[Federal Register Volume 63, Number 202 (Tuesday, October 20, 1998)]
[Rules and Regulations]
[Pages 55959-55963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27989]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 79
[MM Docket No. 95-176; FCC 98-236]
Closed Captioning of Video Programming
AGENCY: Federal Communications Commission.
ACTION: Final rule; petition on reconsideration.
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SUMMARY: The Commission amends its closed captioning rules in response
to nine petitions for reconsideration of the rules adopted in August
1997. Generally the rules require the closed captioning of video
programming and is intended to ensure the accessibility of video
programming to persons with hearing disabilities. On reconsideration,
the Commission amends its closed captioning rules in order to better
comply with the statutory mandate to provide accessibility to persons
with hearing disabilities.
EFFECTIVE DATE: November 19, 1998.
FOR FURTHER INFORMATION, CONTACT: John Adams or Marcia Glauberman,
Cable Services Bureau, (202) 418-7200, TTY (202) 418-7172.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Order on
Reconsideration in MM Docket No. 95-176, FCC 98-236, adopted September
17, 1998 and released October 2, 1998. The complete text of this Order
on Reconsideration is available for inspection and copying during
normal business hours in the FCC Reference Center (Room 239), 1919 M
Street, NW, Washington, DC, and also may be purchased from the
Commission's copy contractor, International Transcription Services,
Inc. (``ITS'') at (202) 857-3800, TTY (202) 293-8810, 1919 M Street,
NW, Suite 246, Washington, DC 20554. For copies in alternative formats,
such as braille, audio cassette or large print, please contact Sheila
Ray at ITS.
Paperwork Reduction Act
This Order on Reconsideration has been analyzed with respect to the
Paperwork Reduction Act of 1995 and has been found to contain no new or
modified information collection requirements on the public.
Synopsis of Order on Reconsideration
1. On August 7, 1997, the Commission adopted a Report and Order
(``R&O''), summarized at 62 FR 48487 (September 16, 1997), implementing
section 713 of the Communications Act of 1934, as amended, 47 U.S.C.
613. Section 713 required the Commission to prescribe rules and
implementation schedules for the closed captioning of video programming
and to establish appropriate exemptions. The Order on Reconsideration
(``Order'') addresses nine petitions for reconsideration of the Report
and Order. By this Order, the Commission amends its closed captioning
rules, in part, in response to the petitions for reconsideration in
order to better ensure the accessibility of video programming to
persons with hearing disabilities.
2. Section 713 generally required the Commission to ensure that
``video programming first published or exhibited after the effective
date of such rules is fully accessible through the provision of closed
caption * * * '' In the R&O, the Commission adopted an eight year
transition period for the captioning of new nonexempt programming
(i.e., that first published or exhibited on or after January 1, 1998,
the effective date of the rules). The Commission established interim
benchmarks for required amounts of closed captioning during the
transition period. Effective January 1, 2006, the end of the transition
period, 95% of all new nonexempt video programming provided on each
channel during each calendar quarter was required to be captioned.
3. On reconsideration, we conclude that our decision to consider
the captioning of 95% of each channel's new nonexempt video programming
to be fully accessible is not consistent with Congress' objective when
it enacted Section 713. Therefore, we define full accessibility to be
the captioning of 100% of all new nonexempt video programming and will
require all such programming to be captioned at the end of the eight
year transition period. Accordingly, after January 1, 2006, 100% of the
programming of each channel's new nonexempt video
[[Page 55960]]
programming must be provided with captions.
4. Section 713 required the Commission to maximize the
accessibility of video programming first published or exhibited prior
to the effective date of our rules the provision of closed captioning.
Programming published or exhibited prior to January 1, 1998, is defined
as pre-rule. In the R&O, the Commission adopted a ten year transition
period with no interim benchmarks. Under the rules, effective January
1, 2008, the end of the transition period, 75% of all pre-rule
nonexempt programming on each channel during each calendar must include
closed captioning.
5. On reconsideration, the Commission clarifies that for purposes
of defining pre-rule programming, the relevant date of first exhibition
or publication is its first exhibition or publication by any
distribution method, including theatrical and home video release as
well as television distribution.
6. The Commission also clarifies the application of the rules to
digital television (``DTV'') programming. In the R&O, we defined
certain types of digital programming as ``pre-rule programming'' until
standards relating to the preparation of digital programming for
display on digital receivers are complete. We clarify that this
determination is narrow in scope and does not apply to programming that
is transmitted in a digital format for display on conventional analog
television receivers. This narrow exemption means only that the version
of the program prepared or formatted ``for display on television
receivers equipped for display of digital transmission'' prior to the
applicable date will fall within the pre-rule category and be subject
to captioning in accordance with the pre-rule schedule. With this
clarification, we believe the existing rule properly accounts for the
brief period of time during which the standards process can be
completed.
7. In the R&O, the Commission did not establish interim benchmarks
for the captioning of pre-rule programming. However, we stated that we
would monitor the implementation of closed captioning for pre-rule
programming and conduct a review of the industry's progress in four
years. On reconsideration, we reiterate our intent to conduct such a
review. We also conclude that, in order to comply with the statutory
mandate to ensure that video programming providers or owners maximize
the accessibility of pre-rule programming it is necessary to establish
at least one benchmark for pre-rule programming. Thus, we amend the
rules to require at least 30% of a channel's pre-rule programming be
provided with captions beginning on January 1, 2003. To the extent that
the amount of pre-rule programming captioned to comply with the
requirement that a video programming distributor provide captions at
substantially the same level as the average level of captioning that it
provided during the first six months of 1997 exceeds this 30%
benchmark, a distributor must continue to caption such programming at
the existing level consistent with our prior decision.
8. In the R&O, we determined that we would allow video programmers
to count, as part of compliance with the closed captioning rules, any
captions using the electronic newsroom (``ENR'') methodology. ENR
captioning can only be used to convert the dialogue included on a
teleprompter script into captions and does not caption live interviews,
field reports or late-breaking weather and sports that are not
scripted. As a result, persons with hearing disabilities do not have
full access when ENR is used. After review of the record, on
reconsideration, we are persuaded that we should limit the
circumstances where we will count ENR captioning as a substitute for
real-time captioning. We recognize that, without findings on an
individual basis, it is difficult to determine precisely which video
programming providers have sufficient resources such that real-time
captioning would not be an economic burden. Nonetheless, in order to
ensure full accessibility, we have made our best effort to identify a
class of video programmers for whom a real-time captioning requirement
would not be economically burdensome. Accordingly, beginning January 1,
2000, at the first benchmark, the four major national broadcast
networks (i.e., ABC, CBS, Fox and NBC), broadcast stations affiliated
with these networks in the top 25 television markets as defined by
Nielsen's Designated Market Areas (``DMAs''), and nonbroadcast networks
serving 50% or more of the total number of multichannel video
programming distributor (``MVPD'') households will not be allowed to
count ENR captioned programming toward compliance with captioning
requirements. Whenever a broadcast television station, a broadcast
television network or a nonbroadcast network satisfies one of these
criteria, it becomes subject to the limitations we are placing on the
use of ENR for compliance with the rules.
9. Section 713 authorized the Commission to adopt exemptions for
programs, classes of programs, or services for which we determine that
the provision of closed captioning would be economically burdensome. In
the Order, we adopt several amendments to the exemptions established in
the R&O.
10. In the R&O, we exempted new networks from our captioning
obligations during their first four years of operations. On
reconsideration, we will allow new networks launched prior to the
effective date of the rules that have not yet reached their fourth
anniversary by that date to be exempt for a four year period beginning
on January 1, 1998. This limited expansion of the new network exemption
will assist numerous nascent networks that continue to experience
growing difficulties.
11. In the R&O, we exempted programming produced and distributed by
ITFS licensees. We conclude that the current rules unintentionally
limit the scope of the ITFS exemption. Therefore, we amend
Sec. 79.1(d)(7) to exempt video programming transmitted by ITFS
licensee pursuant to its permitted educational operations.
12. We amend the rules to exempt instructional programming that is
locally produced by public television stations for use in grades K-12
and post secondary schools. In adopting this exemption we remain
confident that other Federal requirements will ensure that adequate
efforts will be taken to make this programming accessible on a case by
case basis.
13. In the R&O, we exempted non-English language programming other
than that which can be captioned using ENR. We generally reaffirm this
decision. However, on reconsideration, we find it appropriate to narrow
this exemption and distinguish Spanish language programming from other
non-English language programming. Accordingly, we will adopt a 12 year
transition for new nonexempt Spanish language programming and a 14 year
transition period for pre-rule nonexempt Spanish language programming.
We will establish three benchmarks for new programming and one
benchmark for pre-rule programming similar to those adopted for
nonexempt English programming.
14. We reassert our previous conclusion that short-form advertising
is not covered by Section 713. As we stated in the R&O, while
programming and advertising may be treated the same in some contexts,
here we conclude that it is reasonable to define short-form advertising
as separate from programming and thus not subject it to the captioning
obligations.
15. In the R&O, we decided to adopt an enforcement mechanism based
on consumer complaints initially directed
[[Page 55961]]
to the video programming distributors (e.g., the broadcast station,
cable operator). We generally retain the enforcement procedures adopted
in the R&O and will continue to rely primarily on the complaint process
to enforce our captioning requirements. We will not adopt recordkeeping
or reporting requirements as they would impose unnecessary
administrative burdens on video programming distributors and the
Commission. On reconsideration, however, we believe it is important to
establish a means to further ensure compliance with our rules and we
plan to conduct random audits of captioning. In conducting such audits,
we may request the records of broadcasters or MVPDs or monitor the
captioning provided by individual networks. We believe that the
information gathered through these audits will be an important factor
in monitoring the implementation of the captioning requirements, assist
consumers should they find it necessary to file a complaint, and assist
video programming providers to comply with our rules.
16. We also clarify several rules in the Order in response to
issues raised in the petitions for reconsideration. We reiterated the
requirement that, during the transition period, video programming
providers must, at least, maintain substantially the same level of
captioning that they provided during the first six months of 1997. We
noted that this requirement was tempered by the word ``substantially''
to ensure flexibility in its enforcement. We explain that locally
produced non-news programming is exempt only if it has no repeat value.
We also clarify that network compensation and value of barter
transactions should be included in revenue calculations for exemptions
based on revenue.
Regulatory Flexibility Act Certification
17. As required by the Regulatory Flexibility Act (``RFA''), an
Initial Regulatory Flexibility Analysis (``IRFA'') was incorporated
into the Notice of Proposed Rulemaking (``NPRM'') in this proceeding.
The Commission sought written public comment on the expected impact of
the proposed policies and rules on small entities in the NPRM,
including comments on the IRFA. Based on the comments in response to
the NPRM, the Commission included a Final Regulatory Flexibility
Analysis (``FRFA'') into the R&O. While no petitioners seeking
reconsideration of the R&O raised issues directly related to the FRFA,
the Commission is amending the rules in a manner that may affect small
entities. Accordingly, this Supplemental Final Regulatory Flexibility
Analysis (``Supplemental FRFA'') addresses those amendments and
conforms to the RFA.
18. Need for Action and Objectives of the Rule: The 1996 Act added
a new Section 713 to the Communications Act of 1934 that inter alia
requires the Commission to develop rules to increase the availability
of video programming with closed captioning. The statutory objective of
the closed captioning provisions is to promote the increased
accessibility of video programming for persons with hearing
disabilities. The Commission adopted the R&O in this proceeding on
August 7, 1997, promulgating rules to implement this mandate. The Order
clarifies and refines these rules in conformance with Section 713.
19. Summary of Significant Issues Raised by the Public Comments in
Response to the FRFA: No parties address the FRFA in their petitions
for reconsideration, or any subsequent filings. We have, however,
addressed, on our own motion, steps taken to further minimize the
effect of these requirements on small entities.
20. Description and Estimate of the Number of Small Entities to
Which the Rules Will Apply: The RFA directs the Commission to provide a
description of and, where feasible, an estimate of the number of small
entities that may be affected by the proposed rules. The RFA defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small business
concern'' under Section 3 of the Small Business Act. 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'').
21. As noted, an FRFA was incorporated into the R&O. In that
analysis, the Commission described in detail the various kinds of small
business entities that may be affected by these rules. Those entities
consist of program producers and distributors, broadcast stations and
small multichannel video programming distributors including cable
system operators, multipoint distribution systems, direct broadcast
satellite services and home satellite dishes, open video systems and
satellite master antenna systems. In the Order, we address petitions
for reconsideration filed in response to the R&O. In this Supplemental
FRFA, we incorporate by reference the description and estimate of the
number of small entities from the previous FRFA in this proceeding,
subject to the following amendments.
22. Open Video Systems (``OVS''): As noted in the R&O the
definition of a small entity in the context of cable or other pay
television service includes all such companies generating $ 11million
or less in annual receipts. As of this date, the Commission has
approved five additional applications for OVS operators, bringing the
total number of certified operators to 14. Two more applications are
pending. Of the entities authorized to provide OVS service, several are
only recently approved and are not actually providing service and
generating revenue. Little financial information is available for the
many of entities authorized to provide OVS that are not yet
operational. Given that some of these entities have not yet begun to
generate revenues, we believe that our original conclusion that at
least some OVS operators qualify as small entities remains sound.
23. Local Multipoint Distribution Service (``LMDS''): As noted in
the R&O, the SBA has developed a definition of small entity for cable
and other pay television services which includes all such companies
generating $11 million or less in annual receipts. The Commission
concluded its LMDS spectrum auction on March 25, 1998. Of the 139
successful bidders, 93 qualified as small businesses. We are unable to
determine how many of these small businesses will use the available
spectrum to provide video programming services. We believe, however,
that our original determination that at least some of these licensees
will provide video programming services and will thus qualify as small
entities affected by our closed captioning requirements is correct.
24. Description of Reporting, Recordkeeping and Other Compliance
Requirements: We did not prescribe reporting requirements in the R&O
and have declined to do so in the Order. While parties representing
persons with hearing disabilities petitioned for the adoption of such
requirements on reconsideration, we believe that our enforcement
process alleviates the need for reporting and its associated burdens.
Thus, we will not impose recordkeeping requirements for video
programming distributors. Rather, we shall allow video programming
distributors to exercise their own discretion and only require that
they retain records sufficient to demonstrate compliance with our
rules. In order to further relieve small video programming distributors
of any unnecessary recordkeeping burden, we also permit
[[Page 55962]]
video programming distributors to rely on certifications from the
producers or owners of the programming to demonstrate compliance with
our closed captioning rules. At the same time we recognize the concerns
that the hearing disabled community has raised regarding the need to
monitor and ensure compliance with our closed captioning requirements.
Accordingly, on reconsideration we stated that the Commission intends
to conduct random audits of video programming as needed to ensure
compliance with the captioning requirements.
25. Steps Taken to Minimize Significant Economic Impact On Small
Entities and Significant Alternatives Considered: In R&O, we sought to
minimize the effect on small entities while making video programming
more accessible to persons with hearing disabilities. These efforts are
consistent with the Congressional goal of increasing the availability
of closed captioned programming while preserving the diversity of
available programming. The actions we are taking on reconsideration
further refine the closed captioning rules so as to advance the
Congressional goal and further minimize unnecessary burdens on small
entities. For example, we clarify the rules to exempt all programming
distributed by ITFS licensees pursuant to its permitted educational
operations regardless of whether the programming is produced by the
ITFS licensee or a third party. We establish an exemption for
instructional programming that is locally produced by public television
stations for use in grades K-12 and post secondary schools. We also
expand the existing new network exemption to provide the full four year
exemption to networks that commenced operations within four years of
the effective date of the closed captioning rules. This expansion of
the new network exemption provides relief to recently launched emerging
networks without profoundly affecting the overall availability of
captioned programming.
Ordering Clauses
26. Accordingly, it is ordered that the Petitions for
Reconsideration in MM Docket No. 95-176 which pertain to the closed
captioning of video programming are granted in part and denied in part,
as provided herein.
27. It is further ordered that, pursuant to authority found in
sections 4(i), 303(r), and 713 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303(r), and 613, Part 79 of the Commission's
rules is hereby amended. The amendments to 47 CFR 79.1 shall be
effective November 19, 1998.
28. It is further ordered that the Commission's Office of Public
Affairs, Reference Operations Division, shall send a copy of this Order
on Reconsideration, including the Supplemental Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with paragraph 603(a) of the Regulatory
Flexibility Act, Public Law 96-354, 94 Stat. 1164, 5 U.S.C. 601 et seq.
(1981).
List of Subjects in 47 CFR Part 79
Cable television, Closed captioning, Television.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
Part 79 of Title 47 of the Code of Federal Regulations is amended
as follows:
PART 79--CLOSED CAPTIONING OF VIDEO PROGRAMMING
1. The authority citation for part 79 continues to read as follows:
Authority: 47 U.S.C. 613.
2. Section 79.1 is amended by revising paragraphs (b), (d)(3),
(d)(7), (d)(8) and (d)(9), adding a new paragraph (d)(13), revising
(e)(3) and adding a new paragraph (e)(10) to read as follows:
Sec. 79.1 Closed captioning of video programming.
* * * * *
(b) Requirements for closed captioning of video programming.--(1)
Requirements for new English language programming. Video programming
distributors must provide closed captioning for nonexempt video
programming that is being distributed and exhibited on each channel
during each calendar quarter in accordance with the following
requirements:
(i) Between January 1, 2000, and December 31, 2001, a video
programming distributor shall provide at least 450 hours of captioned
video programming or all of its new nonexempt video programming must be
provided with captions, whichever is less;
(ii) Between January 1, 2002, and December 31, 2003, a video
programming distributor shall provide at least 900 hours of captioned
video programming or all of its new nonexempt video programming must be
provided with captions, whichever is less;
(iii) Between January 1, 2004, and December 31, 2005, a video
programming distributor shall provide at least an average of 1350 hours
of captioned video programming or all of its new nonexempt video
programming must be provided with captions, whichever is less; and
(iv) As of January 1, 2006, and thereafter, 100% of the programming
distributor's new nonexempt video programming must be provided with
captions.
(2) Requirements for pre-rule English language programming. (i)
After January 1, 2003, 30% of the programming distributor's pre-rule
nonexempt video programming being distributed and exhibited on each
channel during each calendar quarter must be provided with closed
captioning.
(ii) As of January 1, 2008, and thereafter, 75% of the programming
distributor's pre-rule nonexempt video programming being distributed
and exhibited on each channel during each calendar quarter must be
provided with closed captioning.
(3) Requirements for new Spanish language programming. Video
programming distributors must provide closed captioning for nonexempt
Spanish language video programming that is being distributed and
exhibited on each channel during each calendar quarter in accordance
with the following requirements:
(i) Between January 1, 2001, and December 31, 2003, a video
programming distributor shall provide at least 450 hours of captioned
Spanish language video programming or all of its new nonexempt Spanish
language video programming must be provided with captions, whichever is
less;
(ii) Between January 1, 2004, and December 31, 2006, a video
programming distributor shall provide at least 900 hours of captioned
Spanish language video programming or all of its new nonexempt Spanish
language video programming must be provided with captions, whichever is
less;
(iii) Between January 1, 2007, and December 31, 2009, a video
programming distributor shall provide at least an average of 1350 hours
of captioned Spanish language video programming or all of its new
nonexempt Spanish language video programming must be provided with
captions, whichever is less; and
(iv) As of January 1, 2010, and thereafter, 100% of the programming
distributor's new nonexempt Spanish language video programming must be
provided with captions.
(4) Requirements for Spanish language pre-rule programming. (i)
After January 1, 2005, 30% of the programming distributor's pre-rule
nonexempt Spanish language video
[[Page 55963]]
programming being distributed and exhibited on each channel during each
calendar quarter must be provided with closed captioning.
(ii) As of January 1, 2012, and thereafter, 75% of the programming
distributor's pre-rule nonexempt Spanish language video programming
being distributed and exhibited on each channel during each calendar
quarter must be provided with closed captioning.
(5) Video programming distributors shall continue to provide
captioned video programming at substantially the same level as the
average level of captioning that they provided during the first six (6)
months of 1997 even if that amount of captioning exceeds the
requirements otherwise set forth in this section.
* * * * *
(d) * * *
(3) Programming other than English or Spanish language. All
programming for which the audio is in a language other than English or
Spanish, except that scripted programming that can be captioned using
the ``electronic news room'' technique is not exempt.
* * * * *
(7) ITFS programming. Video programming transmitted by an
Instructional Television Fixed Service licensee pursuant to
Secs. 74.931 (a), (b) or (c) of the rules.
(8) Locally produced and distributed non-news programming with no
repeat value. Programming that is locally produced by the video
programming distributor, has no repeat value, is of local public
interest, is not news programming, and for which the ``electronic news
room'' technique of captioning is unavailable.
(9) Programming on new networks. Programming on a video programming
network for the first four years after it begins operation, except that
programming on a video programming network that was in operation less
than four (4) years on January 1,1998 is exempt until January 1, 2002.
* * * * *
(13) Locally produced educational programming. Instructional
programming that is locally produced by public television stations for
use in grades K-12 and post secondary schools.
(e) * * *
(3) Live programming or repeats of programming originally
transmitted live that are captioned using the so-called ``electronic
news room'' or ENR technique will be considered captioned, except that
effective January 1, 2000, and thereafter, the major national broadcast
television networks (i.e., ABC, CBS, Fox and NBC), affiliates of these
networks in the top 25 television markets as defined by Nielsen's
Designated Market Areas (DMAs) and national nonbroadcast networks
serving at least 50% of all homes subscribing to multichannel video
programming services shall not count ENR captioned programming towards
compliance with these rules. The live portions of noncommercial
broadcasters' fundraising activities that use automated software to
create a continuous captioned message will be considered captioned;
* * * * *
(10) In evaluating whether a video programming provider has
complied with the requirement that all new nonexempt video programming
must include closed captioning, the Commission will consider showings
that any lack of captioning was de minimis and reasonable under the
circumstances.
* * * * *
[FR Doc. 98-27989 Filed 10-19-98; 8:45 am]
BILLING CODE 6712-01-U