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


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 15 and 79

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


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

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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

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

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

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding pertaining to Section 202 of the CVAA, contact Diana 
Sokolow, [email protected], 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, 
[email protected], of the Engineering Division, Media Bureau, 
(202) 418-7000. For additional information concerning the Paperwork 
Reduction Act information collection requirements contained in this 
document, send an e-mail to [email protected] or contact Cathy Williams at 
(202) 418-2918.

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

[[Page 59964]]

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

Certifications if Captions Are Not Required

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

Petitions for Exemption Based on ``Economic Burden''

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

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

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

Summary of the Notice of Proposed Rulemaking

 I. Introduction

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

[[Page 59965]]

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

A. History of Closed Captioning

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

[[Page 59966]]

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

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

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[[Page 59967]]

C. Section 203 of the CVAA

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

    12. Taken together, these statutory provisions seek to encompass 
many devices on which consumers view video, such as portable media 
players, personal computers, televisions, and the devices consumers 
connect to their televisions to access programming via the Internet and 
other sources. As in Section 202(b), the Commission is required to 
prescribe regulations within six months of the VPAAC Report and to 
provide that entities may meet the requirements of these provisions 
through ``alternate means.'' \53\
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    \53\ Public Law 111-260, Sec.  203(d)(1), (e).
---------------------------------------------------------------------------

D. VPAAC Working Group 1 and Its Report

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

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

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

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

III. Section 202(b) of the CVAA

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

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

[[Page 59968]]

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

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

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

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

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

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

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

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

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

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

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

[[Page 59969]]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[[Page 59970]]

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

B. Schedule of Deadlines

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

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

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

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

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

[[Page 59971]]

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

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

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

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

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

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

C. Exemption Process Where Economically Burdensome

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

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

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

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

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

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

[[Page 59972]]

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

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

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

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

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

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

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

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

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

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

[[Page 59973]]

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

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

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

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

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

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

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

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

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

[[Page 59974]]

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

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

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

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

E. Technical Standards for IP-Delivered Video Programming

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

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

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

[[Page 59975]]

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

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

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

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

    42. Congress determined in the CVAA that an entity may meet the 
requirements of Section 202(b) of the CVAA ``through alternate means 
than those prescribed by regulations * * * if the requirements of this 
section are met, as determined by the Commission.'' \138\ The statute 
and legislative history do not elaborate upon the meaning of 
``alternate means'' in Section 202 of the CVAA, although the House 
Committee explained that in the context of Section 203, alternate means 
was intended ``to afford entities maximum flexibility in meeting the 
requirement that video programming delivered using Internet protocol be 
captioned,'' and that the Commission should ``provide some flexibility 
where technical constraints exist.'' \139\ We seek comment on how to 
define this term to best effectuate Congressional intent. For example, 
did Congress mean that the Commission should permit those subject to 
the IP closed captioning requirements to use alternate technical 
standards for the transmission and exhibition of IP closed captioning? 
\140\ We seek comment on the ``alternate means'' that we should 
consider permissible, with a goal of fostering technological 
advancement through some flexibility, and in recognition of the fact 
that a single standard may not be feasible for all VPDs/VPPs and VPOs 
in all circumstances. Should we require any ``alternate means'' to 
provide a viewing experience that is equal or superior to that 
otherwise available to the general public? If we decline to specify a 
particular standard for the interchange format or delivery format of 
IP-delivered video programming, is it still necessary for us to 
consider permissible ``alternate means''?
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    \138\ 47 U.S.C. 613(c)(3).
    \139\ H.R. Rep. No. 111-563 at 31.
    \140\ See Section III.E., supra (discussing technical standards 
for IP-delivered video programming).
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G. Complaint Procedures

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

[[Page 59976]]

VPOs to respond to complaints within 30 days, the Commission may 
lengthen the required response period on a case-by-case basis (for 
example, when it is difficult to determine which entity is responsible 
for the alleged violation). We seek comment on these proposed complaint 
procedures. As in the television context, should we permit those filing 
complaints alleging a violation of the closed captioning requirements 
for IP-delivered video programming to file the complaint directly with 
the VPD/VPP first,\148\ or is it preferable to require that all 
complaints come directly to the Commission in the first instance? If 
the Commission finds that a VPD/VPP or VPO has violated the 
requirements for closed captioning of IP-delivered video programming, 
what sanctions or remedies should it impose? \149\ We propose to 
adjudicate each complaint on its merits and employ the full range of 
sanctions and remedies available to the Commission under the Act.
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    \147\ This flexibility would enable the Commission to determine 
which of the entities involved--the VPD/VPP or VPO--is responsible.
    \148\ See 47 CFR 79.1(g)(1).
    \149\ We note that in 2004, a petition filed by consumer groups 
proposed a base forfeiture of $8,000 for violations of the 
Commission's closed captioning rules. See Telecommunications for the 
Deaf, Inc. et al. Petition for Rulemaking, RM-11065 (July 23, 2004). 
Petitioners included Telecommunications for the Deaf, Inc., the 
National Association of the Deaf, Self Help for Hard of Hearing 
People, the Association for Late Deafened Adults, Inc., and the Deaf 
and Hard of Hearing Consumer Advocacy Network (DHHCAN).
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    46. Complaints alleging a violation of the television closed 
captioning requirements can be filed online,\150\ or by fax or postal 
mail. We seek comment on whether the same options should be available 
for complaints alleging a violation of the closed captioning 
requirements for IP-delivered video programming. As in the Video 
Description Order, should we instead permit viewers to file complaints 
about a failure to comply with the closed captioning rules for IP-
delivered video programming by ``any reasonable means,'' including any 
method that would best accommodate the complainant? \151\ Should the 
Commission revise the existing complaint form for disability access 
complaints (Form 2000C) to request information specific to complaints 
involving IP closed captioning? To foster the Commission's efficient 
review of complaints, should the Commission decline to consider 
complaints that do not include certain information, and if so, what 
information should be required? Such information might include, for 
example: (i) The name and address of the complainant; (ii) the name and 
postal address, Web site, or e-mail address of the VPD/VPP and/or VPO 
against whom the complaint is alleged, and information sufficient to 
identify the video programming involved; (iii) information sufficient 
to identify the software or device used to view the program; (iv) a 
statement of facts sufficient to show that the VPD/VPP and/or VPO has 
violated or is violating the Commission's rules, and, if applicable, 
the date and time of the alleged violation; (v) the specific relief or 
satisfaction sought by the complainant; and (vi) the complainant's 
preferred format or method of response to the complaint.
---------------------------------------------------------------------------

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

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

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

IV. Section 203 of the CVAA

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

    48. Section 203 of the CVAA seeks to extend closed captioning 
requirements to the devices consumers use to access video 
programming.\156\ Specifically, Section 203(a) of the CVAA directs the 
Commission to require that the devices consumers use to receive or play 
back video programming are equipped to decode and display closed 
captioning,\157\ while Section 203(b) extends requirements to devices 
that record video and to the interconnection mechanisms that carry 
signals from these source devices to consumer equipment.\158\ In this 
section, we seek to address the specific classes of devices subject to 
these provisions, as well as those that fall into various statutory 
exemptions. Additionally, we address the issues of what functionality 
must be supported by these devices and whether that functionality may 
vary based on specific devices. However, while Section 203(a) of the 
CVAA significantly expands the requirement to implement closed 
captioning capabilities to essentially all apparatus, Section 203 also 
provides substantial limitations on this expanded definition. These 
limitations--(1) that implementation of closed captioning capability be 
achievable for apparatus with pictures screens less than 13 inches in 
size and for apparatus designed to record video programming transmitted 
simultaneously with sound \159\ (2) that the requirements do not apply 
to display-only monitors; \160\ and (3) that the Commission may waive 
the requirements for devices which derive their essential utility from 
uses other than video playback \161\--demand varying degrees of 
interpretation and clarification.
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    \156\ See S. Rep. No. 111-386 at 14; H.R. Rep. No. 111-563 at 
30-31.
    \157\ Public Law 111-260, Sec.  203(a).
    \158\ Public Law 111-260, Sec.  203(b).
    \159\ 47 U.S.C. 303(u)(2)(A), 303(z)(1).
    \160\ 47 U.S.C. 303(u)(2)(B).
    \161\ 47 U.S.C. 303(u)(2)(C).
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    49. All Apparatus. Section 203(a) of the CVAA requires that ``if 
technically feasible'' each ``apparatus designed to

[[Page 59977]]

receive or play back video programming transmitted simultaneously with 
sound * * * be equipped with built-in closed caption decoder circuitry 
or capability designed to display closed-captioned video programming.'' 
\162\ We seek comment on the issue of what constitutes an 
``apparatus.'' How should the Commission determine whether it is 
``technically feasible'' for apparatus to meet the requirements of 
Section 203? We note that neither the statute nor legislative history 
gives us guidance on a definition of apparatus. Nevertheless, we begin 
with the assumption that the term includes all hardware that is used in 
receiving or playing back video programming. At the same time, we note 
that the CVAA gives the Commission authority to waive the requirements 
of its rules requiring the display, render or pass through of closed 
captioning for apparatus or any class of apparatus ``(i) primarily 
designed for activities other than receiving or playing back video 
programming transmitted simultaneously with sound; or (ii) for 
equipment designed for multiple purposes, capable of receiving or 
playing video programming transmitted simultaneously with sound but 
whose essential utility is derived from other purposes.'' \163\
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    \162\ 47 U.S.C. 303(u)(1)(A).
    \163\ 47 U.S.C. 303(u)(2)(C).
---------------------------------------------------------------------------

    50. Therefore, we seek comment on how to determine whether hardware 
is primarily designed for receiving or playing back video programming 
transmitted simultaneously with sound, and how to determine whether 
hardware derives its essential utility from receiving and playing back 
video. The legislative history expanded on the availability of waivers 
by stating that the Commission may waive the Section 203 closed 
captioning requirements ``where, for instance, a consumer typically 
purchases a product for a primary purpose other than viewing video 
programming, and access to such programming is provided on an 
incidental basis.'' \164\ In making waiver decisions, the Commission 
generally considers whether special circumstances exist that warrant 
deviation from the general rule, and whether the waiver will serve the 
public interest.\165\ Accordingly, we seek comment on the factors that 
the Commission should evaluate in determining whether an apparatus is 
eligible for a waiver. Should we consider how the apparatus is designed 
and marketed? How should we consider the fact that different people may 
consider the same device as having a different ``essential utility''? 
In recognition of the fact that, as technology evolves, the ``essential 
utility'' of apparatus may change, should waivers be temporary, and if 
so, what should their duration be and what process should be used for 
renewing waivers? We invite examples of apparatus that are or are not 
primarily designed for receiving or playing back video programming 
transmitted simultaneously with sound, and examples of apparatus that 
do or do not derive their essential utility from receiving and playing 
back video. Where do devices such as video gaming consoles, cellular 
telephones, and tablet devices fit within these criteria? Are there are 
any specific classes of apparatus that warrant the establishment of a 
categorical or blanket waiver, or should all waivers be addressed case-
by-case? We note that personal computers and video gaming consoles are 
used by a large percentage of viewers of VPDs/VPPs.\166\ Should we make 
any special considerations for these devices? If the Commission 
considers waivers for a particular ``class'' of apparatus, what factors 
should we consider, and how should we determine what apparatus 
constitute a ``class''? Should the Commission adopt a process for 
determining whether to waive the closed captioning requirements of 
Section 203 of the CVAA, or should we handle waivers pursuant to 
Section 1.3 of our rules? \167\
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    \164\ See S. Rep. No. 111-386 at 14; H.R. Rep. No. 111-563 at 
30.
    \165\ Northeast Cellular Telephone Co., L.P. v. FCC, 897 F.2d 
1164, 1166 (DC Cir. 1990) (citing WAIT Radio v. FCC, 418 F.2d 1153, 
1159 (DC Cir. 1969)); see also 47 CFR 1.3.
    \166\ Nielsenwire, ``What Netflix Viewers Are Watching * * * And 
How,'' July 27, 2011 at http://blog.nielsen.com/nielsenwire/online_mobile/what-netflix-and-hulu-users-are-watching-and-how/ (visited 
August 30, 2011).
    \167\ See 47 CFR 1.3 (``Any provision of the [Commission's 
rules] may be waived by the Commission on its own motion or on 
petition if good cause therefor is shown.'').
---------------------------------------------------------------------------

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

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

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

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

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

[[Page 59978]]

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

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

    54. Recording Devices. In addition to devices that consumers use to 
directly view video, those that record video must also have closed-
captioning capability. Specifically, the CVAA added Section 303(z) to 
the Act, which requires that, ``if achievable * * * apparatus designed 
to record video programming * * * [must] enable the rendering or the 
pass-through of closed captions.'' \176\ Thus, we seek comment on 
codifying this requirement verbatim in our rules and interpreting 
``apparatus'' that are designed to ``record video programming'' to also 
include hardware-only products. We seek comment on whether we should 
also interpret ``apparatus'' that are designed to ``record video 
programming'' to include software-only products, such as software 
designed to enable a PC to function as a video recording platform. 
While some devices, such as digital video recorders, plainly appear to 
be covered by this section, other devices, such as network-connected 
hard drives, also can be used to record video. For example, home-
networking protocol suites, such as DLNA,\177\ permit networked 
devices, such as computers and hard-drives, to be used for video 
storage while control of those devices is accomplished by a combination 
of software running on the device itself and on devices accessing or 
manipulating the video stream. We seek comment on the proper scope of 
the definition of ``apparatus designed to record video programming.'' 
Additionally, to the extent the definition of ``achievable'' differs 
from that discussed above, we seek comment on determining the 
capabilities of recording devices relative to display devices.
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    \176\ 47 U.S.C. 303(z)(1).
    \177\ See Digital Living Network Alliance, http://www.dlna.org.
---------------------------------------------------------------------------

    55. Interconnection Mechanisms. Finally, the CVAA directs the 
Commission to regulate interconnection mechanisms. Specifically, the 
CVAA requires that ``interconnection mechanisms and standards for 
digital video source devices [be] available to carry from the source 
device to the consumer equipment the information necessary to permit or 
render the display of closed captions.'' \178\ We seek input on how 
this objective can best be achieved. Is it sufficient to require that 
intermediate devices, such as set-top boxes and digital video 
recorders, be capable of conveying closed captions to display devices 
and to assume that standards for interconnection will be developed as 
necessary? Does the Commission need to extend its regulations to 
manufacturers or standards bodies that develop and deploy these 
interconnection mechanisms to ensure that they are capable of conveying 
closed captioning information? Should the Commission take a more active 
role in requiring a particular standard? We additionally seek comment 
on what specific connections Congress intended to be covered by this 
provision. For example, component video connections and HDMI, used to 
transmit high definition video signals from a set-top box or computer 
to a television or monitor, do not carry closed captions.\179\ However, 
based on our requirements, those devices connected to the television or 
monitor via HDMI or component video would be required to render the 
captions prior to transmitting the video signal. Did Congress intend to 
cover home networking connections, such as WiFi or Multimedia Over Coax 
(MoCA), and if so, should we instead direct our attention to the 
protocol suites which use these interconnection technologies, such as 
DLNA? We seek comment on what it means to carry the necessary 
information to ``permit or render the display of closed captions'' and 
what existing technologies satisfy this requirement.
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    \178\ 47 U.S.C. 303(z)(2).
    \179\ See Does HDMI Support Closed Captioning? High Definition 
Multimedia Interface, Frequently Asked Questions http://www.hdmi.org/learningcenter/faq.aspx#117. Captions are rendered by 
the host device, such as a set-top box and transmitted in an open 
matter, rendered into the video stream. While this makes captioning 
available, it does not utilize the functionality built into the end 
device, which some consumers may prefer.
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B. Obligations Under Section 203 of the CVAA

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

[[Page 59979]]

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

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

    57. We seek comment on what standards, if any, the Commission 
should mandate to implement the goals of Section 203 of the CVAA. In 
particular, we seek comment on whether we should adopt a particular 
delivery file format that devices must support. The VPAAC Report 
discusses three use cases of how content can be distributed via the 
Internet to consumer devices: Use Case 1, where content is delivered to 
an unaffiliated device; Use Case 2, where content is delivered to a Web 
browser; and Use Case 3, where content is delivered to a managed device 
or application.\184\ The VPAAC Report concludes that Use Cases 2 and 3 
``require a specific standard distribution format based on standards 
developed within an open process by recognized industry standard-
setting organizations;'' however it does not identify what that 
standard should be.\185\ When the Commission initially adopted rules 
for closed captioning, it adopted certain standards for delivery and 
decoding of captions and made those standards mandatory for all devices 
capable of receiving television content.\186\ In those cases, however, 
a clear industry standard and consensus on the format already existed, 
and the standard was applied with respect to one television delivery 
standard. Furthermore, television programmers rarely maintain any 
relationship with the devices displaying the content they provide. In 
the Internet-delivery context, however, VPDs/VPPs deliver content in 
many different formats, each continually evolving, and a Commission-
mandated standard could restrict industry innovation. Conversely, 
Congress clearly envisioned consumers being able to access closed 
captions contained in any programming on any device that is capable of 
displaying the associated video, and a lack of standards could make 
this goal more difficult and costly to achieve.\187\ Furthermore, the 
relationship between the content provider and the device or software 
provider may be such that the VPP/VPD could contract with device 
manufacturers to support captions in the format the VPP/VPD chooses. 
With respect to Use Case 1, the VPAAC Report concludes that a common 
file format is required, and suggests SMPTE-TT as that format.\188\ We 
seek comment on whether we should require a particular delivery 
standard or standards to be supported on devices pursuant to Section 
203 of the CVAA. As an alternative, would a more general rule requiring 
that devices capable of receiving unaffiliated content from VPPs/VPDs 
be capable of decoding and rendering captions transmitted by VPPs/VPDs 
be preferable to achieve the goals of the CVAA?
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    \184\ Id. at 18-20.
    \185\ Id. at 27.
    \186\ See DTV Receiver Closed Captioning Order, FCC 00-259, 65 
FR 58467, September 29, 2000 (``DTV Receiver Closed Captioning 
Order''); TDCA Order.
    \187\ See S. Rep. No. 111-386 at 14; H.R. Rep. No. 111-563 at 
30.
    \188\ VPAAC Report at 27.
---------------------------------------------------------------------------

    58. Alternate Means of Compliance. The CVAA permits that ``an 
entity may meet the requirements of sections 303(u), 303(z), and 330(b) 
of the [Act] through alternate means than those prescribed by 
regulations * * * as determined by the Commission.'' \189\ We seek 
comment on a process by which the Commission may determine that the 
alternate means selected by a party nevertheless meet the requirements 
of the preceding sections. Additionally, are there some requirements 
above that cannot be met via alternate means, such as the use of a 
standardized interconnection or the functional requirements prescribed 
above? \190\
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    \189\ Public Law 111-260, Sec.  203(e).
    \190\ See para. 55, supra.
---------------------------------------------------------------------------

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

C. Schedule of Deadlines

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

[[Page 59980]]

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

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

V. Conclusion

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

VI. Procedural Matters

A. Initial Regulatory Flexibility Act Analysis

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

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

    \199\ Public Law 111-260, 124 Stat. 2751, Sec.  202(b) (2010). 
See also Amendment of Twenty-First Century Communications and Video 
Accessibility Act of 2010, Public Law 111-265, 124 Stat. 2795 (2010) 
(making technical corrections to the CVAA).
    \200\ See Public Law 111-260, Sec.  203.
---------------------------------------------------------------------------

    64. Closed captioning is an assistive technology that provides 
individuals who are deaf or hard of hearing with access to television 
programming. Closed captioning displays the audio portion of a 
television signal as printed words on the television screen. Existing 
regulations require the use of closed captioning on television.\201\ 
Until now, however, closed captioning has not been required for IP-
delivered video programming. That changed with the enactment of the 
CVAA. Specifically, Section 202(b) of the CVAA revised Section 713 of 
the Communications Act of 1934, as amended, to require the Commission 
to ``revise its regulations to require the provision of closed 
captioning on video programming delivered using Internet protocol that 
was published or exhibited on television with captions after the 
effective date of such regulations.'' \202\
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    \201\ See 47 CFR 79.1 (setting forth the requirements for closed 
captioning of video programming on television).
    \202\ 47 U.S.C. 613(c)(2)(A).
---------------------------------------------------------------------------

    65. The CVAA also required the Chairman of the Commission to 
establish an advisory committee known as the Video Programming 
Accessibility Advisory Committee (``VPAAC'').\203\ Section 201(e)(1) of 
the CVAA required the VPAAC to submit a report on closed captioning to 
the Commission six months after its first meeting, or by July 13, 
2011.\204\ The VPAAC submitted this report on July 12, 2011.\205\ By 
statute, within six months of the submission of the VPAAC Report, the 
Commission must issue final regulations to require the provision of 
closed captioning on IP-delivered video programming.\206\ Accordingly, 
the Commission must revise its regulations by January 12, 2012.\207\ By 
the same date, pursuant to Section 203 of the CVAA, the Commission must 
revise its regulations to include any technical standards, protocols, 
and procedures needed for the transmission of closed captioning 
delivered using IP, to ensure that certain apparatus are capable of 
rendering, passing through, or otherwise permitting the display of 
closed captions for end users.\208\
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    \203\ Public Law 111-260, Sec.  201(a).
    \204\ Id., Sec.  201(e)(1).
    \205\ See First Report of the Video Programming Accessibility 
Advisory Committee on the Twenty-First Century Communications and 
Video Accessibility Act of 2010: Closed Captioning of Video 
Programming Delivered Using Internet Protocol, July 12, 2011, 
available at http://transition.fcc.gov/cgb/dro/VPAAC/First_VPAAC_Report_to_the_FCC_7-11-11_FINAL.pdf (``VPAAC Report'').
    \206\ 47 U.S.C. 613(c)(2)(A).
    \207\ See id.
    \208\ Public Law 111-260, Sec.  203(a)-(b), (d).
---------------------------------------------------------------------------

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

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

[[Page 59981]]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[[Page 59982]]

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

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

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

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

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

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

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

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

    74. Satellite Telecommunications Providers. Two economic census 
categories address the satellite industry. The first category has a 
small business size standard of $15 million or less in average annual 
receipts, under SBA rules.\244\ The second has a size standard of $25 
million or less in annual receipts.\245\
---------------------------------------------------------------------------

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

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

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

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

[[Page 59983]]

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

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

    78. In addition, an element of the definition of ``small business'' 
is that the entity not be dominant in its field of operation. We are 
unable at this time to define or quantify the criteria that would 
establish whether a specific television station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which rules may apply do not exclude any television station from the 
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also, as noted, an additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. We note that it is difficult at times 
to assess these criteria in the context of media entities and our 
estimates of small businesses to which they apply may be over-inclusive 
to this extent.
    79. Open Video Services. Open Video Service (OVS) systems provide 
subscription services.\258\ The open video system (``OVS'') framework 
was established in 1996, and is one of four statutorily recognized 
options for the provision of video programming services by local 
exchange carriers.\259\ The OVS framework provides opportunities for 
the distribution of video programming other than through cable systems. 
Because OVS operators provide subscription services,\260\ OVS falls 
within the SBA small business size standard covering cable services, 
which is ``Wired Telecommunications Carriers.'' \261\ The SBA has 
developed a small business size standard for this category, which is: 
all such firms having 1,500 or fewer employees. To gauge small business 
prevalence for the OVS service, the Commission relies on data currently 
available from the U.S. Census for the year 2007. According to that 
source, there were 3,188 firms that in 2007 were Wired 
Telecommunications Carriers. Of these, 3,144 operated with less than 
1,000 employees, and 44 operated with more than 1,000 employees. 
However, as to the latter 44 there is no data available that shows how 
many operated with more than 1,500 employees. Based on this data, the 
majority of these firms can be considered small.\262\ In addition, we 
note that the Commission has certified some OVS operators, with some 
now providing service.\263\ Broadband service providers (``BSPs'') are 
currently the only significant holders of OVS certifications or local 
OVS franchises.\264\ The Commission does not have financial or 
employment information regarding the entities authorized to provide 
OVS, some of which may not yet be operational. Thus, at least some of 
the OVS operators may qualify as small entities. The Commission further 
notes that it has certified approximately 45 OVS operators to serve 75 
areas, and some of these are currently providing service.\265\ 
Affiliates of Residential Communications Network, Inc. (``RCN'') 
received approval to operate OVS systems in New York City, Boston, 
Washington, DC, and other areas. RCN has sufficient revenues to assure 
that they do not qualify as a small business entity. Little financial 
information is available for the other entities that are authorized to 
provide OVS and are not yet operational. Given that some entities 
authorized to provide OVS service have not yet begun to generate 
revenues, the Commission concludes that up to 44 OVS operators (those 
remaining) might qualify as small businesses that may be affected by 
the rules and policies adopted herein.
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    \258\ See 47 U.S.C. 573.
    \259\ 47 U.S.C. 571(a)(3)-(4). See 13th Annual Report, 24 FCC 
Rcd at 606, para. 135.
    \260\ See 47 U.S.C. 573.
    \261\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers''; http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
    \262\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
    \263\ A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html.
    \264\ See 13th Annual Report, 24 FCC Rcd at 606-07, para. 135. 
BSPs are newer firms that are building state-of-the-art, facilities-
based networks to provide video, voice, and data services over a 
single network.
    \265\ See http://www.fcc.gov/mb/ovs/csovscer.html (current as of 
February 2007).

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[[Page 59984]]

    80. Cable and Other Subscription Programming. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in operating studios and facilities 
for the broadcasting of programs on a subscription or fee basis. * * * 
These establishments produce programming in their own facilities or 
acquire programming from external sources. The programming material is 
usually delivered to a third party, such as cable systems or direct-to-
home satellite systems, for transmission to viewers.'' \266\ To gauge 
small business prevalence in the Cable and Other Subscription 
Programming industries, the Commission relies on data currently 
available from the U.S. Census for the year 2007. According to that 
source, which supersedes data from the 2002 Census, there were 396 
firms that in 2007 were engaged in production of Cable and Other 
Subscription Programming. Of these, 386 operated with less than 1,000 
employees, and 10 operated with more than 1,000 employees. However, as 
to the latter 10 there is no data available that shows how many 
operated with more than 1,500 employees. Thus, under this category and 
associated small business size standard, the majority of firms can be 
considered small.\267\
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    \266\ U.S. Census Bureau, 2007 NAICS Definitions, ``515210 Cable 
and Other Subscription Programming''; http://www.census.gov/naics/2007/def/ND515210.
    \267\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
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    81. Motion Picture and Video Production. The Census Bureau defines 
this category as follows: ``This industry comprises establishments 
primarily engaged in producing, or producing and distributing motion 
pictures, videos, television programs, or television commercials.'' 
\268\ We note that firms in this category may be engaged in various 
industries, including cable programming. Specific figures are not 
available regarding how many of these firms produce and/or distribute 
programming for cable television. To gauge small business prevalence in 
the Motion Picture and Video Production industries, the Commission 
relies on data currently available from the U.S. Census for the year 
2007. The size standard established by the SBA for this business 
category is that annual receipts of $29.5 million or less determine 
that a business is small.\269\ According to the 2007 Census, there were 
9,095 firms that in 2007 were engaged in Motion Picture and Video 
Production. Of these, 8,995 had annual receipts of $24,999,999 or less, 
and 100 had annual receipts ranging from not less that $25,000,000 to 
$100,000,000 or more.\270\ Thus, under this category and associated 
small business size standard, the majority of firms can be considered 
small.
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    \268\ U.S. Census Bureau, 2007 NAICS Definitions, NAICS Code 
512110, http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=512110&search=2007%20NAICS%20Search.
    \269\ 13 CFR 121.201, NAICS Code 512110.
    \270\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds&_name=EC0700A1&-_skip=200&-ds_name=EC0751SSSZ5&-_lang=en.
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    82. Motion Picture and Video Distribution. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in acquiring distribution rights and 
distributing film and video productions to motion picture theaters, 
television networks and stations, and exhibitors.'' \271\ We note that 
firms in this category may be engaged in various industries, including 
cable programming. Specific figures are not available regarding how 
many of these firms produce and/or distribute programming for cable 
television. To gauge small business prevalence in the Motion Picture 
and Video Distribution industries, the Commission relies on data 
currently available from the U.S. Census for the year 2007. Based on 
the SBA size standard of annual receipts of 29.5 million dollars,\272\ 
and according to that 2007 Census source, which supersedes data from 
the 2002 Census, there were 450 firms that in 2007 were engaged in 
Motion Picture and Video Distribution. Of that number, 434 received 
annual receipts of $24,999,999 or less, and 16 received annual receipts 
ranging from $25,000,000 to $100,000,000 or more. Thus, under this 
category and associated small business size standard, the majority of 
firms can be considered small.\273\
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    \271\ See U.S. Census Bureau, 2007 NAICS Definitions, NAICS Code 
512110, http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=512110&search=2007%20NAICS%20Search.
    \272\ 13 CFR 121.201, NAICS Code 512110.
    \273\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=200&-ds_name=EC0751SSSZ5&-_lang=en.
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    83. Small Incumbent Local Exchange Carriers (LECs). We have 
included small incumbent local exchange carriers in this present RFA 
analysis. As noted above, a ``small business'' under the RFA is one 
that, inter alia, meets the pertinent small business size standard 
(e.g., a telephone communications business having 1,500 or fewer 
employees), and ``is not dominant in its field of operation.'' \274\ 
The SBA's Office of Advocacy contends that, for RFA purposes, small 
incumbent local exchange carriers are not dominant in their field of 
operation because any such dominance is not ``national'' in scope.\275\ 
We have therefore included small incumbent local exchange carriers in 
this RFA analysis, although we emphasize that this RFA action has no 
effect on Commission analyses and determinations in other, non-RFA 
contexts.
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    \274\ 15 U.S.C. 632.
    \275\ Letter from Jere W. Glover, Chief Counsel for Advocacy, 
SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small 
Business Act contains a definition of ``small-business concern,'' 
which the RFA incorporates into its own definition of ``small 
business.'' See 15 U.S.C. 632(a) (``Small Business Act''); 5 U.S.C. 
601(3) (``RFA''). SBA regulations interpret ``small business 
concern'' to include the concept of dominance on a national basis. 
See 13 CFR 121.102(b).
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    84. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. The appropriate 
size standard under SBA rules is for the category Wired 
Telecommunications Carriers. Under that size standard, such a business 
is small if it has 1,500 or fewer employees.\276\ Census Bureau data 
for 2007, which now supersede data from the 2002 Census, show that 
there were 3,188 firms in this category that operated for the entire 
year. Of this total, 3,144 had employment of 999 or fewer, and 44 firms 
had had employment of 1,000 or more. According to Commission data, 
1,307 carriers reported that they were incumbent local exchange service 
providers.\277\ Of these 1,307 carriers, an estimated 1,006 have 1,500 
or fewer employees and 301 have more than 1,500 employees.\278\ 
Consequently, the Commission estimates that most providers of local 
exchange service are small entities that may be affected by the rules 
and policies proposed in the NPRM. Thus under this category and the 
associated small business size standard, the majority of these 
incumbent local exchange service providers can be considered small 
providers.\279\
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    \276\ 13 CFR 121.201, NAICS code 517110.
    \277\ See Trends in Telephone Service, Federal Communications 
Commission, Wireline Competition Bureau, Industry Analysis and 
Technology Division at Table 5.3 (Sept. 2010) (``Trends in Telephone 
Service'').
    \278\ See id.
    \279\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
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    85. Competitive Local Exchange Carriers (Competitive LECs), 
Competitive Access Providers (CAPs), Shared-Tenant Service Providers, 
and Other Local Service Providers. Neither the Commission nor the SBA 
has

[[Page 59985]]

developed a small business size standard specifically for these service 
providers. The appropriate size standard under SBA rules is for the 
category Wired Telecommunications Carriers. Under that size standard, 
such a business is small if it has 1,500 or fewer employees.\280\ 
Census Bureau data for 2007, which now supersede data from the 2002 
Census, show that there were 3,188 firms in this category that operated 
for the entire year. Of this total, 3,144 had employment of 999 or 
fewer, and 44 firms had had employment of 1,000 employees or more. Thus 
under this category and the associated small business size standard, 
the majority of these Competitive LECs, CAPs, Shared-Tenant Service 
Providers, and Other Local Service Providers can be considered small 
entities.\281\ According to Commission data, 1,442 carriers reported 
that they were engaged in the provision of either competitive local 
exchange services or competitive access provider services.\282\ Of 
these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees 
and 186 have more than 1,500 employees.\283\ In addition, 17 carriers 
have reported that they are Shared-Tenant Service Providers, and all 17 
are estimated to have 1,500 or fewer employees.\284\ In addition, 72 
carriers have reported that they are Other Local Service 
Providers.\285\ Of the 72, seventy have 1,500 or fewer employees and 
two have more than 1,500 employees.\286\ Consequently, the Commission 
estimates that most providers of competitive local exchange service, 
competitive access providers, Shared-Tenant Service Providers, and 
Other Local Service Providers are small entities that may be affected 
by rules adopted pursuant to the NPRM.
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    \280\ 13 CFR 121.201, NAICS code 517110.
    \281\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds&_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
    \282\ See Trends in Telephone Service at Table 5.3.
    \283\ See id.
    \284\ See id.
    \285\ See id.
    \286\ See id.
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    86. Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. The Census Bureau defines this category as 
follows: ``This industry comprises establishments primarily engaged in 
manufacturing radio and television broadcast and wireless 
communications equipment. Examples of products made by these 
establishments are: Transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment.'' \287\ The SBA has developed a small business 
size standard for Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing, which is: All such firms having 
750 or fewer employees. According to Census Bureau data for 2007, there 
were a total of 939 establishments in this category that operated for 
part or all of the entire year. According to Census bureau data for 
2007, there were a total of 919 firms in this category that operated 
for the entire year. Of this total, 771 had less than 100 employees and 
148 had more than 100 employees.\288\ Thus, under that size standard, 
the majority of firms can be considered small.
---------------------------------------------------------------------------

    \287\ The NAICS Code for this service 334220. See 13 CFR 
121.201. See also http://factfinder.census.gov/servlet/IBQTable?--
bm=y&-fds--name=EC0700A1&-geo--id=&---skip=300&-ds--name=EC0731SG2&-
--lang=en''.
    \288\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=4500&-ds_name=EC0731SG3&-_lang=en..
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    87. Audio and Video Equipment Manufacturing. The SBA has classified 
the manufacturing of audio and video equipment under in NAICS Codes 
classification scheme as an industry in which a manufacturer is small 
if it has less than 750 employees.\289\ Data contained in the 2007 U.S. 
Census indicate that 491 establishments operated in that industry for 
all or part of that year. In that year, 376 establishments had between 
1 and 19 employees; 80 had between 20 and 99 employees; and 35 had more 
than 100 employees.\290\ Thus, under the applicable size standard, a 
majority of manufacturers of audio and video equipment may be 
considered small.
---------------------------------------------------------------------------

    \289\ 13 CFR 121.201, NAICS Code 334310.
    \290\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=300&-ds_name=EC0731I1&-_lang=en.
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    88. Internet Publishing and Broadcasting and Web Search Portals. 
The Census Bureau defines this category to include ``* * * 
establishments primarily engaged in (1) publishing and/or broadcasting 
content on the Internet exclusively or (2) operating Web sites that use 
a search engine to generate and maintain extensive databases of 
Internet addresses and content in an easily searchable format (and 
known as Web search portals). The publishing and broadcasting 
establishments in this industry do not provide traditional (non-
Internet) versions of the content that they publish or broadcast. They 
provide textual, audio, and/or video content of general or specific 
interest on the Internet exclusively. Establishments known as Web 
search portals often provide additional Internet services, such as e-
mail, connections to other Web sites, auctions, news, and other limited 
content, and serve as a home base for Internet users.''
    89. In this category, the SBA has deemed an Internet publisher or 
Internet broadcaster or the provider of a Web search portal on the 
Internet to be small if it has fewer than 500 employees.\291\ For this 
category of manufacturers, Census data for 2007, which supersede 
similar data from the 2002 Census, show that there were 2,705 such 
firms that operated that year.\292\ Of those 2,705 firms, 2,682 
(approximately 99%) had fewer than 500 employees and, thus, would be 
deemed small under the applicable SBA size standard.\293\ Accordingly, 
the majority of establishments in this category can be considered small 
under that standard.
---------------------------------------------------------------------------

    \291\ 13 CFR 121.201, NAICS Code 519130.
    \292\ U.S. Census Bureau, American FactFinder, 2007 Economic 
Census, Industry Series, Industry Statistics by Employment Size, 
NAICS code 519130 (rel. Nov. 19, 2010); http://factfinder.census.gov.
    \293\ Id.
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    90. Closed Captioning Services. These entities would be indirectly 
affected by our proposed action. The SBA has developed two small 
business size standards that may be used for closed captioning 
services. The two size standards track the economic census categories, 
``Teleproduction and Other Postproduction Services'' and ``Court 
Reporting and Stenotype Services.''
    91. The first category of Teleproduction and Other Postproduction 
Services ``comprises establishments primarily engaged in providing 
specialized motion picture or video postproduction services, such as 
editing, film/tape transfers, subtitling, credits, closed captioning, 
and animation and special effects.'' The relevant size standard for 
small businesses in these services is an annual revenue of less than 
$29.5 million.\294\ For this category, Census Bureau Data for 2007 
indicate that there were 1,605 firms that operated in this category for 
the entire year. Of that number, 1,597 had receipts totaling less than 
$29,500,000.\295\ Consequently we estimate that the majority of 
Teleproduction and Other Postproduction Services firms are small

[[Page 59986]]

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

    \294\ U.S. Census Bureau, 2002 NAICS Definitions, ``512191 
Teleproduction and Other Postproduction Services''; http://www.census.gov/epcd/naics02/def/NDEF512.HTM. The size standard is 
$29.5 million.
    \295\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo&_id=&-_skip=300&-ds_name=EC0751SSSZ5&-_lang=en.
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    92. The second category of Court Reporting and Stenotype Services 
``comprises establishments primarily engaged in providing verbatim 
reporting and stenotype recording of live legal proceedings and 
transcribing subsequent recorded materials.'' The size standard for 
small businesses in these services is an annual revenue of less than $7 
million.\296\ For this category, Census Bureau data for 2007 show that 
there were 2,706 firms that operated for the entire year. Of this 
total, 2,590 had annual receipts of under $5 million, and 19 firms had 
receipts of $5 million to $9,999,999.\297\ Consequently, we estimate 
that the majority of Court Reporting and Stenotype Services firms are 
small entities that might be affected by our proposed action.
---------------------------------------------------------------------------

    \296\ U.S. Census Bureau, 2002 NAICS Definitions, ``561492 Court 
Reporting and Stenotype Services''; http://www.census.gov/epcd/naics02/def/NDEF561.HTM.The size standard is $7 million.
    \297\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=400&-ds_name=EC0756SSSZ4&-_lang=en.
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4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements
    93. The NPRM proposes requiring video programming owners (``VPOs'') 
to send program files to video programming distributors (``VPDs'') and 
video programming providers (``VPPs'') either with captions, or with a 
dated certification that captions are not required for a reason stated 
in the certification.\298\ When a program newly becomes subject to the 
captioning requirements, the NPRM proposes requiring VPOs to provide 
VPDs/VPPs with any revised certifications and newly required captions 
(if captions were not previously delivered) within seven days of the 
underlying change.\299\ VPDs/VPPs would be required to retain all such 
VPO certifications for so long as they make the certified programming 
available to end users through a distribution method that uses IP, and 
for at least one calendar year thereafter.\300\
---------------------------------------------------------------------------

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

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

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

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

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

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

    97. Overall, in proposing rules governing the closed captioning of 
IP-delivered video programming, we believe that we have appropriately 
balanced the interests of individuals who are deaf or hard of hearing 
against the interests of the entities who will be subject to the rules, 
including those that are smaller entities. Our efforts are consistent 
with Congress' goal of ``updat[ing] the communications laws to help 
ensure that individuals with disabilities are able to fully utilize 
communications services and equipment and better access video 
programming.'' \305\
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    \305\ See S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 
(2010); H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19 (2010).
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6. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    98. None.

B. Initial Paperwork Reduction Act of 1995 Analysis

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

C. Ex Parte Rules

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

[[Page 59987]]

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

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

D. Filing Requirements

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

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

     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/
'' or the Federal eRulemaking Portal: http://www.regulations.gov .
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
    [cir] All hand-delivered or messenger-delivered paper filings for 
the Commission's Secretary must be delivered to Room TW-A325 at FCC 
Headquarters, 445 12th Street, SW., Washington, DC 20554. All hand 
deliveries must be held together with rubber bands or fasteners. Any 
envelopes must be disposed of before entering the building. The filing 
hours are 8 a.m. to 7 p.m.
    [cir] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    [cir] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street, SW., Washington, DC 20554.
    102. Availability of Documents. Comments, reply comments, and ex 
parte submissions will be publically available online via ECFS.\309\ 
These documents will also be available for public inspection during 
regular business hours in the FCC Reference Information Center, which 
is located in Room CY-A257 at FCC Headquarters, 445 12th Street, SW., 
Washington, DC 20554. The Reference Information Center is open to the 
public Monday through Thursday from 8 a.m. to 4:30 p.m. and Friday from 
8 a.m. to 11:30 a.m.
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    \309\ Documents will generally be available electronically in 
ASCII, Microsoft Word, and/or Adobe Acrobat.
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    103. People with Disabilities: To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an e-mail to [email protected] or call the 
FCC's Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 
202-418-0432 (tty).
    104. Additional Information. For additional information on this 
proceeding pertaining to Section 202 of the CVAA, contact Diana 
Sokolow, [email protected], 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, 
[email protected], of the Engineering Division, Media Bureau, 
(202) 418-7000.

VII. Ordering Clauses

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

List of Subjects

47 CFR Part 15

    Communications equipment, Labeling, and Reporting and recordkeeping 
requirements.

47 CFR Part 79

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

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

PART 15--RADIO FREQUENCY DEVICES

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

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

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

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

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

[[Page 59988]]

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


Sec.  15.125  Closed caption decoder requirements for video devices.

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


Sec.  15.126  Closed caption requirements for video recording devices.

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

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

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

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

    7. Add Sec.  79.4 to read as follows:


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

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

[[Page 59989]]

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

[[Page 59990]]

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

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