Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010; Closed Captioning of Internet Protocol-Delivered Video Clips, 45354-45371 [2014-18203]
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Federal Register / Vol. 79, No. 150 / Tuesday, August 5, 2014 / Rules and Regulations
(e) EPA approves the maintenance
plan for the Delaware portion of the
Philadelphia-Wilmington, PA–NJ–DE
PM2.5 Nonattainment Area (New Castle
County) for the 2006 24-hour fine
particulate matter (PM2.5) national
ambient air quality standard (NAAQS)
submitted by the Secretary of the
Delaware Department of Natural
Resources and Environmental Control
on December 12, 2012. The maintenance
plans include motor vehicle emission
budgets in tons per year (tpy) used for
transportation conformity purposes for
New Castle County, Delaware.
NEW CASTLE COUNTY MOTOR VEHICLE EMISSIONS BUDGETS FOR THE 2006 24-HOUR PM2.5 NAAQS
[tpy]
Type of control strategy SIP
Year
Maintenance Plan ...........................................
2017 Interim Budget .......................................
2025 Final Budget ..........................................
6,273
6,273
Authority: 42 U.S.C. 7401 et seq.
PART 81—DESIGNATION OF AREAS
FOR AIR QUALITY PLANNING
PURPOSES
6. In § 81.308, the tables for
Delaware—1997 Annual PM2.5 NAAQS
[Primary and secondary] and
Delaware—2006 24-Hour PM2.5 NAAQS
[Primary and secondary] are amended
5. The authority citation for Part 81
continues to read as follows:
199
199
9/4/2014
by removing footnote number 2 in each
table and revising the entries for the
Philadelphia-Wilmington, PA–NJ–DE
Area to read as follows:
■
■
Effective date
of SIP
approval
PM2.5
NOX
§ 81.308
*
Delaware.
*
*
*
*
DELAWARE—1997 ANNUAL PM2.5 NAAQS
[Primary and secondary]
Designation a
Classification
Designated area
Date 1
Philadelphia-Wilmington, PA–NJ–DE: New Castle County ...............................
*
*
*
Type
8/5/2014
*
Date
Type
Attainment ....
........................
........................
*
*
*
a Includes
1 This
*
Indian Country located in each county or area, except as otherwise specified.
date is 90 days after January 5, 2005, unless otherwise noted.
*
*
*
*
DELAWARE—2006 24-HOUR PM2.5 NAAQS
[Primary and secondary]
Designation a
Classification
Designated area
Date 1
Philadelphia-Wilmington, PA–NJ–DE: New Castle County ...............................
*
*
*
Type
8/5/2014
*
Date
Type
Attainment ....
........................
........................
*
*
*
a Includes
1 This
*
*
Indian Country located in each county or area, except as otherwise specified.
date is 30 days after November 13, 2009, unless otherwise noted.
*
*
*
[FR Doc. 2014–18205 Filed 8–4–14; 8:45 am]
FEDERAL COMMUNICATIONS
COMMISSION
BILLING CODE 6560–50–P
47 CFR Part 79
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[MB Docket No. 11–154; FCC 14–97]
Closed Captioning of Internet ProtocolDelivered Video Programming:
Implementation of the Twenty-First
Century Communications and Video
Accessibility Act of 2010; Closed
Captioning of Internet ProtocolDelivered Video Clips
Federal Communications
Commission.
AGENCY:
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ACTION:
Final rule.
In this document, as part of
the Commission’s continued
implementation of the Twenty-First
Century Communications and Video
Accessibility Act of 2010 (‘‘CVAA’’), it
concludes that clips of video
programming covered by the statute
must be captioned when delivered using
Internet protocol (‘‘IP’’). The
Commission adopts rules governing
such captioning and sets out a schedule
of deadlines. These requirements will
apply where a video programming
distributor or provider posts on its Web
SUMMARY:
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Federal Register / Vol. 79, No. 150 / Tuesday, August 5, 2014 / Rules and Regulations
site or application a video clip of video
programming that it published or
exhibited on television with captions on
or after the applicable compliance
deadline.
DATES:
Effective September 4, 2014.
For
additional information on this
proceeding, contact Diana Sokolow,
Diana.Sokolow@fcc.gov, of the Policy
Division, Media Bureau, (202) 418–
2120.
FOR FURTHER INFORMATION CONTACT:
This is a
summary of the Commission’s Video
Clips Order, FCC 14–97, adopted on July
11, 2014 and released on July 14, 2014.
The full text of this document is
available for public inspection and
copying during regular business hours
in the FCC Reference Center, Federal
Communications Commission, 445 12th
Street SW., Room CY–A257,
Washington, DC 20554. This document
will also be available via ECFS at
http:fjallfoss,fcc.gov/ecfs/. Documents
will be available electronically in ASCII,
Microsoft Word, and/or Adobe Acrobat.
The complete text may be purchased
from the Commission’s copy contractor,
445 12th Street SW., Room CY–B402,
Washington, DC 20554. Alternative
formats are available for people with
disabilities (Braille, large print,
electronic files, audio format), by
sending an email to fcc504@fcc.gov or
calling the Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act of 1995
Analysis
This document does not contain
proposed information collection(s)
subject to the Paperwork Reduction Act
of 1995, Public Law 104–13. In addition,
therefore, it does not contain any new
or modified information collection
burden for small business concerns with
fewer than 25 employees, pursuant to
the Small Business Paperwork Relief
Act of 2002, Public Law 107–198, see 44
U.S.C. 3506(c)(4).
Synopsis
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I. Introduction
1. One of the Commission’s priorities
is to ensure that all individuals,
especially individuals with disabilities,
are able to enjoy the full benefits of
broadband technology, including the
services that broadband enables such as
online video programming. Online
viewing of video programming is
becoming increasingly significant, and
one aspect of this development is that
more and more consumers are receiving
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news, sports, and entertainment
programming in the form of online
video clips. In this Second Order on
Reconsideration (‘‘Video Clips Order’’),
as part of our continued implementation
of the Twenty-First Century
Communications and Video
Accessibility Act of 2010 (‘‘CVAA’’), we
conclude that clips of video
programming covered by the statute
must be captioned when delivered using
Internet protocol (‘‘IP’’) and set out a
schedule of deadlines.
2. When the Commission initially
adopted IP closed captioning
requirements pursuant to its
responsibilities under the CVAA it
applied the requirements to full-length
video programming and not to video
clips.1 The Commission said that it
might in the future extend the IP closed
captioning requirements to video clips if
it found that consumers who are deaf or
hard of hearing are denied access to
critical areas of programming, such as
news, because the programming is
posted online as video clips. In response
to a petition for reconsideration filed by
consumer groups, and at the
Commission’s direction, the Media
Bureau issued a public notice seeking
updated information on the closed
captioning of IP-delivered video clips,
including the extent to which the
industry has voluntarily captioned these
clips.2 After reviewing the record
compiled in this proceeding, we find
that a significant percentage of video
clips continue to remain inaccessible to
consumers who are deaf or hard of
hearing. In addition, we have
reconsidered the Commission’s earlier
interpretation of the statute and
conclude that Congress intended the IP
closed captioning requirements to
extend to all covered video
programming including clips, but left to
our discretion the timeline for
compliance with this requirement.
Accordingly, to implement the statute
fully, and in furtherance of Congress’s
intent to ensure that individuals who
are deaf or hard of hearing have better
access to online video programming, we
reconsider the Commission’s earlier
decision and revise our regulations to
require the provision of closed
captioning on video clips delivered
using IP when the programming was
published or exhibited on television
with captions. As discussed in section
III below, this Video Clips Order
imposes closed captioning requirements
on IP-delivered video clips by adopting
rules that will:
• Extend the IP closed captioning
requirements to IP-delivered video clips
if the video programming distributor or
provider 3 posts on its Web site or
application (‘‘app’’) a video clip of video
programming that it published or
exhibited on television in the United
States with captions, regardless of the
content or length of the video clip.
• Pursuant to our authority to
establish an appropriate schedule of
deadlines for purposes of the IP closed
captioning requirements,4 adopt a
compliance deadline of January 1, 2016
for ‘‘straight lift’’ clips, which contain a
single excerpt of a captioned television
program with the same video and audio
that was presented on television, and
January 1, 2017 for ‘‘montages,’’ which
contain multiple straight lift clips.
• After the applicable deadlines,
require IP-delivered video clips to be
provided with closed captions at the
time the clips are posted online, except
as otherwise provided.
• For clips of video programming
previously shown live or near-live on
television with captions,5 require
captions beginning July 1, 2017 and for
the present time allow a grace period of
12 hours after the live programming is
shown on television and eight hours
after the near-live programming is
shown on television before the clip
must be captioned online.
• Find that compliance with the new
requirements would be economically
burdensome for video clips that are in
the video programming distributor’s or
provider’s online library before January
1, 2016 for straight lift clips, and
January 1, 2017 for montages, and thus
exempt this class of video clips from
coverage; and
• Generally apply the IP closed
captioning requirements to video clips
in the same manner that they apply to
full-length video programming, which
among other things means that the
quality requirements applicable to fulllength IP-delivered video programming
will apply to video clips.
1 Closed Captioning of Internet Protocol-Delivered
Video Programming: Implementation of the TwentyFirst Century Communications and Video
Accessibility Act of 2010, Report and Order, 27 FCC
Rcd 787, 816–18, para 44–48 (2012) (‘‘IP Closed
Captioning Order’’).
2 Media Bureau Seeks Comment on Application
of the IP Closed Captioning Rules to Video Clips,
Public Notice, 28 FCC Rcd 16699 (MB, 2013)
(‘‘Video Clips PN’’).
3 When we use the term ‘‘video programming
distributor or provider’’ herein, we invoke the
definition of that term in the Commission’s IP
closed captioning rules, which is ‘‘[a]ny person or
entity that makes available directly to the end user
video programming through a distribution method
that uses Internet protocol.’’ 47 CFR 79.4(a)(3).
4 47 U.S.C. 613(c)(2)(B).
5 Industry refers to these video clips as ‘‘timesensitive’’.
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II. Background
3. In the IP Closed Captioning Order,
the Commission implemented section
202 of the CVAA by imposing closed
captioning requirements on the owners,
providers, and distributors of IPdelivered video programming with
respect to full-length video
programming.6 The Commission
defined ‘‘full-length video
programming’’ covered by the rules as
video programming that appears on
television and is distributed to end
users, substantially in its entirety, via
IP. By ‘‘substantially in its entirety,’’ the
Commission ‘‘mean[t] to reference video
programming that is distributed via IP
as a complete video programming
presentation, such as an episode of a
television show or movie.’’ 7
Accordingly, ‘‘full-length video
programming’’ includes, for example, a
full-length half-hour program that is
missing a few minutes when it is
distributed via IP, as well as a fulllength program that is posted online in
its entirety in multiple segments for
easy viewing. The definition of ‘‘fulllength video programming’’ excludes
‘‘video clips,’’ which the Commission
defined as excerpts of full-length video
programming.
4. Although the Commission excluded
video clips in the IP Closed Captioning
Order, it interpreted the legislative
history of the CVAA as signaling
Congress’s intent to leave open the
extent to which the IP closed captioning
rules should cover video clips at some
point in the future. Hence, the
Commission indicated that it might in
the future determine that the IP closed
captioning requirements should apply
to video clips if necessary to provide
access to this programming.
Specifically, the Commission stated, ‘‘If
we find that consumers who are deaf or
hard of hearing are not getting access to
critical areas of programming, such as
news, because of the way the
programming is posted (e.g., through
selected segments rather than full-length
programs), we may reconsider this issue
6 When we use the term ‘‘video programming
owner’’ herein, we invoke the definition of that
term in the Commission’s IP closed captioning
rules, which is the person or entity that either (i)
licenses the video programming to a video
programming distributor or provider that makes the
video programming available directly to the end
user through a distribution method that uses
Internet protocol; or (ii) acts as the video
programming distributor or provider, and also
possesses the right to license the video
programming to a video programming distributor or
provider that makes the video programming
available directly to the end user through a
distribution method that uses Internet protocol. 47
CFR 79.4(a)(4).
7 IP Closed Captioning Order, 27 FCC Rcd at 816,
para. 44.
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to ensure that our rules meet Congress’s
intent to bring captioning access to
individuals viewing IP-delivered video
programming.’’
5. In addition, although the
Commission did not require closed
captioning of IP-delivered video clips, it
encouraged video programming owners,
providers, and distributors to provide
closed captions on such content where
they are able to do so. In particular, the
Commission ‘‘encourage[d] the industry
to make captions available on all TV
news programming that is made
available online, even if it is made
available through the use of video
clips.’’ 8 The Commission also said that
it might find a violation of the IP closed
captioning rules if an entity exhibited a
pattern of using video clips as a means
of avoiding its closed captioning
obligations.
6. A coalition of consumer groups
filed a Petition for Reconsideration of
the IP Closed Captioning Order, arguing,
among other things, that the
Commission should require captioning
of IP-delivered video clips.9 In an order
responding to the Consumer Groups
Petition, the Commission noted that
consumers were particularly concerned
about the availability of captioned news
clips, which tend to be live or nearlive.10 Nevertheless, because full-length
live and near-live programming became
subject to the IP closed captioning
requirements only about a month before
Consumer Groups filed their petition,
the Commission expressed its
expectation that entities subject to the IP
closed captioning rules would caption
an increasing volume of video clips,
particularly news clips, given that they
would be developing more efficient
processes for the captioning of live and
near-live programming. The
Commission further indicated that it
8 Id.
at 818, para. 48.
Groups, Petition for Reconsideration
of the Commission’s Report and Order, at iii, 1–17
(filed Apr. 27, 2012) (‘‘Consumer Groups Petition’’).
We use the term ‘‘Consumer Groups’’ to reference
the signatories of the Consumer Groups Petition or
a subset thereof: Telecommunications for the Deaf
and Hard of Hearing, Inc.; National Association of
the Deaf; Deaf and Hard of Hearing Consumer
Advocacy Network; Association of Late-Deafened
Adults; Hearing Loss Association of America;
Cerebral Palsy and Deaf Organization; and
Technology Access Program at Gallaudet
University. The Consumer Groups’ petition for
reconsideration was published in the Proposed
Rules section of the Federal Register. See Petitions
for Reconsideration of Action in Rulemaking
Proceeding, MB Docket No. 11–154; Rpt No. 2951,
77 FR 30,485, May 23, 2012.
10 Closed Captioning of Internet ProtocolDelivered Video Programming: Implementation of
the Twenty-First Century Communications and
Video Accessibility Act of 2010, Order on
Reconsideration and Further Notice of Proposed
Rulemaking, 28 FCC Rcd 8785, 8804, para. 30
(2013).
9 Consumer
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would monitor industry actions on the
captioning of IP-delivered video clips,
and it directed the Media Bureau to
issue a public notice to seek updated
information on the topic within six
months. If the record developed from
the public notice ‘‘demonstrates that
consumers are denied access to critical
areas of video programming due to lack
of captioning of IP-delivered video
clips,’’ the Commission indicated that it
might reconsider its decision not to
subject video clips to the IP closed
captioning rules.
7. At the Commission’s direction, the
Media Bureau issued a public notice
seeking updated information on the
closed captioning of IP-delivered video
clips, including the extent to which
industry has voluntarily captioned these
clips. In the public notice, the Media
Bureau asked whether the Commission
should require captioning of IPdelivered video clips, and it invited
comment on any issues relevant to this
determination. Commenters
representing both the industry and
consumer groups submitted detailed
filings on these issues. The record
demonstrates the large volume of IPdelivered video clips currently available
to consumers, culled from a multitude
of full-length video programs.
III. Discussion
8. As discussed fully below, we
hereby reconsider our prior decision
and conclude that the CVAA covers
video clips as well as full-length video
programming shown online.
Accordingly, at this time we apply the
IP closed captioning requirements to
video clips if the video programming
distributor or provider posts on its Web
site or app a video clip of video
programming that it published or
exhibited on television in the United
States with captions. Specifically, for
‘‘straight-lift’’ clips, which contain a
single excerpt of a captioned television
program with the same video and audio
that was presented on television, the IP
closed captioning requirements will
apply beginning January 1, 2016. For
‘‘montage’’ clips, a single file containing
multiple straight lift clips, we adopt an
extended compliance deadline of
January 1, 2017.11 We find that it would
11 We distinguish here between a single file
containing multiple straight lift clips and situations
where one or more single files are played
sequentially, such as through a playlist. For
example, a video programming distributor might
automatically begin playing a related video file
immediately after the initial video retrieved by the
consumer concludes, such as another news clip
about the same topic or another highlight from the
same sporting event. That would not be an example
of a montage, but rather, would be straight lift clips
that are played in sequence.
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be economically burdensome to apply
the new requirements to video clips that
are in the video programming
distributor’s or provider’s library before
the relevant compliance deadline, and
accordingly we exempt such video clips
from coverage.12 Further, we will
require captioning for video clips of live
and near-live programming beginning
July 1, 2017, and we will permit such
clips to be posted online initially
without captions, but require that
captions be added to clips of live
programming within 12 hours and to
clips of near-live programming within
eight hours after the conclusion of the
television display of the associated
video programming 13 that contained the
clip.14 Finally, we generally apply the
Commission’s IP closed captioning rules
for full-length programming, including
the quality requirements, to video
clips.15 Below, before addressing the
substance of our video clips
requirements, we first discuss threshold
issues regarding legal authority and
procedure, as well as the benefits of
requiring closed captioning for IPdelivered video clips. As discussed fully
below, we hereby reconsider our prior
decision and conclude that the CVAA
covers video clips as well as full-length
video programming shown online.
Accordingly, at this time we apply the
IP closed captioning requirements to
video clips if the video programming
distributor or provider posts on its Web
site or app a video clip of video
12 As in the IP Closed Captioning Order, herein
we use the term ‘‘library’’ to describe the collection
of content a video programming provider or
distributor makes available to consumers online. In
the Further Notice, we seek comment on
application of the IP closed captioning
requirements to video clips that are added to the
video programming distributor’s or provider’s
library after the relevant compliance deadline but
before the programming is shown on television with
captions (‘‘advance’’ video clips).
13 When we use the term ‘‘associated video
programming’’ or ‘‘associated video program,’’ we
mean the televised programming from which the
video clip was excerpted.
14 Throughout this item, when we discuss grace
periods of a certain number of hours after the
programming is shown on television with captions
within which video clips must be captioned online,
we will consider the grace period to begin upon the
conclusion of the television display of the
associated video program. Given the current state of
captioning technology, waiting until the conclusion
of the program is the most reasonable approach at
this juncture since, at that time, the caption file is
complete.
15 We also adopt a Further Notice considering
four specific issues. Among the issues considered
in the Further Notice is application of the IP closed
captioning requirements to ‘‘mash-ups,’’ which
occur when a single file contains a compilation of
one or more video clips that have been shown on
television with captions along with additional
content that has not been shown on television with
captions. We thus defer, at this time, application of
our rules with respect to mash-ups.
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programming that it published or
exhibited on television in the United
States with captions. Specifically, for
‘‘straight-lift’’ clips, which contain a
single excerpt of a captioned television
program with the same video and audio
that was presented on television, the IP
closed captioning requirements will
apply beginning January 1, 2016. For
‘‘montage’’ clips, a single file containing
multiple straight lift clips, we adopt an
extended compliance deadline of
January 1, 2017.16 We find that it would
be economically burdensome to apply
the new requirements to video clips that
are in the video programming
distributor’s or provider’s library before
the relevant compliance deadline, and
accordingly we exempt such video clips
from coverage.17 Further, we will
require captioning for video clips of live
and near-live programming beginning
July 1, 2017, and we will permit such
clips to be posted online initially
without captions, but require that
captions be added to clips of live
programming within 12 hours and to
clips of near-live programming within
eight hours after the conclusion of the
television display of the associated
video programming 18 that contained the
clip.19 Finally, we generally apply the
Commission’s IP closed captioning rules
for full-length programming, including
the quality requirements, to video
16 We distinguish here between a single file
containing multiple straight lift clips and situations
where one or more single files are played
sequentially, such as through a playlist. For
example, a video programming distributor might
automatically begin playing a related video file
immediately after the initial video retrieved by the
consumer concludes, such as another news clip
about the same topic or another highlight from the
same sporting event. That would not be an example
of a montage, but rather, would be straight lift clips
that are played in sequence.
17 As in the IP Closed Captioning Order, herein
we use the term ‘‘library’’ to describe the collection
of content a video programming provider or
distributor makes available to consumers online. In
the Further Notice below, we seek comment on
application of the IP closed captioning
requirements to video clips that are added to the
video programming distributor’s or provider’s
library after the relevant compliance deadline but
before the programming is shown on television with
captions (‘‘advance’’ video clips).
18 When we use the term ‘‘associated video
programming’’ or ‘‘associated video program,’’ we
mean the televised programming from which the
video clip was excerpted.
19 Throughout this item, when we discuss grace
periods of a certain number of hours after the
programming is shown on television with captions
within which video clips must be captioned online,
we will consider the grace period to begin upon the
conclusion of the television display of the
associated video program. Given the current state of
captioning technology, waiting until the conclusion
of the program is the most reasonable approach at
this juncture since, at that time, the caption file is
complete.
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clips.20 Below, before addressing the
substance of our video clips
requirements, we first discuss threshold
issues regarding legal authority and
procedure, as well as the benefits of
requiring closed captioning for IPdelivered video clips.
A. Threshold Issues Regarding Legal
Authority and Procedure
9. We find that the CVAA mandates
that all ‘‘video programming delivered
using Internet protocol that was
published or exhibited on television
with captions after the effective date of
such regulations,’’ including clips of
that programming, be provided with
closed captioning.21 The statutory text,
quoted above, does not distinguish
between full-length video programming
and video clips; therefore, as explained
below, we believe the statute is most
reasonably interpreted as covering
excerpts of full-length programming as
well as complete and substantially
complete programs. To the extent the IP
Closed Captioning Order stated that the
CVAA’s captioning provisions did not
cover clips of video programming or did
not cover them until some future date,
we reconsider and reject that statutory
interpretation. Rather, we find that
video clips are included within the
definition of video programming, and
thus the statute mandates that clips of
video programming covered by the
statutory definition be captioned when
delivered by IP.
10. Clips of programming shown on
television meet the statute’s definition of
‘‘video programming,’’ which is
‘‘programming by, or generally
considered comparable to programming
provided by a television broadcast
station, but not including consumergenerated media (as defined in section
153 of this title).’’ 22 As we stated in the
IP Closed Captioning Order,
‘‘programming ‘that was published or
exhibited on television’ by definition
constitutes ‘video programming,’ since
anything that was published or
exhibited on television must be
provided by, or be comparable to
programming provided by, a television
broadcast station.’’ There is nothing in
the definition of ‘‘video programming’’
that expressly excludes video clips or
20 We also adopt a Further Notice considering the
four specific issues listed above. Among the issues
considered in the Further Notice is application of
the IP closed captioning requirements to ‘‘mashups,’’ which occur when a single file contains a
compilation of one or more video clips that have
been shown on television with captions along with
additional content that has not been shown on
television with captions. We thus defer, at this time,
application of our rules with respect to mash-ups.
21 47 U.S.C. 613(c)(2)(A).
22 Id. 613(h)(2).
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excerpts of programming. Indeed, only
one category of programming is
expressly excluded from the definition
and that is ‘‘consumer-generated
media,’’ a category not relevant for
purposes here. The CVAA does not
further explain what is meant by
programming that is ‘‘generally
considered comparable to programming
provided by a television broadcast
station.’’ However, nothing in the
statutory text suggests an excerpt of
programming may not be considered
‘‘comparable’’ to broadcast
programming under section 202.23 To
the contrary, section 202 instructs us to
take into account, in establishing
compliance deadlines, whether the
programming is ‘‘edited for Internet
distribution,’’ indicating that Congress
contemplated that the version of a
television program provided online may
differ, and in fact, be provided in
truncated form, from the original airing
shown on television. We therefore reject
the argument that the term ‘‘video
programming’’ does not encompass
video clips on the theory that
‘‘television broadcasters and multichannel video programming distributors
do not transmit free-standing clips.’’ 24
23 A similar definition of ‘‘video programming’’
appears in other provisions of the Communications
Act of 1934, as amended (the ‘‘Act’’). See, e.g., 47
U.S.C. 522(20) (‘‘ ‘video programming’ means
programming provided by, or generally considered
comparable to programming provided by, a
television broadcast station’’). We note the
Commission has not construed that term in other
contexts to exclude excerpts or clips from the
definition. See, e.g., Closed Captioning and Video
Description of Video Programming, Report and
Order, 13 FCC Rcd 3272 (1997) (‘‘1997 Closed
Captioning Order’’) (implementing the requirement
of Section 713 of the Act that video programming
be closed captioned on television); Closed
Captioning of Video Programming, Report and
Order, Declaratory Ruling, and Further Notice of
Proposed Rulemaking, 29 FCC Rcd 2221 (2014)
(adopting captioning quality standards and
technical compliance rules for video programming).
24 See DiMA Comments at 3; see also NCTA
Reply at 3. DiMA asserts that ‘‘a 2-minute clip from
‘The Late Show with David Letterman’ is not
‘comparable to’ a full-length television show any
more than 2-pages from a compilation of the
Communications Act is ‘comparable to’ the full text
of the statute.’’ DiMA Mar. 20 Ex Parte Letter at 1.
We disagree, and conclude instead that a portion of
a program that was shown on television with
captions is no less ‘‘comparable to programming
provided by a television broadcast station’’ than the
complete program itself. Contrary to DiMA’s
interpretation, the CVAA is not limited to
programming comparable to full-length
programming provided by a television broadcast
station. See also Reply Comments of the
Association of Public Television Stations and the
Public Broadcasting Service at 3 (‘‘PTV Reply’’)
(arguing that the dictionary meaning of
‘‘programming’’ and ‘‘program’’ implies that
‘‘programs’’ subject to the CVAA’s IP closed
captioning requirements are full-length shows and
not video clips). We disagree with PTV’s approach
because, as explained above, we find it consistent
with the statutory text to conclude that ‘‘video
programming’’ encompasses video clips.
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For the reasons stated herein, we believe
the better reading of the statute is that
clips of video programming are covered
by section 202.
11. We also reject the contention that
the legislative history of the CVAA
compels us to interpret section 202 to
exclude video clips from the IP closed
captioning requirements. The Senate
and House Committee Reports state that
Congress ‘‘intends, at this time, for the
regulations to apply to full-length
programming and not to video clips or
outtakes.’’ On reconsideration, we reject
the Commission’s statements in the IP
Closed Captioning Order suggesting that
this legislative history indicated
Congress’s intent to authorize the
Commission to adopt rules requiring
closed captioning of IP-delivered video
clips at some future time.25 After
examining this issue in more detail, we
believe the better reading of this
language is that Congress intended that
the statutory captioning requirements
cover video clips, but gave the
Commission discretion to defer the
compliance deadline for video clips
when the Commission set the schedule
of compliance deadlines under section
202. This interpretation is consistent
with the statute, which gives the
Commission considerable discretion in
establishing ‘‘an appropriate schedule of
deadlines for the provision of closed
captioning’’ and directs the Commission
to consider factors that may affect
compliance.26 If Congress had intended
to exclude excerpts from the scope of
section 202, we would expect it to have
expressly done so in the statute, as it
did with respect to ‘‘consumergenerated media.’’ 27 Similarly, if
Congress had intended to delay to some
future date Commission authority to
adopt rules for video clips, we would
expect it to have included such a
limitation in the statute. For these
reasons, we believe our reading of the
legislative history on reconsideration is
most consistent with the statutory
language. As discussed below, we now
set phased-in compliance deadlines for
captioning of IP-delivered video clips
that fall within the definition of video
25 We are unpersuaded by Consumer Groups’
argument that the legislative history’s reference to
‘‘video clips’’ meant to refer to material that is
exempt from the television closed captioning rules.
Consumer Groups Mar. 28 Ex Parte Letter at 2. The
television closed captioning rules exempt
‘‘[i]nterstitial material, promotional
announcements, and public service announcements
that are 10 minutes or less in duration.’’ 47 CFR
79.1(d)(6). Had Congress merely meant to carry over
this exemption to IP-delivered programming, it
would have cited that rule or used similar language.
This exemption does not use the term ‘‘video
clips.’’
26 47 U.S.C. 613(c)(2)(B).
27 See id. 613(h)(2).
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programming (‘‘programming by, or
generally considered comparable to
programming provided by a television
broadcast station, but not including
consumer-generated media (as defined
in section 153 of this title)’’).28
12. Commenters who argue that
Congress did not intend the
Commission to apply the IP closed
captioning regulations to video clips
ignore the statutory language. For
example, the Digital Media Association
(‘‘DiMA’’) disagrees with the
Commission’s interpretation of ‘‘at this
time’’ in the legislative history, and
asserts instead that the phrase actually
means that video clips are not covered
‘‘under this statute.’’ 29 To the contrary,
had Congress intended to carve out
video clips from coverage of video
programming, it could have said so
clearly, rather than using the phrase ‘‘at
this time,’’ which suggests merely a
temporal meaning. If the reports had
said that Congress ‘‘intends for the
regulations to apply to full-length
programming and not to video clips,’’
that would suggest that Congress
understood video clips not to be
covered by the statutory language. But
the use of the phrase ‘‘at this time’’
suggests that the Commission’s
regulations could require captioning in
the future. That could only happen if
video clips fall within the ambit of
‘‘video programming.’’ Further,
applying the IP closed captioning
requirements to video clips is consistent
with both the text and stated purpose of
the CVAA, which was ‘‘to help ensure
that individuals with disabilities are
able to fully utilize communications
services and better access video
programming.’’ 30 Requiring closed
captioning of IP-delivered video clips
will help ensure that individuals who
are deaf or hard of hearing will have
access to all covered video
programming. And, as discussed above,
the temporal reference in the legislative
28 Id.
613(h)(2).
to DiMA, the reference to outtakes
in the legislative history supports its interpretation
because it argues outtakes are never shown on
television, and thus it cannot be that Congress
intended the Commission to reconsider covering
outtakes at some point in the future. Neither the
statute nor the legislative history indicates what the
Congressional reports mean by use of the term
‘‘outtakes.’’ For purposes of the IP captioning rules
the Commission defined ‘‘outtakes’’ not covered by
the rules as ‘‘[c]ontent that is not used in an edited
version of video programming shown on
television.’’ 47 CFR 79.4(a)(2), (13). Thus, outtakes
that have never been shown on television need not
be captioned when provided online. To the extent
content that could be described in common
parlance as ‘‘outtakes’’ does appear on television
with captions, however, it must be captioned when
provided online.
30 Senate Committee Report at 1; House
Committee Report at 19.
29 According
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history is consistent with the text of the
statute, which gives the Commission
discretion to adopt an appropriate
schedule of compliance deadlines
taking into consideration factors that
may warrant a longer compliance
period.
13. Further, we conclude that it is
procedurally appropriate for us to act on
this issue now. We disagree with those
commenters who suggest that the
Consumer Groups Petition was
procedurally defective under section
1.429(b) of the Commission’s rules.
Consumer Groups argued earlier in the
proceeding that video clips (as the
Commission has defined the term) 31
should be subject to the IP closed
captioning rules, and Consumer Groups
requested reconsideration, arguing that
the Commission wrongly decided the
issue. We find that the Consumer
Groups Petition does not rely entirely
on arguments that the Commission
already considered and rejected because
it explicitly describes how the video
clips exemption is denying consumers
who are deaf or hard of hearing access
to critical areas of programming, and it
presents more up-to-date information
than that available at the time the
Commission released the IP Closed
Captioning Order. In any event, even if
the petition does rely on facts or
arguments not previously presented to
the Commission, grant of the petition
still would be proper under our rules
because of the clear public interest
benefits of requiring closed captioning
of IP-delivered video clips, as discussed
below. The Commission’s rules provide
that grant of a petition for
reconsideration that ‘‘relies on facts or
arguments which have not previously
been presented to the Commission’’ is
permissible if ‘‘[t]he Commission
determines that consideration of the
facts or arguments relied on is required
in the public interest.’’ 32 For these
reasons, it is procedurally appropriate to
consider the Consumer Groups Petition.
14. We do not believe that seeking
further comment is necessary or
appropriate before we can impose any
closed captioning requirements on IPdelivered video clips. DiMA claims that
the Commission should issue a notice of
proposed rulemaking before imposing
any closed captioning requirement on
IP-delivered video clips, to provide
interested parties with an opportunity to
comment and to obtain feedback on
31 Consumer Groups did, however, previously
support a narrow exclusion for video clips under
30 seconds in length that contain only promotional
materials or advertising for full-length
programming. See Comments of the Consumer
Groups on the NPRM at 18–20.
32 See 47 CFR 1.429(b)(3).
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specific proposed rules. We find that a
further notice of proposed rulemaking is
neither procedurally necessary nor
useful prior to imposing the
requirements we adopt in this Video
Clips Order. This proceeding has
included a petition for reconsideration
filed by Consumer Groups urging the
Commission to require IP-delivered
video clips to be captioned.33 Following
the filing of that petition, the
Commission released an order on
reconsideration deferring a final ruling
on the video clips issue raised in the
Consumer Groups Petition and directing
the Media Bureau to seek updated
information on this issue. A public
notice was published in the Federal
Register seeking comment to further
inform the Commission’s consideration
of the video clips issue and asking
‘‘whether, as a legal and/or policy
matter, the Commission should require
captioning of IP-delivered video
clips.’’ 34 Thus, adequate notice of the
proposed rules has been provided and
issuing a further notice of proposed
rulemaking before imposing the closed
captioning requirements for IP-delivered
video clips adopted herein would be
redundant. Instead, we proceed to this
Video Clips Order based on the ample
record already compiled, including the
additional comments filed recently in
response to the public notice. In
contrast, for those issues on which we
do not have an adequate record for a
decision, we seek further comment in
the Further Notice of Proposed
Rulemaking.
B. Impact of Requiring Closed
Captioning of Internet ProtocolDelivered Video Clips
15. While we commend the industry
for its voluntary efforts to caption IPdelivered video clips, we also recognize
that many such video clips remain
uncaptioned. The record demonstrates
that over the past few years, industry
has been exhibiting an increasing
volume of online video programming in
the form of video clips, and these clips
are increasingly captioned. Specifically,
while Consumer Groups found in May
33 See Petitions for Reconsideration of Action in
Rulemaking Proceeding, MB Docket No. 11–154;
Rpt No. 2951, 77 FR 30,485, May 23, 2012.
34 Video Clips PN, 28 FCC Rcd 16699. The Video
Clips PN was published in the proposed rules
section of the Federal Register. In seeking comment
on the video clips proposal, the Video Clips PN also
referenced the Initial Regulatory Flexibility
Analysis included in the NPRM in this proceeding,
which identified small entities that might be
affected. See Media Bureau Seeks Comment on
Application of the IP Closed Captioning Rules to
Video Clips, MB Docket No. 11–154; 78 FR 78,319,
December 26, 2013. We received comments from
both the industry and consumer groups in response
to the Video Clips PN.
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2013 that 23 percent of news clips and
10 percent of non-news clips were
captioned, the more recent data that
Consumer Groups submitted in
February 2014 indicates that 57 percent
of news clips and 18 percent of nonnews clips are captioned.35
Nonetheless, despite this increase in
captioning of IP-delivered video clips,
many consumers are denied access to
the large volume of clips that remain
uncaptioned. A Commission
requirement for captioning IP-delivered
video clips will ensure that the content,
including critical news programming,
will be accessible to individuals who
are deaf or hard of hearing, thus
significantly benefiting consumers and
serving the stated public interest goal of
the CVAA. Such a requirement is
particularly important because, as stated
above, more and more consumers are
receiving news, sports, and
entertainment programming in the form
of online video clips. Consumer Groups
explain that a Commission requirement
is necessary because, although some
video programming providers and
distributors ‘‘have greatly increased
their use of captions for video clips,
many others captioned few or none of
their clips.’’ 36 The record demonstrates
that because of the large volume of IPdelivered video programming that is
posted online as video clips, much of
which is not captioned, consumers who
are deaf or hard of hearing are being
denied access to critical areas of
programming, such as news, contrary to
the intent of the CVAA.37
35 We acknowledge that some errors in the
Consumer Groups study detract from Consumer
Groups’ claims, such as the study’s inclusion of
some clips of programming that were not shown on
television in this country with captions, its failure
to consider that some closed captioning problems
experienced may have resulted from the use of
apparatus that were not yet required to comply with
the Commission’s rules governing the accessibility
of video apparatus (see 47 CFR 79.103), and its
failure to properly categorize certain material as
‘‘clips’’ that were not required to be captioned as
opposed to ‘‘segments’’ for which captioning was
required. Notwithstanding these shortcomings, the
remaining data provided by the Consumer Groups
confirms that a significant number of IP-delivered
video clips today are not captioned.
36 Consumer Groups Comments at 17.
37 An additional benefit of requiring closed
captioning of IP-delivered video clips relates to the
Commission’s current distinction between video
clips and segments. Specifically, while the IP
Closed Captioning Order exempted video clips from
the IP closed captioning requirements, it required
that IP-delivered video programming be captioned
when the full-length video program is posted online
in multiple segments. Today’s decision to require
closed captioning of IP-delivered video clips and
not just segments will eliminate confusion for
consumers looking for captioning and for industry
seeking to comply with our requirements, since
there will be no need to determine whether a
particular piece of short-form content is a video clip
or a segment.
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16. Contrary to the suggestions of
some commenters, accessing captioned
full-length programming online or
reading an article about the topic
covered in an uncaptioned video clip is
not a full substitute for viewing a
captioned video clip. If such suggestions
were true, the Internet would not
contain the large volume of video clips
that it does because access to such
alternatives would adequately serve
viewers who are not deaf or hard of
hearing. Public Citizen states that the
lack of closed captioning on IPdelivered video clips ‘‘disadvantages
and marginalizes deaf and hard of
hearing people.’’ We agree that the very
fact that programmers make video clips
available when the full-length program
is also available online demonstrates the
intrinsic value of these clips. For these
reasons, we believe that interpreting
section 202 to cover video clips is
necessary to fully effectuate the
statutory purpose and that it is
appropriate to require compliance with
the statute under the schedule we adopt
in this order.
17. As explained above, we interpret
the statute as requiring closed
captioning of IP-delivered video clips
and we find that there are obvious
public interest benefits of imposing
such a requirement. Industry
commenters assert, however, that they
will face some financial and technical
challenges in complying with such a
requirement. One of the biggest
challenges, they claim, is ensuring that
the captions are properly synchronized.
Synchronization is of particular concern
because if captions lag behind the
audio, which often occurs during live
programming, part of the applicable
captions may be missing when a clip is
excerpted from the programming. As a
result, some industry commenters
indicate that they must re-author the
caption file for video clips. Some
industry commenters assert that
captioning online clips is timeconsuming, labor-intensive, and costly,
particularly given the enormous volume
of IP-delivered video clips. While future
technological developments will likely
automate the process, they report that
the development of this technology
remains ongoing. Industry commenters
also caution that a requirement to
caption video clips might cause some
entities to cease posting video clips
online. Contrary to the industry’s claims
about the time-consuming nature of
captioning video clips, however, one
captioning company, VITAC, indicates
that it captions over 50 short-form
videos (30–60 seconds each) per day for
one client, and that captioners create the
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captions for each of these videos within
15–20 minutes of receiving them.
18. Based on the record before us, we
find that compliance with a captioning
requirement for IP-delivered video clips
will not be overly burdensome. This is
particularly true given the reasonable
timeframes we are providing for entities
to come into compliance, as well as the
grace period within which captions may
be added to video clips of live and nearlive programming. Further, consistent
with the text of the CVAA, the scope of
the IP closed captioning requirements is
limited to video programming ‘‘that was
published or exhibited on television
with captions,’’ 38 such that online
captions only will be required for
content that already has been televised
with captions. The fact that some video
programming distributors already
caption a portion of their video clips
demonstrates that the necessary
technology exists and that captioning
video clips is economically feasible. We
expect that the lengthy compliance
deadlines of January 1, 2016 for straight
lift clips and January 1, 2017 for
montages will alleviate the asserted
difficulties with captioning IP-delivered
video clips, particularly given
information provided on the record by
captioners and others indicating that
solutions already exist to facilitate
captioning of IP-delivered video clips.
C. Closed Captioning Requirements for
Internet Protocol-Delivered Video Clips
1. Covered Video Clips
19. The CVAA directs the
Commission to require closed
captioning of IP-delivered video
programming when the programming
‘‘was published or exhibited on
television with captions after the
effective date of [the] regulations.’’ 39
Accordingly, while the closed
captioning requirements for IP-delivered
video clips will apply to clips of video
programming that was shown on
television with captions, they will not
apply to clips of video programming
that was not shown on television with
captions.40 To the extent that a video
clip posted online contains an audio
track that is substantially different from
that aired on television, we will not
consider the video clip to have been
shown on television with captions and
thus captions will not be required
online. For example, we understand that
sometimes a video clip from a sporting
U.S.C. 613(c)(2)(A).
U.S.C. 613(c)(2)(A).
40 We clarify, however, that the addition of a brief
introduction or advertisement to an otherwise
covered video clip will not exempt the clip from the
IP closed captioning rules.
event is later posted online with
different audio than the audio that
accompanied the same video on
television. The online version of the
video clip with different audio would
not be covered by the CVAA because the
video programming at issue was not
shown on television with captions;
rather, where the audio is substantially
different, the televised captions would
not correspond to the audio that
accompanies the online clip.
20. We interpret the CVAA to require
closed captioning of IP-delivered video
clips regardless of the content or length
of the clip.41 Some commenters have
argued that we should apply the closed
captioning requirements only to clips
with certain content or only to clips
above a certain length. We disagree.
Rather, we find that it was Congress’s
intent in enacting the CVAA to ensure
that consumers who are deaf or hard of
hearing have access to video
programming that is shown on
television with captions, including
video programming posted online as
video clips, regardless of whether the
video clips contain news, sports,
entertainment, or any other type of
content. A finding to the contrary is not
supported by the CVAA’s overarching
goal to provide full programming access
to individuals who are deaf or hard of
hearing. Similarly, we do not limit the
applicability of the closed captioning
requirements only to clips of a certain
length. We find no basis on which to
distinguish between clips that last 10
seconds and those that last 10 minutes.
By deciding to make a clip available via
the Internet, a video programming
distributor or provider has made a
decision that it has value for the general
public, and the CVAA requires that
when the same programming was
shown on television with captions, the
clip must also be made accessible online
to consumers who are deaf or hard of
hearing. This comprehensive approach
will be more administratively efficient
for industry because companies will not
need to determine whether clips contain
certain content or are of a certain
minimum length.
21. At the present time, the closed
captioning requirements for IP-delivered
video clips will apply if the video
programming provider or distributor (as
those terms are defined in the IP closed
captioning rules) posts on its Web site
or app a video clip of video
programming that it published or
exhibited on television in the United
38 47
39 47
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41 Except as otherwise provided herein, as with IP
closed captioning of full-length video programming,
once the captioning requirement is triggered we
will expect captions to be available immediately for
IP-delivered video clips.
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States with captions on or after the
applicable compliance deadline. NAB
and the National Cable and
Telecommunications Association
(‘‘NCTA’’) propose that the
requirements for closed captioning IPdelivered video clips only apply to a
person or entity that (a) exhibits the
television program with captions on its
linear channel or network; (b) has the
rights to exhibit a clip of that program
with captions via IP; and (c) makes the
clip available via a Web site or app
operated solely by the person or
entity.42 NAB and NCTA are concerned
that a broader application of the IP
closed captioning rules to video clips
may hold entities responsible for issues
that they do not control. In recognition
of these concerns, we will limit the
current application of the rules as
described above. For example, if XYZ
Network posts a video clip on a Web
site or app that it operates, and the
video clip is from programming that
appeared on XYZ Network with
captions after the compliance date, then
the IP closed captioning requirements
would apply. If, however, XYZ Network
posts the video clip on a third party
Web site, then the IP closed captioning
requirements would not apply. We defer
application of the IP closed captioning
rules with respect to the provision of
video clips by third party video
programming providers and
distributors, such as Hulu, or other
services that may embed or host video
programming, such as news Web sites,
pending action on the Further Notice.
2. Compliance Deadline
22. At the outset, we clarify that there
are several types of video clips at issue.
First, the industry uses the term
‘‘straight lift’’ clips to reference a single
excerpt of a captioned television
program with the same video and audio
that was presented on television. Such
video clips will be subject to the January
1, 2016 deadline discussed below.
Second, the industry uses the term
‘‘montage’’ to reference a single file that
contains multiple straight lift clips, and
as explained below, the industry has
persuasively argued that compliance
may be more difficult with regard to
such clips. Accordingly, montages will
be subject to an extended deadline of
January 1, 2017. Third, the industry
uses the term ‘‘mash-up’’ to reference a
single file that contains a compilation of
42 NAB and NCTA have not explained the
meaning or relevance of some terms in their
proposal. Specifically, we are unclear what they
mean by ‘‘linear’’ channel or network and by ‘‘rights
to exhibit.’’ Accordingly, we believe our
formulation stated above better captures the
universe of covered entities.
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one or more video clips that have been
shown on television with captions and
additional content that has not been
shown on television with captions. For
the reasons discussed in the Further
Notice, we seek further comment on the
proper treatment of this category of
video clips in the Further Notice. With
respect to closed captioning of IPdelivered video clips of video
programming shown live or near-live on
television, we require captions
beginning July 1, 2017. At the same
time, due to the time-sensitive nature of
the posting of a live or near-live video
clip we grant a grace period that
requires that captions be added to clips
of live programming within 12 hours
and to clips of near-live programming
within eight hours after the associated
video programming is published or
exhibited on television in the United
States with captions. As discussed
below, the later deadlines for montages
and video clips taken from associated
live and near-live television
programming provide additional time
because of the challenges associated
with captioning these types of clips, and
to allow for the development of
technological advances that will
facilitate a streamlined process for
posting these clips with captions online.
If we receive a petition seeking to
extend these deadlines and find that
technology has not progressed as
expected with respect to posting these
clips online, we will act promptly on
the petition and extend the compliance
deadlines if the petition demonstrates
that technology is not available to
achieve compliance.
23. As stated above, we will require
compliance with the new requirements
for closed captioning of IP-delivered
video clips by January 1, 2016 for
‘‘straight lift’’ video clips. We define
‘‘straight lift’’ video clips as those that
contain a single excerpt of a captioned
television program with the same video
and audio that was presented on
television. As of that date, IP-delivered
video clips must be provided with
closed captions if the associated video
programming is published or exhibited
on television in the United States with
captions on or after January 1, 2016.
Consumer Groups and captioning
companies support a one-year deadline.
In contrast, some members of the
industry have requested a two-year
phase-in because of the volume of video
clips and the difficulty in captioning
them,43 while others have supported a
43 In the absence of record information on the
NCTA proposal, including for example the volume
of clips that do not include time-coded captions
(that is, captions which directly reference the pieces
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deadline of 18 months after adoption of
the rules. Members of the industry have
cautioned that they may have
compliance difficulties if faced with a
requirement for captioning IP-delivered
video clips at this juncture, when they
are still working to implement the IP
closed captioning requirements for fulllength video programming. Balancing
consumers’ desire for prompt access to
this content and the industry’s claims
about the difficulty with compliance,
we adopt a deadline of January 1, 2016
for closed captioning of IP-delivered
‘‘straight lift’’ video clips. The first
compliance deadline for closed
captioning of full-length IP-delivered
video programming was six months
after the date the IP Closed Captioning
Order was published in the Federal
Register, as supported by the Video
Programming Accessibility Advisory
Committee (‘‘VPAAC’’), which consisted
of representatives from both the
industry and from consumer groups.
Given that in general the same
requirements that apply to captioning a
full-length IP-delivered video program
will apply to captioning an IP-delivered
video clip, and that the industry has
now had nearly two years of experience
with captioning programming online,
we find that the January 1, 2016
deadline will be sufficient for the
industry to achieve compliance. During
this time, we encourage the industry to
work toward automating closed
captioning of IP-delivered video clips
and to eliminate problems associated
with distorting closed caption files that
may occur when video clips are created,
thus reducing the labor and costs
involved.
24. We find that an extended
compliance deadline of January 1, 2017
is justified for ‘‘montages.’’ We define a
montage as programming contained in a
single file that includes multiple
straight lift clips.44 That is, a montage is
a single online file containing multiple
video clips ‘‘taken from different parts
of a captioned full-length TV program or
from different captioned TV
programs.’’ 45 The record demonstrates
that an extended compliance deadline is
needed for such programming because
industry is concerned that technology
of video they describe), the difficulties with
captioning clips that do not include time-coded
captions, and why solutions to such difficulties
cannot be implemented prior to the compliance
deadline, we decline to adopt a distinction between
video clips that include embedded or time-coded
captions and those that do not.
44 These multiple straight lift clips may be
sequential (i.e., in the same order in which they
appeared on television) or non-sequential (i.e., in a
different order than the order in which they
appeared on television).
45 NCTA Apr. 25 Ex Parte Letter at 2.
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does not currently exist to use the same
caption files that were used on
television. The record supports our
expectation that by January 1, 2017,
technology will be better able to
automate this process, enabling the
industry to modify the televised
captions associated with each video
clip, rather than re-authoring captions
where a single file contains multiple
straight lift clips.46 Accordingly, closed
captions will be required where a single
IP-delivered file contains multiple
straight lift clips beginning January 1,
2017, if the associated video
programming is published or exhibited
on television in the United States with
captions on or after January 1, 2017. We
expect that the industry will not use this
extended compliance deadline to delay
compliance with the closed captioning
requirements, for example, by creating a
single file that contains two video clips
that otherwise would have been posted
separately with captions and then
claiming that it is subject to the later
January 1, 2017 compliance deadline.
25. We find the addition of a brief
introduction or advertisement to an
otherwise covered video clip will not
exempt the clip from the IP closed
captioning rules, regardless of whether
the video clip is a straight clip or a
montage.47 At the same time, we
understand that often, a single file may
contain a compilation of one or more
video clips that have been shown on
television with captions, interspersed
with additional content that has not
been shown on television with captions.
The industry refers to such program
files as ‘‘mash-ups.’’ We seek comment
on the application of the CVAA to
mash-ups in the Further Notice.
26. Commenters have expressed
concerns about captioning IP-delivered
video clips that serve a promotional
purpose, but these concerns are largely
focused on promotional clips that are
posted online before the programming is
shown on television, an issue that will
be explored in the Further Notice.48 A
non-advance promotional video clip
46 If industry finds that sufficient automation does
not exist by the deadline, it may file a request to
extend the deadline.
47 Of course, a brief introduction that was not
captioned on television would not be required to be
captioned when accompanying an IP-delivered
video clip. Only the portion of the video clip that
was televised with captions would need to be
captioned online.
48 We note that at this time, any difficulty with
tracking down video clips will be minimized by the
fact that application of the requirement to caption
advance clips is under consideration in the Further
Notice, and because the requirement currently only
applies where the video programming provider or
distributor posts on its Web site or app a video clip
of video programming that it published or exhibited
on television.
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may be a single ‘‘straight-lift’’ excerpt of
captioned televised content, in which
case we see no reason that the January
1, 2016 deadline discussed above
should not apply. Once the IP closed
captioning requirements are triggered by
the content being shown on television
with captions, the CVAA does not
differentiate between clips of
promotional material and other types of
clips, but rather, broadly requires video
programming that has been shown on
television with captions to be made
accessible to those consumers who are
deaf or hard of hearing. We see nothing
in the CVAA or its legislative history
that suggests Congress intended to
exclude from coverage video clips that
are promotional in nature. For the same
reasons, a non-advance promotional
video clip that contains multiple
straight lift clips of video programming
that has been shown on television with
captions, and thus is a montage, will be
subject to the January 1, 2017 deadline
discussed above.
3. Video Clips of Live and Near-Live
Programming
27. In general, as with IP closed
captioning of full-length video
programming, once the captioning
requirement is triggered we will expect
captions to be available immediately for
IP-delivered video clips. In other words,
at the time of being posted online,
covered video clips must be closed
captioned. While Hulu has indicated
that a ‘‘grace period’’ may be necessary
in some instances if technical, editorial,
or administrative issues arise, we expect
industry to work prior to the
compliance deadline to develop
processes that will enable them to make
captions available for IP-delivered video
clips without any delay once the video
programming has been shown on
television with captions. The record
does not support a contrary approach,
with an exception for video clips of live
or near-live programming.
28. We find that there are unique
concerns with IP-delivered video clips
of live and near-live programming given
its time sensitivity. If distributors were
prohibited from posting video clips of
live and near-live programming 49
online until captions are available, then
all consumers would be denied access
to potentially time-sensitive information
during that time. A grace period would
provide distributors with flexibility to
49 ‘‘Live programming’’ is ‘‘[v]ideo programming
that is shown on television substantially
simultaneously with its performance.’’ 47 CFR
79.4(a)(7). ‘‘Near-live programming’’ is ‘‘[v]ideo
programming that is performed and recorded less
than 24 hours prior to the time it was first aired on
television.’’ 47 CFR 79.4(a)(8).
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post time-sensitive clips online without
delay. CBS requests a ‘‘grace period of
several hours’’ before we require video
clips of live or near-live programming to
be captioned online, explaining that
otherwise entities other than the
authorized video programming
providers and distributors may be the
first to distribute the content online.
CBS explains that ‘‘[t]his is not
important simply to help build a
programmer’s solid ‘first-to-the-news’
reputation, but it is also important from
an accessibility perspective. If a clip
goes viral and generates a large number
of views over time, it is important that
it be a version controlled by the station,
which can augment the clip with online
captions once they are generated.’’ In
contrast, NAB and NCTA acknowledge
the feasibility of a 12-hour grace period,
while DIRECTV requests a 24-hour grace
period. Further, DiMA indicates that it
is more difficult to caption video clips
of live programming than to caption
video clips of prerecorded
programming.
29. Given the above difficulties
associated with captioning video clips
of live and near-live programming, we
will not require compliance for this
category of video clips until July 1,
2017.50 Additionally, for the present
time, we will permit closed captions to
be provided on IP-delivered video clips
of live programming up to 12 hours after
the associated video programming is
published or exhibited on television in
the United States with captions, and we
will permit closed captions to be
provided on IP-delivered video clips of
near-live programming up to eight hours
after the associated video programming
is published or exhibited on television
in the United States with captions.51
50 Consumer Groups argue that we should
consider a more limited category of video clips than
clips of live and ‘‘near live’’ programming, and
‘‘that the industry should bear the onus of
articulating a workable definition that encompasses
only truly time-sensitive’ clips. . . .’’ We disagree,
and find instead that industry’s concerns about
captioning this category of video clips apply
broadly to video clips of live and near-live
programming. Additionally, attempting to define
this category based on video clips with content that
has the potential to ‘‘go viral,’’ as Consumer Groups
suggest, would be inherently subjective and
inevitably reflect the perspective and values of the
person evaluating the content.
51 We reiterate that we will consider the grace
period to begin upon the conclusion of the
television display of the associated video program.
In addition, while NAB and NCTA have requested
that we limit the 12-hour grace period to business
hours, we decline to do so because many programs
are captioned around the clock, and a 12-hour grace
period will allow daytime staff to assist with
captioning of video clips posted online overnight.
The 12-hour grace period for video clips of live
programming will address DIRECTV’s concerns
with what we refer to as ‘‘NFL Highlight Clips’’ and
‘‘Short Cuts.’’ When a viewer is watching one
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This means that unlike other IPdelivered video clips, video clips of live
and near-live programming may be
posted online without captions initially,
with captions added within 12 hours
(for live) or eight hours (for near-live) of
the video programming being shown on
television.52 We find that the 12- and
eight-hour grace periods appropriately
balance industry’s concern with
captioning time-sensitive IP-delivered
video clips, with the fact that it is just
as important for individuals who are
deaf or hard of hearing to have access
to these clips as it is for other members
of the general public. One company has
indicated that a grace period of ‘‘several
hours’’ is workable. We find that 12 and
eight hours are reasonable timeframes
for all companies subject to the
requirement to follow beginning July 1,
National Football League (‘‘NFL’’) game on a mobile
device, he or she may opt to view NFL Highlight
Clips from another game. Short Cuts are
commercial-free replay compilations of highlights
from every NFL regular season game, allowing
subscribers to view a game in 30 minutes or less
by removing all broadcast ‘‘down time,’’ such as
huddles, time-outs, and instant replay review.
DIRECTV expresses concerns about captioning IPdelivered NFL Highlight Clips and Short Cuts.
Specifically, DIRECTV explains that the volume of
NFL Highlight Clips and the speed at which they
are created and distributed makes DIRECTV unable
to provide them with ‘‘intelligible captioning.’’ For
both Short Cuts and NFL Highlight Clips, DIRECTV
states that ‘‘[t]he process of breaking the game feed
into such video clip highlights can cause the
captioning to become garbled and unrecognizable’’
and that the process of recreating or restoring the
captions ‘‘would introduce delays that would
substantially undermine the business rationale for
these time-sensitive products.’’ The rules for video
clips of live programming will apply to NFL
Highlight Clips and thus will address DIRECTV’s
concerns. The rules for video clips of live
programming also will apply to Short Cuts to the
extent Short Cuts are not televised with captions.
We understand that a version of Short Cuts is made
available on television without captions, and
DIRECTV states that ‘‘[t]he television version of
Short Cuts is exempt from the captioning
requirement due to the very limited gross revenues
associated with this service.’’ We take no position
in this Video Clips Order as to whether a television
closed captioning exemption in fact applies to Short
Cuts. We clarify, however, that if the televised
version of Short Cuts is captioned when shown on
television in the future, then the online version will
be subject to the IP closed captioning rules already
applicable to full-length programming to the extent
that they are in essence the same program. See 47
CFR 79.4(b). In other words, once Short Cuts
become subject to the IP closed captioning
requirements for full-length programming (i.e., they
are televised with captions), the extended
compliance deadline and grace period applicable to
video clips of live programming will no longer
apply.
52 To the extent that a straight lift clip contains
video clips of live or near-live programming, it will
be subject to the later July 1, 2017 compliance
deadline and may utilize the 12-hour or eight-hour
grace period. To the extent that a montage contains
video clips of live or near-live programming, the
portions of the montage that contain such
programming will be subject to the later July 1,
2017 compliance deadline, and those portions may
utilize the applicable grace period.
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2017. To the extent that a video
programming provider or distributor is
unable to post video clips of live
programming within these grace periods
by July 1, 2017 because, for example, it
lacks the resources to do so, it may
petition for an exemption of this
requirement.53 We find that a shorter
grace period is appropriate for video
clips of near-live programming than for
video clips of live programming,
because we find that there is more time
to add captions to an IP-delivered video
clip of programming that is produced
and recorded even a short time before it
is shown on television with captions. In
addition, we encourage the industry to
make video clips of live and near-live
programming available with captions at
the time the clips are posted online, or
as soon as possible thereafter, whenever
possible, especially if such captioning
already is being done. In the future, we
intend to decrease or eliminate this
grace period for video clips of live and
near-live programming, because we
expect that technology will automate
the process such that a grace period for
captioning is no longer needed.
Accordingly, in the Further Notice we
seek comment on the timeframe within
which we should decrease or eliminate
the grace period applicable to video
clips of live and near-live programming.
4. Video Clips in the Online Library
Before the Compliance Deadline
30. We recognize that some video
programming providers and distributors
will have a large number of video clips
in their online library 54 before the
compliance deadline of January 1, 2016
for straight lift clips and January 1, 2017
for montages. As explained fully below,
we find that compliance with the closed
captioning requirements for IP-delivered
video clips would be economically
burdensome for this class of video clips,
and accordingly we exempt this class
from coverage of our rules.55
31. The CVAA permits the
Commission to exempt from coverage of
its IP closed captioning rules ‘‘any
53 See 47 CFR 79.4(d) (setting forth procedures for
individual exemptions based on economic burden).
54 As in the IP Closed Captioning Order, herein
we use the term ‘‘library’’ to describe the collection
of content a video programming provider or
distributor makes available to consumers online.
55 Separately, in the Further Notice below, we
seek comment on application of the IP closed
captioning rules to video clips that are added to the
video programming distributor’s or provider’s
library on or after January 1, 2016 for straight lift
clips and January 1, 2017 for montages, but before
the associated video programming is shown on
television with captions. We refer to such video
clips as ‘‘advance’’ video clips, and we find that
further information on the technological challenges
of captioning advance video clips would be useful
before we resolve this issue.
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45363
service, class of service, program, class
of program, equipment, or class of
equipment for which the Commission
has determined that the application of
such regulations would be economically
burdensome for the provider of such
service, program, or equipment.’’ 56 The
Commission has interpreted the
comparable statutory provision
applicable to television closed
captioning.57
32. On balance, we find that the costs
of captioning video clips that are in the
video programming distributor’s or
provider’s online library before the
compliance deadline (January 1, 2016
for straight lift clips and January 1, 2017
for montages) outweigh the benefits to
be derived from captioning such
programming at this time. Some video
programming distributors may have
hundreds of thousands or even millions
of video clips currently in the libraries
on their Web sites or apps. Some
commenters have suggested that the
industry would face significant
difficulty complying with closed
captioning requirements for this
category of IP-delivered video clips.
Stated challenges with captioning this
category of IP-delivered video clips
include the enormous volume of
existing video clips in some video
programming provider and distributor’s
online libraries, which have been posted
over a period of years, and difficulty
determining potentially years after the
clips were first posted online whether
such clips originated as part of a
program that later appeared on
television with captions after the
effective date of the video clip
captioning rules. We are concerned
about the impact that requiring closed
captioning for this class of video clips
may have on entities subject to the
rules, including smaller entities that
may lack the financial resources to
comply. In contrast, we find that the
benefits of requiring captioning of these
clips may be minimal since video clips
may ‘‘have a shorter shelf life for
viewership than long-form content.’’ 58
56 47
U.S.C. 613(c)(2)(D)(ii).
Closed Captioning Order, 13 FCC Rcd at
3342, paras.143–145. The Commission assesses
economic burden more broadly in the context of an
entire class than it does in the context of an
individual exemption petition. See Anglers for
Christ Ministries, Inc., Memorandum Opinion and
Order, Order, and Notice of Proposed Rulemaking,
26 FCC Rcd 14941, 14958–60, paras. 33–36 (2011).
58 See Hulu Apr. 1 Ex Parte Letter at 3; NAB June
9 Ex Parte Letter at 2. We recognize Consumer
Groups’ argument that many video clips ‘‘are likely
to live on the Internet indefinitely,’’ and while that
may be true for some video clips, we expect that
many of the video clips that will be online prior to
the compliance deadlines will be of lesser interest
57 1997
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We believe that the resources of the
entities subject to the rules thus would
be better spent captioning clips added to
their libraries on a prospective basis.
Accordingly, we find that it would be an
economic burden to require closed
captioning of video clips that are in the
video programming distributor’s or
provider’s online library before the
compliance deadline with minimal
benefits, and we thus exempt this class
from coverage of our IP closed
captioning rules.
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5. Application of General IP Closed
Captioning Rules to Video Clips
33. Except as otherwise discussed
above, the IP closed captioning
requirements will apply to video clips
in the same manner that they apply to
full-length video programming shown
online. For example, entities may file a
petition for exemption from the IP
closed captioning rules based on
economic burden.59 Additionally, this
means that video programming owners
must provide captions of at least the
same quality as the televised captions
for the same programming, and video
programming distributors and providers
must maintain the quality of the
captions provided by the video
programming owner. Consumer Groups
support the application of existing
quality requirements for full-length IPdelivered video programming to IPdelivered video clips. The Commission
previously stated that an evaluation of
whether IP-delivered captions are of at
least the same quality as the televised
captions may involve the consideration
of ‘‘such factors as completeness,
placement, accuracy, and timing.’’ 60
Along these lines, the Commission
recently adopted new requirements
governing the quality of television
closed captioning that incorporate these
factors. Thus, while some commenters
have asserted that there are problems
with the quality of the captioning of IPdelivered video clips, it is likely that the
Commission’s new rules governing
captioning quality on television will
to consumers than more recent clips that are posted
online after the applicable compliance deadline.
59 See 47 CFR 79.4(d) (setting forth the procedures
for exemptions based on economic burden, and
stating that the Commission will consider the
following factors: ‘‘(i) The nature and cost of the
closed captions for the programming; (ii) The
impact on the operation of the video programming
provider or owner; (iii) The financial resources of
the video programming provider or owner; and (iv)
The type of operations of the video programming
provider or owner.’’). Entities also may avail
themselves of the statutory requirement that a de
minimis failure to comply with the IP closed
captioning regulations will not be treated as a
violation. See 47 U.S.C. 613(c)(2)(D)(vii).
60 See IP Closed Captioning Order, 27 FCC Rcd at
812, para. 37.
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improve the quality of closed captioning
on programming delivered via IP as
well. For example, when a televised
program is in compliance with the new
requirement that captions be accurate
and complete, then all of the audio
accompanying a particular clip of the
television program also must be
captioned. In recognition of the fact that
video clips may in some instances have
to be recaptioned, however, we will
permit de minimis differences between
the closed captions accompanying an
IP-delivered video clip and the closed
captions that appeared on television.61
We recognize that providing captions
for video clips may present technical
challenges beyond those associated with
captioning full-length programs. We
will take this difficulty into account in
the event of complaints.62 It is our hope,
however, that advancements in
technology by the time the compliance
deadlines arrive may substantially
ameliorate these challenges. The
Commission, through its Consumer and
Governmental Affairs Bureau, will work
to resolve any informal complaints of
noncompliance with the new
requirements to caption video clips, but
would typically consider enforcement
action by its Enforcement Bureau when
there is a pattern or trend of possible
noncompliance by a covered entity.
Importantly, we note that the IP Closed
Captioning Order makes clear that
entities are not responsible for quality
issues outside of their control. Thus, it
is not necessary for us to adopt specific
rules to address NAB’s concern that
problems with captions of IP-delivered
video clips may result from technical
problems beyond a station’s control.
34. When a video programming
provider or distributor provides
applications or plug-ins for viewing
video programming, it must comply
with Section 79.103(c) of our rules,
61 See 47 U.S.C. 613(c)(2)(D)(vii) (a de minimis
failure to comply with the IP closed captioning
regulations will not be treated as a violation).
Accordingly, voice recognition technology can be
used to recaption video clips, but only to the extent
that the quality requirements are met, with
permissible de minimis differences between the
closed captions accompanying an IP-delivered
video clip and the closed captions that appeared on
television. We thus decline Disney’s request that we
permit entities to use ‘‘the best available voice
recognition technology,’’ because the record
contains no evidence to suggest that ‘‘the best
available voice recognition technology’’ today
would produce captions that meet the captioning
quality requirements.
62 We understand that the captions for live
programming may appear on-screen with a delay.
In such instances, to ensure that the captions
available with an IP-delivered video clip are
complete, the caption file may be synchronized to
the clip’s audio, or the captions may continue onscreen after the clip has concluded until all of the
associated captions have appeared.
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which requires the inclusion of certain
consumer tools such as the ability to
change caption font, size, and color. The
Commission’s rules refer to these
consumer tools as ‘‘technical
capabilities.’’ We understand that some
applications include video players that
display only video clips, and these
players were not designed with closed
captioning capability. DiMA has
explained that extension of the IP closed
captioning rules to video clips will
require upgrades to these video players,
and in some instances a single video
programming distributor may need to
upgrade multiple video players. DiMA
asserts that it would be difficult for
video programming provider- or
distributor-provided applications or
plug-ins that play video clips but not
full-length programming to comply with
Section 79.103(c) of our rules and that,
in any event, the technical capabilities
set forth in our rules are less useful
when consumers view video clips as
opposed to full-length programming. We
are not persuaded by these assertions.
Rather, we expect that video
programming providers and distributors
will be able to comply with the
requirements for their applications and
plug-ins that play video clips, and we
agree with Consumer Groups that the
Commission should not enshrine in our
rules an exception based on a video
programming provider or distributor’s
decision not to include closed
captioning capability in the earlier
versions of its video players. To the
extent that a video programming
provider or distributor determines that
compliance with the IP closed
captioning requirements for its
application or plug-in that only plays
video clips would be economically
burdensome, it may file an exemption
request.63 The CVAA provides that
during the pendency of a petition for
exemption from the IP closed captioning
rules due to economic burden, the
‘‘provider or owner shall be exempt
from the requirements. . . . The
Commission shall act to grant or deny
any such petition, in whole or in part,
within 6 months after the Commission
receives such petition, unless the
Commission finds that an extension of
the 6-month period is necessary to
determine whether such requirements
are economically burdensome.’’ 64
IV. Procedural Matters
A. Final Regulatory Flexibility Analysis
35. As required by the Regulatory
Flexibility Act of 1980, as amended
63 47
64 47
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(‘‘RFA’’), an Initial Regulatory
Flexibility Analysis (‘‘IRFA’’) was
incorporated into the Notice of
Proposed Rulemaking in this
proceeding. The Federal
Communications Commission
(‘‘Commission’’) sought written public
comment on the proposals in the NPRM,
including comment on the IRFA. The
Media Bureau issued a public notice
seeking comment on the closed
captioning of Internet protocoldelivered video clips, and that public
notice also referenced the Initial
Regulatory Flexibility Analysis included
in the NPRM in this proceeding, which
identified small entities that might be
affected. The Commission received no
comments on the IRFA. This present
Final Regulatory Flexibility Analysis
(‘‘FRFA’’) conforms to the RFA.
1. Need for, and Objectives of, the
Second Order on Reconsideration
36. One of the Commission’s priorities
is to ensure that all individuals,
especially individuals with disabilities,
are able to enjoy the full benefits of
broadband technology, including the
services that broadband enables such as
online video programming. Online
viewing of video programming is
becoming increasingly significant, and
one aspect of this development is that
more and more consumers are receiving
news, sports, and entertainment
programming in the form of online
video clips. In the Second Order on
Reconsideration (‘‘Video Clips Order’’),
as part of our continued implementation
of the Twenty-First Century
Communications and Video
Accessibility Act of 2010 (‘‘CVAA’’), we
conclude that clips of video
programming covered by the statute
must be captioned when delivered using
Internet protocol (‘‘IP’’) and set out a
schedule of deadlines.
37. When the Commission initially
adopted IP closed captioning
requirements pursuant to its
responsibilities under the CVAA it
applied the requirements to full-length
video programming and not to video
clips. The Commission said that it might
in the future extend the IP closed
captioning requirements to video clips if
it found that consumers who are deaf or
hard of hearing are denied access to
critical areas of programming, such as
news, because the programming is
posted online as video clips. In response
to a petition for reconsideration filed by
consumer groups, and at the
Commission’s direction, the Media
Bureau issued a public notice seeking
updated information on the closed
captioning of IP-delivered video clips,
including the extent to which the
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industry has voluntarily captioned these
clips. After reviewing the record
compiled in this proceeding, we find
that a significant percentage of video
clips continue to remain inaccessible to
consumers who are deaf or hard of
hearing. In addition, we have
reconsidered the Commission’s earlier
interpretation of the statute and
conclude that Congress intended the IP
closed captioning requirements to
extend to all covered video
programming including clips, but left to
our discretion the timeline for
compliance with this requirement.
Accordingly, to implement the statute
fully, and in furtherance of Congress’s
intent to ensure that individuals who
are deaf or hard of hearing have better
access to online video programming, the
Video Clips Order reconsiders the
Commission’s earlier decision and
revises the Commission’s regulations to
require the provision of closed
captioning on video clips delivered
using IP when the programming was
published or exhibited on television
with captions. As discussed in Section
III of the Video Clips Order, it imposes
closed captioning requirements on IPdelivered video clips by adopting rules
that will:
• Extend the IP closed captioning
requirements to IP-delivered video clips
if the video programming distributor or
provider posts on its Web site or
application (‘‘app’’) a video clip of video
programming that it published or
exhibited on television in the United
States with captions, regardless of the
content or length of the video clip.
• Pursuant to our authority to
establish an appropriate schedule of
deadlines for purposes of the IP closed
captioning requirements, adopt a
compliance deadline of January 1, 2016
for ‘‘straight lift’’ clips, which contain a
single excerpt of a captioned television
program with the same video and audio
that was presented on television, and
January 1, 2017 for ‘‘montages,’’ which
contain multiple straight lift clips.
• After the applicable deadlines,
require IP-delivered video clips to be
provided with closed captions at the
time the clips are posted online, except
as otherwise provided.
• For clips of video programming
previously shown live or near-live on
television with captions, require
captions beginning July 1, 2017 and for
the present time allow a grace period of
12 hours after the live programming is
shown on television and eight hours
after the near-live programming is
shown on television before the clip
must be captioned online.
• Find that compliance with the new
requirements would be economically
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burdensome for video clips that are in
the video programming distributor’s or
provider’s online library before January
1, 2016 for straight lift clips, and
January 1, 2017 for montages, and thus
exempt this class of video clips from
coverage; and
• Generally apply the IP closed
captioning requirements to video clips
in the same manner that they apply to
full-length video programming, which
among other things means that the
quality requirements applicable to fulllength IP-delivered video programming
will apply to video clips.
In short, while we expect that some
small entities will be impacted by these
rules, we find that any economic impact
of these rules on small entities will be
mitigated by the availability of
exemptions due to economic burden,
and by the provision of the CVAA
providing that a de minimis failure to
comply with these rules will not be
treated as a violation.
2. Summary of Significant Issues Raised
by Public Comments in Response to the
IRFA
38. No comments were filed in
response to the IRFA. Some parties have
made filings on the record that address
the potential impact on small entities of
rules requiring closed captioning of IPdelivered video clips. Specifically, one
commenter asserted that small
broadcasters that currently voluntarily
caption certain televised programming
might cease doing so, to avoid triggering
a requirement for captioning of online
clips of that programming.65 Another
commenter argued that the technology
is still developing and stated, ‘‘If
broadcasters, perhaps particularly
smaller ones, were immediately to face
FCC complaint procedures and potential
enforcement actions for failing to
caption online video clips with the
requisite quality, this would act as a
disincentive to place video clips online,
at least until clip captioning technology
improves in both quality and
reliability.’’ 66
65 Reply Comments of the Association of Public
Television Stations and the Public Broadcasting
Service at 2, 5–6. But see Consumer Groups Reply
to Opposition of APTS/PBS, NAB, and NCTA at 5
(arguing that reductions in captioning costs no
longer justify the television closed captioning
exemption cited by APTS/PBS, in any event, and
that the availability of exemptions due to economic
burden should alleviate the concerns of APTS/PBS).
66 Reply Comments of the National Association of
Broadcasters at 10. See also id. at 5, n. 8 (‘‘Some
small market stations report that they can only
afford to caption clips online if owned and
subsidized by a larger market station, given the cost
of clip captioning and the lack of revenue from
online video clips.’’); Disney June 18 Ex Parte Letter
at 2 (‘‘[T]he key aspect in crafting a realistic regime
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3. Description and Estimate of the
Number of Small Entities to Which the
Rules Will Apply
39. The RFA directs agencies to
provide a description of and an estimate
of the number of small entities to which
the rules will apply. 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 Small Business
Administration (‘‘SBA’’). Below are
descriptions of the small entities that
may be affected by the rules adopted in
the Video Clips Order, including, where
feasible, an estimate of the number of
such small entities.
40. Small Businesses, Small
Organizations, and Small Governmental
Jurisdictions. Our action may, over time,
affect small entities that are not easily
categorized at present. We therefore
describe here, at the outset, three
comprehensive, statutory small entity
size standards. First, according to the
SBA Office of Advocacy, in 2010, there
were 27.9 million small businesses in
the United States. In addition, a ‘‘small
organization’’ is generally ‘‘any not-forprofit 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, towns,
townships, villages, school districts, or
special districts, with a population of
less than fifty thousand.’’ Census
Bureau data for 2011 indicate that there
were 89,476 local governmental
jurisdictions in the United States. We
estimate that, of this total, a substantial
majority may qualify as ‘‘small
governmental jurisdictions.’’ Thus, we
estimate that most governmental
jurisdictions are small.
41. Wired Telecommunications
Carriers. The North American Industry
Classification System (‘‘NAICS’’) defines
‘‘Wired Telecommunications Carriers’’
as follows: ‘‘This industry comprises
establishments primarily engaged in
operating and/or providing access to
would be a long implementation period so that
stations and programmers (both big and small)
could budget for and undertake such a
reconfiguration.’’) (emphasis in original).
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transmission facilities and infrastructure
that they own and/or lease for the
transmission of voice, data, text, sound,
and video using wired
telecommunications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies. Establishments in this
industry use the wired
telecommunications network facilities
that they operate to provide a variety of
services, such as wired telephony
services, including VoIP services; wired
(cable) audio and video programming
distribution; and wired broadband
Internet services. By exception,
establishments providing satellite
television distribution services using
facilities and infrastructure that they
operate are included in this industry.’’
The SBA has developed a small
business size standard for wireline firms
for the broad economic census category
of ‘‘Wired Telecommunications
Carriers.’’ Under this category, a
wireline business is small if it has 1,500
or fewer employees. Census data for
2007 shows that there were 31,996
establishments that operated for the
entire year. Of this total, 30,178
establishments had fewer than 100
employees, and 1,818 establishments
had 100 or more employees. Therefore,
under this size standard, we estimate
that the majority of businesses can be
considered small entities.
42. Cable Television Distribution
Services. Since 2007, these services
have been defined within the broad
economic census category of Wired
Telecommunications Carriers, which
category is defined above. The SBA has
developed a small business size
standard for this category, which is: All
such businesses having 1,500 or fewer
employees. Census data for 2007 shows
that there were 31,996 establishments
that operated for the entire year. Of this
total, 30,178 establishments had fewer
than 100 employees, and 1,818
establishments had 100 or more
employees. Therefore, under this size
standard, we estimate that the majority
of businesses can be considered small
entities.
43. Cable Companies and Systems.
The Commission has also developed its
own small business size standards, for
the purpose of cable rate regulation.
Under the Commission’s rate regulation
rules, a ‘‘small cable company’’ is one
serving 400,000 or fewer subscribers,
nationwide. According to SNL Kagan,
there are 1,258 cable operators. Of this
total, all but 10 incumbent cable
companies are small under this size
standard. In addition, under the
Commission’s rules, a ‘‘small system’’ is
a cable system serving 15,000 or fewer
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subscribers. Current Commission
records show 4,584 cable systems
nationwide. Of this total, 4,012 cable
systems have fewer than 20,000
subscribers, and 572 systems have
20,000 subscribers or more, based on the
same records. Thus, under this
standard, we estimate that most cable
systems are small.
44. Cable System Operators (Telecom
Act Standard). The Communications
Act of 1934, as amended, also contains
a size standard for small cable system
operators, which is ‘‘a cable operator
that, directly or through an affiliate,
serves in the aggregate fewer than 1
percent of all subscribers in the United
States and is not affiliated with any
entity or entities whose gross annual
revenues in the aggregate exceed
$250,000,000.’’ The Commission has
determined that an operator serving
fewer than 677,000 subscribers shall be
deemed a small operator, if its annual
revenues, when combined with the total
annual revenues of all its affiliates, do
not exceed $250 million in the
aggregate. Based on available data, we
find that all but 10 incumbent cable
operators are small under this size
standard. We note that the Commission
neither requests nor collects information
on whether cable system operators are
affiliated with entities whose gross
annual revenues exceed $250 million.
Although it seems certain that some of
these cable system operators are
affiliated with entities whose gross
annual revenues exceed $250,000,000,
we are unable to estimate with greater
precision the number of cable system
operators that would qualify as small
cable operators under this definition.
45. Direct Broadcast Satellite (DBS)
Service. DBS service is a nationally
distributed subscription service that
delivers video and audio programming
via satellite to a small parabolic ‘‘dish’’
antenna at the subscriber’s location.
DBS, by exception, is now included in
the SBA’s broad economic census
category, Wired Telecommunications
Carriers, which was developed for small
wireline businesses. Under this
category, the SBA deems a wireline
business to be small if it has 1,500 or
fewer employees. Census data for 2007
shows that there were 31,996
establishments that operated for the
entire year. Of this total, 30,178
establishments had fewer than 100
employees, and 1,818 establishments
had 100 or more employees. Therefore,
under this size standard, the majority of
such businesses can be considered
small. However, the data we have
available as a basis for estimating the
number of such small entities were
gathered under a superseded SBA small
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business size standard formerly titled
‘‘Cable and Other Program
Distribution.’’ The definition of Cable
and Other Program Distribution
provided that a small entity is one with
$12.5 million or less in annual receipts.
Currently, only two entities provide
DBS service, which requires a great
investment of capital for operation:
DIRECTV and DISH Network. Each
currently offers subscription services.
DIRECTV and DISH Network each
reports annual revenues that are in
excess of the threshold for a small
business. Because DBS service requires
significant capital, we believe it is
unlikely that a small entity as defined
by the SBA would have the financial
wherewithal to become a DBS service
provider.
46. Satellite Master Antenna
Television (SMATV) Systems, also
known as Private Cable Operators
(PCOs). SMATV systems or PCOs are
video distribution facilities that use
closed transmission paths without using
any public right-of-way. They acquire
video programming and distribute it via
terrestrial wiring in urban and suburban
multiple dwelling units such as
apartments and condominiums, and
commercial multiple tenant units such
as hotels and office buildings. SMATV
systems or PCOs are now included in
the SBA’s broad economic census
category, Wired Telecommunications
Carriers, which was developed for small
wireline businesses. Under this
category, the SBA deems a wireline
business to be small if it has 1,500 or
fewer employees. Census data for 2007
shows that there were 31,996
establishments that operated for the
entire year. Of this total, 30,178
establishments had fewer than 100
employees, and 1,818 establishments
had 100 or more employees. Therefore,
under this size standard, the majority of
such businesses can be considered
small.
47. Home Satellite Dish (HSD)
Service. HSD or the large dish segment
of the satellite industry is the original
satellite-to-home service offered to
consumers, and involves the home
reception of signals transmitted by
satellites operating generally in the Cband frequency. Unlike DBS, which
uses small dishes, HSD antennas are
between four and eight feet in diameter
and can receive a wide range of
unscrambled (free) programming and
scrambled programming purchased from
program packagers that are licensed to
facilitate subscribers’ receipt of video
programming. Because HSD provides
subscription services, HSD falls within
the SBA-recognized definition of Wired
Telecommunications Carriers. The SBA
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has developed a small business size
standard for this category, which is: All
such businesses having 1,500 or fewer
employees. Census data for 2007 shows
that there were 31,996 establishments
that operated that year. Of this total,
30,178 establishments had fewer than
100 employees, and 1,818
establishments had 100 or more
employees. Therefore, under this size
standard, we estimate that the majority
of businesses can be considered small
entities.
48. Open Video Services. The open
video system (OVS) framework was
established in 1996, and is one of four
statutorily recognized options for the
provision of video programming
services by local exchange carriers. The
OVS framework provides opportunities
for the distribution of video
programming other than through cable
systems. 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 businesses having 1,500 or fewer
employees. Census data for 2007 shows
that there were 31,996 establishments
that operated that year. Of this total,
30,178 establishments had fewer than
100 employees, and 1,818
establishments had 100 or more
employees. Therefore, under this size
standard, we estimate that the majority
of businesses can be considered small
entities. In addition, we note that the
Commission has certified some OVS
operators, with some now providing
service. Broadband service providers
(‘‘BSPs’’) are currently the only
significant holders of OVS certifications
or local OVS franchises. The
Commission does not have financial or
employment information regarding the
entities authorized to provide OVS,
some of which may not yet be
operational. Thus, again, at least some
of the OVS operators may qualify as
small entities.
49. 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. The BRS auctions
resulted in 67 successful bidders
obtaining licensing opportunities for
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493 Basic Trading Areas (BTAs). Of the
67 auction winners, 61 met the
definition of a small business. BRS also
includes licensees of stations authorized
prior to the auction. At this time, we
estimate that of the 61 small business
BRS auction winners, 48 remain small
business licensees. In addition to the 48
small businesses that hold BTA
authorizations, there are approximately
392 incumbent BRS licensees that are
considered small entities. After adding
the number of small business auction
licensees to the number of incumbent
licensees not already counted, we find
that 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, the
sale of 78 licenses in the BRS areas. The
Commission offered three levels of
bidding credits: (i) A bidder with
attributed average annual gross revenues
that exceed $15 million and do not
exceed $40 million for the preceding
three years (small business) received a
15 percent discount on its winning bid;
(ii) a bidder with attributed average
annual gross revenues that exceed $3
million and do not exceed $15 million
for the preceding three years (very small
business) received a 25 percent discount
on its winning bid; and (iii) a bidder
with attributed average annual gross
revenues that do not exceed $3 million
for the preceding three years
(entrepreneur) received a 35 percent
discount on its winning bid. Auction 86
concluded in 2009 with the sale of 61
licenses. 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.
50. 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. Since 2007, these
services have been defined within the
broad economic census category of
Wired Telecommunications Carriers,
which was developed for small wireline
businesses. The SBA has developed a
small business size standard for this
category, which is: All such businesses
having 1,500 or fewer employees.
Census data for 2007 shows that there
were 31,996 establishments that
operated that year. Of this total, 30,178
establishments had fewer than 100
employees, and 1,818 establishments
had 100 or more employees. Therefore,
under this size standard, we estimate
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that the majority of businesses can be
considered small entities. In addition to
Census data, the Commission’s internal
records indicate that as of September
2012, there are 2,241 active EBS
licenses. The Commission estimates that
of these 2,241 licenses, the majority are
held by non-profit educational
institutions and school districts, which
are by statute defined as small
businesses.
51. Incumbent Local Exchange
Carriers (ILECs). Neither the
Commission nor the SBA has developed
a small business size standard
specifically for incumbent local
exchange services. ILECs are included
in the SBA’s economic census category,
Wired Telecommunications Carriers.
Under this category, the SBA deems a
wireline business to be small if it has
1,500 or fewer employees. Census data
for 2007 shows that there were 31,996
establishments that operated that year.
Of this total, 30,178 establishments had
fewer than 100 employees, and 1,818
establishments had 100 or more
employees. Therefore, under this size
standard, the majority of such
businesses can be considered small.
52. Small Incumbent Local Exchange
Carriers. We have included small
incumbent local exchange carriers in
this present RFA analysis. A ‘‘small
business’’ under the RFA is one that,
inter alia, meets the pertinent small
business size standard (e.g., a telephone
communications business having 1,500
or fewer employees), and ‘‘is not
dominant in its field of operation.’’ The
SBA’s Office of Advocacy contends that,
for RFA purposes, small incumbent
local exchange carriers are not dominant
in their field of operation because any
such dominance is not ‘‘national’’ in
scope. We have therefore included small
incumbent local exchange carriers in
this RFA analysis, although we
emphasize that this RFA action has no
effect on Commission analyses and
determinations in other, non-RFA
contexts.
53. 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.
These entities are included in the SBA’s
economic census category, Wired
Telecommunications Carriers. Under
this category, the SBA deems a wireline
business to be small if it has 1,500 or
fewer employees. Census data for 2007
shows that there were 31,996
establishments that operated that year.
Of this total, 30,178 establishments had
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fewer than 100 employees, and 1,818
establishments had 100 or more
employees. Therefore, under this size
standard, the majority of such
businesses can be considered small.
54. Television Broadcasting. This
economic census category ‘‘comprises
establishments primarily engaged in
broadcasting images together with
sound.’’ The SBA has created the
following small business size standard
for Television Broadcasting businesses:
Those having $35.5 million or less in
annual receipts. Census data for 2007
shows that 2,076 establishments in this
category operated for the entire year. Of
this total, 1,515 establishments had
annual receipts of $10,000,000 or less,
and 561 establishments had annual
receipts of more than $10,000,000.
Because the Census has no additional
classifications on the basis of which to
identify the number of stations whose
receipts exceeded $35.5 million in that
year, the majority of such
establishments can be considered small
under this size standard.
55. Apart from the U.S. Census, the
Commission has estimated the number
of licensed commercial television
stations to be 1,388 stations. Of this
total, 1,221 stations (or about 88
percent) had revenues of $35.5 million
or less, according to Commission staff
review of the BIA Kelsey Inc. Media
Access Pro Television Database (BIA) on
July 2, 2014. In addition, the
Commission has estimated the number
of licensed noncommercial educational
(NCE) television stations to be 395. NCE
stations are non-profit, and therefore
considered to be small entities.
Therefore, we estimate that the majority
of television broadcast stations are small
entities.
56. We note, however, that in
assessing whether a business concern
qualifies as small under the above
definition, business (control) affiliations
must be included. Our estimate,
therefore, likely overstates the number
of small entities that might be affected
by our action because the revenue figure
on which it is based does not include or
aggregate revenues from affiliated
companies. In addition, an element of
the definition of ‘‘small business’’ is that
the entity not be dominant in its field
of operation. We are unable at this time
to define or quantify the criteria that
would establish whether a specific
television station is dominant in its field
of operation. Accordingly, the estimate
of small businesses to which rules may
apply does not exclude any television
station from the definition of a small
business on this basis and is therefore
possibly over-inclusive to that extent.
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57. Cable and Other Subscription
Programming. The Census Bureau
defines this category as follows: ‘‘This
industry comprises establishments
primarily engaged in operating studios
and facilities for the broadcasting of
programs on a subscription or fee basis
. . . . These establishments produce
programming in their own facilities or
acquire programming from external
sources. The programming material is
usually delivered to a third party, such
as cable systems or direct-to-home
satellite systems, for transmission to
viewers.’’ The SBA has developed a
small business size standard for this
category, which is: All such businesses
having $35.5 million or less in annual
revenues. Census data for 2007 shows
that there were 659 establishments that
operated for the entire year. Of that
number, 462 operated with annual
revenues of fewer than $10 million, and
197 operated with annual revenues of
$10 million or more. Therefore, under
this size standard, the majority of such
businesses can be considered small.
58. Motion Picture and Video
Production. The Census Bureau defines
this category as follows: ‘‘This industry
comprises establishments primarily
engaged in producing, or producing and
distributing motion pictures, videos,
television programs, or television
commercials.’’ We note that firms in this
category may be engaged in various
industries, including cable
programming. Specific figures are not
available regarding how many of these
firms produce programming for cable
television. To gauge small business
prevalence in the Motion Picture and
Video Production industries, the
Commission relies on data currently
available from the U.S. Census for the
year 2007. The SBA has developed a
small business size standard for this
category, which is: Those having $30
million or less in annual receipts.
Census data for 2007 shows that there
were 9,095 firms in this category that
operated for the entire year. Of this
total, 8,995 firms had annual receipts of
fewer than $25 million, and 43 firms
had receipts of $25 million to
$49,999,999. Therefore, under this size
standard, the majority of such
businesses can be considered small.
59. Motion Picture and Video
Distribution. The Census Bureau defines
this category as follows: ‘‘This industry
comprises establishments primarily
engaged in acquiring distribution rights
and distributing film and video
productions to motion picture theaters,
television networks and stations, and
exhibitors.’’ We note that firms in this
category may be engaged in various
industries, including cable
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programming. Specific figures are not
available regarding how many of these
firms distribute programming for cable
television. To gauge small business
prevalence in the Motion Picture and
Video Distribution industries, the
Commission relies on data currently
available from the U.S. Census for the
year 2007. The SBA has developed a
small business size standard for this
category, which is: Those having $29.5
million or less in annual receipts.
Census data for 2007 shows that there
were 450 firms in this category that
operated for the entire year. Of this
total, 434 firms had annual receipts of
fewer than $25 million, and 7 firms had
receipts of $25 million to $49,999,999.
Therefore, under this size standard, the
majority of such businesses can be
considered small.
60. Internet Publishing and
Broadcasting and Web Search Portals.
The Census Bureau defines this category
as follows: ‘‘This industry comprises
establishments primarily engaged in (1)
publishing and/or broadcasting content
on the Internet exclusively or (2)
operating Web sites that use a search
engine to generate and maintain
extensive databases of Internet
addresses and content in an easily
searchable format (and known as Web
search portals). The publishing and
broadcasting establishments in this
industry do not provide traditional
(non-Internet) versions of the content
that they publish or broadcast. They
provide textual, audio, and/or video
content of general or specific interest on
the Internet exclusively. Establishments
known as Web search portals often
provide additional Internet services,
such as email, connections to other Web
sites, auctions, news, and other limited
content, and serve as a home base for
Internet users.’’ The SBA has developed
a small business size standard for this
category, which is: All such businesses
having 500 or fewer employees. Census
data for 2007 shows that there were
2,705 firms that operated for the entire
year. Of this total, 2,682 firms had fewer
than 500 employees, and 13 firms had
between 500 and 999 employees.
Therefore, under this size standard, the
majority of such businesses can be
considered small.
61. Radio and Television
Broadcasting and Wireless
Communications Equipment
Manufacturing. The Census Bureau
defines this category as follows: ‘‘This
industry comprises establishments
primarily engaged in manufacturing
radio and television broadcast and
wireless communications equipment.
Examples of products made by these
establishments are: Transmitting and
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receiving antennas, cable television
equipment, GPS equipment, pagers,
cellular phones, mobile
communications equipment, and radio
and television studio and broadcasting
equipment.’’ The SBA has developed a
small business size standard for this
category, which is: All such businesses
having 750 or fewer employees. Census
data for 2007 shows that there were 939
establishments that operated for part or
all of the entire year. Of this total, 912
establishments had fewer than 500
employees, and 10 establishments had
between 500 and 999 employees.
Therefore, under this size standard, the
majority of such establishments can be
considered small.
62. Audio and Video Equipment
Manufacturing. The Census Bureau
defines this category as follows: ‘‘This
industry comprises establishments
primarily engaged in manufacturing
electronic audio and video equipment
for home entertainment, motor vehicles,
and public address and musical
instrument amplification. Examples of
products made by these establishments
are video cassette recorders, televisions,
stereo equipment, speaker systems,
household-type video cameras,
jukeboxes, and amplifiers for musical
instruments and public address
systems.’’ The SBA has developed a
small business size standard for this
category, which is: All such businesses
having 750 or fewer employees. Census
data for 2007 shows that 492
establishments in this category operated
for part or all of the entire year. Of this
total, 488 establishments had fewer than
500 employees, and three had between
500 and 999 employees. Therefore,
under this size standard, the majority of
such establishments can be considered
small.
63. Closed Captioning Services. These
entities may be indirectly affected by
our action. The SBA has developed two
small business size standards that may
be used for closed captioning services.
The two size standards track the
economic census categories,
‘‘Teleproduction and Other
Postproduction Services’’ and ‘‘Court
Reporting and Stenotype Services.’’
64. The first category of
Teleproduction and Other
Postproduction Services ‘‘comprises
establishments primarily engaged in
providing specialized motion picture or
video postproduction services, such as
editing, film/tape transfers, subtitling,
credits, closed captioning, and
animation and special effects.’’ The SBA
has developed a small business size
standard for this category, which is:
Those having $29.5 million or less in
annual receipts. Census data for 2007
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Fmt 4700
Sfmt 4700
45369
indicates that there were 1,605 firms
that operated in this category for the
entire year. Of this total, 1,587 firms had
annual receipts of fewer than $25
million, and 9 firms had receipts of $25
million to $49,999,999. Therefore, we
estimate that the majority of firms in
this category are small entities.
65. The second category of Court
Reporting and Stenotype Services
‘‘comprises establishments primarily
engaged in providing verbatim reporting
and stenotype recording of live legal
proceedings and transcribing
subsequent recorded materials.’’ The
SBA has developed a small business
size standard for this category, which is:
Those having $14 million or less in
annual receipts. Census data for 2007
indicates that there were 2,706 firms
that operated in this category for the
entire year. Of this total, 2,687 had
annual receipts of fewer than $10
million, and 11 firms had receipts of
$10 million to $24,999,999. Therefore,
we estimate that the majority of firms in
this category are small entities.
4. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements for Small Entities
66. The rules adopted in the Video
Clips Order generally extend the IP
closed captioning requirements, which
previously applied only to full-length
video programming, to video clips. The
Video Clips Order does not adopt a new
regulatory regime, but rather, applies
the existing regime for full-length IPdelivered video programming to IPdelivered video clips, with certain
modifications in recognition of the
differences between video clips and
full-length video programming.
Accordingly, there are no new reporting
or recordkeeping requirements. There
will, however, be new compliance
requirements for small entities.
Specifically, the IP closed captioning
requirements will extend to IP-delivered
video clips if the video programming
distributor or provider posts on its Web
site or app a video clip of video
programming that it published or
exhibited on television in the United
States with captions. The Commission
adopts a compliance deadline of January
1, 2016 for ‘‘straight lift’’ clips, which
contain a single excerpt of a captioned
television program with the same video
and audio that was presented on
television, and January 1, 2017 for
‘‘montages,’’ which contain multiple
straight lift clips. After the applicable
deadlines, the new rules will require IPdelivered video clips to be provided
with closed captions at the time the
clips are posted online, except as
otherwise provided. For clips of video
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mstockstill on DSK4VPTVN1PROD with RULES
programming previously shown live or
near-live on television with captions,
the rules will require captions beginning
July 1, 2017, and for the present time
will allow a grace period of 12 hours
after the live programming is shown on
television and eight hours after the nearlive programming is shown on
television before the clip must be
captioned online. The Commission
finds that compliance with the new
requirements would be economically
burdensome for video clips that are in
the video programming distributor’s or
provider’s online library before January
1, 2016 for straight lift clips and January
1, 2017 for montages, and thus the
Commission exempts this class of video
clips from coverage. In general, the
Commission applies the IP closed
captioning requirements to video clips
in the same manner that they apply to
full-length video programming, which
among other things means that the
quality requirements applicable to fulllength IP-delivered video programming
will apply to video clips.
5. Steps Taken To Minimize Significant
Economic Impact on Small Entities and
Significant Alternatives Considered
67. The RFA requires an agency to
describe the steps the agency has taken
to minimize the significant economic
impact on small entities consistent with
the stated objectives of applicable
statutes, including a statement of the
factual, policy, and legal reasons for
selecting the alternative adopted in the
final rule and why each one of the other
significant alternatives to the rule
considered by the agency which affect
the impact on small entities was
rejected.
68. As explained above, the Video
Clips Order does not adopt a new
regulatory regime, but rather, applies
the existing regime for full-length IPdelivered video programming to IPdelivered video clips, with certain
modifications in recognition of the
differences between video clips and
full-length video programming.
Accordingly, similar to the rules
promulgated in the IP Closed
Captioning Order, the rules adopted in
the Video Clips Order may have a
significant economic impact in some
cases and that impact may affect a
substantial number of small entities.
Although the Commission has
considered alternatives, where possible,
to minimize economic impact on small
entities, we note that our action is
governed by the congressional mandate
contained in the CVAA.
69. Notably, the same aspects of the
IP closed captioning rules applicable to
full-length programming that ease
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compliance burdens on small entities
also apply to small entities in the
context of video clips. Specifically, in
the IP Closed Captioning Order, the
Commission adopted procedures
enabling it to grant exemptions to the
rules governing closed captioning of IPdelivered video programming pursuant
to Section 202 of the CVAA, where a
petitioner has shown that compliance
would present an economic burden (i.e.,
a significant difficulty or expense), and
pursuant to Section 203 of the CVAA,
where a petitioner has shown that
compliance is not achievable (i.e.,
cannot be accomplished with reasonable
effort or expense) or not technically
feasible. As was the case with regard to
full-length programming, this
exemption process will allow the
Commission to address the impact of
the extension of the rules to video clips
on individual entities, including smaller
entities, and to modify the application
of the rules to accommodate individual
circumstances. Further, as with fulllength IP-delivered video programming,
a de minimis failure to comply with the
requirements adopted pursuant to
Section 202 of the CVAA with regard to
IP-delivered video clips will not be
treated as a violation, and parties may
continue to use alternate means of
compliance to the rules adopted
pursuant to either Section 202 or
Section 203 of the CVAA. Individual
entities, including smaller entities, may
benefit from these provisions.
70. Overall, in crafting its new
requirements, the Commission
addressed the issues described in
Section B above by providing reasonable
timeframes within which entities may
come into compliance, and by providing
a grace period within which captions
may be added to video clips of live or
near-live programming. All of these
provisions should ease the burdens that
small entities otherwise would face in
complying with these requirements.
Further, in recognition of the burdens
that would be imposed on regulated
entities, in particular smaller entities, if
faced with a requirement to caption
video clips that are in the video
programming distributor’s or provider’s
online library before January 1, 2016 for
straight lift clips and January 1, 2017 for
montages, the Commission finds that
such a requirement would be
economically burdensome and thus
exempts this category of video clips
from coverage. We note, additionally,
that a Commission requirement for
captioning IP-delivered video clips will
ensure that the content, including
critical news programming, will be
accessible to individuals who are deaf
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Fmt 4700
Sfmt 4700
or hard of hearing, thus significantly
benefiting consumers and serving the
stated public interest goal of the CVAA.
6. Report to Congress
71. The Commission will send a copy
of the Video Clips Order, including this
FRFA, in a report to be sent to Congress
pursuant to the Congressional Review
Act.67 In addition, the Commission will
send a copy of the Video Clips Order,
including this FRFA, to the Chief
Counsel for Advocacy of the SBA. A
copy of the Video Clips Order and FRFA
(or summaries thereof) will also be
published in the Federal Register.68
B. Paperwork Reduction Act
72. The Video Clips Order does not
contain proposed information
collection(s) subject to the Paperwork
Reduction Act of 1995 (PRA), Public
Law 104–13. In addition, therefore, it
does not contain any new or modified
information collection burden for small
business concerns with fewer than 25
employees, pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4).
C. Congressional Review Act
73. The Commission will send a copy
of the Video Clips Order in MB Docket
No. 11–154 in a report to be sent to
Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
D. Additional Information
74. For additional information on this
proceeding, contact Diana Sokolow,
Diana.Sokolow@fcc.gov, of the Media
Bureau, Policy Division, (202) 418–
2120.
V. Ordering Clauses
75. Accordingly, it is ordered that,
pursuant to the authority found in
Sections 4(i), 4(j), 303, and 713 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 154(j), 303,
and 613, this Second Order on
Reconsideration IS adopted, effective
thirty (30) days after the date of
publication in the Federal Register.
76. It is ordered that, pursuant to the
authority found in sections 4(i), 4(j),
303, and 713 of the Communications
Act of 1934, as amended, 47 U.S.C.
154(i), 154(j), 303, and 613, the
Commission’s rules are hereby amended
as set forth in the Final Rules below.
77. It is further ordered that the
Commission’s Consumer and
67 See
68 See
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5 U.S.C. 801(a)(1)(A).
id. 604(b).
05AUR1
Federal Register / Vol. 79, No. 150 / Tuesday, August 5, 2014 / Rules and Regulations
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Second Order on Reconsideration
MB Docket No. 11–154, including the
Final Regulatory Flexibility Analysis, to
the Chief Counsel for Advocacy of the
Small Business Administration.
78. It is further ordered that the
Commission shall send a copy of this
Second Order on Reconsideration in MB
Docket No. 11–154 in a report to be sent
to Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
79. It is further ordered that Consumer
Groups’ Petition for Reconsideration,
filed April 27, 2012, is granted in part,
to the extent provided herein.
List of Subjects in 47 CFR Part 79
Cable television operators,
Communications equipment,
Multichannel video programming
distributors (MVPDs), Satellite
television service providers, Television
broadcasters.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 79 as
follows:
PART 79—ACCESSIBILITY OF VIDEO
PROGRAMMING
1. The authority citation for part 79
continues to read as follows:
■
Authority: 47 U.S.C. 151, 152(a), 154(i),
303, 307, 309, 310, 330, 544a, 613, 617.
2. Amend § 79.4 by revising paragraph
(b) to read as follows:
■
§ 79.4 Closed captioning of video
programming delivered using Internet
protocol.
mstockstill on DSK4VPTVN1PROD with RULES
*
*
*
*
*
(b) Requirements for closed
captioning of Internet protocol-delivered
video programming. (1) All nonexempt
full-length video programming
delivered using Internet protocol must
be provided with closed captions if the
programming is published or exhibited
on television in the United States with
captions on or after the following dates:
(i) September 30, 2012, for all
prerecorded programming that is not
edited for Internet distribution, unless it
is subject to paragraph (b)(1)(iv) of this
section.
(ii) March 30, 2013, for all live and
near-live programming, unless it is
subject to paragraph (b)(1)(iv) of this
section.
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16:53 Aug 04, 2014
Jkt 232001
(iii) September 30, 2013, for all
prerecorded programming that is edited
for Internet distribution, unless it is
subject to paragraph (b)(1)(iv) of this
section.
(iv) All programming that is already
in the video programming distributor’s
or provider’s library before it is shown
on television with captions must be
captioned within 45 days after the date
it is shown on television with captions
on or after March 30, 2014 and before
March 30, 2015. Such programming
must be captioned within 30 days after
the date it is shown on television with
captions on or after March 30, 2015 and
before March 30, 2016. Such
programming must be captioned within
15 days after the date it is shown on
television with captions on or after
March 30, 2016.
(2) All nonexempt video clips
delivered using Internet protocol must
be provided with closed captions if the
video programming distributor or
provider posts on its Web site or
application a video clip of video
programming that it published or
exhibited on television in the United
States with captions on or after the
applicable compliance deadline. The
requirements contained in this
paragraph shall not apply to video clips
added to the video programming
distributor’s or provider’s library before
the video programming distributor or
provider published or exhibited the
associated video programming on
television in the United States with
captions on or after the applicable
compliance deadline.
(i) The requirements contained in
paragraph (b)(2) of this section shall
apply with the following compliance
deadlines:
(A) January 1, 2016, where the video
clip contains a single excerpt of a
captioned television program with the
same video and audio that was
presented on television.
(B) January 1, 2017, where a single file
contains multiple video clips that each
contain a single excerpt of a captioned
television program with the same video
and audio that was presented on
television.
(C) July 1, 2017, for video clips of live
and near-live programming.
(ii) Closed captions must be provided
for video clips of live programming
within 12 hours after the conclusion of
the associated video programming’s
publication or exhibition on television
in the United States with captions.
Closed captions must be provided for
video clips of near-live programming
within eight hours after the conclusion
of the associated video programming’s
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45371
publication or exhibition on television
in the United States with captions.
*
*
*
*
*
[FR Doc. 2014–18203 Filed 8–4–14; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 90
[WT Docket No. 06–49; FCC 14–79]
Rules in the 904–909.75 and 919.75–
928 MHz Bands
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this Order, the Commission
terminates the Multilateration Location
and Monitoring Service (M–LMS)
rulemaking proceeding in WT Docket
No. 06–49 and concludes that the
proposals for broad revisions of the
applicable rules do not merit further
consideration at this time.
DATES: Effective Date: September 4,
2014.
SUMMARY:
Paul
D’Ari, Wireless Telecommunications
Bureau, (202) 418–1550, email
Paul.DAri@fcc.gov
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order,
WT Docket No. 06–49, FCC 14–79,
adopted June 9, 2014 and released June
10, 2014. The full text of this document
is available for inspection and copying
during business hours in the FCC
Reference Information Center, Portals II,
445 12th Street SW., Room CY–A257,
Washington, DC 20554. Also, it may be
purchased from the Commission’s
duplicating contractor at Portals II, 445
12th Street SW., Room CY–B402,
Washington, DC 20554; the contractor’s
Web site, https://www.bcpiweb.com; or
by calling (800) 378–3160, facsimile
(202) 488–5563, or email FCC@
BCPIWEB.com. Copies of the R&O and
OPM also may be obtained via the
Commission’s Electronic Comment
Filing System (ECFS) by entering the
docket number WT Docket 14–79.
Additionally, the complete item is
available on the Federal
Communications Commission’s Web
site at https://www.fcc.gov.
FOR FURTHER INFORMATION CONTACT:
I. Introduction and Background
1. In 1995, the Commission
established Location and Monitoring
Service (LMS) as a new radio service to
be licensed in the 902–928 MHz band.
LMS shares this band with a variety of
users: Federal radiolocation systems;
E:\FR\FM\05AUR1.SGM
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]]>Agencies
[Federal Register Volume 79, Number 150 (Tuesday, August 5, 2014)]
[Rules and Regulations]
[Pages 45354-45371]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18203]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 79
[MB Docket No. 11-154; FCC 14-97]
Closed Captioning of Internet Protocol-Delivered Video
Programming: Implementation of the Twenty-First Century Communications
and Video Accessibility Act of 2010; Closed Captioning of Internet
Protocol-Delivered Video Clips
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, as part of the Commission's continued
implementation of the Twenty-First Century Communications and Video
Accessibility Act of 2010 (``CVAA''), it concludes that clips of video
programming covered by the statute must be captioned when delivered
using Internet protocol (``IP''). The Commission adopts rules governing
such captioning and sets out a schedule of deadlines. These
requirements will apply where a video programming distributor or
provider posts on its Web
[[Page 45355]]
site or application a video clip of video programming that it published
or exhibited on television with captions on or after the applicable
compliance deadline.
DATES: Effective September 4, 2014.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Diana Sokolow, Diana.Sokolow@fcc.gov, of the Policy
Division, Media Bureau, (202) 418-2120.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Video
Clips Order, FCC 14-97, adopted on July 11, 2014 and released on July
14, 2014. The full text of this document is available for public
inspection and copying during regular business hours in the FCC
Reference Center, Federal Communications Commission, 445 12th Street
SW., Room CY-A257, Washington, DC 20554. This document will also be
available via ECFS at http:fjallfoss,fcc.gov/ecfs/. Documents will be
available electronically in ASCII, Microsoft Word, and/or Adobe
Acrobat. The complete text may be purchased from the Commission's copy
contractor, 445 12th Street SW., Room CY-B402, Washington, DC 20554.
Alternative formats are available for people with disabilities
(Braille, large print, electronic files, audio format), by sending an
email to fcc504@fcc.gov or calling the Commission's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Paperwork Reduction Act of 1995 Analysis
This document does not contain proposed information collection(s)
subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In
addition, therefore, it does not contain any new or modified
information collection burden for small business concerns with fewer
than 25 employees, pursuant to the Small Business Paperwork Relief Act
of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
Synopsis
I. Introduction
1. One of the Commission's priorities is to ensure that all
individuals, especially individuals with disabilities, are able to
enjoy the full benefits of broadband technology, including the services
that broadband enables such as online video programming. Online viewing
of video programming is becoming increasingly significant, and one
aspect of this development is that more and more consumers are
receiving news, sports, and entertainment programming in the form of
online video clips. In this Second Order on Reconsideration (``Video
Clips Order''), as part of our continued implementation of the Twenty-
First Century Communications and Video Accessibility Act of 2010
(``CVAA''), we conclude that clips of video programming covered by the
statute must be captioned when delivered using Internet protocol
(``IP'') and set out a schedule of deadlines.
2. When the Commission initially adopted IP closed captioning
requirements pursuant to its responsibilities under the CVAA it applied
the requirements to full-length video programming and not to video
clips.\1\ The Commission said that it might in the future extend the IP
closed captioning requirements to video clips if it found that
consumers who are deaf or hard of hearing are denied access to critical
areas of programming, such as news, because the programming is posted
online as video clips. In response to a petition for reconsideration
filed by consumer groups, and at the Commission's direction, the Media
Bureau issued a public notice seeking updated information on the closed
captioning of IP-delivered video clips, including the extent to which
the industry has voluntarily captioned these clips.\2\ After reviewing
the record compiled in this proceeding, we find that a significant
percentage of video clips continue to remain inaccessible to consumers
who are deaf or hard of hearing. In addition, we have reconsidered the
Commission's earlier interpretation of the statute and conclude that
Congress intended the IP closed captioning requirements to extend to
all covered video programming including clips, but left to our
discretion the timeline for compliance with this requirement.
Accordingly, to implement the statute fully, and in furtherance of
Congress's intent to ensure that individuals who are deaf or hard of
hearing have better access to online video programming, we reconsider
the Commission's earlier decision and revise our regulations to require
the provision of closed captioning on video clips delivered using IP
when the programming was published or exhibited on television with
captions. As discussed in section III below, this Video Clips Order
imposes closed captioning requirements on IP-delivered video clips by
adopting rules that will:
---------------------------------------------------------------------------
\1\ Closed Captioning of Internet Protocol-Delivered Video
Programming: Implementation of the Twenty-First Century
Communications and Video Accessibility Act of 2010, Report and
Order, 27 FCC Rcd 787, 816-18, para 44-48 (2012) (``IP Closed
Captioning Order'').
\2\ Media Bureau Seeks Comment on Application of the IP Closed
Captioning Rules to Video Clips, Public Notice, 28 FCC Rcd 16699
(MB, 2013) (``Video Clips PN'').
---------------------------------------------------------------------------
Extend the IP closed captioning requirements to IP-
delivered video clips if the video programming distributor or provider
\3\ posts on its Web site or application (``app'') a video clip of
video programming that it published or exhibited on television in the
United States with captions, regardless of the content or length of the
video clip.
---------------------------------------------------------------------------
\3\ When we use the term ``video programming distributor or
provider'' herein, we invoke the definition of that term in the
Commission's IP closed captioning rules, which is ``[a]ny person or
entity that makes available directly to the end user video
programming through a distribution method that uses Internet
protocol.'' 47 CFR 79.4(a)(3).
---------------------------------------------------------------------------
Pursuant to our authority to establish an appropriate
schedule of deadlines for purposes of the IP closed captioning
requirements,\4\ adopt a compliance deadline of January 1, 2016 for
``straight lift'' clips, which contain a single excerpt of a captioned
television program with the same video and audio that was presented on
television, and January 1, 2017 for ``montages,'' which contain
multiple straight lift clips.
---------------------------------------------------------------------------
\4\ 47 U.S.C. 613(c)(2)(B).
---------------------------------------------------------------------------
After the applicable deadlines, require IP-delivered video
clips to be provided with closed captions at the time the clips are
posted online, except as otherwise provided.
For clips of video programming previously shown live or
near-live on television with captions,\5\ require captions beginning
July 1, 2017 and for the present time allow a grace period of 12 hours
after the live programming is shown on television and eight hours after
the near-live programming is shown on television before the clip must
be captioned online.
---------------------------------------------------------------------------
\5\ Industry refers to these video clips as ``time-sensitive''.
---------------------------------------------------------------------------
Find that compliance with the new requirements would be
economically burdensome for video clips that are in the video
programming distributor's or provider's online library before January
1, 2016 for straight lift clips, and January 1, 2017 for montages, and
thus exempt this class of video clips from coverage; and
Generally apply the IP closed captioning requirements to
video clips in the same manner that they apply to full-length video
programming, which among other things means that the quality
requirements applicable to full-length IP-delivered video programming
will apply to video clips.
[[Page 45356]]
II. Background
3. In the IP Closed Captioning Order, the Commission implemented
section 202 of the CVAA by imposing closed captioning requirements on
the owners, providers, and distributors of IP-delivered video
programming with respect to full-length video programming.\6\ The
Commission defined ``full-length video programming'' covered by the
rules as video programming that appears on television and is
distributed to end users, substantially in its entirety, via IP. By
``substantially in its entirety,'' the Commission ``mean[t] to
reference video programming that is distributed via IP as a complete
video programming presentation, such as an episode of a television show
or movie.'' \7\ Accordingly, ``full-length video programming''
includes, for example, a full-length half-hour program that is missing
a few minutes when it is distributed via IP, as well as a full-length
program that is posted online in its entirety in multiple segments for
easy viewing. The definition of ``full-length video programming''
excludes ``video clips,'' which the Commission defined as excerpts of
full-length video programming.
---------------------------------------------------------------------------
\6\ When we use the term ``video programming owner'' herein, we
invoke the definition of that term in the Commission's IP closed
captioning rules, which is the person or entity that either (i)
licenses the video programming to a video programming distributor or
provider that makes the video programming available directly to the
end user through a distribution method that uses Internet protocol;
or (ii) acts as the video programming distributor or provider, and
also possesses the right to license the video programming to a video
programming distributor or provider that makes the video programming
available directly to the end user through a distribution method
that uses Internet protocol. 47 CFR 79.4(a)(4).
\7\ IP Closed Captioning Order, 27 FCC Rcd at 816, para. 44.
---------------------------------------------------------------------------
4. Although the Commission excluded video clips in the IP Closed
Captioning Order, it interpreted the legislative history of the CVAA as
signaling Congress's intent to leave open the extent to which the IP
closed captioning rules should cover video clips at some point in the
future. Hence, the Commission indicated that it might in the future
determine that the IP closed captioning requirements should apply to
video clips if necessary to provide access to this programming.
Specifically, the Commission stated, ``If we find that consumers who
are deaf or hard of hearing are not getting access to critical areas of
programming, such as news, because of the way the programming is posted
(e.g., through selected segments rather than full-length programs), we
may reconsider this issue to ensure that our rules meet Congress's
intent to bring captioning access to individuals viewing IP-delivered
video programming.''
5. In addition, although the Commission did not require closed
captioning of IP-delivered video clips, it encouraged video programming
owners, providers, and distributors to provide closed captions on such
content where they are able to do so. In particular, the Commission
``encourage[d] the industry to make captions available on all TV news
programming that is made available online, even if it is made available
through the use of video clips.'' \8\ The Commission also said that it
might find a violation of the IP closed captioning rules if an entity
exhibited a pattern of using video clips as a means of avoiding its
closed captioning obligations.
---------------------------------------------------------------------------
\8\ Id. at 818, para. 48.
---------------------------------------------------------------------------
6. A coalition of consumer groups filed a Petition for
Reconsideration of the IP Closed Captioning Order, arguing, among other
things, that the Commission should require captioning of IP-delivered
video clips.\9\ In an order responding to the Consumer Groups Petition,
the Commission noted that consumers were particularly concerned about
the availability of captioned news clips, which tend to be live or
near-live.\10\ Nevertheless, because full-length live and near-live
programming became subject to the IP closed captioning requirements
only about a month before Consumer Groups filed their petition, the
Commission expressed its expectation that entities subject to the IP
closed captioning rules would caption an increasing volume of video
clips, particularly news clips, given that they would be developing
more efficient processes for the captioning of live and near-live
programming. The Commission further indicated that it would monitor
industry actions on the captioning of IP-delivered video clips, and it
directed the Media Bureau to issue a public notice to seek updated
information on the topic within six months. If the record developed
from the public notice ``demonstrates that consumers are denied access
to critical areas of video programming due to lack of captioning of IP-
delivered video clips,'' the Commission indicated that it might
reconsider its decision not to subject video clips to the IP closed
captioning rules.
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\9\ Consumer Groups, Petition for Reconsideration of the
Commission's Report and Order, at iii, 1-17 (filed Apr. 27, 2012)
(``Consumer Groups Petition''). We use the term ``Consumer Groups''
to reference the signatories of the Consumer Groups Petition or a
subset thereof: Telecommunications for the Deaf and Hard of Hearing,
Inc.; National Association of the Deaf; Deaf and Hard of Hearing
Consumer Advocacy Network; Association of Late-Deafened Adults;
Hearing Loss Association of America; Cerebral Palsy and Deaf
Organization; and Technology Access Program at Gallaudet University.
The Consumer Groups' petition for reconsideration was published in
the Proposed Rules section of the Federal Register. See Petitions
for Reconsideration of Action in Rulemaking Proceeding, MB Docket
No. 11-154; Rpt No. 2951, 77 FR 30,485, May 23, 2012.
\10\ Closed Captioning of Internet Protocol-Delivered Video
Programming: Implementation of the Twenty-First Century
Communications and Video Accessibility Act of 2010, Order on
Reconsideration and Further Notice of Proposed Rulemaking, 28 FCC
Rcd 8785, 8804, para. 30 (2013).
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7. At the Commission's direction, the Media Bureau issued a public
notice seeking updated information on the closed captioning of IP-
delivered video clips, including the extent to which industry has
voluntarily captioned these clips. In the public notice, the Media
Bureau asked whether the Commission should require captioning of IP-
delivered video clips, and it invited comment on any issues relevant to
this determination. Commenters representing both the industry and
consumer groups submitted detailed filings on these issues. The record
demonstrates the large volume of IP-delivered video clips currently
available to consumers, culled from a multitude of full-length video
programs.
III. Discussion
8. As discussed fully below, we hereby reconsider our prior
decision and conclude that the CVAA covers video clips as well as full-
length video programming shown online. Accordingly, at this time we
apply the IP closed captioning requirements to video clips if the video
programming distributor or provider posts on its Web site or app a
video clip of video programming that it published or exhibited on
television in the United States with captions. Specifically, for
``straight-lift'' clips, which contain a single excerpt of a captioned
television program with the same video and audio that was presented on
television, the IP closed captioning requirements will apply beginning
January 1, 2016. For ``montage'' clips, a single file containing
multiple straight lift clips, we adopt an extended compliance deadline
of January 1, 2017.\11\ We find that it would
[[Page 45357]]
be economically burdensome to apply the new requirements to video clips
that are in the video programming distributor's or provider's library
before the relevant compliance deadline, and accordingly we exempt such
video clips from coverage.\12\ Further, we will require captioning for
video clips of live and near-live programming beginning July 1, 2017,
and we will permit such clips to be posted online initially without
captions, but require that captions be added to clips of live
programming within 12 hours and to clips of near-live programming
within eight hours after the conclusion of the television display of
the associated video programming \13\ that contained the clip.\14\
Finally, we generally apply the Commission's IP closed captioning rules
for full-length programming, including the quality requirements, to
video clips.\15\ Below, before addressing the substance of our video
clips requirements, we first discuss threshold issues regarding legal
authority and procedure, as well as the benefits of requiring closed
captioning for IP-delivered video clips. As discussed fully below, we
hereby reconsider our prior decision and conclude that the CVAA covers
video clips as well as full-length video programming shown online.
Accordingly, at this time we apply the IP closed captioning
requirements to video clips if the video programming distributor or
provider posts on its Web site or app a video clip of video programming
that it published or exhibited on television in the United States with
captions. Specifically, for ``straight-lift'' clips, which contain a
single excerpt of a captioned television program with the same video
and audio that was presented on television, the IP closed captioning
requirements will apply beginning January 1, 2016. For ``montage''
clips, a single file containing multiple straight lift clips, we adopt
an extended compliance deadline of January 1, 2017.\16\ We find that it
would be economically burdensome to apply the new requirements to video
clips that are in the video programming distributor's or provider's
library before the relevant compliance deadline, and accordingly we
exempt such video clips from coverage.\17\ Further, we will require
captioning for video clips of live and near-live programming beginning
July 1, 2017, and we will permit such clips to be posted online
initially without captions, but require that captions be added to clips
of live programming within 12 hours and to clips of near-live
programming within eight hours after the conclusion of the television
display of the associated video programming \18\ that contained the
clip.\19\ Finally, we generally apply the Commission's IP closed
captioning rules for full-length programming, including the quality
requirements, to video clips.\20\ Below, before addressing the
substance of our video clips requirements, we first discuss threshold
issues regarding legal authority and procedure, as well as the benefits
of requiring closed captioning for IP-delivered video clips.
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\11\ We distinguish here between a single file containing
multiple straight lift clips and situations where one or more single
files are played sequentially, such as through a playlist. For
example, a video programming distributor might automatically begin
playing a related video file immediately after the initial video
retrieved by the consumer concludes, such as another news clip about
the same topic or another highlight from the same sporting event.
That would not be an example of a montage, but rather, would be
straight lift clips that are played in sequence.
\12\ As in the IP Closed Captioning Order, herein we use the
term ``library'' to describe the collection of content a video
programming provider or distributor makes available to consumers
online. In the Further Notice, we seek comment on application of the
IP closed captioning requirements to video clips that are added to
the video programming distributor's or provider's library after the
relevant compliance deadline but before the programming is shown on
television with captions (``advance'' video clips).
\13\ When we use the term ``associated video programming'' or
``associated video program,'' we mean the televised programming from
which the video clip was excerpted.
\14\ Throughout this item, when we discuss grace periods of a
certain number of hours after the programming is shown on television
with captions within which video clips must be captioned online, we
will consider the grace period to begin upon the conclusion of the
television display of the associated video program. Given the
current state of captioning technology, waiting until the conclusion
of the program is the most reasonable approach at this juncture
since, at that time, the caption file is complete.
\15\ We also adopt a Further Notice considering four specific
issues. Among the issues considered in the Further Notice is
application of the IP closed captioning requirements to ``mash-
ups,'' which occur when a single file contains a compilation of one
or more video clips that have been shown on television with captions
along with additional content that has not been shown on television
with captions. We thus defer, at this time, application of our rules
with respect to mash-ups.
\16\ We distinguish here between a single file containing
multiple straight lift clips and situations where one or more single
files are played sequentially, such as through a playlist. For
example, a video programming distributor might automatically begin
playing a related video file immediately after the initial video
retrieved by the consumer concludes, such as another news clip about
the same topic or another highlight from the same sporting event.
That would not be an example of a montage, but rather, would be
straight lift clips that are played in sequence.
\17\ As in the IP Closed Captioning Order, herein we use the
term ``library'' to describe the collection of content a video
programming provider or distributor makes available to consumers
online. In the Further Notice below, we seek comment on application
of the IP closed captioning requirements to video clips that are
added to the video programming distributor's or provider's library
after the relevant compliance deadline but before the programming is
shown on television with captions (``advance'' video clips).
\18\ When we use the term ``associated video programming'' or
``associated video program,'' we mean the televised programming from
which the video clip was excerpted.
\19\ Throughout this item, when we discuss grace periods of a
certain number of hours after the programming is shown on television
with captions within which video clips must be captioned online, we
will consider the grace period to begin upon the conclusion of the
television display of the associated video program. Given the
current state of captioning technology, waiting until the conclusion
of the program is the most reasonable approach at this juncture
since, at that time, the caption file is complete.
\20\ We also adopt a Further Notice considering the four
specific issues listed above. Among the issues considered in the
Further Notice is application of the IP closed captioning
requirements to ``mash-ups,'' which occur when a single file
contains a compilation of one or more video clips that have been
shown on television with captions along with additional content that
has not been shown on television with captions. We thus defer, at
this time, application of our rules with respect to mash-ups.
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A. Threshold Issues Regarding Legal Authority and Procedure
9. We find that the CVAA mandates that all ``video programming
delivered using Internet protocol that was published or exhibited on
television with captions after the effective date of such
regulations,'' including clips of that programming, be provided with
closed captioning.\21\ The statutory text, quoted above, does not
distinguish between full-length video programming and video clips;
therefore, as explained below, we believe the statute is most
reasonably interpreted as covering excerpts of full-length programming
as well as complete and substantially complete programs. To the extent
the IP Closed Captioning Order stated that the CVAA's captioning
provisions did not cover clips of video programming or did not cover
them until some future date, we reconsider and reject that statutory
interpretation. Rather, we find that video clips are included within
the definition of video programming, and thus the statute mandates that
clips of video programming covered by the statutory definition be
captioned when delivered by IP.
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\21\ 47 U.S.C. 613(c)(2)(A).
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10. Clips of programming shown on television meet the statute's
definition of ``video programming,'' which is ``programming by, or
generally considered comparable to programming provided by a television
broadcast station, but not including consumer-generated media (as
defined in section 153 of this title).'' \22\ As we stated in the IP
Closed Captioning Order, ``programming `that was published or exhibited
on television' by definition constitutes `video programming,' since
anything that was published or exhibited on television must be provided
by, or be comparable to programming provided by, a television broadcast
station.'' There is nothing in the definition of ``video programming''
that expressly excludes video clips or
[[Page 45358]]
excerpts of programming. Indeed, only one category of programming is
expressly excluded from the definition and that is ``consumer-generated
media,'' a category not relevant for purposes here. The CVAA does not
further explain what is meant by programming that is ``generally
considered comparable to programming provided by a television broadcast
station.'' However, nothing in the statutory text suggests an excerpt
of programming may not be considered ``comparable'' to broadcast
programming under section 202.\23\ To the contrary, section 202
instructs us to take into account, in establishing compliance
deadlines, whether the programming is ``edited for Internet
distribution,'' indicating that Congress contemplated that the version
of a television program provided online may differ, and in fact, be
provided in truncated form, from the original airing shown on
television. We therefore reject the argument that the term ``video
programming'' does not encompass video clips on the theory that
``television broadcasters and multi-channel video programming
distributors do not transmit free-standing clips.'' \24\ For the
reasons stated herein, we believe the better reading of the statute is
that clips of video programming are covered by section 202.
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\22\ Id. 613(h)(2).
\23\ A similar definition of ``video programming'' appears in
other provisions of the Communications Act of 1934, as amended (the
``Act''). See, e.g., 47 U.S.C. 522(20) (`` `video programming' means
programming provided by, or generally considered comparable to
programming provided by, a television broadcast station''). We note
the Commission has not construed that term in other contexts to
exclude excerpts or clips from the definition. See, e.g., Closed
Captioning and Video Description of Video Programming, Report and
Order, 13 FCC Rcd 3272 (1997) (``1997 Closed Captioning Order'')
(implementing the requirement of Section 713 of the Act that video
programming be closed captioned on television); Closed Captioning of
Video Programming, Report and Order, Declaratory Ruling, and Further
Notice of Proposed Rulemaking, 29 FCC Rcd 2221 (2014) (adopting
captioning quality standards and technical compliance rules for
video programming).
\24\ See DiMA Comments at 3; see also NCTA Reply at 3. DiMA
asserts that ``a 2-minute clip from `The Late Show with David
Letterman' is not `comparable to' a full-length television show any
more than 2-pages from a compilation of the Communications Act is
`comparable to' the full text of the statute.'' DiMA Mar. 20 Ex
Parte Letter at 1. We disagree, and conclude instead that a portion
of a program that was shown on television with captions is no less
``comparable to programming provided by a television broadcast
station'' than the complete program itself. Contrary to DiMA's
interpretation, the CVAA is not limited to programming comparable to
full-length programming provided by a television broadcast station.
See also Reply Comments of the Association of Public Television
Stations and the Public Broadcasting Service at 3 (``PTV Reply'')
(arguing that the dictionary meaning of ``programming'' and
``program'' implies that ``programs'' subject to the CVAA's IP
closed captioning requirements are full-length shows and not video
clips). We disagree with PTV's approach because, as explained above,
we find it consistent with the statutory text to conclude that
``video programming'' encompasses video clips.
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11. We also reject the contention that the legislative history of
the CVAA compels us to interpret section 202 to exclude video clips
from the IP closed captioning requirements. The Senate and House
Committee Reports state that Congress ``intends, at this time, for the
regulations to apply to full-length programming and not to video clips
or outtakes.'' On reconsideration, we reject the Commission's
statements in the IP Closed Captioning Order suggesting that this
legislative history indicated Congress's intent to authorize the
Commission to adopt rules requiring closed captioning of IP-delivered
video clips at some future time.\25\ After examining this issue in more
detail, we believe the better reading of this language is that Congress
intended that the statutory captioning requirements cover video clips,
but gave the Commission discretion to defer the compliance deadline for
video clips when the Commission set the schedule of compliance
deadlines under section 202. This interpretation is consistent with the
statute, which gives the Commission considerable discretion in
establishing ``an appropriate schedule of deadlines for the provision
of closed captioning'' and directs the Commission to consider factors
that may affect compliance.\26\ If Congress had intended to exclude
excerpts from the scope of section 202, we would expect it to have
expressly done so in the statute, as it did with respect to ``consumer-
generated media.'' \27\ Similarly, if Congress had intended to delay to
some future date Commission authority to adopt rules for video clips,
we would expect it to have included such a limitation in the statute.
For these reasons, we believe our reading of the legislative history on
reconsideration is most consistent with the statutory language. As
discussed below, we now set phased-in compliance deadlines for
captioning of IP-delivered video clips that fall within the definition
of video programming (``programming by, or generally considered
comparable to programming provided by a television broadcast station,
but not including consumer-generated media (as defined in section 153
of this title)'').\28\
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\25\ We are unpersuaded by Consumer Groups' argument that the
legislative history's reference to ``video clips'' meant to refer to
material that is exempt from the television closed captioning rules.
Consumer Groups Mar. 28 Ex Parte Letter at 2. The television closed
captioning rules exempt ``[i]nterstitial material, promotional
announcements, and public service announcements that are 10 minutes
or less in duration.'' 47 CFR 79.1(d)(6). Had Congress merely meant
to carry over this exemption to IP-delivered programming, it would
have cited that rule or used similar language. This exemption does
not use the term ``video clips.''
\26\ 47 U.S.C. 613(c)(2)(B).
\27\ See id. 613(h)(2).
\28\ Id. 613(h)(2).
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12. Commenters who argue that Congress did not intend the
Commission to apply the IP closed captioning regulations to video clips
ignore the statutory language. For example, the Digital Media
Association (``DiMA'') disagrees with the Commission's interpretation
of ``at this time'' in the legislative history, and asserts instead
that the phrase actually means that video clips are not covered ``under
this statute.'' \29\ To the contrary, had Congress intended to carve
out video clips from coverage of video programming, it could have said
so clearly, rather than using the phrase ``at this time,'' which
suggests merely a temporal meaning. If the reports had said that
Congress ``intends for the regulations to apply to full-length
programming and not to video clips,'' that would suggest that Congress
understood video clips not to be covered by the statutory language. But
the use of the phrase ``at this time'' suggests that the Commission's
regulations could require captioning in the future. That could only
happen if video clips fall within the ambit of ``video programming.''
Further, applying the IP closed captioning requirements to video clips
is consistent with both the text and stated purpose of the CVAA, which
was ``to help ensure that individuals with disabilities are able to
fully utilize communications services and better access video
programming.'' \30\ Requiring closed captioning of IP-delivered video
clips will help ensure that individuals who are deaf or hard of hearing
will have access to all covered video programming. And, as discussed
above, the temporal reference in the legislative
[[Page 45359]]
history is consistent with the text of the statute, which gives the
Commission discretion to adopt an appropriate schedule of compliance
deadlines taking into consideration factors that may warrant a longer
compliance period.
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\29\ According to DiMA, the reference to outtakes in the
legislative history supports its interpretation because it argues
outtakes are never shown on television, and thus it cannot be that
Congress intended the Commission to reconsider covering outtakes at
some point in the future. Neither the statute nor the legislative
history indicates what the Congressional reports mean by use of the
term ``outtakes.'' For purposes of the IP captioning rules the
Commission defined ``outtakes'' not covered by the rules as
``[c]ontent that is not used in an edited version of video
programming shown on television.'' 47 CFR 79.4(a)(2), (13). Thus,
outtakes that have never been shown on television need not be
captioned when provided online. To the extent content that could be
described in common parlance as ``outtakes'' does appear on
television with captions, however, it must be captioned when
provided online.
\30\ Senate Committee Report at 1; House Committee Report at 19.
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13. Further, we conclude that it is procedurally appropriate for us
to act on this issue now. We disagree with those commenters who suggest
that the Consumer Groups Petition was procedurally defective under
section 1.429(b) of the Commission's rules. Consumer Groups argued
earlier in the proceeding that video clips (as the Commission has
defined the term) \31\ should be subject to the IP closed captioning
rules, and Consumer Groups requested reconsideration, arguing that the
Commission wrongly decided the issue. We find that the Consumer Groups
Petition does not rely entirely on arguments that the Commission
already considered and rejected because it explicitly describes how the
video clips exemption is denying consumers who are deaf or hard of
hearing access to critical areas of programming, and it presents more
up-to-date information than that available at the time the Commission
released the IP Closed Captioning Order. In any event, even if the
petition does rely on facts or arguments not previously presented to
the Commission, grant of the petition still would be proper under our
rules because of the clear public interest benefits of requiring closed
captioning of IP-delivered video clips, as discussed below. The
Commission's rules provide that grant of a petition for reconsideration
that ``relies on facts or arguments which have not previously been
presented to the Commission'' is permissible if ``[t]he Commission
determines that consideration of the facts or arguments relied on is
required in the public interest.'' \32\ For these reasons, it is
procedurally appropriate to consider the Consumer Groups Petition.
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\31\ Consumer Groups did, however, previously support a narrow
exclusion for video clips under 30 seconds in length that contain
only promotional materials or advertising for full-length
programming. See Comments of the Consumer Groups on the NPRM at 18-
20.
\32\ See 47 CFR 1.429(b)(3).
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14. We do not believe that seeking further comment is necessary or
appropriate before we can impose any closed captioning requirements on
IP-delivered video clips. DiMA claims that the Commission should issue
a notice of proposed rulemaking before imposing any closed captioning
requirement on IP-delivered video clips, to provide interested parties
with an opportunity to comment and to obtain feedback on specific
proposed rules. We find that a further notice of proposed rulemaking is
neither procedurally necessary nor useful prior to imposing the
requirements we adopt in this Video Clips Order. This proceeding has
included a petition for reconsideration filed by Consumer Groups urging
the Commission to require IP-delivered video clips to be captioned.\33\
Following the filing of that petition, the Commission released an order
on reconsideration deferring a final ruling on the video clips issue
raised in the Consumer Groups Petition and directing the Media Bureau
to seek updated information on this issue. A public notice was
published in the Federal Register seeking comment to further inform the
Commission's consideration of the video clips issue and asking
``whether, as a legal and/or policy matter, the Commission should
require captioning of IP-delivered video clips.'' \34\ Thus, adequate
notice of the proposed rules has been provided and issuing a further
notice of proposed rulemaking before imposing the closed captioning
requirements for IP-delivered video clips adopted herein would be
redundant. Instead, we proceed to this Video Clips Order based on the
ample record already compiled, including the additional comments filed
recently in response to the public notice. In contrast, for those
issues on which we do not have an adequate record for a decision, we
seek further comment in the Further Notice of Proposed Rulemaking.
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\33\ See Petitions for Reconsideration of Action in Rulemaking
Proceeding, MB Docket No. 11-154; Rpt No. 2951, 77 FR 30,485, May
23, 2012.
\34\ Video Clips PN, 28 FCC Rcd 16699. The Video Clips PN was
published in the proposed rules section of the Federal Register. In
seeking comment on the video clips proposal, the Video Clips PN also
referenced the Initial Regulatory Flexibility Analysis included in
the NPRM in this proceeding, which identified small entities that
might be affected. See Media Bureau Seeks Comment on Application of
the IP Closed Captioning Rules to Video Clips, MB Docket No. 11-154;
78 FR 78,319, December 26, 2013. We received comments from both the
industry and consumer groups in response to the Video Clips PN.
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B. Impact of Requiring Closed Captioning of Internet Protocol-Delivered
Video Clips
15. While we commend the industry for its voluntary efforts to
caption IP-delivered video clips, we also recognize that many such
video clips remain uncaptioned. The record demonstrates that over the
past few years, industry has been exhibiting an increasing volume of
online video programming in the form of video clips, and these clips
are increasingly captioned. Specifically, while Consumer Groups found
in May 2013 that 23 percent of news clips and 10 percent of non-news
clips were captioned, the more recent data that Consumer Groups
submitted in February 2014 indicates that 57 percent of news clips and
18 percent of non-news clips are captioned.\35\ Nonetheless, despite
this increase in captioning of IP-delivered video clips, many consumers
are denied access to the large volume of clips that remain uncaptioned.
A Commission requirement for captioning IP-delivered video clips will
ensure that the content, including critical news programming, will be
accessible to individuals who are deaf or hard of hearing, thus
significantly benefiting consumers and serving the stated public
interest goal of the CVAA. Such a requirement is particularly important
because, as stated above, more and more consumers are receiving news,
sports, and entertainment programming in the form of online video
clips. Consumer Groups explain that a Commission requirement is
necessary because, although some video programming providers and
distributors ``have greatly increased their use of captions for video
clips, many others captioned few or none of their clips.'' \36\ The
record demonstrates that because of the large volume of IP-delivered
video programming that is posted online as video clips, much of which
is not captioned, consumers who are deaf or hard of hearing are being
denied access to critical areas of programming, such as news, contrary
to the intent of the CVAA.\37\
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\35\ We acknowledge that some errors in the Consumer Groups
study detract from Consumer Groups' claims, such as the study's
inclusion of some clips of programming that were not shown on
television in this country with captions, its failure to consider
that some closed captioning problems experienced may have resulted
from the use of apparatus that were not yet required to comply with
the Commission's rules governing the accessibility of video
apparatus (see 47 CFR 79.103), and its failure to properly
categorize certain material as ``clips'' that were not required to
be captioned as opposed to ``segments'' for which captioning was
required. Notwithstanding these shortcomings, the remaining data
provided by the Consumer Groups confirms that a significant number
of IP-delivered video clips today are not captioned.
\36\ Consumer Groups Comments at 17.
\37\ An additional benefit of requiring closed captioning of IP-
delivered video clips relates to the Commission's current
distinction between video clips and segments. Specifically, while
the IP Closed Captioning Order exempted video clips from the IP
closed captioning requirements, it required that IP-delivered video
programming be captioned when the full-length video program is
posted online in multiple segments. Today's decision to require
closed captioning of IP-delivered video clips and not just segments
will eliminate confusion for consumers looking for captioning and
for industry seeking to comply with our requirements, since there
will be no need to determine whether a particular piece of short-
form content is a video clip or a segment.
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[[Page 45360]]
16. Contrary to the suggestions of some commenters, accessing
captioned full-length programming online or reading an article about
the topic covered in an uncaptioned video clip is not a full substitute
for viewing a captioned video clip. If such suggestions were true, the
Internet would not contain the large volume of video clips that it does
because access to such alternatives would adequately serve viewers who
are not deaf or hard of hearing. Public Citizen states that the lack of
closed captioning on IP-delivered video clips ``disadvantages and
marginalizes deaf and hard of hearing people.'' We agree that the very
fact that programmers make video clips available when the full-length
program is also available online demonstrates the intrinsic value of
these clips. For these reasons, we believe that interpreting section
202 to cover video clips is necessary to fully effectuate the statutory
purpose and that it is appropriate to require compliance with the
statute under the schedule we adopt in this order.
17. As explained above, we interpret the statute as requiring
closed captioning of IP-delivered video clips and we find that there
are obvious public interest benefits of imposing such a requirement.
Industry commenters assert, however, that they will face some financial
and technical challenges in complying with such a requirement. One of
the biggest challenges, they claim, is ensuring that the captions are
properly synchronized. Synchronization is of particular concern because
if captions lag behind the audio, which often occurs during live
programming, part of the applicable captions may be missing when a clip
is excerpted from the programming. As a result, some industry
commenters indicate that they must re-author the caption file for video
clips. Some industry commenters assert that captioning online clips is
time-consuming, labor-intensive, and costly, particularly given the
enormous volume of IP-delivered video clips. While future technological
developments will likely automate the process, they report that the
development of this technology remains ongoing. Industry commenters
also caution that a requirement to caption video clips might cause some
entities to cease posting video clips online. Contrary to the
industry's claims about the time-consuming nature of captioning video
clips, however, one captioning company, VITAC, indicates that it
captions over 50 short-form videos (30-60 seconds each) per day for one
client, and that captioners create the captions for each of these
videos within 15-20 minutes of receiving them.
18. Based on the record before us, we find that compliance with a
captioning requirement for IP-delivered video clips will not be overly
burdensome. This is particularly true given the reasonable timeframes
we are providing for entities to come into compliance, as well as the
grace period within which captions may be added to video clips of live
and near-live programming. Further, consistent with the text of the
CVAA, the scope of the IP closed captioning requirements is limited to
video programming ``that was published or exhibited on television with
captions,'' \38\ such that online captions only will be required for
content that already has been televised with captions. The fact that
some video programming distributors already caption a portion of their
video clips demonstrates that the necessary technology exists and that
captioning video clips is economically feasible. We expect that the
lengthy compliance deadlines of January 1, 2016 for straight lift clips
and January 1, 2017 for montages will alleviate the asserted
difficulties with captioning IP-delivered video clips, particularly
given information provided on the record by captioners and others
indicating that solutions already exist to facilitate captioning of IP-
delivered video clips.
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\38\ 47 U.S.C. 613(c)(2)(A).
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C. Closed Captioning Requirements for Internet Protocol-Delivered Video
Clips
1. Covered Video Clips
19. The CVAA directs the Commission to require closed captioning of
IP-delivered video programming when the programming ``was published or
exhibited on television with captions after the effective date of [the]
regulations.'' \39\ Accordingly, while the closed captioning
requirements for IP-delivered video clips will apply to clips of video
programming that was shown on television with captions, they will not
apply to clips of video programming that was not shown on television
with captions.\40\ To the extent that a video clip posted online
contains an audio track that is substantially different from that aired
on television, we will not consider the video clip to have been shown
on television with captions and thus captions will not be required
online. For example, we understand that sometimes a video clip from a
sporting event is later posted online with different audio than the
audio that accompanied the same video on television. The online version
of the video clip with different audio would not be covered by the CVAA
because the video programming at issue was not shown on television with
captions; rather, where the audio is substantially different, the
televised captions would not correspond to the audio that accompanies
the online clip.
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\39\ 47 U.S.C. 613(c)(2)(A).
\40\ We clarify, however, that the addition of a brief
introduction or advertisement to an otherwise covered video clip
will not exempt the clip from the IP closed captioning rules.
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20. We interpret the CVAA to require closed captioning of IP-
delivered video clips regardless of the content or length of the
clip.\41\ Some commenters have argued that we should apply the closed
captioning requirements only to clips with certain content or only to
clips above a certain length. We disagree. Rather, we find that it was
Congress's intent in enacting the CVAA to ensure that consumers who are
deaf or hard of hearing have access to video programming that is shown
on television with captions, including video programming posted online
as video clips, regardless of whether the video clips contain news,
sports, entertainment, or any other type of content. A finding to the
contrary is not supported by the CVAA's overarching goal to provide
full programming access to individuals who are deaf or hard of hearing.
Similarly, we do not limit the applicability of the closed captioning
requirements only to clips of a certain length. We find no basis on
which to distinguish between clips that last 10 seconds and those that
last 10 minutes. By deciding to make a clip available via the Internet,
a video programming distributor or provider has made a decision that it
has value for the general public, and the CVAA requires that when the
same programming was shown on television with captions, the clip must
also be made accessible online to consumers who are deaf or hard of
hearing. This comprehensive approach will be more administratively
efficient for industry because companies will not need to determine
whether clips contain certain content or are of a certain minimum
length.
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\41\ Except as otherwise provided herein, as with IP closed
captioning of full-length video programming, once the captioning
requirement is triggered we will expect captions to be available
immediately for IP-delivered video clips.
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21. At the present time, the closed captioning requirements for IP-
delivered video clips will apply if the video programming provider or
distributor (as those terms are defined in the IP closed captioning
rules) posts on its Web site or app a video clip of video programming
that it published or exhibited on television in the United
[[Page 45361]]
States with captions on or after the applicable compliance deadline.
NAB and the National Cable and Telecommunications Association
(``NCTA'') propose that the requirements for closed captioning IP-
delivered video clips only apply to a person or entity that (a)
exhibits the television program with captions on its linear channel or
network; (b) has the rights to exhibit a clip of that program with
captions via IP; and (c) makes the clip available via a Web site or app
operated solely by the person or entity.\42\ NAB and NCTA are concerned
that a broader application of the IP closed captioning rules to video
clips may hold entities responsible for issues that they do not
control. In recognition of these concerns, we will limit the current
application of the rules as described above. For example, if XYZ
Network posts a video clip on a Web site or app that it operates, and
the video clip is from programming that appeared on XYZ Network with
captions after the compliance date, then the IP closed captioning
requirements would apply. If, however, XYZ Network posts the video clip
on a third party Web site, then the IP closed captioning requirements
would not apply. We defer application of the IP closed captioning rules
with respect to the provision of video clips by third party video
programming providers and distributors, such as Hulu, or other services
that may embed or host video programming, such as news Web sites,
pending action on the Further Notice.
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\42\ NAB and NCTA have not explained the meaning or relevance of
some terms in their proposal. Specifically, we are unclear what they
mean by ``linear'' channel or network and by ``rights to exhibit.''
Accordingly, we believe our formulation stated above better captures
the universe of covered entities.
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2. Compliance Deadline
22. At the outset, we clarify that there are several types of video
clips at issue. First, the industry uses the term ``straight lift''
clips to reference a single excerpt of a captioned television program
with the same video and audio that was presented on television. Such
video clips will be subject to the January 1, 2016 deadline discussed
below. Second, the industry uses the term ``montage'' to reference a
single file that contains multiple straight lift clips, and as
explained below, the industry has persuasively argued that compliance
may be more difficult with regard to such clips. Accordingly, montages
will be subject to an extended deadline of January 1, 2017. Third, the
industry uses the term ``mash-up'' to reference a single file that
contains a compilation of one or more video clips that have been shown
on television with captions and additional content that has not been
shown on television with captions. For the reasons discussed in the
Further Notice, we seek further comment on the proper treatment of this
category of video clips in the Further Notice. With respect to closed
captioning of IP-delivered video clips of video programming shown live
or near-live on television, we require captions beginning July 1, 2017.
At the same time, due to the time-sensitive nature of the posting of a
live or near-live video clip we grant a grace period that requires that
captions be added to clips of live programming within 12 hours and to
clips of near-live programming within eight hours after the associated
video programming is published or exhibited on television in the United
States with captions. As discussed below, the later deadlines for
montages and video clips taken from associated live and near-live
television programming provide additional time because of the
challenges associated with captioning these types of clips, and to
allow for the development of technological advances that will
facilitate a streamlined process for posting these clips with captions
online. If we receive a petition seeking to extend these deadlines and
find that technology has not progressed as expected with respect to
posting these clips online, we will act promptly on the petition and
extend the compliance deadlines if the petition demonstrates that
technology is not available to achieve compliance.
23. As stated above, we will require compliance with the new
requirements for closed captioning of IP-delivered video clips by
January 1, 2016 for ``straight lift'' video clips. We define ``straight
lift'' video clips as those that contain a single excerpt of a
captioned television program with the same video and audio that was
presented on television. As of that date, IP-delivered video clips must
be provided with closed captions if the associated video programming is
published or exhibited on television in the United States with captions
on or after January 1, 2016. Consumer Groups and captioning companies
support a one-year deadline. In contrast, some members of the industry
have requested a two-year phase-in because of the volume of video clips
and the difficulty in captioning them,\43\ while others have supported
a deadline of 18 months after adoption of the rules. Members of the
industry have cautioned that they may have compliance difficulties if
faced with a requirement for captioning IP-delivered video clips at
this juncture, when they are still working to implement the IP closed
captioning requirements for full-length video programming. Balancing
consumers' desire for prompt access to this content and the industry's
claims about the difficulty with compliance, we adopt a deadline of
January 1, 2016 for closed captioning of IP-delivered ``straight lift''
video clips. The first compliance deadline for closed captioning of
full-length IP-delivered video programming was six months after the
date the IP Closed Captioning Order was published in the Federal
Register, as supported by the Video Programming Accessibility Advisory
Committee (``VPAAC''), which consisted of representatives from both the
industry and from consumer groups. Given that in general the same
requirements that apply to captioning a full-length IP-delivered video
program will apply to captioning an IP-delivered video clip, and that
the industry has now had nearly two years of experience with captioning
programming online, we find that the January 1, 2016 deadline will be
sufficient for the industry to achieve compliance. During this time, we
encourage the industry to work toward automating closed captioning of
IP-delivered video clips and to eliminate problems associated with
distorting closed caption files that may occur when video clips are
created, thus reducing the labor and costs involved.
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\43\ In the absence of record information on the NCTA proposal,
including for example the volume of clips that do not include time-
coded captions (that is, captions which directly reference the
pieces of video they describe), the difficulties with captioning
clips that do not include time-coded captions, and why solutions to
such difficulties cannot be implemented prior to the compliance
deadline, we decline to adopt a distinction between video clips that
include embedded or time-coded captions and those that do not.
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24. We find that an extended compliance deadline of January 1, 2017
is justified for ``montages.'' We define a montage as programming
contained in a single file that includes multiple straight lift
clips.\44\ That is, a montage is a single online file containing
multiple video clips ``taken from different parts of a captioned full-
length TV program or from different captioned TV programs.'' \45\ The
record demonstrates that an extended compliance deadline is needed for
such programming because industry is concerned that technology
[[Page 45362]]
does not currently exist to use the same caption files that were used
on television. The record supports our expectation that by January 1,
2017, technology will be better able to automate this process, enabling
the industry to modify the televised captions associated with each
video clip, rather than re-authoring captions where a single file
contains multiple straight lift clips.\46\ Accordingly, closed captions
will be required where a single IP-delivered file contains multiple
straight lift clips beginning January 1, 2017, if the associated video
programming is published or exhibited on television in the United
States with captions on or after January 1, 2017. We expect that the
industry will not use this extended compliance deadline to delay
compliance with the closed captioning requirements, for example, by
creating a single file that contains two video clips that otherwise
would have been posted separately with captions and then claiming that
it is subject to the later January 1, 2017 compliance deadline.
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\44\ These multiple straight lift clips may be sequential (i.e.,
in the same order in which they appeared on television) or non-
sequential (i.e., in a different order than the order in which they
appeared on television).
\45\ NCTA Apr. 25 Ex Parte Letter at 2.
\46\ If industry finds that sufficient automation does not exist
by the deadline, it may file a request to extend the deadline.
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25. We find the addition of a brief introduction or advertisement
to an otherwise covered video clip will not exempt the clip from the IP
closed captioning rules, regardless of whether the video clip is a
straight clip or a montage.\47\ At the same time, we understand that
often, a single file may contain a compilation of one or more video
clips that have been shown on television with captions, interspersed
with additional content that has not been shown on television with
captions. The industry refers to such program files as ``mash-ups.'' We
seek comment on the application of the CVAA to mash-ups in the Further
Notice.
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\47\ Of course, a brief introduction that was not captioned on
television would not be required to be captioned when accompanying
an IP-delivered video clip. Only the portion of the video clip that
was televised with captions would need to be captioned online.
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26. Commenters have expressed concerns about captioning IP-
delivered video clips that serve a promotional purpose, but these
concerns are largely focused on promotional clips that are posted
online before the programming is shown on television, an issue that
will be explored in the Further Notice.\48\ A non-advance promotional
video clip may be a single ``straight-lift'' excerpt of captioned
televised content, in which case we see no reason that the January 1,
2016 deadline discussed above should not apply. Once the IP closed
captioning requirements are triggered by the content being shown on
television with captions, the CVAA does not differentiate between clips
of promotional material and other types of clips, but rather, broadly
requires video programming that has been shown on television with
captions to be made accessible to those consumers who are deaf or hard
of hearing. We see nothing in the CVAA or its legislative history that
suggests Congress intended to exclude from coverage video clips that
are promotional in nature. For the same reasons, a non-advance
promotional video clip that contains multiple straight lift clips of
video programming that has been shown on television with captions, and
thus is a montage, will be subject to the January 1, 2017 deadline
discussed above.
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\48\ We note that at this time, any difficulty with tracking
down video clips will be minimized by the fact that application of
the requirement to caption advance clips is under consideration in
the Further Notice, and because the requirement currently only
applies where the video programming provider or distributor posts on
its Web site or app a video clip of video programming that it
published or exhibited on television.
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3. Video Clips of Live and Near-Live Programming
27. In general, as with IP closed captioning of full-length video
programming, once the captioning requirement is triggered we will
expect captions to be available immediately for IP-delivered video
clips. In other words, at the time of being posted online, covered
video clips must be closed captioned. While Hulu has indicated that a
``grace period'' may be necessary in some instances if technical,
editorial, or administrative issues arise, we expect industry to work
prior to the compliance deadline to develop processes that will enable
them to make captions available for IP-delivered video clips without
any delay once the video programming has been shown on television with
captions. The record does not support a contrary approach, with an
exception for video clips of live or near-live programming.
28. We find that there are unique concerns with IP-delivered video
clips of live and near-live programming given its time sensitivity. If
distributors were prohibited from posting video clips of live and near-
live programming \49\ online until captions are available, then all
consumers would be denied access to potentially time-sensitive
information during that time. A grace period would provide distributors
with flexibility to post time-sensitive clips online without delay. CBS
requests a ``grace period of several hours'' before we require video
clips of live or near-live programming to be captioned online,
explaining that otherwise entities other than the authorized video
programming providers and distributors may be the first to distribute
the content online. CBS explains that ``[t]his is not important simply
to help build a programmer's solid `first-to-the-news' reputation, but
it is also important from an accessibility perspective. If a clip goes
viral and generates a large number of views over time, it is important
that it be a version controlled by the station, which can augment the
clip with online captions once they are generated.'' In contrast, NAB
and NCTA acknowledge the feasibility of a 12-hour grace period, while
DIRECTV requests a 24-hour grace period. Further, DiMA indicates that
it is more difficult to caption video clips of live programming than to
caption video clips of prerecorded programming.
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\49\ ``Live programming'' is ``[v]ideo programming that is shown
on television substantially simultaneously with its performance.''
47 CFR 79.4(a)(7). ``Near-live programming'' is ``[v]ideo
programming that is performed and recorded less than 24 hours prior
to the time it was first aired on television.'' 47 CFR 79.4(a)(8).
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29. Given the above difficulties associated with captioning video
clips of live and near-live programming, we will not require compliance
for this category of video clips until July 1, 2017.\50\ Additionally,
for the present time, we will permit closed captions to be provided on
IP-delivered video clips of live programming up to 12 hours after the
associated video programming is published or exhibited on television in
the United States with captions, and we will permit closed captions to
be provided on IP-delivered video clips of near-live programming up to
eight hours after the associated video programming is published or
exhibited on television in the United States with captions.\51\
[[Page 45363]]
This means that unlike other IP-delivered video clips, video clips of
live and near-live programming may be posted online without captions
initially, with captions added within 12 hours (for live) or eight
hours (for near-live) of the video programming being shown on
television.\52\ We find that the 12- and eight-hour grace periods
appropriately balance industry's concern with captioning time-sensitive
IP-delivered video clips, with the fact that it is just as important
for individuals who are deaf or hard of hearing to have access to these
clips as it is for other members of the general public. One company has
indicated that a grace period of ``several hours'' is workable. We find
that 12 and eight hours are reasonable timeframes for all companies
subject to the requirement to follow beginning July 1, 2017. To the
extent that a video programming provider or distributor is unable to
post video clips of live programming within these grace periods by July
1, 2017 because, for example, it lacks the resources to do so, it may
petition for an exemption of this requirement.\53\ We find that a
shorter grace period is appropriate for video clips of near-live
programming than for video clips of live programming, because we find
that there is more time to add captions to an IP-delivered video clip
of programming that is produced and recorded even a short time before
it is shown on television with captions. In addition, we encourage the
industry to make video clips of live and near-live programming
available with captions at the time the clips are posted online, or as
soon as possible thereafter, whenever possible, especially if such
captioning already is being done. In the future, we intend to decrease
or eliminate this grace period for video clips of live and near-live
programming, because we expect that technology will automate the
process such that a grace period for captioning is no longer needed.
Accordingly, in the Further Notice we seek comment on the timeframe
within which we should decrease or eliminate the grace period
applicable to video clips of live and near-live programming.
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\50\ Consumer Groups argue that we should consider a more
limited category of video clips than clips of live and ``near live''
programming, and ``that the industry should bear the onus of
articulating a workable definition that encompasses only truly time-
sensitive' clips. . . .'' We disagree, and find instead that
industry's concerns about captioning this category of video clips
apply broadly to video clips of live and near-live programming.
Additionally, attempting to define this category based on video
clips with content that has the potential to ``go viral,'' as
Consumer Groups suggest, would be inherently subjective and
inevitably reflect the perspective and values of the person
evaluating the content.
\51\ We reiterate that we will consider the grace period to
begin upon the conclusion of the television display of the
associated video program. In addition, while NAB and NCTA have
requested that we limit the 12-hour grace period to business hours,
we decline to do so because many programs are captioned around the
clock, and a 12-hour grace period will allow daytime staff to assist
with captioning of video clips posted online overnight. The 12-hour
grace period for video clips of live programming will address
DIRECTV's concerns with what we refer to as ``NFL Highlight Clips''
and ``Short Cuts.'' When a viewer is watching one National Football
League (``NFL'') game on a mobile device, he or she may opt to view
NFL Highlight Clips from another game. Short Cuts are commercial-
free replay compilations of highlights from every NFL regular season
game, allowing subscribers to view a game in 30 minutes or less by
removing all broadcast ``down time,'' such as huddles, time-outs,
and instant replay review. DIRECTV expresses concerns about
captioning IP-delivered NFL Highlight Clips and Short Cuts.
Specifically, DIRECTV explains that the volume of NFL Highlight
Clips and the speed at which they are created and distributed makes
DIRECTV unable to provide them with ``intelligible captioning.'' For
both Short Cuts and NFL Highlight Clips, DIRECTV states that ``[t]he
process of breaking the game feed into such video clip highlights
can cause the captioning to become garbled and unrecognizable'' and
that the process of recreating or restoring the captions ``would
introduce delays that would substantially undermine the business
rationale for these time-sensitive products.'' The rules for video
clips of live programming will apply to NFL Highlight Clips and thus
will address DIRECTV's concerns. The rules for video clips of live
programming also will apply to Short Cuts to the extent Short Cuts
are not televised with captions. We understand that a version of
Short Cuts is made available on television without captions, and
DIRECTV states that ``[t]he television version of Short Cuts is
exempt from the captioning requirement due to the very limited gross
revenues associated with this service.'' We take no position in this
Video Clips Order as to whether a television closed captioning
exemption in fact applies to Short Cuts. We clarify, however, that
if the televised version of Short Cuts is captioned when shown on
television in the future, then the online version will be subject to
the IP closed captioning rules already applicable to full-length
programming to the extent that they are in essence the same program.
See 47 CFR 79.4(b). In other words, once Short Cuts become subject
to the IP closed captioning requirements for full-length programming
(i.e., they are televised with captions), the extended compliance
deadline and grace period applicable to video clips of live
programming will no longer apply.
\52\ To the extent that a straight lift clip contains video
clips of live or near-live programming, it will be subject to the
later July 1, 2017 compliance deadline and may utilize the 12-hour
or eight-hour grace period. To the extent that a montage contains
video clips of live or near-live programming, the portions of the
montage that contain such programming will be subject to the later
July 1, 2017 compliance deadline, and those portions may utilize the
applicable grace period.
\53\ See 47 CFR 79.4(d) (setting forth procedures for individual
exemptions based on economic burden).
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4. Video Clips in the Online Library Before the Compliance Deadline
30. We recognize that some video programming providers and
distributors will have a large number of video clips in their online
library \54\ before the compliance deadline of January 1, 2016 for
straight lift clips and January 1, 2017 for montages. As explained
fully below, we find that compliance with the closed captioning
requirements for IP-delivered video clips would be economically
burdensome for this class of video clips, and accordingly we exempt
this class from coverage of our rules.\55\
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\54\ As in the IP Closed Captioning Order, herein we use the
term ``library'' to describe the collection of content a video
programming provider or distributor makes available to consumers
online.
\55\ Separately, in the Further Notice below, we seek comment on
application of the IP closed captioning rules to video clips that
are added to the video programming distributor's or provider's
library on or after January 1, 2016 for straight lift clips and
January 1, 2017 for montages, but before the associated video
programming is shown on television with captions. We refer to such
video clips as ``advance'' video clips, and we find that further
information on the technological challenges of captioning advance
video clips would be useful before we resolve this issue.
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31. The CVAA permits the Commission to exempt from coverage of its
IP closed captioning rules ``any service, class of service, program,
class of program, equipment, or class of equipment for which the
Commission has determined that the application of such regulations
would be economically burdensome for the provider of such service,
program, or equipment.'' \56\ The Commission has interpreted the
comparable statutory provision applicable to television closed
captioning.\57\
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\56\ 47 U.S.C. 613(c)(2)(D)(ii).
\57\ 1997 Closed Captioning Order, 13 FCC Rcd at 3342,
paras.143-145. The Commission assesses economic burden more broadly
in the context of an entire class than it does in the context of an
individual exemption petition. See Anglers for Christ Ministries,
Inc., Memorandum Opinion and Order, Order, and Notice of Proposed
Rulemaking, 26 FCC Rcd 14941, 14958-60, paras. 33-36 (2011).
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32. On balance, we find that the costs of captioning video clips
that are in the video programming distributor's or provider's online
library before the compliance deadline (January 1, 2016 for straight
lift clips and January 1, 2017 for montages) outweigh the benefits to
be derived from captioning such programming at this time. Some video
programming distributors may have hundreds of thousands or even
millions of video clips currently in the libraries on their Web sites
or apps. Some commenters have suggested that the industry would face
significant difficulty complying with closed captioning requirements
for this category of IP-delivered video clips. Stated challenges with
captioning this category of IP-delivered video clips include the
enormous volume of existing video clips in some video programming
provider and distributor's online libraries, which have been posted
over a period of years, and difficulty determining potentially years
after the clips were first posted online whether such clips originated
as part of a program that later appeared on television with captions
after the effective date of the video clip captioning rules. We are
concerned about the impact that requiring closed captioning for this
class of video clips may have on entities subject to the rules,
including smaller entities that may lack the financial resources to
comply. In contrast, we find that the benefits of requiring captioning
of these clips may be minimal since video clips may ``have a shorter
shelf life for viewership than long-form content.'' \58\
[[Page 45364]]
We believe that the resources of the entities subject to the rules thus
would be better spent captioning clips added to their libraries on a
prospective basis. Accordingly, we find that it would be an economic
burden to require closed captioning of video clips that are in the
video programming distributor's or provider's online library before the
compliance deadline with minimal benefits, and we thus exempt this
class from coverage of our IP closed captioning rules.
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\58\ See Hulu Apr. 1 Ex Parte Letter at 3; NAB June 9 Ex Parte
Letter at 2. We recognize Consumer Groups' argument that many video
clips ``are likely to live on the Internet indefinitely,'' and while
that may be true for some video clips, we expect that many of the
video clips that will be online prior to the compliance deadlines
will be of lesser interest to consumers than more recent clips that
are posted online after the applicable compliance deadline.
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5. Application of General IP Closed Captioning Rules to Video Clips
33. Except as otherwise discussed above, the IP closed captioning
requirements will apply to video clips in the same manner that they
apply to full-length video programming shown online. For example,
entities may file a petition for exemption from the IP closed
captioning rules based on economic burden.\59\ Additionally, this means
that video programming owners must provide captions of at least the
same quality as the televised captions for the same programming, and
video programming distributors and providers must maintain the quality
of the captions provided by the video programming owner. Consumer
Groups support the application of existing quality requirements for
full-length IP-delivered video programming to IP-delivered video clips.
The Commission previously stated that an evaluation of whether IP-
delivered captions are of at least the same quality as the televised
captions may involve the consideration of ``such factors as
completeness, placement, accuracy, and timing.'' \60\ Along these
lines, the Commission recently adopted new requirements governing the
quality of television closed captioning that incorporate these factors.
Thus, while some commenters have asserted that there are problems with
the quality of the captioning of IP-delivered video clips, it is likely
that the Commission's new rules governing captioning quality on
television will improve the quality of closed captioning on programming
delivered via IP as well. For example, when a televised program is in
compliance with the new requirement that captions be accurate and
complete, then all of the audio accompanying a particular clip of the
television program also must be captioned. In recognition of the fact
that video clips may in some instances have to be recaptioned, however,
we will permit de minimis differences between the closed captions
accompanying an IP-delivered video clip and the closed captions that
appeared on television.\61\ We recognize that providing captions for
video clips may present technical challenges beyond those associated
with captioning full-length programs. We will take this difficulty into
account in the event of complaints.\62\ It is our hope, however, that
advancements in technology by the time the compliance deadlines arrive
may substantially ameliorate these challenges. The Commission, through
its Consumer and Governmental Affairs Bureau, will work to resolve any
informal complaints of noncompliance with the new requirements to
caption video clips, but would typically consider enforcement action by
its Enforcement Bureau when there is a pattern or trend of possible
noncompliance by a covered entity. Importantly, we note that the IP
Closed Captioning Order makes clear that entities are not responsible
for quality issues outside of their control. Thus, it is not necessary
for us to adopt specific rules to address NAB's concern that problems
with captions of IP-delivered video clips may result from technical
problems beyond a station's control.
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\59\ See 47 CFR 79.4(d) (setting forth the procedures for
exemptions based on economic burden, and stating that the Commission
will consider the following factors: ``(i) The nature and cost of
the closed captions for the programming; (ii) The impact on the
operation of the video programming provider or owner; (iii) The
financial resources of the video programming provider or owner; and
(iv) The type of operations of the video programming provider or
owner.''). Entities also may avail themselves of the statutory
requirement that a de minimis failure to comply with the IP closed
captioning regulations will not be treated as a violation. See 47
U.S.C. 613(c)(2)(D)(vii).
\60\ See IP Closed Captioning Order, 27 FCC Rcd at 812, para.
37.
\61\ See 47 U.S.C. 613(c)(2)(D)(vii) (a de minimis failure to
comply with the IP closed captioning regulations will not be treated
as a violation). Accordingly, voice recognition technology can be
used to recaption video clips, but only to the extent that the
quality requirements are met, with permissible de minimis
differences between the closed captions accompanying an IP-delivered
video clip and the closed captions that appeared on television. We
thus decline Disney's request that we permit entities to use ``the
best available voice recognition technology,'' because the record
contains no evidence to suggest that ``the best available voice
recognition technology'' today would produce captions that meet the
captioning quality requirements.
\62\ We understand that the captions for live programming may
appear on-screen with a delay. In such instances, to ensure that the
captions available with an IP-delivered video clip are complete, the
caption file may be synchronized to the clip's audio, or the
captions may continue on-screen after the clip has concluded until
all of the associated captions have appeared.
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34. When a video programming provider or distributor provides
applications or plug-ins for viewing video programming, it must comply
with Section 79.103(c) of our rules, which requires the inclusion of
certain consumer tools such as the ability to change caption font,
size, and color. The Commission's rules refer to these consumer tools
as ``technical capabilities.'' We understand that some applications
include video players that display only video clips, and these players
were not designed with closed captioning capability. DiMA has explained
that extension of the IP closed captioning rules to video clips will
require upgrades to these video players, and in some instances a single
video programming distributor may need to upgrade multiple video
players. DiMA asserts that it would be difficult for video programming
provider- or distributor-provided applications or plug-ins that play
video clips but not full-length programming to comply with Section
79.103(c) of our rules and that, in any event, the technical
capabilities set forth in our rules are less useful when consumers view
video clips as opposed to full-length programming. We are not persuaded
by these assertions. Rather, we expect that video programming providers
and distributors will be able to comply with the requirements for their
applications and plug-ins that play video clips, and we agree with
Consumer Groups that the Commission should not enshrine in our rules an
exception based on a video programming provider or distributor's
decision not to include closed captioning capability in the earlier
versions of its video players. To the extent that a video programming
provider or distributor determines that compliance with the IP closed
captioning requirements for its application or plug-in that only plays
video clips would be economically burdensome, it may file an exemption
request.\63\ The CVAA provides that during the pendency of a petition
for exemption from the IP closed captioning rules due to economic
burden, the ``provider or owner shall be exempt from the requirements.
. . . The Commission shall act to grant or deny any such petition, in
whole or in part, within 6 months after the Commission receives such
petition, unless the Commission finds that an extension of the 6-month
period is necessary to determine whether such requirements are
economically burdensome.'' \64\
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\63\ 47 U.S.C. 613(d)(3); 47 CFR 79.4(d).
\64\ 47 U.S.C. 613(d)(3).
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IV. Procedural Matters
A. Final Regulatory Flexibility Analysis
35. As required by the Regulatory Flexibility Act of 1980, as
amended
[[Page 45365]]
(``RFA''), an Initial Regulatory Flexibility Analysis (``IRFA'') was
incorporated into the Notice of Proposed Rulemaking in this proceeding.
The Federal Communications Commission (``Commission'') sought written
public comment on the proposals in the NPRM, including comment on the
IRFA. The Media Bureau issued a public notice seeking comment on the
closed captioning of Internet protocol-delivered video clips, and that
public notice also referenced the Initial Regulatory Flexibility
Analysis included in the NPRM in this proceeding, which identified
small entities that might be affected. The Commission received no
comments on the IRFA. This present Final Regulatory Flexibility
Analysis (``FRFA'') conforms to the RFA.
1. Need for, and Objectives of, the Second Order on Reconsideration
36. One of the Commission's priorities is to ensure that all
individuals, especially individuals with disabilities, are able to
enjoy the full benefits of broadband technology, including the services
that broadband enables such as online video programming. Online viewing
of video programming is becoming increasingly significant, and one
aspect of this development is that more and more consumers are
receiving news, sports, and entertainment programming in the form of
online video clips. In the Second Order on Reconsideration (``Video
Clips Order''), as part of our continued implementation of the Twenty-
First Century Communications and Video Accessibility Act of 2010
(``CVAA''), we conclude that clips of video programming covered by the
statute must be captioned when delivered using Internet protocol
(``IP'') and set out a schedule of deadlines.
37. When the Commission initially adopted IP closed captioning
requirements pursuant to its responsibilities under the CVAA it applied
the requirements to full-length video programming and not to video
clips. The Commission said that it might in the future extend the IP
closed captioning requirements to video clips if it found that
consumers who are deaf or hard of hearing are denied access to critical
areas of programming, such as news, because the programming is posted
online as video clips. In response to a petition for reconsideration
filed by consumer groups, and at the Commission's direction, the Media
Bureau issued a public notice seeking updated information on the closed
captioning of IP-delivered video clips, including the extent to which
the industry has voluntarily captioned these clips. After reviewing the
record compiled in this proceeding, we find that a significant
percentage of video clips continue to remain inaccessible to consumers
who are deaf or hard of hearing. In addition, we have reconsidered the
Commission's earlier interpretation of the statute and conclude that
Congress intended the IP closed captioning requirements to extend to
all covered video programming including clips, but left to our
discretion the timeline for compliance with this requirement.
Accordingly, to implement the statute fully, and in furtherance of
Congress's intent to ensure that individuals who are deaf or hard of
hearing have better access to online video programming, the Video Clips
Order reconsiders the Commission's earlier decision and revises the
Commission's regulations to require the provision of closed captioning
on video clips delivered using IP when the programming was published or
exhibited on television with captions. As discussed in Section III of
the Video Clips Order, it imposes closed captioning requirements on IP-
delivered video clips by adopting rules that will:
Extend the IP closed captioning requirements to IP-
delivered video clips if the video programming distributor or provider
posts on its Web site or application (``app'') a video clip of video
programming that it published or exhibited on television in the United
States with captions, regardless of the content or length of the video
clip.
Pursuant to our authority to establish an appropriate
schedule of deadlines for purposes of the IP closed captioning
requirements, adopt a compliance deadline of January 1, 2016 for
``straight lift'' clips, which contain a single excerpt of a captioned
television program with the same video and audio that was presented on
television, and January 1, 2017 for ``montages,'' which contain
multiple straight lift clips.
After the applicable deadlines, require IP-delivered video
clips to be provided with closed captions at the time the clips are
posted online, except as otherwise provided.
For clips of video programming previously shown live or
near-live on television with captions, require captions beginning July
1, 2017 and for the present time allow a grace period of 12 hours after
the live programming is shown on television and eight hours after the
near-live programming is shown on television before the clip must be
captioned online.
Find that compliance with the new requirements would be
economically burdensome for video clips that are in the video
programming distributor's or provider's online library before January
1, 2016 for straight lift clips, and January 1, 2017 for montages, and
thus exempt this class of video clips from coverage; and
Generally apply the IP closed captioning requirements to
video clips in the same manner that they apply to full-length video
programming, which among other things means that the quality
requirements applicable to full-length IP-delivered video programming
will apply to video clips.
In short, while we expect that some small entities will be impacted by
these rules, we find that any economic impact of these rules on small
entities will be mitigated by the availability of exemptions due to
economic burden, and by the provision of the CVAA providing that a de
minimis failure to comply with these rules will not be treated as a
violation.
2. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
38. No comments were filed in response to the IRFA. Some parties
have made filings on the record that address the potential impact on
small entities of rules requiring closed captioning of IP-delivered
video clips. Specifically, one commenter asserted that small
broadcasters that currently voluntarily caption certain televised
programming might cease doing so, to avoid triggering a requirement for
captioning of online clips of that programming.\65\ Another commenter
argued that the technology is still developing and stated, ``If
broadcasters, perhaps particularly smaller ones, were immediately to
face FCC complaint procedures and potential enforcement actions for
failing to caption online video clips with the requisite quality, this
would act as a disincentive to place video clips online, at least until
clip captioning technology improves in both quality and reliability.''
\66\
---------------------------------------------------------------------------
\65\ Reply Comments of the Association of Public Television
Stations and the Public Broadcasting Service at 2, 5-6. But see
Consumer Groups Reply to Opposition of APTS/PBS, NAB, and NCTA at 5
(arguing that reductions in captioning costs no longer justify the
television closed captioning exemption cited by APTS/PBS, in any
event, and that the availability of exemptions due to economic
burden should alleviate the concerns of APTS/PBS).
\66\ Reply Comments of the National Association of Broadcasters
at 10. See also id. at 5, n. 8 (``Some small market stations report
that they can only afford to caption clips online if owned and
subsidized by a larger market station, given the cost of clip
captioning and the lack of revenue from online video clips.'');
Disney June 18 Ex Parte Letter at 2 (``[T]he key aspect in crafting
a realistic regime would be a long implementation period so that
stations and programmers (both big and small) could budget for and
undertake such a reconfiguration.'') (emphasis in original).
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[[Page 45366]]
3. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
39. The RFA directs agencies to provide a description of and an
estimate of the number of small entities to which the rules will apply.
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 Small Business Administration (``SBA''). Below are
descriptions of the small entities that may be affected by the rules
adopted in the Video Clips Order, including, where feasible, an
estimate of the number of such small entities.
40. Small Businesses, Small Organizations, and Small Governmental
Jurisdictions. Our action may, over time, affect small entities that
are not easily categorized at present. We therefore describe here, at
the outset, three comprehensive, statutory small entity size standards.
First, according to the SBA Office of Advocacy, in 2010, there were
27.9 million small businesses in the United States. In addition, 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, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand.'' Census Bureau data for 2011
indicate that there were 89,476 local governmental jurisdictions in the
United States. We estimate that, of this total, a substantial majority
may qualify as ``small governmental jurisdictions.'' Thus, we estimate
that most governmental jurisdictions are small.
41. Wired Telecommunications Carriers. The North American Industry
Classification System (``NAICS'') defines ``Wired Telecommunications
Carriers'' as follows: ``This industry comprises establishments
primarily engaged in operating and/or providing access to transmission
facilities and infrastructure that they own and/or lease for the
transmission of voice, data, text, sound, and video using wired
telecommunications networks. Transmission facilities may be based on a
single technology or a combination of technologies. Establishments in
this industry use the wired telecommunications network facilities that
they operate to provide a variety of services, such as wired telephony
services, including VoIP services; wired (cable) audio and video
programming distribution; and wired broadband Internet services. By
exception, establishments providing satellite television distribution
services using facilities and infrastructure that they operate are
included in this industry.'' The SBA has developed a small business
size standard for wireline firms for the broad economic census category
of ``Wired Telecommunications Carriers.'' Under this category, a
wireline business is small if it has 1,500 or fewer employees. Census
data for 2007 shows that there were 31,996 establishments that operated
for the entire year. Of this total, 30,178 establishments had fewer
than 100 employees, and 1,818 establishments had 100 or more employees.
Therefore, under this size standard, we estimate that the majority of
businesses can be considered small entities.
42. Cable Television Distribution Services. Since 2007, these
services have been defined within the broad economic census category of
Wired Telecommunications Carriers, which category is defined above. The
SBA has developed a small business size standard for this category,
which is: All such businesses having 1,500 or fewer employees. Census
data for 2007 shows that there were 31,996 establishments that operated
for the entire year. Of this total, 30,178 establishments had fewer
than 100 employees, and 1,818 establishments had 100 or more employees.
Therefore, under this size standard, we estimate that the majority of
businesses can be considered small entities.
43. Cable Companies and Systems. The Commission has also developed
its own small business size standards, for the purpose of cable rate
regulation. Under the Commission's rate regulation rules, a ``small
cable company'' is one serving 400,000 or fewer subscribers,
nationwide. According to SNL Kagan, there are 1,258 cable operators. Of
this total, all but 10 incumbent cable companies are small under this
size standard. In addition, under the Commission's rules, a ``small
system'' is a cable system serving 15,000 or fewer subscribers. Current
Commission records show 4,584 cable systems nationwide. Of this total,
4,012 cable systems have fewer than 20,000 subscribers, and 572 systems
have 20,000 subscribers or more, based on the same records. Thus, under
this standard, we estimate that most cable systems are small.
44. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, also contains a size standard
for small cable system operators, which is ``a cable operator that,
directly or through an affiliate, serves in the aggregate fewer than 1
percent of all subscribers in the United States and is not affiliated
with any entity or entities whose gross annual revenues in the
aggregate exceed $250,000,000.'' The Commission has determined that an
operator serving fewer than 677,000 subscribers shall be deemed a small
operator, if its annual revenues, when combined with the total annual
revenues of all its affiliates, do not exceed $250 million in the
aggregate. Based on available data, we find that all but 10 incumbent
cable operators are small under this size standard. We note that the
Commission neither requests nor collects information on whether cable
system operators are affiliated with entities whose gross annual
revenues exceed $250 million. Although it seems certain that some of
these cable system operators are affiliated with entities whose gross
annual revenues exceed $250,000,000, we are unable to estimate with
greater precision the number of cable system operators that would
qualify as small cable operators under this definition.
45. Direct Broadcast Satellite (DBS) Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic ``dish'' antenna
at the subscriber's location. DBS, by exception, is now included in the
SBA's broad economic census category, Wired Telecommunications
Carriers, which was developed for small wireline businesses. Under this
category, the SBA deems a wireline business to be small if it has 1,500
or fewer employees. Census data for 2007 shows that there were 31,996
establishments that operated for the entire year. Of this total, 30,178
establishments had fewer than 100 employees, and 1,818 establishments
had 100 or more employees. Therefore, under this size standard, the
majority of such businesses can be considered small. However, the data
we have available as a basis for estimating the number of such small
entities were gathered under a superseded SBA small
[[Page 45367]]
business size standard formerly titled ``Cable and Other Program
Distribution.'' The definition of Cable and Other Program Distribution
provided that a small entity is one with $12.5 million or less in
annual receipts. Currently, only two entities provide DBS service,
which requires a great investment of capital for operation: DIRECTV and
DISH Network. Each currently offers subscription services. DIRECTV and
DISH Network each reports annual revenues that are in excess of the
threshold for a small business. Because DBS service requires
significant capital, we believe it is unlikely that a small entity as
defined by the SBA would have the financial wherewithal to become a DBS
service provider.
46. Satellite Master Antenna Television (SMATV) Systems, also known
as Private Cable Operators (PCOs). SMATV systems or PCOs are video
distribution facilities that use closed transmission paths without
using any public right-of-way. They acquire video programming and
distribute it via terrestrial wiring in urban and suburban multiple
dwelling units such as apartments and condominiums, and commercial
multiple tenant units such as hotels and office buildings. SMATV
systems or PCOs are now included in the SBA's broad economic census
category, Wired Telecommunications Carriers, which was developed for
small wireline businesses. Under this category, the SBA deems a
wireline business to be small if it has 1,500 or fewer employees.
Census data for 2007 shows that there were 31,996 establishments that
operated for the entire year. Of this total, 30,178 establishments had
fewer than 100 employees, and 1,818 establishments had 100 or more
employees. Therefore, under this size standard, the majority of such
businesses can be considered small.
47. Home Satellite Dish (HSD) Service. HSD or the large dish
segment of the satellite industry is the original satellite-to-home
service offered to consumers, and involves the home reception of
signals transmitted by satellites operating generally in the C-band
frequency. Unlike DBS, which uses small dishes, HSD antennas are
between four and eight feet in diameter and can receive a wide range of
unscrambled (free) programming and scrambled programming purchased from
program packagers that are licensed to facilitate subscribers' receipt
of video programming. Because HSD provides subscription services, HSD
falls within the SBA-recognized definition of Wired Telecommunications
Carriers. The SBA has developed a small business size standard for this
category, which is: All such businesses having 1,500 or fewer
employees. Census data for 2007 shows that there were 31,996
establishments that operated that year. Of this total, 30,178
establishments had fewer than 100 employees, and 1,818 establishments
had 100 or more employees. Therefore, under this size standard, we
estimate that the majority of businesses can be considered small
entities.
48. Open Video Services. The open video system (OVS) framework was
established in 1996, and is one of four statutorily recognized options
for the provision of video programming services by local exchange
carriers. The OVS framework provides opportunities for the distribution
of video programming other than through cable systems. 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 businesses having
1,500 or fewer employees. Census data for 2007 shows that there were
31,996 establishments that operated that year. Of this total, 30,178
establishments had fewer than 100 employees, and 1,818 establishments
had 100 or more employees. Therefore, under this size standard, we
estimate that the majority of businesses can be considered small
entities. In addition, we note that the Commission has certified some
OVS operators, with some now providing service. Broadband service
providers (``BSPs'') are currently the only significant holders of OVS
certifications or local OVS franchises. The Commission does not have
financial or employment information regarding the entities authorized
to provide OVS, some of which may not yet be operational. Thus, again,
at least some of the OVS operators may qualify as small entities.
49. 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. The BRS auctions resulted in 67
successful bidders obtaining licensing opportunities for 493 Basic
Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition
of a small business. BRS also includes licensees of stations authorized
prior to the auction. At this time, we estimate that of the 61 small
business BRS auction winners, 48 remain small business licensees. In
addition to the 48 small businesses that hold BTA authorizations, there
are approximately 392 incumbent BRS licensees that are considered small
entities. After adding the number of small business auction licensees
to the number of incumbent licensees not already counted, we find that
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, the sale of 78 licenses in
the BRS areas. The Commission offered three levels of bidding credits:
(i) A bidder with attributed average annual gross revenues that exceed
$15 million and do not exceed $40 million for the preceding three years
(small business) received a 15 percent discount on its winning bid;
(ii) a bidder with attributed average annual gross revenues that exceed
$3 million and do not exceed $15 million for the preceding three years
(very small business) received a 25 percent discount on its winning
bid; and (iii) a bidder with attributed average annual gross revenues
that do not exceed $3 million for the preceding three years
(entrepreneur) received a 35 percent discount on its winning bid.
Auction 86 concluded in 2009 with the sale of 61 licenses. 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.
50. 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. Since 2007, these services have been defined within the broad
economic census category of Wired Telecommunications Carriers, which
was developed for small wireline businesses. The SBA has developed a
small business size standard for this category, which is: All such
businesses having 1,500 or fewer employees. Census data for 2007 shows
that there were 31,996 establishments that operated that year. Of this
total, 30,178 establishments had fewer than 100 employees, and 1,818
establishments had 100 or more employees. Therefore, under this size
standard, we estimate
[[Page 45368]]
that the majority of businesses can be considered small entities. In
addition to Census data, the Commission's internal records indicate
that as of September 2012, there are 2,241 active EBS licenses. The
Commission estimates that of these 2,241 licenses, the majority are
held by non-profit educational institutions and school districts, which
are by statute defined as small businesses.
51. Incumbent Local Exchange Carriers (ILECs). Neither the
Commission nor the SBA has developed a small business size standard
specifically for incumbent local exchange services. ILECs are included
in the SBA's economic census category, Wired Telecommunications
Carriers. Under this category, the SBA deems a wireline business to be
small if it has 1,500 or fewer employees. Census data for 2007 shows
that there were 31,996 establishments that operated that year. Of this
total, 30,178 establishments had fewer than 100 employees, and 1,818
establishments had 100 or more employees. Therefore, under this size
standard, the majority of such businesses can be considered small.
52. Small Incumbent Local Exchange Carriers. We have included small
incumbent local exchange carriers in this present RFA analysis. A
``small business'' under the RFA is one that, inter alia, meets the
pertinent small business size standard (e.g., a telephone
communications business having 1,500 or fewer employees), and ``is not
dominant in its field of operation.'' The SBA's Office of Advocacy
contends that, for RFA purposes, small incumbent local exchange
carriers are not dominant in their field of operation because any such
dominance is not ``national'' in scope. We have therefore included
small incumbent local exchange carriers in this RFA analysis, although
we emphasize that this RFA action has no effect on Commission analyses
and determinations in other, non-RFA contexts.
53. 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.
These entities are included in the SBA's economic census category,
Wired Telecommunications Carriers. Under this category, the SBA deems a
wireline business to be small if it has 1,500 or fewer employees.
Census data for 2007 shows that there were 31,996 establishments that
operated that year. Of this total, 30,178 establishments had fewer than
100 employees, and 1,818 establishments had 100 or more employees.
Therefore, under this size standard, the majority of such businesses
can be considered small.
54. Television Broadcasting. This economic census category
``comprises establishments primarily engaged in broadcasting images
together with sound.'' The SBA has created the following small business
size standard for Television Broadcasting businesses: Those having
$35.5 million or less in annual receipts. Census data for 2007 shows
that 2,076 establishments in this category operated for the entire
year. Of this total, 1,515 establishments had annual receipts of
$10,000,000 or less, and 561 establishments had annual receipts of more
than $10,000,000. Because the Census has no additional classifications
on the basis of which to identify the number of stations whose receipts
exceeded $35.5 million in that year, the majority of such
establishments can be considered small under this size standard.
55. Apart from the U.S. Census, the Commission has estimated the
number of licensed commercial television stations to be 1,388 stations.
Of this total, 1,221 stations (or about 88 percent) had revenues of
$35.5 million or less, according to Commission staff review of the BIA
Kelsey Inc. Media Access Pro Television Database (BIA) on July 2, 2014.
In addition, the Commission has estimated the number of licensed
noncommercial educational (NCE) television stations to be 395. NCE
stations are non-profit, and therefore considered to be small entities.
Therefore, we estimate that the majority of television broadcast
stations are small entities.
56. We note, however, that in assessing whether a business concern
qualifies as small under the above definition, business (control)
affiliations must be included. Our estimate, therefore, likely
overstates the number of small entities that might be affected by our
action because the revenue figure on which it is based does not include
or aggregate revenues from affiliated companies. In addition, an
element of the definition of ``small business'' is that the entity not
be dominant in its field of operation. We are unable at this time to
define or quantify the criteria that would establish whether a specific
television station is dominant in its field of operation. Accordingly,
the estimate of small businesses to which rules may apply does not
exclude any television station from the definition of a small business
on this basis and is therefore possibly over-inclusive to that extent.
57. Cable and Other Subscription Programming. The Census Bureau
defines this category as follows: ``This industry comprises
establishments primarily engaged in operating studios and facilities
for the broadcasting of programs on a subscription or fee basis . . . .
These establishments produce programming in their own facilities or
acquire programming from external sources. The programming material is
usually delivered to a third party, such as cable systems or direct-to-
home satellite systems, for transmission to viewers.'' The SBA has
developed a small business size standard for this category, which is:
All such businesses having $35.5 million or less in annual revenues.
Census data for 2007 shows that there were 659 establishments that
operated for the entire year. Of that number, 462 operated with annual
revenues of fewer than $10 million, and 197 operated with annual
revenues of $10 million or more. Therefore, under this size standard,
the majority of such businesses can be considered small.
58. Motion Picture and Video Production. The Census Bureau defines
this category as follows: ``This industry comprises establishments
primarily engaged in producing, or producing and distributing motion
pictures, videos, television programs, or television commercials.'' We
note that firms in this category may be engaged in various industries,
including cable programming. Specific figures are not available
regarding how many of these firms produce programming for cable
television. To gauge small business prevalence in the Motion Picture
and Video Production industries, the Commission relies on data
currently available from the U.S. Census for the year 2007. The SBA has
developed a small business size standard for this category, which is:
Those having $30 million or less in annual receipts. Census data for
2007 shows that there were 9,095 firms in this category that operated
for the entire year. Of this total, 8,995 firms had annual receipts of
fewer than $25 million, and 43 firms had receipts of $25 million to
$49,999,999. Therefore, under this size standard, the majority of such
businesses can be considered small.
59. Motion Picture and Video Distribution. The Census Bureau
defines this category as follows: ``This industry comprises
establishments primarily engaged in acquiring distribution rights and
distributing film and video productions to motion picture theaters,
television networks and stations, and exhibitors.'' We note that firms
in this category may be engaged in various industries, including cable
[[Page 45369]]
programming. Specific figures are not available regarding how many of
these firms distribute programming for cable television. To gauge small
business prevalence in the Motion Picture and Video Distribution
industries, the Commission relies on data currently available from the
U.S. Census for the year 2007. The SBA has developed a small business
size standard for this category, which is: Those having $29.5 million
or less in annual receipts. Census data for 2007 shows that there were
450 firms in this category that operated for the entire year. Of this
total, 434 firms had annual receipts of fewer than $25 million, and 7
firms had receipts of $25 million to $49,999,999. Therefore, under this
size standard, the majority of such businesses can be considered small.
60. Internet Publishing and Broadcasting and Web Search Portals.
The Census Bureau defines this category as follows: ``This industry
comprises establishments primarily engaged in (1) publishing and/or
broadcasting content on the Internet exclusively or (2) operating Web
sites that use a search engine to generate and maintain extensive
databases of Internet addresses and content in an easily searchable
format (and known as Web search portals). The publishing and
broadcasting establishments in this industry do not provide traditional
(non-Internet) versions of the content that they publish or broadcast.
They provide textual, audio, and/or video content of general or
specific interest on the Internet exclusively. Establishments known as
Web search portals often provide additional Internet services, such as
email, connections to other Web sites, auctions, news, and other
limited content, and serve as a home base for Internet users.'' The SBA
has developed a small business size standard for this category, which
is: All such businesses having 500 or fewer employees. Census data for
2007 shows that there were 2,705 firms that operated for the entire
year. Of this total, 2,682 firms had fewer than 500 employees, and 13
firms had between 500 and 999 employees. Therefore, under this size
standard, the majority of such businesses can be considered small.
61. Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. The Census Bureau defines this category as
follows: ``This industry comprises establishments primarily engaged in
manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these
establishments are: Transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.'' The SBA has developed a small business size
standard for this category, which is: All such businesses having 750 or
fewer employees. Census data for 2007 shows that there were 939
establishments that operated for part or all of the entire year. Of
this total, 912 establishments had fewer than 500 employees, and 10
establishments had between 500 and 999 employees. Therefore, under this
size standard, the majority of such establishments can be considered
small.
62. Audio and Video Equipment Manufacturing. The Census Bureau
defines this category as follows: ``This industry comprises
establishments primarily engaged in manufacturing electronic audio and
video equipment for home entertainment, motor vehicles, and public
address and musical instrument amplification. Examples of products made
by these establishments are video cassette recorders, televisions,
stereo equipment, speaker systems, household-type video cameras,
jukeboxes, and amplifiers for musical instruments and public address
systems.'' The SBA has developed a small business size standard for
this category, which is: All such businesses having 750 or fewer
employees. Census data for 2007 shows that 492 establishments in this
category operated for part or all of the entire year. Of this total,
488 establishments had fewer than 500 employees, and three had between
500 and 999 employees. Therefore, under this size standard, the
majority of such establishments can be considered small.
63. Closed Captioning Services. These entities may be indirectly
affected by our action. The SBA has developed two small business size
standards that may be used for closed captioning services. The two size
standards track the economic census categories, ``Teleproduction and
Other Postproduction Services'' and ``Court Reporting and Stenotype
Services.''
64. The first category of Teleproduction and Other Postproduction
Services ``comprises establishments primarily engaged in providing
specialized motion picture or video postproduction services, such as
editing, film/tape transfers, subtitling, credits, closed captioning,
and animation and special effects.'' The SBA has developed a small
business size standard for this category, which is: Those having $29.5
million or less in annual receipts. Census data for 2007 indicates that
there were 1,605 firms that operated in this category for the entire
year. Of this total, 1,587 firms had annual receipts of fewer than $25
million, and 9 firms had receipts of $25 million to $49,999,999.
Therefore, we estimate that the majority of firms in this category are
small entities.
65. The second category of Court Reporting and Stenotype Services
``comprises establishments primarily engaged in providing verbatim
reporting and stenotype recording of live legal proceedings and
transcribing subsequent recorded materials.'' The SBA has developed a
small business size standard for this category, which is: Those having
$14 million or less in annual receipts. Census data for 2007 indicates
that there were 2,706 firms that operated in this category for the
entire year. Of this total, 2,687 had annual receipts of fewer than $10
million, and 11 firms had receipts of $10 million to $24,999,999.
Therefore, we estimate that the majority of firms in this category are
small entities.
4. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
66. The rules adopted in the Video Clips Order generally extend the
IP closed captioning requirements, which previously applied only to
full-length video programming, to video clips. The Video Clips Order
does not adopt a new regulatory regime, but rather, applies the
existing regime for full-length IP-delivered video programming to IP-
delivered video clips, with certain modifications in recognition of the
differences between video clips and full-length video programming.
Accordingly, there are no new reporting or recordkeeping requirements.
There will, however, be new compliance requirements for small entities.
Specifically, the IP closed captioning requirements will extend to IP-
delivered video clips if the video programming distributor or provider
posts on its Web site or app a video clip of video programming that it
published or exhibited on television in the United States with
captions. The Commission adopts a compliance deadline of January 1,
2016 for ``straight lift'' clips, which contain a single excerpt of a
captioned television program with the same video and audio that was
presented on television, and January 1, 2017 for ``montages,'' which
contain multiple straight lift clips. After the applicable deadlines,
the new rules will require IP-delivered video clips to be provided with
closed captions at the time the clips are posted online, except as
otherwise provided. For clips of video
[[Page 45370]]
programming previously shown live or near-live on television with
captions, the rules will require captions beginning July 1, 2017, and
for the present time will allow a grace period of 12 hours after the
live programming is shown on television and eight hours after the near-
live programming is shown on television before the clip must be
captioned online. The Commission finds that compliance with the new
requirements would be economically burdensome for video clips that are
in the video programming distributor's or provider's online library
before January 1, 2016 for straight lift clips and January 1, 2017 for
montages, and thus the Commission exempts this class of video clips
from coverage. In general, the Commission applies the IP closed
captioning requirements to video clips in the same manner that they
apply to full-length video programming, which among other things means
that the quality requirements applicable to full-length IP-delivered
video programming will apply to video clips.
5. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
67. The RFA requires an agency to describe the steps the agency has
taken to minimize the significant economic impact on small entities
consistent with the stated objectives of applicable statutes, including
a statement of the factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each one of the other
significant alternatives to the rule considered by the agency which
affect the impact on small entities was rejected.
68. As explained above, the Video Clips Order does not adopt a new
regulatory regime, but rather, applies the existing regime for full-
length IP-delivered video programming to IP-delivered video clips, with
certain modifications in recognition of the differences between video
clips and full-length video programming. Accordingly, similar to the
rules promulgated in the IP Closed Captioning Order, the rules adopted
in the Video Clips Order may have a significant economic impact in some
cases and that impact may affect a substantial number of small
entities. Although the Commission has considered alternatives, where
possible, to minimize economic impact on small entities, we note that
our action is governed by the congressional mandate contained in the
CVAA.
69. Notably, the same aspects of the IP closed captioning rules
applicable to full-length programming that ease compliance burdens on
small entities also apply to small entities in the context of video
clips. Specifically, in the IP Closed Captioning Order, the Commission
adopted procedures enabling it to grant exemptions to the rules
governing closed captioning of IP-delivered video programming pursuant
to Section 202 of the CVAA, where a petitioner has shown that
compliance would present an economic burden (i.e., a significant
difficulty or expense), and pursuant to Section 203 of the CVAA, where
a petitioner has shown that compliance is not achievable (i.e., cannot
be accomplished with reasonable effort or expense) or not technically
feasible. As was the case with regard to full-length programming, this
exemption process will allow the Commission to address the impact of
the extension of the rules to video clips on individual entities,
including smaller entities, and to modify the application of the rules
to accommodate individual circumstances. Further, as with full-length
IP-delivered video programming, a de minimis failure to comply with the
requirements adopted pursuant to Section 202 of the CVAA with regard to
IP-delivered video clips will not be treated as a violation, and
parties may continue to use alternate means of compliance to the rules
adopted pursuant to either Section 202 or Section 203 of the CVAA.
Individual entities, including smaller entities, may benefit from these
provisions.
70. Overall, in crafting its new requirements, the Commission
addressed the issues described in Section B above by providing
reasonable timeframes within which entities may come into compliance,
and by providing a grace period within which captions may be added to
video clips of live or near-live programming. All of these provisions
should ease the burdens that small entities otherwise would face in
complying with these requirements. Further, in recognition of the
burdens that would be imposed on regulated entities, in particular
smaller entities, if faced with a requirement to caption video clips
that are in the video programming distributor's or provider's online
library before January 1, 2016 for straight lift clips and January 1,
2017 for montages, the Commission finds that such a requirement would
be economically burdensome and thus exempts this category of video
clips from coverage. We note, additionally, that a Commission
requirement for captioning IP-delivered video clips will ensure that
the content, including critical news programming, will be accessible to
individuals who are deaf or hard of hearing, thus significantly
benefiting consumers and serving the stated public interest goal of the
CVAA.
6. Report to Congress
71. The Commission will send a copy of the Video Clips Order,
including this FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act.\67\ In addition, the Commission will send a
copy of the Video Clips Order, including this FRFA, to the Chief
Counsel for Advocacy of the SBA. A copy of the Video Clips Order and
FRFA (or summaries thereof) will also be published in the Federal
Register.\68\
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\67\ See 5 U.S.C. 801(a)(1)(A).
\68\ See id. 604(b).
---------------------------------------------------------------------------
B. Paperwork Reduction Act
72. The Video Clips Order does not contain proposed information
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. In addition, therefore, it does not contain any new
or modified information collection burden for small business concerns
with fewer than 25 employees, pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
C. Congressional Review Act
73. The Commission will send a copy of the Video Clips Order in MB
Docket No. 11-154 in a report to be sent to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, see 5
U.S.C. 801(a)(1)(A).
D. Additional Information
74. For additional information on this proceeding, contact Diana
Sokolow, Diana.Sokolow@fcc.gov, of the Media Bureau, Policy Division,
(202) 418-2120.
V. Ordering Clauses
75. Accordingly, it is ordered that, pursuant to the authority
found in Sections 4(i), 4(j), 303, and 713 of the Communications Act of
1934, as amended, 47 U.S.C. 154(i), 154(j), 303, and 613, this Second
Order on Reconsideration IS adopted, effective thirty (30) days after
the date of publication in the Federal Register.
76. It is ordered that, pursuant to the authority found in sections
4(i), 4(j), 303, and 713 of the Communications Act of 1934, as amended,
47 U.S.C. 154(i), 154(j), 303, and 613, the Commission's rules are
hereby amended as set forth in the Final Rules below.
77. It is further ordered that the Commission's Consumer and
[[Page 45371]]
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Second Order on Reconsideration MB Docket No. 11-154,
including the Final Regulatory Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small Business Administration.
78. It is further ordered that the Commission shall send a copy of
this Second Order on Reconsideration in MB Docket No. 11-154 in a
report to be sent to Congress and the Government Accountability Office
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
79. It is further ordered that Consumer Groups' Petition for
Reconsideration, filed April 27, 2012, is granted in part, to the
extent provided herein.
List of Subjects in 47 CFR Part 79
Cable television operators, Communications equipment, Multichannel
video programming distributors (MVPDs), Satellite television service
providers, Television broadcasters.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 79 as follows:
PART 79--ACCESSIBILITY 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. 79.4 by revising paragraph (b) to read as follows:
Sec. 79.4 Closed captioning of video programming delivered using
Internet protocol.
* * * * *
(b) Requirements for closed captioning of Internet protocol-
delivered video programming. (1) All nonexempt full-length video
programming delivered using Internet protocol must be provided with
closed captions if the programming is published or exhibited on
television in the United States with captions on or after the following
dates:
(i) September 30, 2012, for all prerecorded programming that is not
edited for Internet distribution, unless it is subject to paragraph
(b)(1)(iv) of this section.
(ii) March 30, 2013, for all live and near-live programming, unless
it is subject to paragraph (b)(1)(iv) of this section.
(iii) September 30, 2013, for all prerecorded programming that is
edited for Internet distribution, unless it is subject to paragraph
(b)(1)(iv) of this section.
(iv) All programming that is already in the video programming
distributor's or provider's library before it is shown on television
with captions must be captioned within 45 days after the date it is
shown on television with captions on or after March 30, 2014 and before
March 30, 2015. Such programming must be captioned within 30 days after
the date it is shown on television with captions on or after March 30,
2015 and before March 30, 2016. Such programming must be captioned
within 15 days after the date it is shown on television with captions
on or after March 30, 2016.
(2) All nonexempt video clips delivered using Internet protocol
must be provided with closed captions if the video programming
distributor or provider posts on its Web site or application a video
clip of video programming that it published or exhibited on television
in the United States with captions on or after the applicable
compliance deadline. The requirements contained in this paragraph shall
not apply to video clips added to the video programming distributor's
or provider's library before the video programming distributor or
provider published or exhibited the associated video programming on
television in the United States with captions on or after the
applicable compliance deadline.
(i) The requirements contained in paragraph (b)(2) of this section
shall apply with the following compliance deadlines:
(A) January 1, 2016, where the video clip contains a single excerpt
of a captioned television program with the same video and audio that
was presented on television.
(B) January 1, 2017, where a single file contains multiple video
clips that each contain a single excerpt of a captioned television
program with the same video and audio that was presented on television.
(C) July 1, 2017, for video clips of live and near-live
programming.
(ii) Closed captions must be provided for video clips of live
programming within 12 hours after the conclusion of the associated
video programming's publication or exhibition on television in the
United States with captions. Closed captions must be provided for video
clips of near-live programming within eight hours after the conclusion
of the associated video programming's publication or exhibition on
television in the United States with captions.
* * * * *
[FR Doc. 2014-18203 Filed 8-4-14; 8:45 am]
BILLING CODE 6712-01-P
