Closed Captioning of Video Programming; Telecommunications for the Deaf and Hard of Hearing, Inc., Petition for Rulemaking, 57473-57489 [2016-19685]
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Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Rules and Regulations
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[FR Doc. 2016–20016 Filed 8–22–16; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 79
[CG Docket No. 05–231; FCC 16–17]
Closed Captioning of Video
Programming; Telecommunications for
the Deaf and Hard of Hearing, Inc.,
Petition for Rulemaking
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the Federal
Communications Commission
(Commission) allocates the
responsibilities of video programming
distributors (VPDs) and video
programmers with respect to the
provision and quality of closed captions
on television programming, with each
entity responsible for closed captioning
issues that are primarily within its
control; amends the Commission’s
captioning complaint procedures to
include video programmers in the
handling of complaints; and requires
video programmers to register contact
information and certify compliance with
captioning obligations directly with the
Commission.
DATES: Effective September 22, 2016,
except for 47 CFR 79.1(g)(1) through (9),
(i)(1) through (3), (j)(1) and (4), (k)(1)(iv),
and (m) of the Commission’s rules,
which contain information collection
requirements that are not effective until
approved by the Office of Management
and Budget (OMB). The Commission
will publish a document in the Federal
Register announcing the effective date
for those sections.
FOR FURTHER INFORMATION CONTACT: Eliot
Greenwald, Disability Rights Office,
Consumer and Governmental Affairs
Bureau, at phone: (202) 418–2235 or
email: Eliot.Greenwald@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Closed
Captioning of Video Programming;
Telecommunications for the Deaf and
Hard of Hearing, Inc., Petition for
Rulemaking Second Report and Order
(Second Report and Order), document
FCC 16–17, adopted on February 18,
2016, and released on February 19,
2016. The full text of document FCC 16–
17 will be available for public
inspection and copying via ECFS, and
during regular business hours at the
FCC Reference Information Center,
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SUMMARY:
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Portals II, 445 12th Street SW., Room
CY–A257, Washington, DC 20554.
Document FCC 16–17 can also be
downloaded in Word or Portable
Document Format (PDF) at: https://
www.fcc.gov/general/disability-rightsoffice-headlines. To request materials in
accessible formats for people with
disabilities (Braille, large print,
electronic files, audio format), send an
email to fcc504@fcc.gov or call the
Consumer and Governmental Affairs
Bureau at 202–418–0530 (voice), 202–
418–0432 (TTY).
Final Paperwork Reduction Act of 1995
Analysis
Document FCC 16–17 contains new
and modified information collection
requirements. The Commission, as part
of its continuing effort to reduce
paperwork burdens, will invite the
general public to comment on the
information collection requirements
contained in document FCC 16–17 as
required by the Paperwork Reduction
Act of 1995 (PRA), Public Law 104–13.
In addition, the Commission notes that,
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, 44 U.S.C. 3506(c)(4), the
Commission previously sought
comment on how the Commission might
‘‘further reduce the information
collection burden for small business
concerns with fewer than 25
employees.’’ See Closed Captioning of
Video Programming;
Telecommunications for the Deaf and
Hard of Hearing, Inc., Petition for
Rulemaking, Report and Order,
Declaratory Ruling, and Further Notice
of Proposed Rulemaking, published at
79 FR 17093, March 27, 2014 (Further
Notice of Proposed Rulemaking) and 79
FR 17911, March 31, 2014 (Report and
Order) (references are to the Closed
Captioning Quality Order when
discussing parts of the Report and
Order, and to the Closed Captioning
Quality Further Notice when discussing
parts of the Further Notice of Proposed
Rulemaking).
Synopsis
1. Closed captioning is a technology
that provides visual access to the audio
content of video programs by displaying
this content as printed words on the
television screen. In 1997, the
Commission, acting pursuant to section
713 of the Communications Act (the
Act), 47 U.S.C. 713, adopted rules
regarding closed captioning on
television. On February 24, 2014, the
Commission adopted the Closed
Captioning Quality Order in which,
among other things, it placed
responsibility for compliance with the
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57473
non-technical closed captioning quality
standards on (VPDs) while
simultaneously releasing the Closed
Captioning Quality Further Notice to
seek comment on, among other issues,
extending some of the responsibilities
for complying with the closed
captioning quality standards to other
entities involved in the production and
delivery of video programming. On
December 15, 2014, the Commission
released a Second Further Notice
seeking to supplement the record in this
proceeding in response to comments
received on the Closed Captioning
Quality Further Notice. Closed
Captioning of Video Programming;
Telecommunications for the Deaf and
Hard of Hearing, Inc., Petition for
Rulemaking, Second Further Notice of
Proposed Rulemaking, published at 79
FR 78768, December 31, 2014 (Closed
Captioning Quality Second Further
Notice).
2. Responsibilities of VPDs and Video
Programmers. In its 1997 Closed
Captioning Report and Order, the
Commission placed sole responsibility
for compliance with its television closed
captioning rules on VPDs. Closed
Captioning and Video Description of
Video Programming, Implementation of
Section 305 of the Telecommunications
Act of 1996, Video Programming
Accessibility, Report and Order,
published at 62 FR 48487, September
16, 1997 (1997 Closed Captioning
Report and Order). At that time, the
Commission concluded that holding
VPDs responsible would most
expeditiously increase the availability of
television programming with closed
captions and promote efficiency in the
Commission’s monitoring and
enforcement of its captioning rules. At
the same time, the Commission
recognized the Commission’s
jurisdiction, under section 713 of the
Act, over both video programming
providers and owners to ensure the
provision of closed captioning of video
programming, and noted its expectation
that both ‘‘owners and producers will be
involved in the captioning process.’’
3. In the Closed Captioning Quality
Order, the Commission similarly placed
the responsibility for compliance with
the non-technical closed captioning
quality standards on VPDs. However,
recognizing that the creation and
delivery of quality closed captioning is
not solely within the control of VPDs
and that video programmers play a
‘‘critical role’’ in providing closed
captions to viewers, the Commission
stated that it would allow a VPD to
satisfy its obligations with respect to the
caption quality rules by obtaining or
making best efforts to obtain
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certifications on captioning quality from
its video programmers that such
programmers are in compliance with the
Commission’s quality standards or
related best practices. At the same time,
as noted above, the Closed Captioning
Further Notice sought comment on
whether the Commission should revise
its rules to allocate responsibilities for
compliance with the television closed
captioning obligations, including the
obligation to provide quality captions,
among various entities involved in the
production and delivery of video
programming. To this end, among other
things, the Commission also sought
comment on a specific proposal by
Comcast/NBC Universal (Comcast) for a
‘‘burden-shifting enforcement model’’
that would place the initial burden of
addressing captioning matters on VPDs,
but then extend some captioning
responsibilities to video programming
owners (VPOs).
4. The Commission concludes that the
obligations associated with compliance
with the Commission’s closed
captioning quality rules shall be divided
between VPDs and video programmers,
making each entity responsible for
closed captioning quality issues that are
primarily within its control. It further
concludes that the responsibilities
associated with ensuring the provision
of closed captions on television shall
remain primarily with VPDs, but
amends its rules to also hold video
programmers responsible for ensuring
the insertion of closed captions on all
their nonexempt programming. The
Commission also concludes that the
video programmer certifications that
video programmers must now make
widely available to VPDs should instead
be filed with the Commission.
5. Definitions of Video Programmers
and Video Programming Owners. The
Closed Captioning Quality Order
defined a video programmer as ‘‘[a]ny
entity that provides video programming
that is intended for distribution to
residential households including, but
not limited to, broadcast or
nonbroadcast television networks and
the owners of such programming,’’
noting that such programmers are a
subset of VPPs. The Closed Captioning
Quality Further Notice also noted that
the Commission has defined VPOs for
purposes of requiring captions on video
programming delivered via Internet
protocol, in part, as ‘‘any person or
entity that ‘[l]icenses 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.’’’
The Captioning Quality Further Notice
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sought comment on whether the
definition of video programmer adopted
in the Closed Captioning Quality Order
is sufficiently broad in scope or whether
the Commission should expand the
definition to cover other categories of
entities, and if so, which entities. The
Commission also sought comment on
whether and how the Commission
should define VPOs with respect to the
television closed captioning rules.
6. Document FCC 16–17 applies the
definition of video programmer adopted
in the Closed Captioning Quality Order
without change. That definition does
not exclude entities that provide
programming for distribution to
locations other than the home; rather it
merely makes the intent to distribute to
residential households a criterion of the
definition. In other words, if an entity
intends for its programming to be
distributed to residential households,
the entity will meet the definition of a
‘‘video programmer’’ and will be
covered by the Commission’s captioning
rules, even if the video programmer’s
programming also reaches devices, such
as tablets and other mobile devices that
can be used outside the home.
7. Document FCC 16–17 defines VPO,
for purposes of television captioning, as
any person or entity that either (i)
licenses video programming to a VPD or
provider that is intended for
distribution to residential households;
or (ii) acts as the VPD or VPP, and also
possesses the right to license video
programming to a VPD or VPP that is
intended for distribution to residential
households. As is the case with video
programmers, an entity will be
considered a VPO if it licenses or
possesses the right to license
programming that is intended for
distribution to residential households,
even if the programming is also
distributed to devices that are not
located in the home. Accordingly, the
captioning rules will cover video
programming that is provided by such
VPOs to VPPs and VPDs and distributed
over VPD systems, even if the VPO’s
programming reaches devices, such as
tablets and other mobile devices that
may or may not be located in the home.
8. Commission Authority under
Section 713 of the Act. The Commission
reaffirms determinations, made in the
1997 Closed Captioning Report and
Order and the Closed Captioning
Quality Order, that the Commission has
authority under section 713 of the Act
to impose obligations for compliance
with the Commission’s closed
captioning rules on both VPDs and
video programmers. Section 713 of the
Act authorizes the Commission to
ensure the provision of closed
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captioning of video programming by
providers and owners of video
programming. Section 713(b)(2) of the
Act directs the Commission to prescribe
regulations that ‘‘shall ensure’’ that
‘‘video programming providers or
owners maximize the accessibility of
video programming first published or
exhibited prior to the effective date of
such regulations through the provision
of closed captions.’’ Additionally,
various subsections of section 713(d)
authorize exemptions for both VPPs and
program owners. The legislative history
of section 713 of the Act further reflects
Congress’s intent to extend the
Commission’s authority over captioning
of video programming to various entities
involved in the production and delivery
of video programming, including the
distributors and owners of such
programs, recognizing that ‘‘[i]t is
clearly more efficient and economical to
caption programming at the time of
production and to distribute it with
captions than to have each delivery
system or local broadcaster caption the
program.’’. H.R. Rep. No. 104–204,
104th Cong., 1st Sess. (1995) at 114.
9. The Commission has long
recognized its jurisdiction under section
713 of the Act to impose closed
captioning obligations on both VPDs
and video programmers. The
Commission referenced its authority in
the 1997 Closed Captioning Report and
Order and the Closed Captioning
Quality Order, and extended certain
captioning responsibilities to VPOs in
the IP Captioning Report and Order,
which created requirements for
captioned television programs to be
displayed with captions when delivered
via Internet protocol. Closed Captioning
of Internet Protocol-Delivered Video
Programming: Implementation of the
Twenty-First Century Communications
and Video Accessibility Act of 2010,
published at 77 FR 19480, March 30,
2012 (IP Captioning Report and Order).
There, the Commission concluded that
placing obligations on VPOs would
ensure that the Commission could hold
a responsible party accountable for
violations of the Twenty-First Century
Communications and Video
Accessibility Act (CVAA). Public Law
11–260, 124 Stat. 2751 (2010), technical
corrections, Public Law 111–265, 124
Stat. 2795 (2010); IP Captioning Report
and Order. Similarly, changes made to
the Commission’s requirements for the
presentation of accessible emergency
information on television added video
programming providers, which includes
program owners, as parties responsible
(along with VPDs) for making such
information accessible to individuals
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who are blind or visually impaired. The
Commission ruled that the entity that
creates the visual emergency
information content and adds it to the
programming stream is responsible for
providing an aural representation of the
information on a secondary audio
stream, whether that entity is the VPD
or VPP. In the Matter of Accessible
Emergency Information, and Apparatus
Requirements for Emergency
Information and Video Description:
Implementation of the Twenty-First
Century Communications and Video
Accessibility Act of 2010, Video
Description: Implementation of the
Twenty-First Century Communications
and Video Accessibility Act of 2010,
Report and Order and Further Notice of
Proposed Rulemaking, published at 78
FR 31800, May 24, 2013 (2013
Emergency Information Order)
(amending 47 CFR 79.2). Document FCC
16–17 reaffirms that section 713 of the
Act gives the Commission jurisdiction
to ensure the provision of closed
captioning of video programming by
both VPDs and video programmers.
10. Responsibilities for Ensuring
Captioning Quality. The Commission
concludes that it is appropriate to
allocate responsibility for compliance
with the closed captioning quality rules
between VPDs and video programmers
by placing responsibility on each entity
for those aspects of closed captioning
quality over which they primarily have
control. The Commission reaches this
conclusion because video programmers
exert the most direct control over the
creation of closed captions, and thus, as
compared to VPDs, can exercise greater
control over the non-technical quality
components of closed captioning. At the
same time, VPDs primarily have control
over the technical aspects of captioning
quality related to the pass-through and
distribution of programming to end
users.
11. There are a number of tasks
associated with the provision of quality
closed captions performed by video
programmers. These entities ‘‘enter into
contracts with captioning vendors,
control when programming is delivered
to captioning vendors to be captioned,
and incorporate captioning with
programming for delivery to VPDs.’’ See
Closed Captioning Quality Order. The
critical role that video programmers
play in creating quality captioning
justifies changing the allocation of
responsibility for compliance with the
caption quality requirements. The
Commission thus affirms the finding
made in the Closed Captioning Quality
Order that ‘‘video programmers
typically are the entities with the most
direct control over the quality of closed
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captioning of their program.’’ It is for
this reason that the Commission
believes that assigning some
responsibility for the quality of closed
captioning directly to video
programmers will more efficiently and
effectively achieve compliance with the
Commission’s closed captioning quality
requirements.
12. VPDs receive programs with the
embedded captions supplied by video
programmers, and while VPDs have an
obligation to ensure that their technical
equipment is capable of passing through
program signals with captions in a
manner that does not adversely affect
the non-technical quality components
(accuracy, synchronicity, completeness
and placement), the record shows that
video programmers are responsible in
the first instance for making sure that
captions meet these quality
components—i.e., at the time when
programmers initially arrange for the
inclusion and insertion of such captions
on their programs. Video programmers
thus have primary control over ensuring
that the non-technical quality standards
are met. In addition, allocating
captioning quality responsibilities
between VPDs and video programmers
will be more efficient and effective than
attempting to reach video programmers
indirectly through their contracts with
VPDs. The Commission concludes that
the responsibilities imposed by the
contractual arrangements between these
entities will not be as effective or
efficient as direct responsibility on the
part of video programmers to achieve
compliance with the Commission’s new
closed captioning quality obligations.
13. First, the record shows that
contractual arrangements between VPDs
and video programmers may not be fully
effective to ensure that video
programmers will provide quality
closed captions. Financial constraints
and lack of influence may impede a
VPD’s ability to enforce agreements
where violations of the captioning
quality standards occur. Even in those
instances in which a VPD is able to
enforce its contractual agreement, the
video programmer may decide to simply
indemnify the VPD rather than correct
the captioning quality problem.
14. The Commission concludes that
having VPDs and video programmers
share captioning quality responsibilities
is likely to improve the efficacy of the
complaint process because it will assign
responsibility to the entity most able to
effectively resolve the complaint. In
addition, by allowing the Commission
to take enforcement action against video
programmers as well as VPDs, it will
create incentives for both entities to take
actions within their control to resolve
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quality problems swiftly and to the
satisfaction of consumers. The record in
this proceeding reveals that captioning
quality problems can stem from the
actions or inactions of either VPDs or
video programmers. The new
procedures adopted in this order for
resolving captioning quality complaints
consider this fact, and utilize the
established relationship between VPDs
and programmers, as well as VPDs and
consumers, to simplify the resolution of
complaints for consumers. In this
regard, to the extent that a VPD is
responsible for captioning problems,
under a regulatory scheme of divided
responsibility, the VPD will remain
responsible for rectifying those
problems. Likewise, video programmers
will remain responsible for addressing
captioning problems primarily within
their control.
15. The Commission amends its rules
to require video programmers to ensure
that closed captioning data provided to
VPDs complies with the Commission’s
closed captioning quality standards. The
Commission will also continue to
require VPDs to pass through
programming with the original closed
captioning data intact, in a format that
can be recovered and displayed by
consumers. Thus, under the new rules,
video programmers will be responsible
for closed captioning quality problems
that stem from producing the captions,
as well as transmission of the captions
by the video programmers to the VPDs
up to when the programming is handed
off to the VPDs. VPDs will be
responsible for closed captioning
quality problems that are the result of
faulty equipment or the failure to pass
through closed captioning data intact.
As a result, a VPD will be held
responsible for a violation of the caption
quality rules when the circumstances
underlying the violation are primarily
within the control of the VPD, and a
video programmer will be held
responsible for a violation of the caption
quality rules when the circumstances
underlying the violation are primarily
within its control. Assigning liability in
this manner will allow VPDs and video
programmers to focus their resources on
the captioning transmission processes
over which they have the most control,
thereby increasing their individual
incentives to provide quality closed
captions.
16. Responsibilities for the Provision
of Captioning. Section 79.1(b) of the
Commission’s rules currently places on
VPDs the responsibility for ensuring the
provision of closed captions on nonexempt television programs. The Closed
Captioning Quality Further Notice
sought comment on whether the
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Commission should revise this rule to
allocate some of this responsibility to
other programming entities, such as
video programmers.
17. The Commission concludes that
the better approach for ensuring the
provision of closed captions on
television is to continue to hold VPDs
primarily responsible for this obligation
on the programming they carry, but to
also hold video programmers
responsible where they fail to provide
captions on non-exempt programming.
The Commission reaches this
conclusion because it believes that its
prior policy of placing sole
responsibility on VPDs for the provision
of closed captions on television
programs failed to consider fully the
significant role that video programmers
play in the provision of captions on
their video programming. Given that
video programmers have control over
the provision of closed captioning on
programs they make available to VPDs
for distribution to viewers, the
Commission believes that it would be
more effective and efficient to hold
video programmers accountable for
ensuring the insertion of closed captions
on all of their programming that is not
exempt, and the Commission amends
§ 79.1(b) of its rules to include the
responsibilities of video programmers.
18. Yet, because the VPDs have an
important role in the distribution of
captioned programming, the
Commission will maintain its current
rules requiring VPDs to remain
primarily responsible for ensuring the
provision of closed captions on their
programming, including the obligation
to pass through programming with the
original closed captioning data intact, in
a format that can be recovered and
displayed by consumers. The
Commission believes that allocating
responsibilities for the provision of
closed captioning in this manner will
incentivize entities with the greatest
control over each aspect of the closed
captioning carriage, transmission and
delivery processes to provide closed
captions. It also believes that the
approach adopted herein will maintain
the current incentives for VPDs to
ensure that the programming they carry
is in compliance with the Commission’s
rules, while allowing the Commission to
reach video programmers in instances
where such entities have been noncompliant. The Commission concludes
that the ability to hold both video
programmers and VPDs responsible for
the carriage of closed captions will
encourage both parties to work together
and thereby ensure greater access to
television programming for people who
are deaf and hard of hearing.
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19. The Commission further
concludes that this approach will
respond to requests by commenters to
eliminate a potential ‘‘liability gap’’ in
the Commission’s captioning rules, that
they claim has arisen by permitting
VPDs to rely on certifications from
programming suppliers to demonstrate
compliance with the Commission’s
rules. Under the current rules, a VPD
may rely on a certification from the
programming supplier, even when ‘‘a
programming source falsely certifies
that the programming delivered to the
distributor meets the Commission’s
captioning requirements if the
distributor is unaware that the
certification is false.’’ 47 CFR 79.1(g)(6).
Moreover, because the current rules do
not assign responsibility to video
programmers, they are not held
accountable even where a video
programmer either fails to provide a
certification, provides a false
certification, or simply fails to provide
the required captioning. The
Commission’s decision to hold VPDs
primarily responsible for the provision
of closed captioning while allocating
some responsibility to video
programmers will ensure that the
responsible entities are held
accountable when closed captioning is
not provided and will better enable the
Commission to fulfill Congress’s intent
to ensure the accessibility of video
programming.
20. Video Programmer Certification.
Because of the decision to allocate
responsibility between video
programmers and VPDs for the quality
and provision of closed captioning, the
Commission concludes that its rules
governing these certifications should be
amended to (1) make such certifications
mandatory and (2) require video
programmers to file these certifications
with the Commission. At present, the
Commission’s rules provide for two
separate types of video programmer
certifications in the closed captioning
context.
21. The first type of certification is
under § 79.1(g)(6) of the Commission’s
rules, which provides that VPDs may
rely upon certifications from
programming suppliers, including
programming producers, programming
owners, network syndicators and other
distributors, to demonstrate a program’s
compliance with the captioning
provision rules. This section goes on to
state that VPDs will ‘‘not be held
responsible for situations where a
program source falsely certifies that
programming delivered to the
distributor meets [the Commission’s]
captioning requirements if the
distributor is unaware that the
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certification is false.’’ 47 CFR 79.1(g)(6).
Under the Commission’s current rules,
there is no affirmative obligation on the
part of VPDs to obtain such
certifications or on programming
suppliers to provide them. Additionally,
the Commission’s rules simply permit a
VPD to rely on these certifications to
prove that there was no underlying
obligation to caption the programming
received. This is the case even if the
certification received is false (unless the
VPD was aware of such falsehood).
22. The second type of programmer
certification, which VPDs must make
best efforts to obtain, was adopted by
the Commission in the Closed
Captioning Quality Order, and is
contained in § 79.1(j)(1) of the
Commission’s rules. Under this rule, a
VPD must exercise best efforts to obtain
one of the following certifications from
each video programmer with respect to
the programming supplied to the VPD:
(i) That the video programmer’s
programming satisfies the caption
quality standards, see 47 CFR 79.1(j)(2)
(stating the requirements with regard to
captioning quality standards); (ii) that in
the ordinary course of business, the
video programmer has adopted and
follows the Best Practices for video
programmers with respect to captioning
quality, see 47 CFR 79.1(k)(1) (stating
the specific requirements with regard to
Best Practices); or (iii) that the video
programmer is exempt from the closed
captioning rules, under one or more
properly attained exemptions. If a video
programmer claims an exemption from
the captioning rules, it must also specify
the exact exemption. 47 CFR 79.1(j)(1).
In addition, § 79.1(k)(1)(iv) of the
Commission’s rules requires a video
programmer that adopts Best Practices
to certify to its VPDs that it has adopted
and is following Best Practices for video
programmers with respect to quality.
Section 79.1(j)(1) and (k)(1)(iv) of the
Commission’s rules requires that the
video programmer make this
certification widely available, with
§ 79.1(j)(1) of the Commission’s rules
requiring that the video programmer do
so within 30 days after receiving a
written request to do so from a VPD.
23. In the Closed Captioning Quality
Second Further Notice the Commission
sought comment on the need to alter its
video programmer certification
requirements if it extends some
responsibilities for compliance with its
closed captioning rules to video
programmers. Specifically, the
Commission asked whether it should
amend § 79.1(j)(1) of its rules to require
video programmers to file their
certifications on caption quality with
the Commission (rather than making
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such certifications widely available
through other means) and whether it
should amend § 79.1(k)(1)(iv) of its rules
to make the filing of certifications with
the Commission part of video
programmers’ Best Practices. The
Commission also sought comment on
whether it should amend § 79.1(g)(6) of
its rules to require video programmers
to file certifications with the
Commission that they are in compliance
with the Commission’s rules for the
provision of closed captioning.
24. The Commission concluded that
changing the certification processes to
require video programmers to provide
certifications to the Commission of their
compliance with the Commission’s
rules regarding the provision and
quality of closed captions is necessary
to effectively implement the new
apportionment of the closed captioning
obligations. To better ensure compliance
with the rules and simplify the
certification process, the Commission
revises its certification processes to
collapse the certification requirements
contained in § 79.1(g)(6), (j)(1), and
(k)(1)(iv) of its rules into a single rule
that, with respect to non-exempt
programming, makes mandatory the
obligation for each video programmer to
submit to the Commission a certification
that its programming (1) is in
compliance with the obligation to
provide closed captioning and (2) either
complies with the captioning quality
standards or adheres to the Best
Practices for video programmers with
respect to captioning quality. In the
event that some or all of the
programming in question is exempt
under one or more of the exemptions set
forth in the Commission’s rules, in lieu
of the above certification, the video
programmer must submit a certification
attesting to such exemption and
specifying each category of exemption
that is claimed. The Commission now
requires video programmers to file their
certifications with the Commission
when they first launch and on an annual
basis, on or before July 1 of each year,
and to use the Commission’s web form
filing system for such submissions.
25. By amending the Commission’s
rules to make certification as to the
provision and quality of closed captions
by video programmers mandatory, the
Commission will hold video
programmers accountable for their
certifications, e.g., where a submitted
certification is false or a programmer
fails to provide the requisite
certifications. A video programmer’s
failure to submit a certification or
submission of a false certification will
be deemed a violation of the
Commission’s rules that is separate from
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any violations related to the failure to
provide quality captions.
26. The Commission concludes that
requiring video programmers to file
their certifications with the
Commission, rather than with VPDs (as
currently required), also will create
greater efficiencies because it will create
a single repository for all video
programmer certifications, providing
greater transparency and ease of
reference for video programmers,
consumers and VPDs. Moreover, this
approach eliminates the need to rely on
VPDs to obtain certifications from video
programmers, and for VPDs to
undertake the task of locating and
collecting such certifications.
27. Because VPDs will remain
primarily responsible for the provision
of closed captioning on the non-exempt
programming that they carry,
certifications from video programmers
will be necessary to inform VPDs of the
extent to which the programming that
they carry contained closed captions
upon receipt. VPDs can then rely on
these certifications to prove compliance,
so long as they do not know or do not
have reason to know a certification is
false and so long as the VPDs pass
through such captions intact to viewers.
Requiring video programmers to provide
certifications regarding their compliance
with the closed captioning quality
standards or Best Practices will help
bring to their attention their new
responsibilities, and thereby help to
ensure quality closed captions. The
process of having to prepare and
provide the certification will help alert
video programmers of the need to
comply with the captioning quality
standards or Best Practices.
28. Compared to the prior certification
procedures, the new certification regime
(which imposes direct responsibilities
on video programmers as well as VPDs)
will enhance the Commission’s ability
to enforce the captioning rules against
video programmers and VPDs, and thus
ensure the needs of consumers are better
served. First, because video
programmers were not obligated to
provide certifications under the
Commission’s prior rules (i.e., 47 CFR
79.1(g)(6), (j)(1), and (k)(1)(iv)), the
Commission had limited enforcement
ability against noncompliant video
programmers. Second, some VPDs may
be unable to negotiate contractual
arrangements obligating video
programmers to provide such
certifications, due to disparities in
negotiating power. Finally, because
many video programmers already
provide certifications to VPDs under
§ 79.1(g)(6) and (j)(1) of the
Commission’s rules, combining these
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certifications into a single certification
to be filed with the Commission should
not result in any significant additional
burden. Moreover, even if this
requirement were to create an added
burden on video programmers who are
not already providing certifications
under the Commission’s current rules,
the rules the Commission now adopts
minimize such burden by only requiring
these certifications to be filed annually,
on or before July 1 of each year, rather
than every time there is a change in
programming. In addition, any such
burden will be outweighed by the
benefits of requiring video programmers
to provide certifications, as described in
the preceding paragraphs.
29. VPD Obligations with Respect to
Video Programmer Certifications. The
Closed Captioning Quality Second
Further Notice sought comment on
VPDs’ obligations pertaining to such
certifications, and, specifically, whether
to require each VPD to alert its video
programmers of the requirement to
provide certifications to the
Commission, to verify video
programmers’ compliance with the
certification requirement, and to
thereafter report to the Commission any
failure by a video programmer to
comply.
30. Because the rules now adopted by
the Commission will hold video
programmers directly liable for their
failure to provide the required
certifications, it is not necessary to make
VPDs responsible for informing video
programmers about the need to provide
certifications, or to require that VPDs
check on and report noncompliant
video programmers to the Commission.
At the same time, VPDs should be
allowed to rely upon the certifications
from video programmers to fulfill their
obligation to ensure the provision of
closed captions on the programming
they carry. Accordingly, the
Commission will allow a VPD to
demonstrate compliance with its
captioning obligations where it relies on
a programmer’s certification as to the
presence of captions on such
programming or that such programming
is exempt from the captioning
requirements, so long as (1) the VPD
passes through the closed captions
intact to viewers; and (2) the VPD did
not know or did not have reason to
know that such certification was false.
However, if a VPD carries non-exempt
programming without captions from a
video programmer that has not provided
certification to the Commission, or from
a video programmer that has provided a
certification that the VPD knew or had
reason to know was false, the VPD will
be liable for failing to have provided
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closed captions on such programming,
even if the lack of captions was not due
to the VPD’s failure to pass through
closed captions intact. This will
discourage the VPD from ignoring
information that should warrant
checking into the veracity of the
certification, such as the VPD finding
the absence of captioning on
programming, and hold the VPD
accountable for the failure to provide
closed captioning on programming that
it knows or has reason to know is not
exempt from the Commission’s rules.
31. These new rules will reduce
burdens resulting from compliance with
the Commission’s captioning quality
rules on VPDs. At present, VPDs must
search video programmer Web sites and
other locations to find the video
programmers’ ‘‘widely available’’
certifications. The Consumer and
Governmental Affairs Bureau’s (CGB’s)
recent experience in verifying the
availability of some of these
certifications suggest that in some cases
these searches have been difficult and
have not yielded certifications that
video programmers had placed on their
Web sites. The new rules will enable
VPDs to be able to easily find these
certifications on the Commission’s Web
site.
32. Complaint Handling. The
Commission’s decision in this order to
allocate captioning responsibilities
between VPDs and video programmers
necessitates the establishment of an
orderly process for the handling of
complaints by each covered entity in
order to prevent duplication of efforts,
avoid potential confusion about
responsibilities, and achieve overall
efficiency to ensure the timely
resolution of captioning complaints.
The Commission concludes that a
burden-shifting approach is appropriate
for the handling of these complaints.
33. Under the burden-shifting
approach, upon receiving a complaint
about the quality of captions, a VPD
would have the initial burden of
conducting an investigation into the
source of the problem. The VPD would
address the complaint if able to do so,
but the burden of addressing the
complaint would shift to the video
programmer if the VPD learned, after its
initial investigation, that the problems
raised were not within its control. The
Commission believes that this approach
appropriately builds on existing video
programmer and VPD practices, by
which VPDs investigate complaints,
determine whether their equipment is
causing the problem, and confer with
video programmers to identify and
resolve closed captioning problems
under the video programmers’ control.
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This model can also ensure that the
entity most able to remedy the
captioning issue will have the
responsibility to fix the problem, and
the Commission therefore expects that
this approach will expedite complaint
resolution and result in more effective
results for viewers who rely on captions
to follow a program’s content.
34. The Commission further
concludes that it is best to apply the
same burden-shifting approach to all
types of captioning complaints—rather
than apply this approach only to
complaints on captioning quality.
Employing different processes in the
handling of different types of
complaints would require the
Commission and covered entities to try
to predict the source of each complaint’s
underlying issues before directing the
complaint through the appropriate
process. This would be difficult given
that some complaints may raise both
non-technical and technical problems,
and ascertaining the underlying causes
for such problems often becomes
possible only after an investigation into
those causes. As a result, attempts to
predict the underlying problem at the
outset might result in the complaint
being referred to the wrong entity and
thereby delay its resolution.
Accordingly, a uniform complaint and
enforcement model for all closed
captioning issues on television
programming will streamline the rules
and clarify all parties’ obligations.
Under this approach, the video
programmer and the VPD will each be
responsible for resolving complaints
that are the result of problems primarily
within each entity’s respective control.
35. At present, the Commission’s
television closed captioning rules allow
consumers to file captioning complaints
with either the Commission or with the
VPD responsible for the delivery and
exhibition of video programming at
issue, within sixty days after the
consumer experiences a captioning
problem. 47 CFR 79.1(g)(1). Because of
the existing relationship that VPDs have
with their subscribers, the approach
provides a single point of contact for
consumers and allows utilization of the
existing VPD infrastructure for
receiving, processing, and resolving
closed captioning complaints. Allowing
consumers to file complaints with either
the VPD or the Commission eliminates
the need for consumers to identify the
video programmer with whom
consumers generally have no direct
relationship. It also eliminates the need
for consumers to figure out the party
responsible for the problem they are
experiencing—for example, whether it
was a pass through problem caused by
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the VPD or a non-technical quality
problem caused by the video
programmer. Accordingly, the
captioning complaint process that the
Commission adopts will continue to
allow consumers to file closed
captioning complaints either with the
Commission or with the VPD. If the
complainant chooses to file with the
VPD, but fails to receive a timely
response or is not satisfied with that
response, the consumer may
subsequently file his or her complaint
with the Commission.
36. Complaints Filed with the
Commission—Complaint Content. In the
Closed Captioning Quality Order, the
Commission adopted a rule requiring
the following information to be
provided in an informal complaint
regarding captioning quality as a
prerequisite to the Commission
forwarding such complaint to a VPD: (1)
The channel number; (2) the channel
name, network, or call sign; (3) the
name of the multichannel video
programming distributor (MVPD), if
applicable; (4) the date and time that the
captioning problem occurred; (5) the
name of the program involved; and (6)
a detailed description of the problem. 47
CFR 79.1(j)(4). The Commission
explained that this information is
necessary to enable a programming
entity to investigate and resolve the
complaint. Because the same rationale
applies to all closed captioning
complaints, whether or not related to
closed captioning quality, the
Commission extends the requirement to
provide this information to all television
closed captioning complaints. The
Commission directs CGB to provide
assistance to consumers who may
experience difficulties gathering any of
this required information. It further
clarifies that all complaints should
contain the consumer’s identifying
information, including the consumer’s
name, postal address, and other contact
information, if available, such as
telephone number or email address,
along with the consumer’s preferred
format or method of response to the
complaint (such as letter, facsimile
transmission, telephone (voice/TRS/
TTY), email, or some other method that
would best accommodate the
consumer).
37. Complaints Filed with the
Commission—Complaint Procedures.
Under the burden-shifting approach that
the Commission adopts, when the
Commission receives a closed
captioning complaint, it will serve the
complaint on the named VPD and the
appropriate video programmer
simultaneously. If the Commission
cannot determine the appropriate video
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programmer to serve, it will forward the
complaint to the VPD and will inform
the VPD that the Commission has been
unable to determine the appropriate
video programmer. Within ten days after
the date of such notification, the VPD
must respond to the Commission with
the name and contact information for
the appropriate video programmer, after
which the Commission will forward the
complaint to the video programmer as
well.
38. After being served with a
consumer complaint, the VPD must
conduct an initial investigation to
determine whether the matters raised in
the complaint are primarily within its
control. Concurrently, the video
programmer may voluntarily begin its
own inquiry into the source of the
captioning problem, but the video
programmer is not required to take any
action at that time. Forwarding the
complaint to both the VPD and video
programmer at the outset will help
facilitate the swift resolution of
complaints because it will allow the
video programmer, if it so chooses, to
take its own steps toward a resolution
while the VPD investigates matters
primarily under its control.
39. VPDs will be given flexibility in
conducting their initial investigations,
in order to allow for differences in
equipment and processes among VPDs;
however, VPDs will be required to
exercise due diligence in their efforts to
identify the source of the issue and
resolve all matters primarily within
their control before shifting
responsibility for addressing these
matters to their video programmers. To
meet this standard and to ensure a
thorough investigation into closed
captioning problems raised in
complaints, the Commission will
require VPDs, at a minimum, to take the
following actions as part of their
investigations: (1) Program Stream
Check: Capture program streams of the
programming network identified in the
complaint and check the streams for any
caption-related impairments that may
have caused the reported problem and
to prevent ongoing problems; (2)
Processing Equipment Check: If there is
an issue with the program stream, and
there is not prior knowledge as to where
the problem originated, check postprocessing equipment at the relevant
headend or other video distribution
facility to determine whether the issue
was introduced at the VPD level or was
present in the stream when received by
the VPD from the video programmer; (3)
Consumer Premises Check: If the VPD’s
investigation indicates that the problem
may lie with the consumer’s customer
premises equipment, including the set-
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top box, check the end user equipment,
either remotely, or, if necessary, at the
consumer’s premises, to ensure there are
no issues that might interfere with the
pass through, rendering or display of
closed captioning. The Commission will
defer to the VPD’s good faith judgment
about whether there is an indication
that the problem might lie with the
consumer’s customer premises
equipment and whether it is necessary
to go to the consumer’s premises to
check the equipment. However, in the
event of a dispute or an enforcement
proceeding, the VPD will have the
burden of proving that it conducted a
thorough investigation into the closed
captioning problems raised in the
complaint. Requiring VPDs to take these
steps will ensure that a full and effective
investigation occurs prior to shifting the
complaint handling responsibilities to
video programmers. This also is more
likely to result in a speedier and
efficient resolution of the problems
raised in complaints, thereby helping to
fulfill Congress’s goal to make television
programming fully accessible to people
who are deaf and hard of hearing.
40. If the VPD’s investigation reveals
that the closed captioning problem is
within the control of the VPD, the VPD
must correct the problem and provide a
written response to the Commission, the
video programmer and the consumer
acknowledging such responsibility and
describing the steps taken to correct the
problem. A complaint must be resolved,
and a written response sent, within 30
days after the date the Commission
forwards the complaint to the VPD. As
required by the Commission’s current
rules, the VPD’s response must provide
the Commission with sufficient
evidence, including records and
documentation, to demonstrate that the
VPD is in compliance with the
Commission’s closed captioning rules.
47 CFR 79.1(g)(5). In this case, no
burden-shifting to the video
programmer will occur, and the VPD
will retain liability for the problem.
41. If the VPD’s investigation reveals
that the closed captioning problems
raised in the complaint are not
primarily within the VPD’s control and
appear to have been present in the
program stream when received by the
VPD, the burden for addressing the
complaint will shift to the video
programmer. To shift the burden, the
VPD must certify to the Commission,
the video programmer, and the
consumer that it has exercised due
diligence to identify and resolve the
source of the captioning problem by
conducting an investigation on the
closed captioning complaint in
accordance with the Commission’s
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rules, and that the problems raised in
the complaint are not within its control.
In addition, if at any time during the
complaint resolution process, the VPD’s
investigation reveals that the closed
captioning problems raised in the
complaint were the result of causes not
within the VPD’s control and also do
not appear to be within the video
programmer’s control, such as a faulty
third-party DVR, television, or other
third-party device, the VPD must certify
to the Commission, the video
programmer, and the consumer that it
has exercised due diligence to identify
and resolve the source of the captioning
problem by conducting an investigation
on the closed captioning complaint in
accordance with the Commission’s
rules, and that the problems raised in
the complaint were caused by a third
party device or other causes that appear
not to be within the control of either the
VPD or the video programmer. The
applicable certification may be provided
at any time during the VPD’s
investigation, but no later than 30 days
after the date the Commission
forwarded the complaint. The
requirement for such certification is
intended to alleviate concerns that VPDs
might perform cursory investigations or
inappropriately shift the burden of
resolving complaints to video
programmers in order to avoid fulfilling
their captioning obligations. A VPD that
fails to provide a certification or
provides an untruthful certification may
be subject to immediate enforcement
action without first being subject to the
compliance ladder. In addition, any
video programmer may report to the
Commission when, after receiving a
certification from a VPD, the video
programmer determines that the VPD
did not follow all of the steps required
by the Commission’s rules for
investigating a complaint or that the
problem described in a complaint is in
fact within the VPD’s control.
42. After the responsibility for
resolving the complaint shifts to the
video programmer, the video
programmer must investigate and
attempt to resolve the closed captioning
problem to the extent that doing so is
within the video programmer’s control.
After the responsibility for resolving the
complaint shifts to the video
programmer, the video programmer will
have the burden of proving that the
video programmer conducted a
thorough investigation into the closed
captioning problems raised in the
complaint. In addition, while, at this
point in the complaint resolution
process, the video programmer will take
on the primary responsibility for
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resolving the closed captioning
problem, the Commission will require
the VPD to continue to assist the video
programmer with resolving the
complaint, as needed. Requiring the
VPD to remain involved throughout the
complaint process will foster
collaboration between VPDs and video
programmers, and increase the
likelihood that the complaint will be
swiftly resolved to the satisfaction of the
consumer and the Commission.
43. Within 30 days after the date of
certification from the VPD, the video
programmer must provide a written
response to the complaint that either
describes the steps taken to rectify the
problem or certifies that its investigation
revealed that it has exercised due
diligence to identify and resolve the
source of the captioning problem by
conducting an investigation on the
closed captioning complaint in
accordance with the Commission’s
rules, and that the problems raised in
the complaint are not within its control.
Such response must be submitted to the
Commission, the VPD, and the
consumer, and must provide the
Commission with sufficient records and
documentation to demonstrate that the
video programmer is in compliance
with the Commission’s rules. See 47
CFR 79.1(g)(5). Requiring video
programmers to respond within 30 days
will ensure that video programmers
promptly investigate complaints. If the
video programmer reports that it has
rectified the problem, this will enable
the VPD to conduct additional checks of
the program stream if needed to confirm
the complaint’s resolution, and keep the
VPD, the Commission, and the
consumer informed so the VPD can
know when to close the complaint file.
44. If the video programmer certifies
that the program stream contained fully
functioning captioning at the time the
program stream was handed off to the
VPD, and the VPD has not determined
that the problem resulted from a third
party source, the VPD and the video
programmer must then work together to
determine the source of the captioning
problem. Once the source of the
problem is determined, the VPD and
video programmer shall each be
required to correct those aspects of the
problem within its control. The VPD is
then required, after consultation with
the video programmer, to report to the
Commission and the complainant the
steps taken to fix the captioning
problem. The VPD must submit such
information in writing within 30 days
after the date that the video programmer
certified that the cause of the problem
was not within the video programmer’s
control. Further, the Commission may,
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during its review of a complaint or the
pendency of an enforcement
proceeding, request the VPD and the
video programmer to provide sufficient
documentation to demonstrate
compliance with the Commission’s
rules. Accordingly, VPDs will remain
responsible for resolving problems that
are within their control, which will help
prevent the wasteful duplication of
efforts to resolve complaints.
45. Complaints Filed with the VPD.
Document FCC 16–17 preserves the
consumers’ long-standing option of
filing their captioning complaints
directly with their VPDs. See 47 CFR
79.1(g)(1) and (4). When a VPD receives
a complaint from a consumer, the VPD
should investigate the complaint with
the same due diligence and in the same
manner as required for complaints
initially filed with the Commission and
later served on VPDs, with a goal of
initially determining whether the matter
raised in the complaint is within the
control of the VPD. If, after conducting
its initial investigation, the VPD
determines that the issue of the
complaint is within its control, it shall
take the necessary measures to resolve
it, and notify the consumer of such
resolution within 30 days after the date
of the complaint. If (1) the consumer
does not receive a response to the
complaint within the 30-day period, or
(2) the consumer is not satisfied with
the VPD’s response, the consumer may
file the complaint with the Commission
within sixty days after the time allotted
for the VPD to respond to the consumer.
The Commission believes that VPDs
will have sufficient incentives to
thoroughly investigate and promptly
resolve the complaints that they receive
directly from consumers, to reduce the
need for such consumers to re-file their
complaints with the Commission.
46. In the event that the VPD
determines that the issues raised in the
complaint are not within its
responsibilities, § 79.1(g)(3) of the
Commission’s rules as currently written
requires the VPD to forward the
complaint to the responsible
programming entity. 47 CFR 79.1(g)(3).
The Commission resolves a conflict
between § 79.1(g)(3) of its rules and
statutory provisions prohibiting the VPD
from disclosing a consumer’s personally
identifiable information (PII) without
the consumer’s consent. See 47 CFR
79.1 (g)(3), 47 U.S.C. 551(c)(1), and 47
U.S.C. 338(i)(4)(A). The Commission
will require that if a VPD determines
that an issue raised in the complaint is
not primarily within the VPD’s control,
the VPD, within 30 days after the date
of the complaint, must either forward
the complaint to the video programmer
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or other responsible entity, such as
another VPD, with the consumer’s PII—
including the consumer’s name, contact
information, and other identifying
information—redacted, or provide the
video programmer or other responsible
entity with information contained in the
complaint sufficient to achieve its
investigation and resolution. Such
information should include the same
type of information necessary for a
complaint to be forwarded to a VPD
when it is submitted to the
Commission—i.e., (1) the channel
number; (2) the channel name, network,
or call sign; (3) the name of the
multichannel video programming
distributor (MVPD), if applicable; (4) the
date and time that the captioning
problem occurred; (5) the name of the
program involved; and (6) a detailed
description of the problem—to the
extent the VPD is in possession of such
information. In addition, the VPD must
provide the video programmer or other
responsible entity with an explanation
of why the cause of the captioning
problem is not primarily within the
control of the VPD. The Commission
expects that requiring a VPD to forward
the complaint with the consumer’s PII
redacted or to forward a description of
the complaint’s material details will
resolve the outstanding regulatory
conflict without the need for back-andforth communications between the VPD
and the consumer that otherwise might
have been needed for resolution of the
complaint.
47. When forwarding the complaint or
a description of the complaint, the VPD
must also assign a unique identifying
number (‘‘complaint ID number’’) to the
complaint, and transmit that number to
the video programmer or other
responsible entity along with the
complaint or a description of the
complaint. The Commission further
requires the VPD to inform the
consumer that the complaint has been
forwarded, along with the complaint ID
number and the name and contact
information of the video programmer or
other responsible entity to whom the
complaint was forwarded, at the same
time that the complaint is forwarded to
the video programmer or other
responsible entity. Providing
information to consumers about the
status of their complaints will enhance
the transparency of the complaint
resolution process, and avoid the
situation in which a VPD responds to a
complaint by shifting blame for a
captioning problem to another entity
while refusing to identify such entity
publicly. Additionally, providing
consumers with both the complaint ID
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number and the video programmer’s or
other responsible entity’s contact
information will enable the consumer to
contact a video programmer or other
responsible entity directly and inquire
about the status of his or her complaint
if so desired. The VPD must also explain
to the consumer that if the consumer
wishes to follow up with the video
programmer, the consumer will need to
provide the video programmer with the
name of the VPD as well as the
complaint identification number.
48. Once a video programmer or other
responsible entity receives a complaint
and notification from a VPD that the
issue described in the complaint is
outside the VPD’s control, the burden
will shift to the video programmer or
other responsible entity to investigate
and resolve the complaint. However, as
for complaints initially filed with the
Commission, the Commission will
require the VPD to continue to assist the
video programmer or other responsible
entity in resolving the complaint as
needed and to conduct additional
checks of the program stream to confirm
resolution of the problem, upon
notification from the video programmer
or other responsible entity that the
problem has been resolved.
49. The video programmer or other
responsible entity must respond in
writing to the VPD within 30 days after
the forwarding date of the complaint
from the VPD, in a form that can be
forwarded to the consumer. The VPD
must then forward this response to the
consumer within ten days after the date
of the video programmer’s or other
responsible entity’s response. If the
video programmer or other responsible
entity fails to respond to the VPD within
30 days after the forwarding date of the
complaint from the VPD, the VPD must
inform the consumer of the video
programmer’s or other responsible
entity’s failure to respond within 40
days after that forwarding date.
50. If the video programmer or other
responsible entity fails to respond to the
VPD within the time allotted, or if the
VPD fails to forward the video
programmer’s or other responsible
entity’s response to the consumer, or if
the consumer is not satisfied with that
response, the consumer may file the
complaint with the Commission within
sixty days after the time allotted for the
VPD to either forward the video
programmer’s or other responsible
entity’s response to the consumer or
inform the consumer of the video
programmer’s or other responsible
entity’s failure to respond. Upon receipt
of the complaint from the consumer, the
Commission will forward such
complaints to the appropriate VPD and
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video programmer, and the VPD and
video programmer shall handle such
complaints, as governed by the rules
applicable to complaints filed with the
Commission.
51. The Commission requires the VPD
to remain involved in the resolution of
complaints that are not within the
VPDs’ control because the VPD is the
entity with which a complainant has a
direct commercial relationship, and
thus the VPD should remain the primary
point of contact for the complainant
even when the complaint is forwarded
to the video programmer. Unlike video
programmers, VPDs are the last link in
the distribution chain and either receive
direct payment from consumers for
services rendered or provide
programming over the public airwaves.
Having VPDs forward responses from
video programmers or other responsible
entities to consumers will create a
seamless process for consumers,
allowing them to receive a response
from the business entity with which
they are familiar, and with which they
initially filed their complaint. Also, as
a practical matter, because the
Commission requires the VPD to redact
the consumer’s PII, including the
consumer’s name and address, when
forwarding a complaint to a video
programmer or other responsible entity,
the video programmer or other
responsible entity will not have the
necessary contact information to
respond directly to the consumer.
Finally, the Commission is imposing
timelines on (1) the forwarding of
complaints by VPDs, (2) the response by
the video programmer or other
responsible entity to the VPD, and (3)
the forwarding of the response by the
VPD to the consumer. The Commission
therefore concludes that assigning to the
VPD the responsibility of reporting the
resolution to the consumer should not
delay the provision of such notification.
52. In the event that the video
programmer, other responsible entity, or
VPD fails to meet any deadlines for
responses to the consumer’s complaint
or if such responses do not satisfy the
consumer, the consumer may file the
complaint with the Commission within
60 days after the time allotted either for
the VPD to respond to the consumer or
for the VPD to forward the video
programmer’s or other responsible
entity’s response to the consumer,
whichever is applicable. If a consumer
re-files the complaint with the
Commission after initially filing the
complaint with the VPD, the
Commission will forward the complaint
to the appropriate VPD and the video
programmer, and each such entity must
follow the complaint handling processes
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57481
for complaints filed with the
Commission as outlined above.
53. Compliance Ladder. In the Closed
Captioning Quality Order, the
Commission adopted a ‘‘compliance
ladder’’ that allows broadcast stations to
take corrective actions to demonstrate
compliance with new enhanced
electronic newsroom technique (ENT)
procedures prior to being subject to
enforcement action. The Commission
reasoned that this approach would
provide these entities with ‘‘ample
opportunities to improve their
captioning, especially if their current
practices are deficient.’’ Closed
Captioning Quality Order. In the Closed
Captioning Quality Further Notice, the
Commission sought comment on
whether to similarly allow VPDs and
video programmers to assert a safe
harbor to demonstrate compliance
through corrective actions prior to being
subject to enforcement action, in the
event certain obligations for compliance
with the captioning quality standards
are placed on each of these entities.
54. In document FCC 16–17, the
Commission adopts a compliance ladder
for the captioning quality rules,
including rules addressing quality
issues related to the pass-through of
captions, which is similar to the ladder
adopted for the enhanced ENT rules. It
will not apply this compliance ladder to
other captioning requirements,
including the provision of captioning,
equipment monitoring and
maintenance, registration and
certification. Rather, the Commission
concludes that its current practice of
addressing the latter types of concerns
through the informal complaint process,
while retaining the option to refer such
matters for enforcement action as
appropriate, has been effective in
achieving resolution of these concerns.
55. The Commission will continue to
entertain individual informal
complaints of noncompliance with the
Commission’s closed captioning quality
rules in accordance with the complaint
procedures outlined in document FCC
16–17. However, for captioning quality
complaints received by the Commission
that indicate a pattern or trend of
noncompliance with its captioning
quality rules, the Commission adopts a
compliance ladder that is similar to that
used for addressing noncompliance
with its rules governing the enhanced
ENT procedures. By focusing on
patterns or trends rather than individual
reports of closed captioning quality
problems, use of this compliance
mechanism will afford VPDs and video
programmers opportunities to correct
such problems without Commission
enforcement action. In this manner, a
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compliance ladder will enable parties to
more quickly address and remedy
problems without worrying that in so
doing they may be subject to fines or
forfeitures.
56. Accordingly, the Commission
adopts the following compliance ladder
to be applied when consumer
complaints received by the Commission
indicate a pattern or trend of
noncompliance with the Commission’s
rules governing the quality of television
closed captioning on the part of either
the VPD or the video programmer. The
Commission will apply a broad
definition of ‘‘pattern or trend’’ when
determining whether the compliance
ladder is triggered. For example, a
‘‘pattern or trend’’ may be found when
a particular entity is subject to a series
of complaints over time about caption
quality problems or failures or where a
particular entity is subject to a large
volume of complaints that suggests
widespread quality problems or failures,
even if they occur over a relatively short
span of time. A pattern or trend of
consumer complaints, even if about
different programs or different types of
captioning failures by the same entity,
may reflect a system breakdown in that
entity’s processes sufficient to trigger
this approach. In other words, the
Commission may discern a pattern or
trend in a series of complaints about the
same or similar problems or in a
multiplicity of complaints about
unrelated problems.
• If the Commission notifies a VPD or
video programmer that the Commission
has identified a pattern or trend of
possible noncompliance with the
Commission’s rules governing the
quality of closed captioning by the VPD
or video programmer, the VPD or video
programmer shall respond to the
Commission within 30 days after the
date of such notice regarding such
possible noncompliance, describing
corrective measures taken, including
those measures the VPD or video
programmer may have undertaken in
response to informal complaints and
inquiries from viewers. Multiple
complaints about a single incident are
not considered a pattern or trend.
• If, after the date for a VPD or video
programmer to respond to the above
notification, the Commission
subsequently notifies the VPD or video
programmer that there is further
evidence indicating a pattern or trend of
noncompliance with the Commission’s
rules governing the quality of closed
captioning, the VPD or video
programmer shall submit to the
Commission, within 30 days after the
date of such subsequent notification, a
written action plan describing
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additional measures it will take to bring
the VPD’s or video programmer’s closed
captioning performance into compliance
with the Commission’s regulations. For
example, action plans involve the
identification and implementation of
longer term measures and may include,
but are not limited to, a commitment to
train the VPD’s or video programmer’s
personnel, the use of improved
equipment, more frequent equipment
checks, improved monitoring efforts,
and changes in closed captioning
vendors or closed captioning
procedures. In addition, the VPD or
video programmer shall be required to
conduct spot checks of its closed
captioning performance and report to
CGB on the results of such action plan
and spot checks 180 days after
submission of such action plan.
• If, after the date for submission of
the report on the results of an action
plan, the Commission finds continued
evidence of a pattern or trend of
noncompliance with the Commission’s
rules governing the quality of closed
captioning, the Commission will then
consider, through its Enforcement
Bureau, appropriate enforcement action,
including admonishments, forfeitures,
and other corrective actions as
necessary.
57. The Commission believes that this
three-step ladder will provide VPDs and
video programmers with the necessary
incentives to take corrective action on
their own. In particular, the
Commission believes that the first step
of the compliance ladder, once a pattern
or trend of noncompliance is identified,
should afford an opportunity for VPDs
and video programmers to rectify
captioning quality violations on their
own and quickly, without the regulatory
involvement that would be associated
with the second step’s required action
plan or the third step’s enforcement
action. However, if the Commission
finds that this approach is not effective
in ensuring widespread compliance
with its television closed captioning
quality rules or fulfilling its goal of
ensuring full access to television
programming as required by section
713(b) of the Act, it may revisit this
issue to the extent necessary.
58. The Commission emphasizes that
the compliance ladder will not relieve
VPDs or video programmers of any of
their obligations under the television
closed captioning rules. However, to
address this concern, the Commission
adopts an additional rule allowing CGB
to refer a captioning quality rule
violation directly to the Enforcement
Bureau for enforcement action, or for
the Enforcement Bureau to pursue an
enforcement action on its own, without
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first going through the compliance
ladder, for a systemic closed captioning
quality problem or an intentional and
deliberate violation of the Commission’s
closed captioning quality standards. In
making such a determination, CGB or
the Enforcement Bureau shall take into
consideration all relevant information
regarding the nature of the violation or
violations and the VPD or video
programmer’s efforts to correct them.
59. VPD Registration. In the 2008
Closed Captioning Decision, the
Commission amended its rules to add
§ 79.1(i)(3), which requires VPDs to
submit contact information for the
receipt and handling of both immediate
requests to resolve captioning concerns
by consumers while they are watching
television and closed captioning
complaints that consumers file after
experiencing closed captioning issues.
The 2008 Order explained that VPDs
could satisfy this requirement by either
filing a hard copy or sending an email.
2008 Closed Captioning Decision. In
2009, the Commission added an option
to allow VPDs to file their contact
information directly online via a web
form located on the Commission’s Web
site, in a database called the ‘‘VPD
Registry.’’ Closed Captioning of Video
Programming, Order, published at 75 FR
7368, February 19, 2010. Recognizing in
the Closed Captioning Quality Further
Notice that such electronic filings into
the VPD Registry would offer the most
efficient and accurate means of
collecting the requisite information, the
Commission sought comment on a
proposal to require all contact
information required by § 79.1(i)(1) and
(2) of its rules be submitted directly to
the VPD Registry through the web form
method. Closed Captioning Quality
Further Notice.
60. The Commission finds that
requiring VPDs to submit their contact
information into the VPD Registry
through the web form would also be
consistent with the 2011 Electronic
Filing Report and Order, which adopted
a policy to require the use of electronic
filing whenever technically feasible. See
Amendment of Certain of the
Commission’s Part 1 Rules of Practice
and Procedure and Part 0 Rules of
Commission Organization, Report and
Order, published at 76 FR 24383, May
2, 2011. In light of such technical
feasibility, as well as the accuracy and
efficiency of this electronic filing
method, the Commission amends
§ 79.1(i)(3) of its rules to require VPDs
to submit their contact information
required under § 79.1(i)(1) and (2) of its
rules directly into the Commission’s
database through the web form method
and to remove as options the alternate
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methods of submitting this information
to the Commission.
61. Video Programmer Registration. In
document FCC 16–17, the Commission
requires that video programmers file
their contact information through a web
form located on the Commission’s Web
site for the handling of written closed
captioning complaints by the
Commission and by VPDs, and as
required for VPDs, to update such
information within ten business days of
any changes. The video programmer
contact information shall include the
name of the person with primary
responsibility for captioning issues and
who can ensure compliance with the
captioning rules, and the person’s title
or office, telephone number, fax number
(if there is one), postal mailing address,
and email address. The Commission
also directs video programmers to
submit their required compliance
certifications through a web form
located on the Commission’s Web site,
so that such certifications will be
readily available to consumers, VPDs,
and the Commission. The Commission
directs CGB to implement the
development of one or more web forms
(or to expand the existing VPD Registry)
for the filing of video programmer
contact information and certifications
and to provide guidance to
programming entities and the general
public on the appropriate use of video
programmer contact information found
on the Commission’s Web site. The
Commission also directs CGB to issue a
Public Notice to provide such guidance
as well as procedures and deadlines for
video programmers to file contact
information and certifications once the
rules go into effect and the
Commission’s Web site is ready to
receive such contact information and
certifications.
62. The Commission concludes that it
is important for video programmers to
register their contact information with
the Commission so that it is readily
available to the Commission and to
VPDs for the expedient and effective
handling and resolution of complaints.
In particular, for complaints filed
directly with a VPD, under the new
complaint handling rules, the VPD must
have ready access to video programmer
contact information so that the VPD can
forward the complaint information to
the correct video programmer when the
VPD ascertains that the source of
problem raised in a complaint
originated with that programmer. If this
information is not available to VPDs,
and especially smaller VPDs, such
entities may encounter challenges and
delays in their efforts to resolve
complaints. The filing of video
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programmer contact information will
eliminate such challenges by enabling
VPDs to obtain current contact
information from a centralized location.
63. Additionally, requiring video
programmers to file their contact
information with the Commission will
help to expedite the resolution of
complaints filed directly with the
Commission. Because the complaint
handling rules that the Commission
adopts in this Order require the
Commission to forward written
complaints to both VPDs and their video
programmers, the Commission needs
access to video programmer contact
information. The Commission also finds
that the public availability of video
programmers’ contact information will
increase transparency, aid the complaint
process, and thereby facilitate highquality captioning. For example, the
complaint handling rules adopted in
document FCC 16–17 require each VPD
to inform a consumer when it has
forwarded his or her complaint to a
video programmer for resolution. If the
consumer wishes to contact the video
programmer directly regarding his or
her complaint after it has been
forwarded by the VPD, the
Commission’s Web site will provide the
consumer with the necessary video
programmer’s contact information to do
so.
64. The Commission emphasizes that
its actions taken herein are not intended
to remove VPDs from the process of
resolving consumer complaints. VPDs
may be in the best position to take
primary responsibility for complaint
resolution given the more direct
relationship they have with viewers and
subscribers, the opportunity for
consumers to utilize existing VPD
processes for receiving, processing, and
resolving closed captioning complaints,
and the ability of VPDs to provide a
single point of contact for consumers.
The Commission’s new requirement for
video programmers to file contact
information with the Commission is
intended primarily for use by VPDs and
Commission staff for complaint
resolution and enforcement purposes,
and to facilitate transparency for the
public when VPDs forward complaints
to programmers for resolution. The
Commission encourages consumers to
continue filing complaints about
captioning with the Commission or
VPDs in the interest of achieving faster
resolution of their captioning concerns.
65. Finally, the Commission does not
think it is necessary, at this time, to
require video programmers to make
their contact information available on
their Web sites or through other means
in addition to filing this information in
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57483
the Commission’s database. The
Commission finds that its requirement
for video programmers to file contact
information with the Commission is
sufficient to serve its regulatory
purposes of making such information
available for use primarily by VPDs and
Commission staff for complaint
resolution and enforcement purposes,
and to facilitate transparency for the
public when VPDs forward complaints
to programmers for resolution. If the
Commission finds that its objectives are
not effectively achieved by the
publication of this information in the
Commission’s database, it may revisit
this decision.
66. Nonsubstantive Rule
Amendments. More than 18 years have
passed since the Commission adopted
its regulations governing the closed
captioning obligations. For purposes of
clarity, the Commission makes two
nonsubstantive editorial changes to the
rules, which include eliminating certain
outdated rule sections and updating the
rule nomenclature. First, given that all
benchmarks for the phase-in of the
closed captioning requirements have
passed, the Commission amends 47 CFR
79.1(b)(1) through (4) to eliminate these
outdated benchmarks, so that only the
fully phased-in captioning requirements
remain in the rule. Second, the
Commission amends 47 CFR 79.1(e)(9)
to reflect the terminology used in this
proceeding by making the
nonsubstantive nomenclature change
that VPDs ‘‘ensure the provision of
closed captioning’’ rather than ‘‘provide
closed captioning.’’
Final Regulatory Flexibility Analysis
67. As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA), Initial Regulatory Flexibility
Analyses (IRFAs) were incorporated in
the FNPRMs contained in the Closed
Captioning Quality Order and Further
Notice and the Closed Captioning
Quality Second Further Notice (Further
Notices). The Commission sought
written public comment on the
proposals in the two Further Notices,
including comment on the two IRFAs.
No comments were received on the
IRFAs incorporated in the two Further
Notices. The Final Regulatory
Flexibility Analysis (FRFA) conforms to
the RFA.
68. Need for, and Objectives of, the
Report and Order. The purpose of the
proceeding is to apportion the
responsibilities of VPDs and video
programmers with respect to the
provision and quality of closed captions
on television programming to ensure
that people who are deaf and hard of
hearing have full access to such
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programming. The Second Report and
Order follows the Commission’s
adoption in 2014 of captioning quality
standards for programming shown on
television and makes certain
modifications to the closed captioning
rules after consideration of the
comments and reply comments received
in response to the Further Notices.
69. In document FCC 16–17, the
Commission amends its rules to assign
responsibility for the quality of closed
captioning to VPDs and video
programmers, with each entity
responsible for closed captioning issues
that are primarily within its control.
Additionally, the Commission
maintains current rules that place
primary responsibility for the provision
of closed captioning on television
programming on VPDs, but amends
them to hold video programmers
responsible for a lack of captions where
they have failed to provide captions on
non-exempt programs. Also, the
Commission adopts rules to: (1) Require
each video programmer to file with the
Commission a certification that (a) the
video programmer (i) is in compliance
with the rules requiring the inclusion of
closed captions, and (ii) either is in
compliance with the captioning quality
standards or has adopted and is
following related Best Practices; or (b) is
exempt from the captioning obligations;
if the latter certification is submitted,
the video programmer must specify the
specific exemptions claimed; (2) allow
each VPD to satisfy its obligations
regarding the provision of closed
captioning by ensuring that each video
programmer whose programming it
carries has certified its compliance with
the Commission’s closed captioning
rules; (3) revise the procedures for
receiving, serving, and addressing
television closed captioning complaints
in accordance with a burden-shifting
compliance model; (4) establish a
compliance ladder for the Commission’s
television closed captioning
requirements that provides VPDs and
video programmers with opportunities
to take corrective action prior to
enforcement action by the Commission;
(5) require that each VPD use the
Commission’s web form when providing
contact information to the VPD registry;
and (6) require each video programmer
to register with the Commission its
contact information for the receipt and
handling of written closed captioning
complaints, and to use the
Commission’s web form for this
purpose.
70. Summary of Significant Issues
Raised by Public Comments in Response
to the IRFA. No comments were filed in
response to the two IRFAs.
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71. Types of Small Entities Impacted:
• Cable Television Distribution Services
• Direct Broadcast Satellite (DBS)
Service
• Wireless Cable Systems—Broadband
Radio Service and Educational
Broadband Service
• Open Video Services
• Television Broadcasting
• Incumbent Local Exchange Carriers
(ILECs)
• Competitive Local Exchange Carriers
(CLECs), Competitive Access
Providers (CAPs), Shared-Tenant
Service Providers, and Other Local
Service Providers
• Electric Power Distribution
Companies
• Cable and Other Subscription
Programming
• Motion Picture and Video Production
• Closed Captioning Services—
Teleproduction and Other
Postproduction Services; and Court
Reporting and Stenotype Services
72. Description of Projected
Reporting, Record Keeping and other
Compliance Requirements.
• Requires each video programmer to
file with the Commission a certification
that: (a) The video programmer is in
compliance with the rules requiring the
inclusion of closed captions, and either
is in compliance with the captioning
quality standards or has adopted and is
following related Best Practices; or (b) is
exempt from the captioning obligations;
if the latter certification is submitted,
the video programmer must specify the
specific exemptions claimed;
• Revises the procedures for
receiving, serving, and addressing
television closed captioning complaints
in accordance with a burden-shifting
compliance model;
• Establishes a compliance ladder for
certain of the Commission’s television
closed captioning requirements that
provides VPDs and video programmers
with opportunities to take corrective
action prior to enforcement action by
the Commission;
• Requires that each VPD use the
Commission’s web form when providing
contact information to the VPD registry;
and
• Requires each video programmer to
register with the Commission its contact
information for the receipt and handling
of written closed captioning complaints,
and to use the Commission’s web form
for this purpose.
73. Although document FCC 16–17
modifies reporting and recordkeeping
requirements with respect to video
programmer certifications, it will
impose no new or additional
requirements in this regard because the
new rules will require video
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programmers to file certifications with
the Commission rather than making
them widely available as required under
the current rules.
74. Document FCC 16–17 modifies the
complaint process by adopting a
burden-shifting compliance model,
which is consistent with the newly
adopted assignment of responsibilities
to VPDs and video programmers. This
model ensures that the party most able
to remedy the captioning issue will have
the responsibility to fix the problem.
This will expedite complaint resolution
and result in more effective results.
75. Steps Taken To Minimize
Significant Impact on Small Entities,
and Significant Alternatives Considered.
The Commission believes that it has
minimized the effect on small entities
while making television programming
more accessible to persons who are deaf
and hard of hearing. The Commission
does not establish different compliance
or reporting requirements or timetables
with respect to small entities because
the importance of ensuring that video
programming is accessible to people
who are deaf and hard of hearing
outweighs the small burdens associated
with the new or different regulatory
requirements adopted in document FCC
16–17. The Commission already has in
place twelve categorical exemptions
from its closed captioning requirements,
including exemptions intended to
benefit small entities, and any entity,
including a small entity, may file a
request for exemption based upon
economic burden. In addition, the
Commission’s captioning rules generally
use performance rather than design
standards, and the Commission will
publish a compliance guide to explain
the new rules to small businesses.
76. The new rules assign
responsibilities between VPDs and
video programmers in a fair and
equitable manner. Although assigning
some direct responsibility for the
provision and quality of closed
captioning to video programmers
imposes some new regulatory
requirements on small entities that are
video programmers, it will relieve
burdens on small entities that are VPDs,
because the Commission will be able to
take direct compliance and enforcement
action against video programmers rather
than indirect action through VPDs.
77. The requirement for video
programmers to file certifications with
the Commission regarding compliance
with the Commission’s rules on the
provisioning and quality of closed
captioning imposes different reporting
and recordkeeping obligations than
currently required of video
programmers, including small entities.
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However, the new rules do not impose
additional burdens, because video
programmers are required under the
existing rules to provide certifications to
VPDs and to make such certifications
widely available under the
Commission’s rules. The new rules may
ease the burden on video programmers,
because video programmers will know
to go directly to the Commission’s Web
site to provide certification and will not
need to determine how to make such
certification widely available. In
addition, the new rules will ease the
burden on VPDs, including small
entities, and consumers by having all
certifications in one easy to find place.
78. The revised procedures for
receiving, serving, and addressing
closed captioning complaints in
accordance with a burden-shifting
compliance model imposes different
procedural requirements on VPDs,
including small entities, and new
procedural requirements on video
programmers, including small entities.
Because the burden-shifting model calls
for VPDs and video programmers to
each be responsible for closed
captioning issues that are within their
respective control instead of placing all
responsibility on VPDs, the model will
ease the burden on VPDs, including
small entities, who will be able to shift
the burden to video programmers when,
after investigation, the VPD determines
that the cause of the captioning problem
was within the control of the video
programmer. This approach will also
allow the Commission to more directly
and more easily address consumer
complaints, thereby benefitting
consumers.
79. The establishment of a compliance
ladder for the Commission’s closed
captioning quality requirements, a
process that provides VPDs and video
programmers, including small entities,
with opportunities to take corrective
action prior to enforcement action by
the Commission for certain captioning
violations, will ease the burden on VPDs
and video programmers, including small
entities, because use of the compliance
ladder will be more informal and less
time-consuming than a formal
enforcement proceeding.
80. The requirement that all contact
information submitted by VPDs to the
Commission for the VPD registry must
be submitted using the Commission’s
web form system does not subject VPDs,
including small entities, to additional
reporting and recordkeeping
requirements, because VPDs are already
required to submit their contact
information to the Commission.
However, VPDs, including small
entities, may be required to alter their
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reporting and recordkeeping associated
with such submissions in order to
comply with the rule. The Commission
considers the cost for VPDs to transition
to a mandatory web form method of
filing to be minimal as compared with
the ease and accuracy of filing and the
benefits to the public derived from a
mandatory web form system.
81. The requirement for video
programmers to register and file contact
information with the Commission
imposes new reporting and
recordkeeping obligations on video
programmers, including small entities.
However, the new requirement takes
into consideration the impact on small
entities. The filing of contact
information is a simple task that should
take no more than a few minutes. In
addition, such requirements may benefit
other entities, such as VPDs, including
small entities, and consumers, who will
be able to search the registration
information for contact information.
82. Federal Rules Which Duplicate,
Overlap, or Conflict With, the
Commission’s Proposals. None.
Congressional Review Act
83. The Commission sent a copy of
document FCC 16–17 in a report to
Congress and the Governmental
Accountability Office pursuant to the
Congressional Review Act, 5 U.S.C.
801(a)(1)(A).
Ordering Clauses
Pursuant to the authority contained in
sections 4(i), 303(r) and 713 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 301(r) and
613, document FCC 16–17 is ADOPTED
and the Commission’s rules are
AMENDED.
The Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, SHALL SEND a
copy of document FCC 16–17, including
the Final Regulatory Flexibility
Analysis, to the Chief Counsel for
Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 79
Individuals with disabilities,
Reporting and recordkeeping
requirements, Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 79 as
follows:
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57485
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, 554a, 613, 617.
2. Amend § 79.1 as follows:
a. Redesignate paragraph (a)(12) as
paragraph (a)(13);
■ b. Add a new paragraph (a)(12);
■ c. Revise paragraphs (b), (c)(1), (e)(5),
(e)(6), (e)(9), (g), and (i);
■ d. Remove and reserve paragraph
(j)(1);
■ e. Revise paragraph (j)(3) introductory
text;
■ f. Remove paragraph (j)(4);
■ g. Revise paragraph (k)(1)(iv);
■ h. Add and reserve paragraph (l); and
■ i. Add paragraph (m).
The additions and revisions read as
follows:
■
■
§ 79.1 Closed captioning of televised video
programming.
(a) * * *
(12) Video programming owner. Any
person or entity that either:
(i) Licenses video programming to a
video programming distributor or
provider that is intended for
distribution to residential households;
or
(ii) Acts as the video programming
distributor or provider and also
possesses the right to license linear
video programming to a video
programming distributor or provider
that is intended for distribution to
residential households.
*
*
*
*
*
(b) Requirements for closed
captioning of video programming—(1)
Requirements for new programming. (i)
Video programming distributors must
ensure that 100% of new, nonexempt
English language and Spanish language
video programming that is being
distributed and exhibited on each
channel during each calendar quarter is
closed captioned.
(ii) Video programmers must provide
closed captioning for 100% of new,
nonexempt English language and
Spanish language video programming
that is being distributed and exhibited
on each channel during each calendar
quarter.
(2) Requirements for pre-rule
programming. (i) Video programming
distributors must ensure that 75% of
pre-rule, nonexempt English language
and Spanish language video
programming that is being distributed
and exhibited on each channel during
each calendar quarter is closed
captioned.
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(ii) Video programmers must provide
closed captioning for 75% of pre-rule,
nonexempt English language and
Spanish video programming that is
being distributed and exhibited on each
channel during each calendar quarter.
(3) Video programming distributors
shall continue to provide captioned
video programming at substantially the
same level as the average level of
captioning that they provided during
the first six (6) months of 1997 even if
that amount of captioning exceeds the
requirements otherwise set forth in this
section.
(c) * * *
(1) All video programming
distributors shall deliver all
programming received from the video
programmer containing closed
captioning to receiving television
households with the original closed
captioning data intact in a format that
can be recovered and displayed by
decoders meeting the standards of this
part unless such programming is
recaptioned or the captions are
reformatted by the programming
distributor.
*
*
*
*
*
(e) * * *
(5) Video programming that is exempt
pursuant to paragraph (d) of this section
that contains captions, except that video
programming exempt pursuant to
paragraph (d)(5) of this section (late
night hours exemption), can count
towards compliance with the
requirements for pre-rule programming.
(6) For purposes of paragraph (d)(11)
of this section, captioning expenses
include direct expenditures for
captioning as well as allowable costs
specifically allocated by a video
programmer through the price of the
video programming to that video
programming provider. To be an
allowable allocated cost, a video
programmer may not allocate more than
100 percent of the costs of captioning to
individual video programming
providers. A video programmer may
allocate the captioning costs only once
and may use any commercially
reasonable allocation method.
*
*
*
*
*
(9) Video programming distributors
shall not be required to ensure the
provision of closed captioning for video
programming that is by law not subject
to their editorial control, including but
not limited to the signals of television
broadcast stations distributed pursuant
to sections 614 and 615 of the
Communications Act or pursuant to the
compulsory copyright licensing
provisions of sections 111 and 119 of
the Copyright Act (Title 17 U.S.C. 111
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and 119); programming involving
candidates for public office covered by
sections 315 and 312 of the
Communications Act and associated
policies; commercial leased access,
public access, governmental and
educational access programming carried
pursuant to sections 611 and 612 of the
Communications Act; video
programming distributed by direct
broadcast satellite (DBS) services in
compliance with the noncommercial
programming requirement pursuant to
section 335(b)(3) of the Communications
Act to the extent such video
programming is exempt from the
editorial control of the video
programming provider; and video
programming distributed by a common
carrier or that is distributed on an open
video system pursuant to section 653 of
the Communications Act by an entity
other than the open video system
operator. To the extent such video
programming is not otherwise exempt
from captioning, the entity that
contracts for its distribution shall be
required to comply with the closed
captioning requirements of this section.
*
*
*
*
*
(g) Complaint procedures—(1) Filing
closed captioning complaints.
Complaints concerning an alleged
violation of the closed captioning
requirements of this section shall be
filed with the Commission or with the
video programming distributor
responsible for delivery and exhibition
of the video programming within sixty
(60) days after the problem with
captioning.
(2) Complaints filed with the
Commission. A complaint filed with the
Commission must be in writing, must
state with specificity the alleged
Commission rule violated, and must
include:
(i) The consumer’s name, postal
address, and other contact information,
if available, such as telephone number
or email address, along with the
consumer’s preferred format or method
of response to the complaint (such as
letter, facsimile transmission, telephone
(voice/TRS/TTY), email, or some other
method that would best accommodate
the consumer.
(ii) The channel number; channel
name, network, or call sign; the name of
the multichannel video program
distributor, if applicable; the date and
time when the captioning problem
occurred; the name of the program with
the captioning problem; and a detailed
description of the captioning problem,
including specific information about the
frequency and type of problem.
(3) Process for forwarding complaints.
The Commission will forward
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complaints filed first with the
Commission to the appropriate video
programming distributor and video
programmer. If the Commission cannot
determine the appropriate video
programmer, the Commission will
forward the complaint to the video
programming distributor and notify the
video programming distributor of the
Commission’s inability to determine the
appropriate video programmer. The
video programming distributor must
respond in writing to the Commission
with the name and contact information
for the appropriate video programmer
within ten (10) days after the date of
such notification. The Commission will
then forward the complaint to the
appropriate video programmer.
(4) Video programming distributor
and video programmer responsibilities
with respect to complaints forwarded by
the Commission. (i) In response to a
complaint, the video programming
distributor must conduct an
investigation to identify the source of
the captioning problem and resolve all
aspects of the captioning problem that
are within its control. At a minimum, a
video programming distributor must
perform the following actions as part of
its investigation:
(A) Program stream check. The video
programming distributor must capture
program streams, defined as digitally
encoded elementary streams such as
video, audio, closed captioning, timing,
and other data necessary for a viewer to
receive a complete television viewing
experience, of the programming network
identified in the complaint and check
the program streams for any captionrelated impairments;
(B) Processing equipment check. If the
video programming distributor’s
investigation indicates a problem with
the program stream, and there is not
prior knowledge as to where the
problem originated, the video
programming distributor must check
post-processing equipment at the
relevant headend or other video
distribution facility to see if the issue
was introduced by the video
programming distributor or was present
in the program stream when received by
the video programming distributor from
the video programmer; and
(C) Consumer premises check. If the
video programming distributor’s
investigation indicates that the problem
may lie with the consumer’s customer
premises equipment, including the settop box, the video programming
distributor must check the end user
equipment, either remotely or, if
necessary, at the consumer’s premises,
to ensure there are no issues that might
interfere with the pass through,
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rendering, or display of closed
captioning.
(ii) After conducting its investigation,
the video programming distributor shall
provide a response to the complaint in
writing to the Commission, the
appropriate video programmer, and the
complainant within thirty (30) days
after the date the Commission
forwarded the complaint. The video
programming distributor’s response
must:
(A) Acknowledge responsibility for
the closed captioning problem and
describe the steps taken to resolve the
problem; or
(B) Certify that the video
programming distributor has conducted
an investigation into the closed
captioning problems in accordance with
paragraph (g)(4)(i) of this section and
that the closed captioning problem is
not within the video programming
distributor’s control and appears to have
been present in the program steam when
received by the video programming
distributor; or
(C) Certify that the video
programming distributor has conducted
an investigation into the closed
captioning problems in accordance with
paragraph (g)(4)(i) of this section and
that the closed captioning problem
appears to have been caused by a third
party DVR, television, or other third
party device not within the video
programming distributor’s control.
(iii) If the video programming
distributor provides a certification in
accordance with paragraph (g)(4)(ii)(B)
of this section, the video programmer to
whom the complaint was referred must
conduct an investigation to identify the
source of the captioning problem and
resolve all aspects of the captioning
problem that are within its control.
(A) The video programmer may call
upon the video programming distributor
for assistance as needed, and the video
programming distributor must provide
assistance to the video programmer in
resolving the complaint, as needed.
(B) After conducting its investigation,
the video programmer must provide a
response to the complaint in writing to
the Commission, the appropriate video
programming distributor, and the
complainant within thirty (30) days
after the date of the video programming
distributor’s certification. Such response
either must describe the steps taken by
the video programmer to correct the
captioning problem or certify that the
video programmer has conducted an
investigation into the closed captioning
problems in accordance with paragraph
(g)(4)(iii) of this section and that the
captioning problem was not within its
control, for example, because the
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program stream was not subject to the
closed captioning problem at the time
the program stream was handed off to
the video programming distributor.
(C) If the video programmer certifies
pursuant paragraph (g)(4)(iii)(B) of this
section that the captioning problem was
not within its control, and it has not
been determined by either the video
programmer or the video programming
distributor that the problem was caused
by a third party device or other causes
that appear not to be within the control
of either the video programming
distributor or the video programmer, the
video programming distributor and
video programmer shall work together
to determine the source of the
captioning problem. Once the source of
the captioning problem is determined,
the video programming distributor and
video programmer shall each correct
those aspects of the captioning problem
that are within its respective control.
Within thirty (30) days after the date of
the video programmer’s certification
provided pursuant to paragraph
(g)(4)(iii)(B) of this section, the video
programming distributor, after
consulting with the video programmer,
shall report in writing to the
Commission and the complainant on the
steps taken to correct the captioning
problem.
(5) Complaints filed with video
programming distributors. (i) If a
complaint is first filed with the video
programming distributor, the video
programming distributor must respond
in writing to the complainant with
thirty (30) days after the date of the
complaint. The video programming
distributor’s response must either:
(A) Acknowledge responsibility for
the closed captioning problem and
describe to the complainant the steps
taken to resolve the problem; or
(B) Inform the complainant that it has
referred the complaint to the
appropriate video programmer or other
responsible entity and provide the name
and contact information of the video
programmer or other responsible entity
and the unique complaint identification
number assigned to the complaint
pursuant to paragraph (g)(5)(ii)(B) of this
section; or
(C) Inform the complainant that the
closed captioning problem appears to
have been caused by a third party DVR,
television, or other third party device
not within the video programming
distributor’s control.
(ii) If the video programming
distributor determines that the issue
raised in the complaint was not within
the video programming distributor’s
control and was not caused by a third
party device, the video programming
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57487
distributor must forward the complaint
and the results of its investigation of the
complaint to the appropriate video
programmer or other responsible entity
within thirty (30) days after the date of
the complaint.
(A) The video programming
distributor must either forward the
complaint with the complainant’s name,
contact information and other
identifying information redacted or
provide the video programmer or other
responsible entity with sufficient
information contained in the complaint
to achieve the complaint’s investigation
and resolution.
(B) The video programming
distributor must assign a unique
complaint identification number to the
complaint and transmit that number to
the video programmer with the
complaint.
(iii) If a video programming
distributor forwards a complaint to a
video programmer or other responsible
entity pursuant to paragraph (g)(5)(ii) of
this section, the video programmer or
other responsible entity must respond to
the video programming distributor in
writing in a form that can be forwarded
to the complainant within thirty (30)
days after the forwarding date of the
complaint.
(A) The video programming
distributor must forward the video
programmer’s or other responsible
entity’s response to the complainant
within ten (10) days after the date of the
response.
(B) If the video programmer or other
responsible entity does not respond to
the video programming distributor
within thirty (30) days after the
forwarding date of the complaint, the
video programming distributor must
inform the complainant of the video
programmer’s or other responsible
entity’s failure to respond within forty
(40) days after the forwarding date of the
complaint.
(iv) If a video programming
distributor fails to respond to the
complainant as required by paragraphs
(g)(5)(i) of this section, or if the response
received by the complainant does not
satisfy the complainant, the
complainant may file the complaint
with the Commission within sixty (60)
days after the time allotted for the video
programming distributor to respond to
the complainant. The Commission will
forward such complaint to the video
programming distributor and video
programmer, and the video
programming distributor and video
programmer shall address such
complaint as specified in paragraph
(g)(4) of this section.
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(v) If a video programmer or other
responsible entity fails to respond to the
video programming distributor as
required by paragraph (g)(5)(iii) of this
section, or if a video programming
distributor fails to respond to the
complainant as required by paragraph
(g)(5)(iii)(A) or (B) of this section, or if
the response from the video programmer
or other responsible entity forwarded by
the video programming distributor to
the complainant does not satisfy the
complainant, the complainant may file
the complaint with the Commission
within sixty (60) days after the time
allotted for the video programming
distributor to respond to the
complainant pursuant to paragraph
(g)(5)(iii)(A) or (B) of this section. The
Commission will forward such
complaints to the appropriate video
programming distributor and video
programmer, and the video
programming distributor and video
programmer shall handle such
complaints as specified in paragraph
(g)(4) of this section.
(6) Provision of documents and
records. In response to a complaint, a
video programming distributor or video
programmer is obligated to provide the
Commission with sufficient records and
documentation to demonstrate that it is
in compliance with the Commission’s
rules.
(7) Reliance on certifications. Video
programming distributors may rely on
certifications from video programmers
made in accordance with paragraph (m)
of this section to demonstrate
compliance with paragraphs (b)(1)(i)
and (b)(2)(i) of this section. Video
programming distributors shall not be
held responsible for situations where a
video programmer falsely certifies under
paragraph (m) of this section unless the
video programming distributor knows or
should have known that the certification
is false.
(8) Commission review of complaints.
The Commission will review complaints
filed with the Commission, including all
supporting evidence, and determine
whether a violation has occurred. The
Commission will, as needed, request
additional information from the video
programming distributor or video
programmer.
(9) Compliance—(i) Initial response to
a pattern or trend of noncompliance. If
the Commission notifies a video
programming distributor or video
programmer of a pattern or trend of
possible noncompliance with the
Commission’s rules for the quality of
closed captioning by the video
programming distributor or video
programmer, the video programming
distributor or video programmer shall
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respond to the Commission within
thirty (30) days after the Commission’s
notice of such possible noncompliance,
describing corrective measures taken,
including those measures the video
programming distributor or video
programmer may have undertaken in
response to informal complaints and
inquiries from viewers.
(ii) Corrective action plan. If, after the
date for a video programming
distributor or video programmer to
respond to a notification under
paragraph (g)(8)(i) of this section, the
Commission subsequently notifies the
video programming distributor or video
programmer that there is further
evidence indicating a pattern or trend of
noncompliance with the Commission’s
rules for quality of closed captioning,
the video programming distributor or
video programmer shall submit to the
Commission, within thirty (30) days
after the date of such subsequent
notification, a written action plan
describing specific measures it will take
to bring the video programming
distributor’s or video programmer’s
closed captioning performance into
compliance with the Commission’s
closed captioning quality rules. In
addition, the video programming
distributor or video programmer shall
conduct spot checks of its closed
captioning quality performance and
report to the Commission on the results
of such action plan and spot checks 180
days after the submission of such action
plan.
(iii) Continued evidence of a pattern
or trend of noncompliance. If, after the
date for submission of a report on the
results of an action plan and spot checks
pursuant to paragraph (g)(8)(ii) of this
section, the Commission finds
continued evidence of a pattern or trend
of noncompliance, additional
enforcement actions may be taken,
which may include admonishments,
forfeitures, and other corrective actions.
(iv) Enforcement action. The
Commission may take enforcement
action, which may include
admonishments, forfeitures, and other
corrective actions, without providing a
video programming distributor or video
programmer the opportunity for an
initial response to a pattern or trend of
noncompliance or a corrective action
plan, or both, under paragraphs (g)(8)(i)
and (ii) of this section, for a systemic
closed captioning quality problem or an
intentional and deliberate violation of
the Commission’s rules for the quality of
closed captioning.
*
*
*
*
*
(i) Contact information. (1) Receipt
and handling of immediate concerns.
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Video programming distributors shall
make publicly available contact
information for the receipt and handling
of immediate closed captioning
concerns raised by consumers while
they are watching a program. Video
programming distributors must
designate a telephone number, fax
number (if the video programming
distributor has a fax number), and email
address for purposes of receiving and
responding immediately to any closed
captioning concerns. Video
programming distributors shall include
this information on their Web sites (if
they have a Web site), in telephone
directories, and in billing statements (to
the extent the distributor issues billing
statements). Video programming
distributors shall keep this information
current and update it to reflect any
changes within ten (10) business days
for Web sites, by the next billing cycle
for billing statements, and by the next
publication of directories. Video
programming distributors shall ensure
that any staff reachable through this
contact information has the capability to
immediately respond to and address
consumers’ concerns. To the extent that
a distributor has personnel available,
either on site or remotely, to address
any technical problems that may arise,
consumers using this dedicated contact
information must be able to reach
someone, either directly or indirectly,
who can address the consumer’s
captioning concerns. This provision
does not require that distributors alter
their hours of operation or the hours
during which they have staffing
available; at the same time, however,
where staff is available to address
technical issues that may arise during
the course of transmitting programming,
they also must be knowledgeable about
and be able to address closed captioning
concerns. In situations where a video
programming distributor is not
immediately available, any calls or
inquiries received, using this dedicated
contact information, should be returned
or otherwise addressed within 24 hours.
In those situations where the captioning
problem does not reside with the video
programming distributor, the staff
person receiving the inquiry shall refer
the matter appropriately for resolution.
(2) Complaints. Video programming
distributors shall make contact
information publicly available for the
receipt and handling of written closed
captioning complaints that do not raise
the type of immediate issues that are
addressed in paragraph (i)(1) of this
section. The contact information
required for written complaints shall
include the name of a person with
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primary responsibility for captioning
issues and who can ensure compliance
with the Commission’s rules. In
addition, this contact information shall
include the person’s title or office,
telephone number, fax number (if the
video programming distributor has a fax
number), postal mailing address, and
email address. Video programming
distributors shall include this
information on their Web sites (if they
have a Web site), in telephone
directories, and in billing statements (to
the extent the distributor issues billing
statements). Video programming
distributors shall keep this information
current and update it within ten (10)
business days for Web sites, by the next
billing cycle for billing statements, and
by the next publication of directories.
(3) Providing contact information to
the Commission. Video programming
distributors and video programmers
shall file contact information with the
Commission through a web form located
on the Commission’s Web site. Such
contact information shall include the
name of a person with primary
responsibility for captioning issues and
ensuring compliance with the
Commission’s rules. In addition, such
contact information shall include the
person’s title or office, telephone
number, fax number (if the video
programming distributor or video
programmer has a fax number), postal
mailing address, and email address.
Contact information shall be available to
consumers on the Commission’s Web
site or by telephone inquiry to the
Commission’s Consumer Center. Video
programming distributors and video
programmers shall notify the
Commission each time there is a change
in any of this required information
within ten (10) business days.
(j) * * *
(1) [Reserved]
*
*
*
*
*
(3) Application of captioning quality
standards. Video Programmers shall
ensure that captioning meet the
standards of paragraph (j)(2) of this
section for accuracy, synchronicity,
completeness and placement, except for
de minimis captioning errors. In
determining whether a captioning error
is de minimis, the Commission will
consider the particular circumstances
presented, including the type of failure,
the reason for the failure, whether the
failure was one-time or continuing, the
degree to which the program was
understandable despite the errors, and
the time frame within which corrective
action was taken to prevent such
failures from recurring. When applying
such standards to live and near-live
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programming, the Commission will also
take into account, on a case-by-case
basis, the following factors:
*
*
*
*
*
(k) * * *
(1) * * *
(iv) Certification procedures for video
programmers. Video programmers
adopting Best Practices will certify to
the Commission that they adhere to Best
Practices for video programmers, in
accordance with paragraph (m) of this
section.
*
*
*
*
*
(l) [Reserved]
(m) Video programmer certification.
(1) On or before July 1, 2017, or prior
to the first time a video programmer that
has not previously provided video
programming shown on television
provides video programming for
television for the first time, whichever
is later, and on or before July 1 of each
year thereafter, each video programmer
shall submit a certification to the
Commission through a web form located
on the Commission’s Web site stating
that:
(i) The video programmer provides
closed captioning for its programs in
compliance with the Commission’s
rules; and
(ii) The video programmers’ programs
either satisfy the caption quality
standards of paragraph (j)(2) of this
section; or in the ordinary course of
business, the video programmer has
adopted and follows the Best Practices
set forth in paragraph (k)(1) of this
section.
(2) If all of video programmer’s
programs are exempt from the closed
captioning rules under one or more of
the exemptions set forth in this section,
in lieu of the certification required by
paragraph (m)(1) of this section, the
video programmer shall submit a
certification to the Commission through
a web form located on the Commission’s
Web site stating that all of its programs
are exempt from the closed captioning
rules and specify each category of
exemption claimed by the video
programmer.
(3) If some of a video programmer’s
programs are exempt from the closed
captioning rules under one or more of
the exemptions set forth in this section,
as part of the certification required by
paragraph (m)(1) of this section, the
video programmer shall include a
certification stating that some of its
programs are exempt from the closed
captioning rules and specify each
category of exemption claimed by the
video programmer.
(4) A television broadcast station
licensed pursuant to part 73 of this
PO 00000
Frm 00051
Fmt 4700
Sfmt 4700
57489
chapter or a low power television
broadcast station licensed pursuant to
part 74, subpart G, of this chapter, or the
owner of either such station, is not
required to provide a certification for
video programming that is broadcast by
the television broadcast station.
[FR Doc. 2016–19685 Filed 8–22–16; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 160617540–6702–02]
RIN 0648–XE695
Fisheries Off West Coast States;
Coastal Pelagic Species Fisheries;
Annual Specifications
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS issues this final rule to
implement annual management
measures and harvest specifications to
establish the allowable catch levels (i.e.
annual catch limit (ACL)/harvest
guideline (HG)) for Pacific mackerel in
the U.S. exclusive economic zone (EEZ)
off the West Coast for the fishing season
of July 1, 2016, through June 30, 2017.
This rule is implemented according to
the Coastal Pelagic Species (CPS)
Fishery Management Plan (FMP). The
2016–2017 HG for Pacific mackerel is
21,161 metric tons (mt). This is the total
commercial fishing target level. NMFS
is also implementing an annual catch
target (ACT), of 20,161 mt. If the fishery
attains the ACT, the directed fishery
will close, reserving the difference
between the HG (21,161 mt) and ACT as
a 1,000 mt set-aside for incidental
landings in other CPS fisheries and
other sources of mortality. This final
rule is intended to conserve and manage
the Pacific mackerel stock off the U.S.
West Coast.
DATES: Effective September 22, 2016
through June 30, 2017.
FOR FURTHER INFORMATION CONTACT:
Joshua Lindsay, West Coast Region,
NMFS, (562) 980–4034,
Joshua.Lindsay@noaa.gov.
SUPPLEMENTARY INFORMATION: During
public meetings each year, the estimated
biomass for Pacific mackerel is
presented to the Pacific Fishery
Management Council’s (Council) CPS
SUMMARY:
E:\FR\FM\23AUR1.SGM
23AUR1
Agencies
[Federal Register Volume 81, Number 163 (Tuesday, August 23, 2016)]
[Rules and Regulations]
[Pages 57473-57489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19685]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 79
[CG Docket No. 05-231; FCC 16-17]
Closed Captioning of Video Programming; Telecommunications for
the Deaf and Hard of Hearing, Inc., Petition for Rulemaking
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) allocates the responsibilities of video programming
distributors (VPDs) and video programmers with respect to the provision
and quality of closed captions on television programming, with each
entity responsible for closed captioning issues that are primarily
within its control; amends the Commission's captioning complaint
procedures to include video programmers in the handling of complaints;
and requires video programmers to register contact information and
certify compliance with captioning obligations directly with the
Commission.
DATES: Effective September 22, 2016, except for 47 CFR 79.1(g)(1)
through (9), (i)(1) through (3), (j)(1) and (4), (k)(1)(iv), and (m) of
the Commission's rules, which contain information collection
requirements that are not effective until approved by the Office of
Management and Budget (OMB). The Commission will publish a document in
the Federal Register announcing the effective date for those sections.
FOR FURTHER INFORMATION CONTACT: Eliot Greenwald, Disability Rights
Office, Consumer and Governmental Affairs Bureau, at phone: (202) 418-
2235 or email: Eliot.Greenwald@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Closed
Captioning of Video Programming; Telecommunications for the Deaf and
Hard of Hearing, Inc., Petition for Rulemaking Second Report and Order
(Second Report and Order), document FCC 16-17, adopted on February 18,
2016, and released on February 19, 2016. The full text of document FCC
16-17 will be available for public inspection and copying via ECFS, and
during regular business hours at the FCC Reference Information Center,
Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554.
Document FCC 16-17 can also be downloaded in Word or Portable Document
Format (PDF) at: https://www.fcc.gov/general/disability-rights-office-headlines. To request materials in accessible formats for people with
disabilities (Braille, large print, electronic files, audio format),
send an email to fcc504@fcc.gov or call the Consumer and Governmental
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).
Final Paperwork Reduction Act of 1995 Analysis
Document FCC 16-17 contains new and modified information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, will invite the general public to comment on
the information collection requirements contained in document FCC 16-17
as required by the Paperwork Reduction Act of 1995 (PRA), Public Law
104-13. In addition, the Commission notes that, pursuant to the Small
Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C.
3506(c)(4), the Commission previously sought comment on how the
Commission might ``further reduce the information collection burden for
small business concerns with fewer than 25 employees.'' See Closed
Captioning of Video Programming; Telecommunications for the Deaf and
Hard of Hearing, Inc., Petition for Rulemaking, Report and Order,
Declaratory Ruling, and Further Notice of Proposed Rulemaking,
published at 79 FR 17093, March 27, 2014 (Further Notice of Proposed
Rulemaking) and 79 FR 17911, March 31, 2014 (Report and Order)
(references are to the Closed Captioning Quality Order when discussing
parts of the Report and Order, and to the Closed Captioning Quality
Further Notice when discussing parts of the Further Notice of Proposed
Rulemaking).
Synopsis
1. Closed captioning is a technology that provides visual access to
the audio content of video programs by displaying this content as
printed words on the television screen. In 1997, the Commission, acting
pursuant to section 713 of the Communications Act (the Act), 47 U.S.C.
713, adopted rules regarding closed captioning on television. On
February 24, 2014, the Commission adopted the Closed Captioning Quality
Order in which, among other things, it placed responsibility for
compliance with the non-technical closed captioning quality standards
on (VPDs) while simultaneously releasing the Closed Captioning Quality
Further Notice to seek comment on, among other issues, extending some
of the responsibilities for complying with the closed captioning
quality standards to other entities involved in the production and
delivery of video programming. On December 15, 2014, the Commission
released a Second Further Notice seeking to supplement the record in
this proceeding in response to comments received on the Closed
Captioning Quality Further Notice. Closed Captioning of Video
Programming; Telecommunications for the Deaf and Hard of Hearing, Inc.,
Petition for Rulemaking, Second Further Notice of Proposed Rulemaking,
published at 79 FR 78768, December 31, 2014 (Closed Captioning Quality
Second Further Notice).
2. Responsibilities of VPDs and Video Programmers. In its 1997
Closed Captioning Report and Order, the Commission placed sole
responsibility for compliance with its television closed captioning
rules on VPDs. Closed Captioning and Video Description of Video
Programming, Implementation of Section 305 of the Telecommunications
Act of 1996, Video Programming Accessibility, Report and Order,
published at 62 FR 48487, September 16, 1997 (1997 Closed Captioning
Report and Order). At that time, the Commission concluded that holding
VPDs responsible would most expeditiously increase the availability of
television programming with closed captions and promote efficiency in
the Commission's monitoring and enforcement of its captioning rules. At
the same time, the Commission recognized the Commission's jurisdiction,
under section 713 of the Act, over both video programming providers and
owners to ensure the provision of closed captioning of video
programming, and noted its expectation that both ``owners and producers
will be involved in the captioning process.''
3. In the Closed Captioning Quality Order, the Commission similarly
placed the responsibility for compliance with the non-technical closed
captioning quality standards on VPDs. However, recognizing that the
creation and delivery of quality closed captioning is not solely within
the control of VPDs and that video programmers play a ``critical role''
in providing closed captions to viewers, the Commission stated that it
would allow a VPD to satisfy its obligations with respect to the
caption quality rules by obtaining or making best efforts to obtain
[[Page 57474]]
certifications on captioning quality from its video programmers that
such programmers are in compliance with the Commission's quality
standards or related best practices. At the same time, as noted above,
the Closed Captioning Further Notice sought comment on whether the
Commission should revise its rules to allocate responsibilities for
compliance with the television closed captioning obligations, including
the obligation to provide quality captions, among various entities
involved in the production and delivery of video programming. To this
end, among other things, the Commission also sought comment on a
specific proposal by Comcast/NBC Universal (Comcast) for a ``burden-
shifting enforcement model'' that would place the initial burden of
addressing captioning matters on VPDs, but then extend some captioning
responsibilities to video programming owners (VPOs).
4. The Commission concludes that the obligations associated with
compliance with the Commission's closed captioning quality rules shall
be divided between VPDs and video programmers, making each entity
responsible for closed captioning quality issues that are primarily
within its control. It further concludes that the responsibilities
associated with ensuring the provision of closed captions on television
shall remain primarily with VPDs, but amends its rules to also hold
video programmers responsible for ensuring the insertion of closed
captions on all their nonexempt programming. The Commission also
concludes that the video programmer certifications that video
programmers must now make widely available to VPDs should instead be
filed with the Commission.
5. Definitions of Video Programmers and Video Programming Owners.
The Closed Captioning Quality Order defined a video programmer as
``[a]ny entity that provides video programming that is intended for
distribution to residential households including, but not limited to,
broadcast or nonbroadcast television networks and the owners of such
programming,'' noting that such programmers are a subset of VPPs. The
Closed Captioning Quality Further Notice also noted that the Commission
has defined VPOs for purposes of requiring captions on video
programming delivered via Internet protocol, in part, as ``any person
or entity that `[l]icenses 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.''' The Captioning Quality Further Notice sought
comment on whether the definition of video programmer adopted in the
Closed Captioning Quality Order is sufficiently broad in scope or
whether the Commission should expand the definition to cover other
categories of entities, and if so, which entities. The Commission also
sought comment on whether and how the Commission should define VPOs
with respect to the television closed captioning rules.
6. Document FCC 16-17 applies the definition of video programmer
adopted in the Closed Captioning Quality Order without change. That
definition does not exclude entities that provide programming for
distribution to locations other than the home; rather it merely makes
the intent to distribute to residential households a criterion of the
definition. In other words, if an entity intends for its programming to
be distributed to residential households, the entity will meet the
definition of a ``video programmer'' and will be covered by the
Commission's captioning rules, even if the video programmer's
programming also reaches devices, such as tablets and other mobile
devices that can be used outside the home.
7. Document FCC 16-17 defines VPO, for purposes of television
captioning, as any person or entity that either (i) licenses video
programming to a VPD or provider that is intended for distribution to
residential households; or (ii) acts as the VPD or VPP, and also
possesses the right to license video programming to a VPD or VPP that
is intended for distribution to residential households. As is the case
with video programmers, an entity will be considered a VPO if it
licenses or possesses the right to license programming that is intended
for distribution to residential households, even if the programming is
also distributed to devices that are not located in the home.
Accordingly, the captioning rules will cover video programming that is
provided by such VPOs to VPPs and VPDs and distributed over VPD
systems, even if the VPO's programming reaches devices, such as tablets
and other mobile devices that may or may not be located in the home.
8. Commission Authority under Section 713 of the Act. The
Commission reaffirms determinations, made in the 1997 Closed Captioning
Report and Order and the Closed Captioning Quality Order, that the
Commission has authority under section 713 of the Act to impose
obligations for compliance with the Commission's closed captioning
rules on both VPDs and video programmers. Section 713 of the Act
authorizes the Commission to ensure the provision of closed captioning
of video programming by providers and owners of video programming.
Section 713(b)(2) of the Act directs the Commission to prescribe
regulations that ``shall ensure'' that ``video programming providers or
owners maximize the accessibility of video programming first published
or exhibited prior to the effective date of such regulations through
the provision of closed captions.'' Additionally, various subsections
of section 713(d) authorize exemptions for both VPPs and program
owners. The legislative history of section 713 of the Act further
reflects Congress's intent to extend the Commission's authority over
captioning of video programming to various entities involved in the
production and delivery of video programming, including the
distributors and owners of such programs, recognizing that ``[i]t is
clearly more efficient and economical to caption programming at the
time of production and to distribute it with captions than to have each
delivery system or local broadcaster caption the program.''. H.R. Rep.
No. 104-204, 104th Cong., 1st Sess. (1995) at 114.
9. The Commission has long recognized its jurisdiction under
section 713 of the Act to impose closed captioning obligations on both
VPDs and video programmers. The Commission referenced its authority in
the 1997 Closed Captioning Report and Order and the Closed Captioning
Quality Order, and extended certain captioning responsibilities to VPOs
in the IP Captioning Report and Order, which created requirements for
captioned television programs to be displayed with captions when
delivered via Internet protocol. Closed Captioning of Internet
Protocol-Delivered Video Programming: Implementation of the Twenty-
First Century Communications and Video Accessibility Act of 2010,
published at 77 FR 19480, March 30, 2012 (IP Captioning Report and
Order). There, the Commission concluded that placing obligations on
VPOs would ensure that the Commission could hold a responsible party
accountable for violations of the Twenty-First Century Communications
and Video Accessibility Act (CVAA). Public Law 11-260, 124 Stat. 2751
(2010), technical corrections, Public Law 111-265, 124 Stat. 2795
(2010); IP Captioning Report and Order. Similarly, changes made to the
Commission's requirements for the presentation of accessible emergency
information on television added video programming providers, which
includes program owners, as parties responsible (along with VPDs) for
making such information accessible to individuals
[[Page 57475]]
who are blind or visually impaired. The Commission ruled that the
entity that creates the visual emergency information content and adds
it to the programming stream is responsible for providing an aural
representation of the information on a secondary audio stream, whether
that entity is the VPD or VPP. In the Matter of Accessible Emergency
Information, and Apparatus Requirements for Emergency Information and
Video Description: Implementation of the Twenty-First Century
Communications and Video Accessibility Act of 2010, Video Description:
Implementation of the Twenty-First Century Communications and Video
Accessibility Act of 2010, Report and Order and Further Notice of
Proposed Rulemaking, published at 78 FR 31800, May 24, 2013 (2013
Emergency Information Order) (amending 47 CFR 79.2). Document FCC 16-17
reaffirms that section 713 of the Act gives the Commission jurisdiction
to ensure the provision of closed captioning of video programming by
both VPDs and video programmers.
10. Responsibilities for Ensuring Captioning Quality. The
Commission concludes that it is appropriate to allocate responsibility
for compliance with the closed captioning quality rules between VPDs
and video programmers by placing responsibility on each entity for
those aspects of closed captioning quality over which they primarily
have control. The Commission reaches this conclusion because video
programmers exert the most direct control over the creation of closed
captions, and thus, as compared to VPDs, can exercise greater control
over the non-technical quality components of closed captioning. At the
same time, VPDs primarily have control over the technical aspects of
captioning quality related to the pass-through and distribution of
programming to end users.
11. There are a number of tasks associated with the provision of
quality closed captions performed by video programmers. These entities
``enter into contracts with captioning vendors, control when
programming is delivered to captioning vendors to be captioned, and
incorporate captioning with programming for delivery to VPDs.'' See
Closed Captioning Quality Order. The critical role that video
programmers play in creating quality captioning justifies changing the
allocation of responsibility for compliance with the caption quality
requirements. The Commission thus affirms the finding made in the
Closed Captioning Quality Order that ``video programmers typically are
the entities with the most direct control over the quality of closed
captioning of their program.'' It is for this reason that the
Commission believes that assigning some responsibility for the quality
of closed captioning directly to video programmers will more
efficiently and effectively achieve compliance with the Commission's
closed captioning quality requirements.
12. VPDs receive programs with the embedded captions supplied by
video programmers, and while VPDs have an obligation to ensure that
their technical equipment is capable of passing through program signals
with captions in a manner that does not adversely affect the non-
technical quality components (accuracy, synchronicity, completeness and
placement), the record shows that video programmers are responsible in
the first instance for making sure that captions meet these quality
components--i.e., at the time when programmers initially arrange for
the inclusion and insertion of such captions on their programs. Video
programmers thus have primary control over ensuring that the non-
technical quality standards are met. In addition, allocating captioning
quality responsibilities between VPDs and video programmers will be
more efficient and effective than attempting to reach video programmers
indirectly through their contracts with VPDs. The Commission concludes
that the responsibilities imposed by the contractual arrangements
between these entities will not be as effective or efficient as direct
responsibility on the part of video programmers to achieve compliance
with the Commission's new closed captioning quality obligations.
13. First, the record shows that contractual arrangements between
VPDs and video programmers may not be fully effective to ensure that
video programmers will provide quality closed captions. Financial
constraints and lack of influence may impede a VPD's ability to enforce
agreements where violations of the captioning quality standards occur.
Even in those instances in which a VPD is able to enforce its
contractual agreement, the video programmer may decide to simply
indemnify the VPD rather than correct the captioning quality problem.
14. The Commission concludes that having VPDs and video programmers
share captioning quality responsibilities is likely to improve the
efficacy of the complaint process because it will assign responsibility
to the entity most able to effectively resolve the complaint. In
addition, by allowing the Commission to take enforcement action against
video programmers as well as VPDs, it will create incentives for both
entities to take actions within their control to resolve quality
problems swiftly and to the satisfaction of consumers. The record in
this proceeding reveals that captioning quality problems can stem from
the actions or inactions of either VPDs or video programmers. The new
procedures adopted in this order for resolving captioning quality
complaints consider this fact, and utilize the established relationship
between VPDs and programmers, as well as VPDs and consumers, to
simplify the resolution of complaints for consumers. In this regard, to
the extent that a VPD is responsible for captioning problems, under a
regulatory scheme of divided responsibility, the VPD will remain
responsible for rectifying those problems. Likewise, video programmers
will remain responsible for addressing captioning problems primarily
within their control.
15. The Commission amends its rules to require video programmers to
ensure that closed captioning data provided to VPDs complies with the
Commission's closed captioning quality standards. The Commission will
also continue to require VPDs to pass through programming with the
original closed captioning data intact, in a format that can be
recovered and displayed by consumers. Thus, under the new rules, video
programmers will be responsible for closed captioning quality problems
that stem from producing the captions, as well as transmission of the
captions by the video programmers to the VPDs up to when the
programming is handed off to the VPDs. VPDs will be responsible for
closed captioning quality problems that are the result of faulty
equipment or the failure to pass through closed captioning data intact.
As a result, a VPD will be held responsible for a violation of the
caption quality rules when the circumstances underlying the violation
are primarily within the control of the VPD, and a video programmer
will be held responsible for a violation of the caption quality rules
when the circumstances underlying the violation are primarily within
its control. Assigning liability in this manner will allow VPDs and
video programmers to focus their resources on the captioning
transmission processes over which they have the most control, thereby
increasing their individual incentives to provide quality closed
captions.
16. Responsibilities for the Provision of Captioning. Section
79.1(b) of the Commission's rules currently places on VPDs the
responsibility for ensuring the provision of closed captions on non-
exempt television programs. The Closed Captioning Quality Further
Notice sought comment on whether the
[[Page 57476]]
Commission should revise this rule to allocate some of this
responsibility to other programming entities, such as video
programmers.
17. The Commission concludes that the better approach for ensuring
the provision of closed captions on television is to continue to hold
VPDs primarily responsible for this obligation on the programming they
carry, but to also hold video programmers responsible where they fail
to provide captions on non-exempt programming. The Commission reaches
this conclusion because it believes that its prior policy of placing
sole responsibility on VPDs for the provision of closed captions on
television programs failed to consider fully the significant role that
video programmers play in the provision of captions on their video
programming. Given that video programmers have control over the
provision of closed captioning on programs they make available to VPDs
for distribution to viewers, the Commission believes that it would be
more effective and efficient to hold video programmers accountable for
ensuring the insertion of closed captions on all of their programming
that is not exempt, and the Commission amends Sec. 79.1(b) of its
rules to include the responsibilities of video programmers.
18. Yet, because the VPDs have an important role in the
distribution of captioned programming, the Commission will maintain its
current rules requiring VPDs to remain primarily responsible for
ensuring the provision of closed captions on their programming,
including the obligation to pass through programming with the original
closed captioning data intact, in a format that can be recovered and
displayed by consumers. The Commission believes that allocating
responsibilities for the provision of closed captioning in this manner
will incentivize entities with the greatest control over each aspect of
the closed captioning carriage, transmission and delivery processes to
provide closed captions. It also believes that the approach adopted
herein will maintain the current incentives for VPDs to ensure that the
programming they carry is in compliance with the Commission's rules,
while allowing the Commission to reach video programmers in instances
where such entities have been non-compliant. The Commission concludes
that the ability to hold both video programmers and VPDs responsible
for the carriage of closed captions will encourage both parties to work
together and thereby ensure greater access to television programming
for people who are deaf and hard of hearing.
19. The Commission further concludes that this approach will
respond to requests by commenters to eliminate a potential ``liability
gap'' in the Commission's captioning rules, that they claim has arisen
by permitting VPDs to rely on certifications from programming suppliers
to demonstrate compliance with the Commission's rules. Under the
current rules, a VPD may rely on a certification from the programming
supplier, even when ``a programming source falsely certifies that the
programming delivered to the distributor meets the Commission's
captioning requirements if the distributor is unaware that the
certification is false.'' 47 CFR 79.1(g)(6). Moreover, because the
current rules do not assign responsibility to video programmers, they
are not held accountable even where a video programmer either fails to
provide a certification, provides a false certification, or simply
fails to provide the required captioning. The Commission's decision to
hold VPDs primarily responsible for the provision of closed captioning
while allocating some responsibility to video programmers will ensure
that the responsible entities are held accountable when closed
captioning is not provided and will better enable the Commission to
fulfill Congress's intent to ensure the accessibility of video
programming.
20. Video Programmer Certification. Because of the decision to
allocate responsibility between video programmers and VPDs for the
quality and provision of closed captioning, the Commission concludes
that its rules governing these certifications should be amended to (1)
make such certifications mandatory and (2) require video programmers to
file these certifications with the Commission. At present, the
Commission's rules provide for two separate types of video programmer
certifications in the closed captioning context.
21. The first type of certification is under Sec. 79.1(g)(6) of
the Commission's rules, which provides that VPDs may rely upon
certifications from programming suppliers, including programming
producers, programming owners, network syndicators and other
distributors, to demonstrate a program's compliance with the captioning
provision rules. This section goes on to state that VPDs will ``not be
held responsible for situations where a program source falsely
certifies that programming delivered to the distributor meets [the
Commission's] captioning requirements if the distributor is unaware
that the certification is false.'' 47 CFR 79.1(g)(6). Under the
Commission's current rules, there is no affirmative obligation on the
part of VPDs to obtain such certifications or on programming suppliers
to provide them. Additionally, the Commission's rules simply permit a
VPD to rely on these certifications to prove that there was no
underlying obligation to caption the programming received. This is the
case even if the certification received is false (unless the VPD was
aware of such falsehood).
22. The second type of programmer certification, which VPDs must
make best efforts to obtain, was adopted by the Commission in the
Closed Captioning Quality Order, and is contained in Sec. 79.1(j)(1)
of the Commission's rules. Under this rule, a VPD must exercise best
efforts to obtain one of the following certifications from each video
programmer with respect to the programming supplied to the VPD: (i)
That the video programmer's programming satisfies the caption quality
standards, see 47 CFR 79.1(j)(2) (stating the requirements with regard
to captioning quality standards); (ii) that in the ordinary course of
business, the video programmer has adopted and follows the Best
Practices for video programmers with respect to captioning quality, see
47 CFR 79.1(k)(1) (stating the specific requirements with regard to
Best Practices); or (iii) that the video programmer is exempt from the
closed captioning rules, under one or more properly attained
exemptions. If a video programmer claims an exemption from the
captioning rules, it must also specify the exact exemption. 47 CFR
79.1(j)(1). In addition, Sec. 79.1(k)(1)(iv) of the Commission's rules
requires a video programmer that adopts Best Practices to certify to
its VPDs that it has adopted and is following Best Practices for video
programmers with respect to quality. Section 79.1(j)(1) and (k)(1)(iv)
of the Commission's rules requires that the video programmer make this
certification widely available, with Sec. 79.1(j)(1) of the
Commission's rules requiring that the video programmer do so within 30
days after receiving a written request to do so from a VPD.
23. In the Closed Captioning Quality Second Further Notice the
Commission sought comment on the need to alter its video programmer
certification requirements if it extends some responsibilities for
compliance with its closed captioning rules to video programmers.
Specifically, the Commission asked whether it should amend Sec.
79.1(j)(1) of its rules to require video programmers to file their
certifications on caption quality with the Commission (rather than
making
[[Page 57477]]
such certifications widely available through other means) and whether
it should amend Sec. 79.1(k)(1)(iv) of its rules to make the filing of
certifications with the Commission part of video programmers' Best
Practices. The Commission also sought comment on whether it should
amend Sec. 79.1(g)(6) of its rules to require video programmers to
file certifications with the Commission that they are in compliance
with the Commission's rules for the provision of closed captioning.
24. The Commission concluded that changing the certification
processes to require video programmers to provide certifications to the
Commission of their compliance with the Commission's rules regarding
the provision and quality of closed captions is necessary to
effectively implement the new apportionment of the closed captioning
obligations. To better ensure compliance with the rules and simplify
the certification process, the Commission revises its certification
processes to collapse the certification requirements contained in Sec.
79.1(g)(6), (j)(1), and (k)(1)(iv) of its rules into a single rule
that, with respect to non-exempt programming, makes mandatory the
obligation for each video programmer to submit to the Commission a
certification that its programming (1) is in compliance with the
obligation to provide closed captioning and (2) either complies with
the captioning quality standards or adheres to the Best Practices for
video programmers with respect to captioning quality. In the event that
some or all of the programming in question is exempt under one or more
of the exemptions set forth in the Commission's rules, in lieu of the
above certification, the video programmer must submit a certification
attesting to such exemption and specifying each category of exemption
that is claimed. The Commission now requires video programmers to file
their certifications with the Commission when they first launch and on
an annual basis, on or before July 1 of each year, and to use the
Commission's web form filing system for such submissions.
25. By amending the Commission's rules to make certification as to
the provision and quality of closed captions by video programmers
mandatory, the Commission will hold video programmers accountable for
their certifications, e.g., where a submitted certification is false or
a programmer fails to provide the requisite certifications. A video
programmer's failure to submit a certification or submission of a false
certification will be deemed a violation of the Commission's rules that
is separate from any violations related to the failure to provide
quality captions.
26. The Commission concludes that requiring video programmers to
file their certifications with the Commission, rather than with VPDs
(as currently required), also will create greater efficiencies because
it will create a single repository for all video programmer
certifications, providing greater transparency and ease of reference
for video programmers, consumers and VPDs. Moreover, this approach
eliminates the need to rely on VPDs to obtain certifications from video
programmers, and for VPDs to undertake the task of locating and
collecting such certifications.
27. Because VPDs will remain primarily responsible for the
provision of closed captioning on the non-exempt programming that they
carry, certifications from video programmers will be necessary to
inform VPDs of the extent to which the programming that they carry
contained closed captions upon receipt. VPDs can then rely on these
certifications to prove compliance, so long as they do not know or do
not have reason to know a certification is false and so long as the
VPDs pass through such captions intact to viewers. Requiring video
programmers to provide certifications regarding their compliance with
the closed captioning quality standards or Best Practices will help
bring to their attention their new responsibilities, and thereby help
to ensure quality closed captions. The process of having to prepare and
provide the certification will help alert video programmers of the need
to comply with the captioning quality standards or Best Practices.
28. Compared to the prior certification procedures, the new
certification regime (which imposes direct responsibilities on video
programmers as well as VPDs) will enhance the Commission's ability to
enforce the captioning rules against video programmers and VPDs, and
thus ensure the needs of consumers are better served. First, because
video programmers were not obligated to provide certifications under
the Commission's prior rules (i.e., 47 CFR 79.1(g)(6), (j)(1), and
(k)(1)(iv)), the Commission had limited enforcement ability against
noncompliant video programmers. Second, some VPDs may be unable to
negotiate contractual arrangements obligating video programmers to
provide such certifications, due to disparities in negotiating power.
Finally, because many video programmers already provide certifications
to VPDs under Sec. 79.1(g)(6) and (j)(1) of the Commission's rules,
combining these certifications into a single certification to be filed
with the Commission should not result in any significant additional
burden. Moreover, even if this requirement were to create an added
burden on video programmers who are not already providing
certifications under the Commission's current rules, the rules the
Commission now adopts minimize such burden by only requiring these
certifications to be filed annually, on or before July 1 of each year,
rather than every time there is a change in programming. In addition,
any such burden will be outweighed by the benefits of requiring video
programmers to provide certifications, as described in the preceding
paragraphs.
29. VPD Obligations with Respect to Video Programmer
Certifications. The Closed Captioning Quality Second Further Notice
sought comment on VPDs' obligations pertaining to such certifications,
and, specifically, whether to require each VPD to alert its video
programmers of the requirement to provide certifications to the
Commission, to verify video programmers' compliance with the
certification requirement, and to thereafter report to the Commission
any failure by a video programmer to comply.
30. Because the rules now adopted by the Commission will hold video
programmers directly liable for their failure to provide the required
certifications, it is not necessary to make VPDs responsible for
informing video programmers about the need to provide certifications,
or to require that VPDs check on and report noncompliant video
programmers to the Commission. At the same time, VPDs should be allowed
to rely upon the certifications from video programmers to fulfill their
obligation to ensure the provision of closed captions on the
programming they carry. Accordingly, the Commission will allow a VPD to
demonstrate compliance with its captioning obligations where it relies
on a programmer's certification as to the presence of captions on such
programming or that such programming is exempt from the captioning
requirements, so long as (1) the VPD passes through the closed captions
intact to viewers; and (2) the VPD did not know or did not have reason
to know that such certification was false. However, if a VPD carries
non-exempt programming without captions from a video programmer that
has not provided certification to the Commission, or from a video
programmer that has provided a certification that the VPD knew or had
reason to know was false, the VPD will be liable for failing to have
provided
[[Page 57478]]
closed captions on such programming, even if the lack of captions was
not due to the VPD's failure to pass through closed captions intact.
This will discourage the VPD from ignoring information that should
warrant checking into the veracity of the certification, such as the
VPD finding the absence of captioning on programming, and hold the VPD
accountable for the failure to provide closed captioning on programming
that it knows or has reason to know is not exempt from the Commission's
rules.
31. These new rules will reduce burdens resulting from compliance
with the Commission's captioning quality rules on VPDs. At present,
VPDs must search video programmer Web sites and other locations to find
the video programmers' ``widely available'' certifications. The
Consumer and Governmental Affairs Bureau's (CGB's) recent experience in
verifying the availability of some of these certifications suggest that
in some cases these searches have been difficult and have not yielded
certifications that video programmers had placed on their Web sites.
The new rules will enable VPDs to be able to easily find these
certifications on the Commission's Web site.
32. Complaint Handling. The Commission's decision in this order to
allocate captioning responsibilities between VPDs and video programmers
necessitates the establishment of an orderly process for the handling
of complaints by each covered entity in order to prevent duplication of
efforts, avoid potential confusion about responsibilities, and achieve
overall efficiency to ensure the timely resolution of captioning
complaints. The Commission concludes that a burden-shifting approach is
appropriate for the handling of these complaints.
33. Under the burden-shifting approach, upon receiving a complaint
about the quality of captions, a VPD would have the initial burden of
conducting an investigation into the source of the problem. The VPD
would address the complaint if able to do so, but the burden of
addressing the complaint would shift to the video programmer if the VPD
learned, after its initial investigation, that the problems raised were
not within its control. The Commission believes that this approach
appropriately builds on existing video programmer and VPD practices, by
which VPDs investigate complaints, determine whether their equipment is
causing the problem, and confer with video programmers to identify and
resolve closed captioning problems under the video programmers'
control. This model can also ensure that the entity most able to remedy
the captioning issue will have the responsibility to fix the problem,
and the Commission therefore expects that this approach will expedite
complaint resolution and result in more effective results for viewers
who rely on captions to follow a program's content.
34. The Commission further concludes that it is best to apply the
same burden-shifting approach to all types of captioning complaints--
rather than apply this approach only to complaints on captioning
quality. Employing different processes in the handling of different
types of complaints would require the Commission and covered entities
to try to predict the source of each complaint's underlying issues
before directing the complaint through the appropriate process. This
would be difficult given that some complaints may raise both non-
technical and technical problems, and ascertaining the underlying
causes for such problems often becomes possible only after an
investigation into those causes. As a result, attempts to predict the
underlying problem at the outset might result in the complaint being
referred to the wrong entity and thereby delay its resolution.
Accordingly, a uniform complaint and enforcement model for all closed
captioning issues on television programming will streamline the rules
and clarify all parties' obligations. Under this approach, the video
programmer and the VPD will each be responsible for resolving
complaints that are the result of problems primarily within each
entity's respective control.
35. At present, the Commission's television closed captioning rules
allow consumers to file captioning complaints with either the
Commission or with the VPD responsible for the delivery and exhibition
of video programming at issue, within sixty days after the consumer
experiences a captioning problem. 47 CFR 79.1(g)(1). Because of the
existing relationship that VPDs have with their subscribers, the
approach provides a single point of contact for consumers and allows
utilization of the existing VPD infrastructure for receiving,
processing, and resolving closed captioning complaints. Allowing
consumers to file complaints with either the VPD or the Commission
eliminates the need for consumers to identify the video programmer with
whom consumers generally have no direct relationship. It also
eliminates the need for consumers to figure out the party responsible
for the problem they are experiencing--for example, whether it was a
pass through problem caused by the VPD or a non-technical quality
problem caused by the video programmer. Accordingly, the captioning
complaint process that the Commission adopts will continue to allow
consumers to file closed captioning complaints either with the
Commission or with the VPD. If the complainant chooses to file with the
VPD, but fails to receive a timely response or is not satisfied with
that response, the consumer may subsequently file his or her complaint
with the Commission.
36. Complaints Filed with the Commission--Complaint Content. In the
Closed Captioning Quality Order, the Commission adopted a rule
requiring the following information to be provided in an informal
complaint regarding captioning quality as a prerequisite to the
Commission forwarding such complaint to a VPD: (1) The channel number;
(2) the channel name, network, or call sign; (3) the name of the
multichannel video programming distributor (MVPD), if applicable; (4)
the date and time that the captioning problem occurred; (5) the name of
the program involved; and (6) a detailed description of the problem. 47
CFR 79.1(j)(4). The Commission explained that this information is
necessary to enable a programming entity to investigate and resolve the
complaint. Because the same rationale applies to all closed captioning
complaints, whether or not related to closed captioning quality, the
Commission extends the requirement to provide this information to all
television closed captioning complaints. The Commission directs CGB to
provide assistance to consumers who may experience difficulties
gathering any of this required information. It further clarifies that
all complaints should contain the consumer's identifying information,
including the consumer's name, postal address, and other contact
information, if available, such as telephone number or email address,
along with the consumer's preferred format or method of response to the
complaint (such as letter, facsimile transmission, telephone (voice/
TRS/TTY), email, or some other method that would best accommodate the
consumer).
37. Complaints Filed with the Commission--Complaint Procedures.
Under the burden-shifting approach that the Commission adopts, when the
Commission receives a closed captioning complaint, it will serve the
complaint on the named VPD and the appropriate video programmer
simultaneously. If the Commission cannot determine the appropriate
video
[[Page 57479]]
programmer to serve, it will forward the complaint to the VPD and will
inform the VPD that the Commission has been unable to determine the
appropriate video programmer. Within ten days after the date of such
notification, the VPD must respond to the Commission with the name and
contact information for the appropriate video programmer, after which
the Commission will forward the complaint to the video programmer as
well.
38. After being served with a consumer complaint, the VPD must
conduct an initial investigation to determine whether the matters
raised in the complaint are primarily within its control. Concurrently,
the video programmer may voluntarily begin its own inquiry into the
source of the captioning problem, but the video programmer is not
required to take any action at that time. Forwarding the complaint to
both the VPD and video programmer at the outset will help facilitate
the swift resolution of complaints because it will allow the video
programmer, if it so chooses, to take its own steps toward a resolution
while the VPD investigates matters primarily under its control.
39. VPDs will be given flexibility in conducting their initial
investigations, in order to allow for differences in equipment and
processes among VPDs; however, VPDs will be required to exercise due
diligence in their efforts to identify the source of the issue and
resolve all matters primarily within their control before shifting
responsibility for addressing these matters to their video programmers.
To meet this standard and to ensure a thorough investigation into
closed captioning problems raised in complaints, the Commission will
require VPDs, at a minimum, to take the following actions as part of
their investigations: (1) Program Stream Check: Capture program streams
of the programming network identified in the complaint and check the
streams for any caption-related impairments that may have caused the
reported problem and to prevent ongoing problems; (2) Processing
Equipment Check: If there is an issue with the program stream, and
there is not prior knowledge as to where the problem originated, check
post-processing equipment at the relevant headend or other video
distribution facility to determine whether the issue was introduced at
the VPD level or was present in the stream when received by the VPD
from the video programmer; (3) Consumer Premises Check: If the VPD's
investigation indicates that the problem may lie with the consumer's
customer premises equipment, including the set-top box, check the end
user equipment, either remotely, or, if necessary, at the consumer's
premises, to ensure there are no issues that might interfere with the
pass through, rendering or display of closed captioning. The Commission
will defer to the VPD's good faith judgment about whether there is an
indication that the problem might lie with the consumer's customer
premises equipment and whether it is necessary to go to the consumer's
premises to check the equipment. However, in the event of a dispute or
an enforcement proceeding, the VPD will have the burden of proving that
it conducted a thorough investigation into the closed captioning
problems raised in the complaint. Requiring VPDs to take these steps
will ensure that a full and effective investigation occurs prior to
shifting the complaint handling responsibilities to video programmers.
This also is more likely to result in a speedier and efficient
resolution of the problems raised in complaints, thereby helping to
fulfill Congress's goal to make television programming fully accessible
to people who are deaf and hard of hearing.
40. If the VPD's investigation reveals that the closed captioning
problem is within the control of the VPD, the VPD must correct the
problem and provide a written response to the Commission, the video
programmer and the consumer acknowledging such responsibility and
describing the steps taken to correct the problem. A complaint must be
resolved, and a written response sent, within 30 days after the date
the Commission forwards the complaint to the VPD. As required by the
Commission's current rules, the VPD's response must provide the
Commission with sufficient evidence, including records and
documentation, to demonstrate that the VPD is in compliance with the
Commission's closed captioning rules. 47 CFR 79.1(g)(5). In this case,
no burden-shifting to the video programmer will occur, and the VPD will
retain liability for the problem.
41. If the VPD's investigation reveals that the closed captioning
problems raised in the complaint are not primarily within the VPD's
control and appear to have been present in the program stream when
received by the VPD, the burden for addressing the complaint will shift
to the video programmer. To shift the burden, the VPD must certify to
the Commission, the video programmer, and the consumer that it has
exercised due diligence to identify and resolve the source of the
captioning problem by conducting an investigation on the closed
captioning complaint in accordance with the Commission's rules, and
that the problems raised in the complaint are not within its control.
In addition, if at any time during the complaint resolution process,
the VPD's investigation reveals that the closed captioning problems
raised in the complaint were the result of causes not within the VPD's
control and also do not appear to be within the video programmer's
control, such as a faulty third-party DVR, television, or other third-
party device, the VPD must certify to the Commission, the video
programmer, and the consumer that it has exercised due diligence to
identify and resolve the source of the captioning problem by conducting
an investigation on the closed captioning complaint in accordance with
the Commission's rules, and that the problems raised in the complaint
were caused by a third party device or other causes that appear not to
be within the control of either the VPD or the video programmer. The
applicable certification may be provided at any time during the VPD's
investigation, but no later than 30 days after the date the Commission
forwarded the complaint. The requirement for such certification is
intended to alleviate concerns that VPDs might perform cursory
investigations or inappropriately shift the burden of resolving
complaints to video programmers in order to avoid fulfilling their
captioning obligations. A VPD that fails to provide a certification or
provides an untruthful certification may be subject to immediate
enforcement action without first being subject to the compliance
ladder. In addition, any video programmer may report to the Commission
when, after receiving a certification from a VPD, the video programmer
determines that the VPD did not follow all of the steps required by the
Commission's rules for investigating a complaint or that the problem
described in a complaint is in fact within the VPD's control.
42. After the responsibility for resolving the complaint shifts to
the video programmer, the video programmer must investigate and attempt
to resolve the closed captioning problem to the extent that doing so is
within the video programmer's control. After the responsibility for
resolving the complaint shifts to the video programmer, the video
programmer will have the burden of proving that the video programmer
conducted a thorough investigation into the closed captioning problems
raised in the complaint. In addition, while, at this point in the
complaint resolution process, the video programmer will take on the
primary responsibility for
[[Page 57480]]
resolving the closed captioning problem, the Commission will require
the VPD to continue to assist the video programmer with resolving the
complaint, as needed. Requiring the VPD to remain involved throughout
the complaint process will foster collaboration between VPDs and video
programmers, and increase the likelihood that the complaint will be
swiftly resolved to the satisfaction of the consumer and the
Commission.
43. Within 30 days after the date of certification from the VPD,
the video programmer must provide a written response to the complaint
that either describes the steps taken to rectify the problem or
certifies that its investigation revealed that it has exercised due
diligence to identify and resolve the source of the captioning problem
by conducting an investigation on the closed captioning complaint in
accordance with the Commission's rules, and that the problems raised in
the complaint are not within its control. Such response must be
submitted to the Commission, the VPD, and the consumer, and must
provide the Commission with sufficient records and documentation to
demonstrate that the video programmer is in compliance with the
Commission's rules. See 47 CFR 79.1(g)(5). Requiring video programmers
to respond within 30 days will ensure that video programmers promptly
investigate complaints. If the video programmer reports that it has
rectified the problem, this will enable the VPD to conduct additional
checks of the program stream if needed to confirm the complaint's
resolution, and keep the VPD, the Commission, and the consumer informed
so the VPD can know when to close the complaint file.
44. If the video programmer certifies that the program stream
contained fully functioning captioning at the time the program stream
was handed off to the VPD, and the VPD has not determined that the
problem resulted from a third party source, the VPD and the video
programmer must then work together to determine the source of the
captioning problem. Once the source of the problem is determined, the
VPD and video programmer shall each be required to correct those
aspects of the problem within its control. The VPD is then required,
after consultation with the video programmer, to report to the
Commission and the complainant the steps taken to fix the captioning
problem. The VPD must submit such information in writing within 30 days
after the date that the video programmer certified that the cause of
the problem was not within the video programmer's control. Further, the
Commission may, during its review of a complaint or the pendency of an
enforcement proceeding, request the VPD and the video programmer to
provide sufficient documentation to demonstrate compliance with the
Commission's rules. Accordingly, VPDs will remain responsible for
resolving problems that are within their control, which will help
prevent the wasteful duplication of efforts to resolve complaints.
45. Complaints Filed with the VPD. Document FCC 16-17 preserves the
consumers' long-standing option of filing their captioning complaints
directly with their VPDs. See 47 CFR 79.1(g)(1) and (4). When a VPD
receives a complaint from a consumer, the VPD should investigate the
complaint with the same due diligence and in the same manner as
required for complaints initially filed with the Commission and later
served on VPDs, with a goal of initially determining whether the matter
raised in the complaint is within the control of the VPD. If, after
conducting its initial investigation, the VPD determines that the issue
of the complaint is within its control, it shall take the necessary
measures to resolve it, and notify the consumer of such resolution
within 30 days after the date of the complaint. If (1) the consumer
does not receive a response to the complaint within the 30-day period,
or (2) the consumer is not satisfied with the VPD's response, the
consumer may file the complaint with the Commission within sixty days
after the time allotted for the VPD to respond to the consumer. The
Commission believes that VPDs will have sufficient incentives to
thoroughly investigate and promptly resolve the complaints that they
receive directly from consumers, to reduce the need for such consumers
to re-file their complaints with the Commission.
46. In the event that the VPD determines that the issues raised in
the complaint are not within its responsibilities, Sec. 79.1(g)(3) of
the Commission's rules as currently written requires the VPD to forward
the complaint to the responsible programming entity. 47 CFR 79.1(g)(3).
The Commission resolves a conflict between Sec. 79.1(g)(3) of its
rules and statutory provisions prohibiting the VPD from disclosing a
consumer's personally identifiable information (PII) without the
consumer's consent. See 47 CFR 79.1 (g)(3), 47 U.S.C. 551(c)(1), and 47
U.S.C. 338(i)(4)(A). The Commission will require that if a VPD
determines that an issue raised in the complaint is not primarily
within the VPD's control, the VPD, within 30 days after the date of the
complaint, must either forward the complaint to the video programmer or
other responsible entity, such as another VPD, with the consumer's
PII--including the consumer's name, contact information, and other
identifying information--redacted, or provide the video programmer or
other responsible entity with information contained in the complaint
sufficient to achieve its investigation and resolution. Such
information should include the same type of information necessary for a
complaint to be forwarded to a VPD when it is submitted to the
Commission--i.e., (1) the channel number; (2) the channel name,
network, or call sign; (3) the name of the multichannel video
programming distributor (MVPD), if applicable; (4) the date and time
that the captioning problem occurred; (5) the name of the program
involved; and (6) a detailed description of the problem--to the extent
the VPD is in possession of such information. In addition, the VPD must
provide the video programmer or other responsible entity with an
explanation of why the cause of the captioning problem is not primarily
within the control of the VPD. The Commission expects that requiring a
VPD to forward the complaint with the consumer's PII redacted or to
forward a description of the complaint's material details will resolve
the outstanding regulatory conflict without the need for back-and-forth
communications between the VPD and the consumer that otherwise might
have been needed for resolution of the complaint.
47. When forwarding the complaint or a description of the
complaint, the VPD must also assign a unique identifying number
(``complaint ID number'') to the complaint, and transmit that number to
the video programmer or other responsible entity along with the
complaint or a description of the complaint. The Commission further
requires the VPD to inform the consumer that the complaint has been
forwarded, along with the complaint ID number and the name and contact
information of the video programmer or other responsible entity to whom
the complaint was forwarded, at the same time that the complaint is
forwarded to the video programmer or other responsible entity.
Providing information to consumers about the status of their complaints
will enhance the transparency of the complaint resolution process, and
avoid the situation in which a VPD responds to a complaint by shifting
blame for a captioning problem to another entity while refusing to
identify such entity publicly. Additionally, providing consumers with
both the complaint ID
[[Page 57481]]
number and the video programmer's or other responsible entity's contact
information will enable the consumer to contact a video programmer or
other responsible entity directly and inquire about the status of his
or her complaint if so desired. The VPD must also explain to the
consumer that if the consumer wishes to follow up with the video
programmer, the consumer will need to provide the video programmer with
the name of the VPD as well as the complaint identification number.
48. Once a video programmer or other responsible entity receives a
complaint and notification from a VPD that the issue described in the
complaint is outside the VPD's control, the burden will shift to the
video programmer or other responsible entity to investigate and resolve
the complaint. However, as for complaints initially filed with the
Commission, the Commission will require the VPD to continue to assist
the video programmer or other responsible entity in resolving the
complaint as needed and to conduct additional checks of the program
stream to confirm resolution of the problem, upon notification from the
video programmer or other responsible entity that the problem has been
resolved.
49. The video programmer or other responsible entity must respond
in writing to the VPD within 30 days after the forwarding date of the
complaint from the VPD, in a form that can be forwarded to the
consumer. The VPD must then forward this response to the consumer
within ten days after the date of the video programmer's or other
responsible entity's response. If the video programmer or other
responsible entity fails to respond to the VPD within 30 days after the
forwarding date of the complaint from the VPD, the VPD must inform the
consumer of the video programmer's or other responsible entity's
failure to respond within 40 days after that forwarding date.
50. If the video programmer or other responsible entity fails to
respond to the VPD within the time allotted, or if the VPD fails to
forward the video programmer's or other responsible entity's response
to the consumer, or if the consumer is not satisfied with that
response, the consumer may file the complaint with the Commission
within sixty days after the time allotted for the VPD to either forward
the video programmer's or other responsible entity's response to the
consumer or inform the consumer of the video programmer's or other
responsible entity's failure to respond. Upon receipt of the complaint
from the consumer, the Commission will forward such complaints to the
appropriate VPD and video programmer, and the VPD and video programmer
shall handle such complaints, as governed by the rules applicable to
complaints filed with the Commission.
51. The Commission requires the VPD to remain involved in the
resolution of complaints that are not within the VPDs' control because
the VPD is the entity with which a complainant has a direct commercial
relationship, and thus the VPD should remain the primary point of
contact for the complainant even when the complaint is forwarded to the
video programmer. Unlike video programmers, VPDs are the last link in
the distribution chain and either receive direct payment from consumers
for services rendered or provide programming over the public airwaves.
Having VPDs forward responses from video programmers or other
responsible entities to consumers will create a seamless process for
consumers, allowing them to receive a response from the business entity
with which they are familiar, and with which they initially filed their
complaint. Also, as a practical matter, because the Commission requires
the VPD to redact the consumer's PII, including the consumer's name and
address, when forwarding a complaint to a video programmer or other
responsible entity, the video programmer or other responsible entity
will not have the necessary contact information to respond directly to
the consumer. Finally, the Commission is imposing timelines on (1) the
forwarding of complaints by VPDs, (2) the response by the video
programmer or other responsible entity to the VPD, and (3) the
forwarding of the response by the VPD to the consumer. The Commission
therefore concludes that assigning to the VPD the responsibility of
reporting the resolution to the consumer should not delay the provision
of such notification.
52. In the event that the video programmer, other responsible
entity, or VPD fails to meet any deadlines for responses to the
consumer's complaint or if such responses do not satisfy the consumer,
the consumer may file the complaint with the Commission within 60 days
after the time allotted either for the VPD to respond to the consumer
or for the VPD to forward the video programmer's or other responsible
entity's response to the consumer, whichever is applicable. If a
consumer re-files the complaint with the Commission after initially
filing the complaint with the VPD, the Commission will forward the
complaint to the appropriate VPD and the video programmer, and each
such entity must follow the complaint handling processes for complaints
filed with the Commission as outlined above.
53. Compliance Ladder. In the Closed Captioning Quality Order, the
Commission adopted a ``compliance ladder'' that allows broadcast
stations to take corrective actions to demonstrate compliance with new
enhanced electronic newsroom technique (ENT) procedures prior to being
subject to enforcement action. The Commission reasoned that this
approach would provide these entities with ``ample opportunities to
improve their captioning, especially if their current practices are
deficient.'' Closed Captioning Quality Order. In the Closed Captioning
Quality Further Notice, the Commission sought comment on whether to
similarly allow VPDs and video programmers to assert a safe harbor to
demonstrate compliance through corrective actions prior to being
subject to enforcement action, in the event certain obligations for
compliance with the captioning quality standards are placed on each of
these entities.
54. In document FCC 16-17, the Commission adopts a compliance
ladder for the captioning quality rules, including rules addressing
quality issues related to the pass-through of captions, which is
similar to the ladder adopted for the enhanced ENT rules. It will not
apply this compliance ladder to other captioning requirements,
including the provision of captioning, equipment monitoring and
maintenance, registration and certification. Rather, the Commission
concludes that its current practice of addressing the latter types of
concerns through the informal complaint process, while retaining the
option to refer such matters for enforcement action as appropriate, has
been effective in achieving resolution of these concerns.
55. The Commission will continue to entertain individual informal
complaints of noncompliance with the Commission's closed captioning
quality rules in accordance with the complaint procedures outlined in
document FCC 16-17. However, for captioning quality complaints received
by the Commission that indicate a pattern or trend of noncompliance
with its captioning quality rules, the Commission adopts a compliance
ladder that is similar to that used for addressing noncompliance with
its rules governing the enhanced ENT procedures. By focusing on
patterns or trends rather than individual reports of closed captioning
quality problems, use of this compliance mechanism will afford VPDs and
video programmers opportunities to correct such problems without
Commission enforcement action. In this manner, a
[[Page 57482]]
compliance ladder will enable parties to more quickly address and
remedy problems without worrying that in so doing they may be subject
to fines or forfeitures.
56. Accordingly, the Commission adopts the following compliance
ladder to be applied when consumer complaints received by the
Commission indicate a pattern or trend of noncompliance with the
Commission's rules governing the quality of television closed
captioning on the part of either the VPD or the video programmer. The
Commission will apply a broad definition of ``pattern or trend'' when
determining whether the compliance ladder is triggered. For example, a
``pattern or trend'' may be found when a particular entity is subject
to a series of complaints over time about caption quality problems or
failures or where a particular entity is subject to a large volume of
complaints that suggests widespread quality problems or failures, even
if they occur over a relatively short span of time. A pattern or trend
of consumer complaints, even if about different programs or different
types of captioning failures by the same entity, may reflect a system
breakdown in that entity's processes sufficient to trigger this
approach. In other words, the Commission may discern a pattern or trend
in a series of complaints about the same or similar problems or in a
multiplicity of complaints about unrelated problems.
If the Commission notifies a VPD or video programmer that
the Commission has identified a pattern or trend of possible
noncompliance with the Commission's rules governing the quality of
closed captioning by the VPD or video programmer, the VPD or video
programmer shall respond to the Commission within 30 days after the
date of such notice regarding such possible noncompliance, describing
corrective measures taken, including those measures the VPD or video
programmer may have undertaken in response to informal complaints and
inquiries from viewers. Multiple complaints about a single incident are
not considered a pattern or trend.
If, after the date for a VPD or video programmer to
respond to the above notification, the Commission subsequently notifies
the VPD or video programmer that there is further evidence indicating a
pattern or trend of noncompliance with the Commission's rules governing
the quality of closed captioning, the VPD or video programmer shall
submit to the Commission, within 30 days after the date of such
subsequent notification, a written action plan describing additional
measures it will take to bring the VPD's or video programmer's closed
captioning performance into compliance with the Commission's
regulations. For example, action plans involve the identification and
implementation of longer term measures and may include, but are not
limited to, a commitment to train the VPD's or video programmer's
personnel, the use of improved equipment, more frequent equipment
checks, improved monitoring efforts, and changes in closed captioning
vendors or closed captioning procedures. In addition, the VPD or video
programmer shall be required to conduct spot checks of its closed
captioning performance and report to CGB on the results of such action
plan and spot checks 180 days after submission of such action plan.
If, after the date for submission of the report on the
results of an action plan, the Commission finds continued evidence of a
pattern or trend of noncompliance with the Commission's rules governing
the quality of closed captioning, the Commission will then consider,
through its Enforcement Bureau, appropriate enforcement action,
including admonishments, forfeitures, and other corrective actions as
necessary.
57. The Commission believes that this three-step ladder will
provide VPDs and video programmers with the necessary incentives to
take corrective action on their own. In particular, the Commission
believes that the first step of the compliance ladder, once a pattern
or trend of noncompliance is identified, should afford an opportunity
for VPDs and video programmers to rectify captioning quality violations
on their own and quickly, without the regulatory involvement that would
be associated with the second step's required action plan or the third
step's enforcement action. However, if the Commission finds that this
approach is not effective in ensuring widespread compliance with its
television closed captioning quality rules or fulfilling its goal of
ensuring full access to television programming as required by section
713(b) of the Act, it may revisit this issue to the extent necessary.
58. The Commission emphasizes that the compliance ladder will not
relieve VPDs or video programmers of any of their obligations under the
television closed captioning rules. However, to address this concern,
the Commission adopts an additional rule allowing CGB to refer a
captioning quality rule violation directly to the Enforcement Bureau
for enforcement action, or for the Enforcement Bureau to pursue an
enforcement action on its own, without first going through the
compliance ladder, for a systemic closed captioning quality problem or
an intentional and deliberate violation of the Commission's closed
captioning quality standards. In making such a determination, CGB or
the Enforcement Bureau shall take into consideration all relevant
information regarding the nature of the violation or violations and the
VPD or video programmer's efforts to correct them.
59. VPD Registration. In the 2008 Closed Captioning Decision, the
Commission amended its rules to add Sec. 79.1(i)(3), which requires
VPDs to submit contact information for the receipt and handling of both
immediate requests to resolve captioning concerns by consumers while
they are watching television and closed captioning complaints that
consumers file after experiencing closed captioning issues. The 2008
Order explained that VPDs could satisfy this requirement by either
filing a hard copy or sending an email. 2008 Closed Captioning
Decision. In 2009, the Commission added an option to allow VPDs to file
their contact information directly online via a web form located on the
Commission's Web site, in a database called the ``VPD Registry.''
Closed Captioning of Video Programming, Order, published at 75 FR 7368,
February 19, 2010. Recognizing in the Closed Captioning Quality Further
Notice that such electronic filings into the VPD Registry would offer
the most efficient and accurate means of collecting the requisite
information, the Commission sought comment on a proposal to require all
contact information required by Sec. 79.1(i)(1) and (2) of its rules
be submitted directly to the VPD Registry through the web form method.
Closed Captioning Quality Further Notice.
60. The Commission finds that requiring VPDs to submit their
contact information into the VPD Registry through the web form would
also be consistent with the 2011 Electronic Filing Report and Order,
which adopted a policy to require the use of electronic filing whenever
technically feasible. See Amendment of Certain of the Commission's Part
1 Rules of Practice and Procedure and Part 0 Rules of Commission
Organization, Report and Order, published at 76 FR 24383, May 2, 2011.
In light of such technical feasibility, as well as the accuracy and
efficiency of this electronic filing method, the Commission amends
Sec. 79.1(i)(3) of its rules to require VPDs to submit their contact
information required under Sec. 79.1(i)(1) and (2) of its rules
directly into the Commission's database through the web form method and
to remove as options the alternate
[[Page 57483]]
methods of submitting this information to the Commission.
61. Video Programmer Registration. In document FCC 16-17, the
Commission requires that video programmers file their contact
information through a web form located on the Commission's Web site for
the handling of written closed captioning complaints by the Commission
and by VPDs, and as required for VPDs, to update such information
within ten business days of any changes. The video programmer contact
information shall include the name of the person with primary
responsibility for captioning issues and who can ensure compliance with
the captioning rules, and the person's title or office, telephone
number, fax number (if there is one), postal mailing address, and email
address. The Commission also directs video programmers to submit their
required compliance certifications through a web form located on the
Commission's Web site, so that such certifications will be readily
available to consumers, VPDs, and the Commission. The Commission
directs CGB to implement the development of one or more web forms (or
to expand the existing VPD Registry) for the filing of video programmer
contact information and certifications and to provide guidance to
programming entities and the general public on the appropriate use of
video programmer contact information found on the Commission's Web
site. The Commission also directs CGB to issue a Public Notice to
provide such guidance as well as procedures and deadlines for video
programmers to file contact information and certifications once the
rules go into effect and the Commission's Web site is ready to receive
such contact information and certifications.
62. The Commission concludes that it is important for video
programmers to register their contact information with the Commission
so that it is readily available to the Commission and to VPDs for the
expedient and effective handling and resolution of complaints. In
particular, for complaints filed directly with a VPD, under the new
complaint handling rules, the VPD must have ready access to video
programmer contact information so that the VPD can forward the
complaint information to the correct video programmer when the VPD
ascertains that the source of problem raised in a complaint originated
with that programmer. If this information is not available to VPDs, and
especially smaller VPDs, such entities may encounter challenges and
delays in their efforts to resolve complaints. The filing of video
programmer contact information will eliminate such challenges by
enabling VPDs to obtain current contact information from a centralized
location.
63. Additionally, requiring video programmers to file their contact
information with the Commission will help to expedite the resolution of
complaints filed directly with the Commission. Because the complaint
handling rules that the Commission adopts in this Order require the
Commission to forward written complaints to both VPDs and their video
programmers, the Commission needs access to video programmer contact
information. The Commission also finds that the public availability of
video programmers' contact information will increase transparency, aid
the complaint process, and thereby facilitate high-quality captioning.
For example, the complaint handling rules adopted in document FCC 16-17
require each VPD to inform a consumer when it has forwarded his or her
complaint to a video programmer for resolution. If the consumer wishes
to contact the video programmer directly regarding his or her complaint
after it has been forwarded by the VPD, the Commission's Web site will
provide the consumer with the necessary video programmer's contact
information to do so.
64. The Commission emphasizes that its actions taken herein are not
intended to remove VPDs from the process of resolving consumer
complaints. VPDs may be in the best position to take primary
responsibility for complaint resolution given the more direct
relationship they have with viewers and subscribers, the opportunity
for consumers to utilize existing VPD processes for receiving,
processing, and resolving closed captioning complaints, and the ability
of VPDs to provide a single point of contact for consumers. The
Commission's new requirement for video programmers to file contact
information with the Commission is intended primarily for use by VPDs
and Commission staff for complaint resolution and enforcement purposes,
and to facilitate transparency for the public when VPDs forward
complaints to programmers for resolution. The Commission encourages
consumers to continue filing complaints about captioning with the
Commission or VPDs in the interest of achieving faster resolution of
their captioning concerns.
65. Finally, the Commission does not think it is necessary, at this
time, to require video programmers to make their contact information
available on their Web sites or through other means in addition to
filing this information in the Commission's database. The Commission
finds that its requirement for video programmers to file contact
information with the Commission is sufficient to serve its regulatory
purposes of making such information available for use primarily by VPDs
and Commission staff for complaint resolution and enforcement purposes,
and to facilitate transparency for the public when VPDs forward
complaints to programmers for resolution. If the Commission finds that
its objectives are not effectively achieved by the publication of this
information in the Commission's database, it may revisit this decision.
66. Nonsubstantive Rule Amendments. More than 18 years have passed
since the Commission adopted its regulations governing the closed
captioning obligations. For purposes of clarity, the Commission makes
two nonsubstantive editorial changes to the rules, which include
eliminating certain outdated rule sections and updating the rule
nomenclature. First, given that all benchmarks for the phase-in of the
closed captioning requirements have passed, the Commission amends 47
CFR 79.1(b)(1) through (4) to eliminate these outdated benchmarks, so
that only the fully phased-in captioning requirements remain in the
rule. Second, the Commission amends 47 CFR 79.1(e)(9) to reflect the
terminology used in this proceeding by making the nonsubstantive
nomenclature change that VPDs ``ensure the provision of closed
captioning'' rather than ``provide closed captioning.''
Final Regulatory Flexibility Analysis
67. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), Initial Regulatory Flexibility Analyses (IRFAs) were
incorporated in the FNPRMs contained in the Closed Captioning Quality
Order and Further Notice and the Closed Captioning Quality Second
Further Notice (Further Notices). The Commission sought written public
comment on the proposals in the two Further Notices, including comment
on the two IRFAs. No comments were received on the IRFAs incorporated
in the two Further Notices. The Final Regulatory Flexibility Analysis
(FRFA) conforms to the RFA.
68. Need for, and Objectives of, the Report and Order. The purpose
of the proceeding is to apportion the responsibilities of VPDs and
video programmers with respect to the provision and quality of closed
captions on television programming to ensure that people who are deaf
and hard of hearing have full access to such
[[Page 57484]]
programming. The Second Report and Order follows the Commission's
adoption in 2014 of captioning quality standards for programming shown
on television and makes certain modifications to the closed captioning
rules after consideration of the comments and reply comments received
in response to the Further Notices.
69. In document FCC 16-17, the Commission amends its rules to
assign responsibility for the quality of closed captioning to VPDs and
video programmers, with each entity responsible for closed captioning
issues that are primarily within its control. Additionally, the
Commission maintains current rules that place primary responsibility
for the provision of closed captioning on television programming on
VPDs, but amends them to hold video programmers responsible for a lack
of captions where they have failed to provide captions on non-exempt
programs. Also, the Commission adopts rules to: (1) Require each video
programmer to file with the Commission a certification that (a) the
video programmer (i) is in compliance with the rules requiring the
inclusion of closed captions, and (ii) either is in compliance with the
captioning quality standards or has adopted and is following related
Best Practices; or (b) is exempt from the captioning obligations; if
the latter certification is submitted, the video programmer must
specify the specific exemptions claimed; (2) allow each VPD to satisfy
its obligations regarding the provision of closed captioning by
ensuring that each video programmer whose programming it carries has
certified its compliance with the Commission's closed captioning rules;
(3) revise the procedures for receiving, serving, and addressing
television closed captioning complaints in accordance with a burden-
shifting compliance model; (4) establish a compliance ladder for the
Commission's television closed captioning requirements that provides
VPDs and video programmers with opportunities to take corrective action
prior to enforcement action by the Commission; (5) require that each
VPD use the Commission's web form when providing contact information to
the VPD registry; and (6) require each video programmer to register
with the Commission its contact information for the receipt and
handling of written closed captioning complaints, and to use the
Commission's web form for this purpose.
70. Summary of Significant Issues Raised by Public Comments in
Response to the IRFA. No comments were filed in response to the two
IRFAs.
71. Types of Small Entities Impacted:
Cable Television Distribution Services
Direct Broadcast Satellite (DBS) Service
Wireless Cable Systems--Broadband Radio Service and
Educational Broadband Service
Open Video Services
Television Broadcasting
Incumbent Local Exchange Carriers (ILECs)
Competitive Local Exchange Carriers (CLECs), Competitive
Access Providers (CAPs), Shared-Tenant Service Providers, and Other
Local Service Providers
Electric Power Distribution Companies
Cable and Other Subscription Programming
Motion Picture and Video Production
Closed Captioning Services--Teleproduction and Other
Postproduction Services; and Court Reporting and Stenotype Services
72. Description of Projected Reporting, Record Keeping and other
Compliance Requirements.
Requires each video programmer to file with the Commission
a certification that: (a) The video programmer is in compliance with
the rules requiring the inclusion of closed captions, and either is in
compliance with the captioning quality standards or has adopted and is
following related Best Practices; or (b) is exempt from the captioning
obligations; if the latter certification is submitted, the video
programmer must specify the specific exemptions claimed;
Revises the procedures for receiving, serving, and
addressing television closed captioning complaints in accordance with a
burden-shifting compliance model;
Establishes a compliance ladder for certain of the
Commission's television closed captioning requirements that provides
VPDs and video programmers with opportunities to take corrective action
prior to enforcement action by the Commission;
Requires that each VPD use the Commission's web form when
providing contact information to the VPD registry; and
Requires each video programmer to register with the
Commission its contact information for the receipt and handling of
written closed captioning complaints, and to use the Commission's web
form for this purpose.
73. Although document FCC 16-17 modifies reporting and
recordkeeping requirements with respect to video programmer
certifications, it will impose no new or additional requirements in
this regard because the new rules will require video programmers to
file certifications with the Commission rather than making them widely
available as required under the current rules.
74. Document FCC 16-17 modifies the complaint process by adopting a
burden-shifting compliance model, which is consistent with the newly
adopted assignment of responsibilities to VPDs and video programmers.
This model ensures that the party most able to remedy the captioning
issue will have the responsibility to fix the problem. This will
expedite complaint resolution and result in more effective results.
75. Steps Taken To Minimize Significant Impact on Small Entities,
and Significant Alternatives Considered. The Commission believes that
it has minimized the effect on small entities while making television
programming more accessible to persons who are deaf and hard of
hearing. The Commission does not establish different compliance or
reporting requirements or timetables with respect to small entities
because the importance of ensuring that video programming is accessible
to people who are deaf and hard of hearing outweighs the small burdens
associated with the new or different regulatory requirements adopted in
document FCC 16-17. The Commission already has in place twelve
categorical exemptions from its closed captioning requirements,
including exemptions intended to benefit small entities, and any
entity, including a small entity, may file a request for exemption
based upon economic burden. In addition, the Commission's captioning
rules generally use performance rather than design standards, and the
Commission will publish a compliance guide to explain the new rules to
small businesses.
76. The new rules assign responsibilities between VPDs and video
programmers in a fair and equitable manner. Although assigning some
direct responsibility for the provision and quality of closed
captioning to video programmers imposes some new regulatory
requirements on small entities that are video programmers, it will
relieve burdens on small entities that are VPDs, because the Commission
will be able to take direct compliance and enforcement action against
video programmers rather than indirect action through VPDs.
77. The requirement for video programmers to file certifications
with the Commission regarding compliance with the Commission's rules on
the provisioning and quality of closed captioning imposes different
reporting and recordkeeping obligations than currently required of
video programmers, including small entities.
[[Page 57485]]
However, the new rules do not impose additional burdens, because video
programmers are required under the existing rules to provide
certifications to VPDs and to make such certifications widely available
under the Commission's rules. The new rules may ease the burden on
video programmers, because video programmers will know to go directly
to the Commission's Web site to provide certification and will not need
to determine how to make such certification widely available. In
addition, the new rules will ease the burden on VPDs, including small
entities, and consumers by having all certifications in one easy to
find place.
78. The revised procedures for receiving, serving, and addressing
closed captioning complaints in accordance with a burden-shifting
compliance model imposes different procedural requirements on VPDs,
including small entities, and new procedural requirements on video
programmers, including small entities. Because the burden-shifting
model calls for VPDs and video programmers to each be responsible for
closed captioning issues that are within their respective control
instead of placing all responsibility on VPDs, the model will ease the
burden on VPDs, including small entities, who will be able to shift the
burden to video programmers when, after investigation, the VPD
determines that the cause of the captioning problem was within the
control of the video programmer. This approach will also allow the
Commission to more directly and more easily address consumer
complaints, thereby benefitting consumers.
79. The establishment of a compliance ladder for the Commission's
closed captioning quality requirements, a process that provides VPDs
and video programmers, including small entities, with opportunities to
take corrective action prior to enforcement action by the Commission
for certain captioning violations, will ease the burden on VPDs and
video programmers, including small entities, because use of the
compliance ladder will be more informal and less time-consuming than a
formal enforcement proceeding.
80. The requirement that all contact information submitted by VPDs
to the Commission for the VPD registry must be submitted using the
Commission's web form system does not subject VPDs, including small
entities, to additional reporting and recordkeeping requirements,
because VPDs are already required to submit their contact information
to the Commission. However, VPDs, including small entities, may be
required to alter their reporting and recordkeeping associated with
such submissions in order to comply with the rule. The Commission
considers the cost for VPDs to transition to a mandatory web form
method of filing to be minimal as compared with the ease and accuracy
of filing and the benefits to the public derived from a mandatory web
form system.
81. The requirement for video programmers to register and file
contact information with the Commission imposes new reporting and
recordkeeping obligations on video programmers, including small
entities. However, the new requirement takes into consideration the
impact on small entities. The filing of contact information is a simple
task that should take no more than a few minutes. In addition, such
requirements may benefit other entities, such as VPDs, including small
entities, and consumers, who will be able to search the registration
information for contact information.
82. Federal Rules Which Duplicate, Overlap, or Conflict With, the
Commission's Proposals. None.
Congressional Review Act
83. The Commission sent a copy of document FCC 16-17 in a report to
Congress and the Governmental Accountability Office pursuant to the
Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
Ordering Clauses
Pursuant to the authority contained in sections 4(i), 303(r) and
713 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
301(r) and 613, document FCC 16-17 is ADOPTED and the Commission's
rules are AMENDED.
The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, SHALL SEND a copy of document FCC 16-17,
including the Final Regulatory Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 79
Individuals with disabilities, Reporting and recordkeeping
requirements, Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 79 as follows:
PART 79--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, 554a, 613, 617.
0
2. Amend Sec. 79.1 as follows:
0
a. Redesignate paragraph (a)(12) as paragraph (a)(13);
0
b. Add a new paragraph (a)(12);
0
c. Revise paragraphs (b), (c)(1), (e)(5), (e)(6), (e)(9), (g), and (i);
0
d. Remove and reserve paragraph (j)(1);
0
e. Revise paragraph (j)(3) introductory text;
0
f. Remove paragraph (j)(4);
0
g. Revise paragraph (k)(1)(iv);
0
h. Add and reserve paragraph (l); and
0
i. Add paragraph (m).
The additions and revisions read as follows:
Sec. 79.1 Closed captioning of televised video programming.
(a) * * *
(12) Video programming owner. Any person or entity that either:
(i) Licenses video programming to a video programming distributor
or provider that is intended for distribution to residential
households; or
(ii) Acts as the video programming distributor or provider and also
possesses the right to license linear video programming to a video
programming distributor or provider that is intended for distribution
to residential households.
* * * * *
(b) Requirements for closed captioning of video programming--(1)
Requirements for new programming. (i) Video programming distributors
must ensure that 100% of new, nonexempt English language and Spanish
language video programming that is being distributed and exhibited on
each channel during each calendar quarter is closed captioned.
(ii) Video programmers must provide closed captioning for 100% of
new, nonexempt English language and Spanish language video programming
that is being distributed and exhibited on each channel during each
calendar quarter.
(2) Requirements for pre-rule programming. (i) Video programming
distributors must ensure that 75% of pre-rule, nonexempt English
language and Spanish language video programming that is being
distributed and exhibited on each channel during each calendar quarter
is closed captioned.
[[Page 57486]]
(ii) Video programmers must provide closed captioning for 75% of
pre-rule, nonexempt English language and Spanish video programming that
is being distributed and exhibited on each channel during each calendar
quarter.
(3) Video programming distributors shall continue to provide
captioned video programming at substantially the same level as the
average level of captioning that they provided during the first six (6)
months of 1997 even if that amount of captioning exceeds the
requirements otherwise set forth in this section.
(c) * * *
(1) All video programming distributors shall deliver all
programming received from the video programmer containing closed
captioning to receiving television households with the original closed
captioning data intact in a format that can be recovered and displayed
by decoders meeting the standards of this part unless such programming
is recaptioned or the captions are reformatted by the programming
distributor.
* * * * *
(e) * * *
(5) Video programming that is exempt pursuant to paragraph (d) of
this section that contains captions, except that video programming
exempt pursuant to paragraph (d)(5) of this section (late night hours
exemption), can count towards compliance with the requirements for pre-
rule programming.
(6) For purposes of paragraph (d)(11) of this section, captioning
expenses include direct expenditures for captioning as well as
allowable costs specifically allocated by a video programmer through
the price of the video programming to that video programming provider.
To be an allowable allocated cost, a video programmer may not allocate
more than 100 percent of the costs of captioning to individual video
programming providers. A video programmer may allocate the captioning
costs only once and may use any commercially reasonable allocation
method.
* * * * *
(9) Video programming distributors shall not be required to ensure
the provision of closed captioning for video programming that is by law
not subject to their editorial control, including but not limited to
the signals of television broadcast stations distributed pursuant to
sections 614 and 615 of the Communications Act or pursuant to the
compulsory copyright licensing provisions of sections 111 and 119 of
the Copyright Act (Title 17 U.S.C. 111 and 119); programming involving
candidates for public office covered by sections 315 and 312 of the
Communications Act and associated policies; commercial leased access,
public access, governmental and educational access programming carried
pursuant to sections 611 and 612 of the Communications Act; video
programming distributed by direct broadcast satellite (DBS) services in
compliance with the noncommercial programming requirement pursuant to
section 335(b)(3) of the Communications Act to the extent such video
programming is exempt from the editorial control of the video
programming provider; and video programming distributed by a common
carrier or that is distributed on an open video system pursuant to
section 653 of the Communications Act by an entity other than the open
video system operator. To the extent such video programming is not
otherwise exempt from captioning, the entity that contracts for its
distribution shall be required to comply with the closed captioning
requirements of this section.
* * * * *
(g) Complaint procedures--(1) Filing closed captioning complaints.
Complaints concerning an alleged violation of the closed captioning
requirements of this section shall be filed with the Commission or with
the video programming distributor responsible for delivery and
exhibition of the video programming within sixty (60) days after the
problem with captioning.
(2) Complaints filed with the Commission. A complaint filed with
the Commission must be in writing, must state with specificity the
alleged Commission rule violated, and must include:
(i) The consumer's name, postal address, and other contact
information, if available, such as telephone number or email address,
along with the consumer's preferred format or method of response to the
complaint (such as letter, facsimile transmission, telephone (voice/
TRS/TTY), email, or some other method that would best accommodate the
consumer.
(ii) The channel number; channel name, network, or call sign; the
name of the multichannel video program distributor, if applicable; the
date and time when the captioning problem occurred; the name of the
program with the captioning problem; and a detailed description of the
captioning problem, including specific information about the frequency
and type of problem.
(3) Process for forwarding complaints. The Commission will forward
complaints filed first with the Commission to the appropriate video
programming distributor and video programmer. If the Commission cannot
determine the appropriate video programmer, the Commission will forward
the complaint to the video programming distributor and notify the video
programming distributor of the Commission's inability to determine the
appropriate video programmer. The video programming distributor must
respond in writing to the Commission with the name and contact
information for the appropriate video programmer within ten (10) days
after the date of such notification. The Commission will then forward
the complaint to the appropriate video programmer.
(4) Video programming distributor and video programmer
responsibilities with respect to complaints forwarded by the
Commission. (i) In response to a complaint, the video programming
distributor must conduct an investigation to identify the source of the
captioning problem and resolve all aspects of the captioning problem
that are within its control. At a minimum, a video programming
distributor must perform the following actions as part of its
investigation:
(A) Program stream check. The video programming distributor must
capture program streams, defined as digitally encoded elementary
streams such as video, audio, closed captioning, timing, and other data
necessary for a viewer to receive a complete television viewing
experience, of the programming network identified in the complaint and
check the program streams for any caption-related impairments;
(B) Processing equipment check. If the video programming
distributor's investigation indicates a problem with the program
stream, and there is not prior knowledge as to where the problem
originated, the video programming distributor must check post-
processing equipment at the relevant headend or other video
distribution facility to see if the issue was introduced by the video
programming distributor or was present in the program stream when
received by the video programming distributor from the video
programmer; and
(C) Consumer premises check. If the video programming distributor's
investigation indicates that the problem may lie with the consumer's
customer premises equipment, including the set-top box, the video
programming distributor must check the end user equipment, either
remotely or, if necessary, at the consumer's premises, to ensure there
are no issues that might interfere with the pass through,
[[Page 57487]]
rendering, or display of closed captioning.
(ii) After conducting its investigation, the video programming
distributor shall provide a response to the complaint in writing to the
Commission, the appropriate video programmer, and the complainant
within thirty (30) days after the date the Commission forwarded the
complaint. The video programming distributor's response must:
(A) Acknowledge responsibility for the closed captioning problem
and describe the steps taken to resolve the problem; or
(B) Certify that the video programming distributor has conducted an
investigation into the closed captioning problems in accordance with
paragraph (g)(4)(i) of this section and that the closed captioning
problem is not within the video programming distributor's control and
appears to have been present in the program steam when received by the
video programming distributor; or
(C) Certify that the video programming distributor has conducted an
investigation into the closed captioning problems in accordance with
paragraph (g)(4)(i) of this section and that the closed captioning
problem appears to have been caused by a third party DVR, television,
or other third party device not within the video programming
distributor's control.
(iii) If the video programming distributor provides a certification
in accordance with paragraph (g)(4)(ii)(B) of this section, the video
programmer to whom the complaint was referred must conduct an
investigation to identify the source of the captioning problem and
resolve all aspects of the captioning problem that are within its
control.
(A) The video programmer may call upon the video programming
distributor for assistance as needed, and the video programming
distributor must provide assistance to the video programmer in
resolving the complaint, as needed.
(B) After conducting its investigation, the video programmer must
provide a response to the complaint in writing to the Commission, the
appropriate video programming distributor, and the complainant within
thirty (30) days after the date of the video programming distributor's
certification. Such response either must describe the steps taken by
the video programmer to correct the captioning problem or certify that
the video programmer has conducted an investigation into the closed
captioning problems in accordance with paragraph (g)(4)(iii) of this
section and that the captioning problem was not within its control, for
example, because the program stream was not subject to the closed
captioning problem at the time the program stream was handed off to the
video programming distributor.
(C) If the video programmer certifies pursuant paragraph
(g)(4)(iii)(B) of this section that the captioning problem was not
within its control, and it has not been determined by either the video
programmer or the video programming distributor that the problem was
caused by a third party device or other causes that appear not to be
within the control of either the video programming distributor or the
video programmer, the video programming distributor and video
programmer shall work together to determine the source of the
captioning problem. Once the source of the captioning problem is
determined, the video programming distributor and video programmer
shall each correct those aspects of the captioning problem that are
within its respective control. Within thirty (30) days after the date
of the video programmer's certification provided pursuant to paragraph
(g)(4)(iii)(B) of this section, the video programming distributor,
after consulting with the video programmer, shall report in writing to
the Commission and the complainant on the steps taken to correct the
captioning problem.
(5) Complaints filed with video programming distributors. (i) If a
complaint is first filed with the video programming distributor, the
video programming distributor must respond in writing to the
complainant with thirty (30) days after the date of the complaint. The
video programming distributor's response must either:
(A) Acknowledge responsibility for the closed captioning problem
and describe to the complainant the steps taken to resolve the problem;
or
(B) Inform the complainant that it has referred the complaint to
the appropriate video programmer or other responsible entity and
provide the name and contact information of the video programmer or
other responsible entity and the unique complaint identification number
assigned to the complaint pursuant to paragraph (g)(5)(ii)(B) of this
section; or
(C) Inform the complainant that the closed captioning problem
appears to have been caused by a third party DVR, television, or other
third party device not within the video programming distributor's
control.
(ii) If the video programming distributor determines that the issue
raised in the complaint was not within the video programming
distributor's control and was not caused by a third party device, the
video programming distributor must forward the complaint and the
results of its investigation of the complaint to the appropriate video
programmer or other responsible entity within thirty (30) days after
the date of the complaint.
(A) The video programming distributor must either forward the
complaint with the complainant's name, contact information and other
identifying information redacted or provide the video programmer or
other responsible entity with sufficient information contained in the
complaint to achieve the complaint's investigation and resolution.
(B) The video programming distributor must assign a unique
complaint identification number to the complaint and transmit that
number to the video programmer with the complaint.
(iii) If a video programming distributor forwards a complaint to a
video programmer or other responsible entity pursuant to paragraph
(g)(5)(ii) of this section, the video programmer or other responsible
entity must respond to the video programming distributor in writing in
a form that can be forwarded to the complainant within thirty (30) days
after the forwarding date of the complaint.
(A) The video programming distributor must forward the video
programmer's or other responsible entity's response to the complainant
within ten (10) days after the date of the response.
(B) If the video programmer or other responsible entity does not
respond to the video programming distributor within thirty (30) days
after the forwarding date of the complaint, the video programming
distributor must inform the complainant of the video programmer's or
other responsible entity's failure to respond within forty (40) days
after the forwarding date of the complaint.
(iv) If a video programming distributor fails to respond to the
complainant as required by paragraphs (g)(5)(i) of this section, or if
the response received by the complainant does not satisfy the
complainant, the complainant may file the complaint with the Commission
within sixty (60) days after the time allotted for the video
programming distributor to respond to the complainant. The Commission
will forward such complaint to the video programming distributor and
video programmer, and the video programming distributor and video
programmer shall address such complaint as specified in paragraph
(g)(4) of this section.
[[Page 57488]]
(v) If a video programmer or other responsible entity fails to
respond to the video programming distributor as required by paragraph
(g)(5)(iii) of this section, or if a video programming distributor
fails to respond to the complainant as required by paragraph
(g)(5)(iii)(A) or (B) of this section, or if the response from the
video programmer or other responsible entity forwarded by the video
programming distributor to the complainant does not satisfy the
complainant, the complainant may file the complaint with the Commission
within sixty (60) days after the time allotted for the video
programming distributor to respond to the complainant pursuant to
paragraph (g)(5)(iii)(A) or (B) of this section. The Commission will
forward such complaints to the appropriate video programming
distributor and video programmer, and the video programming distributor
and video programmer shall handle such complaints as specified in
paragraph (g)(4) of this section.
(6) Provision of documents and records. In response to a complaint,
a video programming distributor or video programmer is obligated to
provide the Commission with sufficient records and documentation to
demonstrate that it is in compliance with the Commission's rules.
(7) Reliance on certifications. Video programming distributors may
rely on certifications from video programmers made in accordance with
paragraph (m) of this section to demonstrate compliance with paragraphs
(b)(1)(i) and (b)(2)(i) of this section. Video programming distributors
shall not be held responsible for situations where a video programmer
falsely certifies under paragraph (m) of this section unless the video
programming distributor knows or should have known that the
certification is false.
(8) Commission review of complaints. The Commission will review
complaints filed with the Commission, including all supporting
evidence, and determine whether a violation has occurred. The
Commission will, as needed, request additional information from the
video programming distributor or video programmer.
(9) Compliance--(i) Initial response to a pattern or trend of
noncompliance. If the Commission notifies a video programming
distributor or video programmer of a pattern or trend of possible
noncompliance with the Commission's rules for the quality of closed
captioning by the video programming distributor or video programmer,
the video programming distributor or video programmer shall respond to
the Commission within thirty (30) days after the Commission's notice of
such possible noncompliance, describing corrective measures taken,
including those measures the video programming distributor or video
programmer may have undertaken in response to informal complaints and
inquiries from viewers.
(ii) Corrective action plan. If, after the date for a video
programming distributor or video programmer to respond to a
notification under paragraph (g)(8)(i) of this section, the Commission
subsequently notifies the video programming distributor or video
programmer that there is further evidence indicating a pattern or trend
of noncompliance with the Commission's rules for quality of closed
captioning, the video programming distributor or video programmer shall
submit to the Commission, within thirty (30) days after the date of
such subsequent notification, a written action plan describing specific
measures it will take to bring the video programming distributor's or
video programmer's closed captioning performance into compliance with
the Commission's closed captioning quality rules. In addition, the
video programming distributor or video programmer shall conduct spot
checks of its closed captioning quality performance and report to the
Commission on the results of such action plan and spot checks 180 days
after the submission of such action plan.
(iii) Continued evidence of a pattern or trend of noncompliance.
If, after the date for submission of a report on the results of an
action plan and spot checks pursuant to paragraph (g)(8)(ii) of this
section, the Commission finds continued evidence of a pattern or trend
of noncompliance, additional enforcement actions may be taken, which
may include admonishments, forfeitures, and other corrective actions.
(iv) Enforcement action. The Commission may take enforcement
action, which may include admonishments, forfeitures, and other
corrective actions, without providing a video programming distributor
or video programmer the opportunity for an initial response to a
pattern or trend of noncompliance or a corrective action plan, or both,
under paragraphs (g)(8)(i) and (ii) of this section, for a systemic
closed captioning quality problem or an intentional and deliberate
violation of the Commission's rules for the quality of closed
captioning.
* * * * *
(i) Contact information. (1) Receipt and handling of immediate
concerns. Video programming distributors shall make publicly available
contact information for the receipt and handling of immediate closed
captioning concerns raised by consumers while they are watching a
program. Video programming distributors must designate a telephone
number, fax number (if the video programming distributor has a fax
number), and email address for purposes of receiving and responding
immediately to any closed captioning concerns. Video programming
distributors shall include this information on their Web sites (if they
have a Web site), in telephone directories, and in billing statements
(to the extent the distributor issues billing statements). Video
programming distributors shall keep this information current and update
it to reflect any changes within ten (10) business days for Web sites,
by the next billing cycle for billing statements, and by the next
publication of directories. Video programming distributors shall ensure
that any staff reachable through this contact information has the
capability to immediately respond to and address consumers' concerns.
To the extent that a distributor has personnel available, either on
site or remotely, to address any technical problems that may arise,
consumers using this dedicated contact information must be able to
reach someone, either directly or indirectly, who can address the
consumer's captioning concerns. This provision does not require that
distributors alter their hours of operation or the hours during which
they have staffing available; at the same time, however, where staff is
available to address technical issues that may arise during the course
of transmitting programming, they also must be knowledgeable about and
be able to address closed captioning concerns. In situations where a
video programming distributor is not immediately available, any calls
or inquiries received, using this dedicated contact information, should
be returned or otherwise addressed within 24 hours. In those situations
where the captioning problem does not reside with the video programming
distributor, the staff person receiving the inquiry shall refer the
matter appropriately for resolution.
(2) Complaints. Video programming distributors shall make contact
information publicly available for the receipt and handling of written
closed captioning complaints that do not raise the type of immediate
issues that are addressed in paragraph (i)(1) of this section. The
contact information required for written complaints shall include the
name of a person with
[[Page 57489]]
primary responsibility for captioning issues and who can ensure
compliance with the Commission's rules. In addition, this contact
information shall include the person's title or office, telephone
number, fax number (if the video programming distributor has a fax
number), postal mailing address, and email address. Video programming
distributors shall include this information on their Web sites (if they
have a Web site), in telephone directories, and in billing statements
(to the extent the distributor issues billing statements). Video
programming distributors shall keep this information current and update
it within ten (10) business days for Web sites, by the next billing
cycle for billing statements, and by the next publication of
directories.
(3) Providing contact information to the Commission. Video
programming distributors and video programmers shall file contact
information with the Commission through a web form located on the
Commission's Web site. Such contact information shall include the name
of a person with primary responsibility for captioning issues and
ensuring compliance with the Commission's rules. In addition, such
contact information shall include the person's title or office,
telephone number, fax number (if the video programming distributor or
video programmer has a fax number), postal mailing address, and email
address. Contact information shall be available to consumers on the
Commission's Web site or by telephone inquiry to the Commission's
Consumer Center. Video programming distributors and video programmers
shall notify the Commission each time there is a change in any of this
required information within ten (10) business days.
(j) * * *
(1) [Reserved]
* * * * *
(3) Application of captioning quality standards. Video Programmers
shall ensure that captioning meet the standards of paragraph (j)(2) of
this section for accuracy, synchronicity, completeness and placement,
except for de minimis captioning errors. In determining whether a
captioning error is de minimis, the Commission will consider the
particular circumstances presented, including the type of failure, the
reason for the failure, whether the failure was one-time or continuing,
the degree to which the program was understandable despite the errors,
and the time frame within which corrective action was taken to prevent
such failures from recurring. When applying such standards to live and
near-live programming, the Commission will also take into account, on a
case-by-case basis, the following factors:
* * * * *
(k) * * *
(1) * * *
(iv) Certification procedures for video programmers. Video
programmers adopting Best Practices will certify to the Commission that
they adhere to Best Practices for video programmers, in accordance with
paragraph (m) of this section.
* * * * *
(l) [Reserved]
(m) Video programmer certification. (1) On or before July 1, 2017,
or prior to the first time a video programmer that has not previously
provided video programming shown on television provides video
programming for television for the first time, whichever is later, and
on or before July 1 of each year thereafter, each video programmer
shall submit a certification to the Commission through a web form
located on the Commission's Web site stating that:
(i) The video programmer provides closed captioning for its
programs in compliance with the Commission's rules; and
(ii) The video programmers' programs either satisfy the caption
quality standards of paragraph (j)(2) of this section; or in the
ordinary course of business, the video programmer has adopted and
follows the Best Practices set forth in paragraph (k)(1) of this
section.
(2) If all of video programmer's programs are exempt from the
closed captioning rules under one or more of the exemptions set forth
in this section, in lieu of the certification required by paragraph
(m)(1) of this section, the video programmer shall submit a
certification to the Commission through a web form located on the
Commission's Web site stating that all of its programs are exempt from
the closed captioning rules and specify each category of exemption
claimed by the video programmer.
(3) If some of a video programmer's programs are exempt from the
closed captioning rules under one or more of the exemptions set forth
in this section, as part of the certification required by paragraph
(m)(1) of this section, the video programmer shall include a
certification stating that some of its programs are exempt from the
closed captioning rules and specify each category of exemption claimed
by the video programmer.
(4) A television broadcast station licensed pursuant to part 73 of
this chapter or a low power television broadcast station licensed
pursuant to part 74, subpart G, of this chapter, or the owner of either
such station, is not required to provide a certification for video
programming that is broadcast by the television broadcast station.
[FR Doc. 2016-19685 Filed 8-22-16; 8:45 am]
BILLING CODE 6712-01-P