[Federal Register Volume 79, Number 59 (Thursday, March 27, 2014)]
[Proposed Rules]
[Pages 17093-17106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-06755]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 79
[CG Docket No. 05-231; FCC 14-12]
Closed Captioning of Video Programming; Telecommunications for
the Deaf and Hard of Hearing Petition for Rulemaking
AGENCY: Federal Communications Commission.
[[Page 17094]]
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission issues a Further Notice of
Proposed Rulemaking (FNPRM) seeking comment on options and proposals to
further enhance accessibility to television programming and to improve
the Commission's procedural rules regarding closed captioning.
DATES: Comments on the section entitled Responsibilities for Meeting
the Closed Captioning Requirements (paragraphs 1-8) are due on or
before April 28, 2014, and reply comments are due on or before May 27,
2014. Comments on remaining sections are due on or before June 25,
2014, and reply comments are due on or before July 25, 2014.
ADDRESSES: You may submit comments, identified by CG Docket No. 05-231,
by any of the following methods:
Electronic Filers: Comments may be filed electronically using the
Internet by accessing the Commission's Electronic Comment Filing System
(ECFS), through the Commission's Web site http://fjallfoss.fcc.gov/ecfs2/. Filers should follow the instructions provided on the Web site
for submitting comments. For ECFS filers, in completing the transmittal
screen, filers should include their full name, U.S. Postal Service
mailing address, and CG Docket No. 05-231.
Paper filers: Parties who choose to file by paper must
file an original and four copies of each filing. Filings can be sent by
hand or messenger delivery, by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail (although the
Commission continues to experience delays in receiving U.S. Postal
Service mail). All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St. SW., Room TW-A325, Washington, DC 20554. All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building.
Commercial Mail sent by overnight mail (other than U.S.
Postal Service Express Mail and Priority Mail) must be sent to 9300
East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail should be addressed to 445 12th Street SW., Washington, DC 20554.
[ssquf] In addition, parties must serve one copy of each pleading
with the Commission's duplicating contractor, Best Copy and Printing,
Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, or via
email to [email protected].
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Eliot Greenwald, Consumer and
Governmental Affairs Bureau, Disability Rights Office, at (202) 418-
2235 or email [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Closed
Captioning of Video Programming; Telecommunications for the Deaf and
Hard of Hearing, Inc. Petition for Rulemaking, Further Notice of
Proposed Rulemaking (FNPRM), document FCC 14-12, adopted on February
20, 2014 and released on February 24, 2014, in CG Docket No. 05-231. In
document FCC 14-12, the Commission adopted an accompanying Report and
Order (Report and Order), which is summarized in a separate Federal
Register Publication. The full text of document FCC 14-12 will be
available for public inspection and copying via ECFS, and during
regular business hours at the FCC Reference Information Center, Portals
II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It also
may be purchased from the Commission's duplicating contractor, Best
Copy and Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402,
Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563,
or Internet: www.bcpiweb.com. Document FCC 14-12 can also be downloaded
in Word or Portable Document Format (PDF) at http://www.fcc.gov/encyclopedia/disability-rights-office-headlines. http://www.fcc.gov/encyclopedia/closed-captioning-video-programming-television. To request
materials in accessible formats for people with disabilities (Braille,
large print, electronic files, audio format), send an email to
[email protected] or call the Consumer and Governmental Affairs Bureau at
202-418-0530 (voice), 202-418-0432 (TTY).
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
presentations 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 rule Sec. 1.49(f) of the Commission's rules 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.
Initial Paperwork Reduction Act of 1995 Analysis
Document FCC 14-12 seeks comment on potential new information
collection requirements. If the Commission adopts any new information
collection requirements, the Commission will publish another notice in
the Federal Register inviting the public to comment on the
requirements, as required by the Paperwork Reduction Act of 1995, Pub.
L. 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the Small
Business Paperwork Relief Act of 2002, the Commission seeks comment on
how the Commission might ``further reduce the information collection
burden for small business concerns with fewer than 25 employees.''
Synopsis
Responsibilities for Meeting the Closed Captioning Obligations
1. The Commission has previously placed direct responsibility for
[[Page 17095]]
compliance with the closed captioning requirements on VPDs. Closed
Captioning and Video Description of Video Programming, Implementation
of Section 305 of the Telecommunications Act of 1996, Video Programming
Accessibility, MM Docket No. 95-176, Report and Order, (1997 Closed
Captioning Report and Order); published at 62 FR 48487, September 16,
1997, reconsideration granted in part, MM Docket No. 95-176, Order on
Reconsideration, (Closed Captioning Reconsideration Order); published
at 63 FR 55959, October 20, 1998. The Commission seeks comment on
whether the Commission should extend some of the responsibilities for
compliance with the Commission's closed captioning quality standards
for programming shown on television to video programmers, which are a
subset of video programming providers (VPPs). In the television
captioning context, VPPs include VPDs as well as video programmers,
i.e., ``any other entity that provides video programming that is
intended for distribution to residential households including, but not
limited to broadcast and non-broadcast television network and the
owners of such programming.'' See 47 CFR 79.1(a)(3). In the Report and
Order, the Commission defines a video programmer as ``entities that
provide video programming that is intended for distribution to
residential households including, but not limited to, broadcast or non-
broadcast television networks and the owners of such programming.'' The
Commission also seeks comment on whether this definition is
sufficiently broad in scope to hold accountable all entities with
direct control over caption quality or whether the Commission should
expand the definition to cover other categories of entities and, if so,
what other entities should be covered. Commenters advocating covering
other entities should address the Commission's authority to regulate
those entities.
2. In addition to VPPs, the definition of video programmers
includes ``the owners of such programming.'' The Commission has defined
the term video programming owners (VPOs) for purposes of ensuring
captions on video programming delivered via Internet protocol, but not
for purposes of delivering television programs with captions. The
Commission seeks comment on whether the Commission should define the
term VPO for purposes of the television closed captioning rules. The
Commission seeks comment on an appropriate definition for VPOs in the
television context with respect to the provision of closed captioning.
For example, should the Commission include in the definition of VPO a
person or entity that licenses video programming to a video programming
distributor or provider that makes the video programming available
directly to the end user? What other entities should be covered under
the definition of VPO in this context, and why?
3. Some interested parties support extension of the responsibility
for caption quality to other entities in the captioning chain, in
addition to VPDs, in the television context. For example, Comcast/
NBCUniversal (Comcast) proposes adopting a ``burden-shifting
enforcement model'' that extends some captioning responsibilities to
VPOs. It appears that the category of VPOs Comcast proposes to reach
would be covered under the Commission's definition of ``video
programmers'' as defined in the accompanying Report and Order, i.e.,
``entities that provide video programming that is intended for
distribution to residential households including, but not limited to,
broadcast or non-broadcast television networks, and the owners of such
programming.'' The Comcast proposal would give a VPD the initial burden
of addressing and investigating matters brought to its attention
concerning the closed captioning quality rules adopted in the
accompanying Report and Order. If the problem at issue relates to the
pass-through of captions or the VPD's equipment, the VPD would be
responsible for fixing it and bear any associated liability in an
enforcement proceeding if one were to be initiated, because these are
problems within the VPD's direct control. If, however, the VPD learns
that the problems raised are within the control of the VPO, the
compliance burden would shift to the VPO, which would be charged with
fixing the problem and bear any associated liability in an enforcement
proceeding.
4. The Commission seeks comment on Comcast's burden-shifting
proposal and whether it would result in an appropriate allocation of
responsibilities for addressing failures to meet the Commission's
captioning quality rules. Is this approach likely to achieve a prompter
and more effective resolution of captioning quality problems brought to
the VPD's attention? Will this model provide strong incentives for the
various parties associated with program production and delivery to work
cooperatively to improve captioning quality, as suggested by Comcast?
Finally, the Commission notes that under the Comcast proposal, a VPD
would be relieved of any liabilities associated with captioning
problems once it determined that the problems raised are within the
control of the VPO. The Commission seeks comment on how the Commission
can be assured that when responsibility for captioning problems are
shifted to other programming entities, VPDs will have appropriately
transferred such liability. Should each VPD be obligated to report to
the Commission when they shift this burden, with information about the
results of its initial investigation to warrant this shift? Should the
VPD remain jointly responsible with the programmer after informing the
programmer about the need for the programmer to address the problem?
The Commission asks commenters generally to provide input on the
advantages and disadvantages of adopting Comcast's proposal, including
its feasibility, as well as the costs and benefits of shifting
responsibility for direct compliance with the Commission's closed
captioning requirements to other entities responsible for the
production and delivery of video programming.
5. Are there other approaches the Commission should consider using
to apportion responsibilities for compliance with the television
caption quality rules among entities involved in the production and
delivery of video programming? Should any changes to the apportionment
of these responsibilities apply generally to all captioning
obligations, or only to the newly adopted captioning quality rules? To
what extent should responsibilities be joint and several among specific
entities? For example, is it preferable to place the ultimate
responsibility for compliance with a single entity or are there
benefits to imposing joint responsibility on or dividing up
responsibility among the responsible entities? What effect would the
sharing of obligations across multiple entities have on consumers and
industry, and to what extent can any negative effects be mitigated?
6. The Commission also seeks comment on the effect, if any, that
extending responsibility for compliance to entities other than VPDs
would have on the Commission's ability to efficiently monitor and
enforce the closed captioning television rules. To what extent would
the Commission's earlier predictions that VPDs would privately
negotiate with VPOs and other VPPs regarding ``an efficient allocation
of captioning responsibilities'' and that VPOs and other VPPs would
``cooperate with distributors to ensure that nonexempt programming is
closed captioned in accordance with [the
[[Page 17096]]
Commission's] rules'' apply to the caption quality context? In the IP
captioning context, the Commission determined that although VPDs and
VPOs may enter into private contracts placing some obligations on VPOs,
leaving VPOs' responsibilities to be defined entirely by private
contractual arrangements would be more costly and less efficient than
appropriately allocating certain responsibilities among both VPOs and
VPDs by Commission rule. IP Captioning Report and Order Closed
Captioning of Internet Protocol-Delivered Video Programming:
Implementation of the Twenty-First Century Communications and Video
Accessibility Act of 2010, MB Docket No. 11-154, Report and Order, (IP
Captioning Report and Order); published at 77 FR 19480, March 30, 2012.
Would a division of responsibilities for caption quality in the
television context reduce or improve the Commission's efficiencies in
overseeing the captioning rules? Is there a ``liability gap'' left by
the Commission's decision in the 1997 Closed Captioning Report and
Order to limit regulatory oversight to VPDs that needs to be addressed
with respect to the general implementation of the Commission's
television captioning rules by extending regulatory oversight to VPOs,
video programmers or other entities? For example, as noted above, Sec.
79.1(g)(6) of the Commission's rules permits VPDs to rely on
certifications from programming suppliers to demonstrate compliance
with the Commission's captioning requirements. 47 CFR 79.1(g)(6). Will
imposing shared responsibilities on other entities in the programming
chain help to alleviate concerns that could arise if a VPD relies on
such certifications without taking any additional steps to ensure that
the programming at issue has in fact been delivered to the consumers
with the captions intact and of a quality that now meets the
Commission's captioning quality standards?
7. To the extent the Commission decides to impose some obligations
directly on other programming entities, the Commission also seeks
comment on whether any other changes to the rules or Best Practices
adopted in the Report and Order are appropriate. For example, if the
Commission extends obligations for compliance with the captioning
quality standards directly to programmers, should the Commission allow
such programmers to assert a safe harbor, which could then entitle them
to take corrective actions to demonstrate compliance prior to being
subject to enforcement action--akin to the compliance ladder adopted
for stations in compliance with the new enhanced ENT procedures? Should
the Commission similarly allow VPDs to assert a safe harbor, which
would also entitle them to take corrective actions to demonstrate
compliance prior to being subject to enforcement action, in the event
certain obligations for compliance with the captioning quality
standards are placed on VPDs? If the Commission were to extend direct
compliance responsibility with its closed captioning requirements to
video programmers or other programming entities, would it no longer be
necessary to include Sec. 79.1(g)(6) in the Commission's rules? In
addition, the Commission seeks comment on whether there are
similarities or differences between the television and the IP closed
captioning contexts or the Commission's emergency information rule that
justify similar or different regulatory approaches. The Commission
seeks comment on any other issues related to extending some or all
responsibility for compliance with the Commission's closed captioning
requirements to other programming entities and asks commenters to
address the costs and benefits of making any such adjustments to the
Commission's rules.
8. Finally, the Commission invites parties generally to provide any
information that they believe will contribute to a better understanding
about which entities are ultimately better positioned to ensure
compliance with the Commission's captioning quality standards.
Minimum Captioning Quality Standards
9. Live Programming. The Commission seeks comment on technical
solutions for improving the synchronicity between the audio track and
captions on live programming to facilitate understanding of a program's
content. For example, would providing the captioner advance delivery of
the audio by a few seconds help to reduce captioning latency? The
Commission asks commenters to provide input on this and other
techniques to achieve greater synchronicity, and to explain how the
incremental costs and burdens of utilizing any of the techniques they
propose compare with the benefits of greater accessibility to
television programming. The Commission asks commenters to indicate
whether VPDs, programmers or other entities should be responsible for
implementing such technical solutions.
10. The Commission also seeks additional information about methods
to provide captions that capture the entirety of the program's aural
content, including, for example (1) sending the audio feed to the live
captioner in a way that alerts the captioner that the program's end is
imminent, so that the captioner can paraphrase or abbreviate the
remaining text before the program cuts off; (2) fading out the program
after its last scene to add a few seconds for the transition to the
next program or commercial content; (3) providing advance delivery of
the audio to captioners by a few seconds; and (4) allowing captions
remaining at the end of a program's audio to be placed in a location on
the screen during the subsequent advertisement (or program) in a manner
that does not overlap with the captions on that advertisement or
program. The Commission seeks comment on the feasibility, costs and
other concerns associated with requiring the use of one or more of
these techniques to ensure that captioning of live programming is
complete. Are there other technologies or techniques in addition to
these that the Commission should consider requiring for this purpose,
and if so, what are their costs, benefits and technical feasibility? If
the Commission adopts more specific latency requirements, should the
Commission also identify any exceptions for circumstances where it is
not possible to ensure completeness, and if so, what circumstances
would those be? If the Commission requires any new methods to ensure
that captions capture the entirety of the program's aural content,
should VPDs, programmers or other entities be responsible for
implementing these methods? Finally, the Commission asks commenters to
explain how the incremental costs and burdens of utilizing any of the
techniques they propose compare with the benefits of greater
accessibility to television programming.
11. Near-Live Programming. In the Report and Order, the Commission
identifies measures that are likely to result in an improved quality of
captions for both near-live programming and rebroadcasts of live
programming, including programmers providing an advance script, a near-
completed program, or a live feed of the advance taping to a captioning
agency, which the agency can then use to create a caption file that is
later combined simultaneously with the program when it is aired. The
Commission seeks comment on whether there are other measures in
addition to these that can be used to improve the quality of near-live
programming, as well as whether the Commission should require any
[[Page 17097]]
such measures. In this regard, the Commission requests input on the
feasibility, costs and other concerns that would be associated with
such requirements, and how those compare with the benefits of greater
accessibility to television programming. The Commission asks commenters
to indicate how to apportion responsibilities among VPDs, programmers
or other entities for ensuring compliance with any measures adopted to
improve the quality of near-live programming.
12. The Commission also seeks comment on whether its current
definition of near-live programming is appropriate for purposes of the
quality standards that the Commission adopted in the Report and Order.
Commission rules pertaining to the IP captioning requirements currently
define near-live programming as programming that is performed and
recorded within 24 hours prior to when it is first aired on television.
47 CFR 79.4(a)(8). Consumer Groups recommend that the Commission
``presumptively limit `near-live' programming to programming recorded
and performed less than double its length prior to air--e.g., two hours
before the airing of a one-hour program--and deem `pre-recorded' all
programming recorded and performed more than double its length prior to
air.'' Consumer Groups also recommend that the Commission require the
use of offline captioning where doing so is achievable and that ``VPDs
delivering near-live programming using real-time captions maintain
records of the reason that offline captioning is not achievable.''
13. Although consumers recommend that VPDs be required to maintain
such records, it may be more appropriate for programmers who are
directly responsible for the delivery of programs with captions to bear
this obligation. The Commission seeks comment on establishing such a
requirement, as well as the other proposals made by the Consumer
Groups. Is the Commission's current definition of near-live programming
adequate to achieve the goal of promoting caption quality? Is it
technically and financial feasible to caption programming performed
less than 24 hours prior to air offline instead of in real-time? Is the
Consumer Groups' proposal to limit near-live programming to programming
recorded and performed less than double its length prior to air
feasible? Does it better promote quality captioning? The Commission
also seeks specific cost information on the impact of changing the
definition of near-live programming for purposes of the Commission's
caption quality rules.
14. Live and Near-Live Program Re-feeds. For live and near-live
programs that were originally captioned using real-time captioning
techniques but that are later re-aired on television after the
effective date of the caption quality standards, the Commission asks
whether the Commission should require the use of offline captioning or
other measures that the Commission encouraged in the Report and Order
to improve the quality of closed captioning. For example, should the
Commission adopt a requirement to correct errors inadvertently made and
timing lags that occurred when the program was first aired with real-
time captions? Are there other measures that can be taken between the
time of the first and subsequent showings that can help improve the
caption viewer experience of such programs? If any rules were to be
adopted requiring correction of captioning errors and timing lags on
re-feeds of live and near-live programming, should such rules include
threshold error rates or time lags before correction is required, and
if so what should those thresholds be? The Commission asks commenters
to provide feedback on the feasibility, costs and burdens that would be
associated with such requirements to take certain measures to improve
captions on re-feeds, and to compare these with the benefits of greater
accessibility to television programming. The Commission also seeks
input on the minimum interval needed between the original airing and
the re-feed that would make such measures feasible. Finally, the
Commission seeks comment on who should be responsible for implementing
measures that will improve the accuracy, synchronicity, completeness
and placement of captions on program re-feeds--VPDs, programmers, or
other entities.
Use of Electronic Newsroom Technique by Non-Broadcast Channels
15. The Commission seeks comment on whether to apply the ENT
requirements adopted for broadcasters in the Report and Order to non-
broadcast networks. What effect, if any, will these proposals have on
the availability of news and public affairs programming as well as
other live programming on non-broadcast networks serving less than 50
percent of all homes subscribing to MVPD services? What are the
benefits and disadvantages of these proposals for consumers seeking
full access to news programming? The Commission also seeks other
information that will help the Commission to assess the costs and
benefits if it were to apply these proposed obligations on non-
broadcast networks.
Compliance
16. Technical Equipment Checks. The Commission seeks comment on
whether to establish specific intervals by which equipment checks
codified in the Report and Order should take place and, if so, how
frequently these checks should be performed to ensure that captioning
is reliably delivered and video programming is fully accessible to
consumers. The Commission seeks comment on the extent to which measures
other than regular equipment checks, such as automated technologies
that can be used to ensure that captions are passed through to
consumers, should be permitted as alternative methodologies for
monitoring. Commenters are asked to weigh the costs of these proposals
as well as the costs of particular time intervals against the benefits
of increasing reliable access to video programming by people who are
deaf and hard of hearing.
17. Resolution of Consumer Complaints. The National Cable and
Telecommunications Association (NCTA) proposes in its Best Practices
that VPDs take the following actions designed to improve the prompt
resolution of consumer's captioning concerns.
Consumer care awareness and training. Maintain consumer
support and escalation for captioning issues and provide targeted
information or conduct training for customer care agents or television
station personnel, as appropriate, to help with and assist in the
resolution of caption quality and other captioning support issues.
Identification and remediation of recurring captioning
issues. Make reasonable efforts to identify consumer complaints
received about captioning issues and periodically review these
complaints to identify and resolve recurring captioning problems.
The Commission seeks comment on whether to adopt these practices noted
above. The Commission asks commenters to address their experiences with
the resolution of complaints filed directly with VPDs and whether
adherence to the above practices would affect either positively or
negatively the resolution of such complaints. The Commission asks
commenters to also address the costs and benefits of requiring VPDs to
implement these complaint handling practices.
18. Consumer Groups recommend that the Commission provide the
public
[[Page 17098]]
with information about all captioning-related complaints as part of a
Commission-wide ``dashboard.'' The Commission seeks comment on having
the Commission make such information available to the public.
19. Outages. The Commission seeks comment on whether VPDs should be
required to notify both consumers and the Consumer and Governmental
Affairs Bureau (CGB) when captioning outages occur. Such outage
reporting would only be required where there is an underlying
obligation to provide captions, not where programming entities are
exempt or otherwise excused from the captioning obligations. Given that
some programming is exempt from the Commission's captioning rules, the
Commission also seeks comment on whether and how consumers should be
informed when captions are not required on particular programs. The
Commission also seeks input on the duration and frequency of outages
that should trigger any notification requirements. The Commission
requests that parties provide comments on the practical and technical
feasibility of notifying the public of a captioning outage on VPD Web
sites and via periodic crawls on affected programs. For example, to
what extent do the causes of outages impact the ability of the VPD to
notify customers of the outage? Should VPDs be required to provide
timely updates of service status that they are working on so that
consumers are aware while watching the program? In this regard, the
Commission also seeks comment about the length of time it generally
takes to repair an outage after it has been discovered. Next, the
Commission seeks comment on the appropriate passage of time after such
outage commences before a VPD should be required to notify consumers
and the Commission that an outage has occurred. VPDs should also
comment on how they can become aware of captioning outages and how that
will affect their ability to notify consumers. How do the costs and
burdens of providing such notifications compare with the benefits of
greater consumer access to information about captioning outages?
20. The Commission also seeks comment on whether the Commission
should require the VPD to submit an outage report to CGB, on the
contents and timing of such a report, and how the report should be
filed. What minimum outage time should trigger the filing of a report?
If outage reports are required, what information should be included in
the report? For example, should it include a list of the VPD's affected
programs, the geographic locations affected by the outage, the dates
and times for the start and end of the outage, and the cause of the
outage? If the outage lasts for more than one day, should the VPD be
required to seek out other captioning sources while repairing
equipment? How soon after the outage starts and ends should the report
be filed with CGB? As an alternative to submitting outage reports,
should VPDs be required to maintain records of their outages and for
what length of time? How do the costs and burdens of filing captioning
outage reports with CGB or keeping outage records compare with the
benefits of achieving improved enforcement of the closed captioning
obligations for consumers? In addition, the Commission notes that the
obligation under Sec. 79.2 of the Commission's rules to make emergency
information visually accessible exists even if closed captioning is not
available, and that the VPD may use scrolls, crawls, or other visual
alternatives to fulfill that obligation. See 47 CFR 79.2. The
Commission also notes that it does not intend for the notification and
reporting requirements proposed herein to relieve VPDs of their
obligations to prevent foreseeable and avoidable situations created by
inaction or delay. Finally, the Commission asks interested parties to
provide comment on how any responsibilities associated with the outage
reporting obligations should be apportioned among VPDs, programmers,
program owners, or other entities.
21. Amending Sec. 79.1(i)(3) of the Commission's Rules to Require
All Contact Information Be Submitted to the VPD Registry. Over the past
three years, the Commission has found that the VPD Registry offers the
most efficient and accurate means of collecting VPD contact information
for the receipt and handling of immediate captioning concerns raised by
consumers while they are watching television as well as for closed
captioning complaints. The Commission proposes to amend its rules to
require VPD contact information required under Sec. 79.1(i)(1) and (2)
of the Commission's rules to be submitted to the Commission directly to
the VPD Registry through the web form method and seeks comment on this
proposal. How do the costs of transitioning to a mandatory web form
method of filing compare with the ease and accuracy of filing and
benefits derived from such mandatory system?
22. Treatment of Consumer Complaints by a VPD that Is Not the
Responsible Party. In the 2008 Closed Captioning Decision, the
Commission adopted Sec. 79.1(g)(3) of the Commission's rules, 47 CFR
79.1(g)(3), which requires a VPD that receives a closed captioning
complaint for a program for which it does not have closed captioning
responsibility, to forward that complaint to the responsible entity
within seven days of receiving the complaint, and then to notify the
complainant that the complaint was forwarded. 2008 Closed Captioning
Decision. On June 10, 2009, Time Warner Cable (Time Warner) filed an ex
parte letter identifying potential conflicts between the Commission's
amended Sec. 79.1(g)(3) and the obligations of cable companies to
protect a subscriber's privacy under section 631(c)(1) of the Act. 47
U.S.C. 551(c)(1).
23. On December 11, 2009, the Commission released an Order
temporarily staying the effective date of the forwarding provision of
amended Sec. 79.1(g)(3) of the Commission's rules. See Closed
Captioning of Video Programming, CG Docket No. 05-231, Order Suspending
Effective Date, (2009 Suspension Order); published at 75 FR 7369,
February 19, 2010. Noting the potential conflict between amended Sec.
79.1(g)(3) of the Commission's rules and sections 631(c) and 338(i)(4)
of the Act (the latter creating the same prohibitions for satellite
providers), the Commission found good cause to temporarily suspend the
effective date for Sec. 79.1(g)(3) of the Commission's rules, pending
the completion of further rulemaking proceedings to determine how
closed captioning complaints sent to the incorrect entity should be
handled.
24. In order for a third party video programming provider to
respond to a forwarded complaint, that complaint must include the
complainant's name, address, telephone number and other personally
identifiable information. Yet, sections 631(c) and 338(i)(4) of the Act
appear to prohibit the forwarding of such information without the
complainant's consent.
25. Accordingly, the Commission proposes amending Sec. 79.1(g)(3)
of the Commission's rules to require that within seven days after a VPD
receives a complaint regarding programming of a broadcast television
licensee or programming over which the VPD does not exercise editorial
control, it be required to notify the complainant--using the
complainant's preferred method of communication--of the appropriate
party to whom the complaint should be sent, and give the complainant
the option of either (1) asking the VPD to forward the complaint to the
appropriate party electronically or in writing, or (2) submitting the
complaint directly to the appropriate party on his or her own. In
addition, the Commission proposes that
[[Page 17099]]
the VPD, after taking such action, inform the Commission that it has so
notified the complainant by providing the Commission with copies of all
written or electronic correspondence or a written description of all
communications that were not either in electronic or written form.
Under this proposal, if the VPD is asked by the complainant to forward
the complaint to the appropriate party, the VPD would be required to do
so within seven days of receiving such request, and if the VPD is not
asked to forward the complaint, it would have no further
responsibility. The Commission seeks comment on these proposals,
including whether the second prong of the proposed requirement--
requiring the VPD to notify the Commission that it has informed the
complainant of the available options--would itself be a violation of
sections 631(c)(1) and 338(i)(4) of the Act in instances where the
consumer files his or her complaint with the VPD only and does not
authorize the VPD to provide a copy to the Commission. If the
Commission decides to require the VPD to notify it, the Commission
seeks comment on the method a VPD must use to notify the Commission.
How do the costs of forwarding complaints upon consumer request and
notifying the Commission of actions taken compare with the benefits of
providing a consumer-friendly way to get the complaints to the correct
parties? Finally, the Commission requests commenters to submit any
alternative proposals for amending Sec. 79.1(g)(3) of the Commission's
rules to avoid breaching the consumer protections contained in sections
631(c)(1) and 338(i)(4) of the Act.
Captioning Exemptions
26. Elimination of the New Network Exemption. The Commission seeks
comment on the merits of continuing to allow all new networks to
receive a four year exemption from the closed captioning rules. See 47
CFR 79.1(d)(9). Should newly launched networks build the costs of
captioning into their business plans during the planning of their
networks? If the Commission were to eliminate the new network
exemption, should the Commission adopt a phase-in period to provide an
opportunity for networks that are about to commence operations to plan
for the required captioning? If so, what should this phase-in be? The
Commission seeks comment on the costs and benefits of eliminating the
new network exemption.
27. As an alternative, the Commission seeks comment on modifying
the new network exemption. Currently, the exemption is for four years.
Would a one or two year exemption be more appropriate? The Commission
seeks comment on these or any other time periods that might be
appropriate for a revised new network exemption. Even if the Commission
retains the new network exemption, should the exemption apply only to
new networks that have certain other indicia of a start-up network,
e.g., local or regional in nature, accessible by a small number of
households, and ownership by a small business? If the Commission takes
this approach, how does it define each of these or other proposed
criteria for limiting the new network exemption? Alternatively, should
networks with significant financial backing be deemed ineligible for
the new network exemption? For example, should the exemption not apply
to new networks that are owned, in whole or part, by one of the four
major national broadcast networks or the top ten non-broadcast
networks? How do the relative costs and burdens of requiring new
networks to provide captioning under each of these alternatives compare
with the benefits of greater accessibility to television programming?
28. If the Commission does retain this exemption, the Commission
also seeks comment on the definition of ``network'' for purposes of the
closed captioning rules. The exemption for new networks is based on the
number of years that a programming network has been in operation rather
than the number of subscribers. 47 CFR 79.1(d)(9). Further, this
exemption applies to different types of networks--broadcast, non-
broadcast, national, and regional. 1997 Closed Captioning Report and
Order; see also Closed Captioning Reconsideration Order. To begin with,
the Commission seeks comment on the extent to which it should rely on
other definitions of ``network,'' contained elsewhere in the
Commission's rules. For example, Sec. 73.3613(a)(1) of the
Commission's rules defines ``network'' with respect to broadcast
network affiliation agreements that must be filed with the Commission
as ``any person, entity, or corporation which offers an interconnected
program service on a regular basis for 15 or more hours per week to at
least 25 affiliated television licensees in 10 or more states.'' 47 CFR
73.3613(a)(1); see also 47 CFR 76.55(f) (similar definition for
purposes of the cable ``must carry'' rules). Alternatively, Sec.
76.5(m) of the Commission's rules, pertaining to cable operators
providing network non-duplication protection to television stations,
defines a ``network program'' as ``. . . any program delivered
simultaneously to more than one broadcast station regional or national,
commercial or noncommercial.'' 47 CFR 76.5(m). The Commission seeks
comment on whether these or a different definition of ``network'' would
be appropriate for purposes of Sec. 79.1(d)(9) of the Commission's
rules, and whether to apply the same definition to broadcast and non-
broadcast networks.
29. Next, the Commission notes that MVPDs serving U.S. subscribers
increasingly offer video programming networks that were initially
launched in foreign markets. In the event the Commission retains the
new network exemption, the Commission seeks comment on whether a
network that has operated in a foreign market and that moves to
distribution or ``launches'' in the U.S., should be eligible for a new
network exemption for a certain period of time after it launches in the
U.S. and, if so, what the duration of that exemption should be. The
Commission also seeks feedback on how to calculate the exemption period
for such a new network, specifically, whether such network should be
considered new as of the date that it begins distribution in the U.S.,
or whether its launch date should be considered the date that it
initially began viewing in its originating country. The Commission asks
commenters that believe the Commission should calculate an exemption
upon moving the network's programming to the U.S. to explain why this
exemption is necessary, given that such networks will have been in
operation (and presumably generating revenues) and will have advance
notice of U.S. captioning obligations prior to launching in the U.S.
How do the costs and burdens of providing captioning on networks
showing programming in the U.S. after first showing programming in
foreign countries compare with the benefits of greater accessibility to
television programming?
30. Last, in the event the Commission retains the new network
exemption, the Commission seeks comment on the application of the new
network exemption to networks created as the result of a merger of two
or more existing networks. The Commission seeks comment on whether the
original launch dates of networks that merged should be considered the
applicable date for purposes of determining the exemption period for
the merged entity. The Commission also seeks comment on which date
should control in those situations where the merged entities had
different original launch dates. Should the duration of the exemption
be calculated based on the individual network that has been in
existence for
[[Page 17100]]
the longest period of time? Is this approach appropriate because the
new network exemption applies for a limited number of years--four years
under the current rules so that no component part of the combined
network would have the benefit of the exemption for longer than the
maximum length of time provided by the rule? The Commission also seeks
comment on whether the new network exemption should apply or be
extended in the event of a restructuring of a network. Because the
captioning rules were promulgated sixteen years ago and each network
will have known about captioning requirements since its inception, has
the network had sufficient time to integrate closed captioning into its
production process and costs? The Commission seeks comment on this
issue including its costs and benefits.
31. Consumer Groups' 2011 Petition Requesting Elimination of
Certain Self-Implementing Exemptions from the Captioning Rules. On
January 27, 2011, the Consumer Groups filed a joint petition for
rulemaking (2011 Petition) seeking amendment to the Commission's
captioning rules regarding an exclusion and several categorical self-
implementing exemptions from the obligation to caption television
programming. The Consumer Groups requested, in light of modern
technology, the reduced costs of captioning, and other changed
circumstances, that the Commission eliminate the exclusion for
advertisements of five minutes duration or less, see 47 CFR 79.1(a)(1),
and the self-implementing exemptions provided for the following types
of programming: Late night programming, see 47 CFR 79.1(d)(5), locally
produced and distributed non-news programming with no repeat value, see
47 CFR 79.1(d)(8), interstitials, promotional announcements, and public
service announcements that are 10 minutes or less in duration, see 47
CFR 79.1(d)(6), and channels producing revenues under $3 million, see
47 CFR 79.1(d)(12). The Commission seeks comment on the Consumer
Groups' proposal to eliminate the advertising exclusion and the
specified self-implementing exemptions from the closed captioning
rules. The Commission asks commenters to address the merits as well as
the costs and benefits of each proposal put forth by the Consumer
Groups.
Technical Standards for the Display of Closed Captions
32. In the 2000 DTV Closed Captioning Order, the Commission
adopted, with some modifications, section 9 of CEA-708, to provide
guidelines for encoder and decoder manufacturers and caption providers
to implement closed captioning services with digital television
technology. See Closed Captioning Requirements for Digital Television
Receivers; Closed Captioning and Video Description of Video
Programming, Implementation of Section 305 of the Telecommunications
Act of 1996, Video Programming Accessibility, ET Docket No. 99-254, MM
Docket No. 95-176, Report and Order, (2000 DTV Closed Captioning
Order); published at 65 FR 58467, September 29, 2000; see also 47 CFR
79.102. The standards require DTV closed caption decoders to support
certain advanced features, including different caption sizes, fonts,
character background and foreground colors, and other similar features,
to allow viewers to customize the display of closed captions on their
televisions. The Commission now seeks comment on the experiences that
caption users have had since adoption of these standards, including the
extent that such consumers have succeeded in using these features to
improve their television experience.
33. In addition to allowing users to control the appearance of
captions, CEA-708 allows programmers more options for the display of
captions, such as multiple windows, fonts, and styles. The Commission
seeks information on current practices for such formatting of closed
captions. To what extent was the Commission correct in its earlier
expectation that CEA-708 captions would be provided and its prediction
that ``programmers and caption providers'' would have incentives to
provide CEA-708 captions? To what extent are VPDs, video programmers,
captioners, or other entities each involved in the production process
for formatting closed captions in a manner that provides the advanced
features adopted by the Commission in the 2000 DTV Closed Captioning
Order, such as delivering captions in programmer-selected size, font,
character background colors, and foreground colors of closed captions?
What other entities are involved in the process, and how so? If VPDs,
video programmers, captioners, or other entities involved in the
production process are not formatting closed captions to use CEA-708
capabilities, why not? What action, if any can the Commission take to
ensure the effective implementation of the CEA-708 capabilities so that
television viewers who use captions can take full advantage of the
capabilities this standard was intended to provide?
Caption Obstructions
34. Some caption viewers have raised concerns about closed captions
being partially or completely blocked by other visual information, such
as graphics, that appear on the screen. The Commission seeks comment on
the extent to which on-screen visual changes or textual depictions,
including, but not limited to, split screens, pop-on advertisements and
promotions, credits, graphic overlays, or contact information, have
caused a problem for caption viewers. To the extent that these problems
exist, the Commission asks for comment on their causes and possible
solutions.
New Technologies
35. Captioning on 3D Television Programming. To better understand
current practices and capabilities with regard to closed captioning of
3D TV programming, the Commission seeks comment on the following:
How are DTV manufacturers ensuring that captions continue
to work when 3D TV programming is shown on television sets with 3D
capability?
Are there issues regarding the placement of captions in a
3D picture? What steps must manufacturers take to ensure that
captioning in 3D TV programming is inserted and placed at an
appropriate depth of field in the 3D image? Do user-selected changes to
font size and location of the captions operate differently in a 3D
image?
With regard to television sets with 3D capability, will
captions display properly when the user switches between 2D and 3D
modes?
How do the costs and burdens of providing closed
captioning in 3D TV programming compare with the benefits of greater
accessibility to television programming?
The Commission seeks input on any other matters that could affect
the availability of closed captioning on 3D TV programming.
36. Captioning on Ultra High Definition Television Programming. To
better understand current practices and capabilities with regard to
closed captioning of Ultra HDTV programming, the Commission seeks
comment on the following:
How are Ultra HDTV manufacturers ensuring that captions
continue to appear legibly when programming is shown on Ultra HDTV
television sets?
Do the standards for Ultra HDTV programming have the same
capabilities for the transmission or pass-through of captions as HDTV
and SDTV programming?
Does the increased resolution present new challenges
related to the
[[Page 17101]]
display of captions, particularly with respect to font size of the
captions? If so, what are these new challenges, and how can they be
addressed?
How do the costs and burdens of additional requirements
concerning closed captioning for Ultra HDTV programming compare with
the benefits of greater accessibility to television programming?
The Commission seeks input on any other matters that could affect
the availability of closed captioning on Ultra HDTV programming.
Initial Regulatory Flexibility Certification
37. As required by the Regulatory Flexibility Act (RFA), the
Commission has prepared this Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities by
the policies and rules proposed in document FCC 14-12 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 in document FCC 14-12. The Commission will send a copy of
document FCC 14-12, including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (SBA).
38. In document FCC 14-12, the Commission seeks comment on (1)
whether the Commission should impose some responsibilities for
compliance with the Commission's closed captioning quality rules on
video programmers and other entities; (2) whether the Commission should
require specific measures to ensure program completeness and
synchronicity for live and near-live programming and how the Commission
should define near-live programming; (3) whether the Commission should
require the use of offline captioning or other measures to achieve
improved accuracy, synchronicity, placement and program completeness of
captions prior to the re-airing of live and near-live programming first
shown after the effective date of any such rule; (4) whether to apply
the ENT requirements adopted for broadcasters to non-broadcast networks
that use ENT and serve less than 50 percent of all MVPD homes to
achieve greater accessibility to news programming; (5) whether to
establish specific maximum intervals for technical equipment checks or
to allow alternatives to such technical equipment checks; (6) whether
to adopt a proposal for improving the prompt resolution of consumers'
captioning concerns by VPDs, and whether to create a publicly available
``dashboard'' that would provide information about all captioning-
related complaints; (7) whether to require that captioning outages be
communicated to viewers in real-time and be reported to the Commission,
consistent with the reporting requirements for other types of outages;
(8) whether to require that all contact information already required to
be submitted by VPDs to the Commission for the VPD registry be
submitted using the Commission's web form system only; (9) how to amend
the Commission's rules regarding the forwarding of consumer complaints
to ensure subscriber privacy when the VPD receiving an informal
complaint is not the responsible party; (10) whether to eliminate or
retain the four-year exemption contained in Sec. 79.1(d)(9) of the
Commission's rules pertaining to new networks, and if retained, whether
to reduce the term of the exemption or limit its availability based on
certain criteria indicative of a start-up network, how to define
network, how to calculate the start date of the network for purposes of
the exemption, and whether and how the exemption should be applied to
networks created as the result of a merger of two or more existing
networks; (11) whether to eliminate or retain the exclusion contained
in Sec. 79.1(a)(1) of the Commission's rules for advertisements of
five minutes duration or less and certain self-implementing exemptions
contained in Sec. 79.1(d) of the Commission's rules, including
exemptions for late night programming, locally produced and distributed
non-news programming with no repeat value, interstitials, promotional
announcements, and public service announcements that are 10 minutes or
less in duration, and channels producing revenues under $3 million;
(12) current practices with regard to technical standards for the
display of closed captioning; (13) the extent to which onscreen visual
changes or textual depictions have caused a problem for caption
viewers; and (14) current practices and capabilities with regard to
closed captioning of 3D TV and ultra HDTV.
39. 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 and policies, if adopted. The RFA
generally defines the term ``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
SBA.
40. Small Businesses, Small Organizations, and Small Governmental
Jurisdictions. As of 2009, small businesses represented 99.9% of the
27.5 million businesses in the United States, according to the SBA.
Additionally, a ``small organization'' is generally ``any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.'' 5 U.S.C. 601(4). 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, counties, towns, townships, villages, school
districts, or special districts, with a population of less than fifty
thousand.'' 5 U.S.C. 601(5). Census Bureau data for 2007 indicate that
there were 89,527 governmental jurisdictions in the United States. The
Commission estimates that, of this total, as many as 88,761 entities
may qualify as ``small governmental jurisdictions.''
41. Cable Television Distribution Services. These services have
been included within the broad economic census category of 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. According to data from the U.S. Census Bureau for
the year 2007, there were 3,188 Wired Telecommunications Carrier firms
that operated for the entire year in 2007. Of these, 3,144 operated
with less than 1,000 employees, and 44 operated with 1,000 or more
employees.
42. Cable Companies and Systems. Under the Commission's rules, a
``small cable company'' is one serving 400,000 or fewer subscribers,
nationwide. 47 CFR 76.901(e). Industry data shows that there are 1,100
cable companies. Of this total, all but 10 incumbent cable companies
are small. In addition, under the Commission's rules, a ``small
system'' is a cable system serving 15,000 or fewer subscribers. 47 CFR
76.901(c). Current Commission records show 4,945 cable systems
nationwide. Of this total, 4,380 cable systems have less than 20,000
subscribers, and 565 systems have 20,000 subscribers or more.
43. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, contains a size standard for
small cable system operators, which is ``a cable operator
[[Page 17102]]
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.'' 47 U.S.C. 543(m)(2); see also 47
CFR 76.901(f) and nn.1-3. Based on available data, all but 10 incumbent
cable operators are small under this size standard.
44. 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. Currently, only two entities, DIRECTV and
DISH Network, provide DBS service, and neither company is a small
business.
45. Wireless Cable Systems--Broadband Radio Service and Educational
Broadband Service. Wireless cable systems use the Broadband Radio
Service (BRS) and Educational Broadband Service (EBS) to transmit video
programming to subscribers. In connection with the 1996 BRS auction,
the Commission established a small business size standard as an entity
that had annual average gross revenues of no more than $40 million in
the previous three calendar years. Of the 67 auction winners, 61 met
the definition of a small business, and of these 61 winners, 48 remain
small business licensees. In addition, there are approximately 392
incumbent BRS licensees that are considered small entities.
Accordingly, there are currently approximately 440 BRS licensees that
are defined as small businesses under either the SBA or the
Commission's rules. In 2009, the Commission conducted Auction 86 for
the sale of 78 BRS licenses, and established three categories of small
businesses: (i) A bidder with attributed average annual gross revenues
that exceed $15 million and do not exceed $40 million for the preceding
three years is a small business; (ii) a bidder with attributed average
annual gross revenues that exceed $3 million and do not exceed $15
million for the preceding three years is a very small business; and
(iii) a bidder with attributed average annual gross revenues that do
not exceed $3 million for the preceding three years is an entrepreneur.
Of the 10 winning bidders, two bidders that claimed small business
status won four licenses; one bidder that claimed very small business
status won three licenses; and two bidders that claimed entrepreneur
status won six licenses.
46. In addition, the SBA's placement of Cable Television
Distribution Services in the category of Wired Telecommunications
Carriers is applicable to cable-based Educational Broadcasting
Services. The SBA has developed a small business size standard for
Wired Telecommunications Carriers, which is all such businesses having
1,500 or fewer employees. According to Census Bureau data for 2007,
there were 3,188 Wired Telecommunications Carrier firms that operated
for the entire year in 2007. Of these, 3,144 operated with less than
1,000 employees, and 44 operated with 1,000 or more employees. In
addition to Census Bureau data, the Commission's internal records
indicate that as of September 2012, there are 2,239 active EBS
licenses. The Commission estimates that of these 2,239 licenses, the
majority are held by non-profit educational institutions and school
districts, which are by statute defined as small businesses.
47. Open Video Services. 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. According to
U.S. Census data for 2007, there were 3,188 firms that in 2007 were
Wired Telecommunications Carriers. Of these, 3,144 operated with less
than 1,000 employees, and 44 operated with 1,000 or more employees.
However, as to the latter 44 there is no data available that shows how
many operated with more than 1,500 employees.
48. Television Broadcasting. The SBA defines a television
broadcasting station as a small business if such station has no more
than $35.5 million in annual receipts. The Commission has estimated the
number of licensed full power commercial television stations to be
1,388. According to U.S. Census data for 2007, there were 2,076
television broadcasting establishments in 2007. Of these, 1,515
establishments had receipts under $10 million, and 561 had receipts of
$10 million or more. The Commission notes, however, that, in assessing
whether a business concern qualifies as small under the above
definition, business control affiliations must be included. Because
many of these stations may be held by large group owners, and the
revenue figures on which the Commission's estimate is based does not
include or aggregate revenues from control affiliates, the Commission's
estimate likely overstates the number of small entities that might be
affected by the Commission's action.
49. The Commission has estimated the number of licensed
noncommercial educational (NCE) full power television stations to be
396. The Commission does not compile and otherwise does not have access
to information on the revenue of NCE stations that would permit it to
determine how many such stations would qualify as small entities. There
are also 428 Class A television stations and 1,986 low power television
stations (LPTV). Given the nature of these services, the Commission
will presume that all Class A television and LPTV licensees qualify as
small entities under the SBA definition.
50. In addition, an element of the definition of ``small business''
is that the entity not be dominant in its field of operation. The
Commission is unable at this time to define or quantify the criteria
that would establish whether a specific television station is dominant
in its field of operation. Accordingly, the estimate of small
businesses to which rules may apply do not exclude any television
station from the definition of a small business on this basis and is
therefore over-inclusive to that extent. Also as noted, an additional
element of the definition of ``small business'' is that the entity must
be independently owned and operated. The Commission notes that it is
difficult at times to assess these criteria in the context of media
entities, and the Commission's estimates of small businesses to which
they apply may be over-inclusive to this extent.
51. Incumbent Local Exchange Carriers (ILECs). Neither the
Commission nor the SBA has developed a small business size standard
specifically for ILECs. 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
and ``is not dominant in its field of operation.'' The SBA's Office of
Advocacy contends that, for RFA purposes, small ILECs are not dominant
in their field of operation because any such dominance is not
``national'' in scope. The Commission has therefore included small
ILECs in this RFA analysis, although the Commission emphasizes that
this RFA action has no effect on Commission analyses and determinations
in other, non-RFA contexts.
52. According to Census Bureau data for 2007, that there were 3,188
firms in this category that operated for the entire year. Of this
total, 3,144 had employment of less than 1000 employees, and 44 firms
had had employment of 1,000 or more. According to Commission data,
1,307
[[Page 17103]]
carriers have reported that they are engaged in the provision of ILEC
services. Of these 1,307 carriers, an estimated 1,006 have 1,500 or
fewer employees and 301 have more than 1,500 employees.
53. Competitive Local Exchange Carriers (CLECs), 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. According to Census Bureau
data for 2007, there were 3,188 firms in this category that operated
for the entire year. Of this total, 3,144 had employment of less than
1000 employees, and 44 firms had had employment of 1,000 employees or
more. According to Commission data, 1,442 carriers reported that they
were engaged in the provision of either CLEC services or CAP services.
Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer
employees and 186 have more than 1,500 employees. In addition, 17
carriers have reported that they are Shared-Tenant Service Providers,
and all 17 are estimated to have 1,500 or fewer employees. Seventy-two
carriers have reported that they are Other Local Service Providers, and
of the 72, 70 have 1,500 or fewer employees and 2 have more than 1,500
employees.
54. Electric Power Distribution Companies. These entities can
provide video services over power lines (BPL). The SBA has developed a
small business size standard for this category, which is all such firms
having 1,000 or fewer employees. Census Bureau data for 2007 show that
there were 1,174 firms that operated for the entire year in this
category. Of these firms, 50 had 1,000 employees or more, and 1,124 had
fewer than 1,000 employees.
55. Cable and Other Subscription Programming. These entities may be
directly or indirectly affected by the Commission's action. The size
standard established by the SBA for this business category is that
annual receipts of $35.5 million or less determine that a business is
small. According to 2007 Census Bureau data, there were 396 firms that
were engaged in production of Cable and Other Subscription Programming.
Of these, 349 had annual receipts below $25 million, 12 had annual
receipts ranging from $25 million to $49,999,999, and 35 had annual
receipts of $50 million or more.
56. Motion Picture and Video Production. These entities may be
directly or indirectly affected by the Commission's action. The size
standard established by the SBA for this business category is that
annual receipts of $30 million or less determine that a business is
small. According to 2007 Census Bureau data, there were 9,095 firms
that were engaged in Motion Picture and Video Production. Of these,
8,995 had annual receipts of less than $25 million, 43 had annual
receipts ranging from $25 million to $49,999,999, and 57 had annual
receipts of $50 million or more.
57. Internet Publishing and Broadcasting and Web Search Portals.
These entities may be directly or indirectly affected by the
Commission's action. 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. Census Bureau
data for 2007 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 23 had 500 or more employees.
58. Closed Captioning Services. These entities may be directly or
indirectly affected by the Commission's action. The SBA has developed
two small business size standards that may be used for closed
captioning services, which track the economic census categories,
``Teleproduction and Other Postproduction Services'' and ``Court
Reporting and Stenotype Services.''
59. The relevant size standard for small businesses in
Teleproduction and Other Postproduction Services is annual revenue of
less than $29.5 million. Census Bureau data for 2007 indicate that
there were 1,605 firms that operated in this category for the entire
year. Of that number, 1,587 had annual receipts totaling less than $25
million, 9 had annual receipts ranging from $25 million to $49,999,999,
and 9 had annual receipts of $50 million or more.
60. The size standard for small businesses in Court Reporting and
Stenotype Services is annual revenue of less than $14 million. Census
Bureau data for 2007 show that there were 2,706 firms that operated for
the entire year. Of this total, 2,687 had annual receipts of under $10
million, 11 firms had annual receipts of $10 million to $24,999,999,
and 8 had annual receipts of $25 million or more.
61. If the Commission were to adopt rules extending
responsibilities for compliance with the Commission's closed captioning
quality standards and other captioning requirements to video
programmers or entities other than VPDs, such regulations would impose
new compliance obligations and may impose additional reporting and
recordkeeping obligations on video programmers, video programming
owners, and other entities, including small entities.
62. If the Commission were to adopt rules requiring the use of
certain measures to ensure program completeness and synchronicity of
closed captions for live and near-live programming and changing the
Commission's current definition of near-live programming for purposes
of the quality standards adopted in the Order, such regulations would
impose additional compliance obligations on VPDs, including small
entities.
63. If the Commission were to adopt rules requiring the use of
offline captioning or other measures to achieve improved accuracy,
synchronicity, placement and program completeness of the captions prior
to the re-airing of live and near-live programs, such regulations would
impose additional compliance obligations on VPDs, including small
entities.
64. If the Commission were to apply the ENT requirements adopted in
the Report and Order for broadcasters to non-broadcast networks that
use ENT and serve less than 50 percent of all MVPD homes, such
regulations would impose new compliance obligations that may pose a
financial burden on some non-broadcast networks, including smaller
entities.
65. If the Commission were to establish maximum intervals for
technical equipment checks, or to allow alternatives to such technical
equipment checks, such regulations would impose additional compliance
obligations on VPDs, including small entities.
66. If the Commission were to adopt the practices proposed by the
NCTA for improving the prompt resolution of consumers' captioning
concerns, including requiring VPDs to make reasonable efforts to
identify consumer complaints received about captioning issues and
periodically review those complaints to identify and resolve recurring
captioning problems, VPDs, including small entities, would be subject
to the recordkeeping requirements associated with the proposal.
67. If the Commission were to adopt rules requiring VPDs
experiencing a captioning outage to notify consumers of the outage and
file outage reports with the Commission, VPDs, including small
entities, would be subject to the reporting and recordkeeping
requirements associated with such outage reports.
[[Page 17104]]
68. If the Commission were to adopt a rule requiring that all
contact information already required to be submitted by VPDs to the
Commission for the VPD registry, see 47 CFR 79.1(i)(3), be submitted
using the Commission's web form system, VPDs, including small entities,
would not be subject to additional reporting and recordkeeping
requirements, because they are already required to submit their contact
information to the Commission. However, VPDs, including small entities,
may be required to alter their reporting and recordkeeping associated
with such submissions in order to comply with the rule.
69. If the Commission were to adopt a rule requiring a VPD, upon
receipt of a complaint where the VPD is not the responsible party, to
(1) notify the consumer within seven days; (2) offer the consumer a
choice of either asking the VPD in writing to forward the complaint to
the appropriate party or submitting the complaint directly to the
appropriate party on his or her own; and (3) inform the Commission that
it has so notified the complainant by providing the Commission with
copies of all written or electronic correspondence or a written
description of all communications that were not in electronic or
written form, VPDs, including small entities, would be subject to the
reporting and recordkeeping requirements associated with such complaint
forwarding and notifications.
70. If the Commission were to eliminate the four-year exemption
contained in Sec. 79.1(d)(9) of its rules pertaining to new networks,
47 CFR 79.1(d)(9), or retain but alter the four-year exemption
pertaining to new networks, it would impose new compliance obligations
that may pose a financial burden on some smaller entities.
71. If the Commission were to eliminate the exclusion from the
definition of video programming for advertisements of five minutes
duration or less, 47 CFR 79.1(a)(1), and if the Commission were to
eliminate certain self-executing exemptions contained in Sec. 79.1(d)
of its rules, including exemptions for late night programming, 47 CFR
79.1(d)(5), locally produced and distributed non-news programming with
no repeat value, 47 CFR 79.1(d)(8), interstitials, promotional
announcements, and public service announcements that are 10 minutes or
less in duration, 47 CFR 79.1(d)(6), and channels producing revenues
under $3 million, 47 CFR 79.1(d)(12), it would impose new compliance
obligations that may pose a financial burden on VPDs, including small
entities.
72. If the Commission were to take action to ensure the effective
implementation of the technical standards for the display of closed
captioning, it may impose additional compliance obligations on
television manufacturers and VPDs, including small entities.
73. If the Commission were to adopt rules governing on-screen
visual changes or textual depictions that obstruct closed captioning,
it may impose additional compliance obligations on VPDs and video
programmers, including small entities.
74. If the Commission were to adopt additional rules governing
closed captioning of 3D television and Ultra HDTV, it may impose
additional compliance obligations on television manufacturers and VPDs,
including small entities.
75. 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.
76. First, the rules already allow small entities to take advantage
of various possible exemptions: (1) The exemption for annual revenues
under $3 million, 47 CFR 79.1(d)(12) (However, document FCC 14-12 seeks
comment on whether to eliminate this exemption), (2) the exemption
limiting the captioning requirement to 2% of annual gross revenues, 47
CFR 79.1(d)(11), and (3) the individual exemption process that allows
the Commission to grant exemptions from the captioning rules when the
provision of captions would impose an economic burden on a programming
entity. 47 CFR 79.1(f).
77. If the Commission were to adopt rules extending
responsibilities for compliance with the Commission's closed captioning
requirements (including each of the proposals noted above) to video
programmers and entities other than VPDs, such regulations would impose
new compliance obligations and may impose additional reporting and
recordkeeping obligations on video programmers, video programming
owners, and other entities, including small entities. However,
extending responsibilities for compliance with the Commission's closed
captioning requirements to video programmers and other entities may
benefit certain small entities through more efficient regulations that
reach those entities with the greatest control over closed captioning
quality. In addition, in determining whether to extend responsibility
for compliance with the Commission's closed captioning requirements to
video programmers or other entities involved in the production and
delivery of video programming, the Commission will consider the costs
of and benefits of such extension of responsibilities.
78. If the Commission were to adopt rules requiring the use of
certain measures to ensure program completeness and synchronicity of
closed captions for live and near-live programming and changing the
Commission's current definition of near-live programming for purposes
of the quality standards adopted in the Order, such regulations would
impose additional compliance obligations on VPDs, video programmers, or
other entities, including small entities. However, such regulations are
less burdensome than the alternative of regulations imposing specific
metrics for captioning synchronicity and program completeness. In
addition, in determining whether to require certain techniques for
improving the quality of real-time captioning of live programming, the
Commission will consider the incremental costs and burdens of using any
of the proposed techniques compared with the benefits of greater
accessibility to television programming.
79. If the Commission were to adopt rules requiring the use of
offline captioning or other measures to achieve improved accuracy,
synchronicity, placement and program completeness of the captions prior
to the re-airing of live and near-live programming first shown after
the effective date of any such rule, such regulations would impose
additional compliance obligations on VPDs, video programmers, or other
entities including small entities. In determining whether to require
certain techniques for improving the quality of captioning of live or
near-live programming that is later re-aired, the Commission will
consider the costs and burdens of using any of the proposed techniques
compared with the benefits of greater accessibility to television
programming.
80. If the Commission were to apply the ENT requirements adopted in
the Order to non-broadcast networks that
[[Page 17105]]
use ENT and serve less than 50 percent of all MVPD homes to ensure
greater accessibility to news programming, such regulations would
impose new compliance obligations that may pose a financial burden on
some non-broadcast networks, including small entities. However, the
Commission's proposal to apply the ENT requirements to non-broadcast
channels serving less than 50 percent of all MVPD homes provides a less
burdensome alternative to a phase-out of ENT, which would impose higher
burdens and costs on small entities under the current rules. In
addition, networks with small budgets would still be able to take
advantage of various possible exemptions: (1) The exemption for annual
revenues under $3 million, 47 CFR 79.1(d)(12) (document FCC 14-12 also
seeks comment on whether to eliminate the exemption for annual revenues
under $3 million), (2) the exemption limiting the captioning
requirement to 2% of annual gross revenues, 47 CFR 79.1(d)(11), and (3)
the individual exemption process that allows the Commission to grant
exemptions from the captioning rules when the provision of captions
would impose an economic burden on a programming entity. 47 CFR
79.1(f).
81. If the Commission were establish maximum intervals for
technical equipment checks, or other measures that can be used to
ensure that captions are passed on to consumers, such regulations would
impose additional compliance obligations on VPDs, including small
entities. In determining whether to require intervals for such checks
or other measures, the Commission will consider the costs and burdens
of these requirements compared with the value of this maintenance to
greater accessibility to television programming.
82. If the Commission were to adopt the practices proposed by NCTA
for improving the prompt resolution of consumers' captioning concerns,
VPDs, including small entities, would be subject to the recordkeeping
requirements associated with the proposal. However, the proposal would
impose no reporting requirements and does not require specific measures
for identifying and reviewing consumer complaints related to closed
captioning problems. In addition, such a requirement may benefit small
entities because it may reduce consumer complaints regarding
captioning, because the VPDs may be addressing problems earlier as a
result of these procedures.
83. If the Commission were to adopt rules requiring VPDs
experiencing a captioning outage to notify consumers in real time of
the outage and file outage reports with the Commission, VPDs, including
small entities, would be subject to the reporting and recordkeeping
requirements associated with such outage reports. Adopting such a
requirement would be in the public interest because it would provide
greater consumer access to information about captioning outages. In
addition, such a requirement may benefit small entities because it may
reduce consumer complaints regarding captioning outages, because the
outage notifications would inform consumers that the VPD is aware of
and addressing the problem.
84. If the Commission were to adopt a rule requiring that all
contact information already required to be submitted by VPDs to the
Commission for the VPD registry, see 47 CFR 79.1(i)(3), be submitted
using the Commission's web form system only, VPDs, including small
entities, would not be subject to additional reporting and
recordkeeping requirements, since they are already required to submit
their contact information to the Commission. However, VPDs, including
small entities, may be required to alter their reporting and
recordkeeping associated with such submissions in order to comply with
the rule. In determining whether to require VPDs to submit their
contact information via the web form, the Commission will consider the
costs of transitioning to a mandatory web form method of filing,
compared with the ease and accuracy of filing and the benefits derived
from a mandatory system.
85. If the Commission were to adopt a rule requiring a VPD, upon
receipt of a complaint where the VPD is not the responsible party, to
(1) notify the consumer within seven days; (2) offer the consumer a
choice of either asking the VPD in writing to forward the complaint to
the appropriate party or submitting the complaint directly to the
appropriate party on his or her own; and (3) inform the Commission that
it has so notified the complainant by providing the Commission with
copies of all written or electronic correspondence or a written
description of all communications that were not in electronic or
written form, VPDs, including small entities, would be subject to the
reporting and recordkeeping requirements associated with such complaint
forwarding and notifications. This rule is intended to allow for the
forwarding of consumer complaints as required by Sec. 79.1(g)(3) of
the Commission's rules without violating the consumer protections
contained in sections 631(c)(1) and 338(i)(4) of the Act. Nevertheless,
in determining whether to adopt this rule, the Commission will consider
the costs of forwarding complaints upon consumer request and notifying
the Commission of actions taken compared to the benefits of providing a
consumer-friendly way to get the complaints to the correct parties.
86. If the Commission were to eliminate the four-year exemption
contained in Sec. 79.1(d)(9) of the Commission's rules pertaining to
new networks, or retain but alter the four-year exemption pertaining to
new networks, it would impose new compliance obligations that may pose
a financial burden on some small entities. However, under the current
rules, networks with small budgets would still be able to take
advantage of various possible exemptions: (1) The exemption for annual
revenues under $3 million, 47 CFR 79.1(d)(12) (document FCC 14-12 also
seeks comment on whether to eliminate the exemption for annual revenues
under $3 million), (2) the exemption limiting the captioning
requirement to 2% of annual gross revenues, 47 CFR 79.1(d)(11), and (3)
the individual exemption process that allows the Commission to grant
exemptions from the captioning rules when the provision of captions
would impose an economic burden on a programming entity. 47 CFR
79.1(f).
87. If the Commission were to eliminate the exclusion from the
definition of video programming for advertisements of five minutes
duration or less, 47 CFR 79.1(a)(1), and if the Commission were to
eliminate certain self-executing exemptions contained in Sec. 79.1(d)
of its rules, including exemptions for late night programming, 47 CFR
79.1(d)(5), locally produced and distributed non-news programming with
no repeat value, 47 CFR 79.1(d)(8), interstitials, promotional
announcements, and public service announcements that are 10 minutes or
less in duration, 47 CFR 79.1(d)(6), and channels producing revenues
under $3 million, 47 CFR 79.1(d)(12), it would impose new compliance
obligations that may pose a financial burden on VPDs, including small
entities. However, under the current rules, entities with small budgets
would still be able to take advantage of other possible exemptions: (1)
The exemption limiting the captioning requirement to 2% of annual gross
revenues, 47 CFR 79.1(d)(11), and (2) the individual exemption process
that allows the Commission to grant exemptions from the captioning
rules when the provision of captions would impose an economic burden on
a programming entity. 47 CFR 79.1(f).
[[Page 17106]]
88. If the Commission were to take action to ensure the effective
implementation of the technical standards for the display of closed
captioning, it may impose additional compliance obligations on
television manufacturers and VPDs, including small entities. In
determining whether to require any other practices governing technical
standards for the display of closed captioning, the Commission will
consider the costs and burdens of such practices compared with the
benefits of greater accessibility to television programming.
89. If the Commission were to adopt rules governing on-screen
visual changes or textual depictions that obstruct closed captioning,
it may impose additional compliance obligations on VPDs and video
programmers, including small entities. In determining whether to
require any other practices governing on-screen visual changes or
textual depictions that obstruct closed captioning, the Commission will
consider the costs and burdens of such practices compared with the
benefits of greater accessibility to television programming.
90. If the Commission were to adopt rules governing display of
closed captioning, closed captioning of 3D television or Ultra HDTV
programming, it may impose additional compliance obligations on
television manufacturers and VPDs, including small entities. However,
VPDs are already subject to rules governing the display of closed
captioning and are required to reliably encode, transport, and render
closed captions on 3D and Ultra HDTV video programming in accordance
with Commission rules. Also, in accordance with the Commission's
captioning rules, such VPDs and providers must permit the pass through
or rendering of closed captions in a manner that will allow viewers to
exercise control over various display features and to activate and
deactivate captions when video programming is played back on television
receivers with 3D or Ultra HDTV capability. Finally, interconnection
mechanisms and standards for 3D and Ultra HDTV video source devices
must be capable of conveying from the source device to the consumer
equipment the information necessary to permit or render the display of
closed captions. In determining whether to require any other practices
for the display of closed captioning or captioning 3D television or
Ultra HDTV, the Commission will consider the costs and burdens of such
practices compared with the benefits of greater accessibility to
television programming.
91. Federal Rules Which Duplicate, Overlap, or Conflict With, the
Commission's Proposals. None.
Ordering Clauses
Pursuant to sections 4(i), 303(r) and 713 of the Communications Act
of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 613, document FCC 14-
12 is adopted.
The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, shall send a copy of document FCC 14-12
including the Initial Regulatory Flexibility Certification, to the
Chief Counsel for Advocacy of the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2014-06755 Filed 3-26-14; 8:45 am]
BILLING CODE 6712-01-P