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The Federal Communications Commission ("FCC") overturned a four-year-old decision of its Consumer and Governmental Affairs Bureau which had waived the closed-captioning requirements for more than 300 entities which create and distribute television programs. The FCC's decision sets forth a new standard by which applicants can request an exemption from compliance with the closed captioning regulations due to "undue burden." The entities whose waivers were lifted have until January 18, 2012 to file a new petition seeking exemption from compliance with the rules, which must set forth evidence demonstrating inability to provide closed captioning because of economic burden in accordance with the guidelines provided by the FCC in its October 20, 2011 order (published in the Federal Register on November 1, 2011). Among 303 entities which lost their exemption are ten dioceses (dioceses of Reno, Burlington, Lincoln, Grand Rapids, Gaylord, Lake Charles, Lafayette, and Youngstown, the Television Center of the Archdiocese of Miami, and the Archdiocese of San Francisco).
The FCC set forth the new procedure for filing a petition for exemption because of economic burden. The specific petitioners whose exemptions were repealed by this Order must refile their petitions before January 18, 2012.All petitioners must support their evidence of economic burden with an affidavit. The evidence must consist of current documentation of: 1) the nature and cost of the closed captioning for the programming, 2) the impact of having to add closed captioning on the operation of the program owner or provider, 3) the financial resources of the provider or program owner, not just the financial resources of the office creating and distributing the program, and 4) the type of operation of the provider or program owner. The petition must show whether the petitioner has sought additional sponsorship or other sources for captioning, and the results of that search. Other factors which may be relevant include: 1) any alternatives that could be a reasonable substitute for the closed captioning requirement, 2) documentation of the entity requesting exemption's finances and assets, gross or net proceeds, or sponsorships solicited for assisting in captioning.
After receipt of each petition, the FCC will place it on public notice, and the Bureau will rely on the information in the petition and any public comments received to determine the extent to which providing closed captioning would be economically burdensome for the petitioner. If the petition is denied, the Bureau will give the petitioner a reasonable time to come into compliance.
The FCC's decision determined that the reasoning used by the Bureau in the 2006 order for evaluating requests for exemption from the closed captioning rules on the basis of undue burden under Section 713(d)(3) of the Communications Act (47 U.S.C. §613 (d) and (e)) was not supported by the Act or its legislative history.
Section 713(e)(3) provides that one of the factors to be considered in an undue burden exemption determination is the financial resources of the provider or program owner. When the FCC issued closed captioning regulations in 1997, it noted the need to examine the overall budget and revenues of the individual programming outlet and not simply the resources it chooses to devote to a particular program. The Bureau's order ignored this, the FCC determined. The FCC also rejected the Bureau's presumption that future exemptions would be granted to non-profit entities which claimed that requiring them to provide closed captions would force them to curtail activities important to their mission. Closed captioning exemption decisions are to be made on a case-by-case basis, the FCC concluded when it promulgated regulations in 1997, and the legislative history of section 713 indicated that a factor in determining an exemption from closed captioning requirements is the extent to which programming might not be shown if the program owner or provider are required to provide captions, not whether other activities of the owner or provider would be curtailed. The FCC also rejected the Bureau's decision that exemptions be permanent; the original FCC regulations emphasized that the circumstances regarding financial resources and the cost of captioning are changeable.
The FCC also noted that the Bureau order only encouraged programmers to solicit closed captioning assistance from their video programming distributers (cable operators or satellite companies). The new FCC order determined that this mere encouragement did not properly reflect the fact that the responsibility for captioning ultimately rests with the video programming distributors ("VPD"), and so ordered that a programmer's petition for exemption based on undue burden must include evidence that the programmer in fact did request from its VPD that the VPD pay for or provide closed captioning.
The FCC also concluded that petitioners for exemption based on undue burden must provide documented information about the overall financial resources of the programmer. It specifically noted that one petitioner whose 2006 exemption is revoked, the diocese of Lake Charles, had "substantial resources," so that the exemption should never have been granted.
The FCC has opened a new rulemaking, following the directive of Congress in the Twenty-First Century Communications and Video Accessibility Act of 2010 "(CUAA"), 47 U.S.C. §613 (c)(2)(A), which requires the FCC to revise its regulations to require the provision of closed captioning on video programming delivered using Internet protocol that was published or exhibited on television with captions after the effective date of the regulations. The FCC must promulgate these regulations by January 12, 2012. The FCC has opened for public comment 1) whether the regulations will require video programming owners to send required caption files to video programming distributors along with program files, and require the IP-delivered captions be of the same quality as the captions on television, 2) what should be the deadlines for prerecorded and live programs to be captioned, 3) what should be the procedures for video program owners and providers to petition for exemptions based on economic burden, 4) whether to adopt particular technical standards for IP delivered video programs, and 5) adopt procedures for complaints.
More information about these actions can be found on the FCC's web site.
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