[Federal Register Volume 76, Number 211 (Tuesday, November 1, 2011)]
[Rules and Regulations]
[Pages 67377-67378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28179]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[CG Docket No. 06-181; FCC 11-159]


Anglers for Christ Ministries, Inc., New Beginning Ministries; 
Petitioners; Interpretation of Economically Burdensome Standard

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission grants an Application for 
Review challenging the Anglers Order, and reverses the two exemptions 
granted in the Anglers Order and the 296 exemptions subsequently 
granted in reliance on the Anglers Order. The intended effect of this 
action is to ensure that the Commission evaluates petitions for 
exemption from the captioning rules in the way intended by the 
Communications Act (Act).

DATES: Effective November 1, 2011.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Traci Randolph, Consumer and 
Governmental Affairs Bureau, Disability Rights Office, at (202) 418-
0569 or email [email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Memorandum Opinion and Order (MO&O), document FCC 11-159, adopted 
October 20, 2011, and released October 20, 2011, in CG Docket No. 06-
181. Simultaneously with the MO&O, the Commission also issued an Order 
(Order) in CG Docket No. 06-181, and a Notice of Proposed Rulemaking 
(NPRM) in CG Docket No. 11-175. The Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send 
copies of FCC 11-159 via certified mail, return receipt requested to 
counsel for or the last known address for each of the petitioners named 
in this matter by November 3, 2011. Each of the petitions noted in 
document FCC 11-159 Appendix A that were the subject of the Application 
for Review shall be dismissed by January 18, 2012. Affected petitioners 
may file new petitions in accordance with the statute and Commission 
rules by January 18, 2012. Any such petitioner who does not file a new 
petition in accordance with the statute and Commission rules by January 
18, 2012 must begin providing closed captioning of its programming 
beginning on January 19, 2012. The full text of document FCC 11-159 and 
copies of any subsequently filed documents in this matter will be 
available for public inspection and copying via ECFS, and during 
regular business hours at the FCC Reference Information Center, Portals 
II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. They may 
also be purchased from the Commission's duplicating contractor, Best 
Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-
B402, Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-
5563, or Internet: http://www.bcpiweb.com. Document FCC 11-159 can also 
be downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro/caption. Appendix A associated with FCC 11-159 
listing the Bureau Letter Orders is available at http://www.fcc.gov/cgb/dro/caption.
    To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an email to [email protected] or call the Consumer and Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Paperwork Reduction Act of 1995 Analysis

    Document FCC 11-159 does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. In addition, therefore, it does not contain 
any new or modified information collection burden for small business 
concerns with fewer than 25 employees, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).

Synopsis

    1. Section 713 of the Act allows the Commission to grant individual 
exemptions, which are to be considered on a case-by-case basis upon 
submission of a petition to the Commission. Section 713(d)(3) of the 
Act, as originally enacted, permitted the Commission to grant such 
individual closed captioning exemptions to a provider, owner, or 
producer of video programming that petitioned the Commission, upon a 
showing that the closed caption requirements would ``result in an undue 
burden.'' Section 713(e) of the Act

[[Page 67378]]

defines ``undue burden'' to mean ``significant difficulty or expense,'' 
and directs the Commission to consider the following factors in making 
an undue burden determination: (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. The petitioner also may present for the Commission's 
consideration ``any other factors the petitioner deems relevant to the 
Commission's final determination,'' including alternatives that might 
constitute a reasonable substitute for closed captioning.
    2. Commission rules require the Commission to place any petition 
seeking an individual exemption from the closed captioning requirements 
under section 713(d)(3) of the Act on public notice, after which 
parties are given an opportunity to provide comments and petitioners 
are given an opportunity to reply to those comments. During the 
pendency of the petition, the programming that is the subject of the 
petition is exempt from the closed captioning rules.
    3. On September 11, 2006, the Consumer and Governmental Affairs 
Bureau (CGB) released an Order (Anglers Order), 21 FCC Rcd 10094, 
granting exemptions to two petitioners--Anglers for Christ Ministries, 
Inc., and New Beginning Ministries--in a manner that deviated from the 
Act and the Commission's rules. The CGB then granted 301 individual 
petitions for exemption relying on the new standard established in the 
Anglers Order, also in a manner that deviated from the Act and the 
Commission's rules.
    4. On October 12, 2006, a group of consumer organizations filed an 
Application for Review and a Petition for Emergency Stay requesting the 
Commission to rescind the Anglers Order and the hundreds of exemptions 
that were based on the Anglers Order.
    5. In FCC 11-159, the Commission grants the relief sought in the 
Application for Review, and reverses exemptions granted to Anglers and 
New Beginning in the Anglers Order. The Commission concludes that the 
reasoning used in the Anglers Order for evaluating requests for 
exemption from the closed captioning rules on the basis of undue burden 
under section 713(d)(3) is not supported by the Act, its legislative 
history, or the Commission's implementing regulations and Orders. 
Specifically, the Commission reverses these exemptions because it finds 
that: (1) It was not appropriate to grant exemptions based on the non-
commercial nature and lack of remunerative value of Angler's and New 
Beginning's programming; (2) the Anglers Order should not have placed 
substantial reliance on Anglers' and New Beginning's non-profit status; 
(3) the presumption created in the Anglers Order, that future 
exemptions would be granted to non-profit entities for whom the 
provision of closed captions would ``curtail other activities important 
to [their] mission,'' is an unworkable standard and not an appropriate 
factor for undue burden determinations; (4) neither Anglers nor New 
Beginning should have received permanent exemptions; and (5) the 
Anglers Order failed to consider whether petitioners solicited 
captioning assistance from their video programming distributors, as 
required by Commission precedent. Accordingly, the Commission rejects 
the undue burden criteria used in Anglers, and affirms instead the 
undue burden analyses previously applied to decisions that predate the 
Anglers Order.
    6. In addition, the Commission reverses the hundreds of exemptions 
that were based on the rationale in the Anglers Order. As a substantive 
matter, the Commission finds that each of these exemptions cannot stand 
because each relied on the Anglers Order's rationale. Additionally, the 
Commission reverses the exemptions because none of the orders analyzed 
the individual circumstances of the petitioners under the ``undue 
burden'' criteria, as required under the Act and the Commission's 
rules. Finally, the orders were procedurally flawed because they 
waived, without justification, the Commission's public notice 
requirements for undue burden exemption petitions.
    7. Each of the petitioners affected by document FCC 11-159 shall be 
provided with a copy of document FCC 11-159 and notified, by letter 
sent by first class mail, that it may file a new petition for a closed 
captioning exemption, consistent with the requirements of the 
Commission's rules and document FCC 11-159.

Congresssional Review Act

    The Commission will send a copy of document FCC 11-159 in a report 
to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act.

Ordering Clauses

    Pursuant to the authority contained in sections 4, 5, 303, and 713 
of the Communications Act of 1934, as amended, 47 U.S.C. 154, 155, 303, 
and 613, and Sec. Sec.  1.115 and 1.411 of the Commission's rules, 47 
CFR 1.115, 1.411, FCC 11-159 is adopted.
    Pursuant to Sec.  1.115 of the Commission's rules, 47 CFR 1.115, 
the Consumer Organizations' Application for Review of the Anglers Order 
and the Bureau Letter Orders is granted to the extent indicated in the 
item.
    The Petition for Emergency Stay, filed by the Consumer 
Organizations is dismissed as moot.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2011-28179 Filed 10-31-11; 8:45 am]
BILLING CODE 6712-01-P