[Federal Register Volume 78, Number 127 (Tuesday, July 2, 2013)]
[Rules and Regulations]
[Pages 39619-39628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15718]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket No. 11-154; FCC 13-84]


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

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission affirms, modifies, and clarifies certain 
decisions adopted in the Report and Order in MB Docket No. 11-154 
regarding closed captioning requirements for video programming 
delivered using Internet protocol (``IP'') and apparatus used by 
consumers to view video programming. The action is taken in response to 
three petitions for reconsideration of the Report and Order, which 
adopted rules governing the closed captioning requirements for the 
owners, providers, and distributors of IP-delivered video programming 
and rules governing the closed captioning capabilities of certain 
apparatus on which consumers view video programming.

DATES: Effective August 1, 2013.

FOR FURTHER INFORMATION CONTACT: Diana Sokolow, [email protected], 
or Maria Mullarkey, [email protected], of the Policy Division, 
Media Bureau, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration, FCC 13-84, adopted on June 13, 2013 and released on 
June 14, 2013. The full text of this document is available for public 
inspection and copying during regular business hours in the FCC 
Reference Center, Federal Communications Commission, 445 12th Street, 
SW., Room CY-A257, Washington, DC 20554. This document will also be 
available via ECFS at http://fjallfoss.fcc.gov/ecfs/. Documents will be 
available electronically in ASCII, Microsoft Word, 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 
email to [email protected] or calling the Commission's Consumer and 
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Paperwork Reduction Act of 1995 Analysis

    This document 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).

Summary of the Order on Reconsideration

I. Introduction

    1. In this Order on Reconsideration, we affirm, modify, and clarify 
certain decisions adopted in the Report and Order in MB Docket No. 11-
154 regarding closed captioning requirements for video programming 
delivered using Internet protocol (``IP'') and apparatus used by 
consumers to view video programming. The actions we take will provide 
the industry and consumers with certainty about the scope of the 
captioning obligations before the January 1, 2014 compliance deadline 
for apparatus.
    2. Specifically, we address three petitions for reconsideration of 
the Report and Order, which adopted rules governing the closed 
captioning requirements for the owners, providers, and distributors of 
IP-delivered video programming and rules governing the closed 
captioning capabilities of certain apparatus on which consumers view 
video programming. First, we address the Petition for Reconsideration 
of the Consumer Electronics Association (``CEA'') by: (1) Granting 
narrow class waivers for certain apparatus that are primarily designed 
for activities other than receiving or playing back video programming, 
while denying CEA's broader request that the Commission narrow the 
scope of Sec.  79.103 of its rules; (2) denying CEA's request that 
removable media players are not subject to the closed captioning 
requirements but, at the same time, temporarily extending the 
compliance deadlines for Blu-ray players as well as for those DVD 
players that do not currently render or pass through captions, pending 
resolution of the Further Notice of Proposed Rulemaking (``FNPRM''); 
\1\ and (3) granting CEA's request to modify the January 1, 2014 
deadline applicable to apparatus to refer only to the date of 
manufacture, and not to the date of importation, shipment, or sale. 
Second, we deny the Petition for Reconsideration of TVGuardian, LLC 
(``TVGuardian''), which requests that the Commission reconsider its 
decision to allow video programming providers and distributors to 
enable the rendering or pass through of captions to end users and 
instead to require video programming providers and distributors, and 
digital source devices, to pass through closed captioning data to 
consumer equipment. Third, we address the Petition for Reconsideration 
of Consumer Groups by: (1) deferring resolution of whether to 
reconsider the Commission's decision to exclude video clips from the 
scope of the IP closed captioning rules, and directing the Media Bureau 
to issue a Public Notice to seek updated information on this topic 
within six months; and (2) issuing an FNPRM to obtain further 
information necessary to determine whether the Commission should impose 
synchronization requirements on device manufacturers. Our goal in this 
proceeding remains to implement Congress's intent to better enable 
individuals who are deaf or hard of hearing to view video programming. 
In considering the requests made in the petitions for reconsideration, 
we have evaluated the effect on consumers who are deaf or hard of 
hearing as well as the cost of compliance to affected entities.
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    \1\ The FNPRM, adopted with the Order on Reconsideration, is 
published elsewhere in this publication.
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II. Background

    3. On October 8, 2010, President Obama signed into law the Twenty-
First Century Communications and Video Accessibility Act of 2010 
(``CVAA''). The CVAA required the Commission, by January 12, 2012, to 
establish closed captioning rules for the owners, providers, and 
distributors of IP-delivered video programming, and for certain 
apparatus on which consumers view video programming. The CVAA also 
required the Commission to establish an advisory committee known as the 
Video Programming Accessibility

[[Page 39620]]

Advisory Committee (``VPAAC''), which submitted its statutorily 
mandated report on closed captioning of IP-delivered video programming 
to the Commission on July 12, 2011 (``VPAAC First Report''). The 
Commission initiated this proceeding in September 2011, and it adopted 
the Report and Order on January 12, 2012. In the NPRM and the Report 
and Order, the Commission provided extensive background information 
regarding the history of closed captioning, IP-delivered closed 
captioning, applicable provisions of the CVAA, the VPAAC First Report, 
and the evolution of video programming distribution, which we need not 
repeat here.
    4. The Report and Order was published in the Federal Register on 
March 30, 2012. CEA, TVGuardian, and Consumer Groups each filed a 
timely petition for reconsideration within 30 days of the Federal 
Register publication date. Each of the petitions for reconsideration is 
discussed in turn below.

III. Order On Reconsideration

A. Petition for Reconsideration of the Consumer Electronics Association

1. Scope of the Apparatus Closed Captioning Rules
    5. As explained below, we address CEA's claims regarding the scope 
of the Commission's apparatus closed captioning rules, adopted pursuant 
to section 203 of the CVAA, by: (1) Affirming the Commission's decision 
that, to determine what an apparatus was ``designed to'' accomplish, we 
should consider the capabilities of the apparatus and not the 
manufacturer's subjective intent; (2) revising the note to paragraph 
(a) of Sec.  79.103 of our rules to be more consistent with the 
statute; and (3) exempting through waiver certain narrow classes of 
apparatus that are primarily designed for activities unrelated to 
receiving or playing back video programming \2\ transmitted 
simultaneously with sound.
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    \2\ Herein we use the phrase ``video programming'' as the CVAA 
defines the term, which is ``programming by, or generally considered 
comparable to programming provided by a television broadcast 
station, but not including consumer-generated media. . . .'' 47 
U.S.C. 613(h)(2).
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    6. Meaning of ``designed to.'' We affirm the Commission's decision 
in the Report and Order that the determination of whether an apparatus 
was ``designed to receive or play back video programming transmitted 
simultaneously with sound'' and therefore covered by section 203 of the 
CVAA, should turn on the capabilities of the apparatus, not the 
manufacturer's intent. CEA argues that the statutory phrase ``designed 
to'' suggests that the closed captioning apparatus rules may only reach 
apparatus that the manufacturer intends to receive, play back, or 
record video programming.\3\ We disagree. Nowhere does the statute 
reference the ``intent'' underlying the design and manufacture of an 
apparatus.
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    \3\ Consumer Groups point out that CEA fails to add any 
substance to its argument on this issue from what it argued during 
the rulemaking proceeding, and argue that the Commission should 
reject the argument again. CEA disagrees, citing to specific new 
facts and arguments that it presented in its petition, and arguing 
that reconsideration is warranted to serve the public interest.
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    7. We disagree with CEA that Congress meant its use of the word 
``designed'' to impose a consideration of the manufacturer's intent. 
Instead, we reiterate our finding in the Report and Order that we 
should look to the device's functionality, i.e., whether it is capable 
of receiving or playing back video programming, to determine what the 
device was designed to accomplish. CEA's proposed approach of 
considering the manufacturer's intent would allow the manufacturer 
unilaterally to dictate whether an apparatus falls within the scope of 
the rules, which could harm consumers by making compliance with the 
apparatus closed captioning requirements effectively voluntary. Such an 
approach would not be consistent with Congress's intent to ``ensure[] 
that devices consumers use to view video programming are able to 
display closed captions,'' because devices that consumers actually use 
to view video programming might not have closed captioning capability 
if manufacturers could evade our requirements by claiming that they did 
not intend such use. CEA has not raised any new arguments that persuade 
us that the Commission's reasoning in the Report and Order was 
incorrect. Accordingly, we affirm our findings in the Report and Order 
and deny CEA's petition for reconsideration on this issue.
    8. Definition of video player. We revise our definition of 
``apparatus'' to make clear that the ``video players'' it includes are 
those capable of displaying video programming transmitted 
simultaneously with sound. The note to paragraph (a) of Sec.  79.103 of 
our rules currently reads: ``Apparatus includes the physical device and 
the video players that manufacturers install into the devices they 
manufacture before sale, whether in the form of hardware, software, or 
a combination of both, as well as any video players that manufacturers 
direct consumers to install after sale.'' CEA argues that the 
Commission should revise the note to Sec.  79.103(a) of our rules to 
replace the term ``video player'' with ``video programming player,'' 
and that we should define a ``video programming player'' as ``a 
component, application, or system that is specifically intended by the 
manufacturer to enable access to video programming, not video in 
general.'' CEA claims that its approach would be consistent with 
Congress's intent to limit the application of the apparatus closed 
captioning rules to apparatus containing a subset of video players, not 
all video players, and that the Commission's approach in the Report and 
Order exceeded its statutory authority by going beyond this intent. 
Consumer Groups indicate their broad opposition to CEA's arguments, but 
they do not make more specific assertions regarding the definition of 
``video players'' subject to our rules.
    9. To address CEA's argument that our rules should only reach a 
subset of video players, and to make the language in our rule more 
consistent with the statute, we revise the note to Sec.  79.103(a) of 
our rules to replace references to ``video players'' with ``video 
player(s) capable of displaying video programming transmitted 
simultaneously with sound.'' Here, as elsewhere in the rules adopted in 
the Report and Order, we intend the term ``video programming'' to have 
the same meaning it was given in the CVAA. Accordingly, a video player 
that is not capable of displaying programming provided by, or generally 
considered comparable to programming provided by, a television 
broadcast station, excluding consumer-generated media, is not subject 
to the rules. For example, a video player that is only capable of 
displaying home videos that a consumer recorded on the device is not 
``capable of displaying video programming transmitted simultaneously 
with sound.'' We believe that by clarifying the language of our rules 
to specify video players that are capable of displaying ``video 
programming transmitted simultaneously with sound,'' we will address 
CEA's fundamental concern that our definition of ``apparatus'' should 
be consistent with the CVAA.
    10. We decline to replace the term ``video player'' with ``video 
programming player'' in the note to Sec.  79.103(a). CEA's proposed 
definition of ``video programming player'' relies upon a consideration 
of the manufacturer's intent, by defining a ``video programming 
player'' as ``a component, application, or system that is specifically 
intended by the

[[Page 39621]]

manufacturer to enable access to video programming.'' As discussed 
above, we disagree with CEA that we should look to manufacturer intent. 
In any event, such a change is unnecessary because the revised 
definition we adopt in this Order on Reconsideration accomplishes CEA's 
goal of making the definition no broader than Congress intended.
    11. Narrow class waivers for certain apparatus. Even with the 
clarification above that our closed captioning apparatus rules cover 
video players capable of displaying video programming transmitted 
simultaneously with sound, we find a waiver to be appropriate for 
certain narrow classes of apparatus. For example, digital still cameras 
may be covered by our apparatus rules because they may enable consumers 
to use a memory card to view video programming via the apparatus's 
video player. Accordingly, in response to CEA's petition for 
reconsideration, we now exempt through waiver certain narrow classes of 
apparatus that are ``primarily designed'' for activities unrelated to 
receiving or playing back video programming transmitted simultaneously 
with sound. The CVAA provides the Commission with authority, on its own 
motion or in response to a petition, to waive the apparatus closed 
captioning requirements for any apparatus or class of apparatus 
``primarily designed for activities other than receiving or playing 
back video programming transmitted simultaneously with sound.'' The 
Report and Order stated that such waivers will be addressed on a case-
by-case basis and rejected overly broad waiver requests made by several 
commenters. CEA argues that certain apparatus, such as digital still 
cameras and consumer video cameras, should not be subject to our rules 
because their manufacturers did not intend these apparatus to be used 
for receiving or playing back video programming. Although, for the 
reasons stated above, we do not agree that our analysis turns on the 
manufacturer's intent, we agree with CEA that these types of devices 
should not be subject to our rules and, as described below, we grant 
waivers to those devices that meet the statutory criteria for waiver as 
described below.
    12. We grant a waiver pursuant to section 303(u)(2)(C)(i) for two 
classes of apparatus that we find, based on the standard described 
below, are ``primarily designed for activities other than receiving or 
playing back video programming transmitted simultaneously with sound.'' 
Upon consideration of that standard, we conclude that the following two 
classes of apparatus qualify for waiver: (i) devices that are primarily 
designed to capture and display still and/or moving images consisting 
of consumer-generated media, or of other images that are not video 
programming as defined under the CVAA and our rules, and that have 
limited capability to display video programming transmitted 
simultaneously with sound; \4\ and (ii) devices that are primarily 
designed to display still images and that have limited capability to 
display video programming transmitted simultaneously with sound.\5\ In 
determining whether an apparatus or class of apparatus falls within the 
scope of the ``primarily designed'' waiver, we look at the various 
functions and capabilities of the apparatus or class of apparatus. 
Where the apparatus's ability to display video programming, as that 
term is defined in the CVAA and our rules, is only incidental, then we 
will determine that such apparatus is ``primarily designed for 
activities other than receiving or playing back video programming 
transmitted simultaneously with sound.'' In determining whether an 
apparatus's ability to display video programming is incidental, we 
objectively look at the activities for which consumers use the 
apparatus, based on the apparatus's functions and capabilities and the 
ease with which consumers can use the apparatus to receive or play back 
video programming.\6\ Again, the manufacturer's subjective intent is 
not considered in this analysis.
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    \4\ This category includes, for example, digital still cameras, 
digital video cameras, baby monitors, security cameras, digital 
video camera microscopes, digital playback binoculars (which act as 
a combination of a binocular and a digital camera), and digital 
probes for viewing and playing video of enclosed spaces (which 
capture still and/or moving images of spaces that are difficult to 
reach). One factor critical to our waiver analysis is that for the 
listed devices, consumers use the video playback feature or function 
to play back the consumer-generated images (still or moving) taken 
by the device; but it would take additional effort by the consumer 
to adapt the device to access video programming. By contrast, this 
category does not include devices such as cell phones that capture 
images but that consumers use for other purposes, including 
receiving or playing back video programming transmitted 
simultaneously with sound, as evidenced, for example, by the 
inclusion of Internet capability on such devices. Finally, we 
emphasize that the list of devices identified above is intended to 
be merely illustrative, and not exhaustive, of the types of devices 
that qualify under this waiver class.
    \5\ This category includes, for example, digital picture frames. 
It does not include digital picture frames that are primarily 
designed to display still photographs and video, because consumers 
could use such frames to display video programming, and thus the 
frames could operate much like a television screen.
    \6\ We find that in general, the devices about which CEA 
expressed specific concerns (digital still cameras, digital video 
cameras, baby monitors, security cameras, digital video camera 
microscopes, digital playback binoculars, digital picture frames 
that display photos, and digital probes for viewing and playing 
video of enclosed spaces) have only an incidental ability to view 
video programming, if there is any such capability, because 
consumers purchase the devices for activities unrelated to receiving 
or playing back video programming (for example, in the case of 
digital still cameras, for taking photographs), and consumers cannot 
easily use the devices to receive or play back video programming.
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    13. For example, applying this analysis to digital cameras, we find 
that it would be difficult for consumers to view video programming on 
digital cameras with no ability to receive content from the Internet 
because doing so would require transferring video programming to a 
memory card on another device, and then inserting the memory card into 
the camera. The inconvenience of taking these steps in order to view 
video programming on the camera screen, including the fact that a 
camera lacks the full panoply of playback controls typically used to 
view video programming, leads us to conclude that the device's ability 
to display video programming is incidental. Accordingly, digital 
cameras are an example of a device that is subject to the waiver as 
part of the first class of apparatus described above: devices that are 
primarily designed to capture and display still and/or moving images 
consisting of consumer-generated media, or of other images that are not 
video programming as defined under the CVAA and our rules, and that 
have limited capability to display video programming transmitted 
simultaneously with sound. In contrast, if a digital camera includes a 
general purpose operating system such as Android, and it can receive 
content from the Internet and easily display video programming 
transmitted simultaneously with sound in that manner, then its ability 
to display video programming will be considered to be more than 
incidental because it includes more video playback controls (via its 
Internet connectivity) and the ability to receive content from the 
Internet suggests that consumers use the apparatus to view video 
programming available online.
    14. As stated above, under the test described herein, we find the 
following two classes of devices will qualify for waiver: (i) devices 
that are primarily designed to capture and display still and/or moving 
images consisting of consumer-generated media, or of other images that 
are not video programming as defined under the CVAA and our rules, and 
that have limited capability to display video programming transmitted 
simultaneously with sound; and (ii)

[[Page 39622]]

devices that are primarily designed to display still images and that 
have limited capability to display video programming transmitted 
simultaneously with sound. We find that identifying the classes of 
apparatus that qualify for waiver rather than identifying a finite set 
of specific devices will provide industry with adequate certainty and 
will alleviate the need for manufacturers to seek individual waivers 
for each and every device that meets the specified criteria for the 
waiver class.\7\ If it is unclear whether a particular apparatus 
qualifies for the waiver described herein, or if the manufacturer seeks 
a waiver pursuant to a separate provision of the CVAA that authorizes 
waivers for multi-purpose devices, then the device manufacturer may 
file a waiver request, which we will consider on a case-by-case basis.
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    \7\ We find that there is good cause to grant the waivers. 
Specifically, the waivers would serve the public interest by 
avoiding imposing captioning compliance costs on apparatus where 
there is no evidence that consumers purchase such apparatus to 
receive or play back video programming transmitted simultaneously 
with sound. Additionally, the waivers are narrow and consistent with 
the CVAA: they apply only to apparatus primarily designed for 
activities other than receiving or playing back video programming 
transmitted simultaneously with sound, where any ability to display 
video programming is only incidental.
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    15. Although CEA would have preferred that the Commission amend its 
rules so that they do not encompass certain devices,\8\ we find that 
our approach of defining narrow class waivers serves the objectives of, 
and is most consistent with, the CVAA, which specifically grants us 
authority to waive the closed captioning requirements for specific 
classes of apparatus.\9\ As explained above, we thus exercise our 
discretion to proceed by waiver consistent with the statute. We expect 
that the class waivers granted herein will provide manufacturers with 
certainty as to the status of the devices subject to the waivers, and 
thus, will not stifle innovation.
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    \8\ CEA also argues that the presence of a waiver mechanism 
cannot save or justify an irrational rule.
    \9\ Manufacturers are free to file additional requests for 
waiver with respect to other apparatus or classes of apparatus and 
we will rule on those requests based upon the facts presented. The 
CVAA provides the Commission with the authority to waive the 
apparatus closed captioning requirements based on the apparatus's 
primary purpose either in response to a petition by a manufacturer 
or on its own motion. 47 U.S.C. 303(u)(2)(C). Thus, we reject 
Consumer Groups' claims that we should decline to act on CEA's 
request in this Order on Reconsideration and instead should require 
manufacturers to file individual requests for waiver. We find that 
addressing the waivers herein is the most administratively efficient 
approach, and we note that Consumer Groups have not objected on the 
merits to the grant of the waivers for these narrow classes of 
apparatus.
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2. Application of the Apparatus Rules to Removable Media Players
    16. CEA requests that the Commission reconsider its legal analysis 
that concludes that removable media players are apparatus covered by 
Sec.  79.103 of the Commission's rules, and thus must be equipped with 
capability to display closed-captioned programming. Although we deny 
CEA's petition for reconsideration on this issue, we find that some DVD 
players currently satisfy the closed captioning requirements of the 
CVAA. With regard to other DVD players as well as Blu-ray players, we 
temporarily extend the deadline for compliance with our apparatus 
closed captioning rules pending resolution of the FNPRM on this 
issue.\10\
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    \10\ Although DVD players generally are single-purpose devices, 
manufacturers often include Blu-ray players in multi-purpose 
devices. The extension granted herein applies only to the removable 
media playback function of a DVD or Blu-ray player, and it does not 
apply to any other function of a device that contains a DVD or Blu-
ray player. For example, if a Blu-ray player also records video 
programming or receives or plays back IP-delivered video 
programming, then the extension does not apply with respect to the 
non-removable media playback function.
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    17. As an initial matter, we reject two statutory arguments CEA 
makes in support of its request to exempt removable media players from 
the scope of the apparatus closed captioning rules. First, we reject 
CEA's argument that the phrase ``transmitted simultaneously with 
sound'' appearing in section 203 requires transmission by wire or 
radio, and not merely the act of a user playing back video programming. 
CEA has reiterated its previous arguments regarding this issue, arguing 
again that ``transmitted'' means sent across a distance by wire or 
radio. The Commission has already considered, addressed, and rejected 
these arguments in the Report and Order. We reaffirm the Commission's 
prior analysis that the phrase ``transmitted simultaneously with 
sound'' describes how video programming is conveyed from the device to 
the end user, and not how the video programming arrives at the 
device.\11\
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    \11\ Section 203 of the CVAA expressly applies to ``apparatus 
designed to receive or play back video programming transmitted 
simultaneously with sound.'' 47 U.S.C. 303(u)(1) (emphasis added). 
Accordingly, we reject CEA's claim that the Commission's 
interpretation of ``transmitted simultaneously with sound'' as 
describing how the video programming is conveyed from the device to 
the end user is inconsistent with section 2(a) of the Communications 
Act of 1934, as amended (the ``Act''), which generally limits the 
Commission's jurisdiction to ``interstate and foreign communication 
by wire or radio'' and ``does not extend to the playback function of 
a consumer electronics device designed to play back content that is 
outside the scope of the Commission's authority.'' Rather, the plain 
language of the CVAA states that the Commission's apparatus closed 
captioning rules apply to apparatus that play back video programming 
transmitted simultaneously with sound, and this specific grant of 
jurisdiction is not limited by the authority granted in section 2(a) 
of the Act. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 
384-85 (1992) (``it is a commonplace of statutory construction that 
the specific governs the general''). Nonetheless, industry members 
have provided new factual evidence regarding DVD and Blu-ray 
players, which persuades us to grant the extension discussed below.
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    18. Second, we reject CEA's claim that Congress did not intend to 
reach removable media players within the scope of the closed captioning 
requirements, and that their inclusion thus exceeds Commission 
authority. CEA has reiterated its previous arguments regarding this 
issue, arguing that ``Congress meant to extend coverage to devices that 
play back content that was sent to the device by means (e.g., via IP) 
other than traditional broadcasting or cable service,'' and not to 
``extend[] captioning requirements to removable media players.'' The 
Commission has already considered, addressed, and rejected these 
arguments in the Report and Order. We reaffirm the Commission's prior 
analysis in this proceeding, finding that Congress indicated that 
section 203 of the CVAA applies to ``apparatus designed to receive or 
play back video programming,'' and it did not limit the scope of 
covered apparatus from reaching apparatus that only play back video 
programming as CEA claims.
    19. DVD players. Having rejected CEA's statutory arguments, we find 
that some DVD players currently satisfy the closed captioning 
requirements of the CVAA. For other DVD players we temporarily extend 
the deadline for compliance with our apparatus closed captioning rules 
pending resolution of the FNPRM on this issue. The apparatus closed 
captioning rules and the CVAA itself require apparatus to ``be equipped 
with built-in closed caption decoder circuitry or capability designed 
to display closed-captioned video programming.'' To the extent that any 
DVD players render closed captions, they are not subject to the 
extension granted herein because they comply with the CVAA and our 
implementing rules since they are ``equipped with built-in closed 
caption decoder circuitry . . . designed to display closed-captioned 
video programming'' on a television. Other DVD players use their analog 
output to pass through closed captions to the television, which then 
renders the captions. We find that DVD players with pass through 
capability

[[Page 39623]]

also comply with the CVAA because a DVD player that passes through 
closed captions to the television is ``equipped with built-in . . . 
capability designed to display closed-captioned video programming.'' In 
this scenario, because a DVD player does not itself contain a screen, 
the closed captions contained in the video programming that is being 
accessed through the DVD player are rendered by the television and 
displayed on the television screen, just as the video programming 
itself is being displayed. Thus, DVD players equipped with an analog 
output that passes through closed captioning satisfy the closed 
captioning requirement set forth in section 303(u)(1)(A) of the Act and 
our rules because they are equipped with a capability designed to 
display closed-captioned video programming, i.e., they enable closed 
captions to be viewed by consumers on their television sets.\12\ At the 
same time, we recognize that DVD players that have multiple outputs, 
only one of which is an analog output that passes through closed 
captions to the television, may not comply with the Commission's 
interconnection mechanism rule, which requires that ``[a]ll video 
outputs of covered apparatus shall be capable of conveying from the 
source device to the consumer equipment the information necessary to 
permit or render the display of closed captions.'' We find good cause, 
however, to waive this requirement because requiring compliance with 
this rule would impose increased costs on otherwise low-cost devices 
that have been in the marketplace for a long time and for which the 
market is declining, as discussed below, and because there is already 
some capability for consumers to view closed captions through the 
compliant analog output. Accordingly, in the instant case, the public 
interest benefits of requiring complete compliance with the 
Commission's interconnection mechanism rule are outweighed by the 
additional costs on manufacturers.
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    \12\ To the extent that video technologies evolve resulting in 
consumers viewing video programming from DVD players on apparatus 
that are not capable of rendering and displaying closed captions, we 
will revisit this issue to ensure that consumers are not deprived of 
access to closed captioning of video programming. See, e.g., 47 CFR 
79.103(b)(1) (display-only monitors with no playback capability are 
exempt from our apparatus closed caption requirements).
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    20. Regarding DVD players that do not either render or pass through 
closed captions, policy considerations justify an extension of the 
compliance deadline \13\ pending resolution of the FNPRM on this issue. 
Manufacturers have expressed concerns about the costs of modifying DVD 
players to render the closed captioning themselves. Specifically, the 
record shows that DVD players generally have been in the marketplace 
for a long time and tend to be low-cost, and that adding captioning 
functionality may have a significant impact on manufacturing costs that 
would not be supported by consumers in the general public, potentially 
curtailing the continued availability of such devices in the U.S. 
market. Because the record demonstrates that this is a declining 
market, we are sensitive to imposing additional costs at this time 
without an adequate record. However, the current record does not 
identify the specific costs to manufacturers of including in DVD 
players an analog output that passes through closed captions to the 
television. Nor does it address the benefits to consumers who are deaf 
or hard of hearing were we to require this pass through obligation, or 
conversely, the harm to such consumers were we to eliminate all closed 
captioning obligations for DVD players. Given the above concerns, we 
temporarily extend the deadline for compliance with the apparatus 
closed captioning requirements for DVD players that do not either 
render or pass through closed captions, pending resolution of the FNPRM 
on this issue. We find that any hardship on consumers resulting from a 
temporary extension of the compliance deadline will be minimized 
because there are certain models of DVD players currently available 
that pass through closed captions to the television, which will provide 
a means for some individuals who are deaf or hard of hearing to view 
closed captions contained on DVDs.
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    \13\ The compliance deadline for apparatus closed captioning 
otherwise is January 1, 2014. See 47 CFR 79.103(a).
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    21. Blu-ray players. For Blu-ray players, we temporarily extend the 
deadline for compliance with our apparatus closed captioning rules 
pending resolution of the FNPRM on this issue. There is no evidence in 
the record to suggest that any Blu-ray players today either render 
closed captioning themselves or pass through closed captions via the 
type of analog output used by DVD players. And, we have little 
information on the record as to what the costs would be for Blu-ray 
players to render or pass though captions. Moreover, we note that many, 
if not all, Blu-ray players are capable of playing DVDs (in addition to 
Blu-ray discs) but the record currently contains insufficient 
information regarding the technical changes required for manufacturers 
to ensure that these players can render or pass through captions from 
DVDs. These issues are further complicated by the fact that Blu-ray 
discs today do not contain closed captions,\14\ and no industry-wide 
standard currently exists for closed captioning on Blu-ray discs. Given 
that there is no closed captioning standard for Blu-ray discs, Blu-ray 
players could not, as a technical matter, render closed captions on 
Blu-ray discs in the short term because manufacturers of the players 
would not know what standards to comply with. Moreover, as the 
Commission has previously recognized, manufacturers require some period 
of time to design, develop, test, manufacture, and make available for 
sale new products, which likely could extend beyond the compliance 
deadline. Thus, requiring Blu-ray players to comply with the apparatus 
closed captioning requirements by the January 1, 2014 compliance 
deadline would raise special difficulties for manufacturers. 
Accordingly we temporarily extend the compliance deadline with respect 
to Blu-ray players, pending resolution of the FNPRM where we seek more 
information on these issues. We find that any hardship on consumers 
resulting from a temporary extension of the compliance deadline will be 
minimized because Blu-ray discs currently include subtitles, which will 
provide a means for some individuals who are deaf or hard of hearing to 
access dialogue. A temporary extension will provide the Commission with 
an opportunity to develop a complete record with respect to Blu-ray 
players so that we can develop a long-term policy with respect to such 
devices.
---------------------------------------------------------------------------

    \14\ Subtitles for the deaf and hard of hearing (``SDH'') make 
some video programming accessible to consumers who are deaf or hard 
of hearing via existing Blu-ray and DVD players. The Commission 
explained in the Report and Order that SDH does not provide all of 
the features available with closed captions.
---------------------------------------------------------------------------

    22. Other removable media players. The temporary extensions granted 
herein do not apply to all ``removable media players''; rather they are 
expressly limited to DVD players that do not render or pass through 
closed captions and Blu-ray players. We decline to apply this extension 
more broadly because, although DVD and Blu-ray players are the current 
types of removable media players in the marketplace, if new types of 
``removable media players'' are developed in the future, we would 
expect those devices to be designed with closed captioning

[[Page 39624]]

capability in mind, as required under the CVAA.
3. Application of the January 1, 2014 Deadline Only to the Date of 
Manufacture
    23. We grant CEA's request that we specify that the January 1, 2014 
apparatus compliance deadline refers only to the date of manufacture, 
and not to the date of importation, shipment, or sale of apparatus 
manufactured before that date. In the Report and Order, the Commission 
adopted a compliance deadline of January 1, 2014 for the apparatus 
covered by our rules. The rules that the Commission adopted to 
implement this deadline arguably create some ambiguity as to whether it 
applies to the date of importation, manufacture, or shipment of 
apparatus. CEA explains that, while the phrase ``manufactured in the 
United States or imported for use in the United States'' mirrors 
provisions of section 203 of the CVAA,\15\ the Commission should 
clarify that the rules apply only to devices manufactured on or after 
the deadline, as it has done in other equipment compliance rules by 
including explanatory notes. We agree with CEA that this clarification 
would serve the public interest because manufacturers can identify and 
control the date of manufacture, but the date of importation is 
affected by variables outside of the manufacturer's control, and thus a 
deadline triggered by the date of importation may be unworkable in many 
situations for manufacturers. CEA also explains that its proposal will 
have little effect on the availability of new compliant products 
because of the normally brief interval between a product's manufacture 
and its importation. Accordingly, we add explanatory notes to 
Sec. Sec.  79.101(a)(2), 79.102(a)(3), 79.103(a), and 79.104(a) of our 
rules, to clarify that the new obligations in the rules apply only to 
apparatus manufactured on or after January 1, 2014. We note that this 
approach is consistent with the Commission's past practices regarding 
similar equipment deadlines.\16\
---------------------------------------------------------------------------

    \15\ The CVAA does not, however, impose the January 1, 2014 
deadline that the Commission adopted in the Report and Order, nor 
does it specify whether the deadline must apply to the date of 
manufacture, the date of importation, or both.
    \16\ See, e.g., Notes to 47 CFR 15.120(a), 79.101(a)(1), 
79.102(a)(1), (2). We clarify that our application of the apparatus 
compliance deadline only to the date of manufacture applies only to 
the rules and requirements at issue in this proceeding and not to 
any other compliance rules, which may have deadlines that are not 
based solely on the date of manufacture.
---------------------------------------------------------------------------

    24. Consumer Groups claim that consumer confusion may result from 
CEA's proposal because consumers expect that any apparatus for sale 
after the January 1, 2014 deadline will be compliant. Consumer Groups 
overlook the fact that nothing in the current apparatus rules expressly 
ties the compliance deadline to the date of sale. Instead, while the 
current rules are ambiguous with respect to the triggering event for 
the January 1, 2014 compliance deadline, nothing in the rules 
references the date of sale. Additionally, as CEA explains, while 
manufacturers can identify and control the date of manufacture, the 
date of sale is affected by variables outside of the manufacturer's 
control. Further, we expect that a compliance deadline based on the 
date of sale would create complications for retail vendors with 
noncompliant apparatus in their inventory after the deadline. For all 
of these reasons, we conclude that tying the compliance deadline to 
date of manufacture would best serve the public interest.
    25. Further, we agree with CEA that Consumer Groups' proposal that 
we require manufacturers to label products to indicate which devices 
are compliant or noncompliant after January 1, 2014 should be dismissed 
as a late-filed petition for reconsideration of the Report and Order. 
Consumer Groups raised this issue in an opposition but not in a 
petition for reconsideration.\17\ Similarly, we also agree with CEA 
that Consumer Groups' proposed compliance deadline based on the date of 
a product's sale should be dismissed as a late-filed petition for 
reconsideration of the Report and Order. Again, Consumer Groups raised 
this issue in an opposition but not in a petition for 
reconsideration.\18\
---------------------------------------------------------------------------

    \17\ Additionally, from a practical standpoint, we note that a 
labeling requirement would impose additional compliance costs on 
manufacturers with little practical benefit to consumers. 
Specifically, labels could provide confusing and misleading 
information about the capabilities of apparatus. Apparatus 
manufactured prior to January 1, 2014 would not bear the label, even 
if such apparatus supported closed captions. Further, a labeling 
requirement would extend indefinitely, imposing costs and burdens on 
manufacturers despite our expectation that few, if any, noncompliant 
apparatus will be on store shelves within a few months of the 
compliance deadline.
    \18\ Additionally, we note that Consumer Groups misconstrue a 
reference in the Report and Order to ``mak[ing] available for sale 
new products'' as applying the compliance deadline based upon the 
date of sale. This reference was part of a sentence explaining that 
it generally takes two years to bring a new product to market, and 
it did not apply the compliance deadline to a product's date of 
sale.
---------------------------------------------------------------------------

B. Petition for Reconsideration of TVGuardian, LLC

    26. We deny TVGuardian's petition requesting that the Commission 
reconsider its decision to allow video programming providers and 
distributors to enable the rendering or pass through of captions to end 
users and instead require video programming providers and distributors, 
and digital source devices, to pass through closed caption data to 
consumer equipment.\19\ In the Report and Order, the Commission 
required video programming providers and distributors to convey all 
required captions to the end user, but it allowed the provider or 
distributor to select whether to render the captions or pass them 
through. Pursuant to this requirement, the Commission stated that 
``[w]hen a [video programming provider or distributor] initially 
receives a program with required captions for IP delivery, we will 
require the [video programming provider or distributor] to include 
those captions at the time it makes the program file available to end 
users.'' The Commission also implemented the interconnection mechanism 
provision of the CVAA, which directs the Commission to require that 
``interconnection mechanisms and standards for digital video source 
devices are available to carry from the source device to the consumer 
equipment the information necessary to permit or render the display of 
closed captions.'' Consistent with that provision, the Commission 
required all video outputs of covered apparatus to be capable of 
conveying from the source device (such as an MVPD set-top box) to the 
consumer equipment (such as a television) the information necessary to 
permit or render the display of closed captions. As a result, a digital 
source device (such as a set-top box) is permitted to use a video 
output such as HDMI, which does not pass through captions in a closed 
manner (i.e., HDMI does not transmit the closed captions to the 
receiving device as data alongside the video stream), provided the 
source device renders the closed captioning (i.e., decodes and mixes 
the closed captions into the video stream).
---------------------------------------------------------------------------

    \19\ Because we reject TVGuardian's argument on substantive 
grounds, we find it unnecessary to address the procedural arguments 
raised in various oppositions filed in this proceeding.
---------------------------------------------------------------------------

    27. TVGuardian asks the Commission to reconsider its finding that 
video programming providers and distributors may enable the rendering 
(instead of the pass through) of all required captions to the end user, 
and that video outputs of covered apparatus may convey from the source 
device to the consumer equipment the information necessary to render 
the display of closed captions (instead of passing through the closed

[[Page 39625]]

caption data). TVGuardian claims that Congress intended to permit the 
rendering of captions only if passing them through would be technically 
infeasible. We reject TVGuardian's proposed interpretation because such 
an approach would effectively read the term ``or'' out of the statutory 
language, which permits the rendering or the pass through of closed 
captions by video programming providers, distributors, and 
interconnection mechanisms, thus indicating an intent by Congress to 
permit alternative means by which a video programming provider or 
distributor and an interconnection device may satisfy the statute. Not 
only is TVGuardian's proposed interpretation inconsistent with the 
statute, but also nothing in the legislative history supports 
TVGuardian's claim that Congress only intended to permit the rendering 
of closed captions if passing them through would be technically 
infeasible. Had Congress intended to permit rendering only if pass 
through is technically infeasible, it would have included language to 
this effect. Instead, the statute contains no such limitation.
    28. The consumer electronics industry has coalesced around the use 
of HDMI,\20\ which permits the use of rendered captions but does not 
pass through closed captions, meaning that it only conveys captions 
when they have been decoded and mixed into the video stream. The 
Commission found in the Report and Order that HDMI complies with the 
interconnection mechanism requirements, and TVGuardian has not 
presented any arguments that persuade us that the Commission should 
modify this determination. Rather, TVGuardian has reiterated its prior 
arguments that the Commission should require HDMI to pass through 
closed caption data. The Commission considered and rejected such 
arguments in the Report and Order when it concluded in implementing the 
interconnection mechanism provision of the CVAA ``that it is 
sufficient, for purposes of this provision, if the video output of a 
digital source device renders the closed captioning in the source 
device. Accordingly, we find that the manner in which the HDMI 
connection carries captions satisfies the statutory requirement for 
interconnection mechanisms.'' We also find persuasive commenters' 
rebuttal to TVGuardian's claim that it would not be costly to modify 
HDMI to pass through closed captions and that no additional hardware 
would be needed. We agree with commenters that the costs of any 
required compliance with a pass through requirement, including both 
hardware changes and standard revisions, would outweigh the benefits, 
as we find that any particular benefit to consumers who are deaf or 
hard of hearing is unclear. We note that TVGuardian's petition fails to 
identify any resulting benefits to individuals who are deaf or hard of 
hearing arising from its proposed interpretation. Rather, TVGuardian's 
request appears to be focused solely on enabling the use of its foul 
language filter, which operates through the pass through of closed 
caption data.\21\ TVGuardian's foul language filter will not operate 
with rendered closed captions in the video stream because the foul 
language filter can only read data passed through as closed captions. 
Significantly, Consumer Groups did not file any comments in support of 
TVGuardian's petition for reconsideration.
---------------------------------------------------------------------------

    \20\ TVGuardian asserts that HDMI violates the existing 
television closed captioning rules, seemingly based on the erroneous 
assumption that those rules include an interconnection obligation 
between the set-top box and the consumer display device. The 
television closed captioning rules are unrelated to the Commission's 
implementation of the CVAA in the Report and Order. In any event, we 
agree with commenters that HDMI in fact complies with the television 
closed captioning rules, and that TVGuardian has improperly raised 
the issue of HDMI's compliance with the television closed captioning 
rules through a petition for reconsideration of the Report and 
Order, which did not revise or address the television closed 
captioning rules.
    \21\ We note that nothing in our IP closed captioning rules 
prevents TVGuardian from negotiating with video programming 
distributors or equipment manufacturers to obtain access to closed 
caption data.
---------------------------------------------------------------------------

    29. We also reject TVGuardian's claims that the provisions of the 
CVAA on recording devices and interconnection mechanisms must be read 
together, which TVGuardian argues would require the pass through of 
closed caption data to consumer equipment. TVGuardian claims that its 
proposed approach is necessary to ensure that recording devices enable 
viewers to activate and deactivate closed captions, as required by the 
CVAA. We instead agree with HDMI Licensing that nothing about the 
Commission's interpretation of these two provisions is incompatible, 
because a pass through mandate on HDMI is not needed to enable 
recording devices to activate and deactivate closed captions on 
recorded programming, as explained below. Commenters persuasively 
express several problems with TVGuardian's claims that the Commission's 
interpretation of the recording device provision and the 
interconnection mechanism provision are inconsistent. Specifically, 
commenters explain that the Commission does not need to change its 
interpretation of these provisions because most recording devices 
already comply with the requirement that they enable viewers to 
activate and deactivate closed captions, and they explain that most 
consumer recording devices such as DVRs do not use interconnection 
mechanisms to receive content in any event so revisions to the 
implementation of the interconnection mechanism provision would have no 
effect on those recording devices.\22\ In other words, few, if any, 
recording devices acquire video programming via an HDMI connection. 
Rather, the overwhelming majority of DVRs acquire programming via a 
built-in cable or over-the-air tuner or via a built-in IP connection. 
Thus, recording devices are merely required to record the closed 
captioning stream in addition to the video stream for consumers to be 
able to turn captioning on and off during playback. Even if a recording 
device utilizes HDMI to connect to additional consumer electronics 
devices, it may render closed captions instead of passing them through, 
and the consumer viewing programming on a recording device may activate 
and deactivate the closed captions.
---------------------------------------------------------------------------

    \22\ We also reject TVGuardian's assertion that the word 
``permit'' in the interconnection mechanism provision 
(``interconnection mechanisms and standards for digital video source 
devices are available to carry from the source device to the 
consumer equipment the information necessary to permit or render the 
display of closed captions'') is meant to require recording devices 
and other consumer equipment to enable the viewer to activate and 
deactivate the closed captions, which it claims requires the pass 
through of closed caption data. Rather, as explained above, the CVAA 
permits either the rendering or the pass through of closed captions. 
The rendering of closed captions prior to transmission of video over 
HDMI does not preclude the viewer from activating and deactivating 
the captions, when that function is present in the source device. In 
other words, even when HDMI renders closed captions instead of 
passing them through, the viewer may activate and deactivate the 
captions. Separately, because as explained above we are not 
persuaded by TVGuardian's central argument that we should require 
video programming providers and distributors and digital video 
source devices to pass through closed caption data to consumer 
equipment, we need not consider its claims that we should make other 
related rule revisions that would be necessitated by the grant of 
its petition. We note that apparatus synchronization requirements, 
which TVGuardian references, are discussed further below.
---------------------------------------------------------------------------

C. Petition for Reconsideration of Consumer Groups

1. Application of the IP Closed Captioning Rules to Video Clips
    30. At this time, we defer a final decision on whether to 
reconsider the issue of whether ``video clips'' \23\ should

[[Page 39626]]

be covered by the IP closed captioning rules, and we will keep the 
record open pending the development of additional information regarding 
the availability of captioned video clips.\24\ To ensure that the 
Commission obtains updated information on this issue, we direct the 
Media Bureau to issue a Public Notice within six months of the date of 
release of this Order on Reconsideration, seeking information on the 
industry's progress in captioning IP-delivered video clips. Consumer 
Groups argue that the Commission should undertake a reconsideration of 
this issue at this time and should find that IP-delivered ``video 
clips'' must be captioned.\25\ Consumers have expressed particular 
concern about availability of captioned news clips, which tend to be 
live or near-live. We note that live or near-live programming only 
recently became subject to the IP closed captioning requirements on 
March 30, 2013. Now that this implementation deadline has passed, we 
expect that entities subject to the IP closed captioning rules will 
have developed more efficient processes to handle captioning of live 
and near-live programming, including news clips that are posted on Web 
sites. Thus we expect that these entities voluntarily will caption an 
increased volume of video clips, particularly news clips, even though 
the Commission's IP closed captioning requirements apply to full-length 
programming and not video clips. In the Report and Order, the 
Commission ``encourage[d] the industry to make captions available on 
all TV news programming that is made available online, even if it is 
made available through the use of video clips.'' Accordingly, we will 
monitor industry actions with respect to captioning of video clips, and 
within six months we direct the Media Bureau to issue a Public Notice 
to seek updated information on this topic. If the record developed in 
response to that Public Notice demonstrates that consumers are denied 
access to critical areas of video programming due to lack of captioning 
of IP-delivered video clips, we may reconsider our decision on this 
issue.
---------------------------------------------------------------------------

    \23\ The Commission has defined ``video clips'' as ``[e]xcerpts 
of full-length video programming.'' 47 CFR 79.4(a)(12). It has 
defined ``full-length video programming'' as ``[v]ideo programming 
that appears on television and is distributed to end users, 
substantially in its entirety, via Internet protocol, excluding 
video clips or outtakes.'' Id. 79.4(a)(2).
    \24\ Consumer Groups recently submitted a report on the state of 
closed captioning of IP-delivered video programming in which they 
address the current lack of captioning of video clips, among other 
topics. We note that the Consumer Groups May 2013 Report also urges 
the Commission to impose quality standards on television closed 
captioning. This issue is properly addressed in the pending 
proceeding on the quality of closed captioning on television.
    \25\ Google agrees with Consumer Groups that video clips should 
be captioned, which would increase accessibility. Some commenters 
argue that Consumer Groups failed to meet the procedural 
requirements for petitions for reconsideration. Consumer Groups 
respond that there is no procedural impropriety because 
reconsideration would serve the public interest, and in such cases 
petitions for reconsideration are always appropriate. Because we 
decline, at this time, to resolve Consumer Groups' request regarding 
video clips, we need not consider these procedural issues here.
---------------------------------------------------------------------------

2. Propriety of Synchronization Requirements for Apparatus
    31. Consumer Groups argue that the Commission should reconsider its 
decision not to impose any timing obligations on device manufacturers 
pursuant to section 203, and that this decision contravened Congress's 
intent and the VPAAC's consensus. In the Report and Order, the 
Commission considered the timing of the presentation of caption text 
with respect to the video in the context of apparatus requirements, and 
it concluded that ``it is inappropriate to . . . address[] the timing 
of captions with video, here,'' concluding instead that ``ensuring that 
timing data is properly encoded and maintained through the captioning 
interchange and delivery system is an obligation of [s]ection 202 
[video programming distributors and providers] and not of device 
manufacturers.'' Consumer Groups argue that the Commission should 
reconsider this conclusion and instead should impose on manufacturers 
obligations related to the synchronization of caption text and the 
corresponding video. We find that we need more information before we 
resolve this issue, because commenters disagree as to whether apparatus 
may cause captions to appear out of synch with the video, whether 
existing standards would enable manufacturers to address the timing of 
captions, and whether video programming owners, providers, and 
distributors are better suited than manufacturers to ensure proper 
captioning synchronization. Accordingly, in the FNPRM we consider 
whether we should impose closed captioning synchronization requirements 
on apparatus, and if so, what those requirements should entail.

IV. Procedural Matters

A. Regulatory Flexibility Act

    32. The Regulatory Flexibility Act of 1980, as amended (``RFA'') 
requires that a regulatory flexibility analysis be prepared for 
rulemaking proceedings, unless the agency certifies that ``the rule 
will not have a significant economic impact on a substantial number of 
small entities.'' The RFA generally defines ``small entity'' as having 
the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' In addition, 
the term ``small business'' has the same meaning as the term ``small 
business concern'' under the Small Business Act. A small business 
concern is one which: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the Small Business Administration 
(SBA).
    33. Final Regulatory Flexibility Certification. As required by the 
RFA, as amended, the Commission has prepared this Final Regulatory 
Flexibility Certification of the possible impact on small entities of 
the Order on Reconsideration. In this proceeding, the Commission's goal 
remains to implement Congress's intent to better enable individuals who 
are deaf or hard of hearing to view video programming. The Commission 
addresses three petitions for reconsideration of the IP Closed 
Captioning Order, which created rules for the owners, providers, and 
distributors of IP-delivered video programming and for the apparatus on 
which consumers view video programming.
    34. Pursuant to the RFA, a Final Regulatory Flexibility Analysis 
(``FRFA'') was incorporated into the IP Closed Captioning Order. The 
instant Order on Reconsideration grants certain narrow class waivers of 
the apparatus requirements, and grants temporary extensions of the 
compliance deadline to some DVD players and to Blu-ray players, which 
will have, if anything, a positive impact on small entities subject to 
the requirements, thereby reducing any potential economic impact. The 
Order on Reconsideration also changes the Commission's rules by: (1) 
Revising references to ``video programming players'' in a note to Sec.  
79.103 of our rules to better conform to the statutory text of the 
CVAA; and (2) clarifying that the January 1, 2014 deadline refers only 
to the date of manufacture, and not to the date of importation, 
shipment, or sale. These rule changes merely serve to better conform 
the rule language to the language codified by Congress, and to clarify 
the deadline applicable to apparatus. Therefore, we certify that the 
requirements of this Order on Reconsideration will not have a 
significant economic impact on a substantial number of small entities.
    35. The Commission will send a copy of the Order on 
Reconsideration, including a copy of this Final Regulatory Flexibility 
Certification, in a report to Congress pursuant to the Congressional 
Review Act, see 5 U.S.C.

[[Page 39627]]

801(a)(1)(A). In addition, the Order on Reconsideration and this 
certification will be sent to the Chief Counsel for Advocacy of the 
Small Business Administration, and will be published in the Federal 
Register. See 5 U.S.C. 605(b).

B. Paperwork Reduction Act

    36. The Order on Reconsideration 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).

C. Ex Parte Rules

    37. Permit-But-Disclose. This proceeding 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 rule Sec.  1.1206(b). 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.

D. Additional Information

    38. For additional information on this proceeding, contact Diana 
Sokolow, [email protected], or Maria Mullarkey, 
[email protected], of the Media Bureau, Policy Division, (202) 
418-2120.

V. Ordering Clauses

    39. Accordingly, it is ordered that pursuant to the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Public Law 
111-260, 124 Stat. 2751, and the authority found in sections 4(i), 
4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 154(j), 303, 330(b), 613, and 617, this 
Order on Reconsideration is adopted, effective thirty (30) days after 
the date of publication in the Federal Register.
    40. It is ordered that, pursuant to the Twenty-First Century 
Communications and Video Accessibility Act of 2010, Public Law 111-260, 
124 Stat. 2751, and the authority found in sections 4(i), 4(j), 303, 
330(b), 713, and 716 of the Communications Act of 1934, as amended, 47 
U.S.C. 154(i), 154(j), 303, 330(b), 613, and 617, the Commission's 
rules are hereby amended as set forth below.
    41. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Order on Reconsideration in MB Docket No. 11-154, 
including the Final Regulatory Flexibility Certification, to the Chief 
Counsel for Advocacy of the Small Business Administration.
    42. It is further ordered that the Commission shall send a copy of 
the Order on Reconsideration in MB Docket No. 11-154 in a report to be 
sent to Congress and the Government Accountability Office pursuant to 
the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
    43. It is further ordered that CEA's Petition for Reconsideration, 
filed April 30, 2012, is granted in part and denied in part, to the 
extent provided herein.
    44. It is further ordered that TVGuardian's Petition for 
Reconsideration, filed April 16, 2012, is denied.
    45. It is further ordered that, pursuant to the authority found in 
section 303(u)(2)(C)(i) of the Communications Act of 1934, as amended, 
and Sec.  1.3 of the Commission's rules, 47 CFR 1.3, a waiver of the 
closed captioning requirements for two narrow classes of apparatus is 
granted to the extent provided herein.
    46. It is further ordered that a temporary extension of the closed 
captioning compliance deadline for DVD players that do not render or 
pass through closed captions, and for Blu-ray players, is granted to 
the extent provided herein.
    47. It is further ordered that, pursuant to the authority found in 
Sec.  1.3 of the Commission's rules, 47 CFR 1.3, a waiver of the 
Commission's interconnection mechanism requirement for DVD players that 
use their analog output to pass through closed captions to the 
television is granted to the extent provided herein.

List of Subjects in 47 CFR Part 79

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

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

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

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

0
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, 
330, 544a, 613, 617.


0
2. Amend Sec.  79.101 by adding a note to paragraph (a)(2) to read as 
follows:


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

    (a) * * *
    (2) * * *

    Note to paragraph (a)(2): This paragraph places no restrictions 
on the importing, shipping, or sale of television receivers that 
were manufactured before January 1, 2014.

* * * * *

0
3. Amend Sec.  79.102 by adding a note to paragraph (a)(3) to read as 
follows:


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

    (a) * * *

[[Page 39628]]

    (3) * * *

    Note to paragraph (a)(3):  This paragraph places no restrictions 
on the importing, shipping, or sale of digital television receivers 
and separately sold DTV tuners that were manufactured before January 
1, 2014.

* * * * *

0
4. Amend Sec.  79.103 by revising the note to paragraph (a) to read as 
follows:


Sec.  79.103  Closed caption decoder requirements for all apparatus.

    (a) * * *

    Note 1 to paragraph (a):  Apparatus includes the physical device 
and the video player(s) capable of displaying video programming 
transmitted simultaneously with sound that manufacturers install 
into the devices they manufacture before sale, whether in the form 
of hardware, software, or a combination of both, as well as any 
video players capable of displaying video programming transmitted 
simultaneously with sound that manufacturers direct consumers to 
install after sale.


    Note 2 to paragraph (a):  This paragraph places no restrictions 
on the importing, shipping, or sale of apparatus that were 
manufactured before January 1, 2014.

* * * * *

0
5. Amend Sec.  79.104 by adding a note to paragraph (a) to read as 
follows:


Sec.  79.104  Closed caption decoder requirements for recording 
devices.

    (a) * * *

    Note to paragraph (a):  This paragraph places no restrictions on 
the importing, shipping, or sale of apparatus that were manufactured 
before January 1, 2014.

* * * * *
[FR Doc. 2013-15718 Filed 7-1-13; 8:45 am]
BILLING CODE 6712-01-P