On July 2, 2013 the Federal Communications Commission (FCC) issued an Order and Notice of Proposed rulemaking about Internet captioning. The Order on Reconsideration and Further Notice of Proposed Rulemaking affirmed, modified and clarified certain aspects of its closed captioning rules for Internet Protocol (IP) video that it had previously adopted in January 2012. These are rules resulting from passage of the 21st Century Communications and Video Accessibility Act (CVAA). See Order online here. In this order, the FCC:
- Postponed resolving whether video clips (defined as “excerpts of full length programming”) should be included within the scope of covered programming until more information is gathered through a public notice to be issued within the next six months;
- Affirmed its decision about who is responsible for providing the captioning, that is, to allow video programming providers (VPPs) and distributors (VPDs) to enable either the rendering or pass through of captions to end users;
- Did not impose caption quality standards, noting this is the subject of another proceeding;
- Refused to exempt but temporarily extended the compliance deadlines for removable media players such as Blu-ray and DVD players that do not currently render or pass through captions, pending resolution of issues raised in the FNPRM;
- Declined to limit covered apparatus to those intentionally designed to play back video programming but clarified its rule and issued two class-based waivers in response to requests by the Consumer Electronics Association (CEA) to exclude equipment such as digital cameras, baby monitors and security cameras, which play back consumer generated images and not “video programming” as defined by the CVAA; and
- Clarified that the closed caption decoder requirements apply to equipment manufactured (vs. sold or imported) on or after Jan. 1, 2014.
The FCC kicked the can down the road about requiring video clips to be captioned. The FCC had previously stated that IP video captioning requirements extend only to “full-length programming” that appears on TV with captions and is then distributed via IP to end users substantially in its entirety, and not to the generally smaller “clips” from such TV programming. The FCC had encouraged, but did not require, captions of online outtakes and video clips. Disability advocates had asked the FCC to reconsider this determination due to great concern about the accessibility of online news, educational and entertainment clips and noting the increasing growth of such clips on websites everywhere, such as live or near-live time clips.This new order leaves the video clip exclusion as it was saying it “defers a final decision … pending the development of additional information regarding the availability of captioned video clips.”
Good news for advocates, however, is that the FCC left the door open to impose rules for captioning video clips and seems to expect some captioning of video clips to occur on a voluntary basis. That is, the FCC’s Media Bureau must issue a public notice within the next six months -- presumably before January 31st, 2014 -- asking for information on the voluntary progress in captioning IP video clips. If the record developed in that proceeding indicates a lack of access to critical areas of programming due to absence of captioning on IP video clips, the FCC says it may reconsider its decision to exclude clips.
The FCC also did not address quality of captioning --such as bad spelling, word omissions, letter scrambling and other intolerables -- noting that there is a separate proceeding for that. However, in the Order the FCC also said that that it needs more information to resolve issues concerning whether it is apparatus or other technical issues that cause captions to appear out of synch and whether existing standards enable manufacturers to address the timing or whether it is the operators, distributions and program providers (VPOs, VPDs and VPPs) who are better suited than manufacturers to ensure synchronization.
Significantly, the FCC extended the Jan. 1, 2014 compliance deadline for DVD players that do not currently either show or pass through closed captions. The extension was granted to allow for even more collection of information about any additional costs that might be imposed by adding IP captioning functionality to low-cost devices such as DVD players. The FCC also extended the compliance deadline for Blu-ray players, explaining that most Blu-ray discs do not currently contain closed captions and that there is no current industry standard for Blu-ray closed captioning. The temporary deadline extension does not apply to removable media players other than DVD or Blu-ray players, or to DVD players that currently have the ability to render or pass through captions.
Interestingly, the FCC revised its definition of “apparatus” to clarify that the “video players” to which IP-video closed captioning rules apply include only the subset of video players that are capable of displaying video programming transmitted simultaneously with sound. That is, only players capable of displaying programming provided by, or generally comparable to, programming provided by a television broadcast station must comply with the rules.
In the order, the FCC granted narrow class waivers for:
- apparatus designed to capture and display consumer-generated images or other non-video-programming images (such as most digital cameras, baby monitors, and security cameras); and
- apparatus designed to display still images (such as digital picture frames). Devices such as mobile phones or those with general-purpose operating systems like Android will not qualify for the waivers because their capability to receive or play back video programming transmitted simultaneously with sound is not incidental. The FCC affirmed its earlier decision that what an apparatus is “designed” to do depends on the actual capabilities of the apparatus, not on the intent of the manufacturer.
Initial comments on the FNPRM are due Sept. 3, 2013 and reply comments are due Sept. 30, 2013. This new FCC rule implementing the 21st CVAA is online here.