New Closed Captioning Quality Rules Went Into Effect March 16, 2015

On May 5, 2015, the FCC released a Public Notice outlining the procedures that video programming distributors (“VPDs”) – a category that includes cable operators and other multichannel video programming distributors (“MVPDs”) – must follow to satisfy their obligation to report non-certifying video programmers to the FCC under the FCC’s new closed captioning quality rules.  This action follows the FCC’s earlier announcement establishing March 16, 2015 as the effective date for the closed captioning quality rules.

The FCC’s closed captioning quality rules contain new obligations for VPDs that add to VPDs’ existing obligation under FCC rules to pass-through all closed captioning received from programmers.  These new obligations include a requirement for VPDs to use best efforts to obtain closed captioning quality certifications from programmers.

Under the new rules, VPDs may satisfy their best efforts obligations by locating a programmer’s certification on the programmer’s website or other widely available locations.  If a VPD is unable to locate a certificate, the VOD must inform the video programmer in writing (email is okay) that the video programmer must make its certification widely available within 30 days after receipt of the written request.  If a video programmer does not make its certification widely available within the 30 day period, the VPD is required to “promptly” submit a report to the FCC identifying the non-certifying programmer so that the FCC place the programmer in a publicly available database.

Importantly, as part of a VPDs best efforts to obtain captioning quality compliance certifications from programmers, VPDs must report to the FCC programmers that fail to provide a certification. 

With the Public Notice, the FCC announced the procedures for reporting a non-certifying programmer to the FCC.  Under these procedures, VPDs must send the name and contact information of the non-certifying video programmer via email to captioningcertification@fcc.gov within 40 days after informing the video programmer that its certification must be made widely available.

The FCC will acknowledge receipt with an email to the VPD.  VPDs are also encouraged to contact the FCC if they receive a certification after reporting a programmer’s non-compliance to the FCC.

If you have questions about the FCC’s closed captioning rules, please contact Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com.

Copyright Monitoring Firm Continues to Seek Subscriber Information From ISPs

ISPs Should Be on the Lookout for Subpoenas and Copyright Infringement Notices

Rightscorp, Inc., a copyright monitoring firm, has attempted to obtain the identities of thousands of Internet subscribers from numerous Internet Service Providers (“ISPs”) across the country.  Relying primarily on Section 512(h) of the Digital Millennium Copyright Act (“DMCA”), Rightscorp continues to serve subpoenas on ISPs in its attempt to extract monetary settlements from end users who allegedly illegally share copyrighted files.  Rightscorp uses this provision of the DMCA as a way to circumvent review by a judge.  Unlike most subpoenas, Section 512(h) only requires the signature of a court clerk.  Over a decade ago, Courts determined that a Section 512(h) subpoena is not applicable in file-sharing cases where the ISP does not store the allegedly infringing material.  Nonetheless, Rightscorp has filed over 100 Section 512(h) actions in the past three years in its attempt to collect settlements from subscribers.  Many small ISPs are unaware that these subpoenas may not apply to them and share subscriber information with Rightscorp. 

Rightscorp currently faces two class action lawsuits over its methods for obtaining these settlements; these complaints allege that Rightscorp violated various laws, including the Telephone Consumer Protection Act.  This is not the first time Rightscorp has encountered legal troubles.  When Rightscorp requested over 30,000 subscriber names from Grande Communications, Grande sought sanctions against Rightscorp for attempting to avoid legal review of its subpoenas.  In addition, on May 5, a federal court granted another ISP’s (Birch Communications), motion to quash an invalid Section 512(h) subpoena from Rightscorp.

Despite its checkered history, a number of copyright holders still rely on Rightscorp to track their copyrights and serve thousands of infringement notices to ISPs, sometimes successfully obtaining subscriber information.  CM encourages ISPs to implement policies addressing copyright infringement notices and Section 512(h) subpoenas.

CM attorneys Heidi Schmid and Madeleine Goldfarb recently outlined tips for ISPs to prepare for and respond to copyright infringement claims like those from Rightscorp.  That article is available here.

If you have questions regarding copyright infringement notices or subpoenas please contact Heidi Schmid at (312) 372-3930 or hschmid@cinnamonmueller.com.