Federal Register, Volume 77 Issue 62 (Friday, March 30, 2012)

[Federal Register Volume 77, Number 62 (Friday, March 30, 2012)]
[Rules and Regulations]
[Pages 19479-19520]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7247]

[[Page 19479]]

Vol. 77

Friday,

No. 62

March 30, 2012

Part IV

Federal Communications Commission

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47 CFR Parts 15 and 79

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

Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules
and Regulations

[[Page 19480]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 15 and 79

[MB Docket No. 11-154; FCC 12-9]

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: Final rule.

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SUMMARY: Pursuant to the Twenty-First Century Communications and Video
Accessibility Act of 2010, the FCC revises its regulations to require
closed captioning of IP-delivered video programming that is published
or exhibited on television with captions after the effective date of
the new regulations. The FCC also imposes closed captioning
requirements on certain apparatus that receive or play back video
programming, and on certain recording devices. This action will better
enable individuals who are deaf or hard of hearing to view IP-delivered
video programming, as Congress intended.

DATES: Effective April 30, 2012, except for Sec. Sec. 79.4(c)(1)(ii),
79.4(c)(2)(ii) through (iii), 79.4(d)(1) through (4) and (d)(6) through
(9), 79.4(e)(1) through (6), and 79.103(b)(3) through (4), which
contain information collection requirements that are not effective
until approved by the Office of Management and Budget. The FCC will
publish a document in the Federal Register announcing the effective
date for those sections. The incorporation by reference of certain
publications listed in the rules is approved by the Director of the
Federal Register as of April 30, 2012. Written comments on the
Paperwork Reduction Act (PRA) modified information collection
requirements must be submitted by the public, OMB and other interested
parties on or before May 29, 2012.

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, contact Cathy Williams at 202-418-2918, or via the Internet
at PRA@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, FCC 12-9, adopted on January 12, 2012 and released on
January 13, 2012, and the Erratum thereto, released on January 30,
2012. The full text of this document is available for public inspection
and copying during regular business hours in the FCC Reference Center,
Federal Communications Commission, 445 12th Street SW., CY-A257,
Washington, DC 20554. This document will also be available via ECFS
(http://www.fcc.gov/cgb/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. To request this
document in accessible formats (computer diskettes, large print, audio
recording, and Braille), send an email to fcc504@fcc.gov or call the
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530
(voice), (202) 418-0432 (TTY).

Paperwork Reduction Act of 1995 Analysis

This document contains modified information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public to comment on the
information collection requirements contained in this Report and Order
as required by the Paperwork Reduction Act of 1995, Public Law 104-13.
In addition, the Commission notes that pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4), we previously sought specific comment on how the Commission
might further reduce the information collection burden for small
business concerns with fewer than 25 employees. We did not receive any
comments specifically addressing this issue. In the present document,
we have assessed the effects of the new requirements on small
businesses, including those with fewer than 25 employees, in the Final
Regulatory Flexibility Analysis (``FRFA'') below.

Summary of the Report and Order

I. Introduction

1. Pursuant to our responsibilities under the Twenty-First Century
Communications and Video Accessibility Act of 2010 (``CVAA''),\1\ this
Report and Order adopts rules governing the closed captioning
requirements for the owners, providers, and distributors of video
programming delivered using Internet protocol (``IP'').\2\ This Report
and Order also adopts rules governing the closed captioning
capabilities of certain apparatus on which consumers view video
programming. Closed captioning is the visual display of the audio
portion of video programming, which provides access to individuals who
are deaf or hard of hearing. Prior to the adoption of the CVAA, the
Communications Act of 1934, as amended (the ``Act''), required the use
of closed captioning on television, but not on IP-delivered video
programming that was not part of a broadcaster or multichannel video
programming distributor (``MVPD'') service. That changed with the
enactment of the CVAA, which directed the Federal Communications
Commission (``Commission'') to revise its regulations to require closed
captioning of IP-delivered video programming that is published or
exhibited on television with captions after the effective date of the
new regulations. Further, the CVAA directed the Commission to impose
closed captioning requirements on certain apparatus that receive or
play back video programming, and on certain recording devices. The
rules we adopt here will better enable individuals who are deaf or hard
of hearing to view IP-delivered video programming, as Congress
intended. Moreover, we believe these benefits of our rules to deaf or
hard of hearing consumers will outweigh the affected entities' costs of
compliance.
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\1\ Public Law 111-260, 124 Stat. 2751 (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\ 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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2. As discussed in Section III below, we adopt the following closed
captioning requirements for the owners, providers, and distributors of
IP-delivered video programming under Section 202(b) through (c) of the
CVAA. Specifically, we adopt rules that will:
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 providers along with program files;

[[Page 19481]]

[cir] Requiring video programming distributors and providers to
enable the rendering or pass through of all required captions to the
end user, including through the hardware or software that a distributor
or provider makes available for this purpose;
[cir] Requiring video programming owners and video programming
distributors and providers to agree upon a mechanism to make available
to video programming distributors and providers information on video
programming that is subject to the IP closed captioning requirements on
an ongoing basis; and
[cir] Requiring video programming owners to provide video
programming distributors and providers with captions of at least the
same quality as the television captions for the same programming, and
requiring distributors and providers to maintain the quality of the
captions provided by the video programming owner.
Create a schedule of deadlines under which:
[cir] All prerecorded programming that is not edited for Internet
distribution and is subject to the new requirements must be captioned
if it is shown on television with captions on or after the date six
months after publication of these rules in the Federal Register;
[cir] All live and near-live programming subject to the new
requirements must be captioned if it is shown on television with
captions on or after the date 12 months after publication of these
rules in the Federal Register;
[cir] All prerecorded programming that is edited for Internet
distribution and is subject to the new requirements must be captioned
if it is shown on television with captions on or after the date 18
months after publication of these rules in the Federal Register; and
[cir] Archival content must be captioned according to the following
deadlines: Beginning two years after publication of these rules in the
Federal Register, all programming that is subject to the new
requirements and is already in the VPD's library before it is shown on
television with captions must be captioned within 45 days after it is
shown on television with captions. Beginning three years after
publication of these rules in the Federal Register, such programming
must be captioned within 30 days after it is shown on television with
captions. Beginning four years after publication of these rules in the
Federal Register, such programming must be captioned within 15 days
after it is shown on television with captions;
Craft procedures by which video programming providers and
owners may petition the Commission for exemptions from the new
requirements based on economic burden;
Not 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, as provided in the CVAA; and
Adopt procedures for complaints alleging a violation of
the new requirements.
3. As discussed in Section IV below, we adopt the following closed
captioning requirements for the manufacturers of devices used to view
video programming under Section 203 of the CVAA. Specifically, we adopt
rules that will:
Establish what apparatus are covered by Section 203:
[cir] All physical devices designed to receive and play back video
programming, including smartphones, tablets, personal computers, and
television set-top boxes;
[cir] All ``integrated software'' in covered devices (that is,
software installed in the device by the manufacturer before sale or
that the manufacturer requires the consumer to install after sale); and
[cir] All recording devices and removable media players;
Exclude professional and commercial equipment from the
scope of Section 203;
Exempt display-only monitors as set forth in Section 203,
and establish procedures for finding a lack of achievability or
technical feasibility;
Establish the requirements for devices covered by Section
203:
[cir] Specify how covered apparatus must implement closed
captioning by adopting functional display standards;
[cir] Require apparatus to render or pass-through closed captioning
on each of their video outputs;
[cir] Decline to grant blanket waivers or exempt any device or
class of devices from our rules based on achievability or the waiver
provisions set forth in Section 203;
Establish general complaint procedures and modify our
existing television receiver closed captioning decoder requirements to
conform to screen size and achievability provisions; and
Establish a deadline for compliance of January 1, 2014 by
which devices must comply with the requirements of Section 203.
Finally, we adopt a safe harbor for use of a particular interchange
and delivery format.

II. Background

4. On October 8, 2010, President Obama signed the CVAA into law,
requiring the Commission to establish closed captioning rules for the
owners, providers, and distributors of IP-delivered video programming,
and for certain apparatus on which consumers view video programming.
The CVAA also required the Commission to establish an advisory
committee known as the Video Programming Accessibility Advisory
Committee (``VPAAC''), which submitted its statutorily mandated report
on closed captioning of IP-delivered video programming to the
Commission on July 12, 2011.\3\ The Commission initiated this
proceeding in September 2011.\4\ In the NPRM, the Commission provided
extensive background information regarding the history of closed
captioning, IP-delivered closed captioning, the applicable provisions
of the CVAA, and the VPAAC Report, which we need not repeat here. The
CVAA directs the Commission to revise its rules within six months of
the submission of the VPAAC Report to require closed captioning on IP-
delivered video programming and include a schedule of deadlines for the
provision of such closed captioning. By the same date, Section 203 of
the CVAA directs the Commission to adopt requirements for the closed
captioning capabilities of certain apparatus. To fulfill these
statutory mandates, we adopt the rules discussed below.\5\
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\3\ 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'').
\4\ Closed Captioning of Internet Protocol-Delivered Video
Programming: Implementation of the Twenty-First Century
Communications and Video Accessibility Act of 2010, FCC 11-138, 76
FR 59963, Sept. 28, 2011 (``NPRM'').
\5\ Given the tight statutory deadline, we decline to consider
proposals that go beyond implementation of the specific requirements
of the CVAA.
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5. As discussed in the NPRM, in 1997 the Commission first adopted
rules and implementation schedules for closed captioning of video
programming on television.\6\ In recent years, the Internet has become
a powerful method of video programming distribution, and the amount of
video content available on the Internet is increasing significantly
each year. IP-delivered video programming today takes a number of
forms, such as programming delivered to a personal computer, tablet
device,

[[Page 19482]]

cellular telephone, game console, Blu-ray player, or set-top box.
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.'' \7\ Video programming owners sometimes make their video
programming available via IP through their own Web sites, and sometimes
they enter into licensing agreements with third parties to distribute
their video programming using IP. Although closed captioning of IP-
delivered video programming has not been required previously, certain
companies have chosen to make it available voluntarily. When a video
programming owner enters into a licensing agreement with a third party
to enable the third party to distribute the owner's programming via IP,
the video programming owner or other entity may provide a closed
captioning file to the third-party distributor, which may then make the
closed captioning available to end users. The rules adopted below will
implement new responsibilities regarding the distribution of video
programming over IP, as well as new requirements for the apparatus
consumers use to view video programming.
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\6\ See NPRM; see also Closed Captioning of Video Programming,
FCC 97-279, 62 FR 48487, Sept. 16, 1997 (``1997 Closed Captioning
Order''), recon. granted in part, Order on Reconsideration, FCC 98-
236, 63 FR 55959, Oct. 20, 1998 (``1998 Closed Captioning Recon.
Order'').
\7\ See S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010)
(``Senate Committee Report''); H.R. Rep. No. 111-563, 111th Cong.,
2d Sess. at 19 (2010) (``House Committee Report'').
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III. Section 202 of the CVAA

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

1. Definition of Video Programming Owner, Distributor, and Provider
6. Provisions in Section 202(b) and (c) of the CVAA use the terms
``video programming owner'' (``VPO''), ``video programming
distributor'' (``VPD''), and ``video programming provider'' (``VPP'')
without defining these terms. Accordingly, the Commission must define
these terms for purposes of our implementing regulations.\8\
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\8\ The definitions we adopt for the terms VPO, VPD and VPP in
this Report and Order apply only to those terms as used with regard
to Sections 202 and 203 of the CVAA, and not to those terms in other
contexts, such as our television closed captioning or video
description rules.
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7. Video Programming Owner. As explained below, we define a VPO as
``any person or entity that either (i) licenses the video programming
to a video programming distributor or provider that makes the video
programming available directly to the end user through a distribution
method that uses Internet protocol; or (ii) acts as the video
programming distributor or provider, and also possesses the right to
license the video programming to a video programming distributor or
provider that makes the video programming available directly to the end
user through a distribution method that uses Internet protocol.'' In
the NPRM, the Commission proposed 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.'' Several
commenters support this proposal. DIRECTV, however, proposes that the
Commission ``should define `owner' as the single entity that licenses
the copyrighted work for distribution,'' and Consumer Groups argue that
the definition of VPO proposed in the NPRM should be ``more robust.''
We agree with DIRECTV that the definition proposed in the NPRM is
problematic for present purposes because multiple copyright owners may
possess particular rights in a single piece of video programming. In
this context, we are interested in the person or entity that licenses
the video programming to a video programming distributor or provider
that makes the video programming available directly to the end user
through a distribution method that uses IP. Defining a VPO in this
manner will ensure that a single entity is responsible for fulfilling
the VPO's responsibilities, which is beneficial from an enforcement
perspective given that an alternative definition may create problems in
identifying the responsible VPO. We expect that the VPO often, but not
always, will be the copyright owner. Even in instances in which the VPO
does not itself create captions for the programming, we expect that the
VPO (as we define that term) will be better positioned than the VPD or
VPP to obtain the captions, since by definition the VPO is higher up
the distribution chain than the VPD or VPP. Accordingly, we adopt
DIRECTV's proposed definition of VPO. We recognize, however, that there
may be situations where the VPO is also the VPD or VPP (for example, if
the VPO makes its video programming available through its own Web
site), and we believe that our definition also should cover VPOs in
such situations, even though there is no licensing agreement in such
circumstances.\9\ Accordingly, we expand the definition of VPO proposed
by DIRECTV to include any person or entity that acts as the video
programming distributor or provider, and also possesses the right to
license the video programming to a video programming distributor or
provider that makes the video programming available directly to the end
user through a distribution method that uses Internet protocol. Thus,
the definition of VPO is intended to include entities that have the
right to license IP distribution of programming to others, but make the
programming available through their own Web sites, as well as entities
that license others to distribute the video programming to the end
users.
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\9\ Where the VPO is also the VPD or VPP, it may not rely on a
good faith use of the mechanism described in Section III.A.2, infra,
because as the VPO, it should know whether its programming is shown
on television with captions after the effective date of our new
rules.
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8. Video Programming Distributor and Provider. We adopt the
definition of VPD and VPP that the Commission proposed in the NPRM,
with one modification. Specifically, we define a VPD or VPP as any
person or entity that makes video programming available directly to the
end user through a distribution method that uses IP. We have added the
phrase ``person or'' to this proposed definition to parallel the VPO
definition adopted herein, and to make explicit our coverage of an
individual distributor or provider, to the extent one exists.
9. We affirm the NPRM's tentative conclusion to define VPDs and
VPPs as meaning the same thing. Congress directed the Commission to
``describe the responsibilities of video programming providers or
distributors,'' leaving it to the Commission's discretion to determine
whether to define the terms as interchangeable. Based on the existing
record, we find that in the context of IP closed captioning, VPDs and
VPPs are both people or entities that make video programming available
directly to the end user through a distribution method that uses IP. We
have no factual basis on which to distinguish between VPDs and VPPs and
the record does not support different definitions.\10\ Although we
recognize that certain provisions in the CVAA reference VPPs but not
VPDs, we disagree with TWC that Congress affirmatively decided that
VPDs and VPPs are distinct categories with distinct responsibilities,
and we do not see any support for that position in the legislative
history. Thus, we find no legal or policy basis for interpreting VPDs
and VPPs differently. In this regard, we note that several commenters
in the record support our finding. And we also note that, although the
Commission in the NPRM highlighted the fact that certain statutory
provisions

[[Page 19483]]

reference VPPs, but not VPDs, and asked specifically about the
relevance of this, commenters did not provide any insight on this
issue.
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\10\ Since for the reasons stated in this paragraph, we define
VPDs and VPPs as meaning the same thing, we will refer to them as
``VPDs'' throughout the rest of this Report and Order.
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10. We note that commenters that suggest that VPD and VPP should
mean different things propose definitions that would reach entities
that we do not believe Congress intended to cover through the CVAA,
such as an Internet service provider (``ISP'') from which end users
receive Internet access. Congress specifically excluded such entities
from obligations under the CVAA for advanced communications services,
and similarly we do not think that Congress intended to reach them
here. We agree with ACA, ITTA, and NCTA that VPDs and VPPs should not
include entities that are acting as ISPs, simply providing access to
video programming distributed by another entity.\11\ We find that
regulating such entities as part of the IP closed captioning regime
would be unworkable; for example, Section 202(b) of the CVAA requires
VPDs and VPPs to make ``a good faith effort to identify video
programming subject to the'' closed captioning requirements, a
requirement that could not be met by an entity that merely provides
Internet access and is not aware of the video programming content that
it passes along the distribution chain.
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\11\ To the extent an ISP distributes video programming directly
to end users, for example by making video programming available on
its own Web site, the ISP is not merely providing access to the
video programming distributed by another VPD, but rather, is acting
as a VPD.
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11. For the reasons explained below, the IP closed captioning rules
will not apply to a broadcaster's or MVPD's provision of programming
that is subject to the Commission's television closed captioning rules.
Section 79.1 imposes television closed captioning requirements on video
programming distributors, which it defines as ``[a]ny television
broadcast station licensed by the Commission and any [MVPD] as defined
in Sec. 76.1000(e) of this chapter, 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.'' In the NPRM, the Commission proposed to define VPD in the
IP closed captioning context as ``any entity that makes available
directly to the end user video programming through a distribution
method that uses IP.'' Some commenters support the proposed definition.
Others assert that rather than ``IP'' distribution, the Commission's
regulations should focus more specifically on online or Internet
distribution. These commenters express concern over the confusion that
would result from new rules that cover some of the same MVPD services,
such as IPTV,\12\ that are covered by the Commission's existing
television closed captioning rules. We agree with ACA that we must
presume Congress knew that MVPDs are subject to existing closed
captioning rules. The television closed captioning rules are broader
than the IP closed captioning rules adopted herein, insofar as the
television closed captioning rules require closed captioning for all
new nonexempt English- and Spanish-language video programming, whereas
the CVAA only requires closed captioning of IP-delivered video
programming if the programming is ``published or exhibited on
television with captions after the effective date'' of the new rules.
Congress did not give any indication that it intended the new IP closed
captioning rules to override the existing television closed captioning
rules where an MVPD provides its service via IP. Thus, we clarify that
the new IP closed captioning rules do not apply to traditional managed
video services that MVPDs provide to their MVPD customers within their
service footprint, regardless of the transmission protocol used;
rather, such services are already subject to Sec. 79.1 of the
Commission's rules.\13\
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\12\ Internet Protocol Television (``IPTV'') is a technology
used by some MVPDs to deliver television services. Video content
typically travels over a managed, two-way IP network and can be
delivered to the subscriber using a combination of fiber and Digital
Subscriber Line (``xDSL'') over copper technology.
\13\ By ``traditional managed video service,'' we mean a service
through which an MVPD offers multiple channels of video programming,
including IP-based video offerings such as those provided by AT&T.
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12. All video programming that is available on the Internet is IP-
delivered, but not all video programming that is delivered via IP is
Internet programming. We therefore decline to limit application of the
IP closed captioning requirements to programming that VPDs deliver over
the Internet. While some portions of the legislative history reference
``Internet distribution,'' we agree with Consumer Groups that such
references were not intended to limit the reach of Section 202(b) to
Internet-delivered video programming. To the contrary, consistent with
the language of the statute itself, the legislative history made
repeated references to ``Internet protocol.'' We agree with Consumer
Groups that if Congress had intended the CVAA to apply more narrowly to
a certain class of IP-delivered video programming, it would have said
so. We note that, as technology evolves, a decision to limit the
application of the new IP closed captioning rules to ``Internet'' or
``online'' video programming could have unforeseen consequences. For
the same reasons, we disagree with ACA's proposal that an MVPD be
subject to the new IP closed captioning requirements only when it is
``acting as an online video distributor outside its MVPD footprint.''
An MVPD that distributes video programming online within its MVPD
footprint, but not as part of its MVPD service subject to Sec. 79.1,
will be subject to new Sec. 79.4. In general, an MVPD will be subject
to the new IP closed captioning rules if it is distributing IP-
delivered video programming that is not part of the traditional managed
video services that it provides its MVPD customers within its service
footprint. The distinction that ACA proposes, which would exclude from
coverage online video distribution within the MVPD's footprint, is
unsupported by the CVAA and its legislative history.
13. We are not persuaded by the concerns of Consumers Groups that
the proposed definition of VPD is both under-inclusive and over-
inclusive. Specifically, Consumer Groups argue that the proposed
definition is under-inclusive, in that it includes the term
``directly'' and thus may not reach certain entities, and over-
inclusive, in that it ``may lay captioning responsibility at the feet
of network providers and other entities that lack the ability to assist
consumers in fixing videos with insufficient or missing captions.'' We
do not believe that inclusion of the term ``directly'' in the
definition of VPD is under-inclusive; rather, use of the word
``directly'' avoids placing requirements on certain entities, such as
ISPs, that are not aware of the video programming content that they
pass along the distribution chain. Our definition is also consistent
with Section 202(b) of the CVAA, which requires the Commission's
regulations to ``clarify that * * * 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 method that uses Internet protocol.'' As to the argument
that the proposed definition is over-inclusive, we find that VPDs, as
we have defined them, will in fact include the entities that are best
suited to address consumer concerns in the first instance. We agree
with Consumer Groups that an entity that merely caches Internet videos
hosted on another Web site or server is not a VPD.

[[Page 19484]]

2. Responsibilities of Video Programming Owners, Distributors, and
Providers
14. Section 202(b) of the CVAA requires the Commission's
regulations to ``describe the responsibilities of video programming
providers or distributors and video programming owners.'' It also
requires the Commission to ``establish a mechanism to make available to
video programming providers and distributors information on video
programming subject to the Act on an ongoing basis.'' The purpose of
the required ``mechanism'' is to enable VPDs to determine whether the
video programming that they intend to make available via IP has been
shown on television with captions after the effective date of the new
rules. Section 202(b) further provides that the Commission's
regulations for closed captioning of IP-delivered video programming:

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 Act using the mechanism
[referenced above].

15. Video programming owner responsibilities. We adopt the NPRM's
proposal to require VPOs to send program files to VPDs with all
required captions.\14\ We find that placing such an obligation on VPOs
is consistent with the CVAA and the record in this proceeding.\15\
Although we acknowledge that the Commission chose not to directly
regulate video programming owners in the television context and that
there are similarities between the television and IP captioning
statutory schemes, the record in this proceeding reflects that ``closed
captioning over television and IP are fundamentally different and merit
different regulatory approaches.''
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\14\ We leave it to the parties to determine how or whether a
VPO should convey to a VPD that captions are not required for a
particular program because it has not been shown on television with
captions, even though the VPO is providing a caption file. We
strongly encourage VPDs to provide captioning for programming
delivered via IP in all instances in which the VPO makes an
appropriate captioning file available.
\15\ Of course, a VPD that is also a VPO is subject to the
requirements of VPDs and the requirements of VPOs, such that it must
produce the captions.
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16. Our decision is consistent with the statutory language. Section
202(b) of the CVAA requires the Commission to revise its regulations to
require closed captioning\16\ of IP-delivered video programming that
was shown on broadcast or MVPD-delivered television with captions after
the effective date of the new regulations. While the CVAA does not
direct the Commission to impose captioning obligations on VPOs, it
clearly authorizes the Commission to promulgate rules directly
affecting VPOs as well as VPDs.\17\ Direct regulation of VPOs closes a
potential gap in the statutory scheme. Section 202(b) of the CVAA
provides that a VPD ``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 created'' herein for identifying such
programming.\18\ Under this provision, a VPD is responsible for
rendering or pass through of closed captions and good faith efforts to
identify programming subject to the CVAA, and is protected from
liability for distributing programming without closed captions if those
two requirements are met. We recognize that, in the absence of a
requirement that VPOs provide captioning, VPDs and VPOs may nonetheless
enter into private contracts placing such an obligation on VPOs. We
find, however, that it is more efficient and less costly to place
appropriate obligations on VPOs and on VPDs, rather than to expect the
parties to enter into contracts mandating the same obligations. Thus,
we believe that imposing responsibility on VPOs as well as VPDs is both
consistent with the Commission's authority to identify the
responsibilities of VPOs under the statute and necessary to further the
statutory purpose of helping to ``ensure that individuals with
disabilities are able to fully utilize communications services and
equipment and better access video programming.''\19\
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\16\ The rules we adopt here define ``closed captioning'' to
mean, ``The visual display of the audio portion of video programming
pursuant to the technical specifications set forth in this part.''
The NPRM defined the term to mean, ``The visual display of the audio
portion of video programming.'' We have added the phrase ``pursuant
to the technical specifications set forth in this part'' to follow
the approach used to define the term ``closed captioning'' for
purposes of the Commission's television closed captioning
requirements, 47 CFR 79.1(a)(4), and to clarify that the closed
captioning requirements we adopt herein are subject to the
applicable technical specifications.
\17\ Specifically, under the ``requirements for regulations,''
the CVAA directs the Commission to ``describe the responsibilities
of video programming providers or distributors and video programming
owners.'' See 47 U.S.C. 613(c)(2)(D)(iv) (emphasis added). See also
47 U.S.C. 613(c)(2)(D)(vii) (directing that the Commission's
regulations ``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.'') (emphasis added); 47
U.S.C. 613(c)(2)(C) (authorizing the Commission to delay or waive
its IP closed captioning regulations to the extent it finds the
``regulations would be economically burdensome to providers of video
programming or program owners'') (emphasis added). The legislative
history sheds no additional light on the issue of Congress's intent
with respect to direct regulation of VPOs.
\18\ See 47 U.S.C. 613(c)(2)(D)(vi). The previous version of
Section 713 of the Act, which addressed television closed
captioning, did not contain a comparable limitation on the
imposition of VPD responsibilities. The mechanism that the CVAA
provides for is discussed later in this Section III.A.2.
\19\ Senate Committee Report at 1; House Committee Report at 19.
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17. Further, we find that imposing responsibility on VPOs is
consistent with the statutory directive to establish a ``mechanism'' to
make available to VPDs information on video programming subject to the
Act on an ongoing basis because it will help to ensure that the
mechanism the statute provides for will function effectively. In
contrast, leaving VPOs' responsibilities to be defined entirely by
private contractual arrangements would be more costly and less
efficient than appropriately allocating certain responsibilities among
both VPOs and VPDs by Commission rule.
18. We also find that placing obligations on VPOs will ensure that
the Commission may hold a responsible party accountable for violations
of the CVAA. For example, if a VPO erroneously certifies to a VPD that
captions are not required for a particular program, and the VPD makes a
good faith use of the ``mechanism'' discussed below, there would be no
entity to hold legally accountable (e.g., with respect to a consumer
complaint or enforcement action) in the absence of rules placing
obligations on the VPO. We note that Consumer Groups state that, ``to
the extent that the Commission interprets the CVAA to require a safe
harbor for VPDs and VPPs who pass through or render caption files, * *
* we would support a decision by the Commission to make VPOs and their
licensees and sublicensees responsible for captioning IP-delivered
video programming to the extent the CVAA does not permit placing that
responsibility with VPPs or VPDs.'' Thus, Consumer Groups support the
approach we adopt here. In that regard, we note that Consumer Groups
initially expressed concern about placing responsibilities on both VPDs
and VPOs on the ground that consumers and the Commission would be faced
with the potentially difficult task of identifying VPOs against whom to
file a complaint or seek enforcement. To address these concerns, as
explained below, we make clear that consumers will be free to file
their complaints against VPDs, and the Commission will require VPDs to
provide information on

[[Page 19485]]

the VPO's identity if the VPD claims that the captioning problem was
the fault of the VPO. Accordingly, we agree with Verizon that
regulating VPOs as well as VPDs will not have a negative impact on
consumers.
19. Our examination of the record in this proceeding likewise
provides support for imposing duties directly on VPOs. Numerous
commenters support the NPRM's proposal to impose captioning obligations
on content owners rather than assign such obligations exclusively to
VPDs. Even one VPO recognizes that the Commission should allocate
responsibilities among the parties in the chain of IP content delivery,
with requirements placed on both VPOs and VPDs. Commenters argue that
``VPOs are in the best position to assess whether captions are required
for a particular program since they have knowledge of which content has
been shown on television,'' and ``as the copyright holders, the VPOs
typically possess the necessary legal rights to modify the content and
insert closed captions.'' We agree, and believe that these factors
further justify placing the obligation to provide required captions on
VPOs.\20\ We also agree with Google that placing such obligations on
VPDs would be unduly burdensome, as their systems generally do not
enable them to review video content, determine whether captions are
required, and then insert captions. Further, for the reasons above, we
agree with commenters who suggest that imposing obligations on VPOs
would be most consistent with the statute.
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\20\ We recognize that some of the above arguments may be
premised on VPO copyright ownership, consistent with the VPO
definition proposed in the NPRM, whereas we have decided to define a
VPO based on its license to distribute programming to a VPD. Even if
a VPO does not own the copyright to programming, however, we believe
it will be in a better position than the VPD to determine whether
the programming aired on television with captions and to obtain the
rights necessary to add captions because it will be closer to the
copyright owner than the VPD in the ``potentially complicated chain
of copyright ownership.''
---------------------------------------------------------------------------

20. We agree with commenters who argue that key differences between
the television and IP contexts justify different regulatory treatment
of VPOs. Similar to the CVAA, the closed captioning statute governing
broadcast television and MVPD services authorizes the Commission to
regulate closed captioning of programming by providers and owners of
video programming. The Commission decided in 1997 to place the
responsibility for compliance with the closed captioning rules on video
programming distributors, defined as all entities who provide video
programming directly to customers' homes, regardless of distribution
technology used (i.e., broadcast or MVPD). The Commission reasoned in
1997 that placing compliance obligations on distributors would promote
more efficient monitoring and enforcement of the closed captioning
rules, because there would typically be a single entity to which
complaints must be addressed, and there would be no need for tracking
the entities responsible for producing programs alleged to violate the
rules. The Commission expressed an expectation that distributors would
privately negotiate with program owners regarding ``an efficient
allocation of captioning responsibilities'' and that program owners
would ``cooperate with distributors to ensure that nonexempt
programming is closed captioned in accordance with our rules.'' Thus,
the Commission chose to limit regulatory oversight to distributors,
notwithstanding that excluding program owners from the rules would
leave a liability gap in the television/MVPD captioning context. In
that regard, the Commission explained, ``[d]istributors will not be
held responsible for situations where a program source falsely
certifies that programming delivered to the distributor meets our
captioning requirements if the distributor is unaware that the
certification is false.''
21. Notwithstanding the statutory and regulatory similarities
between IP and television closed captioning, we find that a different
regulatory approach for the IP closed captioning regime than the
television closed captioning regime is justified by fundamental
differences between television and IP distribution. ``[I]n the
television context,'' as Microsoft explains, ``a single broadcaster,
MVPD, or similar entity is responsible for the delivery of video
programming,'' whereas ``video on the Internet often will pass through
the hands of numerous parties on its way to the consumer'' and VPDs in
a chain often cannot identify one another, lack contractual
relationships, and will not possess the rights necessary to caption a
work. Indeed, Congress mandated that the Commission establish a
mechanism to make available to VPDs information about whether
programming has aired on television, a mechanism that is unnecessary in
the television context. We believe that this characteristic of the IP
distribution chain helps to justify imposing obligations directly on
VPOs in the IP context, whereas the Commission reasonably believed that
in the television/MVPD context it could rely on video programming
distributors or providers working with program suppliers with whom they
have close contractual relationships. Even where a distribution chain
is complex and the VPO itself does not create the closed captions, we
expect that the VPO will be better positioned than the VPD to obtain
the captions, since by definition the VPO is farther up the
distribution chain than the VPD.
22. We also believe that the differences between video programming
distributors vis-[agrave]-vis video programming owners in the
television and IP closed captioning contexts help to justify different
regulatory approaches. Importantly, the IP closed captioning provisions
of the CVAA reach a broader class of VPDs than the video programming
distributors subject to the Commissions' television closed captioning
rules--i.e., broadcasters and MVPDs. This is significant because after
the Commission placed sole liability on distributors in the television
closed captioning context, we understand that in practice broadcasters
and MVPDs typically placed certain obligations on content owners by
contract. As explained above, we find that it is more efficient and
less costly to place appropriate obligations on VPOs and on VPDs,
rather than to expect the parties to enter into contracts placing
certain obligations on VPOs. The record indicates that captioning
problems in the television context are sometimes the fault of the
content owner rather than the distributor, and so private contractual
arrangements may indemnify television distributors in such instances.
We are not confident that all VPDs of IP-delivered video programming
(including online video distributors and other new media companies)
have sufficient leverage and ability to obtain similar contract clauses
or even have privity of contract with the entity with captioning
rights. Thus, although the Commission concluded in the television
context that holding distributors responsible for captioning would be
the most efficient approach, in the IP closed captioning context we
find it would be most effective to regulate both VPOs and VPDs.
23. We also note that distinctions between the two statutory
schemes support adoptions of a different regulatory approach in the IP
context. In that regard, Verizon points out that, unlike the statutory
provisions governing television closed captioning, the CVAA
``explicitly limits the video distributors and providers'
responsibility to passing through the closed captions they receive from
content owners.'' In other words, the

[[Page 19486]]

provisions governing television closed captioning allow the Commission
to establish video programming distributor or provider responsibilities
that encompass the actual provision of closed captioning, whereas the
CVAA precludes imposing that direct responsibility.
24. We therefore disagree with commenters that argue that the
Commission's proposals improperly allocate responsibility, and that the
regulations should focus exclusively on the entity with the direct-to-
consumer relationship rather than on the VPO. As discussed above, VPOs
are better suited than VPDs to determine whether their programming has
been shown on television with captions after the effective date, and
VPOs more likely possess the rights necessary to caption their own
content. Even if a VPO lacks the rights necessary to caption its
content, by definition the VPO is higher up the distribution chain than
the VPD, and thus is better positioned than the VPD to obtain required
captions. We also disagree with MPAA and Time Warner that extending the
existing television regime to the IP context is justified because it
would be simpler. We believe that any benefit from such consistency is
outweighed by the considerations set forth above, including the
enforcement benefits of clearly defining the VPO as a single
responsible person or entity. Further, we find unpersuasive MPAA's
argument that a ``potentially complicated chain of copyright
ownership'' mandates against direct regulation of VPOs. On the
contrary, for the reasons above, we find that such complexity supports
regulating VPOs directly in the IP context. We recognize that because
the copyright ownership chain may be complicated, under some
circumstances, the VPO as we have defined it may not possess captioning
rights or be ideally positioned to determine whether programming it
licenses is subject to the Act. Under such circumstances, however, we
believe that the VPO is better positioned than the VPD to obtain
required captions, and that it is necessary to impose captioning
responsibility on a person or entity, rather than leaving a regulatory
vacuum. As between the VPO and the VPD, we believe that the VPO--who
owns the programming or is closer in the chain of custody to the
owner--will be better positioned than the VPD to obtain the necessary
rights and information and fulfill the responsibilities that we impose
on VPOs, in particular providing captions, pursuant to our regulations.
25. Further, we reject commenters' arguments that imposing closed
captioning obligations on content owners would raise First Amendment
concerns. MPAA argues that regulating VPOs directly would represent a
``major shift from the existing captioning regime,'' impermissibly and
unnecessarily target a new category of speakers, and impose a greater
burden on content owners' speech than is necessary to ensure the deaf
community has online access to television content. As an initial
matter, closed captioning requirements implicate the First Amendment
only marginally at best. The DC Circuit has rejected the argument that
captioning requirements regulate program content in violation of
protected rights under the First Amendment, finding that closed
captioning ``would not significantly interfere with program content.''
\21\ Indeed, because closed captioning involves a ``precise repetition
of the spoken words'' communicated by the speaker, any First Amendment
burden is only incidental.\22\ The DC Circuit's explanation that closed
captioning is a ``precise repetition'' is consistent with our
definition of closed captioning as the visual display of the audio
portion of video programming. Here, the captioning requirement is
triggered only after the programming has been shown on television with
closed captions. In addition, the record does not reflect that the
total burden on all speakers associated with imposing responsibilities
on VPOs would be any greater than the total burden on all speakers
associated with regulating only providers and distributors. VPOs have
no greater First Amendment right than VPDs to be free of captioning
duties,\23\ and some VPDs are already subject to broadcast television
captioning requirements and have not objected to extension of such
requirements to the IP context. The Commission would simply be
allocating similar captioning burdens differently among video
programming owners, distributors and providers in the IP context than
in the traditional television context, in order to implement the
statutory directives and objectives as described above. This allocation
does not impermissibly burden VPOs' First Amendment rights.
---------------------------------------------------------------------------

\21\ Gottfried v. FCC, 655 F.2d 297, 311 n. 54 (1981), rev'd in
part, 459 U.S. 498 (1983) (Supreme Court did not disturb dictum of
D.C. Circuit suggesting the constitutionality of closed captioning
regulations). See also MPAA v. FCC, 309 F.3d 796, 803 (D.C. Cir.
2002).
\22\ MPAA v. FCC, 309 F.3d 796, 803 (D.C. Cir. 2002) (noting a
key difference for First Amendment purposes between video
description (which regulates video content) and closed captioning
(which involves a precise repetition of the spoken words)).
\23\ See Turner Broadcasting Systems, Inc. v. FCC, 512 U.S. 622,
636 (1994) (``There can be no disagreement on an initial premise:
Cable programmers and cable operators engage in and transmit speech,
and they are entitled to the protection of the speech and press
provisions of the First Amendment. Through `original programming or
by exercising editorial discretion over which stations or programs
to include in its repertoire,' cable programmers and operators
`see[k] to communicate messages on a wide variety of topics and in a
wide variety of formats' '').
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26. Video programming distributor or provider responsibilities. We
require VPDs to enable ``the rendering or pass through'' of all
required captions to the end user, as proposed in the NPRM. In adopting
this requirement, we note that it was generally unopposed in the
record.\24\ When a VPD initially receives a program with required
captions for IP delivery, we will require the VPD to include those
captions at the time it makes the program file available to end
users.\25\ Other than requiring a good faith use of the ``mechanism''
discussed below, we decline to impose specific obligations on VPDs to
determine whether captions are required and to ensure that video
programming has the required captions. Commenters express their
objection to such additional obligations. We note, however, that the
existence of an agreed-upon mechanism, discussed below, is not a
defense for failure to enable the rendering or pass through of required
captions to the end user if--at any time before or during the period in
which the VPD made the video programming at issue available to end
users through IP delivery--evidence shows that the VPD's reliance on
the mechanism was not in good faith.
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\24\ We note that, as discussed in Section III.A.1 above, we
rejected the proposals of a few commenters that we should impose
separate responsibilities for VPDs and for VPPs, based on the
different definitions of the terms that they advocated.
\25\ This time frame is different for archival programming, as
discussed below.
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27. We find that as part of the VPDs' responsibilities under the
Section 202(b) ``render or pass through'' obligation, they must ensure
that any application, plug-in,\26\ or device that they provide to the
consumer is capable of rendering or passing through closed captions. In
other words, if a VPD chooses to deploy an application, device, or
plug-in to deliver video to consumers, the VPD must ensure that
captions can actually be displayed on the screen--whether by causing
the text to appear or by passing the text through to another component
on the device that will accept and

[[Page 19487]]

display that text.\27\ This includes making the captioning readily
available to users, because if users cannot turn on the captioning and
otherwise control the captions, the rendering or passing through of
captions will be meaningless. We find that this is a reasonable and
necessary interpretation of the requirement that a VPD must enable
``the rendering or pass through of closed captions,'' because otherwise
captions of video programming that VPDs render or pass through via
their associated applications or hardware may not be viewable by end
users. Our interpretation of the ``render or pass through'' obligation
is consistent with how our existing closed captioning rules operate.
Thus, interpreting the ``render or pass through'' obligation in this
way is consistent with Commission precedent. We note that this approach
also is consistent with the Commission's approach in the ACS Order
that, if a provider of advanced communications services makes software
available to provide covered services, the provision of that software
is subject to the applicable requirements.\28\ Importantly, just as the
Commission found in the ACS Order that an advanced communications
service provider or equipment manufacturer is not responsible for
third-party applications and services, we find that a VPD is also not
responsible for third-party services and applications. This means that
if a consumer downloads software from a third party entity not
affiliated with or used by the VPD in the delivery of its programming,
and the consumer uses that software to access content provided by the
VPD, the VPD is not responsible for ensuring closed captioning support
in that application. We note, however, that where a VPD requires a
consumer to download software or software upgrades from a third party,
and the consumer could not otherwise view closed captioning on video
programming for which the VPD bears a closed captioning obligation, the
VPD is responsible for ensuring the accessibility of such software or
software upgrades. Finally, as part of its obligation to enable the
rendering or pass through of closed captions, a VPD providing an
application, plug-in, or device to consumers in order to deliver video
programming must ensure that the application, plug-in, or device
complies with the requirements discussed below related to
interconnection mechanisms (to the extent the VPD supplies the consumer
covered devices under Section 203) and display of captions.
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\26\ A ``plug-in'' is defined as ``[a] program of data that
enhances, or adds to, the operation of a (usually larger) parent
program.'' See H. Newton, Newton's Telecom Dictionary 642 (20th ed.
2004).
\27\ For example, if a VPD provides an application that
consumers can download onto their smartphones to view the VPD's
programming, then the application must be capable of rendering or
passing through closed captions. Likewise, if a VPD provides a
device, such as a set-top box, to view the VPD's programming, that
device must be capable of rendering or passing through closed
captions. Additionally, if the VPD delivers its programming through
a Web site, it must design its Web site to permit the user to enable
the display of closed captions. Where the VPD passes the text
through to another component on a physical device over which the VPD
has no control, then the manufacturer of that device will have
separate obligations to ensure the capability to display such
captions under Section 203 of the CVAA. See infra Section IV. We
note that if the VPD is reasonably relying on the captioning display
functionality in a device over which it has no control to display
captions, the VPD has no liability to the extent that the captioning
functionality on the device fails or operates improperly. We also
note that to the extent that the VPD believes that it would be
economically burdensome for it to comply with this requirement in a
specific instance, it may petition us accordingly.
\28\ See Implementation of Sections 716 and 717 of the
Communications Act of 1934, as Enacted by the Twenty-First Century
Communications and Video Accessibility Act of 2010, 26 FCC Rcd
14557, 14591 at para. 86 (2011) (``ACS Order'').
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28. Mechanism for information on video programming subject to the
CVAA. Having set forth the allocation of responsibilities between VPDs
and VPOs, we turn to the ``mechanism'' that the Commission must
establish to make available to VPDs information on video programming
that must be captioned when delivered via IP. The CVAA requires that
the Commission's implementing regulations ``(v) shall establish a
mechanism to make available to video programming providers and
distributors information on video programming subject to the Act on an
ongoing basis,'' and ``(vi) shall consider that the video programming
provider or distributor shall be deemed in compliance if such entity *
* * makes a good faith effort to identify video programming subject to
the Act using the mechanism created in (v).'' Without the good faith
use of such a ``mechanism,'' the Senate Committee Report explained that
a VPD that is not also an MVPD may face difficulty in determining
whether a particular program was shown on television with captions
after the effective date of the new rules. As explained below, we will
require each VPO and each VPD to which the VPO has provided or will
provide video programming for IP delivery to agree upon a ``mechanism''
that will inform the VPD of which programming is subject to the IP
closed captioning requirements on an ongoing basis. The ``mechanism''
must provide adequate information to enable the VPD to identify
programming subject to the IP closed captioning requirements on an
ongoing basis.
29. We interpret the word ``mechanism'' to mean any process, method
or system agreed upon between a VPO and a VPD that makes available to
the VPD sufficient information to determine whether captioning is
required of programming that it receives from the VPO and makes
available directly to end users through a distribution method that uses
IP. This interpretation is consistent with the statutory language,
history, and purpose, and will provide maximum flexibility to VPOs and
VPDs to comply with the CVAA's requirements. The CVAA does not define
the term ``mechanism.'' A common meaning of the term, however, is ``a
process or technique for achieving a result.'' \29\ Assigning the term
its common meaning in the CVAA is consistent with the legislative
purpose and history. In that regard, the CVAA requires a ``mechanism''
so that VPOs will make information available to VPDs regarding whether
IP-delivered programming is subject to the captioning requirements in
recognition of the difficulties VPDs otherwise might face in obtaining
such information. In addition, the statute requires that VPDs be
``deemed in compliance'' when they make a good faith effort to identify
programming subject to the captioning requirements using the mechanism.
Although the statutory reference to ``a'' mechanism might suggest that
Congress contemplated a single method for making information available
to VPDs, we find no support in the legislative history for such an
interpretation, and nothing in the statutory scheme requires such a
narrow interpretation. On the contrary, the broad interpretation we
adopt will better serve the statutory purpose of maximizing the
accessibility of IP-delivered video programming by providing
flexibility for VPOs and VPDs to agree on processes or methods tailored
to their needs, as well as by ``encourag[ing] the development of
technology to accurately identify video programming subject to this
section.'' \30\
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\29\ See Webster's New Collegiate Dictionary 737 (9th Ed. 1989).
\30\ See Senate Committee Report at 14. Rather than limiting the
definition of the statutorily-required mechanism to a specific
process or method, we believe that our approach will enhance
economic incentives for the development of technology, For example,
under our rules, entities may choose to rely on a commercially
available third-party database (to the extent one is developed) that
accurately identifies video programming subject to the CVAA.
---------------------------------------------------------------------------

30. Our broad interpretation of the statutory term ``mechanism''
also is justified by our examination of the record in this proceeding,
which reflects sharply differing views as to whether a particular
``mechanism'' would work best, supporting our conclusion that one size
may not fit all. While some

[[Page 19488]]

commenters are amenable to the system of certifications proposed in the
NPRM, others argue that the proposed certification mechanism would be
unworkable and unduly burdensome. Some commenters favor allowing a VPD
to monitor a third-party database, and still others support leaving the
choice for the parties to resolve by private contract. We believe that
the broad interpretation we adopt, by permitting the parties to select
the ``mechanism'' that is most suitable for them, will provide needed
flexibility to VPOs and VPDs while ensuring that VPDs will be able to
obtain the information necessary to determine when a program must be
provided with captions.
31. We will require each VPO and each VPD to which the VPO has
provided or will provide video programming for IP delivery to agree
upon a ``mechanism'' that will inform the VPD of which programming is
subject to the IP closed captioning requirements on an ongoing
basis.\31\ This obligation will apply to programming that VPOs newly
provide VPDs for IP delivery, as well as to programming that VPOs
provided VPDs for IP delivery previously if it remains available to
consumers, as explained below. Any mechanism agreed upon by a VPO and
VPD must provide adequate information to enable the VPD to identify
programming subject to the IP closed captioning requirements on an
ongoing basis, consistent with the definition of ``mechanism'' that we
adopt here. A VPD cannot rely in ``good faith'' on a mechanism that
fails to provide adequate information for it to identify programming
subject to the Act, and a VPD that does rely on such a mechanism
despite its inadequacy will not be ``deemed in compliance'' within the
meaning of Section 202(b) of the CVAA. If the parties agree upon a
mechanism that involves certifications, they have the flexibility to
determine whether certifications should apply to specific programming
or whether to use a more general certification, for example, by
addressing in a certification all programming covered by a particular
contract. That is, we impose no requirement on the parties that the
certifications apply on a program-by-program basis or include a
program-specific explanation as to whether captions are, or are not,
required.
---------------------------------------------------------------------------

\31\ Should a captioning problem occur where the VPD and VPO
have failed to agree upon an adequate mechanism, the Commission may
hold both parties responsible.
---------------------------------------------------------------------------

32. In the NPRM, the Commission proposed ``to require VPOs
providing video programming to VPDs 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.'' Because we have decided to afford
parties flexibility in choosing a mechanism, we decline to adopt a
certification requirement. In the interest of providing certainty to
those VPDs that may choose to use certification as the method of
determining whether captioning is required, however, we declare that
VPDs may rely in good faith on certifications, as long as they meet
certain requirements. First, to the extent that a VPD relies on a
certification by a VPO that the subject programming need not be
captioned, such certification must include a clear and concise
explanation of why captioning is not required. We believe that such an
explanation is necessary to enable a VPD to rely on the certification
in good faith, as it will enable the VPD to review the VPO's reasoning
and evaluate whether the VPD may rely on the certification. Second, in
order to rely on a certification in the event of a complaint, VPDs must
be able to produce it to the Commission. Thus, VPDs should retain any
certifications on which they may need to rely until one year after they
cease making the subject programming available to end users via IP
delivery. If these requirements are met, VPDs may rely in good faith on
such certifications for purposes of the ``deemed in compliance''
provision of the statute. In other words, when faced with a complaint,
VPDs relying upon certifications need not prove that the mechanism they
chose was adequate. In addition, if VPDs wish to obtain Commission
determinations that other proposed mechanisms provide adequate
information for them to be able to rely on the mechanisms in good faith
for purposes of the ``deemed in compliance'' provision, they may seek
such a determination by filing an informal request, and providing
sufficient information for the Commission to determine whether the
proposed mechanism would provide the VPD with adequate information for
it to identify programming subject to the Act.\32\
---------------------------------------------------------------------------

\32\ See 47 CFR 1.41. Parties filing any request pursuant to the
rules we adopt here may seek confidential treatment of information
submitted with their request pursuant to the Commission's
confidentiality rules. See 47 CFR 0.459.
---------------------------------------------------------------------------

33. We note that an uncaptioned, archival IP-delivered program that
is not subject to the IP closed captioning requirements as of the
effective date of the new rules may later become subject to the
requirements, once it is shown on television with captions after the
effective date. In the NPRM, the Commission proposed that VPOs be
required to provide VPDs with updated certifications as to the
captioning status of a previously delivered program (and a caption
file, if not previously provided) within seven days of the program
becoming subject to the IP closed captioning requirements, and that
VPDs be required to make required captions available to end users
within five days of the receipt of an updated certification. We decline
to adopt this proposal in light of our decision to provide flexibility
for VPOs and VPDs to agree to different mechanisms to enable VPDs to
identify programming subject to the CVAA. We emphasize, however, that
VPOs must provide updated information to VPDs concerning uncaptioned,
archival IP-delivered programs pursuant to whatever ``mechanism'' they
agree to use in order for VPDs to be able to rely on that mechanism in
good faith, subject to the deadlines discussed below. For example, if
the mechanism that a VPD and a VPO agree to use involves
certifications, the VPO would have to provide the VPD with an updated
certification to inform the VPD that a program in the VPD's library has
been shown on television with captions after the applicable compliance
deadline.
34. Based on examination of the record, we conclude that VPOs and
VPDs must be provided with a reasonable period of time to develop
processes or methods of addressing uncaptioned, archival IP-delivered
content that is shown on television with captions after the effective
date of the new rules. The record reflects that no process or method
presently exists to enable VPOs to accurately identify such content,
and that the task of developing one is likely to be complex. The record
also reflects that the ``costs and complexities involved in taking down
a program already online and adding captions to it'' would make
compliance with our proposed seven- and five-day deadlines impossible
at present. Accordingly, for a period of two years after this Report
and Order is published in the Federal Register, we will not require
captioning of uncaptioned, archival IP-delivered programming that is
already in the VPD's library before it is shown on television with
captions. We believe that two years will provide a reasonable period of
time for VPDs to develop and implement a process to address such
content. For such programming that is already in a VPD's library and is
shown on television with

[[Page 19489]]

captions on or after the date two years from Federal Register
publication, the VPD must update its program file to enable the
rendering or pass through of closed captions within 45 days of the
program being shown on television with captions.\33\ We believe that 45
days will provide sufficient time for VPDs to update program files to
enable the rendering or pass through of closed captions, given that
VPDs and VPOs will have two years to develop methods of complying with
the 45-day deadline.\34\ We further note that 45 days is significantly
longer than the objected-to NPRM proposal.\35\ We expect that, with the
passage of time, parties will have established a better functioning
mechanism for the update of archival content. Given this, we require
that for programming that is already in a VPD's library and is shown on
television with captions on or after the date three years from Federal
Register publication, the VPD must update its program file to enable
the rendering or pass through of closed captions within 30 days of the
program being shown on television with captions. Further, we require
that for programming that is already in a VPD's library and is shown on
television with captions on or after the date four years from Federal
Register publication, the VPD must update its program file to enable
the rendering or pass through of closed captions within 15 days of the
program being shown on television with captions. We expect that by four
years after Federal Register publication, 15 days will be sufficient
for VPDs to caption any archival content that remains uncaptioned.\36\
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\33\ Uncaptioned, archival programming will not be subject to
the IP closed captioning requirements unless and until it is shown
on television with captions on or after the two-year deadline. For
the reasons discussed above, VPOs and VPDs will need two years to
develop processes or methods of addressing such programming, and
before such processes or methods are in place we do not believe it
is reasonable to require them to keep track of whether such
programming is shown on television with captions.
\34\ Although we give VPOs and VPDs two years to develop a
process for captioning archival content that is subject to the CVAA,
we note that nothing in the statute precludes the VPO, during this
period, from providing captions to the VPD for the archival content
posted in the VPD's library.
\35\ The lengthy compliance deadline adopted herein for
programming already in a VPD's library is consistent with NCTA's
request for a separate category in the schedule of deadlines for
reruns.
\36\ The Commission may reconsider the time frames set forth in
this paragraph upon a showing that VPOs and VPDs are incapable of
compliance within these time frames.
---------------------------------------------------------------------------

35. We reject the arguments of some commenters that our IP closed
captioning rules should not apply to programming that is available from
a VPD before it is shown on television with captions. Section 202(b) of
the CVAA requires 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.'' Some
commenters maintain that the statute does not cover content delivered
to the VPD and posted online prior to the effective date of the
regulations, seemingly reading the term ``delivered'' in Section 202(b)
to refer to the time of the VPO's delivery of content to the VPD rather
than the time of publication or exhibition on television with captions.
These commenters argue that requiring updates of such programming to
include closed captions would be inconsistent with Congress's intent to
apply the requirements prospectively only. We disagree. We interpret
Section 202(b) to cover any programming delivered to consumers using
IP, provided that the programming was published or exhibited on
television with captions after the effective date of the regulations.
We believe that this interpretation is consistent with the language,
history, and purpose of the statute. The statutory phrase ``after the
effective date of such regulations'' does not modify ``programming
delivered using Internet protocol''; rather, it modifies the phrase
``published or exhibited on television with captions.'' Thus, whether
the VPO delivered the programming to the VPD before or after the
effective date of the regulations is irrelevant to whether the
programming is covered by the statute. While the legislative history of
the CVAA indicates Congress's intent ``to apply the captioning
requirement only prospectively,'' we believe that our reading is
consistent with that intent: under our reading, captioning requirements
do not apply to IP-delivered programming unless and until the
programming is published or exhibited on television with captions after
the effective date of our regulations. Our reading is also consistent
with the statutory purpose of maximizing the availability of closed
captions, whereas the reading advocated by some commenters would remove
a significant amount of captioned television programming from the scope
of the CVAA based upon whether a particular program happened to be in a
VPD's archive before it was shown on television with captions.
Accordingly, we do not see any statutory basis for exempting the
existing IP-delivered programming from the IP closed captioning
requirements as some commenters request.
3. Quality of IP-Delivered Video Programming
36. The CVAA authorizes the Commission to impose requirements on
the quality of video programming provided by VPOs for IP delivery, and
on the quality of IP-delivered video programming that VPDs make
available directly to end users.\37\ The VPAAC recommended that the
consumer experience with captions of IP-delivered video programming
should be ``equal to, if not better than,'' the television experience,
and it specifically proposed the consideration of such factors as
completeness, placement, accuracy, and timing in making this
determination. The NPRM proposed to require captions to be of at least
the same quality as the television captions for the programming, and
that an evaluation of ``quality'' includes the consideration of such
factors as completeness, placement, accuracy, and timing. While some
commenters support the proposed quality standards, others express
concern that such a requirement could make VPOs or VPDs responsible for
factors that affect caption quality but are outside of their control,
such as broadband connection speeds or the constraints of a particular
apparatus.
---------------------------------------------------------------------------

\37\ See 47 U.S.C. 613(c)(2)(D)(iv) (authorizing the Commission
to ``describe the responsibilities of video programming providers or
distributors and video programming owners'').
---------------------------------------------------------------------------

37. We will require VPOs to provide VPDs with captions of at least
the same quality as the television captions provided for that
programming. We will also require VPDs to maintain (i.e., not degrade)
the quality of the captions provided by VPOs in enabling the rendering
or pass through of captions, and to transmit captions in a format
reasonably designed to reach the end user in that quality. In
evaluating whether the captions are of at least the same quality, the
Commission will consider such factors as completeness, placement,
accuracy, and timing.\38\ At the same time, recognizing the complex
chain of video programming delivery from the VPO to the consumer, we
will not hold VPDs or VPOs responsible for quality issues outside of
their control such as broadband connection speeds or the constraints of
a particular apparatus. This slight modification of the quality
requirements proposed in the NPRM focuses on the quality of the
captions that VPOs send, and on the quality of the captions that VPDs
render or pass through, and is designed to address the

[[Page 19490]]

concern raised by commenters that VPDs and VPOs may be held responsible
for variations in quality caused by outside factors. It also mitigates
the concerns raised by certain commenters that quality requirements
could be subjective and time-consuming because the quality standard is
based on the objective quality characteristics of the actual closed
captions used for the televised version of the programming, which are
readily apparent. We reject commenters' argument that regulation of
caption quality would raise First Amendment concerns. As explained
above, the quality standards we adopt here are based upon the quality
of the television captions provided for that programming. Thus, our
quality standards impose no greater burden than our television closed
captioning requirements, which the DC Circuit has already suggested are
constitutional. We do not expect that this quality requirement will
create disincentives to making video programming available online,
since it merely requires VPOs to provide captions comparable to those
available for television distribution. Although some commenters suggest
that a decision to impose quality standards here would be inconsistent
with the lack of television closed captioning quality standards, in
fact, the Commission has a proceeding pending on the caption quality of
television programming.\39\ Further, the IP closed captioning regime
differs from the television closed captioning regime since the
television closed captioning rules require that captions be created in
the first instance, whereas in the IP context, captions are only
required for IP-delivered video programming that has already been
published or exhibited on television with captions. We believe that
quality standards are appropriate in the IP context to prevent VPOs or
VPDs from degrading the quality of the captions that actually appeared
on television when the same programming is distributed with captions
via IP. The record provides no basis for concluding that it is
unreasonable to expect VPOs and VPDs to at least maintain the same
quality with respect to programming distributed via IP, since we will
not hold VPOs and VPDs responsible for quality effects that result from
outside factors. To the extent any VPO or VPD believes that the quality
requirement is economically burdensome, it may file an exemption
petition.
---------------------------------------------------------------------------

\38\ As we gain experience with the application of these rules,
we may revisit the issue.
\39\ See Closed Captioning of Video Programming,
Telecommunications for the Deaf, Inc. Petition for Rulemaking, FCC
05-142, 70 FR 56150, Sept. 26, 2005 (issued in response to a
Petition for Rulemaking filed by the TDI Coalition on July 23,
2004). See also Consumer & Governmental Affairs Bureau Seeks to
Refresh the Record on Notices of Proposed Rulemaking Regarding
Closed Captioning Rules, DA 10-2050, 75 FR 70168, Nov. 17, 2010.
---------------------------------------------------------------------------

38. We are not persuaded that any of the alternate approaches to
caption quality proposed by commenters would be preferable to the
approach adopted herein. Specifically, CEA proposes the adoption of
``specific minimum technical requirements * * * if achievable,'' which
proposal focuses improperly on the ``achievability'' language of
Section 203 of the CVAA rather than on regulations specific to VPOs and
VPDs pursuant to Section 202 of the CVAA. Other commenters also propose
a ``functional equivalence'' quality standard, which Microsoft
describes as having a focus on ``[e]ssential equality in function
rather than exact equality with respect to all the features and
capabilities.'' We find that such an approach is amorphous and does not
offer any benefits not provided by the quality standard adopted herein.
39. We encourage VPDs to improve caption quality to enhance
accessibility, if doing so is not constrained or prohibited by
copyright law or private agreement. AT&T expresses concern that
``[e]ncouraging VPPs/VPDs to edit captions could create inconsistencies
in the quality of programming from one medium to another,'' which is
not an issue when the VPO handles edits for all media simultaneously.
In the NPRM, the Commission explained that it did not intend to require
VPDs to improve caption quality, but rather, to allow them to do so if
they had any necessary permission. Some commenters express the view
that copyright concerns should not prevent a VPD from improving caption
quality. Some commenters argue that improving caption quality for an
IP-delivered video program would be a non-infringing fair use of the
video under copyright law. In contrast, other commenters assert that
copyright law generally would prevent a VPD from improving caption
quality. We see no need to determine in this proceeding whether a VPD
may, consistent with copyright law, improve caption quality without the
consent of a VPO. We expect that VPOs and VPDs will typically agree
through their contractual negotiations about the appropriate extent, if
any, of VPD improvement to a VPO's caption file.\40\
---------------------------------------------------------------------------

\40\ In the NPRM, the Commission contemplated 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. We believe that the issue
of user tools is better suited to our discussion of requirements for
devices subject to Section 203 of the CVAA than the present
discussion of requirements for VPOs and VPDs pursuant to Section
202(b) of the CVAA.
---------------------------------------------------------------------------

4. Video Programming Subject to Section 202(b)
40. In the paragraphs below, we define the types of programming
that are subject to the IP closed captioning rules. We generally adopt
the definitions proposed in the NPRM but modify some of them, as
discussed below. As proposed in the NPRM, we also limit our rules to
programming aired with captions on television in the United States.
41. Video programming. We adopt the NPRM's proposal to codify the
CVAA's definition of ``video programming'' in our rules. 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).'' \41\ The Senate and House Committee Reports
did not elaborate on the term ``video programming,'' and commenters
generally did not further explore the meaning of the term. We agree
with the suggestion by Consumer Groups that programming ``that was
published or exhibited on television'' by definition constitutes
``video programming,'' since anything that was published or exhibited
on television must be provided by, or be comparable to programming
provided by, a television broadcast station.\42\
---------------------------------------------------------------------------

\41\ 47 U.S.C. 613(h)(2). 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'').
\42\ The Act and our rules establish that programming aired by
MVPDs is ``video programming.'' See, e.g., 47 U.S.C. 522(13) (an
MVPD ``makes available for purchase * * * multiple channels of video
programming''); 47 CFR 76.5(a) (cable television system is
``designed to provide cable service which includes video
programming''); id. 76.1000(e) (defining MVPD as an entity that
makes available for purchase multiple channels of video
programming).
---------------------------------------------------------------------------

42. Consumer-generated media. We also adopt the NPRM's proposal to
codify the CVAA's definition of ``consumer-generated media'' in our
rules. 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.'' The Senate and House Committee
Reports did not elaborate on the definition, but certain commenters
made proposals concerning the proper scope of ``consumer-generated
media'' with regard to the new IP closed

[[Page 19491]]

captioning requirements. We agree with Consumer Groups that, when
consumer-generated content is shown on television as part of a
captioned full-length program which a VPD then distributes over the
Internet, the Internet version of the captioned full-length program
must include captions. We conclude that in such a circumstance, the
captioned full-length program does not constitute ``consumer-generated
media'' merely because it includes certain content that was originally
consumer-generated; rather, pursuant to the CVAA, captioning is
required when the full-length program is delivered via IP because it is
``video programming delivered using Internet protocol that was
published or exhibited on television with captions after the effective
date of such regulations.'' For example, if a consumer creates a video
and makes it available on YouTube, and that video is then shown with
captions as part of a news broadcast on television, then that full-
length news broadcast (which includes the consumer-generated video)
must include captions when a VPD distributes it via IP. We also agree
with commenters who propose that ``consumer-generated media'' for these
purposes should include content that is made available online by
individual consumers without the consent of a VPO that has rights in
the content, since in such situations VPOs do not maintain control over
the programming and caption file, and VPDs do not maintain control over
the distribution of the programming directly to the end user. Thus, it
is not reasonable to expect VPOs and VPDs to bear any obligations for
captioning content made available online by individual consumers
without the necessary consent.
43. Players embedded in a Web site present a different situation.
When a VPD makes full-length video programming available to consumers
to redistribute through a player embedded in a Web site, the player is
controlled by the VPD, even though it appears as if it is playing video
on the Web site through which the consumer redistributes it, such as a
blog or a social networking Web site. When a VPD makes full-length
video programming available to consumers to redistribute through such a
player, the video programming is not consumer-generated media and the
VPD must ensure that the player displays required captions pursuant to
its ``pass through or render'' obligations discussed in paragraph 27
above.
44. Full-length programming. The NPRM proposed to define ``full
length programming'' as ``video programming that is not video clips or
outtakes.'' Consistent with our proposal in the NPRM, that the
captioning requirements of Section 202(b) apply to full-length
programming, and not to video clips or outtakes, we adopt the proposed
definition with a slight modification to make our rules more clear.
Specifically, we define ``full-length video programming'' as video
programming that appears on television and is distributed to end users,
substantially in its entirety, via IP. This definition thereby excludes
video clips or outtakes of the video programming that appeared on
television. We find that this decision is supported by commenters.
Through the inclusion of ``substantially in its entirety,'' we mean to
reference video programming that is distributed via IP as a complete
video programming presentation, such as an episode of a television show
or a movie. At the same time, as explained below, when substantially
all of a full-length program is available via IP, we will not consider
that program to be a ``clip,'' but rather, a ``full-length program''
subject to the IP closed captioning requirements.
45. We define ``video clips'' as excerpts of full-length video
programming, consistent with the proposals of some commenters. We
believe that this definition is consistent with what consumers commonly
think of as ``video clips.'' When substantially all of a full-length
program is available via IP, we will not consider that program to be a
``clip,'' but rather, a ``full-length program'' subject to the IP
closed captioning requirements. For example, an entity covered by our
new rules would not be permitted simply to shave off a few minutes (or
brief segments) from a full-length half hour program just to avoid
fulfilling its captioning obligations. Our decision that substantially
all of a full-length program does not constitute a ``clip'' is
consistent with congressional intent to increase the accessibility of
video programming to individuals who are deaf or hard of hearing. We
also agree with members of the industry and consumer groups that a
full-length program posted online in multiple segments, to enable
consumers to more readily access a particular segment of the program,
constitutes full-length programming and will have to be captioned under
our new rules. Thus, for example, a VPD that divides a program into
various segments for easy viewing and posts the segments on the
Internet would still have to ensure the pass through or rendering of
the captions for each of these segments. Individuals should not be
denied access to captioned IP-delivered programming because it is
available online only in segmented format.
46. We note that in the NPRM, the Commission had proposed to define
``video clips'' as ``small'' sections of a larger video programming
presentation, consistent with the Comcast-NBCU Order. We now reject
that approach. The word ``small'' in the proposed definition of ``video
clips'' could inadvertently create a class of programming that is
neither a ``video clip'' nor a ``full-length program,'' because a
particular clip may not be ``small'' but also may not be a full-length
video program. We believe that the definition of ``video clips''
adopted herein addresses that concern because it eliminates any need to
evaluate whether a particular video clip constitutes a small section of
a larger video programming presentation. Further, we encourage VPOs and
VPDs to provide closed captions for IP-delivered video clips where they
are able to do so. We emphasize that, ``if there is clear evidence that
an entity has developed a pattern of attempting to use video clips to
evade its captioning obligations,'' we may find a violation of our
rules.
47. We reject proposals that the Commission limit the definition of
``video clips'' to promotional materials that do not exceed a certain
duration or fraction of the program. There is no evidence in the CVAA
or its legislative history that Congress intended to exclude ``video
clips'' only if they are promotional in nature, and we do not see any
evidence that Congress sought to exclude only clips of a certain
duration or percentage of the full-length program.\43\
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\43\ We also reject the proposal of Consumer Groups that ``video
clips'' must be no longer than 30 seconds in duration, and the
proposal of DIRECTV that video clips must not exceed one quarter of
the program's overall length, as Consumer Groups and DIRECTV fail to
justify the strained readings of the terms ``video clips'' and
``full-length programming'' on which their proposals rely.
---------------------------------------------------------------------------

48. Finally, we emphasize that the legislative history states that
Congress ``intends, at this time, for the regulations to apply to full-
length programming and not to video clips or outtakes.'' We believe
that this legislative language, which references the present time only,
signals Congress's intent to leave open the extent to which such
programming should be covered under this section at some point in the
future. Accordingly, we may determine, at a later time, that
congressional intent ``to help ensure that individuals with
disabilities are able to * * * better access video programming'' may
warrant applying these captioning requirements beyond

[[Page 19492]]

full-length programming, by for example including video clips within
the captioning requirements or defining the term more narrowly. It is
particularly important that news content, which plays the vital role of
ensuring an informed citizenry, be made accessible to all citizens. As
Representative Markey and Senator Pryor recognize, ``Americans
increasingly are accessing online news, information and entertainment
in * * * segments * * *.'' We therefore encourage the industry to make
captions available on all TV news programming that is made available
online, even if it is made available through the use of video clips as
defined above. If we find that consumers who are deaf or hard of
hearing are not getting access to critical areas of programming, such
as news, because of the way the programming is posted (e.g., through
selected segments rather than full-length programs), we may reconsider
this issue to ensure that our rules meet Congress's intent to bring
captioning access to individuals viewing IP-delivered programming.
49. We adopt the definition of ``outtakes'' that the Commission
proposed in the NPRM. The Commission proposed to define ``outtakes'' as
content that is not used in an edited version of video programming
shown on television. Of the few commenters that discuss this proposed
definition, all express their support. We agree with Consumer Groups
that ``bloopers'' and other incidental material shown on television
with captions do not fall within the definition of ``outtakes''
prescribed herein, when such content is, in fact, used in an edited
version of video programming shown on television.
50. Foreign programming. We affirm the NPRM's tentative conclusion
that the CVAA requires closed captioning of IP-delivered video
programming that was published or exhibited on television in the United
States with captions after the effective date of the regulations. The
Commission stated in the NPRM that the best reading of the CVAA seemed
to be that closed captioning is required on IP-delivered video
programming that was published or exhibited on television in this
country with captions after the effective date of the regulations.
Industry commenters generally agree with the Commission that
programming that has been shown on television with captions only in
another country should not be subject to the new requirements for IP
closed captioning. Consumer Groups argue, however, that the IP closed
captioning requirements should apply to programming that is shown on
television in another country with captions after the effective date of
the new rules, because ``the CVAA's captioning requirements contain no
textual limitation on programming published or exhibited on television
in other countries,'' and because ``Consumer Groups see no tenable
rationale for excluding the broad range of foreign programming that is
available via Internet distribution in the United States.'' We
disagree. Although the text of the CVAA does not explicitly exclude
from coverage programming shown only in another country, we conclude
that Congress did not intend to reach such programming through the
CVAA, which commenters have explained could create many difficulties,
such as the need to reconcile different captioning requirements
applicable in different countries and monitor foreign television
broadcasts. Had Congress intended to create such a broad range of
issues, such as those that would arise with programming shown in a
foreign country, it would have said so expressly. Moreover, examination
of the record reflects that there are sound reasons for excluding
foreign television programming from the scope of the CVAA.

B. Compliance Deadlines

51. Section 202(b) of the CVAA requires the Commission's
regulations for closed captioning of IP-delivered video programming 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.'' We adopt the proposal from the NPRM to implement the
schedule of compliance deadlines set forth by the VPAAC, which is as
follows: (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. Having reviewed the record, we conclude that adoption of the
schedule of compliance deadlines proposed in the NPRM will provide the
industry with a sufficient time frame within which to develop processes
or methods for addressing such programming, and will provide consumers
with access to accessible programming in the near future. We reiterate
that the schedule of deadlines proposed in the NPRM was agreed on by
the VPAAC, which includes representatives from industries that will be
subject to our new rules, as well as consumer groups that have a strong
interest in ensuring that our rules are implemented as quickly as
possible. Based on our review of the record, we conclude that
compliance deadlines of six, 12, and 18 months after Federal Register
publication are reasonable in light of the varying degrees of
difficulty involved in closed captioning of IP-delivered prerecorded
and unedited, live or near-live, and prerecorded edited video
programming. The compliance deadlines are applicable only to initial
compliance with the rules.\44\ Once a deadline has been reached for a
particular category of programming, that content must be captioned
immediately when delivered via IP, with the exception of updates to
content already in a VPD's library.\45\ Once the applicable deadline
has been reached for a certain program, VPOs and VPDs must fulfill
their responsibilities to ensure that the program has captions when
delivered to end users via IP.
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\44\ Programming will not be subject to the IP closed captioning
requirements unless and until it is shown on television with
captions on or after the deadlines established here. Our choice of
compliance deadlines recognizes that VPOs and VPDs will need to use
the time between publication of our rules in the Federal Register
and the compliance deadlines to develop processes or methods of
addressing such programming. Before such processes or methods are in
place we do not believe it is reasonable to require them to keep
track of whether such programming is shown on television with
captions. This approach is consistent with the CVAA's mandate that
we include ``an appropriate schedule of deadlines for the provision
of closed captioning.'' 47 U.S.C. 613(c)(2)(B).
\45\ For such updated content, the captioning requirement will
not be triggered for a period of two years from the date of Federal
Register publication, as discussed above, and at that point we will
impose a 45-day deadline from the date on which the programming is
shown on television. Beginning three years from the date of the
Federal Register publication, this deadline will be reduced to 30
days, and beginning four years from the date of the Federal Register
publication, this deadline will be reduced to 15 days.
---------------------------------------------------------------------------

52. Opponents of the compliance deadlines adopted herein have not
demonstrated that the deadlines would be problematic on an industry-
wide basis. We find that the lengthier deadlines proposed by some
commenters are not justified because of support for the proposed
deadlines in the record and by the VPAAC, which demonstrates that the
proposed deadlines appear to be achievable on an industry-wide basis.
Further, we note that entities that find it economically

[[Page 19493]]

burdensome to meet the deadlines may petition for an exemption. The
CVAA directs us, in adopting a schedule of deadlines, to ``tak[e] 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. '' Thus, by adopting multiple
deadlines for different types of programming, the schedule of deadlines
adopted herein takes into account the concerns that Congress directed
the Commission to consider. We encourage VPOs and VPDs to make
captioned programming available in advance of the applicable deadlines,
to the extent they are able to do so.
53. As we discuss above, VPDs that provide applications, plug-ins,
or devices to consumers have an obligation under Section 202 to ensure
that those applications, plug-ins, or devices render or pass through
closed captions to subscribers. In many cases, compliance with this
obligation would require the VPD to design consumer devices or software
running on such devices to render or pass through closed captions. If a
VPD uses software to enable the rendering or pass through of captions,
the VPD is responsible only for software it deploys after the
applicable compliance dates discussed in paragraph 51 above. We believe
this limitation is warranted as we do not believe it is appropriate to
require VPDs to provide new versions of software if the VPD did not
otherwise intend to do so.\46\ If a VPD relies on hardware to enable
the rendering or pass through of closed captions, the VPD must meet the
compliance deadline of January 1, 2014. We believe this time period is
appropriate because it is consistent with our analysis under Section
203.\47\ We note that, while the achievability standard of Section 203
of the CVAA does not apply to Section 202, VPDs that find it
economically burdensome to meet their obligations may file an exemption
petition, as discussed below.\48\
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\46\ We will consider upgrades to VPD software to be new
applications. If a VPD is unable to meet all of the captioning
requirements for such upgrades, it may request an exemption due to
economic burden, as discussed in Section III.C.1 below.
\47\ The same rationale for the two-year apparatus deadline
applies to these VPD requirements.
\48\ We clarify that when a VPD seeks an economic burden
exemption from the requirements discussed in this paragraph, we will
consider the exemption petition with regard to the specific
feature(s) and device(s) for which implementing the captions
purportedly would be economically burdensome, as discussed in
Section IV.B (Achievability, Purpose-Based Waivers, and Display-Only
Monitor Exemption), below.
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54. The CVAA also requires the Commission's regulations to
``contain a definition of `near-live programming' and `edited for
Internet distribution.''' In the NPRM the Commission sought comment on
definitions of ``live programming,'' ``near-live programming,''
``prerecorded programming,'' and ``edited for Internet distribution.''
We explain below how we have defined these terms. The Commission
proposed to apply these definitions solely to rules applicable to IP
closed captioning pursuant to the CVAA. We conclude that the
definitions we adopt herein for the terms ``live programming,'' ``near-
live programming,'' ``prerecorded programming,'' and ``edited for
Internet distribution'' apply solely to our regulation of IP closed
captioning, as explained further below.
55. Live Programming. We adopt the definition of ``live
programming'' proposed in the NPRM. The Commission proposed to define
``live programming'' as video programming that is shown on television
substantially simultaneously with its performance. This definition is
comparable to the definition of ``live programming'' adopted in the
recent Video Description Order, which was ``programming aired
substantially simultaneously with its performance,'' \49\ with a slight
modification to clarify that in the IP closed captioning context, the
performance occurs substantially simultaneously to its airing on
television, not necessarily to the IP distribution. The Commission
explained in the NPRM that the phrase ``substantially simultaneously''
contemplates that live programming may include a slight delay when it
is shown on television. Some commenters express their support for the
proposed definition of ``live programming.'' Examples of programming
that may fit within the definition of ``live programming'' are news,
sporting events, and awards shows.
---------------------------------------------------------------------------

\49\ Video Description: Implementation of the Twenty-First
Century Communications and Video Accessibility Act of 2010, FCC 11-
126, 76 FR 55585, Sept. 8, 2011 (``Video Description Order'').
---------------------------------------------------------------------------

56. We decline to adopt rules specifically addressing simulcast
programming, that is, programming that is shown simultaneously on
television and the Internet. Rather, live and near-live television
programming that is simulcast shall be subject to the live and near-
live programming compliance deadline, and prerecorded programming that
is simulcast shall be subject to the prerecorded programming compliance
deadlines. As we explained in the NPRM, we do not believe that the
VPAAC, by mentioning simulcast programming in its definition of ``live
programming,'' meant to encompass a ``simulcast'' in which prerecorded
programming is shown on television and the Internet simultaneously.\50\
We do not believe that our decision to apply the ``live'' and ``near-
live'' deadlines to the simulcast of live and near-live programming
will, as NAB claims, create a significant barrier to the distribution
of live or near-live programming over the Internet. Rather, we expect
that the compliance deadline of 12 months from the date of publication
in the Federal Register for ``live'' and ``near-live'' programming will
provide a sufficient period of time within which VPOs and VPDs can
develop processes or methods to ensure the immediate closed captioning
of simulcasts of live and near-live programming. We note that
programming aired on television substantially simultaneously with its
performance would not lose its status as ``live programming'' by being
simulcast via IP. We disagree with NCTA's suggestion that simultaneous
streaming of prerecorded programming on television and the Internet
should have the same compliance schedule as live programming. NCTA has
not explained why a longer deadline is necessary for the simulcast of
pre-recorded programming, and the record contains no evidence
justifying a longer deadline.
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\50\ We understand that a simulcast may involve either live
programming or prerecorded programming. It strains common
understanding of the phrase ``live programming'' to think that the
VPAAC intended to extend the definition of that phrase to
programming that is shown on television and the Internet
simultaneously.
---------------------------------------------------------------------------

57. Near-Live Programming. We adopt the same definition of ``near-
live programming'' that the Commission adopted in the Video Description
Order, with one modification discussed below.\51\ In the NPRM, the
Commission proposed to define ``near-live programming'' as ``video
programming that is substantively recorded and produced within 12 hours
of its distribution to television viewers.'' Instead, we will define
``near-live programming'' as ``video programming

[[Page 19494]]

that is performed and recorded less than 24 hours prior to the time it
was first aired on television.''
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\51\ The VPAAC did not agree on a single definition of ``near-
live programming,'' with consumer group members supporting a
definition of ``near-live programming'' as ``any programming that
was produced from start to finish within 12 hours of being published
or exhibited on television,'' and industry members supporting a
definition that would reference programming that was ``substantively
produced'' within the 12 hour limit. See VPAAC Report at 29, 34-35.
Consumer Groups, in their comments to this proceeding, now express
support for 24 hours as the dividing time for this type of
programming.
---------------------------------------------------------------------------

58. The Video Description Order defined ``near-live programming''
as ``programming performed and recorded less than 24 hours prior to the
time it was first aired.'' Industry and consumer group commenters
support using that definition in the current proceeding. The NPRM noted
certain differences between the video description and closed captioning
contexts, but on further review, we find that those differences do not
justify the adoption of a different definition of ``near-live
programming'' in the IP closed captioning context as compared to the
video description context. Thus, we conclude that there is no need to
adopt a significantly different definition of ``near-live programming''
in the IP closed captioning context than in the video description
context. We make one modification to the Video Description Order's
definition to clarify that ``near-live programming,'' in the context of
IP closed captioning, is video programming that is performed and
recorded less than 24 hours prior to the time it was first aired on
television.\52\ We recognize that in the context of IP closed
captioning, some ``near-live'' programming, such as a late-night talk
show that is performed and recorded earlier the same day, may include
some prerecorded elements, for example, a late-night talk show might
include a segment that was performed and recorded more than 24 hours
prior to its distribution on television. The presence of such
prerecorded elements does not change the nature of the ``near-live''
programming.
---------------------------------------------------------------------------

\52\ We recognize that NCTA expresses its support for the
Commission's proposed definition in the NPRM of ``near-live
programming,'' which was video programming that is substantively
recorded and produced within 12 hours of its distribution to
television viewers. We believe that the definition from the Video
Description Order is clearer, however, and would not lead to
potentially subjective determinations of what constitutes near-live
programming.
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59. Prerecorded Programming. We adopt the proposal from the NPRM to
define ``prerecorded programming'' as video programming that is not
``live'' or ``near live.'' No commenter provided any substantive
evaluation of the proposed definition of ``prerecorded programming.''
By defining ``prerecorded programming'' as video programming that is
not ``live'' or ``near live,'' we will ensure that video programming
fits within one category or the other.
60. Edited for Internet Distribution. We adopt the proposal from
the NPRM to define video programming that is ``edited for Internet
distribution'' as video programming for which the television version is
substantially edited prior to its Internet distribution. We think this
definition appropriately captures that class of edited video
programming that might require a lengthier compliance deadline to
facilitate the development of necessary procedures. No commenter
proposed an alternate definition of ``edited for Internet
distribution.'' As stated in the NPRM, we agree with the VPAAC that
examples of ``substantial edits'' include the deletion of scenes or
alterations to the televised version of musical scores, and that
changes to the number or duration of advertisements would not
constitute ``substantial edits.'' We do not agree with NAB that
distinguishing between ``prerecorded programming'' and ``edited for
Internet distribution'' would be unworkable \53\ because the VPAAC
provided clear examples and explanations of what constitutes
substantial edits and what does not.
---------------------------------------------------------------------------

\53\ We understand that rights issues may, for example,
necessitate changes in music scores from the television version to
the IP version of a television program, which may also necessitate
changes to the captioning from one version to the other. See VPAAC
Report at 30. Regardless of whether the VPO itself makes these
changes or the VPD is authorized to make the changes, we find that
the need for such changes justifies a longer compliance deadline for
prerecorded edited video programming than for prerecorded unedited
video programming.
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C. Exemption Process

1. Case-by-Case Exemptions
61. Section 713(d)(3) of the Act originally authorized the
Commission to grant an individual exemption from the television closed
captioning rules upon a showing that providing closed captioning
``would result in an undue burden.'' Congress provided guidance to the
Commission on how it should evaluate such captioning exemptions by
setting forth, in Section 713(e) of the Act, four ``factors to be
considered'' in determining whether providing closed captioning ``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.
62. In the CVAA, Congress amended Section 713(d)(3) of the Act by
replacing the term ``undue burden'' with the term ``economically
burdensome,'' and by adding certain guidance on the exemption
procedures. Amended Section 713(d)(3) provides as follows:

[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.\54\
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\54\ 47 U.S.C. 613(d)(3). Because the statutory provision
regarding exemptions due to economic burden references only VPPs and
VPOs, our rule implementing this provision also will reference VPPs
and VPOs, but not VPDs. We note, however, that the exclusion of VPDs
has no practical effect as we have defined VPD and VPP as having the
same meaning.

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,
listed above.
63. We adopt the proposal in the NPRM and create a process by which
VPDs and VPOs may petition the Commission on a case-by-case basis for a
full or partial exemption of their IP closed captioning obligations,
which the Commission may grant upon a finding that the requirements
would be economically burdensome. This process is comparable to the
Commission's procedures for assessing exemption requests from our
television closed captioning rules prior to the amendment of Section
713(d)(3), and nearly identical to the procedures for exemptions based
on economic burden that the Commission recently adopted for video
description.\55\ We will provide in our rules that 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. In addition to the four
statutory factors enumerated above, the petitioner must describe any
other factors it deems relevant to the

[[Page 19495]]

Commission's final determination and any available alternatives that
might constitute a reasonable substitute for the IP closed captioning
requirements, for example, text or graphic display of the content of
the audio portion of the programming. The Commission will place
exemption petitions on public notice, and any interested person may
file comments or oppositions to the petition within 30 days after
release of the public notice of the petition. Within 20 days after the
close of the period for filing comments or oppositions, the petitioner
may reply to any comments or oppositions filed. Upon a finding of good
cause, the Commission may lengthen or shorten any comment period and
waive or establish other procedural requirements. Those filing
petitions and responsive pleadings must include a detailed, full
showing, supported by affidavit, of any facts or considerations relied
on.
---------------------------------------------------------------------------

\55\ See 47 CFR 79.1(f), 79.3(d). See also Interpretation of
Economically Burdensome Standard; Amendment of Section 79.1(f) of
the Commission's Rules; Video Programming Accessibility, Order and
Notice of Proposed Rulemaking, 26 FCC Rcd 14941, 14957-62, paras.
30-39 (2011) (``Interim Standard Order and NPRM'').
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64. We disagree with those commenters who contend that Congress
expressly amended Section 713(d) to lower the applicable burden, and
that the ``economically burdensome'' standard is broader than the
previous ``undue burden'' standard. In the recent Interim Standard
Order, the Commission interpreted on a provisional basis the term
``economically burdensome'' as used in Section 202 of the CVAA to be
synonymous with the term ``undue burden'' that was formerly used in
Section 713(e) of the Act.\56\ The Commission stated ``that Congress,
when it enacted the CVAA, intended for the Commission to continue using
the undue burden factors contained in Section 713(e), as interpreted by
the Commission and reflected in Commission rules and precedent, for
individual exemption petitions, rather than to make a substantive
change to this standard.'' Among other things, in that proceeding the
Commission cited to the legislative history of the 1996 amendments to
the Act, in which Congress clearly distinguished between the more
extensive factors that should be used to evaluate categorical
exemptions adopted by regulation under Section 713(d)(1) of the Act and
the factors that should be used to evaluate the individual exemption
requests submitted under Section 713(d)(3) of the Act. Accordingly, we
disagree with any suggestion that the Commission should apply the
broader standards applicable to categorical exemption requests to our
consideration of individual exemption requests in the IP closed
captioning context. Rather, we interpret the term ``economically
burdensome'' in Section 713(d)(3) of the Act, as amended by the CVAA,
to be synonymous with the term ``undue burden'' as this section was
originally drafted.
---------------------------------------------------------------------------

\56\ In the Notice of Proposed Rulemaking that accompanied the
Interim Standard Order, the Commission sought comment on making
permanent this provisional interpretation of ``economically
burdensome.'' See Interim Standard Order and NPRM, 26 FCC Rcd at
14961-62, paras. 38-39. The Commission has received one comment in
response, which supports this interpretation.
---------------------------------------------------------------------------

65. Thus, consistent with the analyses in the Interim Standard
Order and the Video Description Order, we adopt the process proposed in
the NPRM for case-by-case exemptions based on economic burden with a
few minor modifications.\57\ First, in the NPRM the Commission proposed
the following language in what is now numbered new Sec. 79.4(d)(3) of
our rules: ``The Commission will evaluate economic burden with regard
to the individual outlet or programming.'' In the context of the IP
closed captioning rules, the ``individual outlet'' references the VPO
or VPD. To be consistent with Sec. 79.1(f)(3) as it now exists in the
Commission's rules and as the Commission has proposed amending it in
the Interim Standard Order and NPRM and with Sec. 79.3(d)(3) as
adopted in the Video Description Order, we will omit the phrase ``or
programming.'' \58\ As we explained in the 1997 Closed Captioning
Order, in evaluating economic burden, we ``examine the overall budget
and revenues of the individual outlet and not simply the resources it
chooses to devote to a particular program.'' Consistent with that
directive, when deciding whether to grant a petition for an exemption
from the IP closed captioning rules, we will consider the overall
budget and revenues of the individual outlet and its ability to provide
closed captioning, and not simply the resources it chooses to devote to
a particular program. Second, in the NPRM the Commission proposed to
codify the following language in our rules governing exemption
petitions based on economic burden: ``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.'' Consistent
with the Interim Standard Order and NPRM and the adopted rules in the
Video Description Order, we find it unnecessary to codify in our rules
the time limit for Commission action on exemption petitions, since the
6-month deadline for Commission action is codified in the CVAA and thus
it applies regardless of whether it is codified in our rules. Third, in
the NPRM the Commission proposed to include the following language in
what is now numbered new Sec. 79.4(d)(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.'' \59\ To be consistent
with Sec. 79.1(f)(11) as proposed in the Interim Standard Order and
NPRM and with Sec. 79.3(d)(11) as adopted in the Video Description
Order, we will omit the words ``provider or owner'' from Sec.
79.4(e)(11) as proposed in the NPRM. By revising the proposed language
to omit those words, we intend to clarify that the outlet seeking an
exemption is relieved of its closed captioning obligations only for the
specific programming for which it requested an exemption.
---------------------------------------------------------------------------

\57\ We note that Consumer Groups make additional proposals
about case-by-case exemption petitions. Because we intend to address
exemption petitions on a case-by-case basis, we decline to adopt the
categorical findings suggested by Consumer Groups. Further, neither
the language nor the history of the CVAA indicates that Congress
intended to require a heightened prima facie showing for such
petitions, as suggested by Consumer Groups.
\58\ The Commission's television closed captioning rules
currently require consideration of the extent to which the provision
of closed captions will create an undue burden with regard to the
individual outlet. See 47 CFR 79.1(f)(3). The Interim Standard Order
and NPRM proposes to amend this section by replacing the term
``undue burden'' with the term ``economically burdensome,'' in
accordance with the changes made in the CVAA. See Interim Standard
Order and NPRM, 26 FCC Rcd at 14989 (App. B--Proposed Rules); 47 CFR
79.3(d)(3).
\59\ Of course, the programming will still be subject to the
closed captioning requirements under 47 CFR 79.1 when provided on
broadcast television or by an MVPD, notwithstanding its exemption
from the IP closed captioning requirements under 47 CFR 79.4.
---------------------------------------------------------------------------

66. Finally, we will require electronic filing of individual closed
captioning exemption requests, and will require electronic filing of
comments on and oppositions to such petitions. We hereby delegate to
the Chief, Consumer and Governmental Affairs Bureau, authority to
establish by Public Notice the electronic filing procedures for
individual exemption requests. Such a requirement is consistent with
the 2011 Electronic Filing Report and Order, in which the Commission
adopted a requirement to use electronic filing whenever technically
feasible.\60\ Although the NPRM proposed to require

[[Page 19496]]

paper filings, we find that an electronic filing requirement would be
most consistent with the Commission's stated goals of efficiency and
modernization and would streamline the petition process for all
parties. Persons who 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, and any petitioner filing a reply to comments or oppositions must
serve the commenting or opposing party with a copy of the reply and
must include a certification that the party was served with a copy. We
clarify that pursuant to Sec. 79.4(d)(7), comments or oppositions and
replies shall be served upon a party, its attorney, or its other duly
constituted agent by delivery or mailing a copy to the party's last
known address, or by service via email as provided in the final rules.
---------------------------------------------------------------------------

\60\ Commission's Rules of Practice, Procedure, and
Organization, FCC 11-16, 76 FR 24383, May 2, 2011 (``2011 Electronic
Filing Report and Order'').
---------------------------------------------------------------------------

2. Categorical Exemptions
67. In Section 202(b) of the CVAA, Congress provided that the
Commission ``may 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.'' In the context of television closed captioning, the
Commission has recognized that the term ``economically burdensome'' is
applied differently to case-by-case exemptions than it is to rulemaking
decisions to exempt categories of programming. Existing rules for
closed captioning of television programming contain a number of
categorical exemptions. In the NPRM, the Commission sought comment on
whether any of the categorical exemptions found in the television
closed captioning rules should apply to IP closed captioning.
68. We decline at this time to apply any of the categorical
exemptions found in the television closed captioning rules to the IP
closed captioning rules. Thus, programming that appears on television
with captions after the effective date of the IP closed captioning
rules will be subject to the rules even if the programming was exempt
from the television closed captioning requirements but was nevertheless
captioned voluntarily. Programming that is exempt from the television
closed captioning requirements and that never appears on television
with captions is not subject to the IP closed captioning requirements,
which by definition do not apply to programming that appears on
television only without captions. The record does not contain
sufficient evidence to demonstrate that it would be economically
burdensome to require captioning of programming that would fit within
one of the television exemptions, if that programming was shown on
television with captions after the effective date of our new rules.
This approach we adopt is consistent with the CVAA, which requires
``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.'' If Congress intended to
limit the IP closed captioning rules to programming that ``was required
to be published or exhibited on television with captions,'' it would
have said so.
69. We emphasize an important difference between exemptions for
closed captioning of IP-delivered video programming and exemptions for
closed captioning of television programming. In the television context,
programming that is exempt from the closed captioning requirements may
never have been associated with a closed captioning file. In contrast,
the IP closed captioning rules only apply to programming that was
captioned on television, and thus, they do not require the creation of
closed captions where captions did not already exist. We acknowledge
that a particular program may be shown on television both without
captions by an entity that is exempt under the television closed
captioning rules, and with captions by an entity that is not exempt.
Once the program is shown on television with captions after the
effective date of our new rules, all VPDs must enable the rendering or
pass through of closed captions to the end user, except for any VPD
that obtains an individual exemption due to economic burden pursuant to
the procedures adopted above.
70. We reject the categorical exemptions proposed by CTIA, NCTA,
and Starz. CTIA requests an exemption from the requirements of Section
202 of the CVAA for mobile service providers. NCTA suggests that a new
network that is exempt from the television closed captioning
requirements should also be exempt from the IP closed captioning
requirements. Starz requests ``that the Commission clarify that VPOs
need not caption other programming streamed through VPOs' Web sites''
besides linear and video-on-demand programming streamed to
authenticated subscribers. We find that these requested categorical
exemptions are overly broad and not sufficiently supported by the
record, the statute, or legislative history. None of these parties
demonstrates that compliance with the IP closed captioning requirements
would be an economic burden for an entire category of entities.
Further, we will consider on a case-by-case basis petitions requesting
an exemption based on economic burden filed by a particular mobile
service provider, new network, or other person or entity.
71. We also adopt the NPRM proposal not to delay implementation of,
or waive, the rules as applied to live programming, except by adopting
the VPAAC recommendation to provide a lengthier compliance deadline for
live programming than that provided for prerecorded programming that is
not edited for Internet distribution. Section 202(b) of the CVAA
permits the Commission to delay or waive the applicability of its IP
closed captioning rules ``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.'' 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, which we adopt above. We do not see any justification for
a further delay or waiver of the Commission's new IP closed captioning
rules as applied to live programming at this time.

D. De Minimis Failure To Comply and Alternate Means of Compliance

72. De Minimis Failure to Comply. Section 202(b) of the CVAA
requires the Commission's IP closed captioning 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.'' \61\ The statute and legislative history did not
elaborate upon the meaning of ``de minimis failure to comply.'' In the
NPRM, the Commission proposed that, to determine whether a failure to
comply is de minimis, it would ``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

[[Page 19497]]

the time frame within which the failure was remedied.''
---------------------------------------------------------------------------

\61\ Because the statutory provision regarding de minimis
failures to comply references only VPPs and VPOs, our rule
implementing this provision also will reference VPPs and VPOs, but
not VPDs. We note, however, that the exclusion of VPDs has no
practical effect as we have defined VPD and VPP as having the same
meaning.
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73. We adopt the proposed rule, which provides that a video
programming provider or owner's de minimis failure to comply with Sec.
79.4 of our rules shall not be treated as a violation of the
requirements.\62\ We intend to apply the de minimis standard in a
flexible manner, consistent with our approach in the television realm,
rather than specifying particular criteria that we will apply to make a
de minimis determination. In the television context, ``[i]n considering
whether an alleged violation has occurred, [the Commission] will
consider any evidence provided by the video programming distributor in
response to a complaint that demonstrates that the lack of captioning
was de minimis and reasonable under the circumstances.'' \63\ This
approach is also supported by the record. Thus, we decline to adopt
specific criteria that we will consider in evaluating whether a failure
to comply is de minimis.
---------------------------------------------------------------------------

\62\ This language is intended to make clear that de minimis
violations will not lead to enforcement actions.
\63\ 1998 Closed Captioning Recon. Order.
---------------------------------------------------------------------------

74. Alternate Means of Compliance. Section 202(b) of the CVAA
provides that ``[a]n entity may meet the requirements of this section
through alternate means than those prescribed by regulations pursuant
to subsection (b), as revised pursuant to paragraph (2)(A) of this
subsection, if the requirements of this section are met, as determined
by the Commission.'' \64\ Should an entity seek to use an ``alternate
means'' to comply with the IP closed captioning requirements, that
entity may either (i) request a Commission determination that the
proposed alternate means satisfies the statutory requirements through a
request pursuant to Sec. 1.41 of our rules; or (ii) claim in defense
to a complaint or enforcement action that the Commission should
determine that the party's actions were permissible alternate means of
compliance. Rather than specify what may constitute a permissible
``alternate means,'' we conclude that the best means of implementing
this provision is to address any specific requests from parties subject
to the new IP closed captioning rules when they are presented to us.
---------------------------------------------------------------------------

\64\ As explained in the NPRM, the statute and legislative
history did not elaborate upon the meaning of ``alternate means'' in
this provision, 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.''
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E. Complaint Procedures

75. In the NPRM, the Commission proposed 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, with
certain modifications. Commenters generally support the Commission's
proposed approach of modeling the IP closed captioning complaint
process on the existing television closed captioning complaint process.
As explained below, we adopt these proposals with certain enhancements
and changes.\65\
---------------------------------------------------------------------------

\65\ The complaint procedures discussed in this Report and Order
address the process by which the Commission's Consumer and
Governmental Affairs Bureau processes complaints. This process
differs from that of the Commission's Enforcement Bureau, which
investigates whether a violation has occurred and, if so, what
penalty to assess, regardless of whether a complaint has been filed.
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76. Timing of Complaint. In the NPRM, the Commission asked whether
to impose the same 60-day time frame for complaints involving IP-
delivered video programming as for complaints involving programming
aired on television. We recognize that determining the date on which
IP-delivered video programming was noncompliant may be more difficult
than determining the date on which television programming was
noncompliant, since television programming often airs at specified
times whereas IP-delivered video programming may be available
continuously. If IP-delivered video programming is available without
required captioning, then it is noncompliant during the entire time
that it is available. A number of commenters support the adoption of a
filing deadline for complaints alleging violations of the IP closed
captioning rules based on the date on which the consumer experienced
the captioning problem, explaining that it would provide VPDs and VPOs
with some certainty as to previously distributed content, and would
ensure that the complaint process occurs when evidence is fresh. Some
commenters support a 60-day time frame, while others support a shorter
or longer time frame.
77. We adopt the proposed 60-day time frame and require that
complaints be filed within 60 days after the complainant experiences a
problem with the captioning of IP-delivered video programming. We
recognize that problems with captions of IP-delivered video programming
often may be ongoing, in that a program may remain online without
captions for a period of time. We will require the consumer to file a
complaint within 60 days of any date on which the consumer accessed the
programming and did not receive compliant captions. The Commission will
accept a consumer's allegations as to the timeliness of a complaint as
true, unless a VPO or VPD demonstrates otherwise. Establishing a
deadline based on the date the complainant accessed noncompliant
programming will provide certainty to VPOs and VPDs and ensure that the
evidence available at the time of the complaint remains fresh. The 60-
day time frame, in particular, has worked well in the television
context, and we therefore find it appropriate to use the same deadline
here.
78. We find that it is important to provide a limit on the time
within which a complaint must be filed, so that evidence is available
to adjudicate the complaint properly. For example, even if a particular
program remains available via IP, technical problems with the
consumer's device or Internet connection on a specific date might have
been the cause of a particular captioning problem, and it might be
difficult to make that determination if too much time has elapsed. We
disagree with Consumer Groups that the time frame should begin at the
last time the violating video was distributed to any consumer. Some
video programming may be available online for years, and so it may be
difficult to investigate a complaint filed by a consumer years after
the captioning problem occurred.
79. Option to File Complaints with the Commission or with the VPD.
Similar to the television closed captioning rules, we will create a
process for complainants to file their complaints either with the
Commission or with the VPD responsible for enabling the rendering or
pass through of the closed captions for the video programming. First,
we adopt a process by which complainants may file complaints with the
Commission, and those complaints may be directed against a particular
VPD or VPO. Second, to encourage the prompt resolution of complaints in
the marketplace, we also adopt a process by which complainants may
first file their complaints with the VPD, and if complainants are not
satisfied by that process, they may then file their complaints with the
Commission. These procedures are discussed further below. We do not
create a process by which complainants may first file their complaints
with the VPO, because VPOs

[[Page 19498]]

generally do not maintain direct relationships with consumers and may
lack the ability to provide consumers with means of access such as the
contact information we require below of VPDs.
80. In the NPRM, the Commission asked whether we should permit
those filing complaints alleging a violation of the IP closed
captioning rules to file the complaint directly with the VPD first, or
whether it is instead preferable to require all complaints to come
directly to the Commission in the first instance. Some commenters
support a Commission procedure for filing complaints with the VPD
first. Permitting the filing of complaints directly with the VPD, and
allowing the VPD to attempt to resolve the complaint with the consumer
before the Commission engages in enforcement proceedings, would benefit
VPDs by minimizing their involvement in complaint proceedings at the
Commission and may benefit consumers by fostering a prompt resolution
of their complaints. Thus, we adopt procedures to permit complainants
to file their complaints either with the Commission or with the VPD
responsible for enabling the rendering or pass through of the closed
captions for the video programming.\66\
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\66\ The record does not support the creation of a process by
which consumers file complaints directly with the VPO. We find it
unlikely in any event that a consumer would choose to file a
complaint with a VPO, with which it has no direct relationship,
instead of with a VPD from which it receives IP-delivered video
programming. Of course, any consumer that wishes to contact a VPO to
share a captioning concern may do so.
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81. Consumers who file their complaints first with the Commission
may name a VPD or VPO in the complaint, since both entities are subject
to the IP closed captioning rules. The Commission will forward such
complaints to the named VPD and/or VPO, as well as to any other VPD or
VPO that Commission staff determines may be involved, as discussed
further below. If a complaint is filed first with the VPD, our rules
will require the VPD to respond in writing to the complainant within
thirty (30) days after receipt of a closed captioning complaint.\67\ If
a VPD fails to respond to the complainant within thirty (30) days, or
the response does not satisfy the consumer, the complainant may file
the complaint with the Commission within thirty (30) days after the
time allotted for the VPD to respond. If the consumer then files the
complaint with the Commission (after filing with the VPD), the
Commission will forward the complaint to the named VPD, as well as to
any other VPD or VPO that Commission staff determines may be
involved.\68\ If the Commission is aware that a complaint has been
filed simultaneously with the Commission and the VPD, the Commission
may allow the process involving the VPD and the consumer to reach its
conclusion before moving forward with its complaint procedures, in the
interest of efficiency.\69\
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\67\ If a VPD receives a complaint directly from a consumer but
believes that the captioning problem was caused by the VPO, the VPD
may indicate in its response to the consumer that the consumer may
choose to file a complaint with the Commission against the VPO. To
the extent a VPD believes that fault for the captioning problem lies
elsewhere, the VPD should make this clear, and provide any other
relevant information, in its written response to the consumer.
\68\ These procedures are consistent with procedures in our
existing television closed captioning rules.
\69\ We note Consumer Groups' proposal that Commission
enforcement proceedings and VPD attempts at remediation should occur
concurrently. In response, AT&T explains that the proposal of
Consumer Groups would violate the Administrative Procedure Act and
the Constitutional guarantee of due process. The Commission may not
be aware that a complaint has been filed simultaneously with the
Commission and with a VPD, but when so informed, the Commission will
provide the VPD with the 30-day period after the VPD received the
complaint to resolve the complaint with the complainant first, in
the interest of efficiency.
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82. The flexible complaint process adopted herein will benefit
consumers because it enables them to file their complaints with the
Commission naming either the VPD or the VPO. We reiterate our
expectation that consumers generally will name the VPD in their
complaints, since that is the entity that distributes the programming
to consumers. Nevertheless, if a consumer names a VPD in its complaint
but the Commission determines that its investigation should be directed
against the VPO, the Commission will forward the complaint to the VPO
without any further involvement of the consumer.\70\ In addition, if a
VPD receives a complaint from the Commission that it believes the
Commission should have directed to the VPO, the VPD may say so in its
response to the complaint. In such instances, however, the VPD's
response must also indicate the identity and contact information of the
VPO to which the VPD believes the complaint should be directed. Since
consumers may file any IP closed captioning complaint with the VPD or
name the VPD in any complaint filed with the Commission, we find that
Consumer Groups' concern that consumers may be unable to determine the
entity against which they should file a complaint is unfounded, because
consumers are not required to name or otherwise identify the applicable
VPO. The complaint process will be aided further by the Commission's
ability to request additional information from any relevant entities
when, in the estimation of Commission staff, such information is needed
to investigate the complaint or adjudicate potential violation(s) of
Commission rules.
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\70\ While the complaint procedures proposed in the NPRM would
provide the Commission with needed flexibility to reach the
responsible entity or entities, we do not intend to burden parties
by engaging in simultaneous investigations, where a complaint can
best be resolved by focusing the Commission's investigation on a
single party or on one party followed by another party.
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83. Complaint Response Time. Upon receipt of a complaint from the
Commission, we will require the VPD and/or VPO to respond in writing to
the Commission and the complainant within 30 days. We conclude that the
record does not support deviating from the 30-day time frame contained
in the television closed captioning rules for responding to complaints.
While Consumer Groups propose that the Commission instead require VPDs
to respond to complaints within 15 calendar days, we agree with other
commenters that such a short deadline would be unworkable. Although in
the NPRM the Commission proposed to provide explicitly in our rules
that the Commission may specify response periods longer than 30 days on
a case-by-case basis, we find it unnecessary to do so because the
Commission may waive its rules for good cause, sua sponte or pursuant
to a waiver request, and it can grant motions for extension of time.
84. In response to a complaint, VPDs and VPOs must 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 VPD's or VPO's burden of proof. If the responding
entity admits that it was not or is not in compliance with the
Commission's rules, it shall file with the Commission sufficient
records and documentation to explain the reasons for its noncompliance,
show what remedial steps it has taken or will take, and show why such
steps have been or will be sufficient to remediate the problem.
85. Resolution of Complaints. We decline at this time to specify a
time frame within which the Commission must act on IP closed captioning
complaints. While we recognize the importance of prompt actions on
complaints, no such time frame exists for television closed captioning
complaints, and we agree with commenters who explain that it would be
difficult at this juncture to predict

[[Page 19499]]

the length of time the Commission will need to resolve IP closed
captioning complaints. In evaluating a complaint, the Commission will
review all relevant information provided by the complainant and the
subject VPDs or VPOs, as well as any additional information the
Commission deems relevant from its files or public sources. When the
Commission requests additional information, parties to which such
requests are addressed must provide the requested information in the
manner and within the time period the Commission specifies.
86. Sanctions or Remedies. We decline to create sanctions or
remedies for IP closed captioning enforcement proceedings that deviate
from the Commission's flexible, case-by-case approach governed by Sec.
1.80 of our rules. We do not find warranted the proposal of Consumer
Groups that the Commission assess a new violation for each complaint,
with a minimum forfeiture level of $10,000 per violation. The record
does not support either the $10,000 minimum forfeiture level proposed
by the Consumer Groups or establishing a base forfeiture level for IP
closed captioning complaints at this time. Further, since closed
captioning requirements for IP-delivered video programming are new, the
Commission may benefit from conducting investigations before codifying
a base forfeiture for addressing violations. As stated in the NPRM, we
will adjudicate complaints on the merits and may employ the full range
of sanctions and remedies available to the Commission under the Act.
87. Content of Complaints. Given the variety of issues that could
cause IP closed captioning not to reach an end user (for example, a
VPO's failure to provide captions, a VPD's failure to render or pass
through captions, captions of an inadequate quality, a problem with the
device used to view the captions, or the fact that captions were not
required because the programming had not been shown on television with
captions after the effective date of the new rules), we think it is
important that we receive complaints containing as much information as
possible that will enable their prompt and accurate resolution.
Accordingly, complaints should include the following information: \71\
(a) The name, postal address, and other contact information of the
complainant, such as telephone number or email address; \72\ (b) the
name and postal address, Web site, or email address of the VPD and/or
VPO against which the complaint is alleged, and information sufficient
to identify the video programming involved; (c) information sufficient
to identify the software or device used to view the program; (d) a
statement of facts sufficient to show that the VPD and/or VPO has
violated or is violating the Commission's rules, and the date and time
of the alleged violation; \73\ (e) the specific relief or satisfaction
sought by the complainant; and (f) the complainant's preferred format
or method of response to the complaint. Consumer Groups also suggest
that the Commission should permit consumers to submit photographic or
video evidence of the captioning problem when filing a complaint. If a
consumer wishes to submit such evidence, Commission staff will consider
the evidence as part of the complaint proceeding. If a complaint is
filed with the Commission, the Commission will forward complaints
meeting the above-specified requirements to the appropriate party or
parties. If a complaint does not contain all of the information
specified in this paragraph and Commission staff determines that
certain information is essential to resolving the complaint, Commission
staff may work with the complainant to ascertain the necessary
information and supplement the complaint. The Commission retains
discretion not to investigate complaints that lack the above-specified
information and complaints for which the Commission is unable to
ascertain such information after further inquiries to the complainant.
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\71\ While we proposed in the NPRM to require complaints to
include this information, we recognize that some of the requested
information may not be readily ascertained by consumers. For
example, it may be difficult for consumers to determine the identity
of the VPO, the postal address of the VPD or VPO, and the type of
software or device the consumer used to view IP-delivered video
programming. Accordingly, we provide that complaints should (but are
not required to) include the specified information. The Commission
will best be in a position to investigate complaints that include
the maximum information requested.
\72\ We have enhanced this category of information from what was
proposed in the NPRM, to facilitate contacting the complainant by
means other than postal mail.
\73\ We have modified this requirement from what was proposed in
the NPRM, in recognition of the finding that the date and time of
the alleged violation should be included with all IP closed
captioning complaints.
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88. Written Complaints. We conclude that complaints filed either
with the Commission or with the VPD must be in writing. Consumer Groups
propose that the Commission should permit the filing of complaints by
``any reasonable means,'' and it also proposes that the Commission
accommodate evidence for closed captioning complaints submitted in
American Sign Language. NAB disagrees, proposing instead that the means
of filing complaints should mirror the television closed captioning
rules. We find no reason to deviate from the requirement in the
television closed captioning rules that a complaint must be in writing,
and we thus adopt that proposed requirement, which has worked well in
the television context. We clarify that, if a complainant calls the
Commission for assistance in preparing a complaint (by calling either
1-888-CALL-FCC or 1-888-TELL-FCC (TTY)), and Commission staff documents
the complaint in writing for the consumer, that constitutes a written
complaint. A written complaint filed with the Commission must be
transmitted to the Consumer and Governmental Affairs Bureau through the
Commission's online informal complaint filing system, U.S. Mail,
overnight delivery, or facsimile. After the rules become effective, the
Consumer and Governmental Affairs Bureau will release a consumer
advisory with instructions on how to file complaints in various
formats, including via the Commission's Web site.
89. Revisions to Form 2000C. The Commission directs the Consumer
and Governmental Affairs Bureau to revise the existing complaint form
for disability access complaints (Form 2000C) in accordance with this
Report and Order, to foster the filing of IP closed captioning
complaints. In the NPRM, the Commission asked if it should revise the
existing complaint form for disability access complaints (Form 2000C)
to request information specific to complaints involving IP closed
captioning, and industry and consumer groups support this proposal.
Should the complaint filing rules adopted in this Report and Order
become effective before the revised Form 2000C is available to
consumers, IP closed captioning complaints may be filed in the interim
by fax, mail, or email.
90. Contact Information. We will require VPDs to make contact
information available to end users for the receipt and handling of
written IP closed captioning complaints. Given that we will permit
consumers to file their IP closed captioning complaints directly with a
VPD, we think it is important that consumers have the information
necessary to contact the VPD. At this time, we decline to specify how
VPDs must provide contact information for the receipt and handling of
written IP closed captioning complaints, but we expect that VPDs will
prominently display their contact

[[Page 19500]]

information in a way that it is accessible to all end users of their
services. We agree with AT&T that ``a general notice on the VPP's/VPD's
Web site with contact information for making inquiries/complaints
regarding closed captioning over IP video'' would be sufficient, but we
emphasize that such notice should be provided in a location that is
conspicuous to viewers. We also agree with Consumer Groups that
creating a database comparable to the television database of video
programming distributor contact information may be infeasible in the IP
context, given the potentially large number of VPDs that may emerge
over time. Therefore, we decline at this time to create a database of
IP video providers and their closed captioning contacts; if we find
that VPDs are not providing their contact information in a sufficient
manner, however, we may revisit this issue. Very few commenters
provided their views on what contact information we should require.
Accordingly, we will parallel the requirements for television video
programming distributor contact information for the receipt and
handling of written closed captioning complaints. Thus, we will require
VPDs of IP-delivered video programming to make the following contact
information accessible to end users: the name of a person with primary
responsibility for IP closed captioning issues and who can ensure
compliance with our rules; and that person's title or office, telephone
number, fax number, postal mailing address, and email address. VPDs
shall keep this information current and update it within 10 business
days of any change.
91. We will not, however, require VPDs to make contact information
available for the immediate receipt and handling of closed captioning
concerns of consumers. The television closed captioning rules require
video programming distributors to ``make available contact information
for the receipt and handling of immediate closed captioning concerns
raised by consumers while they are watching a program,'' so that
distributors can work with consumers to resolve the program at that
time. We draw this distinction for these rules because we are concerned
that Web sites and other sources of IP-delivered video programming may
not be well-positioned to respond to a consumer's immediate closed
captioning concerns.

IV. Section 203 of the CVAA

92. The CVAA amends Section 303(u) of the Act to ``require that, if
technically feasible, apparatus designed to receive or play back video
programming transmitted simultaneously with sound * * * and us[ing] a
picture screen of any size be equipped with built-in closed caption
decoder circuitry or capability designed to display closed-captioned
video programming.'' In the discussion that follows, we first provide
our interpretation of the statutory term ``apparatus.'' We then analyze
additional provisions of Section 203 of the statute, including the
provisions that ``apparatus'' that use a screen of any size are covered
and that our requirements only apply to the extent they are technically
feasible. Further, we address the statutory provisions for waivers of
closed captioning obligations that are not ``achievable'' or are not
appropriate given the primary purpose of the device being used to view
video programming, as well as the statutory exemption for display-only
monitors. We then address the specific, functional requirements covered
devices will be required to satisfy. Additionally, we incorporate the
statutory language regarding recording devices, including the
obligations that they receive, store, and play back closed captioning,
address interconnection mechanisms, and make minor changes to our
existing closed captioning rules for analog and digital television
receivers. Finally, we address how parties may meet these requirements
through alternate means of compliance, specify the time frames by which
manufacturers must meet their obligations under these rules, and
describe how consumers may file complaints for violations of these
rules.

A. Apparatus Subject to Section 203 of the Act

93. The CVAA does not define the term ``apparatus,'' requiring the
Commission to interpret the term to determine the exact meaning and
extent of the statute's reach. Taking into account the statutory
language and purpose, the record in this proceeding, and the
conclusions the Commission reached in the ACS Order,\74\ we interpret
this language to apply to hardware (that is, physical devices such as
set-top boxes, PCs, smartphones, and tablets) designed to receive or
play back video programming transmitted simultaneously with sound and
any integrated software (that is, software installed in the device by
the manufacturer before sale or that the manufacturer requires the
consumer to install after sale). Commenters unanimously agree that
physical devices capable of displaying video are covered by the
statutory term ``apparatus.'' Given the fact that the means by which a
device actually displays video--the ``video player''--may be comprised
of hardware, software, or a combination of both, we do not believe that
it would be appropriate to define ``apparatus'' solely in terms of
hardware. Rather, in order to effectuate the statutory goals, we define
``apparatus'' to include the physical device and the video players that
manufacturers install into the devices they manufacture (whether in the
form of hardware, software, or a combination of both) before sale, as
well as any video players that manufacturers direct consumers to
install.\75\ Thus, ``apparatus'' includes integrated video players,
i.e., video players that manufacturers embed in their devices, video
players designed by third parties but installed by manufacturers in
their devices before sale, and video players that manufacturers require
consumers to add to the device after sale in order to enable the device
to play video.\76\ In addition, if a manufacturer offers updates or
upgrades to a video player component of a device, it also must ensure
that those updates or upgrades are capable of displaying closed
captions.\77\ Further, if a manufacturer

[[Page 19501]]

selects a third-party operating system that includes a video player,
that video player will also be considered part of the ``apparatus.''
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\74\ The ACS Order applies the accessibility requirements of
Section 716 of the CVAA to non-interconnected VoIP services,
electronic messaging services, and interoperable video conferencing
services. ACS Order, 26 FCC Rcd at 14564, para. 13, implementing
Public Law 111-260 sec. 104; 47 U.S.C. 617-619. In applying the
provisions of the CVAA to entities that make or produce end user
equipment, including tablets, laptops, and smartphones responsible
for the accessibility of the hardware and manufacturer-provided
software used for email, SMS text messaging, and other advanced
communications services, the Commission addressed many issues of
first impression related both to the CVAA and to the regulation of
high-tech devices not traditionally reached by the Commission's
accessibility rules. We find the ACS Order a useful guide to
interpreting similar provisions and issues in this proceeding.
Accordingly, we refer to the ACS Order at various points in the
following discussion.
\75\ We note that manufacturers of covered apparatus pursuant to
this section must also comply with the performance and display
requirements set forth below.
\76\ As provided in the ACS Order, ``[m]anufacturers are
responsible for the software components of their [devices] whether
they pre-install the software, provide the software to the consumer
on a physical medium such as a CD, or require the consumer to
download the software.'' ACS Order, 26 FCC Rcd at 14582, para. 69.
\77\ We reject commenters' arguments that Section 203 is limited
to enabling the display of closed captioning solely to video
programming provided pursuant to Section 202 of the CVAA. Section
203 broadly requires covered devices to be equipped and capable of
displaying closed captioned video programming. 47 U.S.C.
303(u)(1)(A). The legislative history states that the CVAA was
enacted to ``ensure that devices consumers use to view video
programming are able to display closed captions.'' Moreover, as a
technical and practical matter, once a device implements the closed
captioning capability for a particular format of content, then the
origin of that content is immaterial. Under current technology,
there would be no way for the device manufacturer to limit
captioning only for a particular type of content.
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94. Our approach is consistent with the statute, which uses broad
terminology, applying to ``apparatus designed to receive and play back
video programming transmitted simultaneously with sound.'' In addition
to the statute's broad language, the legislative history suggests that
the statute was intended to have a broad scope. For example, the House
and Senate Committee Reports describe the goal of Section 203(a) as
``ensur[ing] that devices consumers use to view video programming are
able to display closed captions.'' As explained above, applying our
rules solely to hardware would not fulfill this goal because the
ability to display closed captions may be implemented through hardware,
software or a combination of both. Thus, defining apparatus to include
``integrated software'' is necessary to achieve Congress's goal to
ensure individuals with disabilities are able to fully access video
programming. We recognize that this places the burden on manufacturers
to ensure that all the software they choose to build into or preinstall
in their devices complies with our closed captioning rules. We
conclude, however, that this is necessary to implement the statute and
effectuate congressional intent. The approach we adopt is also
consistent with the approach the Commission followed in the ACS
Order.\78\ We decline to include within the scope of our interpretation
of the statutory term ``apparatus'' third-party software that is
downloaded or otherwise added to the device independently by the
consumer after sale and that is not required by the manufacturer to
enable the device to play video.\79\ Given our interpretation of the
statute to cover integrated software, as well as our decision under
Section 202 (as discussed above) that VPDs must ensure that any video
player they provide to the consumer is capable of rendering or passing
through closed captions, we believe that the rules we adopt will cover
the majority of situations in which consumers view video, and therefore
do not believe that it is necessary to hold manufacturers responsible
for such ``third-party software'' or to regulate software companies
directly.\80\ In interpreting the scope of the statute in this manner,
we have balanced the needs of consumers with the need to minimize
burdens on the industry to ensure that our rules do not impede
innovation in the device and software markets.
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\78\ In the ACS Order, the Commission adopted rules holding
``entities that make or produce end user equipment, including
tablets, laptops, and smartphones, responsible for the accessibility
of the hardware and manufacturer-provided software used for email,
SMS text messaging, and other ACS. We also hold these entities
responsible for software upgrades made available by such
manufacturers for download by users.'' See ACS Order, 26 FCC Rcd at
14588-89, para. 13.
\79\ This is also consistent with the ACS Order, which stated
``[a]dditionally, we conclude that, except for third-party
accessibility solutions, there is no liability for a manufacturer of
end user equipment for the accessibility of software that is
independently selected and installed by the user, or that the user
chooses to use in the cloud.'' See ACS Order, 26 FCC Rcd at 14588,
para. 13. We expect, however, that to the extent that third-party
software provides closed captioning support, the manufacturer will
ensure that the device does not block the transmission of
captioning.
\80\ To the extent, in the future, there is evidence to suggest
that our rule no longer ensures that the goals of the statute are
met--for example, if video programming is increasingly provided
using third-party software unaffiliated with both VPDs and device
manufacturers--we may revisit this issue. See ACS Order, 26 FCC Rcd
at 14586, para. 72 (``[T]he Commission will have an occasion to
examine whether application of the CVAA's requirements directly to
developers of consumer-installed software is warranted, and make any
necessary adjustments to our rules to achieve accessibility in
accordance with the intent of the CVAA.'').
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95. Designed to Receive or Play Back Video Programming. Our
decision to cover ``integrated video players'' is consistent with the
statutory language of Section 203 of the CVAA which covers those
apparatus ``designed to receive or play back video programming
transmitted simultaneously with sound.'' Under our interpretation, if a
device is sold with (or updated by the manufacturer to add) an
integrated video player capable of displaying video programming, that
device is ``designed to receive or play back video programming'' and
subject to our rules adopted pursuant to Section 203. Some commenters
argue that we should evaluate whether a device is covered by focusing
on the original design or intent of the manufacturer of the apparatus
and not the consumer's ultimate use of that apparatus. We disagree. We
believe that to determine whether a device is designed to receive or
play back video programming, and therefore covered by the statute, we
should look to the device's functionality, i.e. whether it is capable
of receiving or playing back video programming. We are persuaded that
adopting this bright-line standard based on the device's capability
will provide more certainty for manufacturers.\81\ In any event, to the
extent a device is built with a video player, it would be reasonable to
conclude that viewing video programming is one of the intended uses of
the device. From a consumer perspective, it would also be reasonable to
expect that a device with a video player would be capable of displaying
captions.
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\81\ As noted above, our rules cover manufacturer-provided
updates and upgrades to devices; thus, a device that originally
included no video player but that the manufacturer requires the
consumer to update or upgrade to enable video reception or play-back
will be covered by our rules (our rules, of course, equally cover
updates or upgrades to existing video players). Looking solely at
the manufacturer's original intent, therefore, would be too narrow
an approach. However, we would not hold manufacturers liable for
failure to include closed captioning capability in devices
manipulated or modified by consumers in the aftermarket to provide
services not intended by the manufacturer.
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96. Picture Screen of Any Size. The statute applies to apparatus
``if such apparatus * * * uses a picture screen of any size.'' We
interpret the term ``use'' to mean that the apparatus works in
conjunction with a picture screen. We reject the argument that Section
203 applies only to devices that include screens, as neither the
statute nor the legislative history compels such a narrow construction.
The original Television Decoder Circuitry Act's captioning requirement
covered an apparatus only if ``its television picture screen is 13
inches or greater in size.'' The Commission previously interpreted the
narrower phrase used in the Television Decoder Circuitry Act (``its
television screen'') to permit coverage of devices that are not
connected to a picture screen. In the 2000 DTV Closed Captioning Order,
the Commission explained that separating the tuning and receive
function from the display function of a device is common, allows
consumers to customize their systems, and should not eliminate the
obligation to provide closed captioning.\82\ Commenters have failed to
persuade us that this reasoning should not apply here as well.\83\
Moreover, we find that reading Section 203(a) to apply only to devices
with built-in screens would undermine the goals of the statute, as it
would exclude one of the most common

[[Page 19502]]

means by which consumers view programming. Thus, we find that it is
reasonable to conclude that Congress's intent in Section 203(a) of the
CVAA was to eliminate the screen-size limitation, not to narrow the
classes of apparatus covered. Therefore, devices designed to work in
conjunction with a screen, though not including a screen themselves,
such as set-top boxes, personal computers, and other receiving devices
separated from a screen must be equipped with closed caption decoder
circuitry or capability designed to display closed-captioned video
programming, unless that device is otherwise exempted pursuant to the
limitations and exceptions described below.
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\82\ Closed Captioning Requirements for Digital Television
Receivers, FCC 00-259, 65 FR 58467, Sept. 29, 2000 (``2000 DTV
Closed Captioning Order'') (implementing the previous version of 47
U.S.C. 303(u)).
\83\ We note that a separate provision of the CVAA provides that
apparatus ``that use a picture screen that is less than 13 inches in
size'' be subject to closed captioning requirements only if such
requirements are ``achievable,'' 47 U.S.C. 303(u)(2)(a), but we
interpret the reference to ``a picture screen that is less than 13
inches in size'' in that provision to express Congress's intent to
recognize the potential difficulties of achieving compliance with
respect to devices that use small screens, and do not find it to be
inconsistent with the reasoning set forth above.
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97. Technically Feasible. Under the CVAA, the requirements of
Section 203 only apply to the extent they are ``technically feasible.''
Because neither the statute nor the legislative history provides
guidance as to the meaning of ``technically feasible,'' the Commission
is obligated to interpret the term to best effectuate the purpose of
the statute. To assist us in our analysis, we look to how the
Commission in the past has interpreted this and other, similar terms in
the context of accessibility for people with disabilities. For example,
in the context of Section 255 of the Act, the Commission defined
``readily achievable'' to mean, in part, ``technically feasible,'' and
then defined that term by rulemaking to encompass a product's
technological and physical limitations.\84\ The Commission further
found that a requirement should not be considered technically
infeasible simply because it would be costly to implement, or that it
involved physical modifications or alterations to the design of a
product.
---------------------------------------------------------------------------

\84\ See Implementation of Section 255 and 251(a)(2) of the
Communications Act of 1934, as enacted by the Telecommunications Act
of 1996, Report and Order and Further Notice of Inquiry, 16 FCC Rcd
6417, at 6444-6445, para. 63 (1999) (``Section 255 Report and
Order'') (``[W]hile technical infeasibility is a consideration, we
agree with commenters that it does not exist merely because a
particular feature has not yet been implemented by any other
manufacturer or service provider. We also caution that technical
infeasibility should not be confused with cost factors. In other
words, a particular feature cannot be characterized as technically
infeasible simply because it would be costly to implement * * * . We
also agree with several commenters that technical infeasibility
encompasses not only a product's technological limitations, but also
its physical limitations. We note, however, that manufacturers and
service providers should not make conclusions about technical
infeasibility within the ``four corners'' of a product's current
design. Section 255 requires a manufacturer or service provider to
consider physical modifications or alterations to the existing
design of a product. Finally, we agree with commenters that
manufacturers and service providers cannot make bald assertions of
technical infeasibility. Any engineering or legal conclusions that
implementation of a feature is technically infeasible should be
substantiated by empirical evidence or documentation.'').
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98. We find that for the ``technically feasible'' qualifier to be
triggered, it must be more than merely difficult to implement
captioning capability on the apparatus; \85\ rather, manufacturers must
show that changes to the design of the apparatus to incorporate closed
captioning capability are not physically or technically possible.\86\
We believe that, as a general matter, if it is technically feasible for
a manufacturer to include a video player in an apparatus, it is
technically feasible for that manufacturer to include closed captioning
functionality as well. That is, if an apparatus includes the complex
functionality of a video player, which requires a relatively
significant amount of processing power, it is technically feasible to
include a significantly less computationally demanding functionality
such as closed captioning, which requires significantly less processing
power. We recognize that at least some models of apparatus of all
classes that provide video in the market today--for example,
televisions, set-top boxes, computers, smartphones, and tablets--also
enable the rendering or pass through of closed captioning. On the
strength of this marketplace evidence, we reject CTIA's argument that
there is insufficient evidence that closed captioning capabilities are
``technically feasible for all mobile devices capable of video playback
across a diverse IP-delivered video programming ecosystem.'' CTIA did
not substantiate its claims with any specific evidence to support its
claim of technical infeasibility. Thus, we find no justification in the
record to exempt all mobile devices capable of video playback from the
closed captioning requirements. If new apparatus or classes of
apparatus for viewing video programming emerge on which it would not be
technically feasible to include closed captioning, parties may raise
that argument as a defense to a complaint or, alternatively, file a
request for a ruling under Sec. 1.41 of the Commission's rules before
manufacturing or importing the product.
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\85\ We therefore reject CEA's proposal that insufficient
processor or memory, or lack of appropriate standards such as for 3D
video, may make implementing captioning or a particular feature of
captioning on a particular apparatus technically infeasible. Under
the interpretation of technically feasible established by the
Commission in the Section 255 Report and Order, expanding the
processor or memory or developing standards for a new product such
as 3D video would be technically feasible absent additional evidence
demonstrating the technical barriers to doing so.
\86\ Our approach to technical feasibility is also consistent
with uses of that term in the direct broadcast satellite and common
carrier context. See Implementation of the Satellite Home Viewer
Improvement Act of 1999: Broadcast Signal Carriage Issues/
Retransmission Consent Issues, FCC 00-417, 66 FR 7410, Jan. 23,
2001; 47 CFR 54.5; 47 CFR 51.5. We disagree with CTIA's statement
that these definitions can be synthesized here to mean
``demonstrably capable of accomplishment without technical or
operational concerns'' because the definitions cited herein for
technical feasibility all call for overcoming technical and
operational concerns when it is possible to do so.
---------------------------------------------------------------------------

99. Removable media players. We decline to exclude removable media
play back apparatus,\87\ such as DVD and Blu-ray players, from the
scope of the rule. Section 203 covers ``apparatus designed to receive
or play back video programming transmitted simultaneously with sound.''
Section 203 of the CVAA amends Section 303(u) of the Act, which
previously limited the decoder capability mandate only to those
``apparatus designed to receive television pictures broadcast
simultaneously with sound.'' The phrase ``or play back'' in Section 203
makes clear that Congress no longer intended to only cover devices that
receive programming. Section 203 expands the prior statutory mandate to
include not only apparatus that ``receive'' programming, but also
apparatus designed to ``play back'' programming, whether or not such
apparatus is also capable of receiving the programming. Some commenters
argue that the word ``transmitted'' indicates content that is streamed,
downloaded, or broadcast via ``wire or radio,'' thus excluding such
removable media devices. We are not persuaded by this argument. The
reading these commenters advocate ignores Congress's use of the word
``or,'' and instead would require devices to both ``receive and play
back'' video programming in order to be covered under the statute. We
think the better interpretation of the word ``transmitted'' in context
is that Congress's substitution of the words ``television pictures
broadcast * * *'' with the corresponding words ``video programming
transmitted * * *,'' while retaining the phrase ``simultaneously with
sound,'' was intended to expand the scope of the statute beyond devices
that receive broadcast television without narrowing the statute's prior
coverage. For these reasons, we believe the better reading of the
phrase ``transmitted simultaneously with sound'' in this context is to
describe how the video programming is conveyed from the device (e.g.,
DVD player) to the end user (simultaneously with sound), rather

[[Page 19503]]

than describe how the video programming arrived at the device (e.g.,
DVD player). Accordingly, we agree with the Consumer Groups and Ronald
H. Vickery that the better interpretation of Section 203 is that it
covers removable media play back apparatus, such as DVD players, which
are commonly used by consumers to view video programming. In this
regard, we note that even though not required by law, many video
programs on DVDs contain closed captions, and our interpretation will
ensure that those captions can be viewed.
---------------------------------------------------------------------------

\87\ ``Removable'' media describes a form of media storage, such
as DVDs and flash drives, which can be removed from a computer or
other equipment while the system is running.
---------------------------------------------------------------------------

100. Although we recognize that DVDs and other removable media
often contain subtitles, we do not believe that subtitles generally
meet the functional requirements necessary to accomplish the goals of
the statute. Specifically, we recognize that some removable media
include either subtitles or ``subtitles for the deaf and hard of
hearing'' (``SDH'') in place of closed captions. Subtitles are similar
to closed captions in that they display the dialogue of a program as
printed words on the screen, but often do not also identify speakers
and background noises, such as sound effects, or the existence of music
and laughter, information that is often critically important to
understanding a program's content. SDH are a version of subtitles that
sometimes includes visual text to convey more than just the program's
dialogue, for example, speaker identification. However, when these
subtitles are viewed on removable media devices, such devices do not
typically offer consumers the user controls available when closed
captions are provided in accordance with the EIA-708 technical standard
used for digital television programming.\88\ We agree that these user
control features for manipulating closed captions must be supported in
all devices, including those that use removable media, and accordingly
require built-in closed caption capability designed to display closed-
captioned video programming in these devices in accordance with our
rules.
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\88\ Section 15.122 of the Commission's rules incorporates by
reference EIA-708-B, ``Digital Television Closed Captioning,''
Electronics Industries Alliance (Dec. 1999) (``EIA-708-B''), which
provides comprehensive instructions for the encoding, delivery, and
display of closed captioning information for digital television
systems. The standard provides for a larger set of captioning user
options than the analog captioning standard, EIA-608, permitting
users to control the size, font, color and other caption features.
47 CFR 15.122. See also, 2000 DTV Closed Captioning Order. As
discussed below and indicated in the Final Rules, we are relocating
Sec. 15.122 to Sec. 79.102.
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101. Professional and commercial equipment. We agree with CEA that
we should exclude commercial video equipment, including professional
movie theater projectors, and similar types of professional equipment,
from our Section 203 rules. The legislative history of the CVAA
explains that Section 203(a) was intended to ``ensure[] that devices
consumers use to view video programming are able to display closed
captions * * * .'' We believe that based on the legislative history,
Congress intended the Commission's regulations to cover apparatus that
are used by consumers. Accordingly, we find that because professional
or commercial equipment is not typically used by the public, it is
beyond the scope of this directive. Significantly, no commenters argued
that the Commission's rules should cover this equipment. We note,
however, that other federal laws may impose accessibility obligations
to ensure that professional or commercial equipment is accessible to
employees with disabilities, or enables the delivery of accessible
services.

B. Achievability, Purpose-Based Waivers, and Display-Only Monitor
Exemption

102. As noted above, except for an exemption for display-only
monitors, we decline to grant blanket waivers or exempt any device or
class of devices from our rules as requested by several industry
coalitions. Other than making broad assertions, no commenters that urge
us to make such exceptions provide any technical basis or other
evidence to support their contentions that certain classes of devices
warranted an exemption.\89\ We believe Congress intended the rules
implementing Section 203 to cover a broad range of consumer devices,
and we agree with the Consumer Groups that it would be inappropriate to
waive the rules for broad classes of devices, many of which have
already demonstrated the ability both to receive video programming and
display closed captioning. In fact, the very purpose of Section 203 was
to expand coverage of the original Television Decoder Circuitry Act's
captioning requirement covering television sets with screens greater
than 13 inches, to include consumer devices of various sizes and types
(both wired and wireless), whose usage is rapidly expanding. Moreover,
we lack a record on which to grant a blanket waiver or exemption for
any particular model of device or class of equipment.
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\89\ Granting such blanket waivers would defeat the purpose of
the CVAA to expand the ability of people who are deaf or hard of
hearing to access video programming on modern devices used in the
twenty-first century.
---------------------------------------------------------------------------

103. Congress, however, included two limitations in Section 203.
First, for devices using screens less than 13 inches in size, only
those features that are ``achievable'' must be implemented. Second, the
statute provides that manufacturers may seek waivers based on the
primary purpose or essential utility of the device. We will follow the
model established in the ACS Order and take a flexible, case-by-case
approach in addressing any waiver requests. As discussed below, we also
implement the statute's categorical exemption for display-only
monitors.
104. Achievability. Section 203 amends Section 303(u) of the
Communications Act to require that, ``notwithstanding [the provisions
of Section 303(u)(1)], apparatus described [in Section 303(u)(1)] that
use a picture screen that is less than 13 inches in size [must] meet
the requirements of [these regulations] only if the requirements of
such subparagraphs are achievable (as defined in section 716).''
Section 716 of the CVAA defines achievability as, ``with reasonable
effort or expense, as determined by the Commission'' based on four
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 [those services or equipment are] offered at differing
price points.
105. In the ACS Order, the Commission applied the Section 716
achievability standard to advanced communications services and
equipment and discussed each of the four factors. There, the Commission
concluded that it is appropriate to weigh each of the four factors
equally, and that achievability should be evaluated on a case-by-case
basis. We agree with CEA that we should adopt the same approach for
closed captioning as it will provide the greatest possible flexibility
for manufacturers. When faced with a complaint for violation of our
rules under Section 203, a manufacturer may raise as a defense that a
particular apparatus does not comply with the rules because compliance
was

[[Page 19504]]

not achievable under the statutory factors. Alternatively, a
manufacturer may seek a determination from the Commission before
manufacturing or importing the apparatus as to its claims that
compliance with all of our rules is not achievable.\90\ In evaluating
evidence offered to prove that compliance was not achievable, the
Commission will be informed by the analysis in the ACS Order. To the
extent that implementation of particular aspects of closed captioning
functionality is not achievable on a particular apparatus for a
particular manufacturer, it does not necessarily follow that no part of
our closed captioning rules is achievable for that manufacturer on that
apparatus. Rather, seeking to bring as much of the captioning
experience to the greatest number of consumers possible, we will treat
the functional captioning requirements we discuss below as severable,
and require manufacturers to seek exemptions based on the achievability
of individual features.\91\ We remind parties that the achievability
limitation is applicable only with regard to apparatus using screens
less than 13 inches in size. For apparatus that use a screen size that
is 13 inches or larger, a manufacturer may seek relief from the
Commission based on a showing of technical infeasibility, which applies
to apparatus of any size.\92\
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\90\ Any such requests should follow the procedures for an
informal request for Commission action pursuant to Sec. 1.41 of our
rules and the requirements of Sec. 79.103(b)(3). 47 CFR 1.41, Final
Rules Sec. 79.103(b)(3).
\91\ For example, we can envision that in certain circumstances
it may not be achievable to implement variable opacity for captions
or the caption background on specific devices, but it would
nevertheless be achievable to implement the ability to change the
caption color and the font size over an opaque or transparent
background, depending on the specific capabilities and
characteristics of a device's screen and processing power.
\92\ See 47 CFR 1.41 (Informal requests for Commission action).
---------------------------------------------------------------------------

106. Purpose-Based Waivers. Section 203 grants the Commission the
discretion to waive the requirements of Section 203 for any apparatus
or class of apparatus that are ``primarily designed for activities
other than receiving or playing back video programming transmitted
simultaneously with sound'' or ``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.'' The statute does not define ``primarily designed,''
nor does it define ``essential utility'' except to state that it may be
derived from more than one purpose. Both the House and Senate Committee
Reports state that waiver under these provisions is available ``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.'' We expect that such
waiver requests will be highly fact specific and unique to each device
presented. Accordingly, we will address any waivers under these
sections on a case-by-case basis. We expect that, over time, the
Commission will develop a body of precedent that will prove instructive
to manufacturers and consumers alike.
107. Based on our analysis above, we reject the broad, unspecific
requests made by several commenters. CTIA, for example, requests that
all mobile devices be exempted from these regulations until such time
as the market for video to mobile devices ``becomes stable,'' and in
order to promote the growth of the mobile video market. We decline to
do so here, as the mobile marketplace is incredibly diverse, and while
the above assertion may be true for a particular device, it is
unsupported with regard to the entire mobile industry. TechAmerica
requests that the Commission ``exercise its waiver authority freely,''
and grant blanket waivers to smartphones ``as their essential utility
is to function as a communications device,'' and to consider similar
treatment for tablets. We disagree, as TechAmerica's request conflates
the primary purpose waiver standard for single-purpose devices with
incidental video capability and the essential utility standard, under
which both communications and viewing video programming may be purposes
which comprise a device's essential utility. Further, TechAmerica makes
a sweeping request, asking the Commission to view all smartphones
equivalently, which as we discuss above, does not comport with the
fact-based, case-by-case approach we adopt. In addition, TechAmerica's
request is in opposition to notable marketplace evidence that many
mobile devices already support captioning. TIA comments that the
Commission should grant broad, categorical waivers, in an effort to
give manufacturers certainty, to ``gaming consoles, cellular
telephones, and tablets.'' Based on our reasoning above, we find that
this request too is overbroad and lacks the facts and circumstances
necessary to grant a waiver. Nevertheless, we reiterate that these
waivers are available prospectively, for manufacturers seeking
certainty prior to the sale of a device.\93\
---------------------------------------------------------------------------

\93\ See 47 CFR 1.41 (Informal requests for Commission action).
---------------------------------------------------------------------------

108. Display-Only Monitor Exemption. Section 203(a)(2)(B) states
that ``any apparatus or class of apparatus that are display-only video
monitors with no playback capability are exempt from the requirements''
to implement closed captioning. We conclude this requirement is self-
explanatory and that in most instances the operation of this provision
will be clear. Accordingly, we incorporate the language of the
statutory provision directly into our rules. Consumer Groups proposed
that we define display-only monitors as monitors that are dependent on
another device subject to our closed captioning rules. This proposed
definition is too narrow, however, because it fails to account for
display-only monitors that work in conjunction with devices not subject
to our closed captioning rules, such as commercial video equipment. CEA
suggested that devices that can accept ``only a baseband or
uncompressed video stream,'' \94\ such as many computer monitors, are
appropriately classified as display-only monitors. This definition is
also too narrow, because a monitor could conceivably accept a
compressed video stream and still be considered a display-only monitor.
We therefore decline to adopt these qualifications. To the extent a
manufacturer would like a Commission determination as to whether its
device qualifies for this exemption it may make such a request.\95\
---------------------------------------------------------------------------

\94\ A ``baseband signal'' is defined as ``transmission of a
digital or analog signal at its original frequencies, i.e., a signal
in its original form, not changed by modulation.'' See H. Newton,
Newton's Telecom Dictionary 101 (20th ed. 2004). An ``uncompressed
signal'' is a signal that has not been compressed. ``Compression''
is defined as ``the art and science of squeezing out unneeded
information in a picture, or a stream of pictures (a movie) or sound
before sending or storing it.'' See H. Newton, Newton's Telecom
Dictionary 199 (20th ed. 2004).
\95\ A manufacturer may seek a Commission declaration that a
monitor is exempt under this provision pursuant to Sec. 1.41 of the
Commission's rules. See 47 CFR 1.41.
---------------------------------------------------------------------------

C. Display of Captions

109. Section 203 of the CVAA requires that the Commission's rules
``provide performance and display standards for such built-in decoder
circuitry or capability designed to display closed captioned video
programming * * *.'' We adopt functional requirements that will ensure
that consumers' online captioning experience is equivalent to their
television captioning experience. When

[[Page 19505]]

the Commission adopted the digital closed captioning standards, it
noted the ``substantial benefits for consumers'' that are provided when
video programming apparatus support user options that enable closed
caption displays to be customized to suit the needs of individual
viewers. For example, the Commission explained that ``the ability to
alter colors, fonts, and sizes * * * can benefit a person with both a
hearing disability and a visual disability in a way not possible with
the current analog captions.'' After also noting the benefits that
adjustable caption sizes can afford younger children learning how to
read, the Commission concluded that ``[o]nly by requiring decoders to
respond to these various features can we ensure that closed captioning
will be accessible for the greatest number of persons who are deaf and
hard of hearing, and thereby achieve Congress's vision that to the
fullest extent made possible by technology, people who are deaf and
hard of hearing have equal access to the television medium.'' More than
a decade ago, consumers urged the Commission to ``ensure that the
promised benefits of [DTV] actually accrue to persons who are deaf,
late deafened, hard of hearing or deaf-blind'' and to create a ``level
viewing field'' through the adoption of the EIA-708 captioning
standard.\96\ Most recently, the Consumer Groups reiterated that the
Commission should consider ways to ensure that caption users are able
to benefit from advanced technologies in designing our rules for
apparatus to have captioning capability under Section 203.
---------------------------------------------------------------------------

\96\ Reply Comments of Telecommunications for the Deaf, Inc.,
Closed Captioning Requirements for Digital Television Receivers, ET
Docket No. 99-254 at 2-3 (filed Nov. 15, 1999).
---------------------------------------------------------------------------

110. To assist the Commission in interpreting this provision,
Congress directed the VPAAC to identify ``performance requirement[s]
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 * * * delivered using Internet protocol.'' The VPAAC Report
identifies the rules, technologies, and procedures necessary to provide
consumers with a captioning experience equivalent to the experience
provided when the content was aired on television using the CEA-608/708
standard.\97\ Specifically, the VPAAC identified four components that
make up the television ``caption experience,'' seven technical
requirements necessary to implement that experience, and a list of
optional best practices that may be implemented to deliver the highest
possible captioning experience.
---------------------------------------------------------------------------

\97\ See VPAAC Report at 13. CEA-608 is the technical standard
used for analog closed captioning, and CEA-708 is technical standard
for digital closed captioning. See Final Rules 47 CFR 79.101
(previously 47 CFR 15.119, CEA-608), 79.102 (previously Sec.
15.122, CEA-708) for the current captioning requirements,
respectively.
---------------------------------------------------------------------------

111. The VPAAC identified the four components of the captioning
``experience'' as:
The presentation format of the captioning; e.g., within or
on separate caption ``windows,'' text that appears all at once (pop-
on), text that scrolls up as new text appears (roll-up), or the display
of each new letter or word as it arrives (paint-on);
Semantically significant formatting, such as italics,
colors, and underlining;
The timing of the presentation of caption text with
respect to the video; and
The consumer's ability to control the caption display,
including the ability to turn it on and off, and to select font sizes,
styles, and colors, and background color and opacity.
The VPAAC further identified specific technical requirements as
necessary to implement the captioning experience detailed in the VPAAC
Report:
Support for displaying fonts in the full CEA-708 64-color
palette and allowing users to override the default font color with one
of the eight standard caption colors.
Support for users to vary character opacity between at
least three settings, including opaque (100% opacity) and semi-
transparent (at 75% or 25% opacity);
Support for the various font types contained in CEA-708 as
well as the ability for users to assign fonts from the selection
included with their device to each of these default fonts;
Support for displaying the caption background in the full
CEA-708 64-color palette and allowing users to override the default
caption background color with one of the eight standard colors, and
support for users to vary the caption background opacity between at
least four settings, opaque (100% opacity), semi-transparent (at 75% or
25% opacity), and transparent (0% opacity);
Support for character edge attributes including: none,
raised, depressed, uniform, or drop shadowed;
Support for displaying the caption window in the full CEA-
708 64-color palette and allowing users to override the default caption
background window with one of the eight standard colors, and support
for users to vary the caption window opacity between at least four
settings, opaque (100% opacity), semi-transparent (at 75% or 25%
opacity), and transparent (0% opacity);
Support for selecting among multiple language tracks,
where available, and a requirement that simplified or reduced caption
text be identified as such or as ``easy reader'' captions.

Additionally, the VPAAC Report states that video player tools must
permit the user to preview setting changes, remember settings between
viewing sessions, and provide the ability to turn captions on and off
as easily as muting the audio or adjusting the volume.
112. The VPAAC Report represents the consensus view of a wide,
diverse cross-section of the industry and consumer interests.
Therefore, their consensus approach to these issues provides a
compelling guide for our actions here. Specifically, based on the
consensus view that online captioning must, at minimum, replicate the
television experience, and absent any guidance in the statute or
legislative history, and absent any comment on the record indicating
that some other goal should be used, we adopt that goal as the
Commission's goal here. However, we find that we need not specifically
incorporate into our rules all four components of the captioning
experience detailed in the VPAAC Report. Instead, we find that all but
one of the components is subsumed in the specific technical
requirements also set forth in the VPAAC Report. First, we find that
the second and fourth components, support for semantically significant
formatting and control of caption appearance, are encompassed by and
expanded on by the seven technical requirements. Therefore, to avoid
redundancy, we do not include them in our rules. We find that it is
inappropriate to include the third component of the experience,
addressing the timing of captions with video, here. We conclude that
ensuring that timing data is properly encoded and maintained through
the captioning interchange and delivery system is an obligation of
Section 202 VPDs, and not of device manufacturers.\98\ Therefore,

[[Page 19506]]

we incorporate into our rules the first component of the caption
experience, the presentation of captions on the screen, as a discrete
rule in addition to the seven technical requirements.\99\
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\98\ The VPAAC Report expands on the timing requirements,
explaining, ``all processing through the distribution chain,
including transcoding, must provide a timing experience that is
equal to or an improvement to the timing of captions provided in the
captioning shown on television.'' VPAAC Report at 14. We find that
this direction from the VPAAC Report places no responsibility on
device manufacturers, and so we do not include any such requirement
in our rules for devices.
\99\ We find it necessary to make a small change to the text
regarding presentation of captions. As the VPAAC Report describes
the experience as requiring the use of one of the presentation
styles, where no more than one style is in use at a time, it
delimits the list with an ``or.'' VPAAC Report at 13. However,
manufacturers must support all three styles in order to enable such
choice, and therefore our rule delimits the list with an ``and.''
Final Rules 47 CFR 79.103(c)(1).
---------------------------------------------------------------------------

113. We believe that by incorporating the precise language of the
VPAAC Report, we will ensure that manufacturers will clearly understand
their obligations regarding the features they are required to implement
and support. The NPRM proposed to incorporate into our rules these
functionality requirements in a slightly simplified form and without
specifying the exact nature of the support for each requirement. Some
commenters advocate that we adopt rules that merely state that
captioning should be ``functionally equivalent'' to that on television.
AT&T contends that the NPRM's proposed rules were too specific and
should be more flexible. CEA, however, argues that a mandate of ``at
least the same quality'' as television would be ambiguous, preferring
instead that the Commission adopt minimum technical requirements that
will help ensure functional equivalency, preserve flexibility, and
provide certainty to manufacturers. In the context of Section 203 of
the CVAA, we are persuaded by CEA's argument and find that it is
necessary to adopt a set of specific minimum functional requirements
rather than the simplified language of the NPRM. By doing so, we
believe that we will make it easier for manufacturers to determine how
to comply with our rules as well as facilitate the ability of the
Commission to evaluate compliance in the event of a complaint. We agree
with Consumer Groups that the record contains no evidence that
specifying what functions devices must implement will negatively impact
the ability of captions to be delivered to those devices. CTIA
expresses concern that some features will not be supportable on devices
with limited screen sizes, low resolutions, or limited processing.
However, as discussed above, parties can seek relief for any features
that they believe can not be implemented.\100\
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\100\ Section 203 requires manufacturers only to implement
captioning to the extent that it is technically feasible. Moreover,
for small-screen devices, manufacturers need only include those
features that are achievable. Finally, pursuant to Section 202, VPDs
may seek exemptions if complying with any of these requirements
would be economically burdensome.
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D. Recording Devices

114. In addition to devices that consumers use to directly view
video programming, those that record video programming must also have
closed-captioning capability. Specifically, Section 203(b) of the CVAA
directs the Commission to ``require that, if achievable * * *,
apparatus designed to record video programming transmitted
simultaneously with sound, * * * [must] enable the rendering or the
pass through of closed captions * * * .'' Commenters largely did not
address recording devices, except to caution the Commission against
regulating the subcomponents of recording devices, rather than the
devices themselves. Therefore, we adopt the proposal in the NPRM to
incorporate the statutory language of Section 203(b) directly into our
rules. Consistent with our discussion above, we expect identifying
apparatus designed to record to be straightforward. We note that when
devices such as DVD, Blu-ray, and other removable media recording
devices are capable of recording video programming, they also qualify
as recording devices under Section 203(b) and therefore must enable
viewers to activate and de-activate the closed captions as video
programming is played back.

E. Interconnection Mechanisms

115. Section 203(b) of the CVAA directs the Commission to require
that ``interconnection mechanisms and standards for digital video
source devices are available to carry from the source device to the
consumer equipment the information necessary to permit or render the
display of closed captions and to make encoded video description and
emergency information audible.'' \101\ The NPRM sought comment on how
to implement this provision. Based on the record at this time, we
conclude that current interconnection mechanisms satisfy the
requirements of the CVAA, and clarify that the statute requires
manufacturers to implement closed captioning on every video output of a
covered device. Thus, we adopt a rule requiring that all video outputs
of covered apparatus shall be capable of conveying from the source
device to the consumer equipment the information necessary to permit or
render the display of closed captions. As discussed below, we find that
it is sufficient, for purposes of this provision, if the video output
of a digital source device renders the closed captioning in the source
device. Accordingly, we find that the manner in which the HDMI
connection carries captions satisfies the statutory requirement for
interconnection mechanisms. At the same time, however, we note that
other interconnection mechanisms, such as MoCA and DLNA, currently
support the pass-through of closed captions to consumer display devices
and we encourage this practice. Although we do not impose any
additional regulations on interconnection mechanisms at this time, we
note that we are interpreting an ambiguous statutory provision and,
although we believe our interpretation is reasonable based on the
record before us, we may revisit the issue if we find that our
decision, in practice, does not provide the benefits to consumers that
were intended by Congress.
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\101\ The portions of 303(z)(2) which deal with video
description and emergency information will be implemented separately
by the Commission, 18 months after the submission of a separate
VPAAC Report. See Public Law 111-260, sec. 203(d)(2).
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116. As the statute states, ``interconnection mechanisms'' carry
information from source devices to consumer equipment. Interconnection
mechanisms consist of an output, a transmission path, and an input. We
generally refer to these mechanisms by their output standard or the
cable or cord they utilize, such as ``coaxial cable,'' ``Ethernet,'' or
``HDMI.'' In discussing how to implement this statutory mandate,
commenters predominantly focus on one particular digital output, the
HDMI connector. HDMI is the preeminent audio-video interconnection
standard used by manufacturers to enable uncompressed video signals to
be carried from a source device (such as an MVPD set-top box) to
consumer equipment (such as a television).\102\ Industry commenters
explain that with respect to the HDMI connector, ``the captions and
video are decoded in the source device and carried as opened captions
to the display, which acts only as a monitor.'' When captions are
transmitted in an ``open'' manner, such as is the case with HDMI, they
are ``rendered'' by the source device, embedded (decoded and mixed)
into the video stream, then carried by the HDMI connector to the
receiving device in a manner that does not allow the consumer to access
or utilize the captioning decoding and rendering functionality of the
receiving device. When captions are ``closed,'' they are transmitted as
data alongside the video stream, and permit consumers to access and
utilize the captioning

[[Page 19507]]

functionality of the receiving device. Set-top boxes with standard
definition analog outputs are generally capable of passing closed
captions to consumer equipment for decoding and display by that device.
However, high-definition analog outputs and HDMI were not developed
with this capability, and as consumers increasingly transition to high-
definition video sources and digital interconnection, standard
definition analog outputs are declining in use. As a result, if an HDMI
or high definition analog connection is being used, consumers must use
their set-top box's closed captioning functionality rather than the
functionality contained in their television or continue to watch video
programming in standard definition.
---------------------------------------------------------------------------

\102\ HDMI stands for ``High Definition Multimedia Interface.''
Over 2 billion HDMI equipped devices have been deployed worldwide.
---------------------------------------------------------------------------

117. The question is thus whether the manner in which the HDMI
connector carries captions satisfies the statutory requirement. For the
reasons stated below, we conclude that it does. We find the CVAA's
requirement that interconnection mechanisms be ``available to carry
from the source device to the consumer equipment the information
necessary to permit or render the display of closed captions'' to be
ambiguous. The statute does not expressly address what is meant by
information necessary to ``permit'' the display of closed captions or
information necessary to ``render'' the display of closed captions.''
In context, we interpret the language requiring carriage of information
to ``render'' the display of closed captions to require that the
interconnection mechanism carry the requisite data to allow caption
functionality in the receiving device. In other words, the source
device transmits captions in a closed manner to the receiving equipment
(e.g., a television set), which is capable of performing the rendering
of the captions for display. The use of the phrase ``or permit''
indicates an alternative means by which an interconnection device may
satisfy the statute. Read in context, we believe Congress intended to
give the term ``permit'' a different meaning than the term ``render.''
We thus interpret the alternative requirement to ``permit'' the display
of closed captions to mean that the interconnection mechanism may carry
the information necessary for the rendered captions to be displayed on
the receiving device, without regard to the receiving device's caption
functionality. We believe that our interpretation is reasonable because
we give effect to Congress's use of the disjunctive ``or,'' and because
our interpretation achieves the statutory purpose of ensuring consumer
access to closed captions. Based on this interpretation, we find that
rendering captions in the source device, then transmitting the captions
in an open manner to the receiving device, such as in the case of HDMI,
satisfies the statute because caption text is viewable on the video
programming. Further, we conclude that the availability of closed
captioning should not be limited to particular outputs, as consumers
should not be limited in their viewing of content due to the lack of
closed captioning support on a particular output.
118. Although many consumers may prefer to use the closed
captioning features of their display devices, we believe there are
other considerations, raised in the record, that support our reading of
the statute. The record shows that it may be impractical to require all
interconnection mechanisms, including HDMI, to pass-through the closed
captions to receiving equipment given commenters' concerns about the
time and expense associated with such a requirement. Our interpretation
provides flexibility for manufacturers and avoids unnecessary burdens,
while at the same time we believe it fulfills the statutory purpose of
ensuring access to closed captions. Moreover, although we recognize
that some consumers have had frustrations with using the caption
functionality in the source device, as HDMI Licensing notes, this is
not an issue related to the HDMI interface, but rather caused by poor
implementation in some set-top boxes. In this regard, we note that all
apparatus, including set-top boxes, are subject to the performance
rules we adopt today. We also note that the CVAA contains provisions to
address the difficulty consumers face in enabling closed captioning on
source devices.\103\ Together, technologies like HDMI Consumer
Electronics Control (or CEC) and Commission implementation of the
statutory provision requiring that ``built in access to * * * closed
captioning [be available through] a mechanism that is reasonably
comparable to a button, key, or icon'' may result in the resolution of
at least one source of consumer complaints. The record also shows that
there are at least two interconnection mechanisms currently available
in the market that already support caption functionality in receiving
devices.
---------------------------------------------------------------------------

\103\ See Public Law 111-260, secs. 204 (User interfaces on
digital apparatus), 205 (Access to video programming guides and
menus provided on navigation devices).
---------------------------------------------------------------------------

119. In reaching our conclusion, we also note that the problems
some consumers discussed in the record relating to HDMI may be
ameliorated by the fact that all cable operator-provisioned HD set-top
boxes are currently required to include a connection capable of
delivering recordable HD video and closed captioning data in a closed
manner. In addition, although we refrain from requiring pass-through of
closed captioning on HDMI, we recognize the widespread consumer
reliance on HDMI and therefore we encourage HDMI Licensing, the HDMI
specification licensing agent, to include closed captioning provisions
in future versions.\104\
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\104\ We recognize that HDMI was designed for a purpose other
than carrying encoded information. We also note, however, that HDMI
has already been modified to provide a data connection capable of
transmitting encoded data between devices. See Frequently Asked
Questions for HDMI 1.4, http://www.hdmi.org/manufacturer/hdmi_1_4/hdmi_1_4_faq.aspx. In addition, HDMI Licensing acknowledges that
the HDMI standard could be updated to include this functionality
within about three years.
---------------------------------------------------------------------------

F. Changes to Television Rules and Movement of Device Rules to Part 79

120. Section 203 of the CVAA replaces Section 303(u) of the
Act,\105\ which originally gave the Commission authority to require
closed captioning on television receivers with a screen size 13 inches
or greater. Under the revised provision, our television closed
captioning rules are no longer limited to apparatus with screen sizes
13 inches or greater, though those with smaller screen sizes are
required to comply only if compliance is achievable. As proposed in the
NPRM, we will revise our television captioning rules accordingly.
Additionally, as proposed in the NPRM, we will relocate the closed
captioning device rules, Sec. Sec. 15.119 and 15.122, and their
associated incorporations by reference, into Part 79 of the
Commission's rules, which will also list the obligations of owners,
providers, and distributors of video programming adopted pursuant to
Section 202 of the CVAA.\106\
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\105\ 47 U.S.C. 303(u). Section 203(b) of the CVAA also adds a
new Section 303(z) to address recording devices and interconnection
mechanisms. 47 U.S.C. 303(z). Further, Section 203(c) of the CVAA
revises Section 330(b) to address Sections 303(u) and (z), to
provide authority for performance and display standards, and to
address video description. 47 U.S.C. 330(b).
\106\ Part 15 of the Commission's rules requires devices to be
authorized prior to the initiation of marketing, either through the
Verification process or through a Declaration of Conformity or
Certification. See 47 CFR 15.101, et seq. However, those rules are
concerned only with the device's performance as an unintentional
radiator into the radio-frequency spectrum. Since closed-captioning
functionality exists separately from the RF receiving and tuning
functionality of a device, and new IP-based devices may not include
receivers of the type Part 15 regulates, we find it unnecessary to
require a Declaration of Conformity or Certification regarding the
closed-captioning functionality of the devices we cover here, or to
trigger certification or verification for a device solely because it
includes closed-captioning functionality. We therefore find it
inappropriate to continue to house these rules in Part 15. Of
course, to the extent that a Section 203 device is otherwise covered
by Part 15, that device must continue to comply with the
Commission's rules in Part 15.

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[[Page 19508]]

G. Alternate Means of Compliance

121. Section 203(e) of the CVAA provides 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 * * * if
the requirements of those sections are met, as determined by the
Commission.'' Therefore, parties may meet all of the requirements we
discuss in sections IV and V of this Report and Order, as well as our
existing rules regarding television receivers and converter boxes, via
alternate means. Should an entity seek to use an ``alternate means'' to
comply with the applicable requirements, that entity may either (i)
request a Commission determination that the proposed alternate means
satisfies the statutory requirements through a request pursuant to
Sec. 1.41 of our rules; or (ii) claim in defense to a complaint or
enforcement action that the Commission should determine that the
party's actions were permissible alternate means of compliance. Rather
than specify what may constitute a permissible ``alternate means,'' we
conclude that the best means of implementing this provision is to
address any specific requests from parties when they are presented to
us.

H. Deadlines for Compliance

122. We conclude that two years is the appropriate amount of time
to design and implement the functionality required by Section 203 of
the CVAA, as discussed in Section IV of this Report and Order, and to
bring that functionality to market. The CVAA does not specify the time
frame by which the Section 203 requirements must become effective, but
nearly all commenters who addressed the issue support a two-year
implementation period. As the Commission has repeatedly determined,
manufacturers generally require approximately two years to design,
develop, test, manufacture, and make available for sale new products.
Accordingly, we establish a compliance date for covered devices of
January 1, 2014. We agree with Consumer Groups that incorporating
captioning functionality later in the design cycle of a feature-rich
device may prove more difficult than implementing such functionality at
the commencement of design. Although the compliance deadline is two
years away, consistent with the ACS Order, beginning on the effective
date of these regulations, i.e., 30 days after the date this Report and
Order and rules are published in the Federal Register, we expect
manufacturers to take accessibility into consideration as early as
possible during the design process for new and existing equipment and
to begin taking steps to bring closed captioning to consumers as
required by our rules.

I. Complaints

123. Consistent with prior Commission practice and the Commission's
television and IP closed captioning complaint rules, we adopt the
following procedures for the filing of written complaints alleging
violations of the Commission's rules requiring apparatus designed to
receive, play back, or record video programming to be equipped with
built-in closed caption decoder circuitry or capability designed to
display closed-captions. Such complaints should include the following
information: \107\ (a) The name, postal address, and other contact
information of the complainant, such as telephone number or email
address; (b) the name and contact information, such as postal address,
of the apparatus manufacturer or provider; (c) information sufficient
to identify the software or device used to view or to attempt to view
video programming with closed captions; (d) the date or dates on which
the complainant purchased, acquired, or used, or tried to purchase,
acquire, or use the apparatus to view closed captioned video
programming; (e) a statement of facts sufficient to show that the
manufacturer or provider has violated or is violating the Commission's
rules; (f) the specific relief or satisfaction sought by the
complainant; and (g) the complainant's preferred format or method of
response to the complaint.\108\ A written complaint filed with the
Commission must be transmitted to the Consumer and Governmental Affairs
Bureau through the Commission's online informal complaint filing
system, U.S. Mail, overnight delivery, or facsimile.\109\ The
Commission may forward such complaints to the named manufacturer or
provider, as well as to any other entity that Commission staff
determines may be involved, and 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 violations of Commission rules. After the closed caption
decoder rules adopted in this Report and Order become effective, the
Consumer and Governmental Affairs Bureau will release a consumer
advisory with instructions on how to file complaints in various
formats, including via the Commission's Web site.\110\
---------------------------------------------------------------------------

\107\ We recognize that some of the requested information may
not be readily ascertained by consumers, such as the contact
information of the apparatus manufacturer. Accordingly, we provide
that complaints should (but are not required to) include the
specified information. The Commission will best be in a position to
investigate complaints that include the maximum information
requested.
\108\ The complainant's preferred format or method of response
may be by letter, facsimile transmission, telephone (voice/TRS/TTY),
email, or some other method that would best accommodate the
complainant.
\109\ We clarify that, if a complainant calls the Commission for
assistance in preparing a complaint (by calling either 1-888-CALL-
FCC or 1-888-TELL-FCC (TTY)), and Commission staff documents the
complaint in writing for the consumer, that constitutes a written
complaint.
\110\ The Commission further directs the Consumer and
Governmental Affairs Bureau to revise the existing complaint form
for disability access complaints (Form 2000C) in accordance with
this Report and Order, to facilitate the filing of closed caption
decoder complaints. Should the closed caption decoder rules adopted
in this Report and Order become effective before the revised Form
2000C is available to consumers, closed caption decoder complaints
may be filed in the interim by fax, mail, or email.
---------------------------------------------------------------------------

V. Technical Standards for IP-Delivered Video Programming

124. For the reasons set forth below, we adopt the Society of
Motion Picture and Television Engineers (``SMPTE'') Timed Text format
(SMPTE ST 2052-1:2010: ``Timed Text Format (SMPTE-TT)'' 2010) (``SMPTE-
TT'') as a safe harbor interchange and delivery format. Section 202 of
the CVAA requires that the Commission describe the responsibilities of
video programming providers or distributors and video programming
owners. Section 203 of the CVAA requires that the Commission's rules
``provide performance and display standards for such built-in decoder
circuitry or capability designed to display closed captioned video
programming * * *.'' We believe to best implement these statutory
provisions, it is necessary to establish a safe harbor standard. IP-
delivered video programming currently uses multiple closed captioning
formats. In contrast, the Commission requires CEA-608 as the technical
standard for analog television closed captioning, and CEA-708 as the
technical standard for digital television closed captioning. As no such
Commission requirement exists for IP closed captioning, parties must
agree on

[[Page 19509]]

both an interchange format, in which the VPO sends a caption file to
the VPD, and a delivery format, in which the VPD sends captions to an
apparatus on which the end user views video programming if captions are
to be usable by the receiving party.
125. The VPAAC proposed that the Commission require a single
standard interchange format so that video programming does not need to
be re-captioned to comply with different standards. The VPAAC proposed
SMPTE-TT as the standard interchange format. For the delivery format,
if a VPD is not affiliated with the manufacturer of the device on which
the consumer views video programming, the VPAAC also recommended the
use of SMPTE-TT.\111\ The VPAAC recommended using the SMPTE-TT standard
in each case because it ``best meets all the requirements'' established
by the participants on the VPAAC and because it ``is already being
employed in production environments to repurpose television content for
Internet use.'' In the NPRM, contrary to the VPAAC's proposal, the
Commission proposed not to adopt a specific interchange format, in an
effort to foster technological innovation. The NPRM additionally sought
comment on whether the Commission should require a particular delivery
format. In response, a number of commenters argue that the Commission
should specify SMPTE-TT as the mandatory interchange format. For both
the interchange and delivery format, several commenters propose various
safe harbor approaches, under which use of SMPTE-TT as the interchange
and/or delivery format would be deemed compliant. Among the asserted
benefits of adopting SMPTE-TT as a safe harbor interchange format is
that it would minimize the need for VPOs to author multiple standards
and potentially re-caption programming. Similarly, CEA argues that
``where IP-delivered video content is rendered by a consumer device
using a standardized video player * * * a single minimum delivery
format ensures that a manufacturer of such apparatus can readily
support and render IP captions.'' Further, unlike adopting SMPTE-TT as
the mandatory interchange or delivery format, commenters explain that a
safe harbor approach would balance goals of efficiency, certainty, and
consumer access with needed flexibility to continue to innovate.\112\
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\111\ The VPAAC Report separates delivery of content where
parties are affiliated and unaffiliated. Where parties are
affiliated by contract or ownership, the VPAAC report determined
that no standard-setting by the Commission was advisable. Where
delivery is between unaffiliated parties, creation of a relationship
may be more burdensome than adopting the recommendations of the
Commission for exchanging captioning data.
\112\ We note that some commenters propose a variation on the
safe harbor approach, under which the Commission would deem
compliant the use of a standard adopted in an open process by a
recognized industry standard-setting organization, without
specifying the format. TWC proposes another alternate approach to
the interchange format, by which the Commission would specify
functions that captions must support rather than specifying
standards. At this time, we decline to adopt any of the proposed
alternative approaches, as we find that the adoption of SMPTE-TT as
a safe harbor interchange and delivery format best provides the
industry with both clarity and flexibility.
---------------------------------------------------------------------------

126. Although some commenters advocate that we not specify an
interchange or delivery format, a large number of commenters from all
segments of the industry argue that the complete absence of a standard
would hinder the deployment of IP closed captioning because parties
would lack certainty as to what is expected. In addition to the VPAAC's
endorsement of the SMPTE-TT standard, many commenters confirm the
benefits of SMPTE-TT, and the industry does not seem to have coalesced
around any other standard in such a manner. We find that the safe
harbor approach for use of SMPTE-TT as the interchange and delivery
standard, as numerous commenters propose, would provide certainty while
enabling the industry to continue to innovate and permitting parties to
agree to use an alternative standard. To use a different standard,
parties would not need to first request Commission approval. We note,
however, where use of an alternate standard results in noncompliant
captions, both parties may be held responsible for violation of our
rules. The flexibility in such a safe harbor approach will address many
of the concerns expressed by parties against the adoption of a
particular standard, because the parties will retain the option of
using an alternative standard if that standard better meets their needs
and achieves the required result. For all of the above reasons, we
adopt SMPTE-TT as a safe harbor interchange and delivery format. Thus,
we will provide in our rules that if a VPO provides captions to a VPD
using the SMPTE-TT format, then the VPO has fulfilled its obligation to
deliver captions to the VPD in an acceptable format. We will also
provide in our rules that devices that implement SMPTE-TT will be
deemed in compliance with our rules, while simultaneously allowing
devices to achieve the same functionality without implementing that
standard.\113\ We intend to monitor the marketplace and, to the extent
that additional open standards from recognized industry standard-
setting organizations appear appropriate, we will consider
incorporating those standards into our rules as additional safe
harbors.
---------------------------------------------------------------------------

\113\ When implementing SMPTE-TT as a means of being deemed in
compliance with the requirements for captioning functionality, we
expect manufacturers will look to the practices of the industry,
especially when standardized or adopted by an industry body, such as
the recommended practice for conversion of CEA-608 data to SMPTE-TT
to determine the reasonable extent to which features must be
supported. See Society of Motion Picture Television Engineers
recommended practice ``Conversion from CEA-608 Data to SMPTE-TT,''
RP 2052-10-2010 (2010). We expect a similar recommended practice
regarding the conversion of CEA-708 data to SMPTE-TT to be
developed.
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VI. Procedural Matters

A. Final Regulatory Flexibility Analysis

127. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA''), the Commission has prepared the following Final
Regulatory Flexibility Analysis (``FRFA'') relating to this Report and
Order in MB Docket No. 11-154. An Initial Regulatory Flexibility
Analysis (``IRFA'') was incorporated in the NPRM in this proceeding.
The Federal Communications Commission (``Commission'') sought written
public comment on the proposals in the NPRM, including comment on the
IRFA. The Commission received no comments on the IRFA, although some
commenters discussed the effect of the proposals on smaller entities,
as discussed below. This present Final Regulatory Flexibility Analysis
(``FRFA'') conforms to the RFA.
Need for, and Objectives of, the Report and Order
128. Pursuant to our responsibilities under the Twenty-First
Century Communications and Video Accessibility Act of 2010 (``CVAA''),
this Report and Order adopts rules governing the closed captioning
requirements for the owners, providers, and distributors of video
programming delivered using Internet protocol (``IP''). This Report and
Order also adopts rules governing the closed captioning capabilities of
certain apparatus on which consumers view video programming. Closed
captioning is the visual display of the audio portion of video
programming, which provides access to individuals who are deaf or hard
of hearing. Prior to the adoption of the CVAA, the Communications Act
of 1934, as amended (the ``Act''), required the use of closed
captioning on

[[Page 19510]]

television, but not on IP-delivered video programming that was not part
of a broadcaster or multichannel video programming distributor
(``MVPD'') service. That changed with the enactment of the CVAA, which
directed the Federal Communications Commission (``Commission'') to
revise its regulations to require closed captioning of IP-delivered
video programming that is published or exhibited on television with
captions after the effective date of the new regulations. Further, the
CVAA directed the Commission to impose closed captioning requirements
on certain apparatus that receive or play back video programming, and
on certain recording devices. The rules we adopt herein will better
enable individuals who are deaf or hard of hearing to view IP-delivered
video programming, as Congress intended. Moreover, we believe these
benefits of our rules to deaf or hard of hearing consumers will
outweigh the affected entities' costs of compliance.
129. As discussed in Section III of the Report and Order, we adopt
the following closed captioning requirements for the owners, providers,
and distributors of IP-delivered video programming under Section 202(b)
through (c) of the CVAA. Specifically, we adopt rules that will:
Specify the obligations of entities subject to Section
202(b) by:
[cir] Requiring video programming owners (``VPOs'') to send
required caption files for IP-delivered video programming to video
programming distributors and providers (``VPDs'') along with program
files;
[cir] Requiring VPDs to enable the rendering or pass through of all
required captions to the end user, including through the hardware of
software that a VPD makes available for this purpose;
[cir] Requiring VPOs and VPDs to agree upon a mechanism to make
available to VPDs information on video programming that is subject to
the IP closed captioning requirements on an ongoing basis; and
[cir] Requiring VPOs to provide VPDs with captions of at least the
same quality as the television captions for the same programming, and
requiring VPDs to maintain the quality of the captions provided by the
VPO.
Create a schedule of deadlines under which:
[cir] All prerecorded programming that is not edited for Internet
distribution and is subject to the new requirements must be captioned
if it is shown on television with captions on or after the date six
months after publication of these rules in the Federal Register;
[cir] All live and near-live programming subject to the new
requirements must be captioned if it is shown on television with
captions on or after the date 12 months after publication of these
rules in the Federal Register;
[cir] All prerecorded programming that is edited for Internet
distribution and is subject to the new requirements must be captioned
if it is shown on television with captions on or after the date 18
months after publication of the rules in the Federal Register; and
[cir] Archival content must be captioned according to the following
deadlines: Beginning two years after publication of these rules in the
Federal Register, all programming that is subject to the new
requirements and is already in the VPD's library before it is shown on
television with captions must be captioned within 45 days after it is
shown on television with captions. Beginning three years after
publication of these rules in the Federal Register, such programming
must be captioned within 30 days after it is shown on television with
captions. Beginning four years after publication of these rules in the
Federal Register, such programming must be captioned within 15 days
after it is shown on television with captions.
Craft procedures by which VPDs and VPOs may petition the
Commission for exemptions from the new requirements based on economic
burden;
Not 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, as provided in the CVAA; and
Adopt procedures for complaints alleging a violation of
the new requirements.
130. In addition, we adopt the following closed captioning
requirements for the manufacturers of devices used to view video
programming under Section 203 of the CVAA. Specifically, we adopt rules
that will:
Establish what apparatus are covered by Section 203:
[cir] All physical devices designed to receive and play back video
programming, including smartphones, tablets, personal computers, and
television set-top boxes;
[cir] All ``integrated software'' in covered devices (that is,
software installed in the device by the manufacturer before sale or
that the manufacturer requires the consumer to install after sale); and
[cir] All recording devices and removable media players;
Exclude professional and commercial equipment from the
scope of Section 203;
Exempt display-only monitors as set forth in Section 203,
and establish procedures for finding a lack of achievability or
technical feasibility;
Establish the requirements for devices covered by Section
203:
[cir] Specify how covered apparatus must implement closed
captioning by adopting functional display standards;
[cir] Require apparatus to render or pass-through closed captioning
on each of their video outputs;
[cir] Decline to grant blanket waivers or exempt any device or
class of devices from our rules based on achievability or the waiver
provisions set forth in Section 203;
Establish general complaint procedures and modify our
existing television receiver closed captioning decoder requirements to
conform to screen size and achievability provisions; and
Establish a deadline for compliance of January 1, 2014 by
which devices must comply with the requirements of Section 203.
Finally, we adopt a safe harbor for use of a particular interchange
and delivery format.
Legal Basis
131. The authority for the action taken in this rulemaking is
contained in the Twenty-First Century Communications and Video
Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751, and
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.
Summary of Significant Issues Raised by Public Comments in Response to
the IRFA
132. No comments were filed in response to the IRFA. In response to
the NPRM, commenters express their approval of proposals that gave
appropriate consideration to smaller entities.
133. The American Cable Association (``ACA'') and the National
Association of Broadcasters (``NAB'') also express concerns about the
burdens of the mechanism proposed in the NPRM on smaller entities. As
explained in the Report and Order, instead of adopting the proposed
mechanism, we will permit VPOs and VPDs to agree upon a mechanism. This
flexibility will alleviate the concerns of ACA and NAB.
134. Further, ACA argues that MVPDs, especially smaller operators,
should not have to comply with multiple sets of rules aimed at
achieving

[[Page 19511]]

the same purpose. In response, the Report and Order clarifies that the
IP closed captioning rules will not apply to a broadcaster's or MVPD's
provision of programming that is subject to the Commission's television
closed captioning rules.
Description and Estimate of the Number of Small Entities to Which the
Proposals Will Apply
135. The RFA directs the Commission to provide a description of
and, where feasible, an estimate of the number of small entities that
will be affected by the proposed rules if adopted. The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' In addition, the term ``small business''
has the same meaning as the term ``small business concern'' under the
Small Business Act. 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
Small Business Administration (``SBA'').
136. 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.
First, nationwide, there are a total of approximately 27.5 million
small businesses, according to the SBA. 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.''
Nationwide, as of 2007, there were approximately 1,621,315 small
organizations. 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.'' Census Bureau data for 2011 indicate that
there were 89,476 local governmental jurisdictions in the United
States. We estimate that, of this total, a substantial majority may
qualify as ``small governmental jurisdictions.'' Thus, we estimate that
most governmental jurisdictions are small.
137. 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.'' 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.
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 business size standard, the majority of such firms can be
considered small.
138. 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. Industry data
indicate that, of 1,076 cable operators nationwide, all but eleven are
small under this size standard. In addition, under the Commission's
rules, a ``small system'' is a cable system serving 15,000 or fewer
subscribers. Industry data indicate that, of 6,635 systems nationwide,
5,802 systems have fewer than 10,000 subscribers, and an additional 302
systems have 10,000-19,999 subscribers. Thus, under this second size
standard, most cable systems are small.
139. 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.'' 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. Industry
data indicate that, of 1,076 cable operators nationwide, all but ten
are small under this size standard. 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, and therefore we are unable to estimate more accurately the
number of cable system operators that would qualify as small under this
size standard.
140. 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,'' 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. 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. 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). Each currently offers subscription services. DIRECTV and
EchoStar 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.
141. 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. The second has a size standard of $25
million or less in annual receipts.
142. 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.'' Census Bureau data for 2007 show that 512
Satellite Telecommunications firms operated for that entire year. Of
this total, 464 firms had annual receipts of under $10 million, and 18
firms had receipts of

[[Page 19512]]

$10 million to $24,999,999. Consequently, the Commission estimates that
the majority of Satellite Telecommunications firms are small entities
that might be affected by our action.
143. 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 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.'' For this category,
Census Bureau data for 2007 show that there were a total of 2,383 firms
that operated for the entire year. 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. Consequently, the Commission estimates
that the majority of All Other Telecommunications firms are small
entities that might be affected by our action.
144. 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. Business concerns included in
this industry are those ``primarily engaged in broadcasting images
together with sound.'' The Commission has estimated the number of
licensed commercial television stations to be 1,390. 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 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. We note, however, that, in assessing
whether a business concern qualifies as small under the above
definition, business (control) affiliations 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.
145. 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.
146. Open Video Services. Open Video Service (OVS) systems provide
subscription services. 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. The OVS framework provides opportunities for the distribution
of video programming other than through cable systems. Because OVS
operators provide subscription services, OVS falls within the SBA small
business size standard covering cable services, which is ``Wired
Telecommunications Carriers.'' 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. In addition, we note that the Commission has
certified some OVS operators, with some now providing service.
Broadband service providers (``BSPs'') are currently the only
significant holders of OVS certifications or local OVS franchises. 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. 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.
147. 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.'' 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.
148. 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

[[Page 19513]]

commercials.'' 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. 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. Thus, under this category and associated small
business size standard, the majority of firms can be considered small.
149. 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.'' 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, 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.
150. 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.'' 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. 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.
151. 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. 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. Of these 1,307 carriers, an estimated 1,006 have 1,500 or
fewer employees and 301 have more than 1,500 employees. Consequently,
the Commission estimates that most providers of local exchange service
are small entities that may be affected by the rules and policies
adopted. 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.
152. 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 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.
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. 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. Of these 1,442
carriers, an estimated 1,256 have 1,500 or fewer employees and 186 have
more than 1,500 employees. 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. In addition, 72 carriers have reported
that they are Other Local Service Providers. Of the 72, seventy have
1,500 or fewer employees and two have more than 1,500 employees.
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.
153. 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.'' 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. Thus, under that size standard, the
majority of firms can be considered small.
154. Audio and Video Equipment Manufacturing. The SBA has
classified the manufacturing of audio and video equipment under the
NAICS Codes classification scheme as an industry in

[[Page 19514]]

which a manufacturer is small if it has less than 750 employees. 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. Thus, under the
applicable size standard, a majority of manufacturers of audio and
video equipment may be considered small.
155. 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
email, connections to other Web sites, auctions, news, and other
limited content, and serve as a home base for Internet users.''
156. 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. 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. 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. Accordingly, the
majority of establishments in this category can be considered small
under that standard.
157. Closed Captioning Services. These entities would be indirectly
affected by our 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.''
158. 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. 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. Consequently we estimate that the majority of
Teleproduction and Other Postproduction Services firms are small
entities that might be affected by our action.
159. 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. 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. Consequently, we estimate that
the majority of Court Reporting and Stenotype Services firms are small
entities that might be affected by our action.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities
160. The rules adopted in the Report and Order generally require
VPOs to send required caption files for IP-delivered video programming
to VPDs along with program files. The rules also require VPDs to enable
the rendering or pass through of all required captions to the end user.
Further, the rules impose closed captioning requirements on certain
apparatus that receive or play back video programming, and on certain
recording devices.
161. The rules will require VPOs and VPDs to agree upon a
``mechanism'' that will make available to the VPD information on video
programming subject to the IP closed captioning requirements on an
ongoing basis. The ``mechanism'' may involve a system of certifications
that are kept up-to-date, or it may involve the use of a third-party
database, private contractual arrangements, or another ``mechanism''
agreed upon by the parties.
162. The Report and Order creates a process by which VPDs 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. Further, the Report and Order creates
a process by which manufacturers of apparatus may petition the
Commission for a full or partial exemption of the requirements to
implement closed captioning in their apparatus, which the Commission
may grant upon a finding that implementation would not be achievable,
technically feasible, that the apparatus is a display only monitor, or
that purpose of the apparatus is such that the rules are inapplicable.
The Report and Order also adopts procedures for complaints alleging a
violation of the IP closed captioning rules, and it requires VPDs to
make contact information available to end users for the receipt and
handling of written IP closed captioning complaints.
Steps Taken To Minimize Significant Economic Impact on Small Entities
and Significant Alternatives Considered
163. 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.
164. These rules may have a significant economic impact in some
cases, and that impact may affect a substantial number of small
entities. Although alternatives to minimize economic impact have been
considered, we note that our action is governed by the congressional
mandate contained in Sections 202(b), (c), and 203 of the CVAA. The
Report and Order adopts procedures enabling the Commission to grant
exemptions to the rules governing closed captioning of IP-delivered
video programming pursuant to Section 202 of the CVAA, where a
petitioner has shown that compliance would present an economic burden
(i.e., a significant difficulty or expense), and pursuant to Section
203 of the CVAA, where a petitioner has shown that compliance is not
achievable (i.e., cannot be accomplished with reasonable effort or
expense) or not technically feasible. This exemption process will allow
the

[[Page 19515]]

Commission to address the impact of the rules on individual entities,
including smaller entities, and to modify the application of the rules
to accommodate individual circumstances. Further, the Report and Order
provides that a de minimis failure to comply with the requirements
adopted pursuant to Section 202 of the CVAA shall not be treated as a
violation, and it provides that parties may use alternate means of
compliance to the rules adopted pursuant to either Section 202 or
Section 203 of the CVAA. Individual entities, including smaller
entities, may benefit from these provisions.
165. To fulfill the statutory mandate that the Commission
``establish a mechanism to make available to video programming
providers and distributors information on video programming subject to
the Act on an ongoing basis,'' the NPRM proposed a system of
certifications and updated certifications. Due to concerns that such a
system may be burdensome for entities that must comply, including
smaller entities, in the Report and Order the Commission instead
adopted a flexible process by which VPOs and VPDs must agree upon a
``mechanism'' to make available to the VPD information on video
programming subject to the IP closed captioning requirements on an
ongoing basis.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
166. None.
Report to Congress
167. The Commission will send a copy of the Report and Order,
including this FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act. In addition, the Commission will send a copy
of the Report and Order, including this FRFA, to the Chief Counsel for
Advocacy of the SBA. The Report and Order and FRFA (or summaries
thereof) will also be published in the Federal Register.

B. Congressional Review Act

168. The Commission will send a copy of this Report and Order in MB
Docket No. 11-154 in a report to be sent to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, see 5
U.S.C. 801(a)(1)(A).

VII. Ordering Clauses

169. Accordingly, it is ordered that, pursuant to the Twenty-First
Century Communications and Video Accessibility Act of 2010, Public Law
111-260, 124 Stat. 2751, and the authority found 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
Report and Order is adopted, effective thirty (30) days after the date
of publication in the Federal Register, except for Sec. Sec.
79.4(c)(1)(ii), 79.4(c)(2)(ii)-(iii), 79.4(d)(1)-(4) and (d)(6)-(9),
79.4(e)(1)-(6), and 79.103(b)(3)-(4), which shall become effective upon
announcement in the Federal Register of OMB approval and an effective
date of the rule(s).
170. It is ordered that, pursuant to the Twenty-First Century
Communications and Video Accessibility Act of 2010, Public Law 111-260,
124 Stat. 2751, and the authority found 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, the Commission's
rules are hereby amended as set forth in the Final Rules.
171. It is further ordered that we delegate authority to the Media
Bureau and the Consumer and Governmental Affairs Bureau to consider all
requests for declaratory rulings pursuant to Sec. 1.2 of the
Commission's rules, 47 CFR 1.2, all waiver requests, and all informal
requests for Commission action pursuant to Sec. 1.41 of the
Commission's rules, 47 CFR 1.41, filed under these rules and pursuant
to Sections 202(b) and 203 of the CVAA.
172. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Report and Order in MB Docket No. 11-154, including the
Final Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
173. It is further ordered that the Commission shall send a copy of
this Report and Order in MB Docket No. 11-154 in a report to be sent to
Congress and the Government Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects

47 CFR Part 15

Communications equipment, Incorporation by reference, Labeling, and
Reporting and recordkeeping requirements.

47 CFR Part 79

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

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

For the reasons stated in the preamble, the Federal Communications
Commission amends 47 CFR parts 15 and 79 as follows:

PART 15--RADIO FREQUENCY DEVICES

0
1. The authority citation for part 15 continues to read as follows:

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

Sec. 15.38 [Amended]

0
2. In Sec. 15.38, remove and reserve paragraph (b)(10).

0
3. Redesignate Sec. 15.119 as Sec. 79.101.

0
4. Add and reserve Sec. 15.119.

0
5. Redesignate Sec. 15.122 as Sec. 79.102.

0
6. Add and reserve Sec. 15.122.

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

0
7. The authority citation for part 79 is revised to read as follows:

Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310,
330, 544a, 613, 617.

0
8. Amend Sec. 79.1 by revising paragraphs (a)(4) and (c) to read as
follows:

Sec. 79.1 Closed captioning of video programming.

(a) * * *
(4) Closed captioning. The visual display of the audio portion of
video programming pursuant to the technical specifications set forth in
this part.
* * * * *
(c) Obligation to pass through captions of already captioned
programs. All video programming distributors shall deliver all
programming received from the video programming owner or other
origination source containing closed captioning to receiving television
households with the original closed captioning data intact in a format
that can be recovered and displayed by decoders meeting the standards
of this part unless such programming is recaptioned or the captions are
reformatted by the programming distributor.
* * * * *

0
9. Add Sec. 79.4 to read as follows:

[[Page 19516]]

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 appears
on television and is distributed to end users, substantially in its
entirety, via Internet protocol, excluding video clips or outtakes.
(3) Video programming distributor or video programming provider.
Any person or 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 either:
(i) Licenses the video programming to a video programming
distributor or provider that makes the video programming available
directly to the end user through a distribution method that uses
Internet protocol; or
(ii) Acts as the video programming distributor or provider, and
also possesses the right to license the video programming to a video
programming distributor or provider that makes the video programming
available directly to the end user through a distribution method that
uses Internet protocol.
(5) Internet protocol. Includes Transmission Control Protocol and a
successor protocol or technology to Internet protocol.
(6) Closed captioning. The visual display of the audio portion of
video programming pursuant to the technical specifications set forth in
this part.
(7) Live programming. Video programming that is shown on television
substantially simultaneously with its performance.
(8) Near-live programming. Video programming that is performed and
recorded less than 24 hours prior to the time it was first aired on
television.
(9) Prerecorded programming. Video programming that is not ``live''
or ``near-live.''
(10) Edited for Internet distribution. Video programming for which
the 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. Excerpts of full-length video programming.
(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 (d) 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 is published or exhibited on
television in the United States with captions on or after the following
dates:
(1) September 30, 2012, for all prerecorded programming that is not
edited for Internet distribution, unless it is subject to paragraph
(b)(4) of this section.
(2) March 30, 2013, for all live and near-live programming, unless
it is subject to paragraph (b)(4) of this section.
(3) September 30, 2013, for all prerecorded programming that is
edited for Internet distribution, unless it is subject to paragraph
(b)(4) of this section.
(4) All programming that is already in the video programming
distributor's or provider's library before it is shown on television
with captions must be captioned within 45 days after the date it is
shown on television with captions on or after March 30, 2014 and before
March 30, 2015. Such programming must be captioned within 30 days after
the date it is shown on television with captions on or after March 30,
2015 and before March 30, 2016. Such programming must be captioned
within 15 days after the date it is shown on television with captions
on or after March 30, 2016.
(c) Obligations of video programming owners, distributors and
providers.
(1) Obligations of video programming owners. Each video programming
owner must:
(i) Send program files to video programming distributors and
providers with captions as required by this section, with at least the
same quality as the television captions provided for the same
programming. If a video programming owner provides captions to a video
programming distributor or provider using the Society of Motion Picture
and Television Engineers Timed Text format (SMPTE ST 2052-1:2010,
incorporated by reference, see Sec. 79.100), then the VPO has
fulfilled its obligation to deliver captions to the video programming
distributor or provider in an acceptable format. A video programming
owner and a video programming distributor or provider may agree upon an
alternative technical format for the delivery of captions to the video
programming distributor or provider.
(ii) With each video programming distributor and provider that such
owner licenses to distribute video programming directly to the end user
through a distribution method that uses Internet protocol, agree upon a
mechanism to inform such distributors and providers on an ongoing basis
whether video programming is subject to the requirements of this
section.
(2) Obligations of video programming distributors and providers.
Each video programming distributor and provider must:
(i) Enable the rendering or pass through of all required captions
to the end user, maintaining the quality of the captions provided by
the video programming owner and transmitting captions in a format
reasonably designed to reach the end user in that quality. A video
programming distributor or provider that provides applications, plug-
ins, or devices in order to deliver video programming must comply with
the requirements of Sec. 79.103(c) and (d).
(ii) With each video programming owner from which such distributor
or provider licenses video programming for distribution directly to the
end user through a distribution method that uses Internet protocol,
agree upon a mechanism to inform such distributor or provider on an
ongoing basis whether video programming is subject to the requirements
of this section, and make a good faith effort to identify video
programming subject to the requirements of this section using the
agreed upon mechanism. A video programming distributor or provider may
rely in good faith on a certification by a video programming owner that
the video programming need not be captioned if:
(A) The certification includes a clear and concise explanation of
why captioning is not required; and
(B) The video programming distributor or provider is able to
produce the certification to the Commission in the event of a
complaint.
(iii) Make contact information available to end users for the
receipt and handling of written closed captioning complaints alleging
violations of this section. The contact information required for
written complaints shall include the name of a person with primary
responsibility for Internet protocol captioning issues and who can
ensure compliance with these rules. In

[[Page 19517]]

addition, this contact information shall include the person's title or
office, telephone number, fax number, postal mailing address, and email
address. Video programming distributors and providers shall keep this
information current and update it within 10 business days of any
change.
(3) A video programming provider's or owner's de minimis failure to
comply with this section shall not be treated as a violation of the
requirements.
(d) 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.
(4) The petitioner must electronically file its petition for
exemption, and all subsequent pleadings related to the petition, in
accordance with Sec. 0.401(a)(1)(iii) of this chapter.
(5) The Commission will place the petition on public notice.
(6) Any interested person may electronically file comments or
oppositions to the petition within 30 days after release of the public
notice of the petition. Within 20 days after the close of the period
for filing comments or oppositions, the petitioner may reply to any
comments or oppositions filed.
(7) Persons who 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. Any petitioner filing a reply to comments or oppositions must
serve the commenting or opposing party with a copy of the reply and
shall include a certification that the party was served with a copy.
Comments or oppositions and replies shall be served upon a party, its
attorney, or its other duly constituted agent by delivering or mailing
a copy to the party's last known address in accordance with Sec. 1.47
of this chapter or by sending a copy to the email address last provided
by the party, its attorney, or other duly constituted agent.
(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.
(11) During the pendency of an economic burden determination, the
Commission will consider the video programming subject to the request
for exemption as exempt from the requirements of this section.
(e) Complaint procedures.
(1) Complaints concerning an alleged violation of the closed
captioning requirements of this section shall be filed in writing with
the Commission or with the video programming distributor or provider
responsible for enabling the rendering or pass through of the closed
captions for the video programming within sixty (60) days after the
date the complainant experienced a problem with captioning. A complaint
filed with the Commission must be directed to the Consumer and
Governmental Affairs Bureau and submitted through the Commission's
online informal complaint filing system, U.S. Mail, overnight delivery,
or facsimile.
(2) A complaint should include the following information:
(i) The name, postal address, and other contact information of the
complainant, such as telephone number or email address;
(ii) The name and postal address, Web site, or email address of the
video programming distributor, provider, and/or owner against which 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 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), email, or some other method that would best
accommodate the complainant).
(3) If a complaint is filed first with the Commission, the
Commission will forward complaints satisfying the above requirements 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 in writing
to the Commission and the complainant within 30 days after receipt of
the complaint from the Commission.
(4) If a complaint is filed first with the video programming
distributor or provider, the video programming distributor or provider
must respond in writing to the complainant within thirty (30) days
after receipt of a closed captioning complaint. If a video programming
distributor or provider fails to respond to the complainant within
thirty (30) days, or the response does not satisfy the consumer, the
complainant may file the complaint with the Commission within thirty
(30) days after the time allotted for the video programming distributor
or provider to respond. If a consumer re-files the complaint with the
Commission (after filing with the distributor or provider) and the
complaint satisfies the above requirements, the Commission will forward
the complaint to the named video programming distributor or provider,
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 then respond in
writing to the Commission and the complainant

[[Page 19518]]

within 30 days after receipt of the complaint from the Commission.
(5) 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. If the responding entity admits that it was not or is not in
compliance with the Commission's rules, it shall file with the
Commission sufficient records and documentation to explain the reasons
for its noncompliance, show what remedial steps it has taken or will
take, and show why such steps have been or will be sufficient to
remediate the problem.
(6) 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
entities when, in the estimation of Commission staff, such information
is needed to investigate the complaint or adjudicate potential
violation(s) of Commission rules. When the Commission requests
additional information, parties to which such requests are addressed
must provide the requested information in the manner and within the
time period the Commission specifies.
(7) 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 Communications Act of 1934, as amended, against any
or all of the violators.
(f) 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.

0
10. Add Sec. 79.100 to read as follows:

Sec. 79.100 Incorporation by reference.

(a) The materials listed in this section are incorporated by
reference in this part. These incorporations by reference were approved
by the Director of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. These materials are incorporated as they
exist on the date of the approval, and notice of any change in these
materials will be published in the Federal Register. The materials are
available for purchase at the corresponding addresses as noted, and all
are available for inspection at the Federal Communications Commission,
445 12th St. SW., Reference Information Center, Room CY-A257,
Washington, DC 20554, (202) 418-0270, and at the National Archives and
Records Administration (NARA). For information on the availability of
this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
(b) Global Engineering Documents, 15 Inverness Way East, Englewood,
CO 80112, (800) 854-7179, or at http://global.ihs.com:
(1) EIA-708-B: ``Digital Television (DTV) Closed Captioning,''
1999, IBR approved for Sec. 79.102.
(2) [Reserved]
(c) Society of Motion Picture & Television Engineers (SMPTE), 3
Barker Ave., 5th Floor, White Plains, NY 10601, or at the SMPTE Web
site: http://www.smpte.org/standards/:
(1) SMPTE ST 2052-1:2010: ``Timed Text Format (SMPTE-TT)'' 2010,
IBR approved for Sec. Sec. 79.4 and 79.103.
(2) [Reserved]

0
11. Amend newly redesignated Sec. 79.101 by revising paragraphs (a)
and (m) to read as follows:

Sec. 79.101 Closed caption decoder requirements for analog television
receivers.

(a)(1) Effective July 1, 1993, all television 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 January 1, 2014, all television broadcast 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, if technically feasible, except that
television broadcast receivers that use a picture screen less than 13
inches in size must comply with the provisions of this section only if
doing so is achievable pursuant to Sec. 79.103(b)(3).
* * * * *
(m) Labeling and consumer information requirements. (1) The box or
other package in which the individual television receiver is to be
marketed shall carry a statement in a prominent location, visible to
the buyer before purchase, which reads as follows:
This television receiver provides display of television closed
captioning in accordance with FCC rules.
(2) Receivers that do not support color attributes or text mode, as
well as receivers that display only upper-case characters pursuant to
paragraph (g) of this section, must include with the statement, and in
the owner's manual, language indicating that those features are not
supported.
* * * * *

0
12. Amend newly redesignated Sec. 79.102 by adding paragraph (a)(3)
and revising paragraph (b) to read as follows:

Sec. 79.102 Closed caption decoder requirements for digital
television receivers and converter boxes.

(a) * * *
(3) Effective January 1, 2014, all digital television receivers and
all separately sold DTV tuners shipped in interstate commerce or
manufactured in the United States shall comply with the provisions of
this section, if technically feasible, except that digital television
receivers that use a picture screens less than 13 inches in size must
comply with the provisions of this section only if doing so is
achievable pursuant to Sec. 79.103(b)(3).
(b) Digital television receivers and tuners must be capable of
decoding closed captioning information that is delivered pursuant to
EIA-708-B: ``Digital Television (DTV) Closed Captioning'' (incorporated
by reference, see Sec. 79.100).
* * * * *

0
13. Add Sec. 79.103 to read as follows:

Sec. 79.103 Closed caption decoder requirements for all apparatus.

(a) Effective January 1, 2014, all digital apparatus designed to
receive or play back video programming transmitted simultaneously with
sound, if such apparatus is manufactured in the United States or
imported for use in the United States and uses a picture screen of any
size must be equipped with built-in closed caption decoder circuitry or
capability designed to display closed-captioned video programming
pursuant to the provisions of this section, if technically feasible,
except that apparatus that use a picture screen less than 13 inches in
size must comply with the provisions of this section only if doing so
is achievable as defined in this section.
Note to paragraph (a): Apparatus includes the physical device and
the video players that manufacturers install

[[Page 19519]]

into the devices they manufacture before sale, whether in the form of
hardware, software, or a combination of both, as well as any video
players that manufacturers direct consumers to install after sale.
(b) Exempt apparatus. (1) Display-only monitors. Apparatus or class
of apparatus that are display-only video monitors with no playback
capability are not required to comply with the provisions of this
section.
(2) Professional or commercial equipment. Apparatus or class of
apparatus that are professional or commercial equipment not typically
used by the public are not required to comply with the provisions of
this section.
(3)(i) Achievable. Manufacturers of apparatus that use a picture
screen of less than 13 inches in size may petition the Commission for a
full or partial exemption from the closed captioning requirements of
this section pursuant to Sec. 1.41 of this chapter, which the
Commission may grant upon a finding that the requirements of this
section are not achievable, or may assert that such apparatus is fully
or partially exempt as a response to a complaint, which the Commission
may dismiss upon a finding that the requirements of this section are
not achievable.
(ii) The petitioner or respondent must support a petition for
exemption or a response to a complaint with sufficient evidence to
demonstrate that compliance with the requirements of this section is
not ``achievable'' where ``achievable'' means with reasonable effort or
expense. The Commission will consider the following factors when
determining whether the requirements of this section are not
``achievable:''
(A) 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;
(B) 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;
(C) The type of operations of the manufacturer or provider; and
(D) 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.
(4) Waiver. Manufacturers of apparatus may petition the Commission
for a full or partial waiver of the closed captioning requirements of
this section, which the Commission may grant, upon a finding that the
apparatus meets one of the following provisions:
(i) The apparatus is primarily designed for activities other than
receiving or playing back video programming transmitted simultaneously
with sound; or
(ii) The apparatus is designed for multiple purposes, capable of
receiving or playing back video programming transmitted simultaneously
with sound but whose essential utility is derived from other purposes.
(c) Specific technical capabilities. All apparatus subject to this
section shall implement the following captioning functionality:
(1) Presentation. All apparatus shall implement captioning such
that the caption text may be displayed within one or separate caption
windows and supporting the following modes: text that appears all at
once (pop-on), text that scrolls up as new text appears (roll-up), and
text where each new letter or word is displayed as it arrives (paint-
on).
(2) Character color. All apparatus shall implement captioning such
that characters may be displayed in the 64 colors defined in CEA-708
and such that users are provided with the ability to override the
authored color for characters and select from a palette of at least 8
colors including: white, black, red, green, blue, yellow, magenta, and
cyan.
(3) Character opacity. All apparatus shall implement captioning
such that users are provided with the ability to vary the opacity of
captioned text and select between opaque and semi-transparent
opacities.
(4) Character size. All apparatus shall implement captioning such
that users are provided with the ability to vary the size of captioned
text and shall provide a range of such sizes from 50% of the default
character size to 200% of the default character size.
(5) Fonts. All apparatus shall implement captioning such that fonts
are available to implement the eight fonts required by CEA-708 and
Sec. 79.102(k). Users must be provided with the ability to assign the
fonts included on their apparatus as the default font for each of the
eight styles contained in Sec. 79.102(k).
(6) Caption background color and opacity. All apparatus shall
implement captioning such that the caption background may be displayed
in the 64 colors defined in CEA-708 and such that users are provided
with the ability to override the authored color for the caption
background and select from a palette of at least 8 colors including:
white, black, red, green, blue, yellow, magenta, and cyan. All
apparatus shall implement captioning such that users are provided with
the ability to vary the opacity of the caption background and select
between opaque, semi-transparent, and transparent background opacities.
(7) Character edge attributes. All apparatus shall implement
captioning such that character edge attributes may be displayed and
users are provided the ability to select character edge attributes
including: no edge attribute, raised edges, depressed edges, uniform
edges, and drop shadowed edges.
(8) Caption window color. All apparatus shall implement captioning
such that the caption window color may be displayed in the 64 colors
defined in CEA-708 and such that users are provided with the ability to
override the authored color for the caption window and select from a
palette of at least 8 colors including: white, black, red, green, blue,
yellow, magenta, and cyan.
All apparatus shall implement captioning such that users are
provided with the ability to vary the opacity of the caption window and
select between opaque, semi-transparent, and transparent background
opacities.
(9) Language. All apparatus must implement the ability to select
between caption tracks in additional languages when such tracks are
present and provide the ability for the user to select simplified or
reduced captions when such captions are available and identify such a
caption track as ``easy reader.''
(10) Preview and setting retention. All apparatus must provide the
ability for the user to preview default and user selection of the
caption features required by this section, and must retain such
settings as the default caption configuration until changed by the
user.
(11) Safe Harbor. Apparatus which implement Society of Motion
Picture and Television Engineers Timed Text format (SMPTE ST 2052-
1:2010 incorporated by reference, see Sec. 79.100) with respect to the
functionality in paragraphs (c)(1) through (10) of this section shall
be deemed in compliance with paragraph (c) of this section.
Note to paragraph (c): Where video programming providers or
distributors subject to Sec. 79.4 of this part display or render
captions, they shall implement the functional requirements contained in
paragraphs (c)(1) through (10) of this section unless doing so is
economically burdensome as defined in Sec. 79.4(d).
(d) Interconnection. All video outputs of covered apparatus shall
be capable of conveying from the source device to the consumer
equipment the information necessary to permit or render the display of
closed captions.

[[Page 19520]]

0
14. Add Sec. 79.104 to read as follows:

Sec. 79.104 Closed caption decoder requirements for recording
devices.

(a) Effective January 1, 2014, all apparatus designed to record
video programming transmitted simultaneously with sound, if such
apparatus is manufactured in the United States or imported for use in
the United States, must comply with the provisions of this section
except that apparatus must only do so if it is achievable as defined in
Sec. 79.103(b)(3).
(b) All apparatus subject to this section must enable the rendering
or the pass through of closed captions such that viewers are able to
activate and de-activate the closed captions as the video programming
is played back as described in Sec. 79.103(c).
(c) All apparatus subject to this section must comply with the
interconnection mechanism requirements in Sec. 79.103(d).

[FR Doc. 2012-7247 Filed 3-29-12; 8:45 am]
BILLING CODE 6712-01-P