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

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.