Last month we reported on an FCC decision to allow the use of Auditory Assistance Devices for simultaneous language translation. That decision – which involved some technical rule changes as well as the expansion of permissible uses to include translation – has now been published in the Federal Register, which means that the effective date of the new rules has been established. That effective date is July 11, 2013. Use of 72-76 MHz band devices for language translation will be permitted as of that date. The technical rule changes -- which require compliance with tighter out-of-band emission limits -- will apply to new equipment certification applications filed on or after January 11, 2015, and to importation, marketing and installation on or after July 11, 2016.
Definition of “Auditory Assistance Device” expanded to permit equipment for language translation.
Back in September of 2011, we posted about a proposed change to the FCC’s rules to allow the use of unlicensed auditory assistance devices (AADs) for simultaneous language translation. The FCC has now implemented that change, and more.
AADs allow hard-of-hearing people to participate in events together with people with normal hearing in settings like classrooms, theaters, and houses of worship. A low-power radio transmitter sends sound to the user’s receiver, which amplifies the sound and delivers it to headphones without disturbing non-users in the room. Sound quality is much better than with a conventional hearing aid because the microphone is closer to the source. In some venues, AADs are required by disability laws. Personal systems are also permitted for those who want and can afford them.
AADs operate in the 72-76 MHz band under Part 15 of the Commission’s rules, which means they do not need an FCC license. The relevant definition has heretofore limited them to applications for providing auditory assistance to “handicapped persons.” But no longer.
In 2009, AAD manufacturer Williams Sound asked the FCC for a declaratory ruling that would allow the use of AADs for transmitting simultaneous language translation signals, saving the hassle of wiring up each listener to the translator. “[D]ifficulty understanding speech due to the inability to comprehend the spoken language is a handicap,” Williams reasoned, “and the handicap may be overcome with auditory assistance equipment supporting simultaneous language translation.”
Good try. Rather than issue the requested declaratory ruling, the FCC instead launched a rulemaking. Most commenters supported the new rule. The only opposition came from a company that makes more expensive equipment based on infrared technology, and one that feared greater use by the non-disabled would undermine the effectiveness of the technology for the disabled. The FCC wasn’t convinced.
That’s not to say that the AAD manufacturers got away clean. The FCC limited the out-of-band emissions from AADs to the very low default level required of unlicensed devices generally. Because the 72-76 MHz band is tucked between VHF TV channels 4 and 5, the out-of-band signals can threaten interference to viewers, especially of channels 2-6. The FCC took the excuse of expanded AAD applications to reduce the out-of-band limit for all AADs from a relatively generous 675 billionths of a watt down to a minuscule three.
Existing devices are grandfathered in. The FCC set a limit of 18 months from the new rules’ effective date for certification of devices under the old standard, and three years for manufacture, importation, marketing, and installation.
Interestingly, TV broadcasters neither opposed wider use of 72-76 MHz nor asked for the lower out-of-band limits. Either they are unconcerned about the risk of interference or, with the incentive auctions looming, have bigger things to worry about.
The new rules are set to take effect 30 days after the FCC’s Report and Order is published in the Federal Register. Check back here for updates.
A couple of weeks ago we reported on the Notice of Proposed Rulemaking (NPRM) looking into possible expansion of the use of auditory assistance devices in the 72-76 MHz band. The NPRM has now been published in the Federal Register. As a result, the deadlines for comments and reply comments have been set. Comments are due by November 4, 2011; reply comments are due by November 21.
FCC proposal would allow Part 15 ALDs to provide simultaneous translation to non-handicapped users
The inability to understand a foreign language may not be a handicap, but the FCC is looking to expand the use of unlicensed auditory assistance devices in the 72-76 MHz band – previously restricted to amplification for handicapped persons – to include simultaneous language translation for both disabled and non-disabled persons.
Auditory assistance devices (also known as assistive listening devices, or ALDs) provide a variety of services. Generally, ALDs allow hard-of-hearing people to participate in events together with people with normal hearing. Sound is transmitted wirelessly to a receiver, which amplifies the sound and delivers it to headphones, without disturbing non-users in the room.
In large venues, ALDs are more effective than hearing aids, where the microphone is part of the device in the ear. The further away the sound source is from the microphone, the more difficult it is to produce clear sound and to mask out unwanted distracting sounds. With an ALD, the microphone or other audio input is located at the source of the sound, where it is most effective, and a signal is transmitted wirelessly to listeners. ALDs are found in theaters, museums, and other public places and are in many instances required by disability laws. (Personal systems are also permitted for those who want and can afford them.)
There are two flavors of ALD.
One operates in the 72-76 MHz band under the unlicensed rules in Part 15; the other operates in the 216-217 MHz band under Part 95 (in the Low Power Radio Service). The Commission’s rules impose different limitations on the two flavors. Among other differences, Part 15 devices are restricted to providing auditory assistance only for handicapped persons; Part 95 devices can provide such auditory assistance, too, but they can also serve broader purposes, including simultaneous language translation.
One ALD manufacturer, Williams Sound, asked the FCC to expand the permissible use of Part 15 ALDs to include simultaneous language translation, thus allowing translation systems to be set up in meeting rooms without having to wire each individual listening position. Williams’ proposal would conform the Part 15 rules with the Part 95 rules. As Williams saw it, the logic behind such an expansion was sufficiently obvious that the Commission could just declare it to be so, without further ado.
The FCC declined that request, saying that a ruling would stretch the precise language of the Part 15 rules too far. However, the Commission agreed that the idea was a good one, so the FCC proposed to amend the rule to allow the use of ALDs in the 72-76 MHz band for language translation, regardless of whether or not the users are hard-of-hearing. The Commission recognizes that that change would likely lead to an increase in the use of Part 15 ALDs.
One possible problem with the proposal: the 72-76 ALD band sits immediately between TV Channels 4 and 5. If ALDs proliferate too much, the possibility of interference to TV reception will increase. If the FCC repacks a lot of TV stations into the VHF band, as it has indicated it wants to (to make room for more wireless spectrum), the likelihood of interference to TV reception will increase, at least to over-the-air TV reception. Cable and satellite boxes are shielded and should be relatively immune to interference, even if they use a Channel 4 wired output to the TV set. It remains to be seen whether TV broadcasters will complain about the increased interference risk.
The deadlines for comments and reply comments have not yet been set – that will depend on when the Notice of Proposed Rulemaking is published in the Federal Register. Check back here for updates.
March 22 deadline passes with less than total compliance
We told you so. Back in March, we reminded all video programming distributors (VPDs) that they were supposed to file their contact information with the Commission as required under the newly-effective rules relative to the closed captioning complaint process. The contact information was due on March 22. But did everybody do what they were supposed to? Apparently not, because on April 27, the Commission issued a public notice reminding VPDs of the filing requirement, noting that “many VPDs” have yet to provide the required information. Demonstrating the seriousness of all this, the public notice warns ominously, if somewhat vaguely, that “[f]ailure to provide such information could result in enforcement action.” That’s tellin’ ‘em.
Anyway, since the Commission seems to feel so strongly about this, we figure that the least we can do is try to give it a hand – so this is a CommLawBlog public service message, reminding VPDs that they’re supposed to submit to the Commission contact information to be used in the event of a closed captioning complaint.
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.
Requirement applies to all VPDs, even those exempt from captioning requirements
As we reported last month, the process for registering complaints about closed captioning problems has kicked in. And as part of that process, video programming distributors (VPDs) are required to provide to the FCC, by March 22, 2010, contact information (phone/fax/email) so that the FCC will know how to get in touch with the VPD relative to incoming complaints. VPDs can upload their contact information directly to the FCC by going to the designated page on the FCC’s website (which can be accessed by clicking this link), entering their FRN and FRN password, and then providing the necessary information.
Heads up: all VPDs are expected to upload their contact information, even if they happen to enjoy one or another exemption from the captioning requirements. The universe of VPDs subject to the Commission’s closed captioning requirements encompasses all broadcast television stations, including Class A’s and LPTVs. Some VPDs fall under certain exemptions which relieve them from having to caption programming that is not otherwise captioned. (For example, VPDs are not required to caption programming if that captioning would cost more than two percent of the VPD’s gross revenues. Similarly, VPDs aren’t required to spend any money to caption their programming if their channel produces less than $3 million in annual gross revenues.) Those exemptions do not relieve the VPD of the obligation to provide contact information as specified by the rules.
While it may seem counterintuitive to require exempt VPDs to post their contact information, there is some common sense at work here. The exemptions apply in large measure to programming that the VPD itself produces. But those exemptions do not relieve stations – including LPTVs – of the obligation to pass through, with the captioning intact, programming which has already been captioned by others upstream in the program distribution chain. In other words, even though a station does not have to caption the programming that it itself produces, that doesn’t mean that the station doesn’t broadcast some (and maybe a lot of) programming that is captioned. And viewers who rely on that captioning will – so the theory goes – want and need contact information if it turns out that there’s a problem with the captioning.
Staff reachable through the provided contact information should be able to “to immediately respond to and address consumers’ concerns.” However, that does not mean that the VPD should be on the hook for any additional costs. The rule (Section 79.1(i)) specifically provides that the “contact information” requirement does not mean that VPDs must alter their normal staffing schedules. However, when staff are available to deal with technical questions, they must know how to deal with closed captioning concerns. In the case of a VPD which is itself exempt from any captioning requirements, the staff reachable through the “contact information” listing should know how, and to whom, to refer any concerns about captioning problems in programming provided by third parties. All closed captioning calls or inquiries should be returned or otherwise addressed within 24 hours.
Long in coming, closed captioning complaint process finally emerges; Contact information due by March 22, 2010
The gestation period for the closed captioning complaint process – which thus far has fallen somewhere between the gestation periods of giraffes (420-450 days) and sperm whales (480-590 days) – appears to have entered its final phase.
The Commission first announced its new and (arguably) improved complaint process in early November, 2008. As of December, 2009, that process had still not become effective, even though the Office of Management and Budget had signed off on it in July, 2009. But now we are pleased to report that the FCC has announced that the new closed captioning complaint process is effective as of February 19, 2010 . . . except for Section 79.1(g)(3), which still isn’t.
Let’s put that exception off to the side for the moment and focus on the elements of the process that have (finally) become effective.
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.
Closed captioning complaint process inches ahead
From our “Hey, Whatever Happened To . . . ?” file, here’s an update on the new (well, at least it was new a year ago) complaint process relative to the closed captioning rules for video programming. That process was first announced in November, 2008, but has still not yet gone into effect.
As we reported back in November, 2008 (and again in January, 2009), the new complaint process – set out in a Declaratory Ruling, Order and Notice of Proposed Rulemaking released in November, 2008 – requires that the recipient of an incorrectly addressed closing captioning complaint forward that complaint on to the correct party. 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.
As it turns out, that raises a problem.
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.
Deadlines set for rulemaking comments, but new complaint process, recordkeeping requirements still NOT in effect
Back in November the Commission released a Declaratory Ruling, Order and Notice of Proposed Rulemaking (DRONPRM) in which it (a) imposed a number of new obligations on TV licensees and other video programming distributors and (b) sought comment on how the revenue-based per channel exemption from closed captioning requirements should be applied to stations with multicast programming streams. But as we reported back then, neither the effective date of the changes nor the deadlines for comments and reply comments would be set until the DRONPRM popped up in the Federal Register.
Lo and behold, more than two months later, the DRONPRM was published in the Federal Register, in two separate items, on January 13, 2009. (The rule changes which were adopted appear in one document, while the proposed rule changes, on which comment is sought, appear in another.) As a result, a couple of clocks are now running.
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.
Agency takes closer look at closed captioning in the Digital Age
In the guise of looking at closed captioning requirements for digital television and easing the complaint filing process, the Commission has added new contact information posting and filing requirements for television stations and other video programming distributors. The Commission also has sought comment on how the revenue-based per channel exemption from closed captioning requirements should be applied to stations with multicast programming streams. The impressively-titled Declaratory Ruling, Order, and Notice of Proposed Rulemaking was the outgrowth of a petition filed by Telecommunications for the Deaf, Inc. and other advocacy groups for the deaf and hard of hearing back in 2004.
Of immediate import to most television stations are the changes that the Commission has made in the complaint process for viewers who run encounter difficulties with closed captioning. The changes are designed primarily to help consumers make their problems known and obtain a prompt resolution.
Who’s who? Contact information – file it, post it, keep it current. From an operational standpoint, the most significant change is the new requirement that video programming distributors (VPDs) – a group which, for these purposes, consists of over-the-air broadcaster and multichannel video programming distributors, such as cable operators and satellite TV operators – provide contact information so that viewers will know how best to direct their inquiries and complaints. Apparently, a major issue has been that viewers have been uncertain as to whom they should contact with questions and problems. In order to alleviate that perceived difficulty, the Commission will now require that two different types of contact information be made available. While these new information requirements should prove useful, they also set up a trap for the unwary.
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.