[Federal Register Volume 78, Number 127 (Tuesday, July 2, 2013)]
[Proposed Rules]
[Pages 39691-39698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15722]


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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: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on the 
potential imposition of closed captioning synchronization requirements 
for covered apparatus, and on how DVD and Blu-ray players can fulfill 
the closed captioning requirements of the statute. These issues were 
raised by 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: Comments are due on or before September 3, 2013; reply comments 
are due on or before September 30, 2013.

ADDRESSES: You may submit comments, identified by MB Docket No. 11-154, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     Mail: Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: (202) 418-
0530 or TTY: (202) 418-0432.

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 
Further Notice of Proposed Rulemaking, 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 proposed information collection(s) 
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 Further Notice of Proposed Rulemaking

I. Introduction

    1. In the FNPRM, we seek further comment on the potential 
imposition of closed captioning synchronization requirements for 
covered apparatus, and on how DVD and Blu-ray players can fulfill the 
closed captioning requirements of the statute. These issues were raised 
by petitions for reconsideration of the Report and Order, which 
implemented portions of sections 202 and 203 of the Twenty-First 
Century Communications and Video Accessibility Act of 2010 (``CVAA'') 
by adopting rules governing the closed captioning requirements for the 
owners, providers, and distributors of video programming delivered via 
Internet protocol (``IP'') and rules governing the closed captioning 
capabilities of certain apparatus on which consumers view video 
programming. Specifically, in response to the Petition for 
Reconsideration of Consumer Groups, we issue an FNPRM to obtain further 
information necessary to determine whether the Commission should impose 
synchronization requirements on device manufacturers. Such 
synchronization requirements could provide that all apparatus that 
render closed captions must do so consistent with the timing data 
included with the video programming the apparatus receives. Separately, 
in response to issues raised by the Petition for Reconsideration of the 
Consumer Electronics Association, the FNPRM seeks comment on how DVD 
and Blu-ray players can fulfill the closed captioning requirements of 
the statute.
    2. 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 three 
petitions for reconsideration received, we have evaluated the effect on 
consumers who are deaf or hard of hearing as well as the cost of 
compliance to affected entities.

II. Further Notice of Proposed Rulemaking

    3. Apparatus synchronization requirements. We invite comment on 
whether the Commission should require apparatus manufacturers to ensure 
that their apparatus synchronize the appearance of closed captions with 
the display of the corresponding video. In the Report and Order, the 
Commission concluded that it would be inappropriate to impose 
synchronization requirements on apparatus. Rather, the Commission 
stated ``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 impose timing obligations on device 
manufacturers pursuant to section 203 of the CVAA because apparatus may 
cause captions to become out of synch with the corresponding video. We 
need more information in the

[[Page 39692]]

record to address this issue because commenters disagree as to whether 
synchronization problems can be caused by apparatus.\1\ Commenters also 
disagree as to whether existing standards would enable manufacturers to 
address caption synchronization.\2\ Another issue is whether video 
programming owners, providers, and distributors are better suited than 
manufacturers to ensure captioning quality, including captioning 
synchronization. Based on the record information on synchronization in 
response to the Consumer Groups Petition, it now appears that apparatus 
may play a role in synchronization problems. We do not, however, 
currently possess sufficient information to determine the nature or 
extent to which apparatus are the cause of these problems, or whether 
there is a workable manner in which to impose synchronization 
requirements on apparatus. Accordingly, we invite comment on this 
issue.
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    \1\ Consumer Groups argue that synchronization problems can be 
caused by apparatus, and thus failure to place synchronization 
obligations on apparatus may make timing requirements on video 
programming distributors ineffective. To the contrary, Mitsubishi 
Electric Visual Solutions America, Inc. (``MEVSA'') argues that it 
is unaware of any caption display synchronization problems caused by 
receivers, and CEA argues that decoders do not cause synchronization 
problems.
    \2\ CEA and MEVSA argue that existing standards would not enable 
manufacturers to comply with a synchronization requirement. Consumer 
Groups disagree, arguing that mainstream captioning standards such 
as CEA-608, CEA-708, and the Society of Motion Picture and 
Television Engineers (``SMPTE'') Timed Text Format (``SMPTE-TT'') 
support synchronization.
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    4. Specifically, we seek information on whether apparatus may cause 
closed captioning synchronization problems, and if so, how. We 
encourage commenters to provide specific evidence on this issue, 
including for example a discussion of situations in which the same 
video programming is displayed in the same manner (i.e., on the same 
Web site or via the same application) on different apparatus, where one 
apparatus displays the closed captioning with better synchronization 
than the other. Are video programming owners, providers, and 
distributors better suited than manufacturers to ensure caption 
quality, including synchronization? If so, why? What are the costs and 
benefits of imposing caption synchronization requirements on video 
programming owners, providers, and distributors in lieu of imposing 
such requirements on apparatus manufacturers?
    5. To the extent that apparatus cause closed captioning 
synchronization problems, we seek comment on what requirements we 
should impose on apparatus to address this problem. Are there existing 
standards that would enable manufacturers to address closed caption 
synchronization, or is it possible for manufacturers to develop and 
implement such standards? If not, by what means could apparatus comply 
with a synchronization requirement? Do closed captioning standards 
provide the necessary timing data for compliance with and enforcement 
of a synchronization standard? If we impose a synchronization 
requirement on apparatus, should we require apparatus to render closed 
captions consistent with the data dictating the timing of captions that 
is included with the video programming the apparatus receives? What are 
the costs and benefits of imposing caption synchronization requirements 
on apparatus manufacturers? What compliance deadline should we impose 
on any apparatus synchronization requirements that we adopt? In an 
enforcement proceeding, how could the Commission determine whether 
synchronization problems are caused by the apparatus or by the video 
programming owner, provider, or distributor?
    6. Closed captioning requirements on DVD and Blu-ray players. As 
explained in the Order on Reconsideration, adopted with the FNPRM and 
published elsewhere in this publication, we provide manufacturers of 
DVD players that do not render or pass through closed captions, and 
manufacturers of Blu-ray players, with a temporary extension of the 
compliance deadline, pending resolution of this FNPRM. The CVAA and our 
rules require that apparatus ``be equipped with built-in closed caption 
decoder circuitry or capability designed to display closed-captioned 
video programming.'' Thus, we invite comment on the closed captioning 
requirements that we should impose on DVD players that do not render or 
pass through closed captions, and on Blu-ray players with regard to 
Blu-ray discs and DVDs.\3\ Commenters should provide information on the 
costs and benefits of imposing such requirements, including the 
technical aspects of what would be required to make closed captioning 
accessible on such devices.
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    \3\ We understand that many, if not all, Blu-ray players are 
``backward compatible'' with DVDs, that is, they are able to play 
both Blu-ray discs and DVDs. We seek comment on this understanding.
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    7. We seek comment on whether we should permit DVD players that do 
not currently render or pass through closed captions to include an 
analog output to pass through closed captions. As explained in the 
Order on Reconsideration, the record demonstrates that the DVD player 
market is declining. Accordingly, how would such a regulation on DVD 
players impact the market? In the context of low-cost DVD players, 
would there be sufficient consumer demand for manufacturers to continue 
manufacturing such players if faced with the costs of rendering or 
adding an analog output? Given that Blu-ray players are able to play 
both Blu-ray discs and DVDs, should we consider Blu-ray players that do 
not render closed captions but include an analog output to pass through 
closed captions on DVDs to comply with the closed captioning 
requirements of the CVAA? Is there a consumer expectation that 
captioned DVDs should be viewable on a backward compatible Blu-ray 
player? Should Blu-ray players that include an analog output that pass 
through captions be granted a waiver of the Commission's 
interconnection mechanism rule (as we have granted in the Order on 
Reconsideration in the DVD context)? Alternatively, should we require 
Blu-ray players to render captions from DVDs? We seek specific comment 
on the costs and benefits of the approaches considered herein as well 
as on the technical aspects of what would be required to effectuate 
these requirements. For example, would manufacturers be required to 
implement a software or hardware upgrade? Similarly, what are the costs 
and benefits of requiring all DVD and Blu-ray players to include an 
analog output, and what technical steps are necessary to achieve this? 
In addition, what would be an appropriate deadline for compliance with 
the closed captioning requirements for DVD players that do not render 
or pass through captions and for Blu-ray players?
    8. With regard to Blu-ray players playing Blu-ray discs, as we 
noted above, there is not currently an industry-wide standard for 
closed captioning on Blu-ray discs. Thus, Blu-ray discs do not 
currently contain captions. Does this fact make it more important that 
Blu-ray player manufacturers take steps to ensure that captions from 
DVDs can be rendered or passed through? Should we require Blu-ray 
players to render or pass through captions from Blu-ray discs within a 
certain period of time with the expectation that doing so would spur 
the industry to prioritize developing a standard for discs and include 
captions on Blu-ray discs? Alternatively, given that Blu-ray discs as 
well as DVDs

[[Page 39693]]

currently include subtitles,\4\ we seek comment on whether, as a legal 
matter, rendering or passing through subtitles could satisfy section 
303(u)'s requirement that the Blu-ray players and DVD players ``be 
equipped with built-in closed caption decoder circuitry or capability 
designed to display closed-captioned video programming.'' Could the 
rendering or passing through subtitles be considered an ``alternate 
means'' of compliance with our rules? \5\ Or, should subtitles or SDH 
only be considered an alternative means of compliance to the extent 
that they can be made compatible with the technical capabilities set 
forth in our apparatus closed captioning rules (for example, the 
ability to change text font and size)? We seek specific comment on what 
steps the industry, including content providers, must take to provide 
this type of ``enhanced'' subtitles or SDH. For example, what technical 
steps can manufacturers take in this regard?
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    \4\ Subtitles for the deaf and hard of hearing (``SDH'') do not 
provide all of the features available with closed captions.
    \5\ See Public Law 111-260, section 203(e) (``An entity may meet 
the requirements of sections 303(u), 303(z), and 330(b) of the 
Communications Act of 1934 through alternate means than those 
prescribed by regulations pursuant to subsection (d) if the 
requirements of those sections are met, as determined by the 
Commission.''). In the Report and Order, the Commission recognized 
that SDH does not offer the same user control features as closed 
captioning.
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III. Procedural Matters

A. Initial Regulatory Flexibility Analysis

    9. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''),\6\ the Commission has prepared this present Initial 
Regulatory Flexibility Analysis (``IRFA'') concerning the possible 
significant economic impact on small entities by the policies and rules 
proposed in the Further Notice of Proposed Rulemaking (``FNPRM''). 
Written public comments are requested on this IRFA. Comments must be 
identified as responses to the IRFA and must be filed by the deadlines 
for comments provided on the first page of the item. The Commission 
will send a copy of the FNPRM, including this IRFA, to the Chief 
Counsel for Advocacy of the Small Business Administration (``SBA'').\7\ 
In addition, the FNPRM and IRFA (or summaries thereof) will be 
published in the Federal Register.\8\
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    \6\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601--612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
    \7\ See 5 U.S.C. 603(a).
    \8\ See id.
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1. Need for, and Objectives of, the Proposed Rule Changes
    10. In the FNPRM, we seek further comment on the potential 
imposition of closed captioning synchronization requirements for 
covered apparatus, and on how DVD and Blu-ray players can fulfill the 
closed captioning requirements of the statute. These issues were raised 
by petitions for reconsideration of the Report and Order, which 
implemented portions of sections 202 and 203 of the Twenty-First 
Century Communications and Video Accessibility Act of 2010 (``CVAA'') 
by adopting rules governing the closed captioning requirements for the 
owners, providers, and distributors of video programming delivered via 
Internet protocol (``IP'') and rules governing the closed captioning 
capabilities of certain apparatus on which consumers view video 
programming. Specifically, in response to the Petition for 
Reconsideration of Consumer Groups, we issue an FNPRM to obtain further 
information necessary to determine whether the Commission should impose 
synchronization requirements on device manufacturers. Such 
synchronization requirements could provide that all apparatus that 
render closed captions must do so consistent with the timing data 
included with the video programming the apparatus receives. Separately, 
in response to issues raised by the Petition for Reconsideration of the 
Consumer Electronics Association, the FNPRM seeks comment on how DVD 
and Blu-ray players can fulfill the closed captioning requirements of 
the statute.
    11. 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 three 
petitions for reconsideration received, we have evaluated the effect on 
consumers who are deaf or hard of hearing as well as the cost of 
compliance to affected entities.
2. Legal Basis
    12. The proposed action is authorized pursuant to the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Pub. L. 
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.
3. Description and Estimate of the Number of Small Entities to Which 
the Proposals Will Apply
    13. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted.\9\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \10\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\11\ A small business concern is one 
which: (1) Is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) satisfies any additional criteria 
established by the SBA.\12\ Below, we provide a description of such 
small entities, as well as an estimate of the number of such small 
entities, where feasible.
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    \9\ 5 U.S.C. 603(b)(3).
    \10\ 5 U.S.C. 601(6).
    \11\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632). Pursuant to 5 
U.S.C. 601(3), the statutory definition of a small business applies 
``unless an agency, after consultation with the Office of Advocacy 
of the Small Business Administration and after opportunity for 
public comment, establishes one or more definitions of such term 
which are appropriate to the activities of the agency and publishes 
such definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
    \12\ 15 U.S.C. 632. Application of the statutory criteria of 
dominance in its field of operation and independence are sometimes 
difficult to apply in the context of broadcast television. 
Accordingly, the Commission's statistical account of television 
stations may be over-inclusive.
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    14. Small Businesses, Small Organizations, and Small Governmental 
Jurisdictions. Our action may, over time, affect small entities that 
are not easily categorized at present. We therefore describe here, at 
the outset, three comprehensive, statutory small entity size standards. 
First, nationwide, there are a total of approximately 27.5 million 
small businesses, according to the SBA. In addition, a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
Nationwide, as of 2007, there were approximately 1,621,315 small 
organizations. Finally, the term ``small governmental jurisdiction'' is 
defined generally as ``governments of cities, towns, townships, 
villages, school districts, or special districts, with a population of 
less than fifty thousand.'' Census Bureau data for 2011 indicate that 
there were 89,476 local governmental jurisdictions in the United 
States. We estimate that, of this total, as many as 88,506 entities may

[[Page 39694]]

qualify as ``small governmental jurisdictions.'' Thus, we estimate that 
most governmental jurisdictions are small.
    15. Cable Television Distribution Services. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers; that category is defined as follows: 
``This industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' The SBA has developed a small business size standard 
for this category, which is: all such firms having 1,500 or fewer 
employees. Census data for 2007 shows that there were 1,906 firms that 
operated that year. Of those 1,906, 1,880 had fewer than 1000 
employees, and 26 firms had more than 1000 employees. Thus under this 
category and the associated small business size standard, the majority 
of such firms can be considered small.
    16. Cable Companies and Systems. The Commission has also developed 
its own small business size standards, for the purpose of cable rate 
regulation. Under the Commission's rules, a ``small cable company'' is 
one serving 400,000 or fewer subscribers nationwide. Industry data 
indicate that all but ten cable operators nationwide are small under 
this size standard. In addition, under the Commission's rules, a 
``small system'' is a cable system serving 15,000 or fewer subscribers. 
Industry data indicate that, of 6,101 systems nationwide, 4,410 systems 
have under 10,000 subscribers, and an additional 258 systems have 
10,000-19,999 subscribers. Thus, under this standard, most cable 
systems are small.
    17. Cable System Operators. The Communications Act of 1934, as 
amended, also contains a size standard for small cable system 
operators, which is ``a cable operator that, directly or through an 
affiliate, serves in the aggregate fewer than 1 percent of all 
subscribers in the United States and is not affiliated with any entity 
or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' The Commission has determined that an operator serving 
fewer than 677,000 subscribers shall be deemed a small operator if its 
annual revenues, when combined with the total annual revenues of all 
its affiliates, do not exceed $250 million in the aggregate. Industry 
data indicate that all but nine cable operators nationwide are small 
under this subscriber size standard. We note that the Commission 
neither requests nor collects information on whether cable system 
operators are affiliated with entities whose gross annual revenues 
exceed $250 million, and therefore we are unable to estimate more 
accurately the number of cable system operators that would qualify as 
small under this size standard.
    18. Direct Broadcast Satellite (``DBS'') Service. DBS service is a 
nationally distributed subscription service that delivers video and 
audio programming via satellite to a small parabolic ``dish'' antenna 
at the subscriber's location. DBS, by exception, is now included in the 
SBA's broad economic census category, ``Wired Telecommunications 
Carriers,'' which was developed for small wireline firms. Under this 
category, the SBA deems a wireline business to be small if it has 1,500 
or fewer employees. Census data for 2007 shows that there were 31,996 
establishments that operated that year. Of those 31,996, 1,818 operated 
with more than 100 employees, and 30,178 operated with fewer than 100 
employees. Thus, under this category and the associated small business 
size standard, the majority of such firms can be considered small. 
Currently, only two entities provide DBS service, which requires a 
great investment of capital for operation: DIRECTV and EchoStar 
Communications Corporation (``EchoStar'') (marketed as the DISH 
Network). Each currently offers subscription services. DIRECTV and 
EchoStar each report annual revenues that are in excess of the 
threshold for a small business. Because DBS service requires 
significant capital, we believe it is unlikely that a small entity as 
defined by the SBA would have the financial wherewithal to become a DBS 
service provider.
    19. Satellite Telecommunications Providers. Two economic census 
categories address the satellite industry. The first category has a 
small business size standard of $15 million or less in average annual 
receipts, under SBA rules. The second has a size standard of $25 
million or less in annual receipts.
    20. The category of ``Satellite Telecommunications'' ``comprises 
establishments primarily engaged in providing telecommunications 
services to other establishments in the telecommunications and 
broadcasting industries by forwarding and receiving communications 
signals via a system of satellites or reselling satellite 
telecommunications.'' Census Bureau data for 2007 show that 607 
Satellite Telecommunications establishments operated for that entire 
year. Of this total, 533 establishments had annual receipts of under 
$10 million or less, and 74 establishments had receipts of $10 million 
or more. Consequently, the Commission estimates that the majority of 
Satellite Telecommunications firms are small entities that might be 
affected by our action.
    21. The second category, i.e., ``All Other Telecommunications,'' 
comprises ``establishments primarily engaged in providing specialized 
telecommunications services, such as satellite tracking, communications 
telemetry, and radar station operation. This industry also includes 
establishments primarily engaged in providing satellite terminal 
stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. 
Establishments providing Internet services or voice over Internet 
protocol (VoIP) services via client-supplied telecommunications 
connections are also included in this industry.'' For this category, 
Census Bureau data for 2007 shows that there were a total of 2,623 
establishments that operated for the entire year. Of this total, 2,478 
establishments had annual receipts of under $10 million and 145 
establishments had annual receipts of $10 million or more. 
Consequently, the Commission estimates that the majority of All Other 
Telecommunications firms are small entities that might be affected by 
our action.
    22. Television Broadcasting. This Economic Census category 
``comprises establishments primarily engaged in broadcasting images 
together with sound. These establishments operate television 
broadcasting studios and facilities for the programming and 
transmission of programs to the public.'' The SBA has created the 
following small business size standard for Television Broadcasting 
firms: Those having $14 million or less in annual receipts. The 
Commission has estimated the number of licensed commercial television 
stations to be 1,387. In addition, according to Commission staff review 
of the BIA Advisory Services, LLC's Media Access Pro Television 
Database on March 28, 2012, about 950 of an estimated 1,300 commercial 
television stations (or approximately 73 percent) had revenues of $14 
million or less. We therefore estimate that the majority of commercial 
television broadcasters are small entities.
    23. We note, however, that in assessing whether a business concern 
qualifies as small under the above definition, business (control) 
affiliations

[[Page 39695]]

must be included. Our estimate, therefore, likely overstates the number 
of small entities that might be affected by our action because the 
revenue figure on which it is based does not include or aggregate 
revenues from affiliated companies. In addition, an element of the 
definition of ``small business'' is that the entity not be dominant in 
its field of operation. We are unable at this time to define or 
quantify the criteria that would establish whether a specific 
television station is dominant in its field of operation. Accordingly, 
the estimate of small businesses to which rules may apply does not 
exclude any television station from the definition of a small business 
on this basis and is therefore possibly over-inclusive to that extent.
    24. In addition, the Commission has estimated the number of 
licensed noncommercial educational (NCE) television stations to be 396. 
These stations are non-profit, and therefore considered to be small 
entities.
    25. Open Video Systems. The open video system (``OVS'') framework 
was established in 1996, and is one of four statutorily recognized 
options for the provision of video programming services by local 
exchange carriers. The OVS framework provides opportunities for the 
distribution of video programming other than through cable systems. 
Because OVS operators provide subscription services, OVS falls within 
the SBA small business size standard covering cable services, which is 
``Wired Telecommunications Carriers.'' The SBA has developed a small 
business size standard for this category, which is: all such firms 
having 1,500 or fewer employees. Census data for 2007 shows that there 
were 31,996 establishments that operated that year. Of those 31,996, 
1,818 operated with more than 100 employees, and 30,178 operated with 
fewer than 100 employees. Thus, under this category and the associated 
small business size standard, the majority of such firms can be 
considered small. In addition, we note that the Commission has 
certified some OVS operators, with some now providing service. 
Broadband service providers (``BSPs'') are currently the only 
significant holders of OVS certifications or local OVS franchises. The 
Commission does not have financial or employment information regarding 
the entities authorized to provide OVS, some of which may not yet be 
operational. Thus, at least some of the OVS operators may qualify as 
small entities.
    26. Cable and Other Subscription Programming. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in operating studios and facilities 
for the broadcasting of programs on a subscription or fee basis. These 
establishments produce programming in their own facilities or acquire 
programming from external sources. The programming material is usually 
delivered to a third party, such as cable systems or direct-to-home 
satellite systems, for transmission to viewers.'' The SBA has developed 
a small business size standard for this category, which is: all such 
firms having $15 million dollars or less in annual revenues. To gauge 
small business prevalence in the Cable and Other Subscription 
Programming industries, the Commission relies on data currently 
available from the U.S. Census for the year 2007. Census Bureau data 
for 2007 show that there were 659 establishments in this category that 
operated for the entire year. Of that number, 462 operated with annual 
revenues of $9,999,999 million dollars or less, and 197 operated with 
annual revenues of 10 million or more. Thus, under this category and 
associated small business size standard, the majority of firms can be 
considered small.
    27. Motion Picture and Video Production. The Census Bureau defines 
this category as follows: ``This industry comprises establishments 
primarily engaged in producing, or producing and distributing motion 
pictures, videos, television programs, or television commercials.'' We 
note that firms in this category may be engaged in various industries, 
including cable programming. Specific figures are not available 
regarding how many of these firms produce and/or distribute programming 
for cable television. The SBA has developed a small business size 
standard for this category, which is: all such firms having $29.5 
million dollars or less in annual revenues. To gauge small business 
prevalence in the Motion Picture and Video Production industries, the 
Commission relies on data currently available from the U.S. Census for 
the year 2007. Census Bureau data for 2007, which now supersede data 
from the 2002 Census, show that there were 9,095 firms in this category 
that operated for the entire year. Of these, 8,995 had annual receipts 
of $24,999,999 or less, and 100 had annual receipts ranging from not 
less than $25,000,000 to $100,000,000 or more. Thus, under this 
category and associated small business size standard, the majority of 
firms can be considered small.
    28. Motion Picture and Video Distribution. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in acquiring distribution rights and 
distributing film and video productions to motion picture theaters, 
television networks and stations, and exhibitors.'' We note that firms 
in this category may be engaged in various industries, including cable 
programming. Specific figures are not available regarding how many of 
these firms produce and/or distribute programming for cable television. 
The SBA has developed a small business size standard for this category, 
which is: all such firms having $29.5 million dollars or less in annual 
revenues. To gauge small business prevalence in the Motion Picture and 
Video Distribution industries, the Commission relies on data currently 
available from the U.S. Census for the year 2007. Census Bureau data 
for 2007, which now supersede data from the 2002 Census, show that 
there were 450 firms in this category that operated for the entire 
year. Of these, 434 had annual receipts of $24,999,999 or less, and 16 
had annual receipts ranging from not less than $25,000,000 to 
$100,000,000 or more. Thus, under this category and associated small 
business size standard, the majority of firms can be considered small.
    29. Small Incumbent Local Exchange Carriers. We have included small 
incumbent local exchange carriers in this present RFA analysis. A 
``small business'' under the RFA is one that, inter alia, meets the 
pertinent small business size standard (e.g., a telephone 
communications business having 1,500 or fewer employees), and ``is not 
dominant in its field of operation.'' The SBA's Office of Advocacy 
contends that, for RFA purposes, small incumbent local exchange 
carriers are not dominant in their field of operation because any such 
dominance is not ``national'' in scope. We have therefore included 
small incumbent local exchange carriers in this RFA analysis, although 
we emphasize that this RFA action has no effect on Commission analyses 
and determinations in other, non-RFA contexts.
    30. Incumbent Local Exchange Carriers (``LECs''). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. The appropriate 
size standard under SBA rules is for the category ``Wired 
Telecommunications Carriers.'' Under that size standard, such a 
business is small if it has 1,500 or fewer employees. Census data for 
2007 shows that there were 31,996 establishments that operated that 
year. Of those 31,996, 1,818 operated with more than 100 employees, and 
30,178

[[Page 39696]]

operated with fewer than 100 employees. Thus, under this category and 
the associated small business size standard, the majority of such firms 
can be considered small.
    31. Competitive Local Exchange Carriers, Competitive Access 
Providers (CAPs), ``Shared-Tenant Service Providers,'' and ``Other 
Local Service Providers.'' Neither the Commission nor the SBA has 
developed a small business size standard specifically for these service 
providers. The appropriate size standard under SBA rules is for the 
category ``Wired Telecommunications Carriers.'' Under that size 
standard, such a business is small if it has 1,500 or fewer employees. 
Census data for 2007 shows that there were 31,996 establishments that 
operated that year. Of those 31,996, 1,818 operated with more than 100 
employees, and 30,178 operated with fewer than 100 employees. Thus, 
under this category and the associated small business size standard, 
the majority of such firms can be considered small. Consequently, the 
Commission estimates that most providers of competitive local exchange 
service, competitive access providers, ``Shared-Tenant Service 
Providers,'' and ``Other Local Service Providers'' are small entities.
    32. Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. The Census Bureau defines this category as 
follows: ``This industry comprises establishments primarily engaged in 
manufacturing radio and television broadcast and wireless 
communications equipment. Examples of products made by these 
establishments are: transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment.'' The SBA has developed a small business size 
standard for ``Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing,'' which is: all such firms 
having 750 or fewer employees. According to Census Bureau data for 
2007, there were 919 establishments that operated for part or all of 
the entire year. Of those 919 establishments, 771 operated with 99 or 
fewer employees, and 148 operated with 100 or more employees. Thus, 
under that size standard, the majority of establishments can be 
considered small.
    33. Audio and Video Equipment Manufacturing. The SBA has classified 
the manufacturing of audio and video equipment under in NAICS Codes 
classification scheme as an industry in which a manufacturer is small 
if it has less than 750 employees. Data contained in the 2007 Economic 
Census indicate that 491 establishments in this category operated for 
part or all of the entire year. Of those 491 establishments, 456 
operated with 99 or fewer employees, and 35 operated with 100 or more 
employees. Thus, under the applicable size standard, a majority of 
manufacturers of audio and video equipment may be considered small.
    34. Internet Publishing and Broadcasting and Web Search Portals. 
The Census Bureau defines this category to include ``. . . 
establishments primarily engaged in 1) publishing and/or broadcasting 
content on the Internet exclusively or 2) operating Web sites that use 
a search engine to generate and maintain extensive databases of 
Internet addresses and content in an easily searchable format (and 
known as Web search portals). The publishing and broadcasting 
establishments in this industry do not provide traditional (non-
Internet) versions of the content that they publish or broadcast. They 
provide textual, audio, and/or video content of general or specific 
interest on the Internet exclusively. Establishments known as Web 
search portals often provide additional Internet services, such as 
email, connections to other Web sites, auctions, news, and other 
limited content, and serve as a home base for Internet users.''
    35. In this category, the SBA has deemed an Internet publisher or 
Internet broadcaster or the provider of a web search portal on the 
Internet to be small if it has fewer than 500 employees. For this 
category of manufacturers, Census data for 2007, which supersede 
similar data from the 2002 Census, show that there were 2,705 such 
firms that operated that year. Of those 2,705 firms, 2,682 
(approximately 99%) had fewer than 500 employees and, thus, would be 
deemed small under the applicable SBA size standard. Accordingly, the 
majority of establishments in this category can be considered small 
under that standard.
    36. Closed Captioning Services. These entities would be indirectly 
affected by our proposed action. The SBA has developed two small 
business size standards that may be used for closed captioning 
services. The two size standards track the economic census categories, 
``Teleproduction and Other Postproduction Services'' and ``Court 
Reporting and Stenotype Services.''
    37. The first category of Teleproduction and Other Postproduction 
Services ``comprises establishments primarily engaged in providing 
specialized motion picture or video postproduction services, such as 
editing, film/tape transfers, subtitling, credits, closed captioning, 
and animation and special effects.'' The relevant size standard for 
small businesses in these services is an annual revenue of less than 
$29.5 million. For this category, Census Bureau Data for 2007 indicate 
that there were 1,605 firms that operated in this category for the 
entire year. Of that number, 1,597 had receipts totaling less than 
$29,500,000. Consequently we estimate that the majority of 
Teleproduction and Other Postproduction Services firms are small 
entities that might be affected by our proposed actions.
    38. The second category of Court Reporting and Stenotype Services 
``comprises establishments primarily engaged in providing verbatim 
reporting and stenotype recording of live legal proceedings and 
transcribing subsequent recorded materials.'' The size standard for 
small businesses in these services is an annual revenue of less than $7 
million. For this category, Census Bureau data for 2007 show that there 
were 2,706 firms that operated for the entire year. Of this total, 
2,590 had annual receipts of under $5 million, and 19 firms had 
receipts of $5 million to $9,999,999. Consequently, we estimate that 
the majority of Court Reporting and Stenotype Services firms are small 
entities that might be affected by our proposed action.
4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    39. The FNPRM invites comment on whether the Commission should 
impose closed captioning synchronization requirements on apparatus. 
Such synchronization requirements could provide that all apparatus that 
render closed captions must do so consistent with the timing data 
included with the video programming the apparatus receives. The FNPRM 
invites comment on the extent to which apparatus are the cause of 
synchronization problems, and on the means by which manufacturers could 
address closed caption synchronization. The FNPRM also asks whether 
video programming owners, providers, and distributors are better suited 
than manufacturers to ensure caption quality, including 
synchronization, and it asks about the costs and benefits of imposing 
caption synchronization requirements on apparatus manufacturers. 
Separately, the FNPRM seeks comment on what closed captioning 
requirements we should impose on manufacturers of DVD players that do 
not render or pass through closed captions, and on manufacturers of 
Blu-ray players with

[[Page 39697]]

regard to Blu-ray players playing Blu-ray discs and playing DVDs, 
including specific questions about the rendering or pass through of 
closed captions. The FNPRM also seeks comment on the costs and benefits 
of imposing such requirements. Information received in response to the 
FNPRM will enable the Commission to consider the costs that would be 
incurred by affected entities, including smaller entities.
5. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    40. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.\13\
---------------------------------------------------------------------------

    \13\ 5 U.S.C. 603(c)(1)-(c)(4).
---------------------------------------------------------------------------

    41. We note that, pursuant to rules and policies previously adopted 
in the Report and Order in this proceeding, the Commission may grant 
exemptions to the IP closed captioning rules adopted pursuant to 
section 202 of the CVAA where a petitioner has shown that compliance 
would present an economic burden (i.e., a significant difficulty or 
expense), and may grant exemptions to the apparatus rules adopted 
pursuant to section 203 of the CVAA where a petitioner has shown that 
compliance is not achievable (i.e., cannot be accomplished with 
reasonable effort or expense) or is not technically feasible. This 
exemption process enables the Commission to address the impact of the 
rules on individual entities, including smaller entities, and to modify 
the application of the rules to accommodate individual circumstances. 
Further, a video programming provider's or owner's de minimis failure 
to comply with the IP closed captioning rules shall not be treated as a 
violation, and parties may use alternate means of compliance to the 
rules adopted pursuant to either section 202 or section 203 of the 
CVAA. Individual entities, including smaller entities, may benefit from 
these provisions.
    42. Regarding the specific issue of synchronization requirements as 
discussed in the FNPRM, the Commission seeks comment on whether video 
programming owners, providers, and distributors are better suited than 
manufacturers to ensure caption quality, including synchronization. The 
Commission also seeks comment on what requirements it should impose on 
apparatus, to the extent that apparatus cause closed captioning 
synchronization problems. Accordingly, the Commission seeks to allocate 
responsibilities appropriately.
    43. Regarding the specific issue of DVD players that do not render 
or pass through closed captions and Blu-ray players as discussed in the 
FNPRM, the Commission seeks comment on the costs and benefits of 
imposing closed captioning requirements, including the technical 
aspects of what would be required to make closed captioning accessible 
on such devices. Accordingly, the Commission seeks to balance the costs 
and benefits appropriately in crafting a final rule.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules
    44. None.

B. Paperwork Reduction Act

    45. The FNPRM does not contain proposed information collection(s) 
subject to the 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

    46. 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. Filing Requirements

    47. Comments and Replies. Pursuant to Sec. Sec.  1.415 and 1.419 of 
the Commission's rules, 47 CFR 1.415, 1.419, interested parties may 
file comments and reply comments on or before the dates indicated on 
the first page of this document. Comments may be filed using the 
Commission's Electronic Comment Filing System (ECFS). See Electronic 
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     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. The filing hours 
are 8:00 a.m. to 7:00 p.m. All hand

[[Page 39698]]

deliveries must be held together with rubber bands or fasteners. Any 
envelopes and boxes must be disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW., Washington, DC 20554.
    48. Availability of Documents. Comments, reply comments, and ex 
parte submissions will be available for public inspection during 
regular business hours in the FCC Reference Center, Federal 
Communications Commission, 445 12th Street SW., CY-A257, Washington, 
DC, 20554. These documents will also be available via ECFS. Documents 
will be available electronically in ASCII, Microsoft Word, and/or Adobe 
Acrobat.
    49. 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 FCC's 
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), 
(202) 418-0432 (TTY).

E. Additional Information

    50. 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.

IV. Ordering Clauses

    51. 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 
Further Notice of Proposed Rulemaking is adopted, effective thirty (30) 
days after the date of publication in the Federal Register.
    52. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Further Notice of Proposed Rulemaking in MB Docket No. 11-
154, including the Initial Regulatory Flexibility Act Analysis, to the 
Chief Counsel for Advocacy of the Small Business Administration.

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.

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

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.  79.103 to add paragraph (c)(12) to read as follows:


Sec.  79.103  Closed caption decoder requirements for all apparatus.

* * * * *
    (c) * * *
    (12) Synchronization. All apparatus that render closed captions 
must do so consistent with the timing data included with the video 
programming the apparatus receives.
* * * * *
[FR Doc. 2013-15722 Filed 7-1-13; 8:45 am]
BILLING CODE 6712-01-P