[Federal Register Volume 81, Number 163 (Tuesday, August 23, 2016)]
[Rules and Regulations]
[Pages 57473-57489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19685]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[CG Docket No. 05-231; FCC 16-17]


Closed Captioning of Video Programming; Telecommunications for 
the Deaf and Hard of Hearing, Inc., Petition for Rulemaking

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) allocates the responsibilities of video programming 
distributors (VPDs) and video programmers with respect to the provision 
and quality of closed captions on television programming, with each 
entity responsible for closed captioning issues that are primarily 
within its control; amends the Commission's captioning complaint 
procedures to include video programmers in the handling of complaints; 
and requires video programmers to register contact information and 
certify compliance with captioning obligations directly with the 
Commission.

DATES: Effective September 22, 2016, except for 47 CFR 79.1(g)(1) 
through (9), (i)(1) through (3), (j)(1) and (4), (k)(1)(iv), and (m) of 
the Commission's rules, which contain information collection 
requirements that are not effective until approved by the Office of 
Management and Budget (OMB). The Commission will publish a document in 
the Federal Register announcing the effective date for those sections.

FOR FURTHER INFORMATION CONTACT: Eliot Greenwald, Disability Rights 
Office, Consumer and Governmental Affairs Bureau, at phone: (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 Second Report and Order 
(Second Report and Order), document FCC 16-17, adopted on February 18, 
2016, and released on February 19, 2016. The full text of document FCC 
16-17 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. 
Document FCC 16-17 can also be downloaded in Word or Portable Document 
Format (PDF) at: https://www.fcc.gov/general/disability-rights-office-headlines. 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).

Final Paperwork Reduction Act of 1995 Analysis

    Document FCC 16-17 contains new and modified information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, will invite the general public to comment on 
the information collection requirements contained in document FCC 16-17 
as required by the Paperwork Reduction Act of 1995 (PRA), Public Law 
104-13. In addition, the Commission notes that, pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 
3506(c)(4), the Commission previously sought comment on how the 
Commission might ``further reduce the information collection burden for 
small business concerns with fewer than 25 employees.'' See Closed 
Captioning of Video Programming; Telecommunications for the Deaf and 
Hard of Hearing, Inc., Petition for Rulemaking, Report and Order, 
Declaratory Ruling, and Further Notice of Proposed Rulemaking, 
published at 79 FR 17093, March 27, 2014 (Further Notice of Proposed 
Rulemaking) and 79 FR 17911, March 31, 2014 (Report and Order) 
(references are to the Closed Captioning Quality Order when discussing 
parts of the Report and Order, and to the Closed Captioning Quality 
Further Notice when discussing parts of the Further Notice of Proposed 
Rulemaking).

Synopsis

    1. Closed captioning is a technology that provides visual access to 
the audio content of video programs by displaying this content as 
printed words on the television screen. In 1997, the Commission, acting 
pursuant to section 713 of the Communications Act (the Act), 47 U.S.C. 
713, adopted rules regarding closed captioning on television. On 
February 24, 2014, the Commission adopted the Closed Captioning Quality 
Order in which, among other things, it placed responsibility for 
compliance with the non-technical closed captioning quality standards 
on (VPDs) while simultaneously releasing the Closed Captioning Quality 
Further Notice to seek comment on, among other issues, extending some 
of the responsibilities for complying with the closed captioning 
quality standards to other entities involved in the production and 
delivery of video programming. On December 15, 2014, the Commission 
released a Second Further Notice seeking to supplement the record in 
this proceeding in response to comments received on the Closed 
Captioning Quality Further Notice. Closed Captioning of Video 
Programming; Telecommunications for the Deaf and Hard of Hearing, Inc., 
Petition for Rulemaking, Second Further Notice of Proposed Rulemaking, 
published at 79 FR 78768, December 31, 2014 (Closed Captioning Quality 
Second Further Notice).
    2. Responsibilities of VPDs and Video Programmers. In its 1997 
Closed Captioning Report and Order, the Commission placed sole 
responsibility for compliance with its television closed captioning 
rules on VPDs. Closed Captioning and Video Description of Video 
Programming, Implementation of Section 305 of the Telecommunications 
Act of 1996, Video Programming Accessibility, Report and Order, 
published at 62 FR 48487, September 16, 1997 (1997 Closed Captioning 
Report and Order). At that time, the Commission concluded that holding 
VPDs responsible would most expeditiously increase the availability of 
television programming with closed captions and promote efficiency in 
the Commission's monitoring and enforcement of its captioning rules. At 
the same time, the Commission recognized the Commission's jurisdiction, 
under section 713 of the Act, over both video programming providers and 
owners to ensure the provision of closed captioning of video 
programming, and noted its expectation that both ``owners and producers 
will be involved in the captioning process.''
    3. In the Closed Captioning Quality Order, the Commission similarly 
placed the responsibility for compliance with the non-technical closed 
captioning quality standards on VPDs. However, recognizing that the 
creation and delivery of quality closed captioning is not solely within 
the control of VPDs and that video programmers play a ``critical role'' 
in providing closed captions to viewers, the Commission stated that it 
would allow a VPD to satisfy its obligations with respect to the 
caption quality rules by obtaining or making best efforts to obtain

[[Page 57474]]

certifications on captioning quality from its video programmers that 
such programmers are in compliance with the Commission's quality 
standards or related best practices. At the same time, as noted above, 
the Closed Captioning Further Notice sought comment on whether the 
Commission should revise its rules to allocate responsibilities for 
compliance with the television closed captioning obligations, including 
the obligation to provide quality captions, among various entities 
involved in the production and delivery of video programming. To this 
end, among other things, the Commission also sought comment on a 
specific proposal by Comcast/NBC Universal (Comcast) for a ``burden-
shifting enforcement model'' that would place the initial burden of 
addressing captioning matters on VPDs, but then extend some captioning 
responsibilities to video programming owners (VPOs).
    4. The Commission concludes that the obligations associated with 
compliance with the Commission's closed captioning quality rules shall 
be divided between VPDs and video programmers, making each entity 
responsible for closed captioning quality issues that are primarily 
within its control. It further concludes that the responsibilities 
associated with ensuring the provision of closed captions on television 
shall remain primarily with VPDs, but amends its rules to also hold 
video programmers responsible for ensuring the insertion of closed 
captions on all their nonexempt programming. The Commission also 
concludes that the video programmer certifications that video 
programmers must now make widely available to VPDs should instead be 
filed with the Commission.
    5. Definitions of Video Programmers and Video Programming Owners. 
The Closed Captioning Quality Order defined a video programmer as 
``[a]ny entity that provides video programming that is intended for 
distribution to residential households including, but not limited to, 
broadcast or nonbroadcast television networks and the owners of such 
programming,'' noting that such programmers are a subset of VPPs. The 
Closed Captioning Quality Further Notice also noted that the Commission 
has defined VPOs for purposes of requiring captions on video 
programming delivered via Internet protocol, in part, as ``any person 
or entity that `[l]icenses the video programming to a video programming 
distributor or provider that makes the video programming available 
directly to the end user through a distribution method that uses 
Internet protocol.''' The Captioning Quality Further Notice sought 
comment on whether the definition of video programmer adopted in the 
Closed Captioning Quality Order is sufficiently broad in scope or 
whether the Commission should expand the definition to cover other 
categories of entities, and if so, which entities. The Commission also 
sought comment on whether and how the Commission should define VPOs 
with respect to the television closed captioning rules.
    6. Document FCC 16-17 applies the definition of video programmer 
adopted in the Closed Captioning Quality Order without change. That 
definition does not exclude entities that provide programming for 
distribution to locations other than the home; rather it merely makes 
the intent to distribute to residential households a criterion of the 
definition. In other words, if an entity intends for its programming to 
be distributed to residential households, the entity will meet the 
definition of a ``video programmer'' and will be covered by the 
Commission's captioning rules, even if the video programmer's 
programming also reaches devices, such as tablets and other mobile 
devices that can be used outside the home.
    7. Document FCC 16-17 defines VPO, for purposes of television 
captioning, as any person or entity that either (i) licenses video 
programming to a VPD or provider that is intended for distribution to 
residential households; or (ii) acts as the VPD or VPP, and also 
possesses the right to license video programming to a VPD or VPP that 
is intended for distribution to residential households. As is the case 
with video programmers, an entity will be considered a VPO if it 
licenses or possesses the right to license programming that is intended 
for distribution to residential households, even if the programming is 
also distributed to devices that are not located in the home. 
Accordingly, the captioning rules will cover video programming that is 
provided by such VPOs to VPPs and VPDs and distributed over VPD 
systems, even if the VPO's programming reaches devices, such as tablets 
and other mobile devices that may or may not be located in the home.
    8. Commission Authority under Section 713 of the Act. The 
Commission reaffirms determinations, made in the 1997 Closed Captioning 
Report and Order and the Closed Captioning Quality Order, that the 
Commission has authority under section 713 of the Act to impose 
obligations for compliance with the Commission's closed captioning 
rules on both VPDs and video programmers. Section 713 of the Act 
authorizes the Commission to ensure the provision of closed captioning 
of video programming by providers and owners of video programming. 
Section 713(b)(2) of the Act directs the Commission to prescribe 
regulations that ``shall ensure'' that ``video programming providers or 
owners maximize the accessibility of video programming first published 
or exhibited prior to the effective date of such regulations through 
the provision of closed captions.'' Additionally, various subsections 
of section 713(d) authorize exemptions for both VPPs and program 
owners. The legislative history of section 713 of the Act further 
reflects Congress's intent to extend the Commission's authority over 
captioning of video programming to various entities involved in the 
production and delivery of video programming, including the 
distributors and owners of such programs, recognizing that ``[i]t is 
clearly more efficient and economical to caption programming at the 
time of production and to distribute it with captions than to have each 
delivery system or local broadcaster caption the program.''. H.R. Rep. 
No. 104-204, 104th Cong., 1st Sess. (1995) at 114.
    9. The Commission has long recognized its jurisdiction under 
section 713 of the Act to impose closed captioning obligations on both 
VPDs and video programmers. The Commission referenced its authority in 
the 1997 Closed Captioning Report and Order and the Closed Captioning 
Quality Order, and extended certain captioning responsibilities to VPOs 
in the IP Captioning Report and Order, which created requirements for 
captioned television programs to be displayed with captions when 
delivered via Internet protocol. Closed Captioning of Internet 
Protocol-Delivered Video Programming: Implementation of the Twenty-
First Century Communications and Video Accessibility Act of 2010, 
published at 77 FR 19480, March 30, 2012 (IP Captioning Report and 
Order). There, the Commission concluded that placing obligations on 
VPOs would ensure that the Commission could hold a responsible party 
accountable for violations of the Twenty-First Century Communications 
and Video Accessibility Act (CVAA). Public Law 11-260, 124 Stat. 2751 
(2010), technical corrections, Public Law 111-265, 124 Stat. 2795 
(2010); IP Captioning Report and Order. Similarly, changes made to the 
Commission's requirements for the presentation of accessible emergency 
information on television added video programming providers, which 
includes program owners, as parties responsible (along with VPDs) for 
making such information accessible to individuals

[[Page 57475]]

who are blind or visually impaired. The Commission ruled that the 
entity that creates the visual emergency information content and adds 
it to the programming stream is responsible for providing an aural 
representation of the information on a secondary audio stream, whether 
that entity is the VPD or VPP. In the Matter of Accessible Emergency 
Information, and Apparatus Requirements for Emergency Information and 
Video Description: Implementation of the Twenty-First Century 
Communications and Video Accessibility Act of 2010, Video Description: 
Implementation of the Twenty-First Century Communications and Video 
Accessibility Act of 2010, Report and Order and Further Notice of 
Proposed Rulemaking, published at 78 FR 31800, May 24, 2013 (2013 
Emergency Information Order) (amending 47 CFR 79.2). Document FCC 16-17 
reaffirms that section 713 of the Act gives the Commission jurisdiction 
to ensure the provision of closed captioning of video programming by 
both VPDs and video programmers.
    10. Responsibilities for Ensuring Captioning Quality. The 
Commission concludes that it is appropriate to allocate responsibility 
for compliance with the closed captioning quality rules between VPDs 
and video programmers by placing responsibility on each entity for 
those aspects of closed captioning quality over which they primarily 
have control. The Commission reaches this conclusion because video 
programmers exert the most direct control over the creation of closed 
captions, and thus, as compared to VPDs, can exercise greater control 
over the non-technical quality components of closed captioning. At the 
same time, VPDs primarily have control over the technical aspects of 
captioning quality related to the pass-through and distribution of 
programming to end users.
    11. There are a number of tasks associated with the provision of 
quality closed captions performed by video programmers. These entities 
``enter into contracts with captioning vendors, control when 
programming is delivered to captioning vendors to be captioned, and 
incorporate captioning with programming for delivery to VPDs.'' See 
Closed Captioning Quality Order. The critical role that video 
programmers play in creating quality captioning justifies changing the 
allocation of responsibility for compliance with the caption quality 
requirements. The Commission thus affirms the finding made in the 
Closed Captioning Quality Order that ``video programmers typically are 
the entities with the most direct control over the quality of closed 
captioning of their program.'' It is for this reason that the 
Commission believes that assigning some responsibility for the quality 
of closed captioning directly to video programmers will more 
efficiently and effectively achieve compliance with the Commission's 
closed captioning quality requirements.
    12. VPDs receive programs with the embedded captions supplied by 
video programmers, and while VPDs have an obligation to ensure that 
their technical equipment is capable of passing through program signals 
with captions in a manner that does not adversely affect the non-
technical quality components (accuracy, synchronicity, completeness and 
placement), the record shows that video programmers are responsible in 
the first instance for making sure that captions meet these quality 
components--i.e., at the time when programmers initially arrange for 
the inclusion and insertion of such captions on their programs. Video 
programmers thus have primary control over ensuring that the non-
technical quality standards are met. In addition, allocating captioning 
quality responsibilities between VPDs and video programmers will be 
more efficient and effective than attempting to reach video programmers 
indirectly through their contracts with VPDs. The Commission concludes 
that the responsibilities imposed by the contractual arrangements 
between these entities will not be as effective or efficient as direct 
responsibility on the part of video programmers to achieve compliance 
with the Commission's new closed captioning quality obligations.
    13. First, the record shows that contractual arrangements between 
VPDs and video programmers may not be fully effective to ensure that 
video programmers will provide quality closed captions. Financial 
constraints and lack of influence may impede a VPD's ability to enforce 
agreements where violations of the captioning quality standards occur. 
Even in those instances in which a VPD is able to enforce its 
contractual agreement, the video programmer may decide to simply 
indemnify the VPD rather than correct the captioning quality problem.
    14. The Commission concludes that having VPDs and video programmers 
share captioning quality responsibilities is likely to improve the 
efficacy of the complaint process because it will assign responsibility 
to the entity most able to effectively resolve the complaint. In 
addition, by allowing the Commission to take enforcement action against 
video programmers as well as VPDs, it will create incentives for both 
entities to take actions within their control to resolve quality 
problems swiftly and to the satisfaction of consumers. The record in 
this proceeding reveals that captioning quality problems can stem from 
the actions or inactions of either VPDs or video programmers. The new 
procedures adopted in this order for resolving captioning quality 
complaints consider this fact, and utilize the established relationship 
between VPDs and programmers, as well as VPDs and consumers, to 
simplify the resolution of complaints for consumers. In this regard, to 
the extent that a VPD is responsible for captioning problems, under a 
regulatory scheme of divided responsibility, the VPD will remain 
responsible for rectifying those problems. Likewise, video programmers 
will remain responsible for addressing captioning problems primarily 
within their control.
    15. The Commission amends its rules to require video programmers to 
ensure that closed captioning data provided to VPDs complies with the 
Commission's closed captioning quality standards. The Commission will 
also continue to require VPDs to pass through programming with the 
original closed captioning data intact, in a format that can be 
recovered and displayed by consumers. Thus, under the new rules, video 
programmers will be responsible for closed captioning quality problems 
that stem from producing the captions, as well as transmission of the 
captions by the video programmers to the VPDs up to when the 
programming is handed off to the VPDs. VPDs will be responsible for 
closed captioning quality problems that are the result of faulty 
equipment or the failure to pass through closed captioning data intact. 
As a result, a VPD will be held responsible for a violation of the 
caption quality rules when the circumstances underlying the violation 
are primarily within the control of the VPD, and a video programmer 
will be held responsible for a violation of the caption quality rules 
when the circumstances underlying the violation are primarily within 
its control. Assigning liability in this manner will allow VPDs and 
video programmers to focus their resources on the captioning 
transmission processes over which they have the most control, thereby 
increasing their individual incentives to provide quality closed 
captions.
    16. Responsibilities for the Provision of Captioning. Section 
79.1(b) of the Commission's rules currently places on VPDs the 
responsibility for ensuring the provision of closed captions on non-
exempt television programs. The Closed Captioning Quality Further 
Notice sought comment on whether the

[[Page 57476]]

Commission should revise this rule to allocate some of this 
responsibility to other programming entities, such as video 
programmers.
    17. The Commission concludes that the better approach for ensuring 
the provision of closed captions on television is to continue to hold 
VPDs primarily responsible for this obligation on the programming they 
carry, but to also hold video programmers responsible where they fail 
to provide captions on non-exempt programming. The Commission reaches 
this conclusion because it believes that its prior policy of placing 
sole responsibility on VPDs for the provision of closed captions on 
television programs failed to consider fully the significant role that 
video programmers play in the provision of captions on their video 
programming. Given that video programmers have control over the 
provision of closed captioning on programs they make available to VPDs 
for distribution to viewers, the Commission believes that it would be 
more effective and efficient to hold video programmers accountable for 
ensuring the insertion of closed captions on all of their programming 
that is not exempt, and the Commission amends Sec.  79.1(b) of its 
rules to include the responsibilities of video programmers.
    18. Yet, because the VPDs have an important role in the 
distribution of captioned programming, the Commission will maintain its 
current rules requiring VPDs to remain primarily responsible for 
ensuring the provision of closed captions on their programming, 
including the obligation to pass through programming with the original 
closed captioning data intact, in a format that can be recovered and 
displayed by consumers. The Commission believes that allocating 
responsibilities for the provision of closed captioning in this manner 
will incentivize entities with the greatest control over each aspect of 
the closed captioning carriage, transmission and delivery processes to 
provide closed captions. It also believes that the approach adopted 
herein will maintain the current incentives for VPDs to ensure that the 
programming they carry is in compliance with the Commission's rules, 
while allowing the Commission to reach video programmers in instances 
where such entities have been non-compliant. The Commission concludes 
that the ability to hold both video programmers and VPDs responsible 
for the carriage of closed captions will encourage both parties to work 
together and thereby ensure greater access to television programming 
for people who are deaf and hard of hearing.
    19. The Commission further concludes that this approach will 
respond to requests by commenters to eliminate a potential ``liability 
gap'' in the Commission's captioning rules, that they claim has arisen 
by permitting VPDs to rely on certifications from programming suppliers 
to demonstrate compliance with the Commission's rules. Under the 
current rules, a VPD may rely on a certification from the programming 
supplier, even when ``a programming source falsely certifies that the 
programming delivered to the distributor meets the Commission's 
captioning requirements if the distributor is unaware that the 
certification is false.'' 47 CFR 79.1(g)(6). Moreover, because the 
current rules do not assign responsibility to video programmers, they 
are not held accountable even where a video programmer either fails to 
provide a certification, provides a false certification, or simply 
fails to provide the required captioning. The Commission's decision to 
hold VPDs primarily responsible for the provision of closed captioning 
while allocating some responsibility to video programmers will ensure 
that the responsible entities are held accountable when closed 
captioning is not provided and will better enable the Commission to 
fulfill Congress's intent to ensure the accessibility of video 
programming.
    20. Video Programmer Certification. Because of the decision to 
allocate responsibility between video programmers and VPDs for the 
quality and provision of closed captioning, the Commission concludes 
that its rules governing these certifications should be amended to (1) 
make such certifications mandatory and (2) require video programmers to 
file these certifications with the Commission. At present, the 
Commission's rules provide for two separate types of video programmer 
certifications in the closed captioning context.
    21. The first type of certification is under Sec.  79.1(g)(6) of 
the Commission's rules, which provides that VPDs may rely upon 
certifications from programming suppliers, including programming 
producers, programming owners, network syndicators and other 
distributors, to demonstrate a program's compliance with the captioning 
provision rules. This section goes on to state that VPDs will ``not be 
held responsible for situations where a program source falsely 
certifies that programming delivered to the distributor meets [the 
Commission's] captioning requirements if the distributor is unaware 
that the certification is false.'' 47 CFR 79.1(g)(6). Under the 
Commission's current rules, there is no affirmative obligation on the 
part of VPDs to obtain such certifications or on programming suppliers 
to provide them. Additionally, the Commission's rules simply permit a 
VPD to rely on these certifications to prove that there was no 
underlying obligation to caption the programming received. This is the 
case even if the certification received is false (unless the VPD was 
aware of such falsehood).
    22. The second type of programmer certification, which VPDs must 
make best efforts to obtain, was adopted by the Commission in the 
Closed Captioning Quality Order, and is contained in Sec.  79.1(j)(1) 
of the Commission's rules. Under this rule, a VPD must exercise best 
efforts to obtain one of the following certifications from each video 
programmer with respect to the programming supplied to the VPD: (i) 
That the video programmer's programming satisfies the caption quality 
standards, see 47 CFR 79.1(j)(2) (stating the requirements with regard 
to captioning quality standards); (ii) that in the ordinary course of 
business, the video programmer has adopted and follows the Best 
Practices for video programmers with respect to captioning quality, see 
47 CFR 79.1(k)(1) (stating the specific requirements with regard to 
Best Practices); or (iii) that the video programmer is exempt from the 
closed captioning rules, under one or more properly attained 
exemptions. If a video programmer claims an exemption from the 
captioning rules, it must also specify the exact exemption. 47 CFR 
79.1(j)(1). In addition, Sec.  79.1(k)(1)(iv) of the Commission's rules 
requires a video programmer that adopts Best Practices to certify to 
its VPDs that it has adopted and is following Best Practices for video 
programmers with respect to quality. Section 79.1(j)(1) and (k)(1)(iv) 
of the Commission's rules requires that the video programmer make this 
certification widely available, with Sec.  79.1(j)(1) of the 
Commission's rules requiring that the video programmer do so within 30 
days after receiving a written request to do so from a VPD.
    23. In the Closed Captioning Quality Second Further Notice the 
Commission sought comment on the need to alter its video programmer 
certification requirements if it extends some responsibilities for 
compliance with its closed captioning rules to video programmers. 
Specifically, the Commission asked whether it should amend Sec.  
79.1(j)(1) of its rules to require video programmers to file their 
certifications on caption quality with the Commission (rather than 
making

[[Page 57477]]

such certifications widely available through other means) and whether 
it should amend Sec.  79.1(k)(1)(iv) of its rules to make the filing of 
certifications with the Commission part of video programmers' Best 
Practices. The Commission also sought comment on whether it should 
amend Sec.  79.1(g)(6) of its rules to require video programmers to 
file certifications with the Commission that they are in compliance 
with the Commission's rules for the provision of closed captioning.
    24. The Commission concluded that changing the certification 
processes to require video programmers to provide certifications to the 
Commission of their compliance with the Commission's rules regarding 
the provision and quality of closed captions is necessary to 
effectively implement the new apportionment of the closed captioning 
obligations. To better ensure compliance with the rules and simplify 
the certification process, the Commission revises its certification 
processes to collapse the certification requirements contained in Sec.  
79.1(g)(6), (j)(1), and (k)(1)(iv) of its rules into a single rule 
that, with respect to non-exempt programming, makes mandatory the 
obligation for each video programmer to submit to the Commission a 
certification that its programming (1) is in compliance with the 
obligation to provide closed captioning and (2) either complies with 
the captioning quality standards or adheres to the Best Practices for 
video programmers with respect to captioning quality. In the event that 
some or all of the programming in question is exempt under one or more 
of the exemptions set forth in the Commission's rules, in lieu of the 
above certification, the video programmer must submit a certification 
attesting to such exemption and specifying each category of exemption 
that is claimed. The Commission now requires video programmers to file 
their certifications with the Commission when they first launch and on 
an annual basis, on or before July 1 of each year, and to use the 
Commission's web form filing system for such submissions.
    25. By amending the Commission's rules to make certification as to 
the provision and quality of closed captions by video programmers 
mandatory, the Commission will hold video programmers accountable for 
their certifications, e.g., where a submitted certification is false or 
a programmer fails to provide the requisite certifications. A video 
programmer's failure to submit a certification or submission of a false 
certification will be deemed a violation of the Commission's rules that 
is separate from any violations related to the failure to provide 
quality captions.
    26. The Commission concludes that requiring video programmers to 
file their certifications with the Commission, rather than with VPDs 
(as currently required), also will create greater efficiencies because 
it will create a single repository for all video programmer 
certifications, providing greater transparency and ease of reference 
for video programmers, consumers and VPDs. Moreover, this approach 
eliminates the need to rely on VPDs to obtain certifications from video 
programmers, and for VPDs to undertake the task of locating and 
collecting such certifications.
    27. Because VPDs will remain primarily responsible for the 
provision of closed captioning on the non-exempt programming that they 
carry, certifications from video programmers will be necessary to 
inform VPDs of the extent to which the programming that they carry 
contained closed captions upon receipt. VPDs can then rely on these 
certifications to prove compliance, so long as they do not know or do 
not have reason to know a certification is false and so long as the 
VPDs pass through such captions intact to viewers. Requiring video 
programmers to provide certifications regarding their compliance with 
the closed captioning quality standards or Best Practices will help 
bring to their attention their new responsibilities, and thereby help 
to ensure quality closed captions. The process of having to prepare and 
provide the certification will help alert video programmers of the need 
to comply with the captioning quality standards or Best Practices.
    28. Compared to the prior certification procedures, the new 
certification regime (which imposes direct responsibilities on video 
programmers as well as VPDs) will enhance the Commission's ability to 
enforce the captioning rules against video programmers and VPDs, and 
thus ensure the needs of consumers are better served. First, because 
video programmers were not obligated to provide certifications under 
the Commission's prior rules (i.e., 47 CFR 79.1(g)(6), (j)(1), and 
(k)(1)(iv)), the Commission had limited enforcement ability against 
noncompliant video programmers. Second, some VPDs may be unable to 
negotiate contractual arrangements obligating video programmers to 
provide such certifications, due to disparities in negotiating power. 
Finally, because many video programmers already provide certifications 
to VPDs under Sec.  79.1(g)(6) and (j)(1) of the Commission's rules, 
combining these certifications into a single certification to be filed 
with the Commission should not result in any significant additional 
burden. Moreover, even if this requirement were to create an added 
burden on video programmers who are not already providing 
certifications under the Commission's current rules, the rules the 
Commission now adopts minimize such burden by only requiring these 
certifications to be filed annually, on or before July 1 of each year, 
rather than every time there is a change in programming. In addition, 
any such burden will be outweighed by the benefits of requiring video 
programmers to provide certifications, as described in the preceding 
paragraphs.
    29. VPD Obligations with Respect to Video Programmer 
Certifications. The Closed Captioning Quality Second Further Notice 
sought comment on VPDs' obligations pertaining to such certifications, 
and, specifically, whether to require each VPD to alert its video 
programmers of the requirement to provide certifications to the 
Commission, to verify video programmers' compliance with the 
certification requirement, and to thereafter report to the Commission 
any failure by a video programmer to comply.
    30. Because the rules now adopted by the Commission will hold video 
programmers directly liable for their failure to provide the required 
certifications, it is not necessary to make VPDs responsible for 
informing video programmers about the need to provide certifications, 
or to require that VPDs check on and report noncompliant video 
programmers to the Commission. At the same time, VPDs should be allowed 
to rely upon the certifications from video programmers to fulfill their 
obligation to ensure the provision of closed captions on the 
programming they carry. Accordingly, the Commission will allow a VPD to 
demonstrate compliance with its captioning obligations where it relies 
on a programmer's certification as to the presence of captions on such 
programming or that such programming is exempt from the captioning 
requirements, so long as (1) the VPD passes through the closed captions 
intact to viewers; and (2) the VPD did not know or did not have reason 
to know that such certification was false. However, if a VPD carries 
non-exempt programming without captions from a video programmer that 
has not provided certification to the Commission, or from a video 
programmer that has provided a certification that the VPD knew or had 
reason to know was false, the VPD will be liable for failing to have 
provided

[[Page 57478]]

closed captions on such programming, even if the lack of captions was 
not due to the VPD's failure to pass through closed captions intact. 
This will discourage the VPD from ignoring information that should 
warrant checking into the veracity of the certification, such as the 
VPD finding the absence of captioning on programming, and hold the VPD 
accountable for the failure to provide closed captioning on programming 
that it knows or has reason to know is not exempt from the Commission's 
rules.
    31. These new rules will reduce burdens resulting from compliance 
with the Commission's captioning quality rules on VPDs. At present, 
VPDs must search video programmer Web sites and other locations to find 
the video programmers' ``widely available'' certifications. The 
Consumer and Governmental Affairs Bureau's (CGB's) recent experience in 
verifying the availability of some of these certifications suggest that 
in some cases these searches have been difficult and have not yielded 
certifications that video programmers had placed on their Web sites. 
The new rules will enable VPDs to be able to easily find these 
certifications on the Commission's Web site.
    32. Complaint Handling. The Commission's decision in this order to 
allocate captioning responsibilities between VPDs and video programmers 
necessitates the establishment of an orderly process for the handling 
of complaints by each covered entity in order to prevent duplication of 
efforts, avoid potential confusion about responsibilities, and achieve 
overall efficiency to ensure the timely resolution of captioning 
complaints. The Commission concludes that a burden-shifting approach is 
appropriate for the handling of these complaints.
    33. Under the burden-shifting approach, upon receiving a complaint 
about the quality of captions, a VPD would have the initial burden of 
conducting an investigation into the source of the problem. The VPD 
would address the complaint if able to do so, but the burden of 
addressing the complaint would shift to the video programmer if the VPD 
learned, after its initial investigation, that the problems raised were 
not within its control. The Commission believes that this approach 
appropriately builds on existing video programmer and VPD practices, by 
which VPDs investigate complaints, determine whether their equipment is 
causing the problem, and confer with video programmers to identify and 
resolve closed captioning problems under the video programmers' 
control. This model can also ensure that the entity most able to remedy 
the captioning issue will have the responsibility to fix the problem, 
and the Commission therefore expects that this approach will expedite 
complaint resolution and result in more effective results for viewers 
who rely on captions to follow a program's content.
    34. The Commission further concludes that it is best to apply the 
same burden-shifting approach to all types of captioning complaints--
rather than apply this approach only to complaints on captioning 
quality. Employing different processes in the handling of different 
types of complaints would require the Commission and covered entities 
to try to predict the source of each complaint's underlying issues 
before directing the complaint through the appropriate process. This 
would be difficult given that some complaints may raise both non-
technical and technical problems, and ascertaining the underlying 
causes for such problems often becomes possible only after an 
investigation into those causes. As a result, attempts to predict the 
underlying problem at the outset might result in the complaint being 
referred to the wrong entity and thereby delay its resolution. 
Accordingly, a uniform complaint and enforcement model for all closed 
captioning issues on television programming will streamline the rules 
and clarify all parties' obligations. Under this approach, the video 
programmer and the VPD will each be responsible for resolving 
complaints that are the result of problems primarily within each 
entity's respective control.
    35. At present, the Commission's television closed captioning rules 
allow consumers to file captioning complaints with either the 
Commission or with the VPD responsible for the delivery and exhibition 
of video programming at issue, within sixty days after the consumer 
experiences a captioning problem. 47 CFR 79.1(g)(1). Because of the 
existing relationship that VPDs have with their subscribers, the 
approach provides a single point of contact for consumers and allows 
utilization of the existing VPD infrastructure for receiving, 
processing, and resolving closed captioning complaints. Allowing 
consumers to file complaints with either the VPD or the Commission 
eliminates the need for consumers to identify the video programmer with 
whom consumers generally have no direct relationship. It also 
eliminates the need for consumers to figure out the party responsible 
for the problem they are experiencing--for example, whether it was a 
pass through problem caused by the VPD or a non-technical quality 
problem caused by the video programmer. Accordingly, the captioning 
complaint process that the Commission adopts will continue to allow 
consumers to file closed captioning complaints either with the 
Commission or with the VPD. If the complainant chooses to file with the 
VPD, but fails to receive a timely response or is not satisfied with 
that response, the consumer may subsequently file his or her complaint 
with the Commission.
    36. Complaints Filed with the Commission--Complaint Content. In the 
Closed Captioning Quality Order, the Commission adopted a rule 
requiring the following information to be provided in an informal 
complaint regarding captioning quality as a prerequisite to the 
Commission forwarding such complaint to a VPD: (1) The channel number; 
(2) the channel name, network, or call sign; (3) the name of the 
multichannel video programming distributor (MVPD), if applicable; (4) 
the date and time that the captioning problem occurred; (5) the name of 
the program involved; and (6) a detailed description of the problem. 47 
CFR 79.1(j)(4). The Commission explained that this information is 
necessary to enable a programming entity to investigate and resolve the 
complaint. Because the same rationale applies to all closed captioning 
complaints, whether or not related to closed captioning quality, the 
Commission extends the requirement to provide this information to all 
television closed captioning complaints. The Commission directs CGB to 
provide assistance to consumers who may experience difficulties 
gathering any of this required information. It further clarifies that 
all complaints should contain the consumer's identifying information, 
including the consumer's name, postal address, and other contact 
information, if available, such as telephone number or email address, 
along with the consumer's preferred format or method of response to the 
complaint (such as letter, facsimile transmission, telephone (voice/
TRS/TTY), email, or some other method that would best accommodate the 
consumer).
    37. Complaints Filed with the Commission--Complaint Procedures. 
Under the burden-shifting approach that the Commission adopts, when the 
Commission receives a closed captioning complaint, it will serve the 
complaint on the named VPD and the appropriate video programmer 
simultaneously. If the Commission cannot determine the appropriate 
video

[[Page 57479]]

programmer to serve, it will forward the complaint to the VPD and will 
inform the VPD that the Commission has been unable to determine the 
appropriate video programmer. Within ten days after the date of such 
notification, the VPD must respond to the Commission with the name and 
contact information for the appropriate video programmer, after which 
the Commission will forward the complaint to the video programmer as 
well.
    38. After being served with a consumer complaint, the VPD must 
conduct an initial investigation to determine whether the matters 
raised in the complaint are primarily within its control. Concurrently, 
the video programmer may voluntarily begin its own inquiry into the 
source of the captioning problem, but the video programmer is not 
required to take any action at that time. Forwarding the complaint to 
both the VPD and video programmer at the outset will help facilitate 
the swift resolution of complaints because it will allow the video 
programmer, if it so chooses, to take its own steps toward a resolution 
while the VPD investigates matters primarily under its control.
    39. VPDs will be given flexibility in conducting their initial 
investigations, in order to allow for differences in equipment and 
processes among VPDs; however, VPDs will be required to exercise due 
diligence in their efforts to identify the source of the issue and 
resolve all matters primarily within their control before shifting 
responsibility for addressing these matters to their video programmers. 
To meet this standard and to ensure a thorough investigation into 
closed captioning problems raised in complaints, the Commission will 
require VPDs, at a minimum, to take the following actions as part of 
their investigations: (1) Program Stream Check: Capture program streams 
of the programming network identified in the complaint and check the 
streams for any caption-related impairments that may have caused the 
reported problem and to prevent ongoing problems; (2) Processing 
Equipment Check: If there is an issue with the program stream, and 
there is not prior knowledge as to where the problem originated, check 
post-processing equipment at the relevant headend or other video 
distribution facility to determine whether the issue was introduced at 
the VPD level or was present in the stream when received by the VPD 
from the video programmer; (3) Consumer Premises Check: If the VPD's 
investigation indicates that the problem may lie with the consumer's 
customer premises equipment, including the set-top box, check the end 
user equipment, either remotely, or, if necessary, at the consumer's 
premises, to ensure there are no issues that might interfere with the 
pass through, rendering or display of closed captioning. The Commission 
will defer to the VPD's good faith judgment about whether there is an 
indication that the problem might lie with the consumer's customer 
premises equipment and whether it is necessary to go to the consumer's 
premises to check the equipment. However, in the event of a dispute or 
an enforcement proceeding, the VPD will have the burden of proving that 
it conducted a thorough investigation into the closed captioning 
problems raised in the complaint. Requiring VPDs to take these steps 
will ensure that a full and effective investigation occurs prior to 
shifting the complaint handling responsibilities to video programmers. 
This also is more likely to result in a speedier and efficient 
resolution of the problems raised in complaints, thereby helping to 
fulfill Congress's goal to make television programming fully accessible 
to people who are deaf and hard of hearing.
    40. If the VPD's investigation reveals that the closed captioning 
problem is within the control of the VPD, the VPD must correct the 
problem and provide a written response to the Commission, the video 
programmer and the consumer acknowledging such responsibility and 
describing the steps taken to correct the problem. A complaint must be 
resolved, and a written response sent, within 30 days after the date 
the Commission forwards the complaint to the VPD. As required by the 
Commission's current rules, the VPD's response must provide the 
Commission with sufficient evidence, including records and 
documentation, to demonstrate that the VPD is in compliance with the 
Commission's closed captioning rules. 47 CFR 79.1(g)(5). In this case, 
no burden-shifting to the video programmer will occur, and the VPD will 
retain liability for the problem.
    41. If the VPD's investigation reveals that the closed captioning 
problems raised in the complaint are not primarily within the VPD's 
control and appear to have been present in the program stream when 
received by the VPD, the burden for addressing the complaint will shift 
to the video programmer. To shift the burden, the VPD must certify to 
the Commission, the video programmer, and the consumer that it has 
exercised due diligence to identify and resolve the source of the 
captioning problem by conducting an investigation on the closed 
captioning complaint in accordance with the Commission's rules, and 
that the problems raised in the complaint are not within its control. 
In addition, if at any time during the complaint resolution process, 
the VPD's investigation reveals that the closed captioning problems 
raised in the complaint were the result of causes not within the VPD's 
control and also do not appear to be within the video programmer's 
control, such as a faulty third-party DVR, television, or other third-
party device, the VPD must certify to the Commission, the video 
programmer, and the consumer that it has exercised due diligence to 
identify and resolve the source of the captioning problem by conducting 
an investigation on the closed captioning complaint in accordance with 
the Commission's rules, and that the problems raised in the complaint 
were caused by a third party device or other causes that appear not to 
be within the control of either the VPD or the video programmer. The 
applicable certification may be provided at any time during the VPD's 
investigation, but no later than 30 days after the date the Commission 
forwarded the complaint. The requirement for such certification is 
intended to alleviate concerns that VPDs might perform cursory 
investigations or inappropriately shift the burden of resolving 
complaints to video programmers in order to avoid fulfilling their 
captioning obligations. A VPD that fails to provide a certification or 
provides an untruthful certification may be subject to immediate 
enforcement action without first being subject to the compliance 
ladder. In addition, any video programmer may report to the Commission 
when, after receiving a certification from a VPD, the video programmer 
determines that the VPD did not follow all of the steps required by the 
Commission's rules for investigating a complaint or that the problem 
described in a complaint is in fact within the VPD's control.
    42. After the responsibility for resolving the complaint shifts to 
the video programmer, the video programmer must investigate and attempt 
to resolve the closed captioning problem to the extent that doing so is 
within the video programmer's control. After the responsibility for 
resolving the complaint shifts to the video programmer, the video 
programmer will have the burden of proving that the video programmer 
conducted a thorough investigation into the closed captioning problems 
raised in the complaint. In addition, while, at this point in the 
complaint resolution process, the video programmer will take on the 
primary responsibility for

[[Page 57480]]

resolving the closed captioning problem, the Commission will require 
the VPD to continue to assist the video programmer with resolving the 
complaint, as needed. Requiring the VPD to remain involved throughout 
the complaint process will foster collaboration between VPDs and video 
programmers, and increase the likelihood that the complaint will be 
swiftly resolved to the satisfaction of the consumer and the 
Commission.
    43. Within 30 days after the date of certification from the VPD, 
the video programmer must provide a written response to the complaint 
that either describes the steps taken to rectify the problem or 
certifies that its investigation revealed that it has exercised due 
diligence to identify and resolve the source of the captioning problem 
by conducting an investigation on the closed captioning complaint in 
accordance with the Commission's rules, and that the problems raised in 
the complaint are not within its control. Such response must be 
submitted to the Commission, the VPD, and the consumer, and must 
provide the Commission with sufficient records and documentation to 
demonstrate that the video programmer is in compliance with the 
Commission's rules. See 47 CFR 79.1(g)(5). Requiring video programmers 
to respond within 30 days will ensure that video programmers promptly 
investigate complaints. If the video programmer reports that it has 
rectified the problem, this will enable the VPD to conduct additional 
checks of the program stream if needed to confirm the complaint's 
resolution, and keep the VPD, the Commission, and the consumer informed 
so the VPD can know when to close the complaint file.
    44. If the video programmer certifies that the program stream 
contained fully functioning captioning at the time the program stream 
was handed off to the VPD, and the VPD has not determined that the 
problem resulted from a third party source, the VPD and the video 
programmer must then work together to determine the source of the 
captioning problem. Once the source of the problem is determined, the 
VPD and video programmer shall each be required to correct those 
aspects of the problem within its control. The VPD is then required, 
after consultation with the video programmer, to report to the 
Commission and the complainant the steps taken to fix the captioning 
problem. The VPD must submit such information in writing within 30 days 
after the date that the video programmer certified that the cause of 
the problem was not within the video programmer's control. Further, the 
Commission may, during its review of a complaint or the pendency of an 
enforcement proceeding, request the VPD and the video programmer to 
provide sufficient documentation to demonstrate compliance with the 
Commission's rules. Accordingly, VPDs will remain responsible for 
resolving problems that are within their control, which will help 
prevent the wasteful duplication of efforts to resolve complaints.
    45. Complaints Filed with the VPD. Document FCC 16-17 preserves the 
consumers' long-standing option of filing their captioning complaints 
directly with their VPDs. See 47 CFR 79.1(g)(1) and (4). When a VPD 
receives a complaint from a consumer, the VPD should investigate the 
complaint with the same due diligence and in the same manner as 
required for complaints initially filed with the Commission and later 
served on VPDs, with a goal of initially determining whether the matter 
raised in the complaint is within the control of the VPD. If, after 
conducting its initial investigation, the VPD determines that the issue 
of the complaint is within its control, it shall take the necessary 
measures to resolve it, and notify the consumer of such resolution 
within 30 days after the date of the complaint. If (1) the consumer 
does not receive a response to the complaint within the 30-day period, 
or (2) the consumer is not satisfied with the VPD's response, the 
consumer may file the complaint with the Commission within sixty days 
after the time allotted for the VPD to respond to the consumer. The 
Commission believes that VPDs will have sufficient incentives to 
thoroughly investigate and promptly resolve the complaints that they 
receive directly from consumers, to reduce the need for such consumers 
to re-file their complaints with the Commission.
    46. In the event that the VPD determines that the issues raised in 
the complaint are not within its responsibilities, Sec.  79.1(g)(3) of 
the Commission's rules as currently written requires the VPD to forward 
the complaint to the responsible programming entity. 47 CFR 79.1(g)(3). 
The Commission resolves a conflict between Sec.  79.1(g)(3) of its 
rules and statutory provisions prohibiting the VPD from disclosing a 
consumer's personally identifiable information (PII) without the 
consumer's consent. See 47 CFR 79.1 (g)(3), 47 U.S.C. 551(c)(1), and 47 
U.S.C. 338(i)(4)(A). The Commission will require that if a VPD 
determines that an issue raised in the complaint is not primarily 
within the VPD's control, the VPD, within 30 days after the date of the 
complaint, must either forward the complaint to the video programmer or 
other responsible entity, such as another VPD, with the consumer's 
PII--including the consumer's name, contact information, and other 
identifying information--redacted, or provide the video programmer or 
other responsible entity with information contained in the complaint 
sufficient to achieve its investigation and resolution. Such 
information should include the same type of information necessary for a 
complaint to be forwarded to a VPD when it is submitted to the 
Commission--i.e., (1) the channel number; (2) the channel name, 
network, or call sign; (3) the name of the multichannel video 
programming distributor (MVPD), if applicable; (4) the date and time 
that the captioning problem occurred; (5) the name of the program 
involved; and (6) a detailed description of the problem--to the extent 
the VPD is in possession of such information. In addition, the VPD must 
provide the video programmer or other responsible entity with an 
explanation of why the cause of the captioning problem is not primarily 
within the control of the VPD. The Commission expects that requiring a 
VPD to forward the complaint with the consumer's PII redacted or to 
forward a description of the complaint's material details will resolve 
the outstanding regulatory conflict without the need for back-and-forth 
communications between the VPD and the consumer that otherwise might 
have been needed for resolution of the complaint.
    47. When forwarding the complaint or a description of the 
complaint, the VPD must also assign a unique identifying number 
(``complaint ID number'') to the complaint, and transmit that number to 
the video programmer or other responsible entity along with the 
complaint or a description of the complaint. The Commission further 
requires the VPD to inform the consumer that the complaint has been 
forwarded, along with the complaint ID number and the name and contact 
information of the video programmer or other responsible entity to whom 
the complaint was forwarded, at the same time that the complaint is 
forwarded to the video programmer or other responsible entity. 
Providing information to consumers about the status of their complaints 
will enhance the transparency of the complaint resolution process, and 
avoid the situation in which a VPD responds to a complaint by shifting 
blame for a captioning problem to another entity while refusing to 
identify such entity publicly. Additionally, providing consumers with 
both the complaint ID

[[Page 57481]]

number and the video programmer's or other responsible entity's contact 
information will enable the consumer to contact a video programmer or 
other responsible entity directly and inquire about the status of his 
or her complaint if so desired. The VPD must also explain to the 
consumer that if the consumer wishes to follow up with the video 
programmer, the consumer will need to provide the video programmer with 
the name of the VPD as well as the complaint identification number.
    48. Once a video programmer or other responsible entity receives a 
complaint and notification from a VPD that the issue described in the 
complaint is outside the VPD's control, the burden will shift to the 
video programmer or other responsible entity to investigate and resolve 
the complaint. However, as for complaints initially filed with the 
Commission, the Commission will require the VPD to continue to assist 
the video programmer or other responsible entity in resolving the 
complaint as needed and to conduct additional checks of the program 
stream to confirm resolution of the problem, upon notification from the 
video programmer or other responsible entity that the problem has been 
resolved.
    49. The video programmer or other responsible entity must respond 
in writing to the VPD within 30 days after the forwarding date of the 
complaint from the VPD, in a form that can be forwarded to the 
consumer. The VPD must then forward this response to the consumer 
within ten days after the date of the video programmer's or other 
responsible entity's response. If the video programmer or other 
responsible entity fails to respond to the VPD within 30 days after the 
forwarding date of the complaint from the VPD, the VPD must inform the 
consumer of the video programmer's or other responsible entity's 
failure to respond within 40 days after that forwarding date.
    50. If the video programmer or other responsible entity fails to 
respond to the VPD within the time allotted, or if the VPD fails to 
forward the video programmer's or other responsible entity's response 
to the consumer, or if the consumer is not satisfied with that 
response, the consumer may file the complaint with the Commission 
within sixty days after the time allotted for the VPD to either forward 
the video programmer's or other responsible entity's response to the 
consumer or inform the consumer of the video programmer's or other 
responsible entity's failure to respond. Upon receipt of the complaint 
from the consumer, the Commission will forward such complaints to the 
appropriate VPD and video programmer, and the VPD and video programmer 
shall handle such complaints, as governed by the rules applicable to 
complaints filed with the Commission.
    51. The Commission requires the VPD to remain involved in the 
resolution of complaints that are not within the VPDs' control because 
the VPD is the entity with which a complainant has a direct commercial 
relationship, and thus the VPD should remain the primary point of 
contact for the complainant even when the complaint is forwarded to the 
video programmer. Unlike video programmers, VPDs are the last link in 
the distribution chain and either receive direct payment from consumers 
for services rendered or provide programming over the public airwaves. 
Having VPDs forward responses from video programmers or other 
responsible entities to consumers will create a seamless process for 
consumers, allowing them to receive a response from the business entity 
with which they are familiar, and with which they initially filed their 
complaint. Also, as a practical matter, because the Commission requires 
the VPD to redact the consumer's PII, including the consumer's name and 
address, when forwarding a complaint to a video programmer or other 
responsible entity, the video programmer or other responsible entity 
will not have the necessary contact information to respond directly to 
the consumer. Finally, the Commission is imposing timelines on (1) the 
forwarding of complaints by VPDs, (2) the response by the video 
programmer or other responsible entity to the VPD, and (3) the 
forwarding of the response by the VPD to the consumer. The Commission 
therefore concludes that assigning to the VPD the responsibility of 
reporting the resolution to the consumer should not delay the provision 
of such notification.
    52. In the event that the video programmer, other responsible 
entity, or VPD fails to meet any deadlines for responses to the 
consumer's complaint or if such responses do not satisfy the consumer, 
the consumer may file the complaint with the Commission within 60 days 
after the time allotted either for the VPD to respond to the consumer 
or for the VPD to forward the video programmer's or other responsible 
entity's response to the consumer, whichever is applicable. If a 
consumer re-files the complaint with the Commission after initially 
filing the complaint with the VPD, the Commission will forward the 
complaint to the appropriate VPD and the video programmer, and each 
such entity must follow the complaint handling processes for complaints 
filed with the Commission as outlined above.
    53. Compliance Ladder. In the Closed Captioning Quality Order, the 
Commission adopted a ``compliance ladder'' that allows broadcast 
stations to take corrective actions to demonstrate compliance with new 
enhanced electronic newsroom technique (ENT) procedures prior to being 
subject to enforcement action. The Commission reasoned that this 
approach would provide these entities with ``ample opportunities to 
improve their captioning, especially if their current practices are 
deficient.'' Closed Captioning Quality Order. In the Closed Captioning 
Quality Further Notice, the Commission sought comment on whether to 
similarly allow VPDs and video programmers to assert a safe harbor to 
demonstrate compliance through corrective actions prior to being 
subject to enforcement action, in the event certain obligations for 
compliance with the captioning quality standards are placed on each of 
these entities.
    54. In document FCC 16-17, the Commission adopts a compliance 
ladder for the captioning quality rules, including rules addressing 
quality issues related to the pass-through of captions, which is 
similar to the ladder adopted for the enhanced ENT rules. It will not 
apply this compliance ladder to other captioning requirements, 
including the provision of captioning, equipment monitoring and 
maintenance, registration and certification. Rather, the Commission 
concludes that its current practice of addressing the latter types of 
concerns through the informal complaint process, while retaining the 
option to refer such matters for enforcement action as appropriate, has 
been effective in achieving resolution of these concerns.
    55. The Commission will continue to entertain individual informal 
complaints of noncompliance with the Commission's closed captioning 
quality rules in accordance with the complaint procedures outlined in 
document FCC 16-17. However, for captioning quality complaints received 
by the Commission that indicate a pattern or trend of noncompliance 
with its captioning quality rules, the Commission adopts a compliance 
ladder that is similar to that used for addressing noncompliance with 
its rules governing the enhanced ENT procedures. By focusing on 
patterns or trends rather than individual reports of closed captioning 
quality problems, use of this compliance mechanism will afford VPDs and 
video programmers opportunities to correct such problems without 
Commission enforcement action. In this manner, a

[[Page 57482]]

compliance ladder will enable parties to more quickly address and 
remedy problems without worrying that in so doing they may be subject 
to fines or forfeitures.
    56. Accordingly, the Commission adopts the following compliance 
ladder to be applied when consumer complaints received by the 
Commission indicate a pattern or trend of noncompliance with the 
Commission's rules governing the quality of television closed 
captioning on the part of either the VPD or the video programmer. The 
Commission will apply a broad definition of ``pattern or trend'' when 
determining whether the compliance ladder is triggered. For example, a 
``pattern or trend'' may be found when a particular entity is subject 
to a series of complaints over time about caption quality problems or 
failures or where a particular entity is subject to a large volume of 
complaints that suggests widespread quality problems or failures, even 
if they occur over a relatively short span of time. A pattern or trend 
of consumer complaints, even if about different programs or different 
types of captioning failures by the same entity, may reflect a system 
breakdown in that entity's processes sufficient to trigger this 
approach. In other words, the Commission may discern a pattern or trend 
in a series of complaints about the same or similar problems or in a 
multiplicity of complaints about unrelated problems.
     If the Commission notifies a VPD or video programmer that 
the Commission has identified a pattern or trend of possible 
noncompliance with the Commission's rules governing the quality of 
closed captioning by the VPD or video programmer, the VPD or video 
programmer shall respond to the Commission within 30 days after the 
date of such notice regarding such possible noncompliance, describing 
corrective measures taken, including those measures the VPD or video 
programmer may have undertaken in response to informal complaints and 
inquiries from viewers. Multiple complaints about a single incident are 
not considered a pattern or trend.
     If, after the date for a VPD or video programmer to 
respond to the above notification, the Commission subsequently notifies 
the VPD or video programmer that there is further evidence indicating a 
pattern or trend of noncompliance with the Commission's rules governing 
the quality of closed captioning, the VPD or video programmer shall 
submit to the Commission, within 30 days after the date of such 
subsequent notification, a written action plan describing additional 
measures it will take to bring the VPD's or video programmer's closed 
captioning performance into compliance with the Commission's 
regulations. For example, action plans involve the identification and 
implementation of longer term measures and may include, but are not 
limited to, a commitment to train the VPD's or video programmer's 
personnel, the use of improved equipment, more frequent equipment 
checks, improved monitoring efforts, and changes in closed captioning 
vendors or closed captioning procedures. In addition, the VPD or video 
programmer shall be required to conduct spot checks of its closed 
captioning performance and report to CGB on the results of such action 
plan and spot checks 180 days after submission of such action plan.
     If, after the date for submission of the report on the 
results of an action plan, the Commission finds continued evidence of a 
pattern or trend of noncompliance with the Commission's rules governing 
the quality of closed captioning, the Commission will then consider, 
through its Enforcement Bureau, appropriate enforcement action, 
including admonishments, forfeitures, and other corrective actions as 
necessary.
    57. The Commission believes that this three-step ladder will 
provide VPDs and video programmers with the necessary incentives to 
take corrective action on their own. In particular, the Commission 
believes that the first step of the compliance ladder, once a pattern 
or trend of noncompliance is identified, should afford an opportunity 
for VPDs and video programmers to rectify captioning quality violations 
on their own and quickly, without the regulatory involvement that would 
be associated with the second step's required action plan or the third 
step's enforcement action. However, if the Commission finds that this 
approach is not effective in ensuring widespread compliance with its 
television closed captioning quality rules or fulfilling its goal of 
ensuring full access to television programming as required by section 
713(b) of the Act, it may revisit this issue to the extent necessary.
    58. The Commission emphasizes that the compliance ladder will not 
relieve VPDs or video programmers of any of their obligations under the 
television closed captioning rules. However, to address this concern, 
the Commission adopts an additional rule allowing CGB to refer a 
captioning quality rule violation directly to the Enforcement Bureau 
for enforcement action, or for the Enforcement Bureau to pursue an 
enforcement action on its own, without first going through the 
compliance ladder, for a systemic closed captioning quality problem or 
an intentional and deliberate violation of the Commission's closed 
captioning quality standards. In making such a determination, CGB or 
the Enforcement Bureau shall take into consideration all relevant 
information regarding the nature of the violation or violations and the 
VPD or video programmer's efforts to correct them.
    59. VPD Registration. In the 2008 Closed Captioning Decision, the 
Commission amended its rules to add Sec.  79.1(i)(3), which requires 
VPDs to submit contact information for the receipt and handling of both 
immediate requests to resolve captioning concerns by consumers while 
they are watching television and closed captioning complaints that 
consumers file after experiencing closed captioning issues. The 2008 
Order explained that VPDs could satisfy this requirement by either 
filing a hard copy or sending an email. 2008 Closed Captioning 
Decision. In 2009, the Commission added an option to allow VPDs to file 
their contact information directly online via a web form located on the 
Commission's Web site, in a database called the ``VPD Registry.'' 
Closed Captioning of Video Programming, Order, published at 75 FR 7368, 
February 19, 2010. Recognizing in the Closed Captioning Quality Further 
Notice that such electronic filings into the VPD Registry would offer 
the most efficient and accurate means of collecting the requisite 
information, the Commission sought comment on a proposal to require all 
contact information required by Sec.  79.1(i)(1) and (2) of its rules 
be submitted directly to the VPD Registry through the web form method. 
Closed Captioning Quality Further Notice.
    60. The Commission finds that requiring VPDs to submit their 
contact information into the VPD Registry through the web form would 
also be consistent with the 2011 Electronic Filing Report and Order, 
which adopted a policy to require the use of electronic filing whenever 
technically feasible. See Amendment of Certain of the Commission's Part 
1 Rules of Practice and Procedure and Part 0 Rules of Commission 
Organization, Report and Order, published at 76 FR 24383, May 2, 2011. 
In light of such technical feasibility, as well as the accuracy and 
efficiency of this electronic filing method, the Commission amends 
Sec.  79.1(i)(3) of its rules to require VPDs to submit their contact 
information required under Sec.  79.1(i)(1) and (2) of its rules 
directly into the Commission's database through the web form method and 
to remove as options the alternate

[[Page 57483]]

methods of submitting this information to the Commission.
    61. Video Programmer Registration. In document FCC 16-17, the 
Commission requires that video programmers file their contact 
information through a web form located on the Commission's Web site for 
the handling of written closed captioning complaints by the Commission 
and by VPDs, and as required for VPDs, to update such information 
within ten business days of any changes. The video programmer contact 
information shall include the name of the person with primary 
responsibility for captioning issues and who can ensure compliance with 
the captioning rules, and the person's title or office, telephone 
number, fax number (if there is one), postal mailing address, and email 
address. The Commission also directs video programmers to submit their 
required compliance certifications through a web form located on the 
Commission's Web site, so that such certifications will be readily 
available to consumers, VPDs, and the Commission. The Commission 
directs CGB to implement the development of one or more web forms (or 
to expand the existing VPD Registry) for the filing of video programmer 
contact information and certifications and to provide guidance to 
programming entities and the general public on the appropriate use of 
video programmer contact information found on the Commission's Web 
site. The Commission also directs CGB to issue a Public Notice to 
provide such guidance as well as procedures and deadlines for video 
programmers to file contact information and certifications once the 
rules go into effect and the Commission's Web site is ready to receive 
such contact information and certifications.
    62. The Commission concludes that it is important for video 
programmers to register their contact information with the Commission 
so that it is readily available to the Commission and to VPDs for the 
expedient and effective handling and resolution of complaints. In 
particular, for complaints filed directly with a VPD, under the new 
complaint handling rules, the VPD must have ready access to video 
programmer contact information so that the VPD can forward the 
complaint information to the correct video programmer when the VPD 
ascertains that the source of problem raised in a complaint originated 
with that programmer. If this information is not available to VPDs, and 
especially smaller VPDs, such entities may encounter challenges and 
delays in their efforts to resolve complaints. The filing of video 
programmer contact information will eliminate such challenges by 
enabling VPDs to obtain current contact information from a centralized 
location.
    63. Additionally, requiring video programmers to file their contact 
information with the Commission will help to expedite the resolution of 
complaints filed directly with the Commission. Because the complaint 
handling rules that the Commission adopts in this Order require the 
Commission to forward written complaints to both VPDs and their video 
programmers, the Commission needs access to video programmer contact 
information. The Commission also finds that the public availability of 
video programmers' contact information will increase transparency, aid 
the complaint process, and thereby facilitate high-quality captioning. 
For example, the complaint handling rules adopted in document FCC 16-17 
require each VPD to inform a consumer when it has forwarded his or her 
complaint to a video programmer for resolution. If the consumer wishes 
to contact the video programmer directly regarding his or her complaint 
after it has been forwarded by the VPD, the Commission's Web site will 
provide the consumer with the necessary video programmer's contact 
information to do so.
    64. The Commission emphasizes that its actions taken herein are not 
intended to remove VPDs from the process of resolving consumer 
complaints. VPDs may be in the best position to take primary 
responsibility for complaint resolution given the more direct 
relationship they have with viewers and subscribers, the opportunity 
for consumers to utilize existing VPD processes for receiving, 
processing, and resolving closed captioning complaints, and the ability 
of VPDs to provide a single point of contact for consumers. The 
Commission's new requirement for video programmers to file contact 
information with the Commission is intended primarily for use by VPDs 
and Commission staff for complaint resolution and enforcement purposes, 
and to facilitate transparency for the public when VPDs forward 
complaints to programmers for resolution. The Commission encourages 
consumers to continue filing complaints about captioning with the 
Commission or VPDs in the interest of achieving faster resolution of 
their captioning concerns.
    65. Finally, the Commission does not think it is necessary, at this 
time, to require video programmers to make their contact information 
available on their Web sites or through other means in addition to 
filing this information in the Commission's database. The Commission 
finds that its requirement for video programmers to file contact 
information with the Commission is sufficient to serve its regulatory 
purposes of making such information available for use primarily by VPDs 
and Commission staff for complaint resolution and enforcement purposes, 
and to facilitate transparency for the public when VPDs forward 
complaints to programmers for resolution. If the Commission finds that 
its objectives are not effectively achieved by the publication of this 
information in the Commission's database, it may revisit this decision.
    66. Nonsubstantive Rule Amendments. More than 18 years have passed 
since the Commission adopted its regulations governing the closed 
captioning obligations. For purposes of clarity, the Commission makes 
two nonsubstantive editorial changes to the rules, which include 
eliminating certain outdated rule sections and updating the rule 
nomenclature. First, given that all benchmarks for the phase-in of the 
closed captioning requirements have passed, the Commission amends 47 
CFR 79.1(b)(1) through (4) to eliminate these outdated benchmarks, so 
that only the fully phased-in captioning requirements remain in the 
rule. Second, the Commission amends 47 CFR 79.1(e)(9) to reflect the 
terminology used in this proceeding by making the nonsubstantive 
nomenclature change that VPDs ``ensure the provision of closed 
captioning'' rather than ``provide closed captioning.''

Final Regulatory Flexibility Analysis

    67. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), Initial Regulatory Flexibility Analyses (IRFAs) were 
incorporated in the FNPRMs contained in the Closed Captioning Quality 
Order and Further Notice and the Closed Captioning Quality Second 
Further Notice (Further Notices). The Commission sought written public 
comment on the proposals in the two Further Notices, including comment 
on the two IRFAs. No comments were received on the IRFAs incorporated 
in the two Further Notices. The Final Regulatory Flexibility Analysis 
(FRFA) conforms to the RFA.
    68. Need for, and Objectives of, the Report and Order. The purpose 
of the proceeding is to apportion the responsibilities of VPDs and 
video programmers with respect to the provision and quality of closed 
captions on television programming to ensure that people who are deaf 
and hard of hearing have full access to such

[[Page 57484]]

programming. The Second Report and Order follows the Commission's 
adoption in 2014 of captioning quality standards for programming shown 
on television and makes certain modifications to the closed captioning 
rules after consideration of the comments and reply comments received 
in response to the Further Notices.
    69. In document FCC 16-17, the Commission amends its rules to 
assign responsibility for the quality of closed captioning to VPDs and 
video programmers, with each entity responsible for closed captioning 
issues that are primarily within its control. Additionally, the 
Commission maintains current rules that place primary responsibility 
for the provision of closed captioning on television programming on 
VPDs, but amends them to hold video programmers responsible for a lack 
of captions where they have failed to provide captions on non-exempt 
programs. Also, the Commission adopts rules to: (1) Require each video 
programmer to file with the Commission a certification that (a) the 
video programmer (i) is in compliance with the rules requiring the 
inclusion of closed captions, and (ii) either is in compliance with the 
captioning quality standards or has adopted and is following related 
Best Practices; or (b) is exempt from the captioning obligations; if 
the latter certification is submitted, the video programmer must 
specify the specific exemptions claimed; (2) allow each VPD to satisfy 
its obligations regarding the provision of closed captioning by 
ensuring that each video programmer whose programming it carries has 
certified its compliance with the Commission's closed captioning rules; 
(3) revise the procedures for receiving, serving, and addressing 
television closed captioning complaints in accordance with a burden-
shifting compliance model; (4) establish a compliance ladder for the 
Commission's television closed captioning requirements that provides 
VPDs and video programmers with opportunities to take corrective action 
prior to enforcement action by the Commission; (5) require that each 
VPD use the Commission's web form when providing contact information to 
the VPD registry; and (6) require each video programmer to register 
with the Commission its contact information for the receipt and 
handling of written closed captioning complaints, and to use the 
Commission's web form for this purpose.
    70. Summary of Significant Issues Raised by Public Comments in 
Response to the IRFA. No comments were filed in response to the two 
IRFAs.
    71. Types of Small Entities Impacted:
 Cable Television Distribution Services
 Direct Broadcast Satellite (DBS) Service
 Wireless Cable Systems--Broadband Radio Service and 
Educational Broadband Service
 Open Video Services
 Television Broadcasting
 Incumbent Local Exchange Carriers (ILECs)
 Competitive Local Exchange Carriers (CLECs), Competitive 
Access Providers (CAPs), Shared-Tenant Service Providers, and Other 
Local Service Providers
 Electric Power Distribution Companies
 Cable and Other Subscription Programming
 Motion Picture and Video Production
 Closed Captioning Services--Teleproduction and Other 
Postproduction Services; and Court Reporting and Stenotype Services
    72. Description of Projected Reporting, Record Keeping and other 
Compliance Requirements.
     Requires each video programmer to file with the Commission 
a certification that: (a) The video programmer is in compliance with 
the rules requiring the inclusion of closed captions, and either is in 
compliance with the captioning quality standards or has adopted and is 
following related Best Practices; or (b) is exempt from the captioning 
obligations; if the latter certification is submitted, the video 
programmer must specify the specific exemptions claimed;
     Revises the procedures for receiving, serving, and 
addressing television closed captioning complaints in accordance with a 
burden-shifting compliance model;
     Establishes a compliance ladder for certain of the 
Commission's television closed captioning requirements that provides 
VPDs and video programmers with opportunities to take corrective action 
prior to enforcement action by the Commission;
     Requires that each VPD use the Commission's web form when 
providing contact information to the VPD registry; and
     Requires each video programmer to register with the 
Commission its contact information for the receipt and handling of 
written closed captioning complaints, and to use the Commission's web 
form for this purpose.
    73. Although document FCC 16-17 modifies reporting and 
recordkeeping requirements with respect to video programmer 
certifications, it will impose no new or additional requirements in 
this regard because the new rules will require video programmers to 
file certifications with the Commission rather than making them widely 
available as required under the current rules.
    74. Document FCC 16-17 modifies the complaint process by adopting a 
burden-shifting compliance model, which is consistent with the newly 
adopted assignment of responsibilities to VPDs and video programmers. 
This model ensures that the party most able to remedy the captioning 
issue will have the responsibility to fix the problem. This will 
expedite complaint resolution and result in more effective results.
    75. Steps Taken To Minimize Significant Impact on Small Entities, 
and Significant Alternatives Considered. The Commission believes that 
it has minimized the effect on small entities while making television 
programming more accessible to persons who are deaf and hard of 
hearing. The Commission does not establish different compliance or 
reporting requirements or timetables with respect to small entities 
because the importance of ensuring that video programming is accessible 
to people who are deaf and hard of hearing outweighs the small burdens 
associated with the new or different regulatory requirements adopted in 
document FCC 16-17. The Commission already has in place twelve 
categorical exemptions from its closed captioning requirements, 
including exemptions intended to benefit small entities, and any 
entity, including a small entity, may file a request for exemption 
based upon economic burden. In addition, the Commission's captioning 
rules generally use performance rather than design standards, and the 
Commission will publish a compliance guide to explain the new rules to 
small businesses.
    76. The new rules assign responsibilities between VPDs and video 
programmers in a fair and equitable manner. Although assigning some 
direct responsibility for the provision and quality of closed 
captioning to video programmers imposes some new regulatory 
requirements on small entities that are video programmers, it will 
relieve burdens on small entities that are VPDs, because the Commission 
will be able to take direct compliance and enforcement action against 
video programmers rather than indirect action through VPDs.
    77. The requirement for video programmers to file certifications 
with the Commission regarding compliance with the Commission's rules on 
the provisioning and quality of closed captioning imposes different 
reporting and recordkeeping obligations than currently required of 
video programmers, including small entities.

[[Page 57485]]

However, the new rules do not impose additional burdens, because video 
programmers are required under the existing rules to provide 
certifications to VPDs and to make such certifications widely available 
under the Commission's rules. The new rules may ease the burden on 
video programmers, because video programmers will know to go directly 
to the Commission's Web site to provide certification and will not need 
to determine how to make such certification widely available. In 
addition, the new rules will ease the burden on VPDs, including small 
entities, and consumers by having all certifications in one easy to 
find place.
    78. The revised procedures for receiving, serving, and addressing 
closed captioning complaints in accordance with a burden-shifting 
compliance model imposes different procedural requirements on VPDs, 
including small entities, and new procedural requirements on video 
programmers, including small entities. Because the burden-shifting 
model calls for VPDs and video programmers to each be responsible for 
closed captioning issues that are within their respective control 
instead of placing all responsibility on VPDs, the model will ease the 
burden on VPDs, including small entities, who will be able to shift the 
burden to video programmers when, after investigation, the VPD 
determines that the cause of the captioning problem was within the 
control of the video programmer. This approach will also allow the 
Commission to more directly and more easily address consumer 
complaints, thereby benefitting consumers.
    79. The establishment of a compliance ladder for the Commission's 
closed captioning quality requirements, a process that provides VPDs 
and video programmers, including small entities, with opportunities to 
take corrective action prior to enforcement action by the Commission 
for certain captioning violations, will ease the burden on VPDs and 
video programmers, including small entities, because use of the 
compliance ladder will be more informal and less time-consuming than a 
formal enforcement proceeding.
    80. The requirement that all contact information submitted by VPDs 
to the Commission for the VPD registry must be submitted using the 
Commission's web form system does not subject VPDs, including small 
entities, to additional reporting and recordkeeping requirements, 
because VPDs 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. The Commission 
considers the cost for VPDs to transition to a mandatory web form 
method of filing to be minimal as compared with the ease and accuracy 
of filing and the benefits to the public derived from a mandatory web 
form system.
    81. The requirement for video programmers to register and file 
contact information with the Commission imposes new reporting and 
recordkeeping obligations on video programmers, including small 
entities. However, the new requirement takes into consideration the 
impact on small entities. The filing of contact information is a simple 
task that should take no more than a few minutes. In addition, such 
requirements may benefit other entities, such as VPDs, including small 
entities, and consumers, who will be able to search the registration 
information for contact information.
    82. Federal Rules Which Duplicate, Overlap, or Conflict With, the 
Commission's Proposals. None.

Congressional Review Act

    83. The Commission sent a copy of document FCC 16-17 in a report to 
Congress and the Governmental Accountability Office pursuant to the 
Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

Ordering Clauses

    Pursuant to the authority contained in sections 4(i), 303(r) and 
713 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 
301(r) and 613, document FCC 16-17 is ADOPTED and the Commission's 
rules are AMENDED.
    The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, SHALL SEND a copy of document FCC 16-17, 
including the Final Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 79

    Individuals with disabilities, Reporting and recordkeeping 
requirements, Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 79 as follows:

PART 79--ACCESSIBILITY 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, 554a, 613, 617.

0
2. Amend Sec.  79.1 as follows:
0
a. Redesignate paragraph (a)(12) as paragraph (a)(13);
0
b. Add a new paragraph (a)(12);
0
c. Revise paragraphs (b), (c)(1), (e)(5), (e)(6), (e)(9), (g), and (i);
0
d. Remove and reserve paragraph (j)(1);
0
e. Revise paragraph (j)(3) introductory text;
0
f. Remove paragraph (j)(4);
0
g. Revise paragraph (k)(1)(iv);
0
h. Add and reserve paragraph (l); and
0
i. Add paragraph (m).
    The additions and revisions read as follows:


Sec.  79.1  Closed captioning of televised video programming.

    (a) * * *
    (12) Video programming owner. Any person or entity that either:
    (i) Licenses video programming to a video programming distributor 
or provider that is intended for distribution to residential 
households; or
    (ii) Acts as the video programming distributor or provider and also 
possesses the right to license linear video programming to a video 
programming distributor or provider that is intended for distribution 
to residential households.
* * * * *
    (b) Requirements for closed captioning of video programming--(1) 
Requirements for new programming. (i) Video programming distributors 
must ensure that 100% of new, nonexempt English language and Spanish 
language video programming that is being distributed and exhibited on 
each channel during each calendar quarter is closed captioned.
    (ii) Video programmers must provide closed captioning for 100% of 
new, nonexempt English language and Spanish language video programming 
that is being distributed and exhibited on each channel during each 
calendar quarter.
    (2) Requirements for pre-rule programming. (i) Video programming 
distributors must ensure that 75% of pre-rule, nonexempt English 
language and Spanish language video programming that is being 
distributed and exhibited on each channel during each calendar quarter 
is closed captioned.

[[Page 57486]]

    (ii) Video programmers must provide closed captioning for 75% of 
pre-rule, nonexempt English language and Spanish video programming that 
is being distributed and exhibited on each channel during each calendar 
quarter.
    (3) Video programming distributors shall continue to provide 
captioned video programming at substantially the same level as the 
average level of captioning that they provided during the first six (6) 
months of 1997 even if that amount of captioning exceeds the 
requirements otherwise set forth in this section.
    (c) * * *
    (1) All video programming distributors shall deliver all 
programming received from the video programmer containing closed 
captioning to receiving television households with the original closed 
captioning data intact in a format that can be recovered and displayed 
by decoders meeting the standards of this part unless such programming 
is recaptioned or the captions are reformatted by the programming 
distributor.
* * * * *
    (e) * * *
    (5) Video programming that is exempt pursuant to paragraph (d) of 
this section that contains captions, except that video programming 
exempt pursuant to paragraph (d)(5) of this section (late night hours 
exemption), can count towards compliance with the requirements for pre-
rule programming.
    (6) For purposes of paragraph (d)(11) of this section, captioning 
expenses include direct expenditures for captioning as well as 
allowable costs specifically allocated by a video programmer through 
the price of the video programming to that video programming provider. 
To be an allowable allocated cost, a video programmer may not allocate 
more than 100 percent of the costs of captioning to individual video 
programming providers. A video programmer may allocate the captioning 
costs only once and may use any commercially reasonable allocation 
method.
* * * * *
    (9) Video programming distributors shall not be required to ensure 
the provision of closed captioning for video programming that is by law 
not subject to their editorial control, including but not limited to 
the signals of television broadcast stations distributed pursuant to 
sections 614 and 615 of the Communications Act or pursuant to the 
compulsory copyright licensing provisions of sections 111 and 119 of 
the Copyright Act (Title 17 U.S.C. 111 and 119); programming involving 
candidates for public office covered by sections 315 and 312 of the 
Communications Act and associated policies; commercial leased access, 
public access, governmental and educational access programming carried 
pursuant to sections 611 and 612 of the Communications Act; video 
programming distributed by direct broadcast satellite (DBS) services in 
compliance with the noncommercial programming requirement pursuant to 
section 335(b)(3) of the Communications Act to the extent such video 
programming is exempt from the editorial control of the video 
programming provider; and video programming distributed by a common 
carrier or that is distributed on an open video system pursuant to 
section 653 of the Communications Act by an entity other than the open 
video system operator. To the extent such video programming is not 
otherwise exempt from captioning, the entity that contracts for its 
distribution shall be required to comply with the closed captioning 
requirements of this section.
* * * * *
    (g) Complaint procedures--(1) Filing closed captioning complaints. 
Complaints concerning an alleged violation of the closed captioning 
requirements of this section shall be filed with the Commission or with 
the video programming distributor responsible for delivery and 
exhibition of the video programming within sixty (60) days after the 
problem with captioning.
    (2) Complaints filed with the Commission. A complaint filed with 
the Commission must be in writing, must state with specificity the 
alleged Commission rule violated, and must include:
    (i) The consumer's name, postal address, and other contact 
information, if available, such as telephone number or email address, 
along with the consumer's preferred format or method of response to the 
complaint (such as letter, facsimile transmission, telephone (voice/
TRS/TTY), email, or some other method that would best accommodate the 
consumer.
    (ii) The channel number; channel name, network, or call sign; the 
name of the multichannel video program distributor, if applicable; the 
date and time when the captioning problem occurred; the name of the 
program with the captioning problem; and a detailed description of the 
captioning problem, including specific information about the frequency 
and type of problem.
    (3) Process for forwarding complaints. The Commission will forward 
complaints filed first with the Commission to the appropriate video 
programming distributor and video programmer. If the Commission cannot 
determine the appropriate video programmer, the Commission will forward 
the complaint to the video programming distributor and notify the video 
programming distributor of the Commission's inability to determine the 
appropriate video programmer. The video programming distributor must 
respond in writing to the Commission with the name and contact 
information for the appropriate video programmer within ten (10) days 
after the date of such notification. The Commission will then forward 
the complaint to the appropriate video programmer.
    (4) Video programming distributor and video programmer 
responsibilities with respect to complaints forwarded by the 
Commission. (i) In response to a complaint, the video programming 
distributor must conduct an investigation to identify the source of the 
captioning problem and resolve all aspects of the captioning problem 
that are within its control. At a minimum, a video programming 
distributor must perform the following actions as part of its 
investigation:
    (A) Program stream check. The video programming distributor must 
capture program streams, defined as digitally encoded elementary 
streams such as video, audio, closed captioning, timing, and other data 
necessary for a viewer to receive a complete television viewing 
experience, of the programming network identified in the complaint and 
check the program streams for any caption-related impairments;
    (B) Processing equipment check. If the video programming 
distributor's investigation indicates a problem with the program 
stream, and there is not prior knowledge as to where the problem 
originated, the video programming distributor must check post-
processing equipment at the relevant headend or other video 
distribution facility to see if the issue was introduced by the video 
programming distributor or was present in the program stream when 
received by the video programming distributor from the video 
programmer; and
    (C) Consumer premises check. If the video programming distributor's 
investigation indicates that the problem may lie with the consumer's 
customer premises equipment, including the set-top box, the video 
programming distributor must check the end user equipment, either 
remotely or, if necessary, at the consumer's premises, to ensure there 
are no issues that might interfere with the pass through,

[[Page 57487]]

rendering, or display of closed captioning.
    (ii) After conducting its investigation, the video programming 
distributor shall provide a response to the complaint in writing to the 
Commission, the appropriate video programmer, and the complainant 
within thirty (30) days after the date the Commission forwarded the 
complaint. The video programming distributor's response must:
    (A) Acknowledge responsibility for the closed captioning problem 
and describe the steps taken to resolve the problem; or
    (B) Certify that the video programming distributor has conducted an 
investigation into the closed captioning problems in accordance with 
paragraph (g)(4)(i) of this section and that the closed captioning 
problem is not within the video programming distributor's control and 
appears to have been present in the program steam when received by the 
video programming distributor; or
    (C) Certify that the video programming distributor has conducted an 
investigation into the closed captioning problems in accordance with 
paragraph (g)(4)(i) of this section and that the closed captioning 
problem appears to have been caused by a third party DVR, television, 
or other third party device not within the video programming 
distributor's control.
    (iii) If the video programming distributor provides a certification 
in accordance with paragraph (g)(4)(ii)(B) of this section, the video 
programmer to whom the complaint was referred must conduct an 
investigation to identify the source of the captioning problem and 
resolve all aspects of the captioning problem that are within its 
control.
    (A) The video programmer may call upon the video programming 
distributor for assistance as needed, and the video programming 
distributor must provide assistance to the video programmer in 
resolving the complaint, as needed.
    (B) After conducting its investigation, the video programmer must 
provide a response to the complaint in writing to the Commission, the 
appropriate video programming distributor, and the complainant within 
thirty (30) days after the date of the video programming distributor's 
certification. Such response either must describe the steps taken by 
the video programmer to correct the captioning problem or certify that 
the video programmer has conducted an investigation into the closed 
captioning problems in accordance with paragraph (g)(4)(iii) of this 
section and that the captioning problem was not within its control, for 
example, because the program stream was not subject to the closed 
captioning problem at the time the program stream was handed off to the 
video programming distributor.
    (C) If the video programmer certifies pursuant paragraph 
(g)(4)(iii)(B) of this section that the captioning problem was not 
within its control, and it has not been determined by either the video 
programmer or the video programming distributor that the problem was 
caused by a third party device or other causes that appear not to be 
within the control of either the video programming distributor or the 
video programmer, the video programming distributor and video 
programmer shall work together to determine the source of the 
captioning problem. Once the source of the captioning problem is 
determined, the video programming distributor and video programmer 
shall each correct those aspects of the captioning problem that are 
within its respective control. Within thirty (30) days after the date 
of the video programmer's certification provided pursuant to paragraph 
(g)(4)(iii)(B) of this section, the video programming distributor, 
after consulting with the video programmer, shall report in writing to 
the Commission and the complainant on the steps taken to correct the 
captioning problem.
    (5) Complaints filed with video programming distributors. (i) If a 
complaint is first filed with the video programming distributor, the 
video programming distributor must respond in writing to the 
complainant with thirty (30) days after the date of the complaint. The 
video programming distributor's response must either:
    (A) Acknowledge responsibility for the closed captioning problem 
and describe to the complainant the steps taken to resolve the problem; 
or
    (B) Inform the complainant that it has referred the complaint to 
the appropriate video programmer or other responsible entity and 
provide the name and contact information of the video programmer or 
other responsible entity and the unique complaint identification number 
assigned to the complaint pursuant to paragraph (g)(5)(ii)(B) of this 
section; or
    (C) Inform the complainant that the closed captioning problem 
appears to have been caused by a third party DVR, television, or other 
third party device not within the video programming distributor's 
control.
    (ii) If the video programming distributor determines that the issue 
raised in the complaint was not within the video programming 
distributor's control and was not caused by a third party device, the 
video programming distributor must forward the complaint and the 
results of its investigation of the complaint to the appropriate video 
programmer or other responsible entity within thirty (30) days after 
the date of the complaint.
    (A) The video programming distributor must either forward the 
complaint with the complainant's name, contact information and other 
identifying information redacted or provide the video programmer or 
other responsible entity with sufficient information contained in the 
complaint to achieve the complaint's investigation and resolution.
    (B) The video programming distributor must assign a unique 
complaint identification number to the complaint and transmit that 
number to the video programmer with the complaint.
    (iii) If a video programming distributor forwards a complaint to a 
video programmer or other responsible entity pursuant to paragraph 
(g)(5)(ii) of this section, the video programmer or other responsible 
entity must respond to the video programming distributor in writing in 
a form that can be forwarded to the complainant within thirty (30) days 
after the forwarding date of the complaint.
    (A) The video programming distributor must forward the video 
programmer's or other responsible entity's response to the complainant 
within ten (10) days after the date of the response.
    (B) If the video programmer or other responsible entity does not 
respond to the video programming distributor within thirty (30) days 
after the forwarding date of the complaint, the video programming 
distributor must inform the complainant of the video programmer's or 
other responsible entity's failure to respond within forty (40) days 
after the forwarding date of the complaint.
    (iv) If a video programming distributor fails to respond to the 
complainant as required by paragraphs (g)(5)(i) of this section, or if 
the response received by the complainant does not satisfy the 
complainant, the complainant may file the complaint with the Commission 
within sixty (60) days after the time allotted for the video 
programming distributor to respond to the complainant. The Commission 
will forward such complaint to the video programming distributor and 
video programmer, and the video programming distributor and video 
programmer shall address such complaint as specified in paragraph 
(g)(4) of this section.

[[Page 57488]]

    (v) If a video programmer or other responsible entity fails to 
respond to the video programming distributor as required by paragraph 
(g)(5)(iii) of this section, or if a video programming distributor 
fails to respond to the complainant as required by paragraph 
(g)(5)(iii)(A) or (B) of this section, or if the response from the 
video programmer or other responsible entity forwarded by the video 
programming distributor to the complainant does not satisfy the 
complainant, the complainant may file the complaint with the Commission 
within sixty (60) days after the time allotted for the video 
programming distributor to respond to the complainant pursuant to 
paragraph (g)(5)(iii)(A) or (B) of this section. The Commission will 
forward such complaints to the appropriate video programming 
distributor and video programmer, and the video programming distributor 
and video programmer shall handle such complaints as specified in 
paragraph (g)(4) of this section.
    (6) Provision of documents and records. In response to a complaint, 
a video programming distributor or video programmer is obligated to 
provide the Commission with sufficient records and documentation to 
demonstrate that it is in compliance with the Commission's rules.
    (7) Reliance on certifications. Video programming distributors may 
rely on certifications from video programmers made in accordance with 
paragraph (m) of this section to demonstrate compliance with paragraphs 
(b)(1)(i) and (b)(2)(i) of this section. Video programming distributors 
shall not be held responsible for situations where a video programmer 
falsely certifies under paragraph (m) of this section unless the video 
programming distributor knows or should have known that the 
certification is false.
    (8) Commission review of complaints. The Commission will review 
complaints filed with the Commission, including all supporting 
evidence, and determine whether a violation has occurred. The 
Commission will, as needed, request additional information from the 
video programming distributor or video programmer.
    (9) Compliance--(i) Initial response to a pattern or trend of 
noncompliance. If the Commission notifies a video programming 
distributor or video programmer of a pattern or trend of possible 
noncompliance with the Commission's rules for the quality of closed 
captioning by the video programming distributor or video programmer, 
the video programming distributor or video programmer shall respond to 
the Commission within thirty (30) days after the Commission's notice of 
such possible noncompliance, describing corrective measures taken, 
including those measures the video programming distributor or video 
programmer may have undertaken in response to informal complaints and 
inquiries from viewers.
    (ii) Corrective action plan. If, after the date for a video 
programming distributor or video programmer to respond to a 
notification under paragraph (g)(8)(i) of this section, the Commission 
subsequently notifies the video programming distributor or video 
programmer that there is further evidence indicating a pattern or trend 
of noncompliance with the Commission's rules for quality of closed 
captioning, the video programming distributor or video programmer shall 
submit to the Commission, within thirty (30) days after the date of 
such subsequent notification, a written action plan describing specific 
measures it will take to bring the video programming distributor's or 
video programmer's closed captioning performance into compliance with 
the Commission's closed captioning quality rules. In addition, the 
video programming distributor or video programmer shall conduct spot 
checks of its closed captioning quality performance and report to the 
Commission on the results of such action plan and spot checks 180 days 
after the submission of such action plan.
    (iii) Continued evidence of a pattern or trend of noncompliance. 
If, after the date for submission of a report on the results of an 
action plan and spot checks pursuant to paragraph (g)(8)(ii) of this 
section, the Commission finds continued evidence of a pattern or trend 
of noncompliance, additional enforcement actions may be taken, which 
may include admonishments, forfeitures, and other corrective actions.
    (iv) Enforcement action. The Commission may take enforcement 
action, which may include admonishments, forfeitures, and other 
corrective actions, without providing a video programming distributor 
or video programmer the opportunity for an initial response to a 
pattern or trend of noncompliance or a corrective action plan, or both, 
under paragraphs (g)(8)(i) and (ii) of this section, for a systemic 
closed captioning quality problem or an intentional and deliberate 
violation of the Commission's rules for the quality of closed 
captioning.
* * * * *
    (i) Contact information. (1) Receipt and handling of immediate 
concerns. Video programming distributors shall make publicly available 
contact information for the receipt and handling of immediate closed 
captioning concerns raised by consumers while they are watching a 
program. Video programming distributors must designate a telephone 
number, fax number (if the video programming distributor has a fax 
number), and email address for purposes of receiving and responding 
immediately to any closed captioning concerns. Video programming 
distributors shall include this information on their Web sites (if they 
have a Web site), in telephone directories, and in billing statements 
(to the extent the distributor issues billing statements). Video 
programming distributors shall keep this information current and update 
it to reflect any changes within ten (10) business days for Web sites, 
by the next billing cycle for billing statements, and by the next 
publication of directories. Video programming distributors shall ensure 
that any staff reachable through this contact information has the 
capability to immediately respond to and address consumers' concerns. 
To the extent that a distributor has personnel available, either on 
site or remotely, to address any technical problems that may arise, 
consumers using this dedicated contact information must be able to 
reach someone, either directly or indirectly, who can address the 
consumer's captioning concerns. This provision does not require that 
distributors alter their hours of operation or the hours during which 
they have staffing available; at the same time, however, where staff is 
available to address technical issues that may arise during the course 
of transmitting programming, they also must be knowledgeable about and 
be able to address closed captioning concerns. In situations where a 
video programming distributor is not immediately available, any calls 
or inquiries received, using this dedicated contact information, should 
be returned or otherwise addressed within 24 hours. In those situations 
where the captioning problem does not reside with the video programming 
distributor, the staff person receiving the inquiry shall refer the 
matter appropriately for resolution.
    (2) Complaints. Video programming distributors shall make contact 
information publicly available for the receipt and handling of written 
closed captioning complaints that do not raise the type of immediate 
issues that are addressed in paragraph (i)(1) of this section. The 
contact information required for written complaints shall include the 
name of a person with

[[Page 57489]]

primary responsibility for captioning issues and who can ensure 
compliance with the Commission's rules. In addition, this contact 
information shall include the person's title or office, telephone 
number, fax number (if the video programming distributor has a fax 
number), postal mailing address, and email address. Video programming 
distributors shall include this information on their Web sites (if they 
have a Web site), in telephone directories, and in billing statements 
(to the extent the distributor issues billing statements). Video 
programming distributors shall keep this information current and update 
it within ten (10) business days for Web sites, by the next billing 
cycle for billing statements, and by the next publication of 
directories.
    (3) Providing contact information to the Commission. Video 
programming distributors and video programmers shall file contact 
information with the Commission through a web form located on the 
Commission's Web site. Such contact information shall include the name 
of a person with primary responsibility for captioning issues and 
ensuring compliance with the Commission's rules. In addition, such 
contact information shall include the person's title or office, 
telephone number, fax number (if the video programming distributor or 
video programmer has a fax number), postal mailing address, and email 
address. Contact information shall be available to consumers on the 
Commission's Web site or by telephone inquiry to the Commission's 
Consumer Center. Video programming distributors and video programmers 
shall notify the Commission each time there is a change in any of this 
required information within ten (10) business days.
    (j) * * *
    (1) [Reserved]
* * * * *
    (3) Application of captioning quality standards. Video Programmers 
shall ensure that captioning meet the standards of paragraph (j)(2) of 
this section for accuracy, synchronicity, completeness and placement, 
except for de minimis captioning errors. In determining whether a 
captioning error is de minimis, the Commission will consider the 
particular circumstances presented, including the type of failure, the 
reason for the failure, whether the failure was one-time or continuing, 
the degree to which the program was understandable despite the errors, 
and the time frame within which corrective action was taken to prevent 
such failures from recurring. When applying such standards to live and 
near-live programming, the Commission will also take into account, on a 
case-by-case basis, the following factors:
* * * * *
    (k) * * *
    (1) * * *
    (iv) Certification procedures for video programmers. Video 
programmers adopting Best Practices will certify to the Commission that 
they adhere to Best Practices for video programmers, in accordance with 
paragraph (m) of this section.
* * * * *
    (l) [Reserved]
    (m) Video programmer certification. (1) On or before July 1, 2017, 
or prior to the first time a video programmer that has not previously 
provided video programming shown on television provides video 
programming for television for the first time, whichever is later, and 
on or before July 1 of each year thereafter, each video programmer 
shall submit a certification to the Commission through a web form 
located on the Commission's Web site stating that:
    (i) The video programmer provides closed captioning for its 
programs in compliance with the Commission's rules; and
    (ii) The video programmers' programs either satisfy the caption 
quality standards of paragraph (j)(2) of this section; or in the 
ordinary course of business, the video programmer has adopted and 
follows the Best Practices set forth in paragraph (k)(1) of this 
section.
    (2) If all of video programmer's programs are exempt from the 
closed captioning rules under one or more of the exemptions set forth 
in this section, in lieu of the certification required by paragraph 
(m)(1) of this section, the video programmer shall submit a 
certification to the Commission through a web form located on the 
Commission's Web site stating that all of its programs are exempt from 
the closed captioning rules and specify each category of exemption 
claimed by the video programmer.
    (3) If some of a video programmer's programs are exempt from the 
closed captioning rules under one or more of the exemptions set forth 
in this section, as part of the certification required by paragraph 
(m)(1) of this section, the video programmer shall include a 
certification stating that some of its programs are exempt from the 
closed captioning rules and specify each category of exemption claimed 
by the video programmer.
    (4) A television broadcast station licensed pursuant to part 73 of 
this chapter or a low power television broadcast station licensed 
pursuant to part 74, subpart G, of this chapter, or the owner of either 
such station, is not required to provide a certification for video 
programming that is broadcast by the television broadcast station.

[FR Doc. 2016-19685 Filed 8-22-16; 8:45 am]
 BILLING CODE 6712-01-P