CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

• Documentation of financial status to demonstrate the programmer’s inability to provide closed captioning;
• Verification that the programmer has obtained information about the costs of captioning specific program(s);
• Verification that the programmer has sought closed captioning assistance from its video programming distributor and note to the extent to which such assistance has been provided or rejected;
• Indication of whether the programmer has sought additional sponsorship sources or other sources of revenue for captioning, and a showing that, even if these efforts have not been fruitful, the programmer does not otherwise have the means to provide captioning for its programming; and
• Other relevant factors specific to the programmer’s particular situation.

If you happen to be one of the programmers stuck in this dilemma and you’d like our help in re-petitioning for an exemption from the closed captioning rules, please contact us well before the January 18 deadline for assistance in preparing your submission. (Don’t know whether you’re one of the elite 298? You can find a list of the affected programmers in Appendix A to the FCC’s October order.) Bear in mind that, if you don’t file an exemption request by that deadline, you will be required to provide closed captioning for your programming as of January 19.

The CGB found that requiring them to caption programs they produced would cause “significant hardship” and would create a risk that they’d cease producing programming. The CGB relied in particular on findings that (a) the programs in question were not produced primarily for a commercial purpose – indeed, the producers either offered it for free or paid for it to be broadcast – and (b) the petitioners were both non-profit organizations.

In granting those two exemptions, the CGB announced the standard that would be applied generally to requests for individual exemptions. The standard involved a presumption: exemptions would ordinarily be granted to non-profit program providers receiving no compensation where compliance with the captioning requirement could result in termination of the programming or a “curtail[ment] of other activities important to [the petitioner’s] mission.” Relying on this standard, the CGB proceeded to grant an additional 301 pending exemption requests. 

The captioning rules are designed primarily to benefit deaf and hard-of-hearing people. So it should not have surprised anybody when a group of advocacy organizations for the deaf and hard-of-hearing promptly asked the full Commission to overturn 298 of the CGB-granted exemptions, including the ones to Anglers for Christ and New Beginning.

Now, five years later, the Commission has determined that the CGB applied the wrong standard and didn’t follow the necessary procedural steps. As a result, all 298 exemptions have been reversed (as for those lucky five petitioners whose exemptions were not appealed for whatever reason, their exemptions continue to stand). The parties who received those now-reversed exemptions (and may have been relying on them for five years) must now file new requests under the newly-announced standards if those parties want to have their exemptions restored. Those new requests will be due 90 days after the order is published in the Federal Register, although the affected program providers will continue to be exempt until that time. If they file new requests for exemption, those temporary exemptions will continue until the CGB rules on their updated requests.

In overturning the CGB’s 2006 decision, the Commission concluded that the CGB inappropriately focused on the claims that the programming was non-commercial and did not have any remunerative value. As the Commission sees things now, the CGB instead should have taken into account all of the program producer’s available resources, not just those allocated for the programs. The CGB also should not have relied on the programmer’s non-profit status; rather, it should have considered the provider’s economic strength regardless of its for-profit or non-profit status. 

The Commission also faulted the CGB for creating a presumption that closed captioning exemptions should be granted when the expense of captioning would cause the programmer to “curtail other activities important to [their] mission.” In the FCC’s view, creating any presumption was contrary to the intent of the Act and the Commission’s Rules, which contemplate a case-by-case analysis. Not stopping with that, the Commission further announced that it isn’t even appropriate to consider whether the costs of captioning would curtail any other activities of the programmer. To the contrary, the relevant consideration is whether the expense would curtail the production of programming. Any effect on other activities is, essentially, irrelevant. 

According to the FCC, the CGB also was wrong in granting permanent, rather than temporary, exemptions of the closed captioning requirements. Particularly in light of anticipated technological advancements that make captioning cheaper, the Commission has now held that, going forward, exemptions should be limited in duration, absent compelling circumstances.

Finally, the Commission noted that, in granting the exemptions in 2006, the CGB failed to consider whether the programmers had asked the distributors of their programs for assistance with the expense of captioning. While distributors aren’t required to provide such assistance (although they are ultimately responsible for providing captioning), a programmer cannot make the crucial showing that captioning would impose an undue burden if the programmer fails to ask for such assistance.

Having effectively trashed pretty much the entirety of the CGB’s 2006 action, the Commission next explored what standards should be applied to individual exemption requests which are subject to the “economically burdensome” test. The FCC looked at the legislative history and the potential differences between the meaning of the statutory terms “undue [economic] burden” and “economically burdensome”. (In 2006, the Communications Act included the “undue burden” standard, which has since been changed to “economically burdensome.”) 

Ultimately, the Commission’s answer is a four-factor analysis to be applied to such requests. The factors to be considered:  (1) the nature of the captions required and the cost of providing them; (2) the impact of providing captions on the operations of the program provider requesting the exemption; (3) the financial resources of the program provider; and (4) the type of operations of the program provider. 

Specifically not included among the relevant factors are the program provider’s audience or market share, its non-profit status, its geographic location, or the existence of alternatives to traditional captioning. While those may have been appropriate factors for the Commission to consider in granting categorical exceptions to the captioning rules (e.g., the exceptions for certain late-night programming and for new networks), they are not to be considered by the CGB in evaluating case-by-case exemptions.   

While the Commission’s conclusion regarding the factors to be considered in determining what constitutes an “undue burden” are to be applied on an interim basis to both existing and new requests for individual exemptions, the Commission requests comment on whether these are in fact the correct factors, and whether any other matters should be considered in evaluating closed captioning exemption requests. Comments will be due 30 days after the Commission’s order is published in the Federal Register, reply comments a couple of weeks later. Check back here for updates.

Online Video Captioning

The proposed rules would require captioning only for on-line television programming: i.e., programming offered by a television broadcast station “or generally considered comparable to programming provided by a television broadcast station.” This does not include “consumer-generated media,” so the FCC will not require closed captioning for the funny cat videos you post to YouTube. The FCC seeks comment on the scope of the new rule, asking, for example, what would constitute IP-delivered video programming that is not comparable to programming provided by a television broadcast station.

Furthermore, and importantly, the closed captioning requirement will apply only to programming that was previously shown with captions over traditional media such as broadcast or cable. The Commission proposes to create a mechanism through which distributors can find out whether programs they intend to show online have been previously shown on television with captions.

In contrast to the current closed captioning rules (the ones that apply to 20th century media, like broadcast and cable), the proposed rules place the primary responsibility for providing closed captioning of online video on content owners – the persons or entities actually holding the copyright, rather than the distributors. Video programming owners will be required to send program files with all required captions to video provider/distributors, who will then have to pass the captioned programming through to the end user. Either the content owner or the distributor can petition for relief based on a showing that compliance would be “economically burdensome.”

The NPRM follows the Act’s propensity to play fast and easy with the term “IP-delivered”, using it to mean, generally, “over the Internet.” Of course, data transmitted over the Internet uses Internet protocol (IP). But there is an ongoing transition to networks that deliver all content via IP, regardless of the communications channel. Some providers, for example, operate “triple play” lines to the home that deliver telephone, television, and Internet access using a single IP stream. The TV component of this service could be considered “IP-delivered” video, but it’s not over the Internet. To avoid unintended, duplicative, or confusing obligations, the Commission should clarify how the new rules will relate to these services.

Captioning Capability of Video Devices

The CVAA requires that, if technically feasible, any “apparatus” designed to receive or play back video programming, as well as any “interconnection mechanisms or standards,” must be able to display closed captions (or transmit them, as the case may be). The only exceptions are for: (1) display-only monitors; (2) devices with a picture screen less than 13 inches for which closed captioning capability is not “achievable”; and (3) devices for which the Commission has waived the requirement because they derive their essential utility from non-video purposes.

On the one hand, this represents a stunning expansion of FCC jurisdiction over a vast host of devices it has not previously regulated (except as to stray radio-frequency emissions). Device manufacturers may well become alarmed. On the other hand, except for PCs and larger laptops, most display devices may be able to claim an "achievability" exemption, an exemption available only for devices with less-than-13-inch screens. The iPad, for example, comes in at 9.7 inches, well under the limit, and most competing tablets are smaller. Furthermore, if the industry can settle on a standard file format for IP captions, a simple software switch would be enough to toggle the captions on and off. Added requirements for hardware display devices would then be essentially zero.

The FCC seeks comment on the definitions, terminology, and scope of the requirement, as well as the parameters of each of the exemption categories. Does “apparatus” include software? Are computer monitors exempt? How is “achievable” different from “technically feasible”? Is there a particular file delivery format that devices should support? What multi-purpose devices, or categories of devices, should be waived? And so on. Commenters should note the specific rule provisions set out in Appendix A that are not addressed in the text: for example, requirements allowing users to select the appearance and other properties of the closed captioning display.

The NPRM also proposes procedures for complaint and enforcement of the new rules, including a stipulation that “de minimis” failures will not be treated as rule violations.

This proceeding is set to move quickly, mainly because of the Congressionally-imposed deadline (January 12, 2012) for getting the rules adopted. The Commission’s Notice of Proposed Rulemaking got hustled into the Federal Register, as a result of which comments are due by October 18, 2011, and reply comments by October 28.

As the public notice indicates, the closed captioning complaint rules provide three ways to get that information to the Commission. Two of those ways are addressed only in passing in the notice, probably because the Commission would prefer that they not be used. (Those two ways are: (1) filing it in hard copy with the Chief of the Disability Rights Office, Consumer and Governmental Affairs Bureau; and (2) sending it in an email to CLOSED CAPTIONING_POC@fcc.gov.) The public notice does go on at some length about the third, preferred, way – submitting the info through the hand webform at https://esupport.fcc.gov/vpd-data/login!input.action.

The Commission is right to push VPDs in the direction of the webform, which has a lot going for it. In fact, it makes you wonder why the Commission offers the other two alternatives at all. Be that as it may, here’s the scoop on the webform.

All you need is your FRN, FRN password, and the contact information. The first page you access asks for your FRN and password. After you login with those, you’re at a screen with three tabs in the upper left corner. If you haven’t entered any contact information for any station (or system, if you’re a cable person), you click on the middle tab labeled “New VPD”, which will then take you through a series of screens. each soliciting aspects of your contact information. It’s all pretty simple (although the Commission provides a “support” tab in each screen, just in case).

The primary advantage of the webform is that the VPD gets to enter the information itself. The other alternatives require FCC staff themselves to enter the data into the system – which obviously introduces the possibility of inadvertent error.

So all you VPDs, let’s get to it. We don’t want to have to warn you again.

As of February 19, any viewer who believes that a video programming distributor (VPD) has failed to comply with captioning requirements may file a complaint – either with the FCC or with the VPD itself. (FYI – VPDs include, for these purposes, over-the-air broadcasters and multichannel video programming distributors, such as cable operators and satellite TV operators.) The complaint must be in writing (fax, e-mail or snail mail), and must be submitted within 60 days of the alleged failure.

When a VPD receives a complaint – whether the complaint is sent (a) directly to the VPD or (b) to the FCC which then forwards it on to the VPD – the VPD has 30 days to respond in writing to the complainant. If the complainant isn’t satisfied with the response, he/she can then complain further to the Commission.

The newly effective rules also require VPDs to post in various places, within 30 days (i.e., by March 22, 2010) contact information of various sorts. First, VPDs must designate a telephone number, fax number, and e-mail address for purposes of receiving and responding immediately to any closed captioning concerns, such as technical problems which may cause captions to vanish or become garbled. Second, they must also provide contact information for closed captioning complaints of a more general and less immediate nature. That information must include the name of a person with primary responsibility for captioning issues and rule compliance, the person’s title or office, telephone number, fax number, mailing address, and e-mail address. All of this information must be posted on the VPD’s website (if it has one), included in billing statements for multichannel providers, and included in any local phone directory in which the VPD directly advertises or otherwise places commercial listings.

Perhaps more importantly, the VPD is now required to file its contact information with the Commission within 30 days of the rules’ effectiveness (again, by March 22, 2010). The Commission has set up a handy webpage which includes a link to a new electronic filing system just for this purpose – which the FCC specifically encourages VPDs to use – although the new rules also permit submissions by e-mail and/or in plain old paper-and-ink.

All contact information must be updated as necessary. (Website contact listings must be updated within ten days; listings on billing inserts must be updated by the billing cycle immediately following the changes; directories must be updated with the next publication.)

What about Section 79.1(g)(3), the sub-subsection that missed the effectiveness boat? That’s the provision that would require VPDs who receive a misdirected complaint to forward it along to the proper addressee. For example, the complainant might have written to her cable company – since that’s who she normally writes her monthly subscription checks to – not realizing that the party really responsible for the complained-of captioning issue was a program producer or distributor unrelated to the cable company. Under the new rules, the cable company would be obligated to forward the complaint on to the right folks. But as we reported last December, such forwarding would entail the disclosure of certain personal information – and the Communications Act prohibits such disclosure. So the Commission has put a hold on this particular forwarding requirement until it can resolve that pesky problem. No word yet on when that might be.

Complaints like that generally contain personally identifiable information, such as the complainant’s name and address. But Section 631(c)(1) of the Communications Act prohibits cable companies from disclosing any such personal information of a subscriber without prior written consent, and Section 338(i)(4) of the Act imposes the same prohibition on satellite carriers. As a result, in order to comply with the complaint-forwarding requirement, cable and satellite operators would be forced to violate the non-disclosure laws. Oops. (Exactly why this conundrum had not been perceived before the complaint-forwarding process was initially adopted is not clear. Nor is it clear why it’s taken the FCC a year to acknowledge and start to address the problem. But then again, it appears that even the folks at Time Warner Cable didn’t raise any questions about this until June, 2009.) 

So it’s back to the drawing boards – in a public notice the Commission has indicated that it will be releasing a Notice of Proposed Rule Making to seek comment on how to deal with this problem. In the meantime, the Commission is temporarily staying the effective date of this rule provision. The FCC further emphasized that other provision of the new rules would take effect as scheduled.

On another captioning complaints front, the Commission has announced in a separate public notice the implementation of a new electronic webform that will allow video programming distributors (VPD’s, a universe which includes cable and satellite operators, television stations and the like) to submit their contact information to the FCC more quickly, accurately, and efficiently. As part of the November, 2008, captioning complaint process, the Commission required VPD’s to submit their contact information by mail or by e-mail. While those options will remain, use of the new webform is strongly encouraged. Its use eliminates the risk of transcription errors by the Commission’s staff, lessens the staff time involved, electronically checks to make sure that all required data is provided, and makes the information available more quickly. In lauding the new system’s benefits, however, the Commission was a little less than clear on precisely how and where the electronic filing is to be done, but we are sure that all will become known.

The November, 2008, captioning complaints process – minus the complaint-forwarding aspect which, as noted above, is on indefinite hold – won’t take effect until the FCC has issued a public notice (in the Federal Register) advising that the Office of Management and Budget (OMB) has approved the process. According to OMB’s website, OMB approved the captioning complaints process last July. However, the Commission has not followed up with the required Federal Register notice of that approval, so the process is still technically not in place. When that will change, we do not know as yet. While we might expect the Public Notice announcing the effective date to be forthcoming shortly, you never know. One potential delaying factor that could crop up involves implementation of the electronic webform. Once the webform requirement kicks in, thousands of contact information filings will be expected within 30 days of the effective date. Obviously, the on-line form will need to work technically, so we may hope that any delays in implementation are the result of careful beta testing. In the interim, TV licensees and other VPD’s should be getting their contact information together.

The Commission has emphasized in the past that this provision allows for no exemptions, even in cases of news which is breaking quickly. Importantly, the rule reaches not only scripted presentations, but ad lib statements made in the course of live coverage. In 2005, the Commission underscored this obligation by issuing fines to a number of stations after reviewing days’ and days’ worth of recordings of the stations’ coverage of wildfires, hurricanes and tornados.   (You can check out some samples here, here, here, here or here.) Substantial fines – north of $20,000 in some cases – have been the result of any failures in this area, even when the omissions were relatively small and infrequent, particularly in the context of extended, days-long coverage. (Example: One station was fined because, during coverage of wildfires, it aired a representative of the American Lung Association who gave the unsurprising advice that viewers should stay indoors, run their air conditioners with a filter, and avoid exercise. The station’s failure to include visual presentation, by captioning or otherwise, of that advice contributed to a $20,000 fine.)

The bottom line is this: All emergency information aired by the station which includes information about what areas are affected, evacuation routes, methods of taking shelter in place, and the like, must be made available both visually and aurally, without exception. The substance of even an off-hand remark, if it contains any relevant information, must be conveyed in a way that makes it accessible to the visually and hearing disabled. 

The method of providing this information can be somewhat crude, such as holding up a handwritten board or reading information aloud, but regardless of how it is done, it must be done. Any crawls must be accompanied by an aural tone to alert visually impaired viewers to tune to another information source, such as the radio. Obviously, the Commission wants to be sure that everyone potentially in danger knows what to do to remain safe. While some might think that the Commission has sometimes gone a bit overboard in requiring even seemingly casual observations to be conveyed, at least most would agree that protection of life and property from imminent danger is an important goal.

The recent public notice also underscores the wide geographical range of the requirement. We are now reminded that the absolute accessibility requirement applies not only to areas in actual danger but also to those which might be logical evacuation areas. Along these lines, the concept of “emergency information” includes, for example, where evacuees from the danger zone may obtain relief assistance. (This interpretation could come as a surprise to stations located many miles away from a natural disaster, although the Commission did invoke this reading of the rule in 2005, in the case of Hurricane Katrina.)

The Commission also reminds us that some national events might be of local interest and subject to the requirements of Section 79.2, regardless of the lack of any actual local impact. It does not, however, provide any guidance to stations on figuring out when an event might fit into this category.

Network affiliates in the top 25 markets have a significantly greater burden in this area. Those stations are required, by hook or by crook, to arrange for closed captioning services. The Commission cuts such stations a little slack by allowing them time for the captioning personnel to travel to the station, but in the meantime any emergency information being broadcast must be made accessible to the disabled by some method. 

Additionally, depending on affiliation and market, some stations are allowed to use the electronic newsroom technique (ENT). Such stations must make sure that their ENT systems caption non-scripted materials; if the systems don’t caption such materials – whether automatically or as a matter of choice by the station – the station must still make sure that all emergency information is disabled-accessible in some manner.  

Perhaps most importantly, the Commission emphasizes that it is the responsibility of the local station to make sure that all emergency information is accessible, regardless of whether the station is viewed over the air or on cable or satellite.

First, if you want to comment on the proposed rules, you have until February 12; reply comments will be due on February 27. In case the precise subject matter of the Commission’s proposals may have slipped your mind over the holidays, here’s a quick refresher. The Commission’s rules (Section 79.1(d)(12), to be exact) provide that no video programming provider will have to lay out any coin to caption “any channel of video programming producing annual gross revenues of less than $3,000,000 during the previous calendar year.” But it’s not clear how that exemption would or should be applied to multi-channel DTV broadcasters: should each digital stream be deemed a separate and independent “channel” for these purposes, or should the term “channel” be deemed to mean the entire 6 MHz chunk of spectrum used by the licensee? Also, the Commission has questioned whether $3,000,000 is an appropriate threshold – and even whether a single threshold, as opposed to some sliding scale might be better suited. (Note that, notwithstanding the exemption, all video providers are required to pass through any captioning that has already been included by program producers supplying the video providers.)

Second, the “declaratory order” portion of the DRONPRM will be effective as of February 12. That portion was devoted to emphasizing that the shift from analog to digital would NOT alter the pre-existing captioning obligations. That is, there is no exemption for DTV programming just because it is digital. Likewise, the transition to all-digital broadcasting, whether on February 18 or some later date, does not relieve stations of the obligation to continue to caption programming in a manner that can be decoded by analog TV sets. Finally, the transition does not open up the opportunity for stations to claim the self-implementing exemption for channels with less than $3,000,000 in revenue or the new network exemption just because of a change from primarily analog to all-digital operation. In other words, captioning obligations are still in place, and don’t try to be too cute.

Third, the new contact information requirements and complaint process are still not yet in effect. Those items require review and approval by the Office of Management and Budget (OMB). The good news there is that, if you feel like filing comments with the FCC concerning the paperwork reduction aspects of the order – and particularly with regard to the contact information posting and notification requirements – you’ve got have until March 16, 2009, to do so. (The FCC will then presumably consider those comments in the preparation of the showing which it will have to make to OMB.)

In the meantime, the new FCC complaint process will NOT be in effect. That process calls for complaints to be filed with either the video programming distributor or the Commission, provides for a shorter turnaround time in responding to complaints, and requires stations and cable operators to provide assistance in forwarding misdirected complaints to the correct entity. Similarly, the new requirement that stations both provide and keep updated contact information for both complaints and inquiries of an urgent, primarily technical nature and those of a more general nature are also NOT yet in effect. 

If and when the OMB approves the new requirements, stations and cable operators will have 30 days in which to submit their contact information to the Commission. They will also have to post the information on their website (if they have one), obtain entries in local telephone directories, and, for cable operators, include the information in their bills.

First, VPDs must provide a telephone number, fax number, and e-mail address for purposes of receiving and responding immediately to any closed captioning concerns, such as technical problems which may cause captions to vanish or become garbled. If a VPD has staff available either on-site or remotely for addressing technical issues, then consumers must be able to reach someone, either directly or indirectly, who can address the captioning problems. Further, for telephonic inquiries, the VPD must be able to accommodate incoming calls placed through a Telecommunications Relay Service (TRS) operator. For those inquiries made after-hours or when staff might otherwise be unavailable, a response should be provided within 24 hours.

Second, VPDs must provide contact information for closed captioning complaints of a more general and less immediate nature. That information must include the name of a person with primary responsibility for captioning issues and rule compliance, the person’s title or office, telephone number, fax number, mailing address, and e-mail address.

All of this contact information must be included in telephone directories, posted on the VPD’s website (if it has one), and included in billing statements for multichannel providers. The Commission also will compile a database of this information. It is therefore requiring all VPDs to file their contact information with the Commission within 30 days of Office of Management and Budget approval.

Of course, to remain useful, the information must be kept current. When there are changes, websites must be updated within ten days, any bills must be updated by the next billing cycle, and directories must be updated by the next publication. Updates also must be filed with the FCC within ten business days.  All of this means that, as employees responsible for closed captioning compliance come and go, and in the event of any change in mailing address, e-mail address, or telephone number, stations must remember to make the required updates.

Complaint process tweaked. In order to further ease the complaint process, the requirements for both timing and the location of filing of complaint have changed. (The FCC has noted that complainants may also use Form 2000-C – the general Disability Access Complaint form – for filings regarding closed captioning.) The Commission has reduced the period in which a complaint may be filed to within 60 days of the captioning problem; it has also reduced, to 30 days after receipt of the complaint, the time in which a VPD must respond in writing. Further, if a complainant has misdirected his complaint to a VPD which happens not to have been the source of the problem, that VPD can’t just declare the complaint to be somebody else’s problem and throw it away; rather, the recipient must assist the complainant in correctly directing the complaint. As another aid to consumers, a complaint will no longer be required to be filed first with the programming distributor but alternatively may be filed first with the Commission.

Analog v. DTV – The same rules apply. In looking at the consumer impact of the now-imminent DTV transition, the Declaratory Ruling portion of the order also offers the clarification that digital programming is fully subject to essentially the same closed captioning requirements as analog programming. While there would not seem to have been much doubt about the matter, the Commission explicitly states that there is no exemption for DTV programming just because it is digital. The only real difference is the controlling date for determining whether a program is considered to be “new” or “pre-rule.”  At this point, all “new”, non-exempt English language programs must have captions, but providing captions for only 75 percent of “pre-rule” programming is sufficient. Spanish language programming is currently subject to lesser requirements, but the same rules will kick in for new programs as of January 1, 2010, and for pre-rule programs as of January 1, 2012. For shows in either language, the dividing line between new and pre-rule programming is the date on which the program first aired.

For analog programming the magic date was set at January 1, 1998, i.e.,the effective date of the rules. Because there were then no technical standards for display of closed captioning on DTV receivers at that point, the setting of the critical date for digital programming was delayed until there were. The established date is now July 1, 2002.

As an operational matter, the Commission notes that for those viewers relying on digital-to-analog converter boxes, it will be necessary for stations to continue to broadcast captions in the analog standard following the DTV transition. While the boxes will convert digital programming to analog for viewing, the requirement for the converter boxes is only that they pass through analog caption information in a manner that can be decoded by analog sets.

The Commission also seeks to disabuse stations of the notion that certain of the self-executing exemptions from captioning requirements will come into play because of the change from digital to analog. For example, a station may not claim the “new network” exemption because of a change from analog to digital. It also may not claim the exemption for channels with less than $3 million in revenues the previous year based solely on switching from a primary analog channel to a primary digital channel. For example, if a station’s analog operation on Channel 5 produced the bulk of its revenues in 2008, while its digital operation on companion Channel 45 produced little revenue this year, the station cannot claim exemption for its all-digital operation on Channel 45 for 2009.

Comments sought on $3 million exemption. Speaking of the $3 million revenue exemption, the Commission is examining this rule provision more closely and has sought comment on how it should apply to digital stations. The language of the rule specifies that this revenue-based exemption is for any “channel” that has revenues below $3 million. In the new multicast environment, however, the question arises as to what constitutes a “channel.” Is each multicast programming stream a separate channel, or is a channel the entire 6 MHz television channel that each station is allotted? Obviously, the answer to that question could have a significant impact on how much captioning must be provided on each multicast programming stream. The Commission notes, however, that the impact could be less than might be expected, as many programming suppliers already include captions, and stations will continue to be required to pass through captioning that they receive.  The Commission also asks whether the $3 million threshold continues to be appropriate or whether there should be some sort of sliding scale or perhaps a different (lesser) figure for each multicast stream.

Comments are due and the rule interpretations in the Declaratory Ruling become effective 30 days after publication in the Federal Register. The new information collection and posting requirements become effective 30 days after notice of OMB approval is published in the Federal Register.

speech in this way surviving constitutional scrutiny.  Another problem raised by several parties is technical in nature.  Again, unlike, broadcast television, there is no single technology by which Internet video is delivered. If a broadcaster finds it is even possible to automatically convert captions from a television program to the Internet stream (not always a guaranteed proposition because many programs are condensed on the Internet, with commercials removed), viewers use different programming formats to receive the stream.  Captions prepared for delivery via Internet Explorer may not be readable in Linux.  Work to solve this problem and create a single format for captioning is ongoing but still some time away.  Finally, there is the further concern that captions would be unreadable on smaller computer screens, let alone iPods, iPhones or other mobile phones to which the law would apply.

Rep. Markey held hearings in the House Subcommittee on Telecommunications and the Internet, of which he is Chair, earlier this month.  No bill has been introduced, nor have further hearings been scheduled but we'll keep you posted.