On February 24, 2014, the FCC released an Order adopting new closed captioning quality standards and technical compliance rules.  The rules will take effect no sooner than January 2015. 

            Background.  The FCC’s existing closed captioning rules require most television programming to be provided with captioning, and require video programming distributors (VPDs)—a category that includes cable operators and other MVPDs—to pass through closed captioning to customers.  In 2010, the FCC sought comments on several proposals to update the rules. 

Based on the record, the FCC determined that television viewers’ captioning experience since the adoption of the rules “confirms the need for the Commission to update its captioning rules.”  Accordingly, the Order adopts quality standards and technical compliance rules “to ensure that video programming is fully accessible to individuals who are deaf and hard of hearing through the provision of closed captioning.” 

Note: The FCC has also adopted closed captioning rules for video programming delivered over the internet.  The internet captioning rules are distinct from the television captioning rules and are not affected by the Order.

While the Order imposes a number of new obligations on television closed captioning, two areas are of particular importance for VPDs—programmer certifications and new technical rules.

Programmer certifications.  Under the new rules, VPDs must use best efforts to obtain compliance certifications from programmers.  These certifications must certify that the programmer either:

(i)            Complies with the new captioning quality standards;

(ii)           Adheres to the video programming producer best practices specified in the Order; or

(iii)          Is exempt from the closed captioning rules, in which case the certification must identify the specific exemption claimed. 

In addition to requesting certifications from programmers, VPDs may also check websites or other locations for “widely available” certifications.  A VPD must report any non-certifying programmers to the FCC.  Only by meeting the best efforts requirements and reporting non-certifying programmers to the FCC will a VPD be exempt from captioning violations outside of its control.

Technical rules.  The Order imposes new technical rules on VPDs to insure that captions are accurate, synchronous, complete, and do not obscure important information.  These new rules include requirements to monitor and maintain equipment (by conducting technical equipment checks), and to ensure that set-top boxes transmit captions pursuant to the standards adopted under the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). 

The FCC also encouraged MVPDs to provide installers and other employees who interact with consumers with information “necessary to help those consumers effectively access closed captions through their MVPD-installed devices.”  In addition, VPDs must keep records of their monitoring and maintenance activities.  Though the FCC did not specify a required format for these records, VPDs must maintain them for at least two years, and provide them to the FCC upon request.

            FNPRM.  In conjunction with the Order, the FCC also released a Further Notice of Proposed Rulemaking (“FNPRM”), seeking comment on a number of additional issues, including: whether to shift some of the responsibilities for meeting captioning requirements from VPDs to programmers, whether to establish specific intervals between equipment checks, whether to adopt NCTA’s consumer complaint best practices, whether to require VPDs to give notice of temporary captioning outages to viewers through the VPD’s website and a crawl during the outage.

            If you have questions about closed captioning rules, please contact Scott Friedman or Jake Baldwin at (312) 372-3930 or sfriedman@cinnamonmueller.com or jbaldwin@cinnamonmueller.com.  

CVAA Accessibility Compliance Certificate due April 1, 2014

All telecommunications carriers, interconnected VoIP and advanced communications services providers must file their annual accessibility compliance certificates (covering 2013) by April 1, 2014. 

Who must file: 

• Telecommunications carriers,
• Interconnected VoIP providers; and
• Advanced communications service (“ACS”) providers (e.g., providers of email, text messaging, instant messaging, interoperable video conferencing services).   

What does the certification contain?  All covered providers must submit the annual certification through the FCC’s Recordkeeping Compliance Certification and Contact Registry certifying that the company has established operating procedures adequate to ensure compliance with the recordkeeping rules and that the records are being kept accordingly.  In addition, covered providers must designate and keep current:

• A contact person authorized to resolve accessibility-related complaints from consumers.
• An agent to accept service of complaints filed with the FCC.

Are any exemptions available?  The rules provided a temporary small entity exemption for providers of ACS.  That exemption expired October 8, 2013.  The rules also provide a narrow exemption that is limited to customized equipment or services “built to the unique specifications of businesses” or other enterprise customers.

If you have any questions about operating procedures or filing certifications, please contact Bruce Beard at (314) 394-1535 or bbeard@cinnamonmueller.com or Jake Baldwin at (312) 372-3930 or jbaldwin@cinnamonmueller.com.