. Video programming that is not exempt
under paragraph (d) of this section and, accordingly, is subject to
closed captioning requirements set forth in this section.
(7) Prerecorded programming. Video programming that is not ``live''
or ``near-live''.
(8) Pre-rule programming. (i) Analog video programming that was
first published or exhibited before January 1, 1998.
(ii) Digital video programming that was first published or
exhibited before July 1, 2002.
(9) Video programmer. Any entity that provides video programming
that is intended for distribution to residential households including,
but not limited to, broadcast or nonbroadcast television networks and
the owners of such programming.
(10) Video programming. Programming provided by, or generally
considered comparable to programming provided by, a television
broadcast station that is distributed and exhibited for residential
use. Video programming includes advertisements of more than five
minutes in duration but does not include advertisements of five
minutes' duration or less.
(11) Video programming distributor. Any television broadcast
station licensed by the Commission and any multichannel video
programming distributor as defined in Sec. 76.1000(e) of this chapter,
and any other distributor of
[[Page 17927]]
video programming for residential reception that delivers such
programming directly to the home and is subject to the jurisdiction of
the Commission. An entity contracting for program distribution over a
video programming distributor that is itself exempt from captioning
that programming pursuant to paragraph (e)(9) of this section shall
itself be treated as a video programming distributor for purposes of
this section To the extent such video programming is not otherwise
exempt from captioning, the entity that contracts for its distribution
shall be required to comply with the closed captioning requirements of
this section.
(12) Video programming provider. Any video programming distributor
and any other entity that provides video programming that is intended
for distribution to residential households including, but not limited
to broadcast or nonbroadcast television network and the owners of such
programming.
* * * * *
(c) Obligation to pass through captions of already captioned
programs; obligation to maintain equipment and monitor for captions.
(1) All video programming distributors shall deliver all programming
received from the video programming owner or other origination source
containing closed captioning to receiving television households with
the original closed captioning data intact in a format that can be
recovered and displayed by decoders meeting the standards of this part
unless such programming is recaptioned or the captions are reformatted
by the programming distributor.
(2) Video programming distributors shall take any steps needed to
monitor and maintain their equipment and signal transmissions
associated with the transmission and distribution of closed captioning
to ensure that the captioning included with video programming reaches
the consumer intact. In any enforcement proceeding involving equipment
failure, the Commission will require video programming distributors to
demonstrate that they have monitored their equipment and signal
transmissions, have performed technical equipment checks, and have
promptly undertaken repairs as needed to ensure that equipment is
operational and in good working order.
(3) Each video programming distributor shall maintain records of
the video programming distributor's monitoring and maintenance
activities, which shall include, without limitation, information about
the video programming distributor's monitoring and maintenance of
equipment and signal transmissions to ensure the pass through and
delivery of closed captioning to viewers, and technical equipment
checks and other activities to ensure that captioning equipment and
other related equipment are maintained in good working order. Each
video programming distributor shall maintain such records for a minimum
of two years and shall submit such records to the Commission upon
request.
(d) * * *
(12) Channels/Streams producing revenues of under $3,000,000. No
video programming provider shall be required to expend any money to
caption any channel or stream of video programming producing annual
gross revenues of less than $3,000,000 during the previous calendar
year other than the obligation to pass through video programming closed
captioned when received pursuant to paragraph (c) of this section. For
the purposes of this paragraph, each programming stream on a multicast
digital television channel shall be considered separately for purposes
of the $3,000,000 revenue limit.
* * * * *
(e) * * *
(3) The major national broadcast television networks (i.e., ABC,
CBS, Fox and NBC), affiliates of these networks in the top 25
television markets as defined by Nielsen's Designated Market Areas
(DMAs) and national nonbroadcast networks serving at least 50% of all
homes subscribing to multichannel video programming services shall not
count electronic newsroom captioned programming towards compliance with
these rules. The live portions of noncommercial broadcasters'
fundraising activities that use automated software to create a
continuous captioned message will be considered captioned;
* * * * *
(11) Use of ``Electronic Newsroom Technique'' (ENT). (i) A
broadcast station that uses ENT to provide closed captioning for live
programming or programming originally transmitted live and that is not
subject to the current prohibition on the use of ENT in paragraph
(e)(3) of this section shall be deemed in compliance with the
Commission's rules requiring captioning of live programming or
programming originally transmitted live if it adheres to the following
procedures in the ordinary course of business:
(A) In-studio produced news, sports, weather, and entertainment
programming will be scripted.
(B) For weather interstitials where there may be multiple segments
within a news program, weather information explaining the visual
information on the screen and conveying forecast information will be
scripted, although the scripts may not precisely track the words used
on air.
(C) Pre-produced programming will be scripted (to the extent
technically feasible).
(D) If live interviews or live on-the scene or breaking news
segments are not scripted, stations will supplement them with crawls,
textual information, or other means (to the extent technically
feasible).
(E) The station will provide training to all news staff on
scripting for improving ENT.
(F) The station will appoint an ``ENT Coordinator'' accountable for
compliance.
(ii) Nothing in this paragraph (e)(11) shall relieve a broadcast
station of its obligations under Sec. 79.2 of this chapter regarding
the accessibility of programming providing emergency information.
(iii) Informal complaints. The Commission will forward an informal
complaint regarding captioning to a broadcast station that utilizes ENT
to provide captioning pursuant to the procedures set forth in paragraph
(e)(11)(i) of this section only if the informal complaint contains the
television channel number, network, or call sign, the name of the
subscription service, if relevant, the date and time of the captioning
problems, the name of the affected program, and a detailed and specific
description of the captioning problems, including the frequency and
type of problem.
(iv) Compliance. (A) Initial response to pattern or trend of
noncompliance. If the Commission notifies a broadcast station that the
Commission has identified a pattern or trend of possible noncompliance
by the station with this paragraph (e)(11), the station shall respond
to the Commission within 30 days regarding such possible noncompliance,
describing corrective measures taken, including those measures the
station may have undertaken in response to informal complaints and
inquiries from viewers.
(B) Corrective action plan. If, after the date for a broadcast
station to respond to a notification under paragraph (e)(11)(iv)(A) of
this section, the Commission subsequently notifies the broadcast
station that there is further evidence indicating a pattern or trend of
noncompliance with this paragraph (e)(11), the broadcast station shall
submit to the Commission, within 30
[[Page 17928]]
days of receiving such subsequent notification, an action plan
describing specific measures it will take to bring the station's ENT
performance into compliance with this paragraph (e)(11). In addition,
the station shall be required to conduct spot checks of its ENT
performance and report to the Commission on the results of such action
plan and spot checks 180 days after the submission of such action plan.
(C) Continued evidence of a pattern or trend of noncompliance. If,
after the date for submission of a report on the results of an action
plan and spot checks pursuant to paragraph (e)(11)(iv)(B) of this
section, the Commission finds continued evidence of a pattern or trend
of noncompliance, additional enforcement actions may be taken, which
may include admonishments, forfeitures, and other corrective actions,
including, but not limited to, requiring the station to cease using ENT
and to use real-time captioning for live programming.
(v) Progress report. No later than one year after the effective
date of this paragraph (e)(11), broadcast stations that adhere to the
procedures set forth in paragraph (e)(11)(i) shall jointly prepare and
submit to the Commission, in consultation with individuals who rely on
captions to watch television and organizations representing such
individuals, a report on their experiences with following such
procedures, and the extent to which they have been successful in
providing full and equal access to live programming.
(f) * * *
(4) A petition requesting an exemption based on the economically
burdensome standard, and all subsequent pleadings, shall be filed
electronically in accordance with Sec. 0.401(a)(1)(iii) of this
chapter.
* * * * *
(7) Comments or oppositions to the petition shall be filed
electronically and served on the petitioner and shall include a
certification that the petitioner was served with a copy. Replies to
comments or oppositions shall be filed electronically and served on the
commenting or opposing party and shall include a certification that the
commenting or opposing party was served with a copy. Comments or
oppositions and replies may be served upon a party, its attorney, or
other duly constituted agent by delivering or mailing a copy to the
last known address in accordance with Sec. 1.47 of this chapter or by
sending a copy to the email address last provided by the party, its
attorney, or other duly constituted agent.
* * * * *
(i) * * *
(3) Providing contact information to the Commission. Video
programming distributors shall file the contact information described
in this section with the Commission in one of the following ways:
Through a web form located on the FCC Web site; with the Chief of the
Disability Rights Office, Consumer and Governmental Affairs Bureau; or
by sending an email to CLOSEDCAPTIONING_POC@fcc.gov. Contact
information shall be available to consumers on the FCC Web site or by
telephone inquiry to the Commission's Consumer Center. Distributors
shall notify the Commission each time there is a change in any of this
required information within 10 business days.
(j) Captioning quality obligation; standards. (1) A video
programming distributor shall exercise best efforts to obtain a
certification from each video programmer from which the distributor
obtains programming stating:
(i) That the video programmer's programming satisfies the caption
quality standards of paragraph (j)(2) of this section;
(ii) That in the ordinary course of business, the video programmer
has adopted and follows the Best Practices set forth in paragraph
(k)(1) of this section; or
(iii) That the video programmer is exempt from the closed
captioning rules under one or more properly attained exemptions. For
programmers certifying exemption from the closed captioning rules, the
video programming distributor must obtain a certification from the
programmer that specifies the exact exemption that the programmer is
claiming. Video programming distributors may satisfy their best efforts
obligation by locating a programmer's certification on the programmer's
Web site or other widely available locations used for the purpose of
posting widely available certifications. If a video programming
distributor is unable to locate such certification on the programmer's
Web site or other widely available location used for the purpose of
posting such certification, the video programming distributor must
inform the video programmer in writing that it must make widely
available such certification within 30 days after receiving the written
request. If a video programmer does not make such certification widely
available within 30 days after receiving a written request, the video
programming distributor shall promptly submit a report to the
Commission identifying such non-certifying video programmer for the
purpose of being placed in a publicly available database. A video
programming distributor that meets each of the requirements of this
paragraph shall not be liable for violations of paragraphs (j)(2) and
(3) of this section to the extent that any such violations are outside
the control of the video programming distributor.
(2) Captioning quality standards. Closed captioning shall convey
the aural content of video programming in the original language (i.e.
English or Spanish) to individuals who are deaf and hard of hearing to
the same extent that the audio track conveys such content to
individuals who are able to hear. Captioning shall be accurate,
synchronous, complete, and appropriately placed as those terms are
defined herein.
(i) Accuracy. Captioning shall match the spoken words (or song
lyrics when provided on the audio track) in their original language
(English or Spanish), in the order spoken, without substituting words
for proper names and places, and without paraphrasing, except to the
extent that paraphrasing is necessary to resolve any time constraints.
Captions shall contain proper spelling (including appropriate
homophones), appropriate punctuation and capitalization, correct tense
and use of singular or plural forms, and accurate representation of
numbers with appropriate symbols or words. If slang or grammatical
errors are intentionally used in a program's dialogue, they shall be
mirrored in the captions. Captioning shall provide nonverbal
information that is not observable, such as the identity of speakers,
the existence of music (whether or not there are also lyrics to be
captioned), sound effects, and audience reaction, to the greatest
extent possible, given the nature of the program. Captions shall be
legible, with appropriate spacing between words for readability.
(ii) Synchronicity. Captioning shall coincide with the
corresponding spoken words and sounds to the greatest extent possible,
given the type of the programming. Captions shall begin to appear at
the time that the corresponding speech or sounds begin and end
approximately when the speech or sounds end. Captions shall be
displayed on the screen at a speed that permits them to be read by
viewers.
(iii) Completeness. Captioning shall run from the beginning to the
end of the program, to the fullest extent possible.
(iv) Placement. Captioning shall be viewable and shall not block
other important visual content on the screen,
[[Page 17929]]
including, but not limited to, character faces, featured text (e.g.,
weather or other news updates, graphics and credits), and other
information that is essential to understanding a program's content when
the closed captioning feature is activated. Caption font shall be sized
appropriately for legibility. Lines of caption shall not overlap one
another and captions shall be adequately positioned so that they do not
run off the edge of the video screen.
(3) Application of captioning quality standards. Captioning shall
meet the standards of paragraph (j)(2) of this section for accuracy,
synchronicity, completeness and placement, except for de minimis
captioning errors. In determining whether a captioning error is de
minimis, the Commission will consider the particular circumstances
presented, including the type of failure, the reason for the failure,
whether the failure was one-time or continuing, the degree to which the
program was understandable despite the errors, and the time frame
within which corrective action was taken to prevent such failures from
recurring. When applying such standards to live and near-live
programming, the Commission will also take into account, on a case-by-
case basis, the following factors:
(i) Accuracy. The overall accuracy or understandability of the
programming, the ability of the captions to convey the aural content of
the program in a manner equivalent to the aural track, and the extent
to which the captioning errors prevented viewers from having access to
the programming.
(ii) Synchronicity. The extent to which measures have been taken,
to the extent technically feasible, to keep any delay in the
presentation of captions to a minimum, consistent with an accurate
presentation of what is being said, so that the time between when words
are spoken or sounds occur and captions appear does not interfere with
the ability of viewers to follow the program.
(iii) Completeness. The delays inherent in sending captioning
transmissions on live programs, and whether steps have been taken, to
the extent technically feasible, to minimize the lag between the time a
program's audio is heard and the time that captions appear, so that
captions are not cut off when the program transitions to a commercial
or a subsequent program.
(iv) Placement. The type and nature of the programming and its
susceptibility to unintentional blocking by captions.
(4) Complaints. The Commission will forward an informal complaint
regarding captioning quality to a video programming distributor only if
the informal complaint contains the channel number, channel name,
network, or call sign; the name of the multichannel video program
distributor, if applicable; the date and time when the captioning
problem occurred; the name of the program with the captioning problem;
and a detailed description of the captioning problem, including
specifics about the frequency and type of problem (e.g., garbling,
captions cut off at certain times or on certain days, and accuracy
problems).
(k) Captioning Best Practices. (1) Video Programmer Best Practices.
Video programmers adopting Best Practices will adhere to the following
practices.
(i) Agreements with captioning services. Video programmers adopting
Best Practices will take the following actions to promote the provision
of high quality television closed captions through new or renewed
agreements with captioning vendors.
(A) Performance requirements. Include performance requirements
designed to promote the creation of high quality closed captions for
video programming, comparable to those described in paragraphs (k)(2),
(k)(3) and (k)(4) of this section.
(B) Verification. Include a means of verifying compliance with such
performance requirements, such as through periodic spot checks of
captioned programming.
(C) Training. Include provisions designed to ensure that captioning
vendors' employees and contractors who provide caption services have
received appropriate training and that there is oversight of individual
captioners' performance.
(ii) Operational Best Practices. Video programmers adopting Best
Practices will take the following actions to promote delivery of high
quality television captions through improved operations.
(A) Preparation materials. To the extent available, provide
captioning vendors with advance access to preparation materials such as
show scripts, lists of proper names (people and places), and song
lyrics used in the program, as well as to any dress rehearsal or
rundown that is available and relevant.
(B) Quality audio. Make commercially reasonable efforts to provide
captioning vendors with access to a high quality program audio signal
to promote accurate transcription and minimize latency.
(C) Captioning for prerecorded programming. (1) The presumption is
that pre-recorded programs, excluding programs that initially aired
with real-time captions, will be captioned offline before air except
when, in the exercise of a programmer's commercially reasonable
judgment, circumstances require real-time or live display captioning.
Examples of commercially reasonable exceptions may include instances
when:
(i) A programmer's production is completed too close to initial air
time be captioned offline or may require editorial changes up to air
time (e.g., news content, reality shows),
(ii) A program is delivered late,
(iii) There are technical problems with the caption file,
(iv) Last minute changes must be made to later network feeds (e.g.,
when shown in a later time zone) due to unforeseen circumstances,
(v) There are proprietary or confidentiality considerations, or
(vi) Video programming networks or channels with a high proportion
of live or topical time-sensitive programming, but also some pre-
recorded programs, use real-time captioning for all content (including
pre-recorded programs) to allow for immediate captioning of events or
breaking news stories that interrupt scheduled programming.
(2) The video programmer will make reasonable efforts to employ
live display captioning instead of real-time captioning for prerecorded
programs if the complete program can be delivered to the caption
service provider in sufficient time prior to airing.
(iii) Monitoring and Remedial Best Practices. Video programmers
adopting Best Practices will take the following actions aimed at
improving prompt identification and remediation of captioning errors
when they occur.
(A) Pre-air monitoring of offline captions. As part of the overall
pre-air quality control process for television programs, conduct
periodic checks of offline captions on prerecorded programs to
determine the presence of captions.
(B) Real-time monitoring of captions. Monitor television program
streams at point of origination (e.g., monitors located at the network
master control point or electronic monitoring) to determine presence of
captions.
(C) Programmer and captioning vendor contacts. Provide to
captioning vendors appropriate staff contacts who can assist in
resolving captioning issues. Make captioning vendor contact information
readily available in master control or other centralized location, and
contact captioning vendor promptly if there is a caption loss or
obvious compromise of captions.
(D) Recording of captioning issues. Maintain a log of reported
captioning issues, including date, time of day, program title, and
description of the
[[Page 17930]]
issue. Beginning one year after the effective date of the captioning
quality standards, such log should reflect reported captioning issues
from the prior year.
(E) Troubleshooting protocol. Develop procedures for
troubleshooting consumer captioning complaints within the distribution
chain, including identifying relevant points of contact, and work to
promptly resolve captioning issues, if possible.
(F) Accuracy spot checks. Within 30 days following notification of
a pattern or trend of complaints from the Commission, conduct spot
checks of television program captions to assess caption quality and
address any ongoing concerns.
(iv) Certification procedures for video programmers. Video
programmers adopting Best Practices will certify to video programming
distributors that they adhere to Best Practices for video programmers
and will make such certifications widely available to video programming
distributors, for example, by posting on affiliate Web sites.
(2) Real-Time (Live) Captioning Vendors Best Practices. (i) Create
and use metrics to assess accuracy, synchronicity, completeness, and
placement of real-time captions.
(ii) Establish minimum acceptable standards based upon those
metrics while striving to regularly exceed those minimum standards.
(iii) Perform frequent and regular evaluations and sample audits to
ensure those standards are maintained.
(iv) Consider ``accuracy'' of captions to be a measurement of the
percentage of correct words out of total words in the program,
calculated by subtracting number of errors from total number of words
in the program, dividing that number by total number of words in the
program and converting that number to a percentage. For example, 7,000
total words in the program minus 70 errors equals 6,930 correct words
captioned, divided by 7,000 total words in the program equals 0.99 or
99% accuracy.
(v) Consider, at a minimum, mistranslated words, incorrect words,
misspelled words, missing words, and incorrect punctuation that impedes
comprehension and misinformation as errors.
(A) Captions are written in a near-as-verbatim style as possible,
minimizing paraphrasing.
(B) The intended message of the spoken dialogue is conveyed in the
associated captions in a clear and comprehensive manner.
(C) Music lyrics should accompany artist performances.
(vi) Consider synchronicity of captions to be a measurement of lag
between the spoken word supplied by the program origination point and
when captions are received at the same program origination point.
(vii) Ensure placement of captions on screen to avoid obscuring on-
screen information and graphics (e.g., sports coverage).
(viii) Ensure proper screening, training, supervision, and
evaluation of captioners by experienced and qualified real-time
captioning experts.
(ix) Ensure there is an infrastructure that provides technical and
other support to video programmers and captioners at all times.
(x) Ensure that captioners are qualified for the type and
difficulty level of the programs to which they are assigned.
(xi) Utilize a system that verifies captioners are prepared and in
position prior to a scheduled assignment.
(xii) Ensure that technical systems are functional and allow for
fastest possible delivery of caption data and that failover systems are
in place to prevent service interruptions.
(xiii) Regularly review discrepancy reports in order to correct
issues and avoid future issues.
(xiv) Respond in a timely manner to concerns raised by video
programmers or viewers.
(xv) Alert video programmers immediately if a technical issue needs
to be addressed on their end.
(xvi) Inform video programmers of appropriate use of real-time
captioning (i.e., for live and near-live programming, and not for
prerecorded programming) and what is necessary to produce quality
captions, including technical requirements and the need for preparatory
materials.
(xvii) For better coordination for ensuring high quality captions
and for addressing problems as they arise, understand the roles and
responsibilities of other stakeholders in the closed-captioning
process, including broadcasters, producers, equipment manufacturers,
regulators, and viewers, and keep abreast of issues and developments in
those sectors.
(xviii) Ensure that all contracted captioners adhere to the Real-
Time Captioners Best Practices contained in paragraph (k)(4) of this
section.
(3) Real-Time Captioners Best Practices. (i) Caption as accurately,
synchronously, completely, and appropriately placed as possible, given
the nature of the programming.
(ii) Ensure they are equipped with a failover plan to minimize
caption interruption due to captioner or equipment malfunction.
(iii) Be equipped with reliable, high speed Internet.
(iv) Be equipped with multiple telephone lines.
(v) Prepare as thoroughly as possible for each program.
(vi) File thorough discrepancy reports with the captioning vendor
in a timely manner.
(vii) To the extent possible given the circumstances of the
program, ensure that real-time captions are complete when the program
ends.
(viii) Engage the command that allows captions to pass at
commercials and conclusion of broadcasts.
(ix) Monitor captions to allow for immediate correction of errors
and prevention of similar errors appearing or repeating in captions.
(x) Perform frequent and regular self-evaluations.
(xi) Perform regular dictionary maintenance.
(xii) Keep captioning equipment in good working order and update
software and equipment as needed.
(xiii) Possess the technical skills to troubleshoot technical
issues.
(xiv) Keep abreast of current events and topics that they caption.
(4) Offline (Prerecorded) Captioning Vendors Best Practices. (i)
Ensure offline captions are verbatim.
(ii) Ensure offline captions are error-free.
(iii) Ensure offline captions are punctuated correctly and in a
manner that facilitates comprehension.
(iv) Ensure offline captions are synchronized with the audio of the
program.
(v) Ensure offline captions are displayed with enough time to be
read completely and that they do not obscure the visual content.
(vii) Ensure offline captioning is a complete textual
representation of the audio, including speaker identification and non-
speech information.
(viii) Create or designate a manual of style to be applied in an
effort to achieve uniformity in presentation.
(ix) Employ frequent and regular evaluations to ensure standards
are maintained.
(x) Inform video programmers of appropriate uses of real-time and
offline captioning and strive to provide offline captioning for
prerecorded programming.
(A) Encourage use of offline captioning for live and near-live
programming that originally aired on television and re-feeds at a later
time.
(B) Encourage use of offline captioning for all original and
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[[Page 17931]]
prerecorded programming completed well in advance of its distribution
on television.
(xi) For better coordination for ensuring high quality captions and
for addressing problems as they arise, understand the roles and
responsibilities of other stakeholders in the closed-captioning
process, including video program distributors, video programmers,
producers, equipment manufacturers, regulators, and viewers, and keep
abreast of issues and developments in those sectors.
[FR Doc. 2014-06754 Filed 3-28-14; 8:45 am]
BILLING CODE 6712-01-P