On February 19, 2016, the FCC released a Second Report and Order on TV closed captioning imposing, for the first time, direct liability for some captioning responsibilities on video programmers.  Previously, video programming distributors (“VPDs”), a category that includes multichannel video programming distributors (“MVPDs”), were held directly liable for all TV closed captioning responsibilities. 

Once the FCC’s new rules are effective, liability will be shared between VPDs and video programmers for receiving, serving and resolving TV closed captioning complaints.  A thorough understanding of the current rules and recent changes is essential for compliance.

Background

In 2014, the FCC released an Order on TV Closed Captioning Quality in conjunction with a Declaratory Ruling and Further Notice of Proposed Rulemaking (“FNPRM”).  Based on the record, the FCC determined that the closed captioning experience of television viewers since the adoption of its captioning rules in 1997 “confirm[ed] the need for the Commission to update its captioning rules,” and adopted standards for closed captioning quality and technical compliance rules applicable to both video programming providers and VPDs.  At the same time, the FNPRM explored whether the burden for closed captioning compliance should remain solely on VPDs or whether it should be shared with programmers. 

Summary

While VPDs remain responsible for the provisioning (i.e., pass-through) of TV captions, the new rules establish a burden-shifting process under which VPDs and video programmers will be responsible for captioning issues under an entity’s primary control.  Video programmers also must file and maintain contact information with the FCC and file captioning certifications with the FCC.   

Responsibility.  The Order allocates responsibility for compliance with TV closed captioning rules between VPDs and video programmers, with each entity responsible for closed captioning issues that are primarily within its control.

Closed Captioning Quality:

• Video programmers will be responsible for closed captioning quality problems that stem from producing the captions, as well as transmission of the captions by video programmers to VPDs up to when the programming is handed off to VPDs.
• VPDs will be responsible for closed captioning quality problems that are the result of faulty equipment or the failure to pass through captions intact.

Closed Captioning Provisioning: 

• VPDs will remain primarily responsible for the provision of closed captioning (i.e., including captions) when passing through captions to consumers.
• Video programmers will be held responsible where they fail to provide closed captions on non-exempt programming. 

A VPD and video programmer may be jointly responsible for a violation of the closed captioning quality rules that is within the control of both parties.  However, the FCC chose not to impose joint and several liability, which means a party will not be held liable for the other party’s violation of the rules.  Rather, it will be liable only for its own violation.

Complaints.  With the change in closed captioning compliance responsibilities, the FCC amended its TV closed captioning complaint rules, adopting a new “burden-shifting” model. 

Complaints Filed with FCC.  When the FCC receives a TV closed captioning complaint, it will serve the complaint on the VPD and video programmer simultaneously.  The VPD must conduct an initial investigation, including certain steps (including programming and equipment checks), to determine whether the matters raised in the complaint are within its control.  If the VPD determines the problem is within its control, it must correct the issue and provide a written response to the FCC, the programmer and the consumer within 30 days.

On the other hand, if the VPD determines that the problem is not within its control, the VPD must certify to the FCC, the programmer and the consumer that it has exercised due diligence to identify and resolve the source of the captioning problem, and that the problems raised are not within its control.  At this point, the burden shifts to the programmer, who must then investigate and attempt to resolve the problem.

Complaints Filed with VPD.  For TV closed captioning complaints filed directly with the VPD, the VPD must investigate the complaint with the same due diligence and in the same manner as required for complaints initially filed with the FCC.  If the VPD determines that the issues are not within its control, it must forward the complaint to the video programmer, with the consumer’s personally identifiable information (“PII”) redacted and with a unique identifying number.

If the video programmer certifies that the program stream contained fully functioning captioning at 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 programmer must work together to determine (and correct) the source of the captioning problem.

Compliance Ladder.  The new rules adopt a “compliance ladder” for TV closed captioning quality issues where complaints indicate a pattern or trend of noncompliance.  This new compliance ladder will only apply to TV closed captioning quality issues, as the FCC chose not to apply the ladder to other captioning requirements, including caption provisioning, equipment monitoring and maintenance, registration and certification.  These issues will continue to be addressed through the informal compliant process described above.  

Here is how the compliance ladders works:

• If the FCC notifies a VPD or video programmer that it has identified a pattern or trend of possible noncompliance, the VPD or programmer must respond within 30 days, describing the corrective measures taken.
• If, after the above deadline, the FCC finds further evidence indicating a pattern or trend of noncompliance, the VPD or video programmer must submit, within 30 days, 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 FCC regulations.
• If, after the date of submission for the action plan, the FCC continues to find evidence of a pattern or trend of noncompliance, the FCC will consider appropriate enforcement action.

Certifications.  The new rules also modify the current certification regime.  Under the FCC’s current TV closed captioning rules, VPDs may rely on certifications from programmers to demonstrate compliance in response to a closed captioning complaint covering the provisioning of closed captioning (i.e., was the programming captioned?).  In addition, VPDs must use best efforts to obtain closed captioning quality certifications from video programmers.

The Order collapses these two distinct certification requirements into a single rule and requires video programmers to file them directly with the FCC annually.  Video programmers will be obligated to submit to the FCC a certification that its programming (i) is in compliance with the obligation to provide closed captioning and (ii) either complies with the captioning quality standards or adheres to the Best Practices for video programmers with respect to captioning quality.  If some or all of a video programmer’s programming falls under one of the FCC’s captioning exemptions, the programmer must submit a certification attesting to the exemption and specifying each category of exemption that is claimed.

Video programmers will be required to file their certifications with the FCC (through a new online system) when they first launch and on an annual basis, on or before July 1^st of each year.  With this change, VPDs will no longer be required to use best efforts to obtain quality compliance certifications from programmers.  Instead, VPDs may demonstrate compliance where it relies on a programmer’s certification so long as (i) the VPD passes through the closed captions intact to viewers; and (ii) the VPD did not know or did not have reason to know that such certification was false.

Contact Information.  Video programmers will be required to file contact information with the FCC, as VPDs have been required to file since the FCC’s 2008 Order.

Effective Dates.  Most of the new rules, including the new certification, contact information, and complaint rules, are subject to approval by the Office of Management and Budget (“OMB”), and will only become effective 30 days after the FCC published notice of OMB approval in the Federal Register.   

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