[Federal Register Volume 89, Number 149 (Friday, August 2, 2024)]
[Proposed Rules]
[Pages 63135-63139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17071]



[[Page 63135]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[CG Docket No. 05-231; FCC 24-80, FR ID 235802]


Closed Captioning of Video Programming

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: The Federal Communications Commission (Commission) proposes to 
amend its closed captioning rules to relieve video programmers that 
provide programming exclusively to Public, Educational, and 
Governmental (PEG) channels that are exempt from the closed captioning 
requirements from the obligation to register with the Commission and 
certify captioning compliance. In addition, for programming carried on 
nonbroadcast networks for distribution by a cable operator or other 
multichannel video programming distributor (MVPD), the Commission 
proposes that captioning registration and certification requirements 
shall not apply to the providers of such programming if the network 
itself certifies that it is exempt or that all programming comprising 
the network's linear line-up is either exempt from or compliant with 
the closed captioning rules. This action is intended to simplify 
compliance procedures and reduce administrative costs for video 
programmers, without compromising the quality and availability of 
closed captioning.

DATES: Comments are due September 3, 2024. Reply comments are due 
September 16, 2024.

ADDRESSES: You may submit comments, identified by CG Docket No. 05-231, 
via the Federal Communications Commission's website: https://www.fcc.gov/ecfs/. Follow the instructions for submitting comments.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Joshua Mendelsohn, Disability Rights 
Office, Consumer and Governmental Affairs Bureau, at 202-559-7304, or 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking, document FCC 24-80, adopted on 
July 16, 2024, released on July 18, 2024, in CG Docket No. 05-231. The 
full text of document FCC 24-80 is available for public inspection and 
copying via the Commission's Electronic Comment Filing System (ECFS). 
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.
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
interested parties may file comments and reply comments on or before 
the dates indicated on the first page of this document. Comments may be 
filed using the Commission's Electronic Comment Filing System (ECFS).
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://www.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
     Filings can be sent by hand or messenger delivery, by 
commercial courier, or by the U.S. Postal Service. All filings must be 
addressed to the Secretary, Federal Communications Commission.
     Hand-delivered or messenger-delivered paper filings for 
the Commission's Secretary are accepted between 8:00 a.m. and 4:00 p.m. 
by the FCC's mailing contractor at 9050 Junction Drive, Annapolis 
Junction, MD 20701. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes and boxes must be disposed of 
before entering the building.
     Commercial courier deliveries (any deliveries not by the 
U.S. Postal Service) must be sent to 9050 Junction Drive, Annapolis 
Junction, MD 20701.
     Filings sent by U.S. Postal Service First-Class Mail, 
Priority Mail, and Priority Mail Express must be sent to 45 L Street 
NE, Washington, DC 20554.
    Providing Accountability Through Transparency Act: The Providing 
Accountability Through Transparency Act, Public Law 118-9, requires 
each agency, in providing notice of a rulemaking, to post online a 
brief plain-language summary of the proposed rule. The required summary 
of this Further Notice of Proposed Rulemaking is available at https://www.fcc.gov/proposed-rulemakings.
    Ex Parte Rules. This proceeding shall be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte 
rules. 47 CFR 1.1200 et seq. Persons making ex parte presentations must 
file a copy of any written presentation or a memorandum summarizing any 
oral presentation within two business days after the presentation 
(unless a different deadline applicable to the Sunshine period 
applies). Persons making oral ex parte presentations are reminded that 
memoranda summarizing the presentation must (1) list all persons 
attending or otherwise participating in the meeting at which the ex 
parte presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda, or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with Sec.  1.1206(b) of the Commission's rules. In 
proceedings governed by Sec.  1.49(f) of the Commission's rules or for 
which the Commission has made available a method of electronic filing, 
written ex parte presentations and memoranda summarizing oral ex parte 
presentations, and all attachments thereto, must be filed through the 
electronic comment filing system available for that proceeding, and 
must be filed in their native format (e.g., doc, .xml, .ppt, searchable 
.pdf). Participants in this proceeding should familiarize themselves 
with the Commission's ex parte rules.

Initial Paperwork Reduction Act of 1995 Analysis

    Document FCC 24-80 may result in a new or revised information 
collection requirement. If the Commission adopts any new or revised 
information collection requirement, the Commission will publish a 
notice in the Federal Register inviting the public to comment on the 
requirement, as required by the Paperwork Reduction Act of 1995. In 
addition, pursuant to the Small Business Paperwork Relief Act of 2002, 
the Commission seeks specific comment on how it might ``further reduce 
the information collection burden for small business concerns with 
fewer than 25 employees.''

Synopsis

Background

    Section 713 of the Communications Act (the Act) directs the 
Commission to

[[Page 63136]]

ensure that video programming is fully accessible through the provision 
of closed captioning. 47 U.S.C. 613(b). At present, all new English and 
Spanish language video programming, both analog and digital, and 75 
percent of pre-rule video programming that is not exempt from the 
Commission's rules must be captioned. 47 CFR 79.1(b). Programming is 
exempt from the Commission's captioning rules if it (1) falls into one 
of 13 self-implementing, categorical exemptions, 47 CFR 79.1(d), or (2) 
has been granted an individual exemption from the closed captioning 
obligations after making a showing that providing captions would be 
economically burdensome. 47 U.S.C. 613(d)(3); 47 CFR 79.1(f). 
Categorical or individual captioning exemptions may apply on a channel-
wide or program-by-program basis.
    Since the inception of the Commission's closed captioning rules, 
the Commission has assigned primary responsibility for the provision of 
closed captioning on television programming to video programming 
distributors (VPDs). In 2014, the Commission added quality requirements 
for captions. In 2016, the Commission also placed captioning 
obligations on video programmers, as well as VPDs, and adopted 
requirements for each video programmer to register with the Commission 
and certify compliance with the captioning rules. Video programmers are 
required to register and submit certifications of compliance to the 
Commission once the Commission's website is ready to receive such 
certifications and a compliance date is published in the Federal 
Register.
    Section 611 of the Act allows cable franchising authorities to 
establish requirements in a franchise with respect to designation or 
use of channel capacity for PEG use. Public access channels are 
available for the general public's use and typically are administered 
either by a cable operator or by a third party designated by the 
franchising authority. Programming time on educational access channels 
is typically allocated among local schools, colleges and universities 
by the franchising authority or the cable operator. Governmental access 
channels generally are controlled by local governments, which use these 
channels for governmental programming in their jurisdictions.
    In a petition filed in August 2016, the Alliance for Community 
Media (ACM) requests that the closed captioning registration and 
certification requirements be waived for program producers that provide 
programs exclusively over PEG channels. ACM states that the vast 
majority of PEG channels fall within one or more of the Commission's 
closed captioning exemption categories, e.g., because the channel 
produces annual revenue less than $3,000,000. Requiring each PEG 
program producer to register and certify compliance for its video 
programming on channels that are themselves exempt, ACM argues, would 
impose a significant and unnecessary burden on such programmers and 
needlessly clutter the Commission's registration system. The Commission 
sought and received comments on this petition.
    In its comments, NCTA requests a clarification that video program 
owners (VPOs) of individual programs included in linear program 
networks distributed by MVPDs need not register or certify compliance 
with the captioning rules--or alternatively, that such obligations are 
waived if the network itself certifies compliance. NCTA suggests that a 
program-by-program certification or registration for each program 
licensed to a network for distribution by an MVPD is unnecessary.
    The Commission proposes to amend its rules to provide that the 
closed-caption registration and certification requirements do not apply 
to any video programmer that provides video programming exclusively to 
PEG channels that are exempt on a channel-wide basis (under either a 
self-implementing exemption or the economic-burden exemption) and for 
which exemption certifications have been filed by the channel 
administrator. The Commission also seeks comment on the extent to which 
cable operators or other PEG channel administrators would be able, if 
they chose, to file accurate certifications of captioning compliance or 
exemption for the programming carried on non-exempt PEG channels, i.e., 
those PEG channels that do not qualify for a channel-wide exemption. 
Finally, the Commission proposes to amend the captioning rules to 
provide that the registration and certification requirements do not 
apply to any video programmer that only licenses video programming to a 
nonbroadcast network for distribution by a cable operator or other 
MVPD, if such network has registered and certified to the Commission 
that the network itself is exempt or that all the programming 
comprising its linear line-up is either compliant with captioning 
obligations or exempt.
    Exempt PEG Channels. The Commission tentatively concludes that the 
purpose of its captioning rules--to ensure the accessibility of all 
video programming for which an exemption from captioning is not 
warranted--is not served by requiring video programmers to file 
registrations and certifications if their programs are distributed 
exclusively on exempt PEG channels for which an exemption certification 
has been filed. The record indicates that most PEG programs are 
exhibited on PEG channels that are themselves exempt from the 
Commission's captioning rules, and for which an exemption certification 
could be filed by the channel administrator. Requiring that PEG 
programmers also certify to the same exemptions, ACM and others 
contend, would result in the filing of redundant exemption 
certifications by thousands of PEG programmers. A number of commenters 
point out that this would be burdensome and would serve no useful 
purpose. So long as the PEG channel administrator files the required 
contact information and a certification attesting to the channel's 
exemption from the captioning rules, the record to date suggests that 
consumers will have access to the information intended by the 
certification requirement, and that the Commission will have sufficient 
documentation to ensure accountability for compliance with its rules. 
Under the Commission's proposal, the PEG channel administrator would be 
responsible for the truthfulness of its certification. The Commission 
seeks comment on its tentative conclusion and its underlying rationale.
    If the rules are amended as the Commission proposes, the Commission 
anticipates that most administrators of exempt PEG channels will 
certify as to the channel's exempt status. The Commission seeks comment 
on this expectation. In instances where a channel administrator does 
not register and certify, the Commission does not propose to relieve 
individual video programmers of their obligations to comply with the 
registration and certification requirements.
    Non-Exempt PEG Channels. The Commission also seeks comment on 
whether there are circumstances in which video programmers whose 
programs are carried on non-exempt PEG channels should be relieved from 
registration and certification obligations. A non-exempt PEG channel is 
a PEG channel that does not qualify on a channel-wide basis for a 
categorical or individual exemption based on its revenues or the type 
of programming it carries. Specifically, are there instances in which 
the administrator of a non-exempt PEG channel would have the ability to 
certify that all the programming carried on the channel is either 
compliant with or exempt from

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captioning obligations, thereby making it unnecessary for the 
individual programmers to provide certifications? The Commission notes 
that, because section 611(e) of the Act bars a cable operator from 
exercising editorial control over PEG channels, 47 U.S.C. 531(e), 
Commission rules do not require cable operators to provide closed 
captioning for PEG channel programming. 47 CFR 79.1. Where a PEG 
channel is administered by a cable operator, the Commission seeks 
comment on the extent to which, consistent with section 611(e) of the 
Act and Commission rules, a cable operator would be able to make 
accurate certifications of captioning compliance for video programming 
distributed on non-exempt PEG channels. Are other PEG channel 
administrators--such as government agencies, educational institutions, 
and designees of franchising authorities--able, as a factual matter, to 
make accurate certifications as to the exemption or captioning 
compliance of programming carried on non-exempt PEG channels? Do public 
interest considerations weigh in favor of or against the Commission 
relying on such certifications by cable operators or other 
administrators of non-exempt PEG channels? To the extent that the 
administrators of non-exempt PEG channels are able and willing to make 
such certifications, should the Commission amend its rules to relieve 
video programmers from filing duplicative certifications (as well as 
registration information) in such cases?
    To be clear, the Commission is not proposing to require that cable 
operators or other PEG channel administrators submit certifications 
regarding any PEG channels or PEG channel programming; rather, the 
Commission seeks comment on the extent to which such certifications are 
feasible--i.e., whether they could be accurately made, on a voluntary 
basis, to ease a regulatory burden that, under the current rules, would 
fall on producers of video programming carried on non-exempt PEG 
channels--and on whether to modify the Commission's rules to permit 
this.
    Effect on Caption Quality. The Commission seeks comment on whether, 
and if so how, its proposed rule amendments would affect the quality of 
closed captioning on exempt and non-exempt PEG channels. The Commission 
further requests that all commenters identify costs and benefits to 
support their positions. The Commission notes that it does not propose 
any change in any video programmer's substantive captioning obligations 
for non-exempt programming. Accordingly, each such video programmer 
must either qualify individually for an exemption or provide closed 
captions. 47 CFR 79.1(b). The Commission also notes that even if a PEG 
channel is exempt under the Commission's rules, PEG channel 
administrators and the associated video programmers may still have 
obligations under other federal laws, such as the Americans with 
Disabilities Act, to make their video programming accessible to 
individuals with disabilities. Further, if the administrator of a PEG 
channel does not certify to the compliance or exemption of all 
programming on the channel, the providers of such programming would 
remain subject to the registration and certification requirements.
    Nonbroadcast Network Programming. The Commission tentatively 
concludes that closed captioning registration and certification 
requirements should not apply to video programmers that provide or 
license video programming exclusively to a nonbroadcast network for 
distribution by a cable operator or other MVPD if such network has 
filed registration information and a certification with the Commission 
indicating that (1) the network itself is exempt or (2) all programming 
comprising its linear line-up is compliant with or exempt from 
captioning obligations. Conversely, if a nonbroadcast network does not 
certify that it is itself fully exempt, or that each of the programs 
comprising its channel line-up is in compliance with, or exempt from, 
the closed captioning obligations, each video programmer that provides 
programming on such network will remain subject to the registration and 
certification requirements. As an example, if the proposed rules are 
adopted, a food or sports network would continue to have an obligation 
to register with the Commission and certify the overall compliance of 
their programming with the captioning rules--or with applicable 
exemptions therefrom. However, the individual programmers that provide 
programs shown on these networks--such as baking shows and cooking 
contests in the case of a food network, and football and baseball games 
in the case of a sports network--would not be obligated to make these 
filings so long as their networks meet their own filing requirements.
    Nonbroadcast networks are those networks whose programming is 
delivered via MVPDs, such as cable systems or satellite services. The 
Commission includes local and regional cable channels, such as local 
and regional cable news and sports channels, within the meaning of the 
term nonbroadcast networks. The Commission does not include PEG 
channels within the meaning of the term nonbroadcast networks. 
Nonbroadcast networks are themselves ``video programmers'' under the 
Commission's captioning rules. See 47 CFR 79.1(a)(9). Therefore, after 
the compliance date for registration and certification by video 
programmers, each nonbroadcast network must register with the 
Commission and annually certify either that the network itself is 
exempt or that each of the programs comprising its channel line-up is 
compliant with (or exempt from) the captioning rules. 47 CFR 
79.1(i)(3), (m). These nonbroadcast networks must identify the 
categories of exemptions that are claimed, although they need not 
provide specific details, such as the names and timeslots for each such 
program.
    In light of these existing registration and certification 
requirements for nonbroadcast networks, the Commission tentatively 
concludes that it would be unnecessarily duplicative for potentially 
thousands of program owners that supply programming exclusively to 
nonbroadcast networks to also register and file annual certifications 
with the Commission for the same programming addressed in the networks' 
filings. It appears that such redundant certifications would impose 
significant and unnecessary regulatory burdens. The Commission seeks 
comment on its tentative conclusion and its underlying rationale. Will 
the registration and certifications made by nonbroadcast networks 
provide the necessary information for consumers and the Commission to 
ensure accountability with and enforcement of Commission rules? 
Commenters should discuss the costs and benefits of any advocated 
approach.
    Digital Equity and Inclusion. The Commission, as part of its 
continuing effort to advance digital equity for all, including people 
of color, persons with disabilities, persons who live in rural or 
Tribal areas, and others who are or have been historically underserved, 
marginalized, or adversely affected by persistent poverty or 
inequality, invites comment on any equity-related considerations and 
benefits (if any) that may be associated with the issues discussed 
herein. Specifically, the Commission seeks comment on how any 
Commission actions taken to address barriers to the distribution of 
independent and diverse programming may promote or inhibit advances in 
diversity, equity, inclusion, and accessibility.

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Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), the Commission has prepared this Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on small 
entities of the policies and rules proposed in this document. The 
Commission requests written public comments on this IRFA. Comments must 
be identified as responses to the IRFA and must be filed by the 
deadlines for comments specified on the first page of this document.

Need for, and Objective of, the Proposed Rules

    The Commission proposes to modify the video programmer registration 
and certification requirements by not applying those requirements to 
video programmers that either: provide video programming exclusively to 
public, educational, and governmental access channels (PEG channels) 
that are exempt from the provision of closed captioning pursuant to 
Sec.  79.1(d) or (f) of the Commission's rules, or that certify 
compliance with or exemption from the closed captioning obligations for 
all programming shown over the PEG channel itself; or provide or 
license video programming to nonbroadcast networks for distribution by 
a cable operator or other MVPD, to the extent that such networks 
certify that the network itself is exempt, or certify compliance with 
or exemption from the closed captioning obligations for all programming 
comprising the network's linear line-up. The purpose of this proposed 
rule change is to relieve providers of video programming to cable or 
other multichannel systems from the obligation to register with the 
Commission and to certify captioning compliance if the relevant 
certification has been filed by another competent entity.
    Legal Basis. The proposed action is authorized under sections 151, 
154(i), 154(j), 303(r) and 713 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), and 613.
    Small Entities Impacted. The proposals will affect obligations of 
small businesses, small organizations, and small governmental 
jurisdictions; establishments primarily engaged in operating studios 
and facilities for the broadcasting of programs on a subscription or 
fee basis; establishments primarily engaged in producing, or producing 
and distributing motion pictures, videos, television programs, or 
television commercials; closed captioning services--teleproduction and 
other postproduction services; and court reporting and stenotype 
services.

Description of Reporting, Recordkeeping, and Other Compliance 
Requirements

    The Commission proposes to amend the rules to not apply 
registration and certification requirements to those video programmers 
that either provide video programming exclusively to PEG access 
channels that are exempt from the provision of closed captioning or 
that certify compliance with or exemption from the closed captioning 
obligations for all programming shown over the PEG channel itself; or 
provide or license video programming to nonbroadcast networks, to the 
extent that such networks certify that the network itself is exempt, or 
certify compliance with or exemption from the closed captioning 
obligations for all programming comprising the network's linear line-
up.

Steps Taken To Minimize Significant Impact on Small Entities, and 
Significant Alternatives Considered

    In proposing to amend the Commission's closed captioning rules, the 
Commission believes that it will minimize the effect on small entities 
while continuing to make television programming accessible to persons 
who are deaf and hard of hearing. The Commission's proposed amendments 
would relieve many entities, including small entities, from reporting 
requirements. Thus, the Commission proposes an amendment to the rules 
that would exclude coverage of the rule for many entities, including 
small entities, under certain circumstances.

Federal Rules Which Duplicate, Overlap, or Conflict With, the 
Commission's Proposals

    None.

List of Subjects in 47 CFR Part 79

    Cable television, Television.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 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, 544a, 613, 617.

0
2. Amend Sec.  79.1 by redesignating paragraphs (a)(6) through (a)(13) 
as paragraphs (a)(7) through (a)(14) and adding paragraphs (a)(6), 
(i)(3)(iii), and (m)(6) to read as follows:


Sec.  79.1   Closed captioning of televised video programming.

* * * * *
    (a) * * *
    (6) Nonbroadcast Network. Networks whose programming is delivered 
via multichannel video programming distributors. Local and regional 
cable channels are included within the meaning of the term nonbroadcast 
networks.
* * * * *
    (i) * * *
    (3) * * *
    (iii) Video programmers shall not be required to file contact 
information with the Commission pursuant to paragraph (i)(3)(ii) of 
this section if they provide video programming exclusively to a public, 
educational, or governmental (PEG) access channel, as described in 
section 531 of title 47 of the United States Code, or a nonbroadcast 
network, for which the administrator of the PEG access channel or 
nonbroadcast network has on file with the Commission:
    (A) the contact information required by paragraph (i)(3)(ii); and
    (B) a certification pursuant to paragraph (m) of this section 
attesting to:
    (1) an exemption from the captioning rules for the nonbroadcast 
network or PEG channel itself; or
    (2) compliance with, or exemption from, the captioning rules for 
the entire programming line-up of the nonbroadcast network or PEG 
channel itself.
* * * * *
    (m) * * *
    (6) Video programmers shall not be required to submit 
certifications to the Commission pursuant to this paragraph (m) if they 
provide video programming exclusively on a public, educational, or 
governmental (PEG) access channel, as described in section 531 of title 
47 of the United States Code, or a nonbroadcast network, for which the 
administrator of the PEG access channel or nonbroadcast network has on 
file with the Commission:
    (i) the contact information required by paragraph (i)(3)(ii); and
    (ii) a certification pursuant to this paragraph (m) attesting to:
    (A) an exemption from the captioning rules for the nonbroadcast 
network or PEG channel itself; or
    (B) compliance with, or exemption from, the captioning rules for 
the entire programming line-up of the

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nonbroadcast network or PEG channel itself.

[FR Doc. 2024-17071 Filed 8-1-24; 8:45 am]
BILLING CODE 6712-01-P