Federal Register, Volume 76 Issue 188 (Wednesday, September 28, 2011)

[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Proposed Rules]
[Pages 59963-59990]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24703]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 15 and 79

[MB Docket No. 11-154; FCC 11-138]

Closed Captioning of Internet Protocol-Delivered Video
Programming: Implementation of the Twenty-First Century Communications
and Video Accessibility Act of 2010

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission proposes rules to implement
provisions of the Twenty-First Century Communications and Video
Accessibility Act of 2010 (``CVAA'') that mandate rules for closed
captioning of certain video programming delivered using Internet
protocol (``IP''). The Commission seeks comment on rules that would
apply to the distributors, providers, and owners of IP-delivered video
programming, as well as the devices that display such programming.

DATES: Comments are due on or before October 18, 2011; reply comments
are due on or before October 28, 2011. Written PRA comments on the
proposed information collection requirements contained herein must be
submitted by the public, Office of Management and Budget (OMB), and
other interested parties on or before November 28, 2011.

ADDRESSES: You may submit comments, identified by MB Docket No. 11-154
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Electronic Comment
Filing System (ECFS) Web Site: http://fjallfoss.fcc.gov/ecfs/. Follow
the instructions for submitting comments.
Mail: Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail. All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act proposed information collection
requirements contained herein should be submitted to the Federal
Communications Commission via e-mail to PRA@fcc.gov and to Nicholas A.
Fraser, Office of Management and Budget, via e-mail to Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-5167. For detailed
instructions for submitting comments and additional information on the
rulemaking process, see the SUPPLEMENTARY INFORMATION section of this
document.

FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding pertaining to Section 202 of the CVAA, contact Diana
Sokolow, Diana.Sokolow@fcc.gov, of the Policy Division, Media Bureau,
(202) 418-2120. For additional information on this proceeding
pertaining to Section 203 of the CVAA, contact Jeffrey Neumann,
Jeffrey.Neumann@fcc.gov, of the Engineering Division, Media Bureau,
(202) 418-7000. For additional information concerning the Paperwork
Reduction Act information collection requirements contained in this
document, send an e-mail to PRA@fcc.gov or contact Cathy Williams at
(202) 418-2918.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking, FCC 11-138, adopted and released on September
19, 2011. The full text is available for public inspection and copying
during regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street, SW., CY-257, Washington, DC
20554. This document will also be available via ECFS at http://fjallfoss.fcc.gov/ecfs/. Documents will be available electronically in
ASCII, Word 97, and/or Adobe Acrobat. The complete text may be
purchased from the Commission's copy contractor, 445 12th Street, SW.,
Room CY-B402, Washington, DC 20554. Alternative formats are available
for people with disabilities (Braille, large print, electronic files,
audio format), by sending an e-mail to fcc504@fcc.gov or calling the
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530
(voice), (202) 418-0432 (TTY).
This document contains proposed information collection
requirements. As part of its continuing effort to reduce paperwork
burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44
U.S.C. 3501-3520), the Federal Communications Commission invites the
general public and other Federal agencies to comment on the following
information collection(s). Public and agency comments are due November
28, 2011.
Comments should address: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment
on how we might ``further reduce the information collection burden for
small business concerns with fewer than 25 employees.''
To view or obtain a copy of this information collection request
(ICR) submitted to OMB: (1) Go to this OMB/GSA Web page: http://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the Web
page called ``Currently Under Review,'' (3) click on the downward-
pointing arrow in the ``Select Agency'' box below the ``Currently Under
Review'' heading, (4) select ``Federal Communications Commission'' from
the list of agencies presented in the ``Select Agency'' box, (5) click
the ``Submit'' button to the right of the ``Select Agency'' box, and
(6) when the list of FCC ICRs currently under review appears, look for
the OMB control number of this ICR as show in the SUPPLEMENTARY
INFORMATION section below (or its title if there is no OMB control
number) and then click on the ICR Reference Number. A copy of the FCC
submission to OMB will be displayed.
OMB Control Number: 3060-XXXX.
Title: Section 79.4, Closed Captioning of Video Programming
Delivered Using Internet Protocol.
Form Number: Not applicable.
Type of Review: New collection.

[[Page 59964]]

Respondents: Individuals or households; Businesses or other for-
profit entities; Not-for-profit institutions.
Number of Respondents and Responses: 1,140 respondents; 12,225
responses.
Estimated Time per Response: 0.084-5 hours.
Frequency of Response: On occasion reporting requirement;
Recordkeeping requirement.
Obligation to Respond: Voluntary and required to obtain or retain
benefits. The statutory authority for this collection of information is
contained in 47 U.S.C. 154(i), 154(j), 303(r), and 613.
Total Annual Burden: 6,140 hours.
Total Annual Costs: $420,000.
Privacy Act Impact Assessment: Yes. The Privacy Impact Assessment
(PIA) was completed on June 28, 2007. It may be reviewed at: http://www.fcc.gov/omd/privacyact/Privacy_Impact_Assessment.html. The
Commission is in the process of updating the PIA to incorporate various
revisions made to the SORN.
Nature and Extent of Confidentiality: Confidentiality is an issue
to the extent that individuals and households provide personally
identifiable information, which is covered under the FCC's system of
records notice (SORN), FCC/CGB-1, ``Informal Complaints and
Inquiries.'' As required by the Privacy Act, 5 U.S.C. 552a, the
Commission also published a SORN, FCC/CGB-1 ``Informal Complaints and
Inquiries'', in the Federal Register on December 15, 2009 (74 FR 66356)
which became effective on January 25, 2010.
Needs and Uses: The Commission is seeking approval for this
proposed information collection from the Office of Management and
Budget (OMB). On September 19, 2011, the Commission released a Notice
of Proposed Rulemaking, MB Docket No. 11-154; FCC 11-138. This
rulemaking proposed information collection requirements that support
the Commission's IP closed captioning rules that would be codified at
47 CFR 79.4, as required by the CVAA.
The proposed information collection requirements consist of:

Certifications if Captions Are Not Required

Pursuant to proposed 47 CFR 79.4(c)(1)(i), video programming owners
must send program files to video programming distributors and providers
either with captions as required by Section 79.4, or with a dated
certification that captions are not required for a specified reason.
Pursuant to proposed 47 CFR 79.4(c)(1)(ii), video programming
owners must provide video programming distributors and providers with
any revised certifications and newly required captions (if captions
were not previously delivered) within seven days of the underlying
change.
Pursuant to proposed 47 CFR 79.4(c)(2)(ii), video programming
distributors and providers must retain all certifications received from
video programming owners pursuant to proposed 47 CFR 79.4(c)(1)(i)-(ii)
for so long as the video programming distributor or provider makes the
certified programming available to end users through a distribution
method that uses IP and thereafter for at least one calendar year.

Petitions for Exemption Based on ``Economic Burden''

Pursuant to proposed 47 CFR 79.4(e), a video programming provider
or owner may petition the Commission for a full or partial exemption
from the closed captioning requirements for IP-delivered video
programming based upon a showing that they would be economically
burdensome.
Petitions for exemption must by filed with the Commission, placed
on Public Notice, and be subject to comment from the public.

Complaints Alleging Violations of the Closed Captioning Rules for IP-
Delivered Video Programming

Pursuant to proposed 47 CFR 79.4(f)(1), a complaint alleging a
violation of the closed captioning rules for IP-delivered video
programming may be filed with the Commission. Proposed 47 CFR
79.4(f)(1) would require such a complaint to be in writing, and to
include:
The name and address of the complainant;
The name and postal address, Web site, or e-mail address of the
video programming distributor, provider, and/or owner against whom the
complaint is alleged, and information sufficient to identify the video
programming involved;
Information sufficient to identify the software or device used to
view the program;
A statement of facts sufficient to show that the video programming
distributor, provider, and/or owner has violated or is violating the
Commission's rules, and, if applicable, the date and time of the
alleged violation;
The specific relief or satisfaction sought by the complainant; and
The complainant's preferred format or method of response to the
complaint (such as letter, facsimile transmission, telephone (voice/
TRS/TTY), e-mail, or some other method that would best accommodate the
complainant).
The Commission is seeking OMB approval for the proposed information
collection requirements.

Summary of the Notice of Proposed Rulemaking

I. Introduction

1. The Twenty-First Century Communications and Video Accessibility
Act of 2010 (``CVAA'') requires the Federal Communications Commission
(``Commission'') to revise its regulations to mandate closed captioning
on certain video programming delivered using Internet protocol
(``IP'').\1\ In this Notice of Proposed Rulemaking (``NPRM''), we
initiate a proceeding that will fulfill this requirement. We seek
comment on proposals that would better enable individuals who are deaf
or hard of hearing to view IP-delivered video programming, by requiring
that programming be provided with closed captions if it was shown on
television with captions after the effective date of the rules adopted
pursuant to this proceeding. We also seek comment on requirements for
the devices that are subject to the CVAA's new closed captioning
requirements.\2\ Our goal is to require the provision of closed
captions with IP-delivered video programming in the manner most helpful
to consumers, while ensuring that our regulations do not create undue
economic burdens for the distributors, providers, and owners of online
video programming.
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\1\ Public Law 111-260, 124 Stat. 2751, Sec. 202(b) (2010). See
also Amendment of Twenty-First Century Communications and Video
Accessibility Act of 2010, Public Law 111-265, 124 Stat. 2795 (2010)
(making technical corrections to the CVAA).
\2\ See Public Law 111-260, Sec. 203.
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2. Closed captioning is an assistive technology that provides
individuals who are deaf or hard of hearing with access to television
programming. Closed captioning displays the audio portion of a
television signal as printed words on the television screen. Existing
regulations require the use of closed captioning on television.\3\
Until now, however, closed captioning has not been required for IP-
delivered video programming. That changed with the enactment of the
CVAA. Specifically, Section 202(b) of the CVAA revised Section 713 of
the Communications Act of 1934, as amended (the ``Act''), to require
the Commission to ``revise its regulations to require the provision of

[[Page 59965]]

closed captioning on video programming delivered using Internet
protocol that was published or exhibited on television with captions
after the effective date of such regulations.\4\
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\3\ See 47 CFR 79.1 (setting forth the requirements for closed
captioning of video programming on television).
\4\ 47 U.S.C. 613(c)(2)(A).
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3. The CVAA also required the Chairman of the Commission to
establish an advisory committee known as the Video Programming
Accessibility Advisory Committee (``VPAAC'').\5\ Section 201(e)(1) of
the CVAA required the VPAAC to submit a report on closed captioning to
the Commission six months after its first meeting, or by July 13,
2011.\6\ The VPAAC submitted this report on July 12, 2011.\7\ By
statute, within six months of the submission of the VPAAC Report, the
Commission must issue final regulations to require the provision of
closed captioning on IP-delivered video programming.\8\ Accordingly,
the Commission must revise its regulations by January 12, 2012.\9\ By
the same date, pursuant to Section 203 of the CVAA, the Commission must
revise its regulations to include any technical standards, protocols,
and procedures needed for the transmission of closed captioning
delivered using IP, to ensure that certain apparatus are capable of
rendering, passing through, or otherwise permitting the display of
closed captions for end users.\10\
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\5\ Public Law 111-260, Sec. 201(a) (providing that, within 60
days of the CVAA's enactment, the Chairman must establish an
advisory committee). The CVAA was enacted on October 8, 2010, and
the Commission announced the establishment of the VPAAC on December
7, 2010. See Notice, Video Programming and Emergency Access Advisory
Committee Announcement of Members, DA 10-2320, 76 FR 2686, January
14, 2011; see also Public Notice, Erratum, Video Programming and
Emergency Access Advisory Committee Announcement of Members (rel.
Jan. 7, 2011). Although in the CVAA, this advisory committee is
formally known as the ``Video Programming and Emergency Access
Advisory Committee,'' its working name was shortened to the ``Video
Programming Accessibility Advisory Committee'' in order to avoid
confusion with a second advisory committee required by the CVAA that
is addressing 9-1-1 emergency access issues. See Public Law 111-260,
Sec. 106 (directing the Commission to establish an ``Emergency
Access Advisory Committee'').
\6\ Section 201(e)(1) of the CVAA required the VPAAC's report to
include:
(A) A recommended schedule of deadlines for the provision of
closed captioning service.
(B) An identification of the performance objectives for
protocols, technical capabilities, and technical procedures needed
to permit content providers, content distributors, Internet service
providers, software developers, and device manufacturers to reliably
encode, transport, receive, and render closed captions of video
programming, except for consumer generated media, delivered using
Internet protocol.
(C) An identification of additional protocols, technical
capabilities, and technical procedures beyond those available as of
the date of enactment of the [CVAA] for the delivery of closed
captions of video programming, except for consumer generated media,
delivered using Internet protocol that are necessary to meet the
performance objectives identified under subparagraph (B).
(D) A recommendation for technical standards to address the
performance objectives identified in subparagraph (B).
(E) A recommendation for any regulations that may be necessary
to ensure compatibility between video programming, except for
consumer generated media, delivered using Internet protocol and
devices capable of receiving and displaying such programming in
order to facilitate access to closed captions.
Public Law 111-260, Sec. 201(e)(1).
\7\ See First Report of the Video Programming Accessibility
Advisory Committee on the Twenty-First Century Communications and
Video Accessibility Act of 2010: Closed Captioning of Video
Programming Delivered Using Internet Protocol, July 12, 2011,
available at http://transition.fcc.gov/cgb/dro/VPAAC/First_VPAAC_Report_to_the_FCC_7-11-11_FINAL.pdf (``VPAAC Report'').
\8\ 47 U.S.C. 613(c)(2)(A).
\9\ See id.
\10\ Public Law 111-260, Sec. 203(a)-(b), (d).
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We consider below revisions to our rules that would implement the
requirements of Sections 202(b) and 203 of the CVAA, as well as the
conforming amendment set forth in Section 202(c) of the CVAA. These
proposals could fulfill Congress' goal of enabling consumers who are
deaf or hard of hearing to have access to IP-delivered video
programming. As discussed below, we seek comment on rule changes that
would:
Specify the obligations of entities subject to Section
202(b) by:
Requiring video programming owners to send required
caption files for IP-delivered video programming to video programming
distributors and video programming providers along with program files;
Requiring video programming distributors and video
programming providers to enable the rendering or pass through of all
required captions to the end user; and
Requiring the quality of all required captioning of IP-
delivered video programming to be of at least the same quality as the
captioning of the same programming when shown on television; \11\
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\11\ See Section III.A., infra. As discussed below, a covered
entity may be permitted to improve upon the quality of the
captioning of IP-delivered video programming.
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Create a schedule of deadlines by which:
[cir] All prerecorded and unedited programming subject to the new
requirements must be captioned within six months of publication of the
rules in the Federal Register;
[cir] All live and near-live programming subject to the new
requirements must be captioned within 12 months of publication of the
rules in the Federal Register; and
[cir] All prerecorded and edited programming subject to the new
requirements must be captioned within 18 months of publication of the
rules in the Federal Register; \12\
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\12\ See Section III.B., infra.
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Craft procedures by which video programming providers and
video programming owners may petition the Commission for exemptions
from the new requirements based on economic burden; \13\
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\13\ See Section III.C., infra.
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Establish a mechanism to make information about video
programming subject to the CVAA available to video programming
providers and distributors, by requiring video programming owners to
provide programming for IP delivery either with captions, or with a
certification that captions are not required for a stated reason; \14\
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\14\ See Section III.D., infra.
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Decline to adopt particular technical standards for IP-
delivered video programming; \15\
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\15\ See Section III.E., infra.
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Decline to treat a de minimis failure to comply with the
new rules as a violation, and permit entities to comply with the new
requirements by alternate means; \16\ and
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\16\ See Section III.F., infra.
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Adopt procedures for complaints alleging a violation of
the new requirements.\17\ Additionally, we seek comment on the
appropriate requirements for devices subject to the closed captioning
requirements of Section 203.\18\
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\17\ See Section III.G., infra.
\18\ See Section IV., infra.
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II. Background

A. History of Closed Captioning

5. Captions first appeared on television in the early 1970s in an
``open captioning format'' by which the text was transmitted with the
video in a manner that was visible to all viewers.\19\ In 1977, the
Commission adopted rules providing that line 21 of the vertical
blanking interval (``VBI'') would be used primarily for the
transmission of closed captioning to analog receivers.\20\ For

[[Page 59966]]

analog television, closed captioning is transmitted through encoded
data within the television signal's VBI ``which, when decoded, provides
a visual depiction of information simultaneously being presented on the
aural channel (captions).\21\ Since closed captioning is hidden as
encoded data transmitted within the television signal, receivers can be
(and are) designed to allow consumers to turn the captioning on and
off.\22\ In addition to displaying the audio portion of a television
signal as printed words, captions may identify speakers, sound effects,
music, and laughter.\23\
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\19\ See Closed Captioning and Video Description of Video
Programming, Implementation of Section 305 of the Telecommunications
Act of 1996, Video Programming Accessibility, FCC 96-318, 61 FR
42249, August 14, 1996.
\20\ See TV Captioning for the Deaf, Report and Order, 63 FCC 2d
378 (1977). See also Permissible Uses of the Vertical Blanking
Interval, FCC 93-235, 58 FR 29981, May 25, 1993 (permitting enhanced
closed captioning and other broadcast-related information services
on line 21, field 2 of the VBI).
\21\ 47 CFR 73.682(a)(22)(i).
\22\ See 2008 Closed Captioning Order, FCC 08-255, 74 FR 1594,
January 13, 2009 (``2008 Closed Captioning Order'').
\23\ See id.
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6. The Television Decoder Circuitry Act of 1990 (``TDCA'') \24\
required all television receivers with screen sizes of 13 inches or
larger, manufactured or sold in the United States, to possess closed
captioning capability.\25\ In the years that followed, the use of
closed captioning increased somewhat, through the voluntary efforts of
the video programming industry.\26\ As the number of channels of video
programming increased, Congress remained concerned that ``video
programming through all delivery systems should be accessible'' to
individuals who are deaf or hard of hearing.\27\
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\24\ Public Law 101-431, 104 Stat. 960 (1990) (codified at 47
U.S.C. 303(u), 330(b)).
\25\ See TDCA Order, FCC 91-119, 56 FR 27200, June 13, 1991
(``TDCA Order'').
\26\ See 1997 Closed Captioning Order, FCC 97-279, 62 FR 48487,
September 16, 1997 (``1997 Closed Captioning Order''), recon.
granted in part, FCC 98-236, 63 FR 55959, October 20, 1998.
\27\ H.R. Rep. No. 104-204, 104th Cong., 1st Sess. at 113-14
(1995).
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7. In the Telecommunications Act of 1996, Congress added a new
section entitled ``Video Programming Accessibility'' to the Act.\28\ To
ensure access for individuals with hearing disabilities, Section 713 of
the Act requires the closed captioning of video programming.\29\ In
1997, the Commission adopted rules and implementation schedules for
closed captioning of video programming, as required by Section 713.\30\
The schedules varied based on whether programming is analog or digital,
Spanish or English, and whether it is pre-rule (i.e., older) or new
programming. Today, all new English and Spanish language television
programming that is subject to the rule must be provided with closed
captions,\31\ and 75 percent of pre-rule English language television
programming that is subject to the rule must be provided with closed
captions.\32\ In 2000, the Commission adopted rules governing the
display of captions on digital receivers, and the Commission's rules
now specify technical standards for the reception and display of
captioning on both analog and digital receivers.\33\
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\28\ See Section 305 of the Telecommunications Act of 1996,
Public Law 104-104, 110 Stat. 56 (codified at 47 U.S.C. 613).
\29\ 47 U.S.C. 613.
\30\ See generally 1997 Closed Captioning Order.
\31\ 47 CFR 79.1(b)(1)(iv), 79.1(b)(3)(iv).
\32\ 47 CFR 79.1(b)(2)(ii). As of January 1, 2012, 75 percent of
pre-rule Spanish language television programming that is subject to
the rule will be required to be provided with closed captions. See
47 CFR 79.1(b)(4)(ii).
\33\ 47 CFR 15.119, 15.122.
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B. IP-Delivered Closed Captioning and Sections 202(b) and (c) of the
CVAA

8. Today, IP-delivered video programming takes a number of forms,
such as programming delivered to a personal computer, tablet device,
cellular telephone, game console, Blu-ray player, or set top box. The
Commission previously recognized that the Internet has become a
powerful method of video programming distribution, and that the amount
of video content available on the Internet is continuing to increase
significantly each year, as consumers increasingly utilize the Internet
for this purpose.\34\ The Internet's role in video programming delivery
``has progressed from negligible just a few years ago to an
increasingly mainstream role today.'' \35\ Although much IP-delivered
video programming remains inaccessible to individuals who are deaf or
hard of hearing, certain entities have taken voluntarily measures to
begin including captions on some of their programming.\36\
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\34\ Applications of Comcast Corp., General Electric Co. and NBC
Universal, Inc. For Consent to Assign Licenses and Transfer Control
of Licenses, Memorandum Opinion and Order, 26 FCC Rcd 4238, 4256,
para. 41 (2011) (``Comcast-NBCU Order'').
\35\ Id. at 4262, para. 60.
\36\ For example, we are aware that Apple, CBS, Comcast, DISH,
Disney/ABC, Fox, Hulu, NBC, Netflix, Time Warner Cable, and YouTube/
Google currently provide captions for certain IP-delivered video
programming.
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9. Through the CVAA, Congress sought to ``update the communications
laws to help ensure that individuals with disabilities are able to
fully utilize communications services and equipment and better access
video programming.'' \37\ The Committee reports state that, while
modern technology such as the Internet has everyday benefits, those
benefits are not always accessible to people with disabilities.\38\
Section 202(b) of the CVAA requires the Commission to revise its
regulations to require closed captioning of IP-delivered video
programming that was shown on television with captions after the
effective date of the new regulations.\39\
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\37\ See S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010);
H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19 (2010).
\38\ See S. Rep. No. 111-386 at 1-2; H.R. Rep. No. 111-563 at
19.
\39\ The CVAA defines ``Internet protocol'' as including
``Transmission Control Protocol and a successor protocol or
technology to Internet protocol.'' Public Law 111-260, Sec. 206(5).
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10. The CVAA applies broadly to the distributors, providers, and
owners of IP-delivered video programming. Specifically, Section 202(b)
of the CVAA amends Section 713 of the Act to require the Commission's
regulations to ``include an appropriate schedule of deadlines for the
provision of closed captioning, taking into account whether such
programming is prerecorded and edited for Internet distribution, or
whether such programming is live or near-live and not edited for
Internet distribution.\40\ The Commission may delay or waive the
requirements if application to live IP-delivered video programming is
``economically burdensome to providers of video programming or program
owners, '' \41\ and it may exempt a ``service, class of service,
program, class of program, equipment, or class of equipment for which
the Commission has determined that the application of such regulations
would be economically burdensome for the provider of such service,
program, or equipment. '' \42\ Section 202(b) of the CVAA also requires
the Commission to ``establish a mechanism to make available to video
programming providers and distributors information on video programming
subject to the [CVAA] on an ongoing basis. '' \43\ Section 202(b)
further directs the Commission not to find that a de minimis failure is
a violation,\44\ and to permit entities to meet the new requirements by
alternate means.\45\ Finally, Section 202(c) of the CVAA consists of a
``conforming amendment'' to Section 713(d) of the Act, regarding the
process for petitioning for an exemption.\46\
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\40\ 47 U.S.C. 613(c)(2)(B).
\41\ 47 U.S.C. 613(c)(2)(C).
\42\ 47 U.S.C. 613(c)(2)(D)(ii).
\43\ 47 U.S.C. 613(c)(2)(D)(v).
\44\ 47 U.S.C. 613(c)(2)(D)(vii).
\45\ 47 U.S.C. 613(c)(3).
\46\ 47 U.S.C. 613(d). Neither the statute nor the legislative
history explains what Congress meant by characterizing the amendment
as ``conforming.''

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[[Page 59967]]

C. Section 203 of the CVAA

Congress also determined that the objectives of the CVAA could not
be met unless the devices that consumers use to view video programming,
including those devices that may be small and portable, are able to
display closed captions. Therefore, it enacted Section 203(a),
requiring ``that [the] devices consumers use to view video programming
are able to display closed captions.'' \47\ To do this, Congress
directed the Commission to enact provisions that require all
``apparatus designed to receive or play back video programming
transmitted simultaneously with sound * * * be equipped with built-in
closed caption decoder circuitry or capability'' \48\ and contain
exceptions only for those devices which are ``display-only video
monitors with no playback capability'' \49\ and devices with picture
screens less than 13 inches for which meeting the regulation is not
``achievable.'' \50\ Additionally, the Commission must require that all
devices ``designed to record video programming * * * [must] enable the
rendering or the pass-through of closed captions'' \51\ and that the
``interconnection mechanisms and standards for digital video source
devices are available to * * * permit or render the display of closed
captions.'' \52\
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\47\ S. Rep. No. 111-386 at 14; H.R. Rep. No. 111-563 at 30
\48\ 47 U.S.C. 303(u)(1).
\49\ 47 U.S.C. 303(u)(2)(B).
\50\ 47 U.S.C. 303(u)(2)(A). In determining whether the
requirements of a provision are achievable, the Commission shall
consider the following factors: (1) The nature and cost of the steps
needed to meet the requirements of this section with respect to the
specific equipment or service in question; (2) the technical and
economic impact on the operation of the manufacturer or provider and
on the operation of the specific equipment or service in question,
including on the development and deployment of new communications
technologies; (3) the type of operations of the manufacturer or
provider; and (4) the extent to which the service provider or
manufacturer in question offers accessible services or equipment
containing varying degrees of functionality and features, and
offered at differing price points. 47 U.S.C. 617(g)(1)-(4).
\51\ 47 U.S.C. 303(z)(1).
\52\ 47 U.S.C. 303(z)(2).
---------------------------------------------------------------------------

12. Taken together, these statutory provisions seek to encompass
many devices on which consumers view video, such as portable media
players, personal computers, televisions, and the devices consumers
connect to their televisions to access programming via the Internet and
other sources. As in Section 202(b), the Commission is required to
prescribe regulations within six months of the VPAAC Report and to
provide that entities may meet the requirements of these provisions
through ``alternate means.'' \53\
---------------------------------------------------------------------------

\53\ Public Law 111-260, Sec. 203(d)(1), (e).
---------------------------------------------------------------------------

D. VPAAC Working Group 1 and Its Report

13. The VPAAC's first meeting was held at the Commission on January
13, 2011, and a second meeting was held on May 5, 2011. During the
first meeting, the VPAAC was divided into four working groups; Working
Group 1 took on the task of examining ``issues involved in transferring
closed captions provided on television programs to the online
environment.'' \54\ In addition to work conducted at the January and
May meetings, Working Group 1 conferred and collaborated on these
issues through weekly conference calls, regular e-mail correspondence,
and the group's workshare Web site (or ``wiki''). \55\ The Media Bureau
also conducted informal meetings with online video programming
distributors, broadcast networks, multichannel video programming
distributors (``MVPDs''), consumer advocacy groups, and others that
were interested in discussing Section 202 of the CVAA in anticipation
of the Media Bureau's receipt of the VPAAC Report and its preparation
of this NPRM.
---------------------------------------------------------------------------

\54\ See VPAAC Report at 4.
\55\ See id. at 5.
---------------------------------------------------------------------------

14. As noted above, the VPAAC submitted its report on July 12,
2011. The VPAAC Report provided suggestions for how the Commission's
regulations on IP closed captioning should address caption
completeness, placement, accuracy, and timing, as well as specific
technical requirements that a user's Internet-connected media players
should support.\56\ The VPAAC Report went on to describe technical
requirements for the delivery of closed captioning of IP-delivered
television programming, suggesting that the Commission require a single
interchange format but not a single delivery format for IP closed
captioning.\57\ Next, the VPAAC Report described ``the technical
capabilities and procedures needed for entities to reliably encode,
transport, receive and render broadcast-television closed captions over
the Internet.\58\ The VPAAC Report discussed three interfaces that may
require standardization--(i) interchange formats (i.e., between video
programming owners and video programming distributors/providers), (ii)
delivery file formats (i.e., between video programming distributors/
providers and user devices), and (iii) linkages to users'' captioning
display controls (i.e., between devices or between software and
firmware running on one device).\59\ The VPAAC Report also briefly
discussed potential developments in IP-delivered closed captioning \60\
and proposed a schedule of deadlines for the provision of closed
captioning over IP. \61\ We describe the VPAAC recommendations more
specifically in the context of our discussion of Sections 202 and 203
below.\62\
---------------------------------------------------------------------------

\56\ See id. at 13-16.
\57\ See id. at 16-20. The VPAAC Report proposed defining
``interchange format'' as ``[t]he encoded caption data that
preserves all of the original semantic information and text * * *
and allows easy conversion to other formats.'' See id. at 18. See
also id. at 22 (``By `interchange format' we mean the format of
closed-captioning data carried within television content as it is
distributed from the content provider to programming
distributors.''). The VPAAC Report proposed defining ``delivery
format'' as ``[t]he encoded caption data contained within a download
or stream of content to a consumer device in either the standard
interchange format or a different network-specific or video-player-
specific format * * *.'' See id. at 18.
\58\ See id. at 21-28.
\59\ See id. at 22-23, 26-28. We discuss interchange and
delivery formats in Sections III.E. and IV.B., infra.
\60\ See id. at 28-29.
\61\ See id. at 29-30. The VPAAC Report also contains three
appendices. Appendix A contains a summary of recommended DTV
receiver requirements. See id. at 31-32. Appendix B lists ``best
practices'' for closed captioning of IP-delivered video programming.
See id. at 33 (noting that ``there is not consensus about whether
these practices should be mandated or only offered as
suggestions''); see also id. at 13 n. 29. Lastly, Appendix C details
unresolved issues that the VPAAC recommended the Commission consider
in the NPRM. See id. at 34-35.
\62\ See Sections III. and IV., infra.
---------------------------------------------------------------------------

III. Section 202(b) of the CVAA

A. Entities Subject to Section 202(b) of the CVAA and Their Obligations

Various provisions of Section 202(b) of the CVAA reference ``video
programming distributors'' (``VPDs''), ``video programming providers''
(``VPPs''), and ``video programming owners'' (``VPOs''). We seek
comment on how the Commission should define these terms.\63\ The CVAA
provides some guidance on the definition of the first two terms,
requiring the Commission to ``clarify that, for the purposes of
implementation, [sic] of this subsection, the terms `video programming
distributors' and `video programming providers' include an entity that
makes available directly to the end user video programming through a
distribution

[[Page 59968]]

method that uses Internet protocol.'' \64\ We propose to define VPD and
VPP as having the same meaning, because there does not seem to be a
practical benefit in distinguishing between the two for purposes of
Section 202(b) of the CVAA. We seek comment on this proposal. In
addition, in recognition of the broad reach that Congress intended for
Section 202(b), we propose to define both a VPD and a VPP as any entity
that makes available directly to the end user video programming through
a distribution method that uses IP. Further, we propose to define a VPO
as any person or entity that owns the copyright of the video
programming delivered to the end user through a distribution method
that uses IP. We seek comment on these proposed definitions. Should the
Commission instead define VPDs and VPPs separately, and if so, how
should those definitions differ from one another? \65\ If we were to
define VPDs and VPPs differently from one another, what would be the
effect on provisions of the CVAA that apply to VPPs and VPOs but not
VPDs? Will a significant number of small entities be covered by the
proposed definition of VPD/VPP? If multiple video programming
distributors/providers are involved in making video programming
available to the end user, but only one distributor/provider directly
makes the video programming available to the end user, where do the
distributors/providers in the middle of the chain fit within our
proposed definitions? Should the definition of VPO include anything in
addition to the person or entity that owns the copyright of the IP-
delivered video programming, for example, any person or entity to which
the copyright owner licenses IP-delivered video programming?
---------------------------------------------------------------------------

\63\ Our use of the terms VPD and VPP in this NPRM is meant to
reference our proposed definitions of those terms in this context,
and not to invoke any use of those terms in other contexts,
including in our television closed captioning or video description
rules. This NPRM does not propose any modifications to our
television closed captioning rules.
\64\ 47 U.S.C. 613(c)(2)(D)(iii). The Commission's rules
currently define VPDs and VPPs but these definitions apply only to
the closed captioning of video programming that is being distributed
and exhibited on television. Specifically, our rules define a
``video programming distributor'' as ``[a]ny television broadcast
station licensed by the Commission and any [MVPD] * * * and any
other distributor of video programming for residential reception
that delivers such programming directly to the home and is subject
to the jurisdiction of the Commission.'' 47 CFR 79.1(a)(2). In
addition, our rules define a ``video programming provider'' as
``[a]ny video programming distributor and any other entity that
provides video programming that is intended for distribution to
residential households including, but not limited to broadcast or
nonbroadcast television network and the owners of such
programming.'' 47 CFR 79.1(a)(3).
\65\ The definition of VPD and VPP may be particularly relevant
insofar as certain provisions of Sections 202(b) and (c) refer to
VPPs and VPOs, but not VPDs. See, e.g., 47 U.S.C. 613(c)(2)(C),
(c)(2)(D)(vii), (d)(3).
---------------------------------------------------------------------------

16. The CVAA requires the Commission to ``describe the
responsibilities of video programming providers or distributors and
video programming owners.'' \66\ We propose to require VPOs to send
program files to VPDs/VPPs with all required captions, and, as
contemplated by Section 202(b), to require VPDs/VPPs to enable ``the
rendering or pass through'' of all required captions to the end
user.\67\ When a VPD/VPP receives a program file with required
captions, it would be required to include those captions at the time it
makes the program file available to end users.\68\ We seek comment on
these proposals as well as other appropriate responsibilities of VPDs/
VPPs and VPOs under Section 202(b) of the CVAA.\69\ For example, should
we require the VPD/VPP to provide a mechanism, such as a button or
icon, on its Web site which would allow consumers to easily access
closed captioning? If a VPO licenses its content to a third party for
Internet distribution, what are the obligations of that third party
licensee? If a VPD/VPP knows or reasonably should have known that a
program is required to include captions, but the VPO failed to provide
such captions, what obligations should the VPD/VPP have to obtain such
captions before providing the programming to the end user? In an
enforcement proceeding, what types of evidence could be considered to
establish the VPD/VPP's knowledge, and should the VPD/VPP bear the
burden of proof on that issue? Should the VPD/VPP have an obligation to
determine whether the programming is subject to captioning requirements
before providing it to the end user? In addition, what liability should
the VPD/VPP face should it decide to provide the program to end users
without the required captions? \70\ In such a situation, should both
the VPD/VPP and VPO be held responsible for the violation? We seek
comment generally on the responsibilities that VPDs/VPPs should have to
ensure that video programming has the required captions before they
pass it through to viewers. Should we require VPDs/VPPs to include on
their Web sites program listings that indicate whether a particular
program is captioned? If multiple video programming distributors/
providers are involved in making video programming available to the end
user, what are the obligations of the distributors/providers in the
middle of the chain? For example, would the distributors/providers in
the middle of the chain be required to enable the rendering or pass
through of all required captions?
---------------------------------------------------------------------------

\66\ 47 U.S.C. 613(c)(2)(D)(iv).
\67\See also Section III.D., infra (discussing a proposed
mechanism that would require VPOs providing a video program to VPDs/
VPPs for IP delivery to provide the program either with captions, or
with a certification that captions are not required for a reason
stated in the certification). Congress did not explain what it meant
by enabling ``the rendering or pass through'' but we presume that
Congress meant that VPDs/VPPs must ensure that closed captions are
transmitted appropriately.
\68\ We propose in Section III.D., infra, that when a program
previously provided to a VPD/VPP without captions becomes subject to
the captioning requirement, the VPO must send a certification to
that effect to VPDs/VPPs within seven days, and the VPD/VPP must
make captions available within five days of receipt of the revised
certification.
\69\ The VPAAC indicated that it did not have sufficient time to
determine the responsibilities of various stakeholders. See VPAAC
Report at 34.
\70\ Section 713(h) of the Act previously provided, ``Nothing in
this section shall be construed to authorize any private right of
action to enforce any requirement of this section or any regulation
thereunder. The Commission shall have exclusive jurisdiction with
respect to any complaint under this section.'' Section 202(a) of the
CVAA redesignated former Section 713(h) as Section 713(j). See
Public Law 111-260, Sec. 202(a). This provision applies to the
Commission's IP closed captioning regulations promulgated in
accordance with the CVAA's revisions to Section 713 of the Act, in
addition to the Commission's existing closed captioning regulations.
---------------------------------------------------------------------------

17. In addition to requiring the presence of captions, we seek
comment on whether our rules for closed captioning of IP-delivered
video programming should include any required performance objectives.
It is important that, in considering this issue, the Commission
balances the interests of users of closed captioning against the
concern that overly burdensome standards may cause VPDs/VPPs to refrain
from posting videos online. The VPAAC Report made a number of proposals
regarding the quality of captions of IP-delivered video programming:
(1) That the Commission require IP-delivered captions to be
complete, such that ``[n]othing must be lost in transcoding when
converting captions between conventional broadcast captioning formats
and Internet;'' \71\
---------------------------------------------------------------------------

\71\ See VPAAC Report at 13.
---------------------------------------------------------------------------

(2) That ``[f]or Internet-delivered caption content, the
positioning information as originally authored shall be made available
to the consumer device;'' \72\
---------------------------------------------------------------------------

\72\ See id. at 13-14.
---------------------------------------------------------------------------

(3) That the accuracy of IP-delivered video programming must be
``equal to or greater than the accuracy of captions shown on
television;'' \73\
---------------------------------------------------------------------------

\73\See id. at 14.
---------------------------------------------------------------------------

(4) That the Commission require IP-delivered captions to possess
sufficient timing, such that ``[a]ll processing through the
distribution chain, including transcoding, must provide a timing
experience that is equal to or an improvement to the timing of captions

[[Page 59969]]

provided in the captioning shown on television;'' \74\ and
---------------------------------------------------------------------------

\74\ See id.
---------------------------------------------------------------------------

(5) That a user's Internet-connected media players should support
the ability to change character color, opacity, size, font, background
color and opacity, character edge attributes, window color, and
language.\75\
---------------------------------------------------------------------------

\75\See id. at 15-16.
---------------------------------------------------------------------------

We note that Part 15 of the Commission's rules currently contains
certain required user controls for television closed captions,
including the ability to change text color, opacity, size, font,
background color and opacity, character edge attributes, and window
color.\76\
---------------------------------------------------------------------------

\76\See 47 CFR 15.122.
---------------------------------------------------------------------------

18. It appears that Congress intended, at a minimum, that captions
of IP-delivered video programming should be of at least the same
quality as captions shown on television. Accordingly, we propose to
adopt a rule requiring the captioning of IP-delivered video programming
to be of at least the same quality as the television captions for that
programming. An evaluation of ``quality'' could include the
consideration of such factors as completeness, placement, accuracy, and
timing, all of which the VPAAC suggested that we consider. We seek
comment as to whether the inclusion of any of these factors would lead
to unintended consequences such as requiring a large amount of
resources to be expended to comply. We contemplate that a requirement
for captions of IP-delivered video programming to be of at least the
same quality as captions of television programming would require IP-
delivered captions to include the same user tools, such as the ability
to change caption font and size. These proposals are consistent with
the VPAAC's recommendation that captions of IP-delivered video
programming should provide consumers with an experience that is equal
to or better than the comparable television experience.\77\ We seek
comment on these proposals, which could help benefit consumers, while
ensuring that compliance with our new rules is as similar as possible
to compliance with existing rules for television closed captioning.
---------------------------------------------------------------------------

\77\ See, e.g., VPAAC Report at 13 (``the consumer must be given
an experience that is equal to, if not better than, the experience
provided as the content was originally aired on television using the
CEA-608/708 system'').
---------------------------------------------------------------------------

19. In meetings with Commission staff, certain VPDs/VPPs expressed
concern that they would be unable to provide captions that are ``better
than'' those available on television because improving the captions
would violate the VPO's copyright. Under our proposal, however, VPDs/
VPPs would not be required to improve caption quality; rather, they
would be required to ensure that the quality of captions does not
decline when delivered via IP as compared to when shown on television.
To the extent that VPDs/VPPs have permission to alter captions on the
programming so that they improve the viewing experience, we propose
that they be permitted to do so.\78\ We seek comment on any copyright
concerns implicated by our proposals, including how we should balance
any desire for certain user controls against a VPO's copyright
protections.
---------------------------------------------------------------------------

\78\For example, if programming was shown live on television and
then re-shown over the Internet, a VPD/VPP with permission may want
to fix mistakes that occurred as a result of real-time captioning.
While we do not propose requiring the correction of such errors, we
encourage VPDs/VPPs to make corrections where permitted and
feasible, given that the subject programming will be available on an
ongoing basis to viewers on the VPD/VPP's Web site. We believe that
such improvements could significantly enhance the viewing experience
of people who are deaf or hard of hearing.
---------------------------------------------------------------------------

20. Section 202(a) of the CVAA defines ``video programming'' as
``programming by, or generally considered comparable to programming
provided by a television broadcast station, but not including consumer-
generated media (as defined in section 3).'' \79\ Section 3 of the Act,
as revised by the CVAA, defines ``consumer generated media'' as
``content created and made available by consumers to online Web sites
and services on the Internet, including video, audio, and multimedia
content.'' \80\ The Senate and House Committee reports do not shed
further light on the terms ``video programming'' and ``consumer-
generated media.'' \81\ We seek comment on the scope of these
definitions. We seek specific examples of IP-delivered video
programming that is not comparable to programming provided by a
television broadcast station, and examples of consumer-generated IP-
delivered video programming, both of which would be exempt from the
CVAA's captioning requirements. We also seek specific examples of IP-
delivered video programming that is comparable to programming provided
by a television broadcast station. Does ``consumer-generated media''
include content that has been published or exhibited on television with
captions, which is made available online by individual consumers
without the consent of the VPO?
---------------------------------------------------------------------------

\79\ 47 U.S.C. 613(h)(2). We note that this definition of
``video programming'' is almost identical to the definition set
forth in Section 602(20) of the Act. See 47 U.S.C. 522(20) (defining
``video programming'' as ``programming provided by, or generally
considered comparable to programming provided by, a television
broadcast station''). See also Implementation of the Child Safe
Viewing Act; Examination of Parental Control Technologies for Video
or Audio Programming, FCC 09-14, 74 FR 11334, para. 8, March 17,
2009 (seeking comment on whether the definition of the term ``video
programming'' from Section 602(20) of the Act is the definition that
the Commission should use for purposes of the Child Safe Viewing
Act, and asking whether that term includes videos provided on
Internet video hosting sites such as YouTube).
\80\47 U.S.C. 153(54).
\81\ The Senate Committee report echoed the Section 3 definition
of ``consumer generated media,'' stating that that term
``encompasses content created and made available by consumers to
Internet Web sites and venues, including audio, video, and
multimedia content.'' See S. Rep. No. 111-386 at 5-6.
---------------------------------------------------------------------------

21. We propose to apply the captioning requirements of Section
202(b) to full-length programming, and not to video clips or
outtakes.\82\ We seek comment on what Congress meant by the phrase
``full-length programming.'' We propose to define ``outtakes'' as
content that is not used in an edited version of video programming
shown on television, and we invite comment on this proposal. We propose
to define ``video clips'' as small sections of a larger video
programming presentation, and we invite comment on this proposal.\83\
Should we specify the definition of ``video clips'' by providing a
maximum duration of the video programming that constitutes a ``clip,''
or by providing that the length of a ``video clip'' may not exceed a
certain percentage of the overall length of the video program? When a
full-length program is posted online in multiple segments, to enable
consumers to access a particular segment of the program, does each
segment constitute a video clip?
---------------------------------------------------------------------------

\82\ See 47 U.S.C. 613(h)(2) (``The term `video programming'
means programming by, or generally considered comparable to
programming provided by a television broadcast station * * *''); see
also S. Rep. No. 111-386 at 13-14 (``The Committee intends, at this
time, for the regulations to apply to full-length programming and
not to video clips or outtakes.''); H.R. Rep. No. 111-563 at 30
(same).
\83\ This is consistent with the Comcast-NBCU Order, which
explained that ``short programming segments'' are ``also known as
clips.'' See 26 FCC Rcd at 4358 (Appendix A: Conditions).
---------------------------------------------------------------------------

22. We seek comment on whether IP-delivered content that has aired
on television only in another country, and not in this country, is
exempt from the CVAA's captioning requirements. Although not explicitly
stated in the CVAA, it appears that the best reading of the statute
requires closed captioning on IP-delivered video programming that was
published or exhibited on television in this country with captions
after the effective date of the

[[Page 59970]]

regulations, and we seek comment on this determination. It appears that
the differing caption standards in foreign countries could hinder the
process of transferring those captions to a suitable format for U.S.
consumers and seek comment on this understanding.

B. Schedule of Deadlines

23. Pursuant to the CVAA, the Commission must, by January 12, 2012,
``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 such regulations.'' \84\ The regulations must ``include an
appropriate schedule of deadlines for the provision of closed
captioning, taking into account whether such programming is prerecorded
and edited for Internet distribution, or whether such programming is
live or near-live and not edited for Internet distribution.'' \85\
Further, the regulations must define the phrases ``near-live
programming'' and ``edited for Internet distribution.'' \86\ Below, we
seek comment on the definitions of ``live programming,'' ``near-live
programming,'' ``prerecorded programming,'' and ``edited for Internet
distribution.'' We propose to apply these definitions solely to
regulations of IP closed captioning pursuant to the CVAA, and we seek
comment on that proposal. Further, below we seek comment on the
appropriate schedule of deadlines for the provision of closed
captioning.
---------------------------------------------------------------------------

\84\ 47 U.S.C. 613(c)(2)(A).
\85\ 47 U.S.C. 613(c)(2)(B).
\86\ 47 U.S.C. 613(c)(2)(D)(i).
---------------------------------------------------------------------------

24. The VPAAC proposed to define ``live programming'' as
``programming created and presented on television and simulcast for
Internet distribution to the end user as it airs on television.'' \87\
Based on conversations with members of the VPAAC, we understand that
the definition of ``live programming'' was meant to encompass
programming such as news, sports, and awards shows, for which
captioning cannot be done in advance, rather than a ``simulcast'' in
which potentially prerecorded programming is shown on television and
the Internet simultaneously.\88\ We note that, in the recent Video
Description Order, the Commission defined ``live programming'' in that
context as ``programming aired substantially simultaneously with its
performance.'' \89\ The definition of ``live programming'' in the Video
Description Order could achieve the same objective as the definition of
``live programming'' proposed by the VPAAC. In the context of our IP
closed captioning rules, however, we believe it is important to clarify
that programming is ``live'' if it is shown live on television.
Accordingly, we propose defining ``live programming'' as video
programming that is shown on television substantially simultaneously
with its performance. The phrase ``substantially simultaneously''
contemplates that live programming may include a slight delay, for
example, to prevent certain objectionable material from airing. We seek
comment on this proposal. We understand that additional processes may
need to be put in place to facilitate the captioning of live
programming when it is delivered using IP, and we seek comment on what
those processes entail and who would be responsible for them.
---------------------------------------------------------------------------

\87\ See VPAAC Report at 29.
\88\ We understand that a simulcast may either involve live
programming or prerecorded programming.
\89\ See Video Description Order, FCC 11-126, 76 FR 55585, para.
40, September 8, 2011 (``Video Description Order'').
---------------------------------------------------------------------------

25. In addition, given the VPAAC's use of the word ``simulcast'' in
its proposed definition of ``live programming,'' we also seek comment
on whether there are additional difficulties in providing captioning of
IP-delivered video programming, when the programming is shown on
television and the Internet simultaneously. If so, should we provide a
lengthier deadline by which simulcast programming must comply with
Section 202(b)?
26. The VPAAC proposed to define ``near-live programming'' as ``any
programming that was produced from start to finish within 12 hours of
being published or exhibited on television.'' \90\ As referenced in
Appendix C to the VPAAC Report, we understand that members of the
industry and consumer groups expressed differing views as to whether
the definition of ``near-live programming'' should reference
programming that was ``substantively produced'' within 12 hours of
being shown on television. We understand based on conversations with
members of the VPAAC that ``substantively produced'' means programming
that is largely, but not entirely, produced within 12 hours of being
shown on television. For example, a news magazine may include a number
of live segments, but it may also include some segments that were
recorded and produced weeks or months earlier. It appears that VPDs/
VPPs and/or VPOs may need to put additional processes in place to
handle captioning of certain video programming that is predominantly,
but not entirely, recorded and produced within 12 hours of its
distribution, such as some news magazines, because the audio may be
captioned as the program is shown on television. Accordingly, we
propose to modify the VPAAC's proposed definition, and instead to
define ``near-live programming'' as video programming that is
substantively recorded and produced within 12 hours of its distribution
to television viewers.\91\ We invite comment on this proposal. How
should we define ``substantively recorded and produced''? Should we
require a certain percentage of a program to be recorded and produced
within 12 hours of the program being shown on television, for the
program to be considered ``substantively produced'' within that
timeframe? What are examples of programming that we should consider
``near-live''? What additional processes would need to be put in place
to facilitate the captioning of such near-live programming when it is
delivered using IP, and who would be responsible for those processes?
\92\ In lieu of our proposed definition of ``near-live programming,''
should we instead define that phrase as it is defined in the Video
Description Order, which is ``programming performed and recorded less
than 24 hours prior to the time it was first aired,'' \93\ or would
that definition be too narrow in the IP-

[[Page 59971]]

delivered video programming context, insofar as it excludes programming
that consists of both live segments and prerecorded programming?
---------------------------------------------------------------------------

\90\ See VPAAC Report at 29. The VPAAC indicated that industry
and consumer groups were not in agreement as to the proposed
definition of ``near-live programming.'' See id. at 34-35. Further,
the VPAAC indicated its understanding ``that this definition of
near-live programming is only to be used for determining the
schedule of deadlines for the provision of closed captioning.'' See
id. at 35.
\91\ If a program is not live, and is not substantively recorded
and produced within 12 hours of its distribution to television
viewers, then we propose that it would be considered prerecorded, as
explained below.
\92\ We note that, in the Video Description Order, the
Commission adopted its proposal to define ``near-live programming''
as ``programming performed and recorded less than 24 hours prior to
the time it was first aired.'' See Video Description Order at para.
40. We note that there are differences between video description and
closed captioning which may necessitate different definitions.
First, the definitions of ``live programming'' and ``near-live
programming'' in the video description context had the ``primary
purpose [of] determin[ing] which nonbroadcast networks are excluded
from the top five. * * *'' See id. at para. 42. In contrast, the
purpose of these definitions in the IP closed captioning context is
to determine the date by which live and near-live programming must
comply with our new requirements. Second, a shorter timeframe within
which the performance and recording must occur for a program to be
considered ``near-live'' in the closed captioning context may be
appropriate since closed captioning can, in fact, be done live,
whereas video description of television programming generally is
not.
\93\ See id. at para. 40.
---------------------------------------------------------------------------

27. The VPAAC proposed definitions for programming that is
``prerecorded and edited for Internet distribution to the end user,''
\94\ and for programming that is ``prerecorded and unedited for
Internet distribution to the end user'' \95\ Rather than adopt these
two definitions, however, we think it would be clearer to define the
terms ``prerecorded programming'' and ``edited for Internet
distribution.'' \96\ We propose to define ``prerecorded programming''
as video programming that is not ``live'' or ``near-live.'' Also, based
on the VPAAC's recommendation, we propose to define video programming
that is ``edited for Internet distribution'' as video programming whose
television version is substantially edited prior to its Internet
distribution. We tentatively agree with the VPAAC that examples of
``substantial edits'' include when scenes are deleted or scores are
changed from the television version,\97\ and that changes to the number
or duration of advertisements from the television version do not
constitute ``substantial edits.'' We seek comment on these definitions.
How should we distinguish ``substantial edits'' from ``insubstantial
edits''? To what extent do VPDs/VPPs edit content for Internet
distribution, and what is the nature of such editing? We assume that
any editing that is subject to these definitions does not run afoul of
copyright law. Is most prerecorded programming unedited for Internet
distribution, as we have proposed defining that phrase?
---------------------------------------------------------------------------

\94\ The VPAAC's proposed definition is ``any programming that
is prerecorded and has been substantially edited for Internet
distribution to the end user.'' See VPAAC Report at 30. The VPAAC
suggested that substantial edits may include deleting scenes or
substituting music scores due to rights restrictions. See id.
\95\ The VPAAC's proposed definition is ``any programming that
is prerecorded and has not been substantially edited for Internet
distribution to the end user.'' See id. The VPAAC suggested that
insubstantial edits may include changes to the number or duration of
advertisements. See id.
\96\ This is also consistent with the CVAA's requirement that we
define ``edited for Internet distribution.'' See 47 U.S.C.
613(c)(2)(D)(i).
\97\ According to the VPAAC, rights restrictions necessitating
such edits would prevent broadcasters from repurposing the
television captions on such programming for Internet distribution to
the end user. See VPAAC Report at 30. We note that any adopted
definition should not permit VPDs or VPPs to edit programming in a
manner that copyright law would otherwise prohibit.
---------------------------------------------------------------------------

28. The VPAAC proposed the following schedule of deadlines for
compliance with the new requirements for closed captioning of IP-
delivered video programming that is published or exhibited on
television with captions after the effective date of the new rules: (1)
For programming that is prerecorded and not edited for Internet
distribution, a compliance deadline of six months after the rules are
published in the Federal Register; (2) for programming that is live or
near-live, a compliance deadline of 12 months after the rules are
published in the Federal Register; and (3) for programming that is
prerecorded and edited for Internet distribution, a compliance deadline
of 18 months after the rules are published in the Federal Register.\98\
We seek comment on the VPAAC's suggested schedule of deadlines. We
believe that these compliance deadlines are reasonable, given that they
have been agreed upon by the VPAAC, which includes industry
representatives that will have to comply with our new rules as well as
consumer groups that have a strong interest in ensuring that our rules
are implemented as quickly as possible. If commenters do not believe
that these compliance deadlines are reasonable, we invite them to
propose alternative compliance deadlines, with explanations as to why
those deadlines would be more appropriate, along with a discussion of
the burden to comply with the proposed deadlines. We seek comment also
on why a lengthier compliance deadline is justified or necessary for
programming that is live or near-live, and for programming that is
prerecorded and edited for Internet distribution.
---------------------------------------------------------------------------

\98\ See id.
---------------------------------------------------------------------------

C. Exemption Process Where Economically Burdensome

29. In the CVAA, Congress amended Section 713(d)(3) of the Act by
replacing the term ``undue burden'' with the term ``economically
burdensome.'' Specifically, Section 202(c) of the CVAA contains a
conforming amendment providing details on an exemption process by
which:

a provider of video programming or program owner may petition the
Commission for an exemption from the requirements of this section,
and the Commission may grant such petition upon a showing that the
requirements contained in this section would be economically
burdensome. During the pendency of such a petition, such provider or
owner shall be exempt from the requirements of this section. The
Commission shall act to grant or deny any such petition, in whole or
in part, within 6 months after the Commission receives such
petition, unless the Commission finds that an extension of the 6-
month period is necessary to determine whether such requirements are
economically burdensome.\99\
---------------------------------------------------------------------------

\99\ 47 U.S.C. 613(d)(3).

The Senate Committee on Commerce, Science, and Transportation
encouraged the Commission, in determining whether the requirements
enacted under Section 202(b) are ``economically burdensome,'' to
consider the factors listed in pre-existing Section 713(e) of the
Act.\100\ Section 713(e) provides that the following factors should be
considered in determining whether closed captioning requirements for
television programming would result in an undue economic burden: ``(1)
The nature and cost of the closed captions for the programming; (2) the
impact on the operation of the provider or program owner; (3) the
financial resources of the provider or program owner; and (4) the type
of operations of the provider or program owner.'' \101\
---------------------------------------------------------------------------

\100\ See S. Rep. No. 111-386 at 14.
\101\ 47 U.S.C. 613(e).
---------------------------------------------------------------------------

30. We propose to create a process by which VPPs and VPOs may
petition the Commission for a full or partial exemption of their
captioning obligations based on economic burden, comparable to the
Commission's procedures for exemptions based on undue burden applicable
to our television closed captioning rules.\102\ Since the factors that
Congress encouraged the Commission to consider here in determining
whether application of our new rules are ``economically burdensome''
are identical to the factors used to determine whether the television
closed captioning rules impose an ``undue burden,'' it appears that
Congress intended that ``economic burden'' in this context would have
the same meaning as ``undue burden'' in the television closed
captioning context. Accordingly, we propose to define the term
``economically burdensome'' as imposing significant difficulty or
expense.\103\ We further propose, in accordance with our television
closed captioning rules,\104\ that petitioners be required to support a
petition for exemption with sufficient evidence to demonstrate that
compliance with the new requirements would be economically burdensome.
In determining whether the requirements for closed captioning of IP-
delivered

[[Page 59972]]

video programming would be economically burdensome, we propose that the
Commission consider the four factors listed above. In addition, as
under the Commission's current rules in the television context, we
propose that the petitioner be required to describe any other factors
that it deems relevant to the Commission's final determination, and any
available alternatives that might constitute a reasonable substitute
for the closed captioning requirements.\105\ Finally, we propose that
the Commission evaluate the extent to which a petitioner has
successfully proven an economic burden on a case-by-case basis, with
regard to the individual outlet or programming in question, and that
the Commission could deny or approve a petition in whole or in part. We
seek comment on these proposals.
---------------------------------------------------------------------------

\102\ See 47 CFR 79.1(f). The process we propose to adopt herein
is consistent with the Video Description Order, in which we adopted
our proposal ``to reinstate the previously adopted process for
requesting an individual exemption from our rules, replacing the
term `undue burden' with `economically burdensome,' while using the
same range of factors previously applied under the undue burden
standard.'' See Video Description Order at para. 43 (footnote
omitted).
\103\ In the Video Description Order, we also defined
``economically burdensome'' as ``imposing significant difficulty or
expense.'' See id. at para. 44 and Final Rules.
\104\ 47 CFR 79.1(f)(2).
\105\ See 47 CFR 79.1(f)(3) (containing the comparable rule in
the television closed captioning context).
---------------------------------------------------------------------------

31. Regarding the exemption process, we propose to require the
petitioner to file with the Commission an original and two copies of a
petition requesting an exemption based on the economically burdensome
standard, and all subsequent pleadings. Should we instead require
electronic filing? We further propose that the Commission place the
petition on public notice, with comments or oppositions due within 30
days of the public notice, and the petitioner's reply to any comments
or oppositions due within 20 days of the close of the comment period.
Next, we propose that parties filing comments or oppositions serve the
petitioner with a copy and include a certification that the petitioner
was served with a copy, and that parties filing replies to comments or
oppositions serve the commenting or opposing party with a copy and
include a certification that the party was served with a copy. We
propose that parties filing petitions and responsive pleadings include
a detailed, full showing, supported by affidavit, of any facts or
considerations relied on. We propose codifying the statutory
requirement that the Commission consider the VPP or VPO subject to an
exemption request to be exempt from the IP closed captioning
requirements while the exemption petition is pending.\106\ We seek
comment on these proposals. We note that the CVAA permits VPPs and VPOs
to petition the Commission for an exemption. Although we have proposed
defining VPP and VPD to mean the same thing,\107\ if we ultimately
define them differently, should we conclude that Congress intended both
VPPs and VPDs to benefit from the economic exemption process? \108\
---------------------------------------------------------------------------

\106\ 47 U.S.C. 613(d)(3). Section 202(c) of the CVAA requires
the Commission to resolve such exemption petitions within six months
of their receipt, unless the Commission finds that an extension of
the six month period is necessary to determine whether the
requirements are economically burdensome. 47 U.S.C. 613(d)(3).
\107\ See Section III.A., supra.
\108\ See 47 U.S.C. 613(c)(2)(D)(iii) (clarifying that VPDs and
VPPs both include entities that make IP-delivered video programming
available directly to the end user).
---------------------------------------------------------------------------

32. In addition to case-by-case exemptions discussed above, the
CVAA permits the Commission to ``exempt any service, class of service,
program, class of program, equipment, or class of equipment for which
the Commission has determined that the application of such regulations
would be economically burdensome for the provider of such service,
program, or equipment.'' \109\ We note that the existing rules for
closed captioning of television programming contain a number of
categorical exemptions.\110\ Since the new requirements for closed
captioning of IP-delivered video programming will not be triggered
unless the programming is shown on television with captions after the
effective date of the new rules, it seems that the inclusion of the
previous categorical exemptions in our new rules would generally be
duplicative. In other words, if a program is not captioned on
television because it is subject to one of the existing categorical
exemptions, then it will not be required to be captioned when delivered
via IP. For this reason, it does not appear that the categorical
exemptions found in the television closed captioning rules are
applicable here, and we seek comment on adopting this approach.
Further, the CVAA makes no distinction as to whether the television
programming must be captioned under the Commission's television
captioning rules or whether the captioning was included voluntarily.
Accordingly, we believe that once programming is captioned on
television, it must be captioned when delivered via IP--even if it
otherwise would have been subject to one of our television closed
captioning exemptions. We seek comment on this proposal as well. If a
program with audio in a language other than English or Spanish is
captioned on television, even though such captioning is not
required,\111\ should we require the program to include captions when
delivered via IP?
---------------------------------------------------------------------------

\109\ 47 U.S.C. 613(c)(2)(D)(ii). The VPAAC did not address
``the determination of economically burdensome relative to services,
programs and equipment.'' See VPAAC Report at 35.
\110\ See 47 CFR 79.1(d). The Commission created exemptions for
the following categories of programs and providers: programming
subject to contractual captioning restrictions; video programming or
a video programming provider for which the captioning requirement
has been waived; programming other than English or Spanish language;
primarily textual programming; programming distributed in the late
night hours; interstitials, promotional announcements and public
service announcements; Educational Broadband Service programming;
locally produced and distributed non-news programming with no repeat
value; programming on new networks; primarily non-vocal music
programming; captioning expense in excess of two percent of gross
revenues; channels producing revenues of under $3,000,000; and
locally produced educational programming.
\111\ See 47 CFR 79.1(d)(3) (exempting from the television
closed captioning requirements ``[a]ll programming for which the
audio is in a language other than English or Spanish, except that
scripted programming that can be captioned using the `electronic
news room' technique is not exempt''). The ``electronic news room''
television captioning technique creates captions from a news script
computer or teleprompter, and it is commonly used for live
newscasts.
---------------------------------------------------------------------------

33. The CVAA also permits the Commission to delay or waive the
applicability of its IP closed captioning rules to live programming
``to the extent the Commission finds that the application of the
regulation to live video programming delivered using Internet protocol
with captions after the effective date of such regulations would be
economically burdensome to providers of video programming or program
owners.'' \112\ The VPAAC considered the special nature of live
programming by proposing a longer compliance deadline for live
programming than for prerecorded and unedited video programming. Given
that the VPAAC recommendation reflects a consensus achieved by
representatives of both consumers and the affected industries, we
propose not to institute any further delay or waiver of the
applicability of the Commission's new IP closed captioning rules to
live programming at this time, and we seek comment on this proposal.
---------------------------------------------------------------------------

\112\ 47 U.S.C. 613(c)(2)(C).
---------------------------------------------------------------------------

D. Mechanism for Information on Video Programming Subject to the CVAA

34. The CVAA requires the Commission to ``establish a mechanism to
make available to video programming providers and distributors
information on video programming subject to the [CVAA] on an ongoing
basis.'' \113\ The purpose of the mechanism would be to ensure that
VPDs/VPPs have a way of finding out whether the video programming they
intend to make available via IP has been shown on television with
captions after the effective date of the new rules. The

[[Page 59973]]

CVAA further explains that the new regulations of IP closed captioning:
---------------------------------------------------------------------------

\113\ 47 U.S.C. 613(c)(2)(D)(v).

shall consider that the video programming provider or distributor
shall be deemed in compliance if such entity enables the rendering
or pass through of closed captions and makes a good faith effort to
identify video programming subject to the [CVAA] using the mechanism
[referenced above].\114\
---------------------------------------------------------------------------

\114\ 47 U.S.C. 613(c)(2)(D)(vi). The VPAAC did not address the
definition of a ``good faith effort to identify video programming''
subject to the CVAA. See VPAAC Report at 35.

35. Accordingly, we seek comment on the ``mechanism'' that should
be used to make available to VPDs/VPPs information on video programming
that must be captioned when delivered via IP. We presume that VPOs are
in the best position to know if captions are required for a particular
program (i.e., whether the program has been shown on television with
captions after the effective date of the new rules). We seek comment on
this presumption. We propose to require VPOs providing video
programming to VPDs/VPPs for IP delivery to provide each program either
with captions simultaneously, or with a dated certification stating
that captions are not required for a reason stated in the
certification. Suitable reasons for a VPO to provide a program without
captions might include, for example, that the program is not a full-
length program,\115\ has not been ``published or exhibited on
television with captions after the effective date of'' the new
rules,\116\ or has been exempted from the requirements.\117\ Are VPOs
aware of the identity of all VPDs/VPPs that are authorized to make the
VPO's video programming available directly to the end user through a
distribution method that uses IP? Would VPDs/VPPs and VPOs need to
revise their contractual agreements to reflect their new obligations?
Do VPOs have contracts with all VPDs/VPPs that are authorized to make
the VPO's programming available to end users via IP, and if not, would
the proposed certifications be workable?
---------------------------------------------------------------------------

\115\ See Section III.A., supra.
\116\ See 47 U.S.C. 613(c)(2)(A). Thus, the CVAA's requirements
for captioning of IP-delivered video programming are not triggered
unless the programming is published or exhibited on television with
captions after the effective date of the new rules.
\117\ See Section III.C., supra.
---------------------------------------------------------------------------

36. We also propose to require VPDs/VPPs to retain all such VPO
certifications for as long as they make the certified programming
available to end users through a distribution method that uses IP and
at least one calendar year thereafter. Because the CVAA provides that
the Commission shall consider a VPD/VPP ``in compliance if such entity
enables the rendering or pass through of closed captions and makes a
good faith effort to identify video programming subject to the [CVAA]
using the mechanism,'' it seems that generally a VPD/VPP would not be
subject to an enforcement action if it relied in good faith on a VPO's
erroneous certification that captioning was not required for a
particular program and did not know or have reason to know (at any
time) that the certification was erroneous. If a VPP/VPD knew or should
have known that a certification was erroneous,\118\ the Commission
could take action against the VPP/VPD as well as (or instead of)
against the VPO that submitted the erroneous certification. Otherwise,
however, the Commission's recourse in the case of a faulty
certification would be enforcement action against the VPO only. We seek
comment on how we should approach closed captioning compliance
certifications, including comments on whether and how the inclusion of
indemnification clauses in contracts between VPDs/VPPs and VPOs may
affect the effectiveness of our proposed approach. We seek comment also
on the situation where a VPO may pass along captions for a program but,
as a legal matter, the captions are not required for that program
because the program has not been shown on television with captions
after the effective date of the new rules. Would the Commission have
the authority to require the VPD/VPP to enable the rendering or pass
through of such captions, when they are provided by the VPO? Or
instead, should the VPO make known to the VPDs/VPPs that captioning is
not required under Commission rules for that IP-delivered program even
though the VPO is sending captions to the VPD/VPP? We recognize that,
while a program may not be subject to the captioning requirements as of
the effective date of the new rules, it might later become subject to
the requirements, once the program is re-run on television with
captions after the effective date. Accordingly, we propose to require
VPOs to keep their certifications current, and to provide VPDs/VPPs
with any revised information as to the captioning status of previously
delivered programming within seven days of the underlying change (i.e.,
within seven days of a program being shown on television with captions
for the first time after the effective date of the new rules). If the
underlying change of status requires that the programming at issue be
captioned pursuant to the CVAA, we propose to require the VPO also to
deliver within seven days the caption file, if not previously
delivered, to the VPDs/VPPs. We also propose to require VPDs/VPPs to
make required captions available online within five days of the receipt
of an updated certification.\119\ We seek comment on the five day
timeframe, which would provide VPDs/VPPs with time to update their
existing program files.\120\ Are seven and five days, respectively,
appropriate timeframes within which to require VPOs to provide updated
certifications, and to require VPDs/VPPs to provide newly required
captions?
---------------------------------------------------------------------------

\118\ Paragraph 16, above, includes questions regarding what
types of evidence could be considered in an enforcement proceeding
to determine a VPD/VPP's knowledge and who should bear the burden of
proof on that issue.
\119\ This five day timeframe would not apply to programming for
which the schedule of deadlines was not yet triggered. See Section
III.B., supra.
\120\ In contrast, when a VPD/VPP receives a program initially
with required captions, we see no need to provide for a delay
between receipt of the captions and the date by which captions must
be made available with the program, since there is no existing file
to update.
---------------------------------------------------------------------------

37. In the alternative to the certification proposal discussed
above, we seek comment on other types of ``mechanisms'' the Commission
could adopt to ensure that VPDs/VPPs know which programming is required
to be captioned. For example, should we simply permit the relevant
parties to effectuate a mechanism through private contracts? \121\ Or,
should we instead require VPOs to send, along with the program and
caption files, encoded information informing the VPDs/VPPs as to
whether the program has been captioned on television (to the extent it
is technically possible to do so)? Or, rather than place requirements
on the relationship between the VPO and the VPD/VPP, we could require
VPDs/VPPs to provide certain information to consumers, demonstrating
that the VPDs/VPPs have complied with our regulations. Do we have
authority to require VPDs/VPPs to provide certain information to
consumers? If so, should we require the VPD/VPP to provide information
to consumers such as: The name of the program, and information
sufficient to identify the episode; the identity of the VPD/VPP
responsible for delivering the program; the device or software on which
the consumer is watching the program (to the extent known); \122\ and
whether the program is

[[Page 59974]]

required to include captioning, and, if not, an explanation. This
information could be provided to consumers along with the IP-delivered
video programming, for example, as a link from or a pop-up window
adjacent to the programming. Overall, this approach would equip
consumers with useful information and might lead to fewer--and better
supported--complaints. While requiring VPDs/VPPs to provide this
information with IP-delivered video programming would necessitate a
certain level of coordination with VPOs, thus investing VPDs/VPPs and
VPOs in the process, we recognize that this approach could pose
technical challenges that may have to be overcome and could impose
costs on the relevant parties. Accordingly, we seek comment on the
costs and benefits of such an approach.
---------------------------------------------------------------------------

\121\ A private contractual mechanism might, for example,
obligate the contracting VPO to provide all required captions for IP
delivery, while requiring the contracting VPD/VPP to enable the
rendering or pass through of all such captions to the end user.
\122\ The device or software is an important consideration
because if the consumer is viewing IP-delivered video programming
through a device or software that is not required to support
captions, that would explain why a consumer is unable to view
required captions. We understand that it is possible for a device
itself to fill in the information on the device's identity, without
direct involvement of the VPD/VPP.
---------------------------------------------------------------------------

38. Still another approach would be for the Commission to rely on
independent third parties to provide databases containing information
on all video programming that is shown on television with captions
after the effective date of the new rules. For example, we know that
there are companies today that already collect this information and it
is available for purchase by the Commission and other parties.\123\ An
advantage of this approach is that, potentially, it could allow any
VPD/VPP to go to an independent source to verify whether the
programming it wishes to exhibit must be shown with captions when
delivered via IP. Consumers, too, might be able to access this database
to learn whether programs they wish to watch are required to contain
captions.\124\ What technical and administrative difficulties would the
use and maintenance of such a database create? Who would fund such a
database? To what extent could such a database be automated? What other
type of ``mechanisms'' could the Commission establish to ensure that
VPDs/VPPs have up-to-date information about the captioning status of
the programming they intend to show?
---------------------------------------------------------------------------

\123\ Rovi and Tribune Media Services are examples of two such
companies. Through their databases, they currently maintain
information on when programs are shown on television with captions.
This information could be used to determine when the CVAA's
captioning requirements are triggered.
\124\ Consumers then may be less likely to file complaints about
programs that are not covered by the CVAA, thereby conserving
resources for the Commission and covered entities.
---------------------------------------------------------------------------

E. Technical Standards for IP-Delivered Video Programming

39. CEA-608 is the technical standard used for analog closed
captioning, and CEA-708 is the technical standard used for digital
closed captioning.\125\ The VPAAC stated that CEA-708 ``provides for a
rich set of features and capabilities above and beyond those supported
by CEA-608 captions. In addition, CEA-608 captions can be transported
within 708.'' \126\ Because millions of households today still use
analog television receivers that cannot decode CEA-708 captions, CEA-
608 captions remain relevant.\127\ On the Internet, there are currently
multiple closed captioning formats.\128\ In light of the decades of
video programming that has been captioned using the CEA-608/708
standards, the VPAAC concluded that ``a standard format must be
specified for these captions to be delivered via Internet protocols in
such a way that the consumer's experience is in no way degraded.''
\129\ Specifically, the VPAAC suggested ``that there be a single
standard interchange format for content providers to encode closed
captions into programming before they distribute it,'' such that video
programming would not need to be re-captioned to comply with different
standards.\130\ Regarding delivery format, the VPAAC suggested that
there should not be a single standard, so as to provide the Internet
with sufficient flexibility to evolve.\131\ The VPAAC stated that
``distributors of programming services and applications must be
required to (a) receive the captioned content from the content provider
encoded in the standard interchange format, and then (b) ensure that
any reformatting performed before delivery to end users (consumers) is
supported by the applications and devices * * * used for playback. * *
* \132\
---------------------------------------------------------------------------

\125\ See, e.g., VPAAC Report at 8-9.
\126\ See id. at 9.
\127\ See id.
\128\ See id. at 11-12.
\129\ See id. at 17.
\130\ See id.
\131\ See VPAAC Report at 17.
\132\ See VPAAC Report at 17. In other words, ``For interchange
purposes, captions may be encoded in the single, defined interchange
format; for delivery purposes, captions may be encoded either in
interchange or delivery formats as long as captions are always
available to all video users.'' See id. at 18.
---------------------------------------------------------------------------

40. We seek comment on whether to specify a particular standard for
the interchange format or delivery format of IP-delivered video
programming subject to Section 202(b) of the CVAA. We note that closed
captions are included on certain IP-delivered video programming today,
even in the absence of a single standard for the interchange format or
the delivery format. Accordingly, we propose to refrain from specifying
any particular standard for the interchange format or delivery format
of IP-delivered video programming at this time, in order to foster the
maximum amount of technological innovation. We seek comment on this
proposal. How necessary is it for the Commission to select an
interchange and delivery format standard? If we decide to deem a
particular standard compliant, what should that standard be? After
considering several standards, the VPAAC recommended the Society of
Motion Picture and Television Engineers (``SMPTE'') Timed Text
(``SMPTE-TT'') standard for the interchange format because it ``best
meets all the requirements'' and because it ``is already being employed
in production environments to repurpose television content for Internet
use.'' \133\ At this juncture, however, we do not propose adopting a
specific interchange format because it is our understanding that the
interchange format involves negotiations between the VPO and the VPD/
VPP, which typically require the entities involved to reach a mutually
agreeable solution. It makes sense that, if SMPTE-TT is the best
interchange format, the industry will settle on that format without
Commission intervention and, if it is not, they will come to a
different agreed-upon format. Further, the proposal to mandate
particular features that must be supported \134\ will, in effect,
ensure a robust interchange format. If ultimately we do decide to deem
a particular standard compliant, should we permit the parties to
petition the Commission to use ``alternate means'' rather than the
standard we adopt? \135\ Should we require accommodation of both in-
band and out-of-band delivery of closed captions? \136\ What are the
benefits and harms of specifying a particular

[[Page 59975]]

``interchange format'' or ``delivery format'' for IP-delivered video
programming subject to Section 202(b) of the CVAA?
---------------------------------------------------------------------------

\133\ See id. at 26.
\134\ See Section III.A., supra (proposing a requirement that
the same user tools, such as the ability to change caption font and
size, which are available on television, should be made available
for IP-delivered video programming).
\135\ See Section III.F., infra.
\136\ See VPAAC Report at 24 (``* * * VPAAC recommends that
platforms and applications accommodate in-band and/or out-of-band
delivery techniques as appropriate.''). When closed captions are
delivered ``in-band,'' they are ``embedded in the video data stream
or file,'' which is likely ``the most optimal delivery method for
live simulating [sic] of a television channel.'' See id. at 23-24.
When closed captions are delivered ``out-of-band,'' they are ``a
separate data stream or file from the video,'' which is ``more
flexible.'' See id.
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F. De Minimis Failure To Comply and Alternate Means of Compliance

41. Section 202(b) of the CVAA requires the Commission's
regulations to ``provide that de minimis failure to comply with such
regulations by a video programming provider or owner shall not be
treated as a violation of the regulations.'' \137\ The statute and
legislative history do not elaborate upon the meaning of ``de minimis
failure to comply.'' We seek comment on what constitutes a ``de minimis
failure to comply.'' In determining whether a failure to comply is de
minimis, we propose to consider the particular circumstances of the
failure to comply, including the type of failure, the reason for the
failure, whether the failure was one-time or continuing, and the
timeframe within which the failure was remedied. We seek comment on
this proposal and any other factors that should be considered in
determining what constitutes a ``de minimis failure to comply.''
---------------------------------------------------------------------------

\137\ 47 U.S.C. 613(c)(2)(D)(vii).
---------------------------------------------------------------------------

42. Congress determined in the CVAA that an entity may meet the
requirements of Section 202(b) of the CVAA ``through alternate means
than those prescribed by regulations * * * if the requirements of this
section are met, as determined by the Commission.'' \138\ The statute
and legislative history do not elaborate upon the meaning of
``alternate means'' in Section 202 of the CVAA, although the House
Committee explained that in the context of Section 203, alternate means
was intended ``to afford entities maximum flexibility in meeting the
requirement that video programming delivered using Internet protocol be
captioned,'' and that the Commission should ``provide some flexibility
where technical constraints exist.'' \139\ We seek comment on how to
define this term to best effectuate Congressional intent. For example,
did Congress mean that the Commission should permit those subject to
the IP closed captioning requirements to use alternate technical
standards for the transmission and exhibition of IP closed captioning?
\140\ We seek comment on the ``alternate means'' that we should
consider permissible, with a goal of fostering technological
advancement through some flexibility, and in recognition of the fact
that a single standard may not be feasible for all VPDs/VPPs and VPOs
in all circumstances. Should we require any ``alternate means'' to
provide a viewing experience that is equal or superior to that
otherwise available to the general public? If we decline to specify a
particular standard for the interchange format or delivery format of
IP-delivered video programming, is it still necessary for us to
consider permissible ``alternate means''?
---------------------------------------------------------------------------

\138\ 47 U.S.C. 613(c)(3).
\139\ H.R. Rep. No. 111-563 at 31.
\140\ See Section III.E., supra (discussing technical standards
for IP-delivered video programming).
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G. Complaint Procedures

43. We propose to adopt procedures for complaints alleging a
violation of the IP closed captioning rules that are analogous to the
procedures the Commission uses for complaints alleging a violation of
the television closed captioning rules.'' \141\ With some modification,
it appears that these proposed complaint procedures generally would
work in the IP-delivered video closed captioning context. The
procedures for complaints alleging a violation of the television closed
captioning rules require a complaint to be filed with the Commission or
the video programming distributor responsible for delivering the
program within 60 days of the problem with captioning, and they provide
that ``[a] complaint must be in writing, must state with specificity
the alleged Commission rule violated and must include some evidence of
the alleged rule violation.'' \142\ When the Commission receives
complaints alleging a violation of the television closed captioning
rules, it forwards the complaint to the appropriate video programming
distributor (as that term is defined in the television closed
captioning context), which must respond in writing to the Commission
and the complainant within 30 days of receiving the complaint from the
Commission.'' \143\ The television video programming distributor is
required ``to provide the Commission with sufficient records and
documentation to demonstrate that it is in compliance with the
Commission's rules.'' \144\ The Commission then reviews the complaint,
including all supporting evidence, and determines if a violation has
occurred.\145\ The Commission may request additional information from
the television video programming provider, if needed.\146\
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\141\ See 47 CFR 79.1(g).
\142\ See 47 CFR 79.1(g)(1).
\143\ See 47 CFR 79.1(g)(2).
\144\ See 47 CFR 79.1(g)(5).
\145\ See 47 CFR 79.1(g)(7).
\146\ See id.
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44. We seek comment on whether to apply comparable procedures to
complaints alleging a violation of the closed captioning rules for IP-
delivered video programming. Is 60 days the appropriate timeframe
within which to require a complaint about a captioning problem? Unlike
television, where programs are exhibited at specific times, Internet
programming is available continuously to any viewer. Given this, we
seek comment on when this 60-day period should begin to run. Should it
begin to run from the latest date on which the program was available on
the Internet to consumers without required captions? How should we
handle intermittent problems where closed captioning may not be
transmitted continuously or with every streaming session? Would the
best course be to eliminate the 60-day filing window altogether as
unenforceable in the IP-delivered video programming market?
45. In addressing complaints alleging a violation of the IP closed
captioning rules, we propose that the Commission will forward
complaints to the named VPD/VPP and/or VPO, as well as to any other
VPD/VPP and/or VPO that Commission staff determines may be involved.
Upon receipt of a consumer complaint, should we require the VPD/VPP or
VPO to attempt to resolve the dispute with the complainant, before
proceeding with the Commission's complaint process? We further propose
to permit the Commission to request additional information from any
relevant parties when, in the estimation of Commission staff, such
information is needed to investigate the complaint or adjudicate
potential violation(s) of Commission rules.\147\ Generally, we expect
that consumers will direct their complaints to the VPD/VPP, since that
is the entity from which the consumer views the programming, but the
Commission could instead, or in addition, direct any resulting
investigation and subsequent enforcement action against the VPO to the
extent necessary and appropriate. The bureau handling the complaint
would be expected to act in an expeditious fashion to determine which
entity(ies) is/are responsible and dismiss claims against any others.
In that vein, we seek comment as to whether a shotclock should be
imposed. In recognition of the breadth of the IP-delivered video
programming market, we propose to state explicitly in the rules that,
although the Commission will generally require VPDs/VPPs and

[[Page 59976]]

VPOs to respond to complaints within 30 days, the Commission may
lengthen the required response period on a case-by-case basis (for
example, when it is difficult to determine which entity is responsible
for the alleged violation). We seek comment on these proposed complaint
procedures. As in the television context, should we permit those filing
complaints alleging a violation of the closed captioning requirements
for IP-delivered video programming to file the complaint directly with
the VPD/VPP first,\148\ or is it preferable to require that all
complaints come directly to the Commission in the first instance? If
the Commission finds that a VPD/VPP or VPO has violated the
requirements for closed captioning of IP-delivered video programming,
what sanctions or remedies should it impose? \149\ We propose to
adjudicate each complaint on its merits and employ the full range of
sanctions and remedies available to the Commission under the Act.
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\147\ This flexibility would enable the Commission to determine
which of the entities involved--the VPD/VPP or VPO--is responsible.
\148\ See 47 CFR 79.1(g)(1).
\149\ We note that in 2004, a petition filed by consumer groups
proposed a base forfeiture of $8,000 for violations of the
Commission's closed captioning rules. See Telecommunications for the
Deaf, Inc. et al. Petition for Rulemaking, RM-11065 (July 23, 2004).
Petitioners included Telecommunications for the Deaf, Inc., the
National Association of the Deaf, Self Help for Hard of Hearing
People, the Association for Late Deafened Adults, Inc., and the Deaf
and Hard of Hearing Consumer Advocacy Network (DHHCAN).
---------------------------------------------------------------------------

46. Complaints alleging a violation of the television closed
captioning requirements can be filed online,\150\ or by fax or postal
mail. We seek comment on whether the same options should be available
for complaints alleging a violation of the closed captioning
requirements for IP-delivered video programming. As in the Video
Description Order, should we instead permit viewers to file complaints
about a failure to comply with the closed captioning rules for IP-
delivered video programming by ``any reasonable means,'' including any
method that would best accommodate the complainant? \151\ Should the
Commission revise the existing complaint form for disability access
complaints (Form 2000C) to request information specific to complaints
involving IP closed captioning? To foster the Commission's efficient
review of complaints, should the Commission decline to consider
complaints that do not include certain information, and if so, what
information should be required? Such information might include, for
example: (i) The name and address of the complainant; (ii) the name and
postal address, Web site, or e-mail address of the VPD/VPP and/or VPO
against whom the complaint is alleged, and information sufficient to
identify the video programming involved; (iii) information sufficient
to identify the software or device used to view the program; (iv) a
statement of facts sufficient to show that the VPD/VPP and/or VPO has
violated or is violating the Commission's rules, and, if applicable,
the date and time of the alleged violation; (v) the specific relief or
satisfaction sought by the complainant; and (vi) the complainant's
preferred format or method of response to the complaint.
---------------------------------------------------------------------------

\150\ See http://www.fcc.gov/complaints.
\151\ See Video Description Order at para. 55.
---------------------------------------------------------------------------

47. Section 79.1(i) of our television closed captioning rules
requires video programming distributors, as that term is defined in the
context of television closed captioning, to provide certain contact
information. Specifically, television video programming distributors
must provide contact information by which consumers may contact them
immediately, at the time that a captioning problem is discovered.\152\
Television video programming distributors must also provide contact
information for the receipt and handling of written closed captioning
complaints.\153\ Television video programming distributors must file
this contact information with the Commission, which then makes it
available on a database of television video programming
distributors.\154\ We seek comment on whether we should impose
comparable contact information requirements on VPDs/VPPs as part of our
rules governing closed captioning of IP-delivered video programming, to
assist consumers wishing to reach out to VPDs/VPPs about their concerns
or complaints, and to assist the Commission in resolving complaints.
Instead of providing VPD/VPP contact information through a database,
should we require VPDs/VPPs to provide this information directly to
viewers of IP-delivered video programming, for example, through the
VPD/VPP's Web site? What contact information should we require VPDs/
VPPs to provide consumers? \155\ We also ask whether we should apply
any other existing provisions of the television closed captioning rules
to the rules governing captioning of IP-delivered video programming.
---------------------------------------------------------------------------

\152\ See 47 CFR 79.1(i)(1) (requiring television video
programming distributors to ``designate a telephone number, fax
number, and e-mail address for purposes of receiving and responding
immediately to any closed captioning concerns,'' and requiring
distributors to ``include this information on their Web sites (if
they have a Web site), in telephone directories, and in billing
statements'').
\153\ See 47 CFR 79.1(i)(2).
\154\ See 47 CFR 79.1(i)(3); http://esupport.fcc.gov/vpd-search/search.action#scroll/There.
\155\ See Closed Captioning of Video Programming, FCC 09-109, 75
FR 7368, February 19, 2010 (describing the webform by which
television video programming distributors may submit their contact
information). Television video programming distributors may enter
their contact information at https://esupport.fcc.gov/vpd-data/login!input.action.
---------------------------------------------------------------------------

IV. Section 203 of the CVAA

A. Scope of Section 203 of the CVAA and Exempted Apparatus

48. Section 203 of the CVAA seeks to extend closed captioning
requirements to the devices consumers use to access video
programming.\156\ Specifically, Section 203(a) of the CVAA directs the
Commission to require that the devices consumers use to receive or play
back video programming are equipped to decode and display closed
captioning,\157\ while Section 203(b) extends requirements to devices
that record video and to the interconnection mechanisms that carry
signals from these source devices to consumer equipment.\158\ In this
section, we seek to address the specific classes of devices subject to
these provisions, as well as those that fall into various statutory
exemptions. Additionally, we address the issues of what functionality
must be supported by these devices and whether that functionality may
vary based on specific devices. However, while Section 203(a) of the
CVAA significantly expands the requirement to implement closed
captioning capabilities to essentially all apparatus, Section 203 also
provides substantial limitations on this expanded definition. These
limitations--(1) that implementation of closed captioning capability be
achievable for apparatus with pictures screens less than 13 inches in
size and for apparatus designed to record video programming transmitted
simultaneously with sound \159\ (2) that the requirements do not apply
to display-only monitors; \160\ and (3) that the Commission may waive
the requirements for devices which derive their essential utility from
uses other than video playback \161\--demand varying degrees of
interpretation and clarification.
---------------------------------------------------------------------------

\156\ See S. Rep. No. 111-386 at 14; H.R. Rep. No. 111-563 at
30-31.
\157\ Public Law 111-260, Sec. 203(a).
\158\ Public Law 111-260, Sec. 203(b).
\159\ 47 U.S.C. 303(u)(2)(A), 303(z)(1).
\160\ 47 U.S.C. 303(u)(2)(B).
\161\ 47 U.S.C. 303(u)(2)(C).
---------------------------------------------------------------------------

49. All Apparatus. Section 203(a) of the CVAA requires that ``if
technically feasible'' each ``apparatus designed to

[[Page 59977]]

receive or play back video programming transmitted simultaneously with
sound * * * be equipped with built-in closed caption decoder circuitry
or capability designed to display closed-captioned video programming.''
\162\ We seek comment on the issue of what constitutes an
``apparatus.'' How should the Commission determine whether it is
``technically feasible'' for apparatus to meet the requirements of
Section 203? We note that neither the statute nor legislative history
gives us guidance on a definition of apparatus. Nevertheless, we begin
with the assumption that the term includes all hardware that is used in
receiving or playing back video programming. At the same time, we note
that the CVAA gives the Commission authority to waive the requirements
of its rules requiring the display, render or pass through of closed
captioning for apparatus or any class of apparatus ``(i) primarily
designed for activities other than receiving or playing back video
programming transmitted simultaneously with sound; or (ii) for
equipment designed for multiple purposes, capable of receiving or
playing video programming transmitted simultaneously with sound but
whose essential utility is derived from other purposes.'' \163\
---------------------------------------------------------------------------

\162\ 47 U.S.C. 303(u)(1)(A).
\163\ 47 U.S.C. 303(u)(2)(C).
---------------------------------------------------------------------------

50. Therefore, we seek comment on how to determine whether hardware
is primarily designed for receiving or playing back video programming
transmitted simultaneously with sound, and how to determine whether
hardware derives its essential utility from receiving and playing back
video. The legislative history expanded on the availability of waivers
by stating that the Commission may waive the Section 203 closed
captioning requirements ``where, for instance, a consumer typically
purchases a product for a primary purpose other than viewing video
programming, and access to such programming is provided on an
incidental basis.'' \164\ In making waiver decisions, the Commission
generally considers whether special circumstances exist that warrant
deviation from the general rule, and whether the waiver will serve the
public interest.\165\ Accordingly, we seek comment on the factors that
the Commission should evaluate in determining whether an apparatus is
eligible for a waiver. Should we consider how the apparatus is designed
and marketed? How should we consider the fact that different people may
consider the same device as having a different ``essential utility''?
In recognition of the fact that, as technology evolves, the ``essential
utility'' of apparatus may change, should waivers be temporary, and if
so, what should their duration be and what process should be used for
renewing waivers? We invite examples of apparatus that are or are not
primarily designed for receiving or playing back video programming
transmitted simultaneously with sound, and examples of apparatus that
do or do not derive their essential utility from receiving and playing
back video. Where do devices such as video gaming consoles, cellular
telephones, and tablet devices fit within these criteria? Are there are
any specific classes of apparatus that warrant the establishment of a
categorical or blanket waiver, or should all waivers be addressed case-
by-case? We note that personal computers and video gaming consoles are
used by a large percentage of viewers of VPDs/VPPs.\166\ Should we make
any special considerations for these devices? If the Commission
considers waivers for a particular ``class'' of apparatus, what factors
should we consider, and how should we determine what apparatus
constitute a ``class''? Should the Commission adopt a process for
determining whether to waive the closed captioning requirements of
Section 203 of the CVAA, or should we handle waivers pursuant to
Section 1.3 of our rules? \167\
---------------------------------------------------------------------------

\164\ See S. Rep. No. 111-386 at 14; H.R. Rep. No. 111-563 at
30.
\165\ Northeast Cellular Telephone Co., L.P. v. FCC, 897 F.2d
1164, 1166 (DC Cir. 1990) (citing WAIT Radio v. FCC, 418 F.2d 1153,
1159 (DC Cir. 1969)); see also 47 CFR 1.3.
\166\ Nielsenwire, ``What Netflix Viewers Are Watching * * * And
How,'' July 27, 2011 at http://blog.nielsen.com/nielsenwire/online_mobile/what-netflix-and-hulu-users-are-watching-and-how/ (visited
August 30, 2011).
\167\ See 47 CFR 1.3 (``Any provision of the [Commission's
rules] may be waived by the Commission on its own motion or on
petition if good cause therefor is shown.'').
---------------------------------------------------------------------------

51. We also seek comment on whether apparatus also includes
software. To what extent is hardware that is designed to receive or
play back video programming dependent on software for its
functionality? For example, consumers view programming intended to be
covered by Section 202 on personal computers and cellular telephones.
Both a computer and a cellular phone can be viewed as a single
apparatus or several working together, such as the processor, memory,
and storage, the display and other peripheral components, and the
operating system and applications. If software is considered an
apparatus, we seek comment on how the Commission can ensure compliance,
particularly when software is provided over the Internet directly to
the end user.\168\
---------------------------------------------------------------------------

\168\ Section 330(b) of the Act as modified by the CVAA
prohibits the shipment in interstate commerce, manufacture, assembly
or import from a foreign country of apparatus violating the rules we
adopt in this proceeding.
---------------------------------------------------------------------------

52. Screen Size and Display-Only Monitors. The closed captioning
requirement of the CVAA is no longer restricted to television receivers
or to those devices with screens larger than 13 inches, exceptions that
were put into place by the Television Decoder Circuitry Act.\169\ As
Congress noted, consumers now view video programming on smaller and
portable devices, and to the extent ``achievable,'' closed captioning
must be made available on these devices.\170\ However, apparatus that
use a picture screen that is less than 13 inches in size and that are
designed to receive or play back video must be equipped with built-in
closed caption decoder circuitry or the capability to display closed
captions only if this is ``achievable.'' \171\ Therefore, while we
propose to remove the screen-size limitation entirely from Section
15.119 and Section 15.122 of the Commission's rules, and to not include
any screen size limitation in our new rules,\172\ we address the issue
of achievability below. Additionally, the CVAA provides that ``any
apparatus or class of apparatus that are display-only video monitors
with no playback capability are exempt from the requirements'' to
display or render captions and we subsequently propose adopting this
exception as written.\173\ How should the Commission define devices
that qualify for inclusion in this exempted category of apparatus? It
would seem that Congress intended to exempt computer monitors with this
language, because the monitor itself lacks playback capability. We seek
comment on what other devices, if any, Congress intended to exempt by
this language.
---------------------------------------------------------------------------

\169\ Public Law 101-431, 104 Stat. 960 (1990). Previously
codified at 47 U.S.C. 303(u), 330(b).
\170\ S. Rep. No. 111-386 at 14.
\171\ 47 U.S.C. 303(u)(2)(A).
\172\ 47 CFR 15.119 (closed captioning requirements for analog
television receivers), 47 CFR 15.122 (closed captioning requirements
for digital television receivers).
\173\ 47 U.S.C. 303(u)(2)(B).
---------------------------------------------------------------------------

53. Achievability. The CVAA contains a definition for
achievability, directing that for the purposes of the CVAA, determining
whether a requirement is achievable consists of evaluating the
following factors: (1) The nature and cost of the steps needed to meet
the requirements of this section with respect to the specific equipment
or

[[Page 59978]]

service in question; (2) the technical and economic impact on the
operation of the manufacturer or provider and on the operation of the
specific equipment or service in question, including on the development
and deployment of new communications technologies; (3) the type of
operations of the manufacturer or provider; and (4) the extent to which
the service provider or manufacturer in question offers accessible
services or equipment containing varying degrees of functionality and
features, and offered at differing price points.\174\ We seek comment
on how to apply this definition to apparatus subject to Section 203 of
the CVAA. Under this definition, what classes of devices that are
otherwise designed to display or record video are nevertheless
incapable of supporting closed captioning? Is there a screen size or
resolution at which it would become so difficult to read captions that
there would be no benefit to justify the cost of including this
capability? Are there devices which simultaneously contain the
processing power to display video yet are incapable of processing the
additional data necessary to display closed captions? Finally, what
characteristics of a manufacturer's operations should the Commission
consider in determining whether it is achievable for that manufacturer
to include closed caption capability in a device with a screen size
less than 13 inches? For example, should the Commission consider
whether the manufacturer is a small business, and if so, is there an
existing definition of ``small business'' that the Commission should
apply? How should an evaluation of what is ``achievable'' differ from
an evaluation of what is ``technically feasible''? \175\
---------------------------------------------------------------------------

\174\ 47 U.S.C. 617(g).
\175\ See para. 49, supra.
---------------------------------------------------------------------------

54. Recording Devices. In addition to devices that consumers use to
directly view video, those that record video must also have closed-
captioning capability. Specifically, the CVAA added Section 303(z) to
the Act, which requires that, ``if achievable * * * apparatus designed
to record video programming * * * [must] enable the rendering or the
pass-through of closed captions.'' \176\ Thus, we seek comment on
codifying this requirement verbatim in our rules and interpreting
``apparatus'' that are designed to ``record video programming'' to also
include hardware-only products. We seek comment on whether we should
also interpret ``apparatus'' that are designed to ``record video
programming'' to include software-only products, such as software
designed to enable a PC to function as a video recording platform.
While some devices, such as digital video recorders, plainly appear to
be covered by this section, other devices, such as network-connected
hard drives, also can be used to record video. For example, home-
networking protocol suites, such as DLNA,\177\ permit networked
devices, such as computers and hard-drives, to be used for video
storage while control of those devices is accomplished by a combination
of software running on the device itself and on devices accessing or
manipulating the video stream. We seek comment on the proper scope of
the definition of ``apparatus designed to record video programming.''
Additionally, to the extent the definition of ``achievable'' differs
from that discussed above, we seek comment on determining the
capabilities of recording devices relative to display devices.
---------------------------------------------------------------------------

\176\ 47 U.S.C. 303(z)(1).
\177\ See Digital Living Network Alliance, http://www.dlna.org.
---------------------------------------------------------------------------

55. Interconnection Mechanisms. Finally, the CVAA directs the
Commission to regulate interconnection mechanisms. Specifically, the
CVAA requires that ``interconnection mechanisms and standards for
digital video source devices [be] available to carry from the source
device to the consumer equipment the information necessary to permit or
render the display of closed captions.'' \178\ We seek input on how
this objective can best be achieved. Is it sufficient to require that
intermediate devices, such as set-top boxes and digital video
recorders, be capable of conveying closed captions to display devices
and to assume that standards for interconnection will be developed as
necessary? Does the Commission need to extend its regulations to
manufacturers or standards bodies that develop and deploy these
interconnection mechanisms to ensure that they are capable of conveying
closed captioning information? Should the Commission take a more active
role in requiring a particular standard? We additionally seek comment
on what specific connections Congress intended to be covered by this
provision. For example, component video connections and HDMI, used to
transmit high definition video signals from a set-top box or computer
to a television or monitor, do not carry closed captions.\179\ However,
based on our requirements, those devices connected to the television or
monitor via HDMI or component video would be required to render the
captions prior to transmitting the video signal. Did Congress intend to
cover home networking connections, such as WiFi or Multimedia Over Coax
(MoCA), and if so, should we instead direct our attention to the
protocol suites which use these interconnection technologies, such as
DLNA? We seek comment on what it means to carry the necessary
information to ``permit or render the display of closed captions'' and
what existing technologies satisfy this requirement.
---------------------------------------------------------------------------

\178\ 47 U.S.C. 303(z)(2).
\179\ See Does HDMI Support Closed Captioning? High Definition
Multimedia Interface, Frequently Asked Questions http://www.hdmi.org/learningcenter/faq.aspx#117. Captions are rendered by
the host device, such as a set-top box and transmitted in an open
matter, rendered into the video stream. While this makes captioning
available, it does not utilize the functionality built into the end
device, which some consumers may prefer.
---------------------------------------------------------------------------

B. Obligations Under Section 203 of the CVAA

56. In this NPRM, we also seek comment on the features and
specifications that must be supported by the devices covered by Section
203. Section 203(c) requires that the Commission prescribe performance
and display standards for built-in decoder circuitry or capability
designed to display closed captioned video programming.\180\ The VPAAC
Report addresses this issue, recommending a feature set which mirrors
that available on television receivers and we propose rules requiring
these same features. These capabilities include the presentation of
captions, via roll-up, pop-on, or paint-on techniques, and the setting
of semantically significant character formatting, as well as
capabilities regarding character color, character opacity, character
size, fonts, caption background, character edge attributes, caption
window color, and language selection.\181\ We further propose, pursuant
to the VPAAC recommendation, that these settings be user configurable
and that the user's selection be retained between viewing sessions,
though where the user has not made a selection, the settings provided
by the content owner are displayed.\182\ While the VPAAC states that
the functionality in an IP world should not be less than what is
provided to consumers through digital television, there are other
features the VPAAC Report identifies as components of the
``experience'' that must be provided to users, but that are not
included in the VPAAC Report's discussion of specific capabilities,
such as the user-controlled

[[Page 59979]]

placement of captions.\183\ We seek comment on the list of features
included in the VPAAC Report, especially whether the requirements must
be modified for specific classes of devices, such as those with very
small screens or those with limited processing power. To what extent
beyond what is currently available should users be able to control the
appearance of their captions through user tools on video apparatus?
Which aspects must, and which may, be user-controllable? Is there a
need to require such functionality to ensure compliance? We also seek
comment on the inherent differences, technical and otherwise, in the
rendering of captions on Internet-connected devices (e.g., on a Web
browser or a smartphone app) versus television receivers? What are the
inherent differences, technical and otherwise, in the rendering of
captions on mobile devices versus fixed-use television and video
receivers?
---------------------------------------------------------------------------

\180\ Public Law 111-260, Sec. 203(c).
\181\ VPAAC Report at 13-16.
\182\ Id. at 15.
\183\ Id. at 34, Appendix C.
---------------------------------------------------------------------------

57. We seek comment on what standards, if any, the Commission
should mandate to implement the goals of Section 203 of the CVAA. In
particular, we seek comment on whether we should adopt a particular
delivery file format that devices must support. The VPAAC Report
discusses three use cases of how content can be distributed via the
Internet to consumer devices: Use Case 1, where content is delivered to
an unaffiliated device; Use Case 2, where content is delivered to a Web
browser; and Use Case 3, where content is delivered to a managed device
or application.\184\ The VPAAC Report concludes that Use Cases 2 and 3
``require a specific standard distribution format based on standards
developed within an open process by recognized industry standard-
setting organizations;'' however it does not identify what that
standard should be.\185\ When the Commission initially adopted rules
for closed captioning, it adopted certain standards for delivery and
decoding of captions and made those standards mandatory for all devices
capable of receiving television content.\186\ In those cases, however,
a clear industry standard and consensus on the format already existed,
and the standard was applied with respect to one television delivery
standard. Furthermore, television programmers rarely maintain any
relationship with the devices displaying the content they provide. In
the Internet-delivery context, however, VPDs/VPPs deliver content in
many different formats, each continually evolving, and a Commission-
mandated standard could restrict industry innovation. Conversely,
Congress clearly envisioned consumers being able to access closed
captions contained in any programming on any device that is capable of
displaying the associated video, and a lack of standards could make
this goal more difficult and costly to achieve.\187\ Furthermore, the
relationship between the content provider and the device or software
provider may be such that the VPP/VPD could contract with device
manufacturers to support captions in the format the VPP/VPD chooses.
With respect to Use Case 1, the VPAAC Report concludes that a common
file format is required, and suggests SMPTE-TT as that format.\188\ We
seek comment on whether we should require a particular delivery
standard or standards to be supported on devices pursuant to Section
203 of the CVAA. As an alternative, would a more general rule requiring
that devices capable of receiving unaffiliated content from VPPs/VPDs
be capable of decoding and rendering captions transmitted by VPPs/VPDs
be preferable to achieve the goals of the CVAA?
---------------------------------------------------------------------------

\184\ Id. at 18-20.
\185\ Id. at 27.
\186\ See DTV Receiver Closed Captioning Order, FCC 00-259, 65
FR 58467, September 29, 2000 (``DTV Receiver Closed Captioning
Order''); TDCA Order.
\187\ See S. Rep. No. 111-386 at 14; H.R. Rep. No. 111-563 at
30.
\188\ VPAAC Report at 27.
---------------------------------------------------------------------------

58. Alternate Means of Compliance. The CVAA permits that ``an
entity may meet the requirements of sections 303(u), 303(z), and 330(b)
of the [Act] through alternate means than those prescribed by
regulations * * * as determined by the Commission.'' \189\ We seek
comment on a process by which the Commission may determine that the
alternate means selected by a party nevertheless meet the requirements
of the preceding sections. Additionally, are there some requirements
above that cannot be met via alternate means, such as the use of a
standardized interconnection or the functional requirements prescribed
above? \190\
---------------------------------------------------------------------------

\189\ Public Law 111-260, Sec. 203(e).
\190\ See para. 55, supra.
---------------------------------------------------------------------------

59. Location of Rules within the Code of Federal Regulations and
Miscellaneous Issues. Finally, we seek comment on any other issues that
need to be addressed by the Commission to meet the CVAA's objective of
ensuring that consumers can receive closed captions on video apparatus
covered by the Act. For example, while we currently propose to create
and modify requirements in Part 15 of the Commission's rules, we seek
comment on whether a more appropriate location for these rules would be
proximate to the existing closed captioning and video description rules
in Part 79, or as a new, video-device specific section created to
consolidate the device rules other than those relating to reception of
radio frequency signals that the Commission currently maintains Part 15
of the Commission's rules contains numerous ancillary obligations (such
as certification or verification) and attendant definitions which may
or may not be beneficial to the overall goals of the rules. By creating
a new section, we could consolidate various rule parts related to video
devices, including other video device rules contained in Title 47 of
the CFR that are not directly related to the reception of radio
frequency signals. In this case, for example, Section 15.122, the
closed captioning rules for digital television, could be moved, and
Section 15.119 could be moved if it is still necessary, or else
deleted. Are there additional benefits or implications to separating
device rules for closed captioning from the general Part 15
requirements?

C. Schedule of Deadlines

60. While the CVAA specifies that the Commission must promulgate
rules within six months of the submission of the VPAAC Report, it does
not specify the timeframe by which those regulations must become
effective.\191\ Additionally, while the VPAAC Report recommends
timeframes by which closed captioning must be made available, it does
not address the timeframe on which devices must become compliant.\192\
It notes that one group suggested that a minimum of 24 months would be
required to implement the features discussed above, but that others
thought this time period was too long.\193\ We seek comment on the
appropriate timeframe to implement closed captioning technical
requirements pursuant to Section 203 of the CVAA. Should features or
device classes be phased in, accelerating the deployment of devices for
which the addition of closed captioning is easy, while allowing more
time for those parties that need it? We note that the Commission
allowed slightly less than 24 months for device manufacturers to design
and build DTV closed captioning display functionality into their
products.\194\ Is this timeframe

[[Page 59980]]

appropriate in light of the current electronics manufacturing process?
Would it be an appropriate timeframe if we define ``apparatus'' to
include software? If we adopt the compliance schedule for VPPs/VPDs
discussed above (varying from six to 18 months, depending on the nature
of the programming),\195\ should we also ensure that some or all
devices that will be used to access those services will be capable of
decoding closed captions when they are available?
---------------------------------------------------------------------------

\191\ Public Law 111-260, Sec. 203(d).
\192\ VPAAC Report at 34.
\193\ Id.
\194\ See DTV Receiver Closed Captioning Order, 65 FR 58467.
(The order was adopted on July 21, 2000, released on July 31, 2000,
and published in the Federal Register on September 29, 2000. The
rules became effective on July 1, 2002.)
\195\ See Section III. B., supra.
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V. Conclusion

61. In conclusion, in this NPRM, we seek comment on proposed rules
that would require IP-delivered video programming to include closed
captions if that programming is shown on television with captions after
the effective date of our new rules. We further seek comment on
proposed rules that would require this capability for nearly all
devices that consumers use to access IP-delivered video programming.
These proposals seek to further the intent of Congress to give
individuals who are deaf or hard of hearing better access to IP-
delivered video programming.

VI. Procedural Matters

A. Initial Regulatory Flexibility Act Analysis

62. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA''),\196\ the Commission has prepared this present
Initial Regulatory Flexibility Analysis (``IRFA'') concerning the
possible significant economic impact on small entities by the policies
and rules proposed in this Notice of Proposed Rulemaking (``NPRM'').
Written public comments are requested on this IRFA. Comments must be
identified as responses to the IRFA and must be filed by in accordance
with the same filing deadlines for comments on the NPRM. The Commission
will send a copy of the NPRM, including this IRFA, to the Chief Counsel
for Advocacy of the Small Business Administration (``SBA'').\197\ In
addition, the NPRM and IRFA (or summaries thereof) will be published in
the Federal Register.\198\
---------------------------------------------------------------------------

\196\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
\197\ See 5 U.S.C. 603(a).
\198\ See id.
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1. Need for, and Objectives of, the Proposed Rule Changes
63. The Twenty-First Century Communications and Video Accessibility
Act of 2010 (``CVAA'') requires the Federal Communications Commission
(``Commission'') to revise its regulations to mandate closed captioning
on certain video programming delivered using Internet protocol
(``IP'').\199\ In the NPRM, we initiate a proceeding that will fulfill
this requirement. We seek comment on proposals that would better enable
individuals who are deaf or hard of hearing to view IP-delivered video
programming, by requiring that programming be provided with closed
captions if it was shown on television with captions after the
effective date of the rules adopted pursuant to this proceeding. We
also seek comment on requirements for the devices that are subject to
the CVAA's new closed captioning requirements.\200\ Our goal is to
require the provision of closed captions with IP-delivered video
programming in the manner most helpful to consumers, while ensuring
that our regulations do not create undue economic burdens for the
distributors, providers, and owners of online video programming.
---------------------------------------------------------------------------

\199\ Public Law 111-260, 124 Stat. 2751, Sec. 202(b) (2010).
See also Amendment of Twenty-First Century Communications and Video
Accessibility Act of 2010, Public Law 111-265, 124 Stat. 2795 (2010)
(making technical corrections to the CVAA).
\200\ See Public Law 111-260, Sec. 203.
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64. Closed captioning is an assistive technology that provides
individuals who are deaf or hard of hearing with access to television
programming. Closed captioning displays the audio portion of a
television signal as printed words on the television screen. Existing
regulations require the use of closed captioning on television.\201\
Until now, however, closed captioning has not been required for IP-
delivered video programming. That changed with the enactment of the
CVAA. Specifically, Section 202(b) of the CVAA revised Section 713 of
the Communications Act of 1934, as amended, to require the Commission
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 such regulations.'' \202\
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\201\ See 47 CFR 79.1 (setting forth the requirements for closed
captioning of video programming on television).
\202\ 47 U.S.C. 613(c)(2)(A).
---------------------------------------------------------------------------

65. The CVAA also required the Chairman of the Commission to
establish an advisory committee known as the Video Programming
Accessibility Advisory Committee (``VPAAC'').\203\ Section 201(e)(1) of
the CVAA required the VPAAC to submit a report on closed captioning to
the Commission six months after its first meeting, or by July 13,
2011.\204\ The VPAAC submitted this report on July 12, 2011.\205\ By
statute, within six months of the submission of the VPAAC Report, the
Commission must issue final regulations to require the provision of
closed captioning on IP-delivered video programming.\206\ Accordingly,
the Commission must revise its regulations by January 12, 2012.\207\ By
the same date, pursuant to Section 203 of the CVAA, the Commission must
revise its regulations to include any technical standards, protocols,
and procedures needed for the transmission of closed captioning
delivered using IP, to ensure that certain apparatus are capable of
rendering, passing through, or otherwise permitting the display of
closed captions for end users.\208\
---------------------------------------------------------------------------

\203\ Public Law 111-260, Sec. 201(a).
\204\ Id., Sec. 201(e)(1).
\205\ See First Report of the Video Programming Accessibility
Advisory Committee on the Twenty-First Century Communications and
Video Accessibility Act of 2010: Closed Captioning of Video
Programming Delivered Using Internet Protocol, July 12, 2011,
available at http://transition.fcc.gov/cgb/dro/VPAAC/First_VPAAC_Report_to_the_FCC_7-11-11_FINAL.pdf (``VPAAC Report'').
\206\ 47 U.S.C. 613(c)(2)(A).
\207\ See id.
\208\ Public Law 111-260, Sec. 203(a)-(b), (d).
---------------------------------------------------------------------------

66. The NPRM considers revisions to our rules that would implement
the requirements of Sections 202(b) and 203 of the CVAA, as well as the
conforming amendment set forth in Section 202(c) of the CVAA. These
proposals could fulfill Congress' goal of enabling consumers who are
deaf or hard of hearing to access IP-delivered video programming. The
NPRM seeks comment on rule changes that would:

Specify the obligations of entities subject to Section 202(b)
by:
[cir] Requiring video programming owners to send required caption
files for IP-delivered video programming to video programming
distributors and video programming providers along with program files;
[cir] Requiring video programming distributors and video
programming providers to enable the rendering or pass through of all
required captions to the end user; and
[cir] Requiring the quality of all required captioning of IP-delivered
video programming to be of at least the same quality as the captioning
of

[[Page 59981]]

the same programming when shown on television;\209\
---------------------------------------------------------------------------

\209\ See NPRM, Section III.A.
---------------------------------------------------------------------------

Create a schedule of deadlines by which:
[cir] All prerecorded and unedited programming subject to the new
requirements must be captioned within six months of publication of the
rules in the Federal Register;
[cir] All live and near-live programming subject to the new
requirements must be captioned within 12 months of publication of the
rules in the Federal Register; and
[cir] All prerecorded and edited programming subject to the new
requirements must be captioned within 18 months of publication of the
rules in the Federal Register; \210\
---------------------------------------------------------------------------

\210\ See id., Section III.B.
---------------------------------------------------------------------------

Craft procedures by which video programming providers and
video programming owners may petition the Commission for exemptions
from the new requirements based on economic burden; \211\
---------------------------------------------------------------------------

\211\ See id., Section III.C.
---------------------------------------------------------------------------

Establish a mechanism to make information about video
programming subject to the CVAA available to video programming
providers and distributors, by requiring video programming owners to
provide programming for IP delivery either with captions, or with a
certification that captions are not required for a stated reason; \212\
---------------------------------------------------------------------------

\212\ See id., Section III.D.
---------------------------------------------------------------------------

Decline to adopt particular technical standards for IP-
delivered video programming; \213\
---------------------------------------------------------------------------

\213\ See id., Section III.E.
---------------------------------------------------------------------------

Decline to treat a de minimis failure to comply with the new
rules as a violation, and permit entities to comply with the new
requirements by alternate means; \214\ and
---------------------------------------------------------------------------

\214\ See id., Section III.F.
---------------------------------------------------------------------------

Adopt procedures for complaints alleging a violation of the
new requirements.\215\
---------------------------------------------------------------------------

\215\ See id., Section III.G.
---------------------------------------------------------------------------

Additionally, we seek comment on the appropriate requirements for
devices subject to the closed captioning requirements of Section
203.\216\
---------------------------------------------------------------------------

\216\ See id., Section IV.
---------------------------------------------------------------------------

2. Legal Basis
67. The proposed action is authorized pursuant to Sections 4(i),
4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 154(j), 303, 330(b), 613, and 617.
3. Description and Estimate of the Number of Small Entities To Which
the Proposed Rules Will Apply
68. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted.\217\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \218\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.\219\ A small business concern is one
which: (1) Is independently owned and operated; (2) is not dominant in
its field of operation; and (3) satisfies any additional criteria
established by the SBA.\220\ Below, we provide a description of such
small entities, as well as an estimate of the number of such small
entities, where feasible.
---------------------------------------------------------------------------

\217\ 5 U.S.C. 603(b)(3).
\218\ 5 U.S.C. 601(6).
\219\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in 15 U.S.C. 632). Pursuant to 5
U.S.C. 601(3), the statutory definition of a small business applies
``unless an agency, after consultation with the Office of Advocacy
of the Small Business Administration and after opportunity for
public comment, establishes one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
\220\ 15 U.S.C. 632. Application of the statutory criteria of
dominance in its field of operation and independence are sometimes
difficult to apply in the context of broadcast television.
Accordingly, the Commission's statistical account of television
stations may be over-inclusive.
---------------------------------------------------------------------------

69. Small Businesses, Small Organizations, and Small Governmental
Jurisdictions. Our action may, over time, affect small entities that
are not easily categorized at present. We therefore describe here, at
the outset, three comprehensive, statutory small entity size
standards.\221\ First, nationwide, there are a total of approximately
27.5 million small businesses, according to the SBA.\222\ In addition,
a ``small organization'' is generally ``any not-for-profit enterprise
which is independently owned and operated and is not dominant in its
field.'' \223\ Nationwide, as of 2007, there were approximately
1,621,315 small organizations.\224\ Finally, the term ``small
governmental jurisdiction'' is defined generally as ``governments of
cities, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' \225\
Census Bureau data for 2011 indicate that there were 89,476 local
governmental jurisdictions in the United States.\226\ We estimate that,
of this total, as many as 88,506 entities may qualify as ``small
governmental jurisdictions.'' \227\ Thus, we estimate that most
governmental jurisdictions are small.
---------------------------------------------------------------------------

\221\ See 5 U.S.C. 601(3)-(6).
\222\ See SBA, Office of Advocacy, ``Frequently Asked
Questions,'' http://web.sba.gov/faqs (last visited May 6, 2011;
figures are from 2009).
\223\ 5 U.S.C. 601(4).
\224\ Independent Sector, The New Nonprofit Almanac & Desk
Reference (2010).
\225\ 5 U.S.C. 601(5).
\226\ U.S. Census Bureau, Statistical Abstract of the United
States: 2011, Table 427 (2007).
\227\ The 2007 U.S Census data for small governmental
organizations are not presented based on the size of the population
in each such organization. There were 89,476 small governmental
organizations in 2007. If we assume that county, municipal, township
and school district organizations are more likely than larger
governmental organizations to have populations of 50,000 or less,
the total of these organizations is 52,125. If we make the same
assumption about special districts, and also assume that special
districts are different from county, municipal, township, and school
districts, in 2007 there were 37,381 special districts. Therefore,
of the 89,476 small governmental organizations documented in 2007,
as many as 89,506 may be considered small under the applicable
standard. This data may overestimate the number of such
organizations that has a population of 50,000 or less. U.S. CENSUS
BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 2011, Tables 427,
426 (Data cited therein are from 2007).
---------------------------------------------------------------------------

70. Cable Television Distribution Services. Since 2007, these
services have been defined within the broad economic census category of
Wired Telecommunications Carriers; that category is defined as follows:
``This industry comprises establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired telecommunications networks. Transmission
facilities may be based on a single technology or a combination of
technologies.'' \228\ The SBA has developed a small business size
standard for this category, which is: All such firms having 1,500 or
fewer employees. Census data for 2007, which supersede data contained
in the 2002 Census, show that there were 1,383 firms that operated that
year.\229\ Of those 1,383, 1,368 had fewer than 100 employees, and 15
firms had more than 100 employees. Thus under this category and the
associated small

[[Page 59982]]

business size standard, the majority of such firms can be considered
small.
---------------------------------------------------------------------------

\228\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired
Telecommunications Carriers,'' (partial definition), http://www.census.gov/naics/2007/def/ND517110.HTM#N517110 (last visited
Oct. 21, 2009).
\229\ U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007
NAICS code 517210 (rel. Oct. 20, 2009), http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo&_id=&-fds&_name=EC0700A1&-_skip=700&-ds_name=EC0751SSSZ5&-_lang=en.
---------------------------------------------------------------------------

71. Cable Companies and Systems. The Commission has also developed
its own small business size standards, for the purpose of cable rate
regulation. Under the Commission's rules, a ``small cable company'' is
one serving 400,000 or fewer subscribers, nationwide.\230\ Industry
data indicate that, of 1,076 cable operators nationwide, all but eleven
are small under this size standard.\231\ In addition, under the
Commission's rules, a ``small system'' is a cable system serving 15,000
or fewer subscribers.\232\ Industry data indicate that, of 6,635
systems nationwide, 5,802 systems have under 10,000 subscribers, and an
additional 302 systems have 10,000-19,999 subscribers.\233\ Thus, under
this second size standard, most cable systems are small.
---------------------------------------------------------------------------

\230\ 47 CFR 76.901(e). The Commission determined that this size
standard equates approximately to a size standard of $100 million or
less in annual revenues. Implementation of Sections of the 1992
Cable Act: Rate Regulation, FCC 95-196, 60 FR 35854, July 12, 1995.
\231\ These data are derived from: R.R. Bowker, Broadcasting &
Cable Yearbook 2006, ``Top 25 Cable/Satellite Operators,'' pages A-8
& C-2 (data current as of June 30, 2005); Warren Communications
News, Television & Cable Factbook 2006, ``Ownership of Cable Systems
in the United States,'' pages D-1805 to D-1857.
\232\ 47 CFR 76.901(c).
\233\ Warren Communications News, Television & Cable Factbook
2008, ``U.S. Cable Systems by Subscriber Size,'' page F-2 (data
current as of Oct. 2007). The data do not include 851 systems for
which classifying data were not available.
---------------------------------------------------------------------------

72. Cable System Operators. The Communications Act of 1934, as
amended, also contains a size standard for small cable system
operators, which is ``a cable operator that, directly or through an
affiliate, serves in the aggregate fewer than 1 percent of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' \234\ The Commission has determined that an operator
serving fewer than 677,000 subscribers shall be deemed a small
operator, if its annual revenues, when combined with the total annual
revenues of all its affiliates, do not exceed $250 million in the
aggregate.\235\ Industry data indicate that, of 1,076 cable operators
nationwide, all but ten are small under this size standard.\236\ We
note that the Commission neither requests nor collects information on
whether cable system operators are affiliated with entities whose gross
annual revenues exceed $250 million,\237\ and therefore we are unable
to estimate more accurately the number of cable system operators that
would qualify as small under this size standard.
---------------------------------------------------------------------------

\234\ 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. 1-3.
\235\ 47 CFR 76.901(f); see Public Notice, FCC Announces New
Subscriber Count for the Definition of Small Cable Operator, DA 01-
158 (Cable Services Bureau, Jan. 24, 2001).
\236\ These data are derived from: R.R. Bowker, Broadcasting &
Cable Yearbook 2006, ``Top 25 Cable/Satellite Operators,'' pages A-8
& C-2 (data current as of June 30, 2005); Warren Communications
News, Television & Cable Factbook 2006, ``Ownership of Cable Systems
in the United States,'' pages D-1805 to D-1857.
\237\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's
finding that the operator does not qualify as a small cable operator
pursuant to sec. 76.901(f) of the Commission's rules. See 47 CFR
76.909(b).
---------------------------------------------------------------------------

73. Direct Broadcast Satellite (``DBS'') Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic ``dish'' antenna
at the subscriber's location. DBS, by exception, is now included in the
SBA's broad economic census category, ``Wired Telecommunications
Carriers,'' \238\ which was developed for small wireline firms. Under
this category, the SBA deems a wireline business to be small if it has
1,500 or fewer employees.\239\ To gauge small business prevalence for
the DBS service, the Commission relies on data currently available from
the U.S. Census for the year 2007. According to that source, there were
3,188 firms that in 2007 were Wired Telecommunications Carriers. Of
these, 3,144 operated with less than 1,000 employees, and 44 operated
with more than 1,000 employees. However, as to the latter 44 there is
no data available that shows how many operated with more than 1,500
employees. Based on this data, the majority of these firms can be
considered small.\240\ Currently, only two entities provide DBS
service, which requires a great investment of capital for operation:
DIRECTV and EchoStar Communications Corporation (``EchoStar'')
(marketed as the DISH Network).\241\ Each currently offers subscription
services. DIRECTV \242\ and EchoStar \243\ each report annual revenues
that are in excess of the threshold for a small business. Because DBS
service requires significant capital, we believe it is unlikely that a
small entity as defined by the SBA would have the financial wherewithal
to become a DBS service provider.
---------------------------------------------------------------------------

\238\ See 13 CFR 121.201, NAICS code 517110 (2007).
\239\ 13 CFR 121.201, NAICS code 517110 (2007).
\240\ See http://www.factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
\241\ See Annual Assessment of the Status of Competition in the
Market for the Delivery of Video Programming, Thirteenth Annual
Report, 24 FCC Rcd 542, 580, para. 74 (2009) (``13th Annual
Report''). We note that, in 2007, EchoStar purchased the licenses of
Dominion Video Satellite, Inc. (``Dominion'') (marketed as Sky
Angel). See Public Notice, ``Policy Branch Information; Actions
Taken,'' Report No. SAT-00474, 22 FCC Rcd 17776 (IB 2007).
\242\ As of June 2006, DIRECTV is the largest DBS operator and
the second largest MVPD, serving an estimated 16.20% of MVPD
subscribers nationwide. See 13th Annual Report, 24 FCC Rcd at 687,
Table B-3.
\243\ As of June 2006, DISH Network is the second largest DBS
operator and the third largest MVPD, serving an estimated 13.01% of
MVPD subscribers nationwide. Id. As of June 2006, Dominion served
fewer than 500,000 subscribers, which may now be receiving ``Sky
Angel'' service from DISH Network. See id. at 581, para. 76.
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74. Satellite Telecommunications Providers. Two economic census
categories address the satellite industry. The first category has a
small business size standard of $15 million or less in average annual
receipts, under SBA rules.\244\ The second has a size standard of $25
million or less in annual receipts.\245\
---------------------------------------------------------------------------

\244\ 13 CFR 121.201, NAICS code 517410.
\245\ 13 CFR 121.201, NAICS code 517919.
---------------------------------------------------------------------------

75. The category of Satellite Telecommunications ``comprises
establishments primarily engaged in providing telecommunications
services to other establishments in the telecommunications and
broadcasting industries by forwarding and receiving communications
signals via a system of satellites or reselling satellite
telecommunications.'' \246\ Census Bureau data for 2007 show that 512
Satellite Telecommunications firms operated for that entire year.\247\
Of this total, 464 firms had annual receipts of under $10 million, and
18 firms had receipts of $10 million to $24,999,999.\248\ Consequently,
the Commission estimates that the majority of Satellite
Telecommunications firms are small entities that might be affected by
our proposed action.
---------------------------------------------------------------------------

\246\ U.S. Census Bureau, 2007 NAICS Definitions, ``517410
Satellite Telecommunications.''
\247\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo&_id=&-_skip=900&-ds_name=EC0751SSSZ4-_lang=en
\248\ See id.
---------------------------------------------------------------------------

76. The second category, i.e. ``All Other Telecommunications''
comprises ``establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable

[[Page 59983]]

of transmitting telecommunications to, and receiving telecommunications
from, satellite systems. Establishments providing Internet services or
voice over Internet protocol (VoIP) services via client-supplied
telecommunications connections are also included in this industry.''
\249\ For this category, Census Bureau data for 2007 show that there
were a total of 2,383 firms that operated for the entire year.\250\ Of
this total, 2,346 firms had annual receipts of under $25 million and 37
firms had annual receipts of $25 million to $49,999,999.\251\
Consequently, the Commission estimates that the majority of All Other
Telecommunications firms are small entities that might be affected by
our action.
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\249\ http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2007%20NAICS%20Search.
\250\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=-_skip=900ds_name=EC0751SSSZ4&-_lang=en.
\251\ See id.
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77. Television Broadcasting. The SBA defines a television
broadcasting station as a small business if such station has no more
than $14.0 million in annual receipts.\252\ Business concerns included
in this industry are those ``primarily engaged in broadcasting images
together with sound.'' \253\ The Commission has estimated the number of
licensed commercial television stations to be 1,390.\254\ According to
Commission staff review of the BIA Kelsey Inc. Media Access Pro
Television Database (BIA) as of January 31, 2011, 1,006 (or about 78
percent) of an estimated 1,298 commercial television stations \255\ in
the United States have revenues of $14 million or less and, thus,
qualify as small entities under the SBA definition. The Commission has
estimated the number of licensed noncommercial educational (``NCE'')
television stations to be 391.\256\ We note, however, that, in
assessing whether a business concern qualifies as small under the above
definition, business (control) affiliations \257\ must be included. Our
estimate, therefore, likely overstates the number of small entities
that might be affected by our action, because the revenue figure on
which it is based does not include or aggregate revenues from
affiliated companies. The Commission does not compile and otherwise
does not have access to information on the revenue of NCE stations that
would permit it to determine how many such stations would qualify as
small entities.
---------------------------------------------------------------------------

\252\ See 13 CFR 121.201, NAICS Code 515120 (2007).
\253\ Id. This category description continues, ``These
establishments operate television broadcasting studios and
facilities for the programming and transmission of programs to the
public. These establishments also produce or transmit visual
programming to affiliated broadcast television stations, which in
turn broadcast the programs to the public on a predetermined
schedule. Programming may originate in their own studios, from an
affiliated network, or from external sources.'' Separate census
categories pertain to businesses primarily engaged in producing
programming. See Motion Picture and Video Production, NAICS code
512110; Motion Picture and Video Distribution, NAICS Code 512120;
Teleproduction and Other Post-Production Services, NAICS Code
512191; and Other Motion Picture and Video Industries, NAICS Code
512199.
\254\ See News Release, ``Broadcast Station Totals as of
December 31, 2010,'' 2011 WL 484756 (F.C.C.) (dated Feb. 11, 2011)
(``Broadcast Station Totals''); also available at http://
www.fcc.gov/Daily_Releases/Daily_Business/2011/db0211/DOC-
304594A1.pdf''.
\255\ We recognize that this total differs slightly from that
contained in Broadcast Station Totals; however, we are using BIA's
estimate for purposes of this revenue comparison.
\256\ See Broadcast Station Totals.
\257\ ``[Business concerns] are affiliates of each other when
one concern controls or has the power to control the other or a
third party or parties controls or has to power to control both.''
13 CFR 121.103(a)(1).
---------------------------------------------------------------------------

78. In addition, an element of the definition of ``small business''
is that the entity not be dominant in its field of operation. We are
unable at this time to define or quantify the criteria that would
establish whether a specific television station is dominant in its
field of operation. Accordingly, the estimate of small businesses to
which rules may apply do not exclude any television station from the
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also, as noted, an additional element of the
definition of ``small business'' is that the entity must be
independently owned and operated. We note that it is difficult at times
to assess these criteria in the context of media entities and our
estimates of small businesses to which they apply may be over-inclusive
to this extent.
79. Open Video Services. Open Video Service (OVS) systems provide
subscription services.\258\ The open video system (``OVS'') framework
was established in 1996, and is one of four statutorily recognized
options for the provision of video programming services by local
exchange carriers.\259\ The OVS framework provides opportunities for
the distribution of video programming other than through cable systems.
Because OVS operators provide subscription services,\260\ OVS falls
within the SBA small business size standard covering cable services,
which is ``Wired Telecommunications Carriers.'' \261\ The SBA has
developed a small business size standard for this category, which is:
all such firms having 1,500 or fewer employees. To gauge small business
prevalence for the OVS service, the Commission relies on data currently
available from the U.S. Census for the year 2007. According to that
source, there were 3,188 firms that in 2007 were Wired
Telecommunications Carriers. Of these, 3,144 operated with less than
1,000 employees, and 44 operated with more than 1,000 employees.
However, as to the latter 44 there is no data available that shows how
many operated with more than 1,500 employees. Based on this data, the
majority of these firms can be considered small.\262\ In addition, we
note that the Commission has certified some OVS operators, with some
now providing service.\263\ Broadband service providers (``BSPs'') are
currently the only significant holders of OVS certifications or local
OVS franchises.\264\ The Commission does not have financial or
employment information regarding the entities authorized to provide
OVS, some of which may not yet be operational. Thus, at least some of
the OVS operators may qualify as small entities. The Commission further
notes that it has certified approximately 45 OVS operators to serve 75
areas, and some of these are currently providing service.\265\
Affiliates of Residential Communications Network, Inc. (``RCN'')
received approval to operate OVS systems in New York City, Boston,
Washington, DC, and other areas. RCN has sufficient revenues to assure
that they do not qualify as a small business entity. Little financial
information is available for the other entities that are authorized to
provide OVS and are not yet operational. Given that some entities
authorized to provide OVS service have not yet begun to generate
revenues, the Commission concludes that up to 44 OVS operators (those
remaining) might qualify as small businesses that may be affected by
the rules and policies adopted herein.
---------------------------------------------------------------------------

\258\ See 47 U.S.C. 573.
\259\ 47 U.S.C. 571(a)(3)-(4). See 13th Annual Report, 24 FCC
Rcd at 606, para. 135.
\260\ See 47 U.S.C. 573.
\261\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired
Telecommunications Carriers''; http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
\262\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
\263\ A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html.
\264\ See 13th Annual Report, 24 FCC Rcd at 606-07, para. 135.
BSPs are newer firms that are building state-of-the-art, facilities-
based networks to provide video, voice, and data services over a
single network.
\265\ See http://www.fcc.gov/mb/ovs/csovscer.html (current as of
February 2007).

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[[Page 59984]]

80. Cable and Other Subscription Programming. The Census Bureau
defines this category as follows: ``This industry comprises
establishments primarily engaged in operating studios and facilities
for the broadcasting of programs on a subscription or fee basis. * * *
These establishments produce programming in their own facilities or
acquire programming from external sources. The programming material is
usually delivered to a third party, such as cable systems or direct-to-
home satellite systems, for transmission to viewers.'' \266\ To gauge
small business prevalence in the Cable and Other Subscription
Programming industries, the Commission relies on data currently
available from the U.S. Census for the year 2007. According to that
source, which supersedes data from the 2002 Census, there were 396
firms that in 2007 were engaged in production of Cable and Other
Subscription Programming. Of these, 386 operated with less than 1,000
employees, and 10 operated with more than 1,000 employees. However, as
to the latter 10 there is no data available that shows how many
operated with more than 1,500 employees. Thus, under this category and
associated small business size standard, the majority of firms can be
considered small.\267\
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\266\ U.S. Census Bureau, 2007 NAICS Definitions, ``515210 Cable
and Other Subscription Programming''; http://www.census.gov/naics/2007/def/ND515210.
\267\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
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81. Motion Picture and Video Production. The Census Bureau defines
this category as follows: ``This industry comprises establishments
primarily engaged in producing, or producing and distributing motion
pictures, videos, television programs, or television commercials.''
\268\ We note that firms in this category may be engaged in various
industries, including cable programming. Specific figures are not
available regarding how many of these firms produce and/or distribute
programming for cable television. To gauge small business prevalence in
the Motion Picture and Video Production industries, the Commission
relies on data currently available from the U.S. Census for the year
2007. The size standard established by the SBA for this business
category is that annual receipts of $29.5 million or less determine
that a business is small.\269\ According to the 2007 Census, there were
9,095 firms that in 2007 were engaged in Motion Picture and Video
Production. Of these, 8,995 had annual receipts of $24,999,999 or less,
and 100 had annual receipts ranging from not less that $25,000,000 to
$100,000,000 or more.\270\ Thus, under this category and associated
small business size standard, the majority of firms can be considered
small.
---------------------------------------------------------------------------

\268\ U.S. Census Bureau, 2007 NAICS Definitions, NAICS Code
512110, http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=512110&search=2007%20NAICS%20Search.
\269\ 13 CFR 121.201, NAICS Code 512110.
\270\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds&_name=EC0700A1&-_skip=200&-ds_name=EC0751SSSZ5&-_lang=en.
---------------------------------------------------------------------------

82. Motion Picture and Video Distribution. The Census Bureau
defines this category as follows: ``This industry comprises
establishments primarily engaged in acquiring distribution rights and
distributing film and video productions to motion picture theaters,
television networks and stations, and exhibitors.'' \271\ We note that
firms in this category may be engaged in various industries, including
cable programming. Specific figures are not available regarding how
many of these firms produce and/or distribute programming for cable
television. To gauge small business prevalence in the Motion Picture
and Video Distribution industries, the Commission relies on data
currently available from the U.S. Census for the year 2007. Based on
the SBA size standard of annual receipts of 29.5 million dollars,\272\
and according to that 2007 Census source, which supersedes data from
the 2002 Census, there were 450 firms that in 2007 were engaged in
Motion Picture and Video Distribution. Of that number, 434 received
annual receipts of $24,999,999 or less, and 16 received annual receipts
ranging from $25,000,000 to $100,000,000 or more. Thus, under this
category and associated small business size standard, the majority of
firms can be considered small.\273\
---------------------------------------------------------------------------

\271\ See U.S. Census Bureau, 2007 NAICS Definitions, NAICS Code
512110, http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=512110&search=2007%20NAICS%20Search.
\272\ 13 CFR 121.201, NAICS Code 512110.
\273\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=200&-ds_name=EC0751SSSZ5&-_lang=en.
---------------------------------------------------------------------------

83. Small Incumbent Local Exchange Carriers (LECs). We have
included small incumbent local exchange carriers in this present RFA
analysis. As noted above, a ``small business'' under the RFA is one
that, inter alia, meets the pertinent small business size standard
(e.g., a telephone communications business having 1,500 or fewer
employees), and ``is not dominant in its field of operation.'' \274\
The SBA's Office of Advocacy contends that, for RFA purposes, small
incumbent local exchange carriers are not dominant in their field of
operation because any such dominance is not ``national'' in scope.\275\
We have therefore included small incumbent local exchange carriers in
this RFA analysis, although we emphasize that this RFA action has no
effect on Commission analyses and determinations in other, non-RFA
contexts.
---------------------------------------------------------------------------

\274\ 15 U.S.C. 632.
\275\ Letter from Jere W. Glover, Chief Counsel for Advocacy,
SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small
Business Act contains a definition of ``small-business concern,''
which the RFA incorporates into its own definition of ``small
business.'' See 15 U.S.C. 632(a) (``Small Business Act''); 5 U.S.C.
601(3) (``RFA''). SBA regulations interpret ``small business
concern'' to include the concept of dominance on a national basis.
See 13 CFR 121.102(b).
---------------------------------------------------------------------------

84. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the
Commission nor the SBA has developed a small business size standard
specifically for incumbent local exchange services. The appropriate
size standard under SBA rules is for the category Wired
Telecommunications Carriers. Under that size standard, such a business
is small if it has 1,500 or fewer employees.\276\ Census Bureau data
for 2007, which now supersede data from the 2002 Census, show that
there were 3,188 firms in this category that operated for the entire
year. Of this total, 3,144 had employment of 999 or fewer, and 44 firms
had had employment of 1,000 or more. According to Commission data,
1,307 carriers reported that they were incumbent local exchange service
providers.\277\ Of these 1,307 carriers, an estimated 1,006 have 1,500
or fewer employees and 301 have more than 1,500 employees.\278\
Consequently, the Commission estimates that most providers of local
exchange service are small entities that may be affected by the rules
and policies proposed in the NPRM. Thus under this category and the
associated small business size standard, the majority of these
incumbent local exchange service providers can be considered small
providers.\279\
---------------------------------------------------------------------------

\276\ 13 CFR 121.201, NAICS code 517110.
\277\ See Trends in Telephone Service, Federal Communications
Commission, Wireline Competition Bureau, Industry Analysis and
Technology Division at Table 5.3 (Sept. 2010) (``Trends in Telephone
Service'').
\278\ See id.
\279\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
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85. Competitive Local Exchange Carriers (Competitive LECs),
Competitive Access Providers (CAPs), Shared-Tenant Service Providers,
and Other Local Service Providers. Neither the Commission nor the SBA
has

[[Page 59985]]

developed a small business size standard specifically for these service
providers. The appropriate size standard under SBA rules is for the
category Wired Telecommunications Carriers. Under that size standard,
such a business is small if it has 1,500 or fewer employees.\280\
Census Bureau data for 2007, which now supersede data from the 2002
Census, show that there were 3,188 firms in this category that operated
for the entire year. Of this total, 3,144 had employment of 999 or
fewer, and 44 firms had had employment of 1,000 employees or more. Thus
under this category and the associated small business size standard,
the majority of these Competitive LECs, CAPs, Shared-Tenant Service
Providers, and Other Local Service Providers can be considered small
entities.\281\ According to Commission data, 1,442 carriers reported
that they were engaged in the provision of either competitive local
exchange services or competitive access provider services.\282\ Of
these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees
and 186 have more than 1,500 employees.\283\ In addition, 17 carriers
have reported that they are Shared-Tenant Service Providers, and all 17
are estimated to have 1,500 or fewer employees.\284\ In addition, 72
carriers have reported that they are Other Local Service
Providers.\285\ Of the 72, seventy have 1,500 or fewer employees and
two have more than 1,500 employees.\286\ Consequently, the Commission
estimates that most providers of competitive local exchange service,
competitive access providers, Shared-Tenant Service Providers, and
Other Local Service Providers are small entities that may be affected
by rules adopted pursuant to the NPRM.
---------------------------------------------------------------------------

\280\ 13 CFR 121.201, NAICS code 517110.
\281\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds&_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
\282\ See Trends in Telephone Service at Table 5.3.
\283\ See id.
\284\ See id.
\285\ See id.
\286\ See id.
---------------------------------------------------------------------------

86. Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. The Census Bureau defines this category as
follows: ``This industry comprises establishments primarily engaged in
manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these
establishments are: Transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.'' \287\ The SBA has developed a small business
size standard for Radio and Television Broadcasting and Wireless
Communications Equipment Manufacturing, which is: All such firms having
750 or fewer employees. According to Census Bureau data for 2007, there
were a total of 939 establishments in this category that operated for
part or all of the entire year. According to Census bureau data for
2007, there were a total of 919 firms in this category that operated
for the entire year. Of this total, 771 had less than 100 employees and
148 had more than 100 employees.\288\ Thus, under that size standard,
the majority of firms can be considered small.
---------------------------------------------------------------------------

\287\ The NAICS Code for this service 334220. See 13 CFR
121.201. See also http://factfinder.census.gov/servlet/IBQTable?--
bm=y&-fds--name=EC0700A1&-geo--id=&---skip=300&-ds--name=EC0731SG2&-
--lang=en''.
\288\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=4500&-ds_name=EC0731SG3&-_lang=en..
---------------------------------------------------------------------------

87. Audio and Video Equipment Manufacturing. The SBA has classified
the manufacturing of audio and video equipment under in NAICS Codes
classification scheme as an industry in which a manufacturer is small
if it has less than 750 employees.\289\ Data contained in the 2007 U.S.
Census indicate that 491 establishments operated in that industry for
all or part of that year. In that year, 376 establishments had between
1 and 19 employees; 80 had between 20 and 99 employees; and 35 had more
than 100 employees.\290\ Thus, under the applicable size standard, a
majority of manufacturers of audio and video equipment may be
considered small.
---------------------------------------------------------------------------

\289\ 13 CFR 121.201, NAICS Code 334310.
\290\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=300&-ds_name=EC0731I1&-_lang=en.
---------------------------------------------------------------------------

88. Internet Publishing and Broadcasting and Web Search Portals.
The Census Bureau defines this category to include ``* * *
establishments primarily engaged in (1) publishing and/or broadcasting
content on the Internet exclusively or (2) operating Web sites that use
a search engine to generate and maintain extensive databases of
Internet addresses and content in an easily searchable format (and
known as Web search portals). The publishing and broadcasting
establishments in this industry do not provide traditional (non-
Internet) versions of the content that they publish or broadcast. They
provide textual, audio, and/or video content of general or specific
interest on the Internet exclusively. Establishments known as Web
search portals often provide additional Internet services, such as e-
mail, connections to other Web sites, auctions, news, and other limited
content, and serve as a home base for Internet users.''
89. In this category, the SBA has deemed an Internet publisher or
Internet broadcaster or the provider of a Web search portal on the
Internet to be small if it has fewer than 500 employees.\291\ For this
category of manufacturers, Census data for 2007, which supersede
similar data from the 2002 Census, show that there were 2,705 such
firms that operated that year.\292\ Of those 2,705 firms, 2,682
(approximately 99%) had fewer than 500 employees and, thus, would be
deemed small under the applicable SBA size standard.\293\ Accordingly,
the majority of establishments in this category can be considered small
under that standard.
---------------------------------------------------------------------------

\291\ 13 CFR 121.201, NAICS Code 519130.
\292\ U.S. Census Bureau, American FactFinder, 2007 Economic
Census, Industry Series, Industry Statistics by Employment Size,
NAICS code 519130 (rel. Nov. 19, 2010); http://factfinder.census.gov.
\293\ Id.
---------------------------------------------------------------------------

90. Closed Captioning Services. These entities would be indirectly
affected by our proposed action. The SBA has developed two small
business size standards that may be used for closed captioning
services. The two size standards track the economic census categories,
``Teleproduction and Other Postproduction Services'' and ``Court
Reporting and Stenotype Services.''
91. The first category of Teleproduction and Other Postproduction
Services ``comprises establishments primarily engaged in providing
specialized motion picture or video postproduction services, such as
editing, film/tape transfers, subtitling, credits, closed captioning,
and animation and special effects.'' The relevant size standard for
small businesses in these services is an annual revenue of less than
$29.5 million.\294\ For this category, Census Bureau Data for 2007
indicate that there were 1,605 firms that operated in this category for
the entire year. Of that number, 1,597 had receipts totaling less than
$29,500,000.\295\ Consequently we estimate that the majority of
Teleproduction and Other Postproduction Services firms are small

[[Page 59986]]

entities that might be affected by our proposed actions.
---------------------------------------------------------------------------

\294\ U.S. Census Bureau, 2002 NAICS Definitions, ``512191
Teleproduction and Other Postproduction Services''; http://www.census.gov/epcd/naics02/def/NDEF512.HTM. The size standard is
$29.5 million.
\295\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo&_id=&-_skip=300&-ds_name=EC0751SSSZ5&-_lang=en.
---------------------------------------------------------------------------

92. The second category of Court Reporting and Stenotype Services
``comprises establishments primarily engaged in providing verbatim
reporting and stenotype recording of live legal proceedings and
transcribing subsequent recorded materials.'' The size standard for
small businesses in these services is an annual revenue of less than $7
million.\296\ For this category, Census Bureau data for 2007 show that
there were 2,706 firms that operated for the entire year. Of this
total, 2,590 had annual receipts of under $5 million, and 19 firms had
receipts of $5 million to $9,999,999.\297\ Consequently, we estimate
that the majority of Court Reporting and Stenotype Services firms are
small entities that might be affected by our proposed action.
---------------------------------------------------------------------------

\296\ U.S. Census Bureau, 2002 NAICS Definitions, ``561492 Court
Reporting and Stenotype Services''; http://www.census.gov/epcd/naics02/def/NDEF561.HTM.The size standard is $7 million.
\297\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=400&-ds_name=EC0756SSSZ4&-_lang=en.
---------------------------------------------------------------------------

4. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
93. The NPRM proposes requiring video programming owners (``VPOs'')
to send program files to video programming distributors (``VPDs'') and
video programming providers (``VPPs'') either with captions, or with a
dated certification that captions are not required for a reason stated
in the certification.\298\ When a program newly becomes subject to the
captioning requirements, the NPRM proposes requiring VPOs to provide
VPDs/VPPs with any revised certifications and newly required captions
(if captions were not previously delivered) within seven days of the
underlying change.\299\ VPDs/VPPs would be required to retain all such
VPO certifications for so long as they make the certified programming
available to end users through a distribution method that uses IP, and
for at least one calendar year thereafter.\300\
---------------------------------------------------------------------------

\298\ See NPRM, Section III.D.
\299\ See id.
\300\ See id.
---------------------------------------------------------------------------

94. The NPRM proposes creating a process by which VPPs and VPOs may
petition the Commission for a full or partial exemption of the
requirements for closed captioning of IP-delivered video programming,
which the Commission may grant upon a finding that the requirements
would be economically burdensome.\301\ The NPRM also proposes adopting
procedures for complaints alleging a violation of the IP closed
captioning rules.\302\
---------------------------------------------------------------------------

\301\ See NPRM, Section III.C.
\302\ See id., Section III.G.
---------------------------------------------------------------------------

5. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
95. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.\303\
---------------------------------------------------------------------------

\303\ 5 U.S.C. 603(c)(1)-(c)(4).
---------------------------------------------------------------------------

96. We note that our discussion of alternatives is circumscribed
because of the specificity of Sections 202(b), (c) and 203 of the CVAA.
The CVAA does, however, recognize the special concerns of small
entities by creating an exemption process where compliance with the
rules would be economically burdensome. In furtherance of this
statutory requirement, the NPRM proposes procedures enabling the
Commission to grant exemptions to the rules governing closed captioning
of IP-delivered video programming, where a petitioner has shown it
would be an economic burden (i.e., a significant difficulty or
expense).\304\ This exemption process would allow the Commission to
address the impact of the rules on individual entities, including
smaller entities, and modify the rules to accommodate individual
circumstances. The exemption procedures proposed in the NPRM were
specifically designed to ameliorate the impact of the rules for closed
captioning of IP-delivered video programming in a manner consistent
with the objective of increasing the availability of captioned
programming.
---------------------------------------------------------------------------

\304\ See NPRM, Section III.C.
---------------------------------------------------------------------------

97. Overall, in proposing rules governing the closed captioning of
IP-delivered video programming, we believe that we have appropriately
balanced the interests of individuals who are deaf or hard of hearing
against the interests of the entities who will be subject to the rules,
including those that are smaller entities. Our efforts are consistent
with Congress' goal of ``updat[ing] the communications laws to help
ensure that individuals with disabilities are able to fully utilize
communications services and equipment and better access video
programming.'' \305\
---------------------------------------------------------------------------

\305\ See S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1
(2010); H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19 (2010).
---------------------------------------------------------------------------

6. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
98. None.

B. Initial Paperwork Reduction Act of 1995 Analysis

99. This document contains proposed new information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995. In addition, pursuant to the Small Business
Paperwork Relief Act of 2002, we seek specific comment on how we might
``further reduce the information collection burden for small business
concerns with fewer than 25 employees.''

C. Ex Parte Rules

100. Permit-But-Disclose. The proceeding this NPRM initiates shall
be treated as a ``permit-but-disclose'' proceeding in accordance with
the Commission's ex parte rules.\306\ Persons making ex parte
presentations must file a copy of any written presentation or a
memorandum summarizing any oral presentation within two business days
after the presentation (unless a different deadline applicable to the
Sunshine period applies). Persons making oral ex parte presentations
are reminded that memoranda summarizing the presentation must (1) list
all persons attending or otherwise participating in the meeting at
which the ex parte presentation was made, and (2) summarize all data
presented and arguments made during the presentation. If the
presentation consisted in whole or in part of the presentation of data
or arguments already reflected in the presenter's written comments,
memoranda or other filings in the proceeding, the presenter may provide
citations to such data or arguments in his or her prior comments,
memoranda, or other filings (specifying the relevant page and/or
paragraph numbers where such data or arguments can be found) in lieu of
summarizing

[[Page 59987]]

them in the memorandum. Documents shown or given to Commission staff
during ex parte meetings are deemed to be written ex parte
presentations and must be filed consistent with rule 1.1206(b). In
proceedings governed by rule 1.49(f) or for which the Commission has
made available a method of electronic filing, written ex parte
presentations and memoranda summarizing oral ex parte presentations,
and all attachments thereto, must be filed through the electronic
comment filing system available for that proceeding, and must be filed
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf).
Participants in this proceeding should familiarize themselves with the
Commission's ex parte rules.
---------------------------------------------------------------------------

\306\ 47 CFR 1.1200 et seq.
---------------------------------------------------------------------------

D. Filing Requirements

101. Comments and Replies. Pursuant to Sections 1.415 and 1.419 of
the Commission's rules,\307\ interested parties may file comments and
reply comments on or before the dates indicated in the DATES section of
this document. Comments may be filed using: (1) The Commission's
Electronic Comment Filing System (``ECFS''), (2) the Federal
Government's eRulemaking Portal, or (3) by filing paper copies.\308\ We
strongly encourage commenters to indicate which portions of their
comments and reply comments pertain to Section 202 of the CVAA, and
which portions of their comments and reply comments pertain to Section
203 of the CVAA.
---------------------------------------------------------------------------

\307\ See id. 1.415, 1419.
\308\ See Electronic Filing of Documents in Rulemaking
Proceedings, Report and Order, 63 FR 24121, May 1, 1998.
---------------------------------------------------------------------------

Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/
'' or the Federal eRulemaking Portal: http://www.regulations.gov .
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing. If more than one docket
or rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
[cir] All hand-delivered or messenger-delivered paper filings for
the Commission's Secretary must be delivered to Room TW-A325 at FCC
Headquarters, 445 12th Street, SW., Washington, DC 20554. All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building. The filing
hours are 8 a.m. to 7 p.m.
[cir] Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
[cir] U.S. Postal Service first-class, Express, and Priority mail
must be addressed to 445 12th Street, SW., Washington, DC 20554.
102. Availability of Documents. Comments, reply comments, and ex
parte submissions will be publically available online via ECFS.\309\
These documents will also be available for public inspection during
regular business hours in the FCC Reference Information Center, which
is located in Room CY-A257 at FCC Headquarters, 445 12th Street, SW.,
Washington, DC 20554. The Reference Information Center is open to the
public Monday through Thursday from 8 a.m. to 4:30 p.m. and Friday from
8 a.m. to 11:30 a.m.
---------------------------------------------------------------------------

\309\ Documents will generally be available electronically in
ASCII, Microsoft Word, and/or Adobe Acrobat.
---------------------------------------------------------------------------

103. People with Disabilities: To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an e-mail to fcc504@fcc.gov or call the
FCC's Consumer and Governmental Affairs Bureau at 202-418-0530 (voice),
202-418-0432 (tty).
104. Additional Information. For additional information on this
proceeding pertaining to Section 202 of the CVAA, contact Diana
Sokolow, Diana.Sokolow@fcc.gov, of the Policy Division, Media Bureau,
(202) 418-2120. For additional information on this proceeding
pertaining to Section 203 of the CVAA, contact Jeffrey Neumann,
Jeffrey.Neumann@fcc.gov, of the Engineering Division, Media Bureau,
(202) 418-7000.

VII. Ordering Clauses

105. Accordingly, it is ordered that pursuant to the authority
contained in sections 4(i), 4(j), 303, 330(b), 713, and 716 of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303,
330(b), 613, and 617, this Notice of Proposed Rulemaking is adopted.
106. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.

List of Subjects

47 CFR Part 15

Communications equipment, Labeling, and Reporting and recordkeeping
requirements.

47 CFR Part 79

Cable television operators, Multichannel video programming
distributors (MVPDs), Satellite television service providers,
Television broadcasters.

Federal Communications Commission
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 15 and 79 as
follows:

PART 15--RADIO FREQUENCY DEVICES

1. The authority citation for part 15 is revised to read as
follows:

Authority: 47 U.S.C. 154, 302(a), 303, 304, 307, 330, 336, 544a,
549, and 617.

2. Section 15.119 is amended by revising paragraph (a) to read as
follows:
(a)(1) Effective July 1, 1993, all TV broadcast receivers with
picture screens 33 cm (13 in) or larger in diameter shipped in
interstate commerce, manufactured, assembled, or imported from any
foreign country into the United States shall comply with the provisions
of this section.

Note to paragraph (a)(1): This paragraph places no restriction
on the shipping or sale of television receivers that were
manufactured before July 1, 1993.

(2) Effective [Effective Date of the rule], all television
receivers shipped in interstate commerce, manufactured, assembled, or
imported from any foreign country into the United States shall comply
with the provisions of this section, except for television receivers
with picture screens measuring less than 13 inches diagonally for which
this is not achievable.
* * * * *
3. Section 15.122 is amended by revising paragraph (a)(1) to read
as follows:
(a)(1) Effective [Effective Date of the rule], all digital
television receivers and all separately sold DTV tuners shipped in
interstate commerce, manufactured or imported for use in the United
States

[[Page 59988]]

shall comply with the provisions of this section, except for digital
television receivers with picture screens measuring less than 13 inches
diagonally for which this is not achievable.
* * * * *
4. Add Sec. 15.125 to read as follows:

Sec. 15.125 Closed caption decoder requirements for video devices.

(a) Effective [Effective Date of the rule], all apparatus designed
to receive or play back video programming transmitted simultaneously
with sound manufactured or imported for use in the United States and
not subject to Sec. 15.119 or Sec. 15.122 of these rules, or is not a
display-only video monitor with no playback capability shall comply
with the provisions of this section.
(b) Specific Technical Capabilities. All apparatus subject to
paragraph (a) of this section, except exempt apparatus and apparatus
with picture screens measuring less than 13 inches for which these
requirements are not achievable, shall have the following technical
capabilities:
(1) All apparatus shall implement ``pop-on,'' ``roll-up,'' and
``paint-on'' presentation of captions.
(2) All apparatus shall make available semantically significant
formatting, such as italics, text color and underlining.
(3) All apparatus shall implement consumer selectability of caption
availability, including turning captions on and off, selecting font
size, selecting style, selecting color, and selecting background color
and background opacity.
(4) All apparatus shall provide for the user selection of language,
where available multiple languages or caption versions are available.
(5) All apparatus shall preserve original caption information
regarding position, font, formatting, color, style, background,
opacity, and presentation mode and display captions with such
attributes where consumer selection of alternative attributes has not
occurred or where consumer selection of default attributes has
occurred.
(6) All apparatus shall maintain user selection among video viewing
session and provide the ability to preview selection of options in this
section.
5. Add Sec. 15.126 to read as follows:

Sec. 15.126 Closed caption requirements for video recording devices.

(a) Effective [Effective Date of the rule], all apparatus designed
to record video programming transmitted simultaneously with sound
manufactured or imported for use in the United States and not subject
to Sec. 15.119 or Sec. 15.122 of these rules shall comply with the
provisions of this section, if achievable.
(b) All devices must enable the rendering of captions consistent
with Sec. 15.125 or enable the pass-through of closed-captioning data
utilizing closed-captioning standards for transmission or closed-
captioning capable interconnection mechanisms.

PART 79--CLOSED CAPTIONING AND VIDEO DESCRIPTION OF VIDEO
PROGRAMMING

6. The authority citation for part 79 continues to read as follows:

Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310,
613.

7. Add Sec. 79.4 to read as follows:

Sec. 79.4 Closed captioning of video programming delivered using
Internet protocol.

(a) Definitions. For purposes of this section the following
definitions shall apply:
(1) Video programming. Programming provided by, or generally
considered comparable to programming provided by, a television
broadcast station, but not including consumer-generated media.
(2) Full-length video programming. Video programming that is not
video clips or outtakes.
(3) Video programming distributor or video programming provider.
Any entity that makes available directly to the end user video
programming through a distribution method that uses Internet protocol.
(4) Video programming owner. Any person or entity that owns the
copyright of the video programming delivered to the end user through a
distribution method that uses Internet protocol.
(5) Internet protocol. Includes Transmission Control Protocol and
any successor protocol or technology to Internet protocol.
(6) Closed captioning. The visual display of the audio portion of
video programming.
(7) Live programming. Video programming that is shown on television
substantially simultaneously with its performance.
(8) Near-live programming. Video programming that is substantively
recorded and produced within 12 hours of its distribution to television
viewers.
(9) Prerecorded programming. Video programming that is not ``live''
or ``near-live.''
(10) Edited for Internet distribution. Video programming whose
television version is substantially edited prior to its Internet
distribution.
(11) Consumer-generated media. Content created and made available
by consumers to online Web sites and services on the Internet,
including video, audio, and multimedia content.
(12) Video clips. Small sections of a larger video programming
presentation.
(13) Outtakes. Content that is not used in an edited version of
video programming shown on television.
(14) Nonexempt programming. Video programming that is not exempted
under paragraph (e) of this section and, accordingly, is subject to
closed captioning requirements set forth in this section.
(b) Requirements for closed captioning of Internet protocol-
delivered video programming. All nonexempt full-length video
programming delivered using Internet protocol must be provided with
closed captions if the programming was published or exhibited on
television in the United States with captions after [Effective Date of
the rule], in accordance with the following schedule:
(1) As of [Date six months after the rule is published in the
Federal Register], all prerecorded programming that is not edited for
Internet distribution must be provided with captions.
(2) As of [Date 12 months after the rule is published in the
Federal Register], all live and near-live programming must be provided
with captions.
(3) As of [Date 18 months after the rule is published in the
Federal Register], all prerecorded programming that is edited for
Internet distribution must be provided with captions.
(c) Obligations of video programming owners, distributors and
providers.
(1) Obligations of video programming owners. Video programming
owners must:
(i) Send program files to video programming distributors and
providers either with captions as required by this section, or with a
dated certification that captions are not required for a specified
reason.
(ii) Provide video programming distributors and providers with any
revised certifications and newly required captions (if captions were
not previously delivered) within seven days of the underlying change.
(2) Obligations of video programming distributors and providers.
Video programming distributors and providers must:
(i) Enable the rendering or pass through of all required captions
to the end user.
(ii) Retain all certifications received from video programming
owners

[[Page 59989]]

pursuant to Sec. 79.4(c)(1)(i) and (ii) for so long as the video
programming distributor or provider makes the certified programming
available to end users through a distribution method that uses Internet
protocol and thereafter for at least one calendar year.
(iii) Make required captions available within five days of the
receipt of an updated certification pursuant to Sec. 79.4(c)(1)(ii).
(3) A video programming provider or owner's de minimis failure to
comply with this section shall not be treated as a violation of the
requirements.
(4) A video programming distributor, provider, or owner may meet
the requirements of this section through alternate means if the
requirements of this section are met, as determined by the Commission.
(d) Determination of compliance. To be considered captioned, the
quality of the captioning of IP-delivered video programming must be at
least equal to the quality of the captioning of that programming when
shown on television. In evaluating quality, the Commission may consider
such factors as completeness, placement, accuracy, and timing.
(e) Procedures for exemptions based on economic burden. (1) A video
programming provider or owner may petition the Commission for a full or
partial exemption from the closed captioning requirements of this
section, which the Commission may grant upon a finding that the
requirements would be economically burdensome.
(2) The petitioner must support a petition for exemption with
sufficient evidence to demonstrate that compliance with the
requirements for closed captioning of video programming delivered via
Internet protocol would be economically burdensome. The term
``economically burdensome'' means imposing significant difficulty or
expense. The Commission will consider the following factors when
determining whether the requirements for closed captioning of Internet
protocol-delivered video programming would be economically burdensome:
(i) The nature and cost of the closed captions for the programming;
(ii) The impact on the operation of the video programming provider
or owner;
(iii) The financial resources of the video programming provider or
owner; and
(iv) The type of operations of the video programming provider or
owner.
(3) In addition to these factors, the petitioner must describe any
other factors it deems relevant to the Commission's final determination
and any available alternatives that might constitute a reasonable
substitute for the closed captioning requirements of this section
including, but not limited to, text or graphic display of the content
of the audio portion of the programming. The Commission will evaluate
economic burden with regard to the individual outlet or programming.
(4) The petitioner must file an original and two (2) copies of a
petition requesting an exemption based on the economically burdensome
standard in this paragraph, and all subsequent pleadings, in accordance
with Sec. 0.401(a) of this chapter.
(5) The Commission will place the petition on public notice.
(6) Any interested person may file comments or oppositions to the
petition within 30 days of the public notice of the petition. Within 20
days of the close of the comment period, the petitioner may reply to
any comments or oppositions filed.
(7) Persons that file comments or oppositions to the petition must
serve the petitioner with copies of those comments or oppositions and
must include a certification that the petitioner was served with a
copy.
Parties filing replies to comments or oppositions must serve the
commenting or opposing party with copies of such replies and shall
include a certification that the party was served with a copy.
(8) Upon a finding of good cause, the Commission may lengthen or
shorten any comment period and waive or establish other procedural
requirements.
(9) Persons filing petitions and responsive pleadings must include
a detailed, full showing, supported by affidavit, of any facts or
considerations relied on.
(10) The Commission may deny or approve, in whole or in part, a
petition for an economic burden exemption from the closed captioning
requirements of this section. The Commission shall act to deny or
approve any such petition, in whole or in part, within 6 months after
the Commission receives such petition, unless the Commission finds that
an extension of the 6-month period is necessary to determine whether
such requirements are economically burdensome.
(11) During the pendency of an economic burden determination, the
Commission will consider the video programming provider or owner
subject to the request for exemption as exempt from the requirements of
this section.
(f) Complaint procedures. (1) Complaints concerning an alleged
violation of the closed captioning requirements of this section shall
be filed with the Commission. A complaint must be in writing and must
include:
(i) The name and address of the complainant;
(ii) The name and postal address, Web site, or e-mail address of
the video programming distributor, provider, and/or owner against whom
the complaint is alleged, and information sufficient to identify the
video programming involved;
(iii) Information sufficient to identify the software or device
used to view the program;
(iv) A statement of facts sufficient to show that the video
programming distributor, provider, and/or owner has violated or is
violating the Commission's rules, and, if applicable, the date and time
of the alleged violation;
(v) The specific relief or satisfaction sought by the complainant;
and
(vi) The complainant's preferred format or method of response to
the complaint (such as letter, facsimile transmission, telephone
(voice/TRS/TTY), e-mail, or some other method that would best
accommodate the complainant).
(2) The Commission will forward complaints to the named video
programming distributor, provider, and/or owner, as well as to any
other video programming distributor, provider, and/or owner that
Commission staff determines may be involved. The video programming
distributor, provider, and/or owner must respond to the complaint in
writing, to the Commission and the complainant, within the time that
the Commission specifies when forwarding the complaint, generally
within thirty (30) days. The Commission may specify response periods
longer than 30 days on a case-by-case basis.
(3) In response to a complaint, video programming distributors,
providers, and/or owners shall file with the Commission sufficient
records and documentation to prove that the responding entity was (and
remains) in compliance with the Commission's rules. Conclusory or
insufficiently supported assertions of compliance will not carry a
video programming distributor's, provider's, or owner's burden of
proof.
(4) The Commission will review all relevant information provided by
the complainant and the subject video programming distributors,
providers, and/or owners, as well as any additional information the
Commission deems relevant from its files or public sources. The
Commission may request additional information from any relevant parties
when, in the estimation of Commission staff, such information is needed
to investigate the complaint or adjudicate potential violation(s) of
Commission

[[Page 59990]]

rules. When the Commission requests additional information, parties to
whom such requests are addressed must provide the requested information
within the time period the Commission specifies.
(5) To demonstrate closed captioning compliance, video programming
distributors or providers may rely on certifications from video
programming owners, as provided for in Sec. 79.4(c)(1)(i) and (ii),
unless, at any time, the video programming distributor or provider
seeking to rely upon the certification knew or should have known that
the certification was false or erroneous. The Commission may take
enforcement action against video programming distributors, providers,
or owners with respect to false or erroneous certifications.
(6) If the Commission finds that a video programming distributor,
provider, or owner has violated the closed captioning requirements of
this section, it may employ the full range of sanctions and remedies
available under the Act against any or all of the violators.
(g) Private rights of action prohibited. Nothing in this section
shall be construed to authorize any private right of action to enforce
any requirement of this section. The Commission shall have exclusive
jurisdiction with respect to any complaint under this section.

[FR Doc. 2011-24703 Filed 9-22-11; 8:45 am]
BILLING CODE 6712-01-P