[Federal Register Volume 76, Number 211 (Tuesday, November 1, 2011)]
[Proposed Rules]
[Pages 67397-67399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28181]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[CG Docket No. 11-175; FCC 11-159]


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

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission proposes to continue 
utilizing the factors used for the ``undue burden'' exemption standard 
when evaluating future petitions seeking individual exemptions under 
the new economically burdensome standard contained in the CVAA. In 
addition, the Commission proposes to replace all current references to 
``undue burden'' in the Commission's closed captioning rules with the 
term ``economically burdensome'' to correspond with the new language 
reflected in the Twenty-First Century Communications and Video 
Accessibility Act of 2010 (CVAA). The intended effect of this action is 
to ensure that the Commission's rules conform to section 202 of the 
CVAA.

DATES: Comments are due on or before December 1, 2011. Reply comments 
are due on or before December 16, 2011.

ADDRESSES: You may submit comments identified by [CG Docket No. 11-
175], by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the Commission's Electronic Comment 
Filing System (ECFS), through the Commission's Web site http://fjallfoss.fcc.gov/ecfs2/. Filers should follow the instructions 
provided on the Web site for submitting comments. For ECFS filers, in 
completing the

[[Page 67398]]

transmittal screen, filers should include their full name, U.S. Postal 
service mailing address, and CG Docket No. 11-175.
     Paper filers: Parties who choose to file by paper must 
file an original and four copies of each filing. Filings can be sent by 
hand or messenger delivery, by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mail (although the 
Commission continues to experience delays in receiving U.S. Postal 
Service mail). All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St. SW., Room TW-A325, 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.
     Commercial Mail sent by 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.
     U.S. Postal Service first-class, Express, and Priority 
mail should be addressed to 445 12th Street SW., Washington, DC 20554.
    In addition, parties must serve one copy of each pleading with the 
Commission's duplicating contractor, Best Copy and Printing, Inc., 445 
12th Street SW., Room CY-B402, Washington, DC 20554, or via email to 
[email protected].

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

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Notice of Proposed Rulemaking (NPRM), document FCC 11-159, adopted 
October 20, 2011, and released October 20, 2011, in CG Docket No. 11-
175, seeking comment on (1) continuing to utilize the factors used for 
the ``undue burden'' exemption standard contained in section 713(e) of 
the Act and codified in Sec.  79.1(f)(2) of the Commission's rules, 
when evaluating future petitions seeking individual exemptions under 
the new economically burdensome standard contained in the CVAA and (2) 
replacing all current references to ``undue burden'' in section 79.1(f) 
of the rules with the term ``economically burdensome'' to correspond 
with the new language reflected in the CVAA. Simultaneously, with the 
NPRM, the Commission also issued a Memorandum Opinion and Order (MO&O) 
and Order in CG Docket No. 06-181. The full text of FCC 11-159 and 
copies of any subsequently filed documents in this matter will be 
available for public inspection and copying during regular business 
hours at the FCC Reference Information Center, Portals II, 445 12th 
Street SW., Room CY-A257, Washington, DC 20554. FCC 11-159 and copies 
of subsequently filed documents in this matter may also be purchased 
from the Commission's duplicating contractor at Portals II, 445 12th 
Street SW., Room CY-B402, Washington, DC 20554. Customers may contact 
the Commission's duplicating contractor at its Web site, http://www.bcpiweb.com, or by calling 1-(800) 378-3160. FCC 11-159 can also be 
downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro/trs.caption.
    Pursuant to 47 CFR 1.415 and 1.419, interested parties may file 
comments and reply comments on or before the dates indicated in the 
DATES section of this document. Comments and reply comments must 
include a short and concise summary of the substantive discussion and 
questions raised in the document FCC 11-159. The Commission further 
directs all interested parties to include the name of the filing party 
and the date of the filing on each page of their comments and reply 
comments. Comments and reply comments must otherwise comply with 47 CFR 
1.48 and all other applicable sections of the Commission's rules.
    Pursuant to 47 CFR 1.1200 et seq., this matter shall be treated as 
a ``permit-but-disclose'' proceeding in accordance with the 
Commission's ex parte rules. 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 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 Sec.  1.1206(b) of the Commission's rules. In 
proceedings governed by Sec.  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.
    People with Disabilities: 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).

Initial 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. In document FCC 11-159, the Commission proposes to continue 
utilizing the factors used for the ``undue burden'' exemption standard 
contained in section 713(e) of the Act and codified in Sec.  79.1(f)(2) 
of the Commission's rules, when evaluating future petitions seeking 
individual exemptions under the new economically burdensome standard 
contained in the CVAA. The Commission tentatively concludes that 
Congress intended no substantive change in these factors and that, 
notwithstanding the change in nomenclature from an ``undue burden'' to 
an ``economically burdensome'' standard, Congress intended for the 
Commission to continue using the undue burden factors. The Commission 
seeks comment on this tentative

[[Page 67399]]

conclusion. The Commission also seek comment on any other 
interpretations of the term ``economically burdensome'' that the 
Commission should consider in evaluating requests for individual 
exemptions from the closed captioning requirements.
    2. At present, the Commission's rules, at Sec.  79.1(f), contain 
various references to the prior undue burden standard. The Commission 
proposes to replace all current references to ``undue burden'' in Sec.  
79.1(f) of its rules with the term ``economically burdensome'' to 
correspond with the new language reflected in the CVAA and to make 
clear that petitioners seeking individual exemptions from the 
captioning rules must now show that providing captions on their 
programming would be ``economically burdensome.'' The Commission seeks 
comment on this proposed action.

Initial Regulatory Flexibility Certification

    3. The Regulatory Flexibility Act of 1980, as amended (RFA), 
requires that an initial regulatory flexibility analysis be prepared 
for notice-and-comment rule making proceedings, unless the agency 
certifies that ``the rule will not, if promulgated, have a significant 
economic impact on a substantial number of small entities.'' 5 U.S.C. 
605(b). The RFA generally defines the term ``small entity'' as having 
the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' 5 U.S.C. 
601(6). In addition, the term ``small business'' has the same meaning 
as the term ``small business concern'' under the Small Business Act. 5 
U.S.C. 601(3). A ``small business concern'' is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
Small Business Administration (SBA). 15 U.S.C. 632.
    4. In document FCC 11-159, the Commission proposes to revise the 
references to ``undue burden'' contained in Sec.  79.1(f) of its 
rules--``Procedures for exemptions based on undue burden''--to 
``economically burdensome'' as required by the. No substantive changes 
to the existing rule beyond this change in terminology are proposed. 
Since the change is only a change in terminology, there is no burden of 
compliance on regulated entities subject to these rules. No action is 
required that would impose any monetary costs or burdens of compliance 
on any regulated entity. The Commission concludes there will be no 
economic impact by this rule change on small business entities or 
consumers. Therefore, since there will be no economic impact of any 
kind, the Commission certifies that the proposals in document FCC 11-
159, if adopted, will not have any significant economic impact on a 
substantial number of small entities. Therefore, the question about 
impact to small entities is moot.
    5. The Commission will send a copy of document FCC 11-159, 
including a copy of the Initial Regulatory Flexibility Certification, 
to the Chief Counsel for Advocacy of the SBA.

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.
    The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of document FCC 11-159, 
including the Initial Regulatory Flexibility Certification, to the 
Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 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.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 79 as follows:

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

    1. 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.

    2. Section 79.1 is amended by revising paragraphs (f)(1), (2), (3), 
(4), (10), and (11) to read as follows:


Sec.  79.1  Closed captioning of video programming.

* * * * *
    (f) Procedures for exemptions based on economic burden. (1) A video 
programming provider, video programming producer or video programming 
owner may petition the Commission for a full or partial exemption from 
the closed captioning requirements. Exemptions may be granted, in whole 
or in part, for a channel of video programming, a category or type of 
video programming, an individual video service, a specific video 
program or a video programming provider upon a finding that the closed 
captioning requirements will be economically burdensome.
    (2) A petition for an exemption must be supported by sufficient 
evidence to demonstrate that compliance with the requirements to closed 
caption video programming would be economically burdensome. The term 
``economically burdensome'' means significant difficulty or expense. 
Factors to be considered when determining whether the requirements for 
closed captioning are economically burdensome include:
    (i) The nature and cost of the closed captions for the programming;
    (ii) The impact on the operation of the provider or program owner;
    (iii) The financial resources of the provider or program owner; and
    (iv) The type of operations of the provider or program owner.
    (3) In addition to these factors, the petition shall describe any 
other factors the petitioner deems relevant to the Commission's final 
determination and any available alternatives that might constitute a 
reasonable substitute for the closed captioning requirements including, 
but not limited to, text or graphic display of the content of the audio 
portion of the programming. The extent to which the provision of closed 
captions is economically burdensome shall be evaluated with regard to 
the individual outlet.
    (4) An original and two (2) copies of a petition requesting an 
exemption based on the economically burdensome standard, and all 
subsequent pleadings, shall be filed in accordance with Sec.  0.401(a) 
of this chapter.
* * * * *
    (10) The Commission may deny or approve, in whole or in part, a 
petition for an economically burdensome exemption from the closed 
captioning requirements.
    (11) During the pendency of an economically burdensome 
determination, the video programming subject to the request for 
exemption shall be considered exempt from the closed captioning 
requirements.
* * * * *
[FR Doc. 2011-28181 Filed 10-31-11; 8:45 am]
BILLING CODE 6712-01-P