Update: Official Deadline Announced for Top Ten Nonbroadcast Video Net Exemption Requests

 Last month we reported on the FCC’s triennial designation of the Top Ten nonbroadcast video networks, a designation that looks like an honor of sorts (until you realize that larger (i.e., >50,000 subs) MVPD’s must provide 50 hours per calendar quarter of video-described prime time or children’s television on the designated Top Five nets). The Commission’s January announcement offered listed networks an opportunity to try to get themselves excused from the list by seeking an exemption. That opportunity extends 30 days from publication of the announcement. The January public notice did not, however, state expressly what the triggering “publication” date was – and we suggested that it might be a good idea to assume that the issuance of the public notice itself constituted publication. As it turns out, the FCC planned to publish the notice in the Federal Register, an event that would officially start the 30-day period for requesting exemption. And now that notice has been published. As a result, petitions for exemption from inclusion on the list must be filed by March 5, 2015.

Top Ten Nonbroadcast Video Networks? The Winners Are ...

Video description rules bring FCC into the ratings game ... every three years

When you’re trying to track down the national rankings of video programming networks, you may not think to check with the FCC – but, thanks to the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), that’s the first place you should look. Every three years, at least.

As long-time readers may recall, back in 2011 the Commission, pursuant to Congress’s direction in the CVAA, adopted extensive video description rules applicable to broadcasters and multichannel video programming distributors (MVPDs). As to the latter, the rules require that MVPDs with more than 50,000 subscribers must provide 50 hours per calendar quarter of video-described prime time or children’s television on the five most popular cable channels.

Popularity in this context is determined based on (take a deep breath) an average of the national audience share during prime time of nonbroadcast networks that reach 50 percent or more of MVPD households and have at least 50 hours per quarter of prime time programming that is not live or near-live or otherwise exempt under the video description rules. (The relevant Nielsen ratings period this time around was September 30, 2013-September 28, 2014; the relevant stats were Nielsen’s “live +7 day” ratings, i.e., the ones that include incremental viewing that takes place during the seven days following a telecast.)

While the calculation of Top Five nets could presumably be performed annually (or even more often), the Commission chose to update its list only every three years. The first three-year term has screamed by since the 2011 adoption of the rules. And as promised, the Media Bureau has now announced the Top Five nonbroadcast video networks that will trigger MVPD video-description obligations until July 1, 2018. (Actually, it announced the Top Ten, presumably to provide for alternates should they be needed.)

The lucky networks:

USA Network, ESPN, Turner Network Television, TBS Network, History. The next five runners-up were: Disney Channel, Fox News Channel, Nickelodeon, A&E Network, and FX.

Video description requirements for the new Top Five will kick in as of July 1, 2015. Until then, the currently reigning Top Five (you know, the ones the FCC identified back in 2011) will continue to be subject to those requirements. The current top five are: USA, the Disney Channel, TNT, Nickelodeon, and TBS.

You might think that Disney will be dropping off the list come July. Not so fast. The rules don’t apply to networks that provide fewer than 50 hours per quarter that is not live or near-live (i.e., broadcast within 24 hours of recording). That’s why ESPN (as well as Fox News) didn’t make the first list, and why we expect that ESPN will be axed from the latest list. If ESPN goes, Disney should be next up.

Any network that thinks it should be excluded from the Top Five has an opportunity, for 30 days following the publication of the list, to seek an exemption. Since the FCC’s notice doesn’t indicate that the list will be published in the Federal Register, it’s probably a good idea to assume that that 30-day period runs from January 7 to February 6, 2015.

We suspect, but can’t guarantee, that, once any exemption requests have been ruled on, the Commission will issue a follow-up public notice closer to July 1 to notify all affected MVPDs of the final Top Five. Check back here for updates.

Put It In Writing, Part II: Call for Comments on Closing Closed Captioning Loophole

FCC seeks input on possible regulation of “video programmers”.

As we reported recently, the FCC has ratcheted up its video captioning requirements for “Video Programming Distributors” (VPDs), a universe defined as “all entities who provide video programming directly to customers’ homes, regardless of distribution technology used (i.e., broadcasters and MVPDs)”. (Note that, despite that last “regardless of distribution technology” language, captioning requirements don’t apply to programming distributed solely on the Internet if it was not previously broadcast.) The new rules specify new caption quality standards for which VPDs are technically responsible – but VPDs can avoid penalties for captioning violations that are outside their control by making certain “best efforts”.

Those “best efforts” entail trying to get a certification from each “video programmer” (the definition of which we’ll come back to in a minute) confirming either that (a) the video programmer’s programming complies with FCC captioning standards; (b) the video programmer adheres to certain FCC-defined “best practices”; or (c) the video programmer is exempt from captioning obligations (exemptions can be based on financial hardship but are becoming increasingly difficult to get).

This approach may seem a reasonable allocation of responsibilities between VPDs and video programmers. But to the extent that it does not impose on non-exempt video programmers any independent obligation either to comply with the Commission’s captioning standards or utilize Commission-defined best practices, the approach may create a loophole of sorts because it doesn’t allow the FCC to take enforcement action directly against video programmers, as opposed to VPDs.

Apparently sensing this, the Commission has issued a Second Further Notice of Proposed Rulemaking (SFNPRM) looking for ways to close that loophole.

Although the substantive portion of the SFNPRM runs barely four pages, it’s chock-a-block full of questions about whether (and if so, how) the Commission can or should increase its direct regulation of video programmers. Suggestions include:

  • requiring video programmers themselves to provide directly to the FCC contact information (name, title, email, phone, fax, snail mail address) relative to individuals who will receive and can resolve captioning complaints. The SFNPRM also suggests that video programmers could be required to post this information on their websites;
  • requiring video programmers to submit their certifications directly to the FCC (rather than providing them only to VPDs or otherwise making them “widely available”;
  • amending the language of Section 79.1(g)(6) of the FCC’s rules to substitute the term “video programmer” for “programming supplier”. That section allows VPDs to rely on caption-quality certifications from “programming supplier”, a term defined as “programming producers, programming owners, networks, syndicators and other distributors”. Thanks to the inclusion of the term “other distributors”, this particular provision can be circular. By contrast, the term “video programmer” is defined as “any entity that provides video programming that is intended for distribution to residential households including, but not limited to, broadcast or non-broadcast television networks and the owners of such programming”, a definition which seems to avoid that circularity (although it still does not encompass programming produced only for Internet distribution).

And if the FCC eventually opts to require video programmers to file their certifications with the agency, the SFNPRM inquires whether VPDs should be required to “alert” video programmers from which they obtain programming that those video programmers are subject to that particular requirement and then monitor whether they comply. In other words, should TV stations, cable operators, and satellite systems have to poke at their program suppliers to do their duty to the FCC?

It does not appear from the SFNPRM that the Commission has a clear sense of what it can or should do here. That’s presumably why it merely poses a series of seemingly open-ended questions.

One question that is only briefly alluded to at the end of the SFNPRM but that is likely to demand attention: just how far can the FCC legally regulate entities – e.g., “video programmers” – who are not themselves using spectrum regulated by the Commission? For sure, the Commission can regulate, say, TV licensees who happen to produce their own programming. But what about the gazillions of program production companies totally unaffiliated with any FCC-regulated entity? How precisely can the Commission justify extending its regulatory tentacles to such companies? It’s certainly possible that various statutes intended to assure access to persons with disabilities – and particularly the captioning laws – could do the trick. But this is something the FCC will have to tie down because it can expect currently unregulated video programmers (including even companies marginally affiliated – through, e.g., multiple strata of corporate interlinkages – with one or another FCC licensee) to scream bloody murder if told that they must do things in a certain way because the FCC says so.

So while the SFNPRM is relatively short page-wise, we suspect that it will attract a disproportionately large and loud response, much of it adverse to what the FCC seems to want to do.

The SFNPRM, although released only a couple of weeks ago, has already made it into the Federal Register, so we know what the comment deadlines are. And if you’re thinking about filing, heads up: the comment periods are noticeably shorter than usual. Comments are due by January 20, 2015 and replies are due by January 30. Comments may be filed electronically through the FCC’s ECFS filing site; refer to Proceeding No. 05-231.

Put It In Writing: New Video Captioning Standards Coming Soon

Effective date set for new video captioning requirements

In its continuing effort to assure that television programming is more accessible to the deaf and hard of hearing, last February the Commission ratcheted up the captioning requirements for Video Programming Distributors (VPDs) and video programmers. And now, thanks to a low-key announcement in the Federal Register, we know when the last of the new requirements will kick in: March 16, 2015. Anyone involved in the production and/or delivery of video programming to residential consumers should start getting familiar with the new rules as soon as possible, if they haven’t already done so. The whole shooting match may be found in the Commission’s 153-page “Report and Order, Declaratory Rule, and Further Notice of Proposed Rule Making” (R&O/DR/FNPRM) released February 24, 2014.

The new rules apply to both VPDs and video programmers. VPDs are defined as “all entities who provide video programming directly to customers’ homes, regardless of distribution technology used (i.e., broadcasters and MVPDs.” In essence, these are the folks who are ultimately responsible for delivering programming directly to the consumer. Video programmers, by contrast, are “entities that provide video programming that is intended for distribution to residential households including, but not limited to, broadcast or nonbroadcast television networks and the owners of such programming.” We can think of these as the folks who produce the programming that VPDs then deliver to consumers. Of course, with respect to some programming – local news programs, for example – a single entity may be both VDP and video programmer.

The new rules may be summarized as follows:

ENT “Best Practices”.

Some of the rules adopted last February took effect several months ago, including the requirement that all VPD’s still eligible to use Electronic Newsroom Technique (ENT) to caption news programming may continue to use ENT for live programming only if they adopt new ENT Best Practices. (The universe of eligible VPD’s includes, for broadcasters, all stations not affiliated with ABC, NBC, CBS, or Fox, plus affiliates of these four networks outside of the top 25 Nielsen DMA’s.) Of course, a station may elect to provide real-time captioning for its live programming instead of relying on ENT captioning. For those sticking with ENT, however, the required Best Practices are as follows:

  • Pre-produced programming – Pre-produced programming must be scripted, at least to the extent technically feasible.
  • In-studio programming – All programming produced in-studio must be scripted. This requirement includes news, sports, weather, and live entertainment programming.
  • Weather interstitials – These segments must be scripted. The script should explain the on-screen visual information and convey forecast information, but the script may not precisely track the exact words used on air.
  • Interviews/On-the-Scene, Breaking News Segments – If such interviews, live on-the-scene, or breaking news segments are not scripted, then the station must supplement them with crawls in the lower third of the screen, textual information, or other means.
  • ENT Training/Compliance – The station must provide to all news staff members training on scripting to improve ENT function, and each station must appoint an ENT Co-ordinator to be accountable for compliance.
  • Emergency Programming – These Best Practices do not change the requirement that, in case of an emergency, all relevant emergency information must be conveyed by some means, whether it is closed captioning, open captioning, text crawls, or even hand-lettered signs.

The Commission intends to re-visit these new requirements after broadcasters have had the opportunity to test them out. One year after the new ENT requirements go into effect, broadcasters who have relied on the new measures must prepare a report which describes their experiences and describes the extent to which the measures have been successful in ensuring that full and equal access to news programming has been provided. The report must be prepared in consultation with consumer groups, and it may be prepared by the NAB on behalf of the affected broadcasters (although individual stations may provide their own reports as well). The Commission will consider economic and technological information provided to determine whether ENT should be phased out as a captioning method for at least some DMA’s.

General Captioning Quality Controls.

The rules likely to have the greatest impact on broadcasters impose quality control standards for captioning. Despite the fact that captioning technology has been with us in one form or another for decades – and a regulatory requirement since 1997 – the FCC still hears from deaf/hard of hearing viewers complaining that captions are “gibberish”, “garbled”, “butchered”, and the like. Way back when, the Commission expected that video programming providers would work with captioning companies to develop reasonably high standards for captioning. That apparently hasn’t worked out as planned. Accordingly, the FCC is moving from the voluntary to the mandatory.

Starting with the premise that captioning should “replicate the hearing listener’s aural experience”, the Commission has identified, and sought to standardize – at least generally – four separate qualitative components of captioning: accuracy, synchronicity, completeness and placement. The precise application of each may vary depending on the type of programming in question: while full compliance with all standards (other than the occasional de minimis error) is expected when it comes to pre-recorded programming, captioning of live and “near-live” programs may get some slack.

Accuracy – Captions should: (a) contain all the words audible to hearing viewers; and (b) be punctuated to convey precisely what is said. Spelling and grammar should be correct – unless some misspelling, grammatical errors or slang are intentionally included in the original content, in which case the captions should do what’s necessary to reflect the particular phrasing. Don’t forget sound effects, off-camera sounds/noises, and such – and identification of any off-screen speakers.

Synchronicity – Captions should be synched up with the audio so that the written words begin and end pretty much as the spoken words/sounds occur. The FCC cautions that “synchronicity” also means that captions must be displayed “at a speed that can be read by viewers” – which could cause some logistical problems in particularly rapid back-and-forth on-screen exchanges.

Completeness – The entire program must be captioned, from its absolute beginning to its absolute end. This appears to be a particular problem when it comes to live programming, where the captioning can lag behind the audio for obvious practical reasons – and when the show ends and a commercial or following program comes on, the captioning may be cut off even though it hasn’t totally caught up with the broadcast content. The FCC recommends various types of cooperation between programmers and captioners to address this problem, and it’s also soliciting suggestions for additional means.

Placement – The simple rule is that “captions should not block other important visual content on the screen”. “Visual content” in this context means pretty much anything that is “essential to understanding” the program’s content: character faces, featured text or graphics (in, e.g., news and weather alerts), significant plot elements, etc.

When it comes to pre-recorded programming, the Commission expects near-perfect captioning relying on off-line captioning techniques. The use of “real-time” techniques – i.e., the type of captioning usually used to caption live shows essentially on the fly – is discouraged for pre-recorded programs except when unusual circumstances require it.

Live or “near-live” programming, on the other hand, normally requires “real-time” captioning, and so will be subject to a somewhat more forgiving standard. (“Near-live” programming is defined as “video programming performed and recorded less than 24 hours prior to the time it was first aired on television.”) Complaints about captioning of such programs will be assessed based on a variety of factors including, among other things, the overall accuracy of the captioning, the extent to which any errors effectively “prevented viewers from having access” to the programming, and the VPD’s efforts to satisfy other quality-related standards imposed by the Commission (more on those below). Note, though, that the FCC expressly encourages that conventional off-line captioning be used when live or near-live programming is re-aired.

Responsibility for caption quality. 

The bad news for VPDs is that, even though much of their program content is produced by others, the FCC has decided to place responsibility for captioning quality on VPDs. The good news is that VPDs can meet that responsibility by making “best efforts” to obtain appropriate certifications from program suppliers.

VPD Best Efforts. The “best efforts” drill requires the VPD to ask each programmer, in writing, to provide a certification attesting that the programmer either:

(1) complies with the FCC’s captioning quality standards; or

(2) adheres to the Best Practices for video programmers identified by the Commission (see below for more on that); or

(3) is exempt from the closed captioning rules under one or more properly attained exemptions (when an exemption is claim, the certification must identify the specific exemption claimed).

The VPD also has to request, again in writing, that the programmer make this certification “widely available” within 30 days after receiving the VPD’s request. The VPD must then check websites and “widely available locations used for the purpose of posting widely available certifications” to see if the programmer has provided the requested certification. VPDs might want to check for any posted certifications even before they send out the written request because the Commission says that VPDs may properly rely on such certifications even if the VPD hasn’t previously requested them.

Merely asking for a certification is not the end of the road for the VPD. If the programmer does not provide the certification upon request, the VPD must rat out the programmer to the Commission (which will then compile and publicize a list of non-certifying programmers).

If a VPD jumps through all these hoops, no sanctions will be imposed on it for any captioning violations that are “outside the control” of the VPD. This “best efforts” obligation is among the rules set to take effect on March 16, 2015.

Video Programmer Best Practices. As indicated above, a programmer’s certification to be obtained through a VPD’s “best efforts” may include confirmation that the programmer adheres to certain “best practices”. For programmers, “best practices” include:

agreements with captioning vendors which specify performance requirements;

employee training requirements, and compliance verification;

quality audio to increase accuracy of transcription; and

advance provision to captioners of preparation materials such as scripts, proper names, and song lyrics.

Generally speaking, pre-recorded programming should be captioned offline, except in unusual circumstances. Such “unusual circumstances” involve such things as: editorial changes that are required up until the last minute (as with a reality show or news content); programming that is delivered late; caption files subject to technical problems; or programming subject to proprietary or confidentiality considerations. 

The new rules also lay out extensive and detailed “best practices” for captioning vendors, individuals who generate real-time captions, and offline (pre-recorded) captioning vendors and captioners. For such other parties in the program production chain, the “best practices” largely boil down to self-monitoring, maintaining equipment, and ensuring accuracy.

Equipment Monitoring and Record-Keeping

It has, of course, long been Commission policy that television stations must monitor their closed captioning equipment to make sure that it is working. But now that policy has been codified in a specific rule that requires technical equipment checks to be conducted in a manner “sufficient to ensure that captions are passed through to viewers intact.” It’s not entirely clear what this requirement means, as the Commission specifically disclaimed any requirement that stations monitor each and every program, but it’s safe to assume that frequent checks are required. (The FCC is still mulling over whether it should mandate that equipment be routinely checked at some specific, minimum interval and, if so, what the interval should be.)

Broadcast licensees must maintain records of their activities related to maintenance, monitoring, and technical checks, and they must retain those records for two years. Again, no particular format for such records has been specified, but the records must be sufficient to prove that a station has satisfied its legal obligations with regard to captioning. This is another of the requirements set to kick in on March 16, 2015.

More to Come.

These changes, sweeping though they may be, are not necessarily the end of the FCC’s efforts to improve closed captioning performance. The Commission is still considering a number of other measures. Check back here with CommLawBlog for updates.

FCC Looking to Expand Closed Captioning Requirement for IP-Delivered Programming

Commission considers mandating captioning of video “clips”.

For the last year or so, the law has required a sizable chunk of U.S. video programming displayed on the Internet to be closed captioned. One type of programming has, however, been exempt from that requirement: video “clips” don’t need to be captioned, as opposed to “full-length” programming which, for the most part, does.

But now the FCC is considering closing that loophole, and the Media Bureau is looking for input to help in making the decision. If you have any information or thoughts to share, you’ve got until January 27, 2014 to let the Bureau know; reply comments can be filed until February 26.

Before delving into the specifics of the Bureau’s inquiry, let’s take a quick look at the Internet captioning requirements as they now stand.

In January, 2012, the FCC adopted rules governing closed captioning of video programming delivered by Internet Protocol (IP); they have been in full effect (except with respect to certain archived programming) since March, 2013. The Commission’s Report and Order may be found at this link, and the actual rules themselves (set out in various subsections of Section 79.4) may be found at this link

At first blush the rules seem relatively straightforward: they specify (at Section 79.4(b)) that “[a]ll nonexempt full-length video programming delivered using Internet protocol must be provided with closed captions if the programming is published or exhibited on television in the United States with captions on or after [certain dates].” The particular application of that requirement is, however, complicated, involving determinations of: (a) who is responsible for which elements of compliance; and (b) what programming is subject to the requirement.

Who do the rules apply to? The IP captioning requirements apply to two types of entity, Video Programming Owners (VPOs) and Video Programming Distributors (VPDs). (The latter may also be referred to as “Video Programming Providers”).

A VPO is defined as:

Any person or entity that either:

(i) licenses the video programming to a video programming distributor or provider that makes the video programming available directly to the end user through a distribution method that uses Internet protocol; or

(ii) acts as the video programming distributor or provider, and also possesses the right to license the video programming to a video programming distributor or provider that makes the video programming available directly to the end user through a distribution method that uses Internet protocol.

Essentially, a VPO is the party that authorizes the IP distribution of the programming. It is not necessarily the copyright holder. If a TV station is making some or all of its programming available through some IP delivery mechanism (including, but not limited to, posting the programming on the station’s website), the station is a VPO.

A VPD is defined as:

Any person or entity that makes available directly to the end user video programming through a distribution method that uses Internet protocol.

Note that a VPO can also be a VPD – for example, a television station that both (a) provides some or all of its programming to others for IP distribution and (b) posts its own programming on its own website for viewing would fall into both categories.

What is required of VPOs and VPDs?  

VPOs. VPOs must “[s]end program files to [VPDs] with captions . . . with at least the same quality as the television captions provided for the same programming”. Basically, VPOs are responsible for ensuring that the programming as provided to the VPD contains the necessary captioning. The rule does not require use of any particular captioning technology or standards for this – to the contrary, the rule allows VPDs and VPOs to make that determination by mutual agreement. However, the rule does provide a “safe harbor” for VPOs: their captioning will be deemed to have satisfied the rule if they provide captions to the VPD using the Society of Motion Picture and Television Engineers Timed Text format (SMPTE ST 2052-1:2010: “Timed Text Format (SMPTE-TT)” 2010). (Specs for that SMPTE standard may be found at this link.)

VPDs. VPDs must in turn “[e]nable the rendering or pass through of all required captions to the end user, maintaining the quality of the captions provided by the video programming owner and transmitting captions in a format reasonably designed to reach the end user in that quality.” So upon receipt of the captioned programming files from the VPO, the VPD must transmit all of that content to its viewers, and the VPD must ensure that the captioning is properly displayed on the end user’s device. If the VPD’s delivery of programming to end users depends on particular applications, plug-ins or devices, all such apparatus must comply with relevant FCC rules. Each VPD must also make available to its end users contact information for the VPD’s representative to whom captioning-related complaints may be directed. That person must be in a position to ensure compliance with the rules. The contact information must include (in addition to the individual’s name), her/his title, telephone number, fax number, postal mailing address and e-mail address. (That information must be kept current and updated within 10 days of any change.)

Joint Obligations. Additionally, VPOs and VPDs share a common obligation to agree on a mechanism by which the VPO will alert the VPD, on an ongoing basis, as to whether any particular programming is subject to the IP captioning requirements. One such mechanism described in the rules is a “certification” process by which the VPO certifies to the VPD that the programming is not required to be captioned and explains why that is the case. If the VPD can produce such a certification to the Commission in the event of a complaint, then the VPD will be off the hook should a complaint about lack of captioning be filed.  (The VPD will still have to make good faith efforts, using whatever the agreed-to mechanism is, to identify programming that must be captioned.)

The VPO and VPD can come up with some alternative notification mechanism. The VPD in such cases may ask the FCC to review the mechanism to determine whether the VPD may rely on it.

Additionally, if a VPO eschews the SMPTE-TT standard and agrees with a VPD to utilize some different standard, both VPOs and VPDs may be found responsible if the quality of the captions is not the same as the equivalent television captioning for the same programming. For these purposes, the “quality” of captioning will be determined by reference to such factors as completeness, placement, accuracy, and timing. 

What programming must be captioned for IP distribution? The question of what programming must be captioned is a bit complicated. The main rule provides that all “nonexempt full-length video programming delivered using Internet protocol” must be captioned as long as the programming is “published or exhibited on television in the United States with captions” as of certain dates. The term “video programming” is in turn defined as “[p]rogramming provided by, or generally considered comparable to programming provided by, a television broadcast station, but not including consumer-generated media”. To simplify (and possibly over-simplify) all that, it’s probably safe to start with the assumption that any programming (other than “consumer-generated media”) that has been broadcast, with captioning, on a U.S. TV station on or after September 12, 2012 (the effective date of the IP captioning rules) is likely subject to the IP captioning requirement.

Still, application of the general rule entails multiple additional inquiries.

What is “consumer-generated media”? This is any content – audio, video, multimedia – created by consumers and made available by them to online websites and services. Videos posted on YouTube are a common example. Note, however, that if a full-length program that includes consumer-generated media is shown on TV with captions, then the IP version of the same program must also be captioned.

What is “nonexempt” programming. VPOs and VPDs may petition the FCC for full or partials exemptions from the captioning requirements based on the economic burden captioning would impose. The rules set out in detail the process through which such an exemption may be requested, including the provision of public notice and comment on the petition. The rules also set out the necessary contents of the petition. Note: As long as a petition for an exemption based on economic burden is pending, the Commission will treat the subject programming as exempt from captioning.

What is “foreign programming”? The IP captioning requirements apply only to programming that has been “published or exhibited on television in the United States”. Accordingly, if programming has appeared on TV only in some foreign country and not in the U.S., it is not subject to the IP captioning rules.

What is “full-length” programming. The term “full-length video programming” is defined in the rules as “[v]ideo programming that appears on television and is distributed to end users, substantially in its entirety, via Internet protocol, excluding video clips or outtakes.” “Outtakes” in this context is any content not used in an edited version of the programming as shown on television.

The term “video clips” isn’t so easily dealt with. It is defined, unhelpfully, as “[e]xcerpts of full-length video programming”. Precisely how brief an “excerpt” must be in order to qualify as a “video clip” is not specified. Similarly, content is not necessarily determinative: for example, promotional materials may or may not constitute “full-length” programming. The Commission has indicated that, where “substantially all” of a full-length program as shown on television is made available by IP, that is not a mere “video clip”. Similarly, the Commission has warned that “shav[ing] off a few minutes (or brief segments)” from a 30-minute program does not relieve the parties of IP captioning requirements. Ditto where a full-length program is broken into segments, each of which is separately distributed by IP.

But telling the difference between “clips” and “full-length” programming may not make much difference in the foreseeable future because, as noted, the Commission is leaning toward requiring IP-delivered clips to be captioned, too. Before it imposes that new obligation, though, the FCC wants to hear from programmers about the burdens – financial and practical – that clip-captioning would likely impose. The Bureau asks about the amount and quality of clip-captioning already available and the extent to which such captioning is increasing. It also wants to know what exactly is involved in the captioning process of clips for IP distribution, that is, what technical challenges does that process present. If some, but not all, clips should be captioned, which subsets should be in and which should be out, and why?

As television stations increasingly use the Internet to make their product available 24/7 on that medium, increasing attention should be paid to such chores as captioning. Any TV licensees who have not fully focused on this aspect of their use of the Internet may want to take this commenting opportunity to get themselves fully up to speed on it.

A note about “archived” programming. When it adopted the IP captioning rules nearly two years ago, the Commission recognized that a significant amount of uncaptioned programming had already been provided to VPDs and placed in VPD libraries before the programming had been shown on television with captions. No IP captioning of such archival programming by VPDs is required as long as the programming is not shown on television with captions. Identifying such programming – and then taking it off-line to add captions to it – poses serious technical difficulties. Accordingly, the Commission determined that the IP captioning requirements relative to such archival programming would be deferred until March 30, 2014, and would thereafter be subject to a somewhat relaxed captioning schedule. In particular:

For uncaptioned IP-delivered programming already in a VPD’s library, no IP captioning is required even if the programming is shown on TV with captions as long as it is not shown on TV on March 30, 2014 or thereafter.

If such archival programming is shown on television with captions on or after March 30, 2014 but before March 30, 2015, the VPD must provide captions within 45 days of the date on which the programming is shown on television. The time for adding captions shrinks to 30 days for programming shown with captions between March 30, 2015 and March 29, 2016, and then shrinks again to 15 days for programming shown with captions on or after March 30, 2016.

A VPO is required to update all VPDs with respect to any change in the status of any archived programming changes. The FCC has not prescribed any particular mechanism for such updates – the parties may develop a notification system that is mutually agreeable.

Complaints. Finally, be advised that the FCC has developed a complaint system which is featured prominently on its website. That system requires VPOs and VPDs that receive complaints to respond to them within 30 days.

Telecom Providers and Manufacturers: Accessibility-Related Recordkeeping and Certification Requirements Are Now in Effect

For some time already many, if not most, communications service providers and equipment makers have had to ensure accessibility to the disabled; now they’ve got to keep records of those efforts AND separately certify to the FCC that they’re in fact keeping those records.

If you happen to be subject to Section 255, 716 and/or 718 of the Communications Act, the FCC wants to make sure that you know you’ve got some recordkeeping to do – and some reporting, too. (Fuzzy on whether you’re in that club? If you are not a communications service provider or equipment manufacturer, you need read no further. If you do happen to fall into one or both of those categories, you should read on, although it may turn out that you, too, are off the hook.)

The new recordkeeping requirements – which took effect on January 30, 2013 – arise from Congress’s repeated efforts to ensure that telecommunications services and equipment are accessible to folks with disabilities. Thanks to those efforts, certain service providers and manufacturers must take affirmative steps to provide accessibility to the extent achievable. 

And now, in addition to actually taking those steps, the affected companies must also maintain records of the steps they’ve taken . . . and they’ve also got to confirm to the FCC, once a year, that they are indeed maintaining such records.

What kind of recordkeeping are we talking about?

According to the Commission, affected entities must maintain, in the ordinary course of business:

  • records of information about efforts to consult with individuals with disabilities;
  • descriptions of the accessibility features of their products and services; and
  • information about the compatibility of such products and services with peripheral devices or specialized customer premise equipment commonly used by individuals with disabilities to achieve access.

Section 14.31, which imposes this obligation, is light on specifics – no particular format for the records is mandated. However, the records must be kept “for a two year period from the date a product ceases to be manufactured or a service ceases to be offered”. (The Commission’s public notice about the recordkeeping rule says – unhelpfully, and perhaps a bit misleadingly – that the records must be maintained “for a reasonable period”.) 

Once the records have been prepared, there is no obligation that they be submitted to the FCC (unless a complaint is filed and the FCC then asks for them). But that doesn’t mean that you don’t have to file anything at all.

Au contraire. The Commission wants to be sure that everybody that’s supposed to be keeping records is in fact keeping records, even if the FCC isn’t particularly interested in seeing the records themselves. So, as of this year, every telecom service provider and manufacturer subject to the recordkeeping requirement must submit a certificate to the FCC, annually, confirming that the certifying entity “has established operating procedures that are adequate to ensure compliance with the recordkeeping rules and that it is keeping records accordingly”. That certificate must be supported by a statement – signed under oath or penalty of perjury – from an authorized company official verifying the truth and accuracy of the report.

In addition, the certificate must include the name and contact information of company personnel authorized to receive service, and/or resolve, complaints about possible violations of the accessibility rules.

When do these certificates have to be filed? By April 1 of each year (but note that the certificate must be updated as necessary to keep the contact information current).

What period of time is covered by each annual certificate? According to Section 14.31(b)(3), each certificate relates to “records pertaining to the previous calendar year”. That, of course, poses something of a problem with respect to the certificate due to be filed April 1, 2013, since the recordkeeping requirement did not take effect until January 30, 2013 and, thus, nobody was required to keep records during the previous calendar year. The Commission’s public notice addresses that conundrum by asserting that the certificate due by this coming April Fool’s Day “must certify that, as of January 30, 2013 (the effective date of the recordkeeping rules), records are being kept in accordance with the Commission’s rules.” That’s not really what the actual rule (that would be Section 14.31(b)(3)) seems to provide, but if you opt to comply with the public notice’s direction, the FCC probably won’t hold it against you.

How do you file these certificates and updates? Electronically, through the FCC’s web-based Recordkeeping Compliance Certification and Contact Information Registry. (You’ll need your FRN and password to access the upload site.)

And who, exactly, is required to file these annual certificates? This gets a little complicated. As we said up front, the accessibility requirements – i.e., the focus of the recordkeeping/certification obligations – are imposed by Sections 255, 716 and 718 of the Act. Each of those sections applies to particular categories of communications-related service providers and the manufacturers of equipment used for such services:

  • Section 255 applies to providers of telecommunications services, interconnected VoIP services, voicemail, or interactive menu services, as well as to manufacturers of equipment for telecommunications or interconnected VoIP services.
  • Section 716 applies to providers of “advanced communications services” (ACS) and manufacturers of equipment (including end-user, network and software) for such services.  For purposes of these new requirements, covered ACS include: non-interconnected VoIP services (e.g., “one-way VoIP”), electronic messaging services (e.g., text-messaging, instant messaging, e-mail) and interoperable video conferencing services (e.g., real-time video chat).
  • Section 718 applies to manufacturers of, and service providers offering, mobile phones that include an Internet browser.

The recordkeeping and certification requirements are identical for all categories, even though the specific substantive accessibility requirements are not. 

Let’s take a quick look at those categories. Sections 255 and 718 are reasonably straightforward – if you belong to one of these, you should know it. But Section 716 is trickier.

First, the definition of ACS technically includes “interconnected VoIP” services. But “interconnected VoIP” services – as currently defined by the FCC – are not subject to Section 716. That section specifically excludes any services that were already subject to Section 255 prior to the enactment of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) on October 8, 2010, and Section 255 was extended to interconnected VoIP services (as currently defined) in 2007. So there appears to be an inconsistency here. 

While the FCC could conceivably change the definition, or regulatory classification, of “interconnected VoIP” in the future, for the time being interconnected VoIP providers and equipment manufacturers should be pleased to know that they appear to be subject to the slightly less burdensome accessibility requirements of Section 255 as opposed to the heftier burdens of Section 716.

Second, entities subject to Section 716 can also include providers/developers of software (e.g., applications, cloud-based services, etc.) used to engage in ACS. As the FCC explained, “if software gives the consumer the ability to send and receive e-mail, send and receive text messages, make non-interconnected VoIP calls, or otherwise engage in advanced communications, then provision of that software is provision of ACS.” 

But hold on there. The FCC, somewhat confusingly, distinguishes between software which allows one to “engage” in ACS and software which merely “manages” ACS. Providing the latter type of software (for which the FCC offers Microsoft Outlook as an example) as a standalone product is apparently not the provision of ACS subject to Section 716. If you want to see the FCC’s full discussion of this, feel free to peruse the 302-page order. Otherwise, be aware that special accessibility considerations may need to be given for communications-related software.

On the positive side, Section 716 is subject to a number of exemptions or exclusions. As mentioned above, Section 716 excludes any service which was already covered by Section 255 prior to the CVAA. Additionally, Section 716 exempts customized equipment or services used on private networks, and the FCC has adopted a limited exemption for qualifying “small entities”. The qualification criteria for the “small entity” exemption are industry specific, and are based on standards established by the Small Business Administration. (Example: Most telecommunications service providers with 1,500 or fewer employees qualify as small entities, but an “Electronic Computer Manufacturing” company would qualify only if it has 1,000 or fewer employees.) 

Despite the obvious temptation, you might not want to get too heavily invested in the “small entity” exemption: it’s currently set to expire on October 8, 2013.

Finally, thanks to Section 716(h), the Commission may waive the Section 716 obligations where the equipment/service in question: “(A) is capable of accessing an advanced communications service; and (B) is designed for multiple purposes, but is designed primarily for purposes other than using advanced communications services.” Many devices are designed for multiple purposes these days, so just because a mobile phone also takes pictures does not mean the FCC will think it qualifies for a waiver under Section 716. Anybody thinking that they qualify for a waiver will have to submit a waiver request – and get that request granted – before they will be free of their statutory chores.

To read more about the new recordkeeping and certification filing requirements, check out the FCC’s recent Public Notice.

Update: Reply Comment Deadline Extended in Latest CVAA Rulemaking

The Commission has extended the deadline for reply comments in its rulemaking proceeding concerning possible expansion of the obligations of video providers with respect to emergency information. (The proposal arises from the Twenty-First Century Communications and Video Accessibility Act of 2010, or CVAA.)  We wrote about the NPRM in that proceeding here, noting that the original comment deadlines were pretty darned abbreviated, particularly in view of the complex proposals under consideration. While the comment deadline remains December 18, the reply comment deadline has now been extended to January 7, 2013.

FCC Looks to Bring More Emergency Information to the Visually Impaired

NPRM to implement additional mandates of the Twenty-First Century Communications and Video Accessibility Act is on the fast track

As our readers know, in the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), Congress aimed to ensure that folks with disabilities have “better access to video programming”.  In the two years since the CVAA was enacted, the Commission has taken multiple steps to comply with that statutory direction.

But one important component of “video programming” remains to be addressed: emergency information during non-news programs.  Existing rules already provide that all pertinent emergency information broadcast during regular or special newscasts must include an aural component for visually impaired persons.  But what about announcements broadcast outside of newscasts? 

We all know that emergencies don’t occur strictly at 6:00 p.m. or 11:00 p.m. (or even at the new trendy 4:00 or 5:00 a.m. hour), conveniently timed for scheduled newscasts.  It’s not unusual for broadcasters to interrupt non-news programming to air emergency information short of devastating disaster coverage – such as weather warnings or alerts about dangerous circumstances (flooding, chemical spills, wildfires, etc.).  Such information is often displayed on a visual crawl or some similar visual method, without accompanying audio.  In such situations, the FCC requires only that the broadcaster include an aural tone that alerts visually impaired viewers so that they can turn on a radio or ask someone else to read the screen for them. 

But that might place the visually impaired at a disadvantage by making the emergency information available too late for proper responsive action.  In keeping with its CVAA mandate, the FCC has issued a Notice of Proposed Rulemaking (NPRM) looking to expand the existing rules to require that emergency information be provided aurally using the same secondary audio stream that is now used for various purposes.  (Those purposes include video description and, sometimes, Spanish or other foreign language soundtracks.)  And in a related proposal, the Commission is also inviting comments on how it should implement the statutory requirement to prescribe regulations requiring receiving apparatus to have the capability to decode and make emergency information available.

Use of the secondary audio stream

The possible complications attending the proposed use of the secondary audio stream are somewhat daunting.  How many TV stations and MVPDs have an activated secondary audio channel?  And should those that do not be treated differently?  Do cable and satellite MVPDs have bandwidth constraints that impair their ability to add audio streams; and if not, might a secondary stream carriage requirement impair DBS local-into-local service in small markets?  If a station has two audio streams in addition to its primary stream, how will visually impaired viewers know to which stream they should tune, particularly for stations providing both foreign language and video description services and given constraints on naming protocols that affect how TV remote controls access different audio streams? 

Those questions involve only the current allocation scheme.  What’s going to happen if and when the TV band is repacked?  What will be the impact on available bandwidth for TV stations that elect to share channels after the proposed reverse auction and consequent spectrum repacking? 

And at the nitty-gritty station level, who’s going to be providing the audio for the emergency information on the secondary audio stream?  For stations without sufficient staff, should automated text-to-speech technology be permitted, even if there is an accompanying risk of errors that might distort the information?  Should the aural information have to be identical to the video content, or would it be enough to provide only “critical details” about an emergency?  If the same audio stream is used for both visual description and emergency information, how can we be sure that video description service will not be unduly interrupted?  Is a change needed in the rule that prohibits emergency information from blocking video description or video description from blocking emergency information?

Who exactly should be subject to the new rules?  For the time being, the FCC is planning to leave IP-based services alone, given the lack of a uniform technical standard for additional aural carriers.  But the CVAA requires that “program owners” comply.  The FCC’s rules define video programming provider and video programming distributor, but what is a “program owner”?

Apparatus regulation

The CVAA requires that “apparatus designed to receive or play back video programming transmitted simultaneously with sound” must have certain capabilities to provide information (including particularly emergency information) to the blind and visually impaired. 

The statute’s goal may be clear, but it’s a bit lacking in implementational details.  When it comes to apparatus for displaying programs, just what types of gear should be included?  The statute covers picture screens of any size, no matter how small.  The FCC tentatively proposes to include DVD and Blu-Ray players, but only to the extent that they receive, play back, or record TV broadcast or MVPD services.  But what about DBS set-top boxes, recording devices, and other devices that may process signals differently from how a TV receiver processes them?  Should there be any minimum performance standards?  Is there a way to insert the main channel audio on the secondary stream when no emergency information is being provided, so that the secondary stream is not silent, misleading users into thinking that the stream is not working?

Oh, yes – the statute allows the FCC to grant waivers to equipment manufacturers for devices that may be able to receive and play back video programming but are designed primarily for another purpose.  One basis for waiver: whether the purposes of the VCAA are “achievable” with the particular apparatus.   That’s all well and good, but how is the FCC supposed to figure out what’s “achievable”?  The statute provides some general guidance on that issue – considerations include the nature and cost of steps that would be necessary to meet the statutory requirements, the technical and economic impact on the manufacturer, the “type of operations” of the manufacturer and the extent of its product line.  But it’s now up to the FCC to develop some more concrete guidelines.

And finally, the FCC asks, if all of the above ideas fall into hopeless confusion or impracticality, is there some other way to achieve compliance with the CVAA?  Are there “alternate means” of fulfilling the statutory purpose; and if so, what standards should be applied to requests to use alternate means?

The questions posed in the NPRM are many and complicated, particularly with respect to the logistics of implementation.  So it’s something of a surprise that the Commission is allowing only 20 days for comments and half that for reply comments (and note that Christmas Day falls right in the middle of the reply comment period).  Comments are currently due December 18, 2012, with Reply Comments due December 28.  With such abbreviated commenting opportunities, spanning the Christmas holiday, does the FCC really contemplate no controversy over these proposals?

Update: Video Description Now In Effect

[Blogmeister Note: As we reported last September, the FCC has re-imposed the “video description” requirement at Congress’s direction (see the behemoth 21st Century Communications and Video Accessibility Act of 2010). Nearly two years after the passage of that Act, the video description rules have taken effect as of July 1, 2012. If you’re a bit hazy on the details of the new rules and want an in-depth review of who’s got to do what when, check out our earlier post, which lays things out in detail. For those of you who need only a quick refresher course, what better (or, at least, quicker or more refreshing) way of getting that to you than with . . . (wait for it) . . . haikus! A CommLawBlog exclusive: Video Description in 51 syllables! ]

Top four stations in
Twenty-five largest markets
Must have 50 hours

Also provide 50 hours
On top five channels

All others pass through
Video-described programs
To their blind viewers

Closed Captions for the Open Internet?

The FCC proposes to require closed captioning for TV programming transmitted via the Internet; comment deadlines already set

The FCC has launched a rulemaking to implement the closed captioning sections of the 21st Century Communications and Video Accessibility Act (CVAA). The new rules will impose closed captioning requirements on certain online television programming; they will also require captioning capability for a wide variety of devices that are designed to receive or play back video, potentially including smartphones, computers, tablets, game consoles, video recorders, and set-top boxes.

Closed captioning is the text on a television screen that transcribes the audio portion of the program. (“Closed” means that viewers can turn the captioning on and off at will.) Today most television programming, whether delivered via broadcast, cable, or satellite, must carry closed captioning, and television sets 13 inches or larger must be capable of displaying the captions. But online television – think Hulu – has not been subject to these rules. And the rapidly-proliferating variety of non-television video display devices, like tablets, have not been required to have the technical capability to display captioning.

That’s about to change. Congress gave the Commission until January 12, 2012, to bring the closed captioning rules into the era of mobile and Internet television.

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.

Update: OMB Signs Off on Video Description Information Collections

It looks like all the pieces are now in place for the video description rules: OMB has signed off on the two information collection components of those rules, and that sign-off has made it into the Federal Register. So Sections 79.3(d) and (e) will become effective October 11, 2011. Those two sections involve, respectively: the process by which a video programming provider may request an exemption (based on “economic burden”) from the overall video description requirements; and the process by which anybody and his little brother may complain about perceived violations of the video description rules. As we have previously reported, broadcasters and MVPDs have until July 1, 2012 to bring themselves into full compliance with the overall video description regime.

Video Description: Back in the Books

All you TV broadcasters and MVPDs – mark your calendars! July 1, 2012 is the current deadline for full compliance.

Let’s have a big “welcome back” for the video description rules – they’ve been gone for years, but as we reported last March, Congress figured it was time to bring them back and now, voilà!

As required by the behemoth “21st Century Communications and Video Accessibility Act of 2010,” the FCC has adopted rules requiring the provision of video description.  (“Video description” involves voice-overs describing a program’s key visual elements. Check out our earlier post for a quick refresher course on video description.) The FCC tried almost ten years ago to impose such rules on broadcasters and certain multichannel video programming distributors (MVPDs), but the rules were struck down by the U.S. Court of Appeals for the D.C. Circuit. The court concluded that Congress hadn’t given the Commission the necessary authority.  That was then, this is now: the FCC now has authority in spades, with explicit instructions from Congress to reinstate the original rules – with a few tweaks.

The new rules are nominally “reinstated” as of October 8, 2011 – that’s what Congress required, and the Commission timed Federal Register publication of the rules accordingly. (One exception: Section 79.3(d) and (e) have to be run through the Paperwork Reduction Act drill before they can become effective.) But take heart – broadcasters and MVPDs have until July 1, 2012, to come into full compliance.

Broadcaster and MVPD obligations under the new rules include the following:

  •  ABC, CBS, Fox, and NBC affiliates located in the top 25 television markets (as of January 1, 2011) must provide 50 hours per calendar quarter of video-described prime time or children’s television. (Fuzzy on exactly current TV market rankings? Click here for the 2010-2011 Nielsen listings.) When the list of top 25 markets will be updated remains to be determined. Note that by the end of 2016, the 50-hour rule will apply to the top 60 television markets.

To count toward the 50-hour requirement, the programming must not have been previously aired with video description, on that particular channel or station, more than once. Only programming on the primary stream of digital broadcasters counts toward the 50-hour requirement. If another top-four network is carried on a secondary stream, however, it also must meet the 50-hour requirement, as though it were carried by a separate station. 

  • Multichannel video programming distributors (MVPDs) with more than 50,000 subscribers must also provide 50 hours per calendar quarter of video-described prime time or children’s television on the five most popular cable channels: USA, the Disney Channel, TNT, Nickelodeon, and TBS. (The list of “top five popular cable channels” will be revised at three year intervals, if ratings change.)  ESPN and Fox News are not on the list because they provide fewer than 50 hours per quarter of programming that is not live or near-live (i.e.,broadcast within 24 hours of recording).  Live and near-live programming is exempted from the rules due to the difficulty in furnishing video description in such a short time frame.
  • All network-affiliated broadcasters and all MVPDs must “pass through” video described-programming to their viewers if the network provides it, so long as it has the technical capability to do so and that capability is not being used for another purpose related to the programming (such as an audio stream in another language). “Technical capability” means having all the necessary equipment except for items that would be of minimal cost. This requirement extends to secondary digital streams and to low power broadcast stations. Any programming aired with description must always include description if re-aired on the same station or channel.

If a station or MVPD becomes newly-obligated to provide video description (through a new affiliation or by gaining more than 50,000 subscribers), it will have three months to come into compliance.

The Commission declined to carve out any special exemptions from the above obligations for local programming, news programming, and the like. The rationale: since only four hours of programming a week must be video described, and stations and systems can choose what programming to describe, they can simply choose not to describe any programming that poses any particular difficulty. However, if a video described program is interrupted by a breaking news bulletin, it will still count toward the 50 hours.

The rules are not without additional complexities, subtleties and possible surprises. They spread over six single-space pages, after all. So TV licensees and MVPDs would be well-advised to spend the next several months familiarizing themselves with the ins and outs of the new rules. Their requirements are likely to be with us with us for some time.

Update: New Comment Deadlines In VoIP/Accessibility Proceeding

On March 31 we reported on a couple of VoIP-related NPRMs, including one item looking toward making VoIP and similar services easily accessible to and usable by persons with disabilities.  Despite the fact that that NPRM proposes sweeping changes in the nature of VoIP obligations and even the scope of the FCC’s regulatory reach (which would be extended into considerable technical minutiae), the deadline for comments on the proposals was originally set for April 13. But now, at the request of a number of organizations, the Commission has extended the comment deadline to April 25, 2011, and the reply deadline to May 23, 2011. That’s still not a lot of time, but it does provide some breathing room.

Update: Comment Deadlines Set In VoIP/TRS Contributions Rulemaking

Last week we posted about an NPRM proposing to expand the requirement that VoIP providers contribute to the Telecommunications Relay Service (TRS) Fund.  The requirement, already applicable to connected VoIP operators, would be broadened to include non-VoIP as well. See the original post for details.

The NPRM has now been published in the Federal Register, which sets the deadlines for comments on the proposals. Comments are due on May 4, 2011, and reply comments on May 19, 2011. And if you feel like commenting on the “information collection” aspects of the proposal (as you are entitled to do, thanks to the Paperwork Reduction Act), you’ve got until June 3, 2011, to do so.

For VoIP Providers: Warning - Steep (Regulatory) Incline Ahead

More burdens just up the road, thanks to two Congressionally-ordered NPRMs

The FCC’s release of two Notices of Proposed Rulemaking (NPRMs) on March 3 will give VoIP providers a familiar sinking feeling – that is, the feeling of sinking ever deeper into the quicksand of FCC regulation.   At Congress’s direction, the FCC is looking both to expand TRS contribution obligations and to impose additional accessibility rules on all VoIP providers. As we describe below, the new accessibility standard for VoIP (as well as email and video conferencing) will be even higher than that already imposed on most telecommunications services.

The NPRMs (along with the video description NPRM about which we’ve already reported) are some of the first regulatory offspring of the 21st Century Communications and Video Accessibility Act of 2010 (CVAA). Because the CVAA is clear in its mandate, the Commission has little choice with respect to the major points on the table – but it does have discretion relative to a number of the ancillary and administrative aspects. (And, given the scope of CVAA’s ambition to modernize the nation’s accessibility laws, we expect more NPRMs to follow in the months to come.)

TRS contributions.  Section 103(b) of the CVAA requires that all VoIP providers contribute to the Telecommunications Relay Service (TRS) Fund.  (The TRS Fund supports services that allow deaf people or people with speech disabilities to communicate by phone.)  Of course, interconnected VoIP providers are already contributing (as our readers should be aware).  One of the two NPRMs addresses the Section 103(b) mandate by proposing to expand that requirement to non-interconnected VoIP providers, that is, VoIP that doesn’t interconnect with the regular telephone network.  We’re looking at you, Skype et al.

While the CVAA requires all VoIP providers to contribute to TRS, it leaves the FCC some discretion as to details. Accordingly, the Commission asks for comment on specific issues such as:

  • Should the VoIP safe harbor apply to non-interconnected VoIP? (The “safe harbor” allows carriers to report a specified fixed percentage of revenue as interstate if they are unable or unwilling to measure interstate and intrastate traffic separately.)
  • What revenues should be included in calculating TRS contributions (just revenues from interstate end-user calls, or revenues from all sources?)
  • Should providers of free services, that have no end-user revenues, be required to make any contributions to the TRS fund?

Clearly the FCC is focused on how to treat free, non-interconnected Internet voice services (again, that’s Skype-to-Skype et al.). Some such services are supported by advertising, and the FCC suggests that it might require TRS contributions based on those revenues, in place of or in addition to subscriber revenues. The answers to these questions will significantly affect contribution amounts; affected companies will want to express their viewpoints when the docket is open for comments. 

Accessibility. As required by Section 104 of the CVAA, the FCC proposes to make VoIP, electronic messaging (emails, IMs, etc), and video conferencing “accessible to and usable by” persons with disabilities. Naturally, a new rule needs a new acronym – we must learn to call these types of services “advanced communications services” (ACS).

ACS will be subject to a higher standard of achievement than “telecommunications services” under the existing Section 255 of the Communications Act. Section 255 requires telecommunications manufacturers and providers (including interconnected VoIP but not including non-interconnected VoIP) to provide accessibility if readily achievable. For ACS manufacturers and providers, on the other hand, the presumption is reversed; they must make their services and products accessible to people with disabilities, unless it is not achievable to do so. (According to the CVAA, “achievable” means “with reasonable effort or expense, as determined by the Commission” taking into account a list of certain factors.)

Further, ACS providers may not install network features, functions, or capabilities that impede accessibility or usability. Finally, all equipment and networks used to provide ACS services must allow information content that has already been made accessible to pass through in accessible form. The NPRM seeks comment on definitions of relevant terms (e.g., what is “achievable”?) as well as input regarding matters such as:

  • the standards that would apply to requests for waivers for equipment designed for non-ACS purposes but having incidental ACS capability
  • whether any exemption(s) for small entities might be warranted
  • obligations for applications or services accessed over service provider networks rather than based on user hardware features
  • recordkeeping and enforcement 

Mobile web access. The ACS NPRM also gets a head start on assuring that Internet browsers built into mobile phones will be accessible to those with visual impairments. As with ACS services, mobile Internet browsers must be “accessible to and usable by individuals who are blind or have a visual impairment, unless doing so is not achievable.” The statutory requirements do not take effect for three years, but the FCC seeks input now on how best to get everyone up to speed before then.

Some ramp-up time may be needed, because ACS and browser accessibility raise practical difficulties. Accessibility functions will work only if they are supported by each component or layer of the device: i.e.,the hardware, the operating system, the user interface, the application, and the network. This practical reality has at least two major consequences: (1) a broad array of entities will be affected, some of whom may not have previously fallen under FCC jurisdiction and may not be habituated to regulatory compliance matters; and (2) various entities will have to cooperate with each other on technical standards, without much market motivation to do so.

So the FCC will have to get in the business of compelling information-sharing: mandating industry standards, setting up industry forums and working groups, and so on. Yes, even Apple may have to share information about iPhone design, which is certainly not their custom. This process inevitably raises hard questions. For example: Who will develop and enforce compatibility standards? What is the appropriate balance between the necessary sharing and protecting proprietary, confidential technical information? Will components have to be compatible only with existing fellow components, or also with potential future components? At what stage of development should accessibility be considered?

The FCC has tackled tough inter-industry compatibility issues before, with some success. Doing so in this case, however, will certainly require the agency to delve into technical minutiae generally outside its usual expertise (such as software). It will also require constant calibration to keep things running smoothly in the future.

The bottom line here is that Congress, through the CVAA, is determined to impose new and substantial burdens on VoIP providers in order to ensure technological access for people who are deaf, blind or subject to other disabilities or impairments. That means that the FCC has little discretion going forward with these two NPRMs, at least with respect to the Big Picture aspects. Congress did, however, give the Commission some leeway in working out the operational details, and it’s there that affected parties (including, particularly, VoIP providers) may have their best chance to ease the ultimate burden. Given that, VoIP providers should give serious thought to submitting helpful comments in these proceedings.

Update: Comment Deadlines Set In Video Description Rulemaking

A week or two ago we reported on the release of a Notice of Proposed Rulemaking (NPRM) which will lead eventually to the reimposition of video description rules. Those rules have been effectively mandated by Congress, so it’s just a matter of when, not whether, they will return. Still, anyone hoping to influence the ultimate shape of the video description rules – and that universe could include TV broadcasters and multichannel video programming distributors, among others – may submit comments or reply comments in response to the NPRM. And with the publication of the NPRM in the Federal Register, the deadlines for comments and reply comments have now been set. Comments are due by April 18, 2011; reply comments are due by May 17, 2011.

Additionally, if you would like to comment on the “information collection” aspects of the Commission’s proposals (in connection with the Paperwork Reduction Act), you have until May 17, 2011.

Video Description, On The Comeback Trail

FCC looks to resuscitate rules rejected by Court in 2002 – but unlike last time, the rules now have Congress’s explicit blessing

They’re baaaaack . . . almost. The video description rules, dealt a death blow by a federal appeals court nearly a decade ago, are one step closer to resurrection with the release of a Notice of Proposed Rulemaking (NPRM) looking to their reimposition. 

As we reported previously, the FCC’s original video description rules were struck down by the U.S. Court of Appeals for the D.C. Circuit in 2002. According to the Court, the FCC did not have the requisite statutory authority to impose such rules.   (Quick refresher course on video description: it’s a process that gives blind and visually impaired people a way to “watch” video programming by adding a spoken narrative describing the visual elements of a scene during natural pauses in dialog. Example: “Workers throw Kane’s belongings into a burning furnace. One item is a sled with the word ‘Rosebud’ stenciled on it.”)

In light of the 2002 decision, only Congress has the power to rescue the rules by granting the Commission the authority it was (and has since been) lacking. Congress did so last October, in a sweeping omnibus disabilities law: the “21st Century Communications and Video Accessibility Act of 2010.” (Back then we coined the abbreviation “21CenComVidAccAct”, but the FCC has since opted for “CVAA”. Even though the FCC’s choice of abbreviation seems a bit too abbreviated – what century are we talking about again? – we’ll bow to their will and use “CVAA”. )

In the CVAA, Congress directed the Commission to reinstate its rules more or less exactly as they were in 2000, with certain mandated changes. One might ask, why go through a rulemaking at all, if all the agency has to do is find a copy of the old rules, cut-and-paste them into a new order, and insert the necessary changes? It turns out, though, that the Commission does have some discretion this time around. In particular, the CVAA leaves it to the FCC to decide what entities – broadcast stations, multichannel video programming distributors (MVPDs), networks – are to be subject to the video description rules. Accordingly, the Commission would like public input on a limited number of points.

So, if you’re a broadcaster or an MVPD, you may want to refresh your memory of the original rules and consider commenting if you might be affected by the proposed modifications.

The Basics

As in the first go-round with video description, the rules this time around will have two main components: the “50-Hour Rule” and the “Pass-Through Rule”.

The “50-Hour Rule” will apply to broadcast stations that are: (a) affiliated with the top four national commercial networks (ABC, CBS, Fox, and NBC); and (b) located in the top 25 markets (per the 2011 Nielson rankings). Such stations must provide 50 hours per calendar quarter of video-described programming during prime time – although any children’s programming can also be included in the 50 hours, regardless of when it happens to be aired. A program can be counted twice – but only twice – if it is re-run. A station can count a program even if the program has previously been telecast elsewhere, so long as the program is airing for the first or second time on that station. [Note: the CVAA requires the Commission to expand this requirement to the top 60 markets by October 2016].

MVPDs (cable, satellite, etc) with 50,000 or more subscribers must also provide 50 hours per calendar quarter of video-described prime time and/or children’s programming on each channel on which they carry one of the top five national non-broadcast networks.  (FYI: the FCC figures that the top five currently are USA, the Disney Channel, ESPN, TNT, and Nickelodeon’s Nick at Nite.  But heads up – Fox News, TBS, A&E, History, the Cartoon Network’s Adult Swim, the Family Channel, and HGTV could also be contenders if any of the top five come up short on the non-exempt programming front.)

Under the “pass-through” rule, broadcasters affiliated with any network and all MVPDs will have to pass through any video description that they receive from a broadcast station or network or a cable network channel, including re-airings, so long as they have the technical capability to do so. And yes, providers subject to the 50-hour rule must also pass through video description programming.

Questions For Comment

These two basic requirements are not up for discussion. However, the FCC would like input on a number of questions regarding their implementation:

  • What is “near-live” programming? The CVAA exempts “live” and “near-live” programming from the new rules. This exemption seems superfluous given that video providers already have latitude in selecting which 50 hours will have video description.  Presumably, the exemption would mainly come into play if a top five cable channel had so much live programming that there weren’t 50 hours left over for video description. The FCC logically proposes, in that case, to exclude the channel from the top five list. It also proposes that “near-live” programming would mean programming produced no more than 24 hours prior to its telecast.
  • How often, if at all, should the list of top 25 markets be updated? As the FCC aptly notes, while market rankings routinely change over time, constant revision of the list would burden and aggravate everyone concerned. Therefore it seeks comment on whether, and how often, to reconsider the top 25 rankings.
  • What equipment would be needed to comply with the pass-through requirement, and how much it would cost?
  • How much would the 50-hour rule cost, per program or hour described? The FCC would like to hear from both the purchasers and producers of video description on this point.
  • Under what circumstances would the rules become so “economically burdensome” to providers to warrant an exemption? The prior version of the rules allowed exemptions when the rules posed an “undue burden.” The CVAA changed the exemption standard to “economically burdensome.” The FCC is not fazed by this change and proposes to use the same factors it used in the previous version.
  • Should the 50-hour and pass-through rules apply to commercial low power stations?
  • Is there a continuing need for the previous “another program-related service” exception?  The former version of the pass-through rule did not apply in situations where the second audio program (SAP) equipment and channel were being used to provide some other program-related service. But a digital universe permits numerous audio channels for any video stream – meaning that there may be no continuing need for an exception. The Commission seeks comments on that question.
  • What digital stream should the rules apply to? For the 50-hour rule, the Commission would for sure count programming carried on the primary stream. But it also proposes to apply the rule to each separate stream which carries another top-four network’s programming. The pass-through rule would apply to all network-provided programming on all digital streams.
  • Should the Commission adopt quality standards for video description?
  • How should programs be selected and advertised?
  • Should the new ATSC standard be incorporated to ensure that video description can be received by all DTV receivers?
  • Should children’s programming mean programming directed at children 16 years old and under?

Finally, the FCC proposes to require compliance with the video description rules (subject, of course, to any OMB approval that may be required for any of the rules) starting January 1, 2012, 85 days after they are scheduled to be adopted and published.

The proposed video description requirements present virtually all of the serious practical difficulties, as well as potential First Amendment arguments, that the earlier version did. The last time around, though, the Court didn’t have to address those considerations because the wholesale lack of statutory authority eliminated the need to do so. Now that the CVAA has plugged that hole, it will be interesting to see whether any appellant(s) raise other, still undecided, issues.

Comments will be due 30 days after publication in the Federal Register. Check back here for updates on that front.

Video Description 101

[Blogmeister’s Note: As we reported last month, the video description rules – left for dead after being struck down by the Court of Appeals for the D.C. Circuit eight years ago – are on their way back.  For readers who weren’t around back then, or who don’t recall what happened the last time around, here’s a quick CommLawBlog recap.]

Video description gives blind and visually impaired people a way to “watch” video programming by adding a spoken narrative describing the visual elements of a scene during natural pauses in dialog. (Example: “Toto pulls one of the curtains aside, revealing a small man manipulating a huge, complex machine.”) A well-done video description can be engaging and evocative, like a good play-by-play commentary or book on tape. Video description can open up a world of entertainment and information that would otherwise be inaccessible to the blind. This is important, say advocates, because in modern society, full access to information is as essential as, for example, access to public transportation.

So what’s the problem? Production of video description can be expensive, and the market doesn’t pay for it, so there’s little marketplace incentive to provide it. That’s where the government comes in. In 2000, the FCC adopted rules requiring broadcasters and cable operators to provide video description. Broadcasters in the top 25 markets, affiliated with the top four commercial networks, had to provide about four hours a week of video description. All other broadcast stations had to “pass through” any video description if they had the technological capability to do so.

The rules became effective April, 2002 (despite multiple efforts to get them stayed), but in November of that same year, the U.S. Court of Appeals for the D.C. Circuit struck them down.

According to the Court, the fatal flaw in the video description regulations was lack of authority. The Commission, of course, is a creature of Congress and, as such, the Commission can do only what Congress has authorized it to do. The Court held that the 1996 Act fell short because that Act didn’t explicitly authorize the FCC to prescribe video description regulations; rather, it merely instructed the Commission to look into video description and provide a report to Congress. By contrast, the Act was very clear in authorizing the Commission to impose closed captioning requirements. The Court also observed that the legislative history indicated that the idea was considered and deliberately rejected.

And as far as the FCC’s general regulatory authority goes, the Court concluded that that authority stopped short of rules “that significantly implicate program content.”   The Court held that video description is “content” because, unlike closed captioning, it is not automatically generated and requires some artistic input. (In fact, some content providers have claimed that video description creates copyright issues as it creates a “derivative work” of the original—but that’s a story for another day).

The FCC, noted the Court, was not able to cite one case in which a content regulation based on the FCC’s general authority to regulate broadcasting survived court scrutiny – thanks mainly to the First Amendment. Specific instances where the FCC does regulate content, such as indecency and elections, have explicit statutory support. Without such support, the FCC is not at liberty to impose regulations on content.

Now, a decade later, the FCC has received the authority it lacked in 2000. It does not have carte blanche, however. After one year and a rulemaking, it must reinstate only its original rules, with certain modifications that appear designed to lighten the burden on broadcasters.  For example, the Act requires the FCC to consider extending the original “technical capability” exemption – which previously applied only to “pass though” stations – to all providers and owners of video programming. It also allows the FCC to exempt any provider (or category of provider) who shows that compliance would be “economically burdensome.” Given the potential controversy of such issues, this reinstatement may turn out to be more complicated than it looks.

Bureau Seeks Comment Re New Act's Effect On Hearing Aid Compliance Proposals

 Back in August we reported on a wide-ranging “Policy Statement and Second Report and Order and Further Notice of Proposed Rulemaking” (Order) aimed at expanding the reach of the Commission’s rules governing hearing aid compatibility. And just yesterday we reported on the recently-signed-into-law Twenty-First Century Communications and Video Accessibility Act of 2010. Recognizing that that far-reaching law could have an impact on the proposals the Commission has put on the table in its Order, the Wireless Bureau has now published a notice in the Federal Register expressly asking commenters to address the effect of the 21CenComVidAccAct on the FCC’s proposals. Anyone planning to try to help the Bureau out in assessing the Act’s impact better get cracking, though: the Bureau is not altering the previously-established comment/reply comment deadlines. That means that you have until October 25, 2010 to file comments and November 22, 2010 to file reply comments. Since the 21CenComVidAccAct consists of 26 pages of fine-print legalese, time may already be running short.

Congress: Bringing Digital Eyesight To The Blind?

Wide-ranging legislation looks to expand access for blind and visually-impaired across the 21st Century communications videoscape.

Get set for a new set of sweeping changes cutting across all components of the communications universe, broadband and broadcast alike. On October 8, President Obama signed the Twenty-First Century Communications and Video Accessibility Act of 2010  (21CenComVidAccAct) into law. The new law dramatically expands disability access law to include accessibility requirements for a wide range of equipment and services, such as VoIP phones, browser-enabled smartphones, email and text messaging services, webcasts of TV programs, video and navigation devices, and others. 

While the debate over the FCC’s authority to generally regulate broadband rages on, in this area at least the discussion is over. As one FCC official noted during a panel discussion on broadband adoption, the 21CenComVidAccAct “ventures into broadband access like no legislation ever has” by giving the FCC an “enormous mandate” to ensure that various communications are accessible to people with disabilities.

And the implications of the Act may go beyond communications-for-the-disabled policy. 

The Act provides a mandate separate and apart – and in addition to – the Commission’s general regulatory authority over telecommunications common carriers, broadcasters, and cable services.  As a result, the FCC will now be able to regulate many different types of entities and activities, but only to the extent that they entail communications for the disabled. Could this trailblazing measure open the door for other types of broadband regulation not necessarily tied to disability? That remains to be seen, but the potential cannot be denied.

Don’t look for any changes to happen right away, though – even the changes specifically addressed in the Act. The statute lays out a number of timelines for the Commission, all of which expect the FCC to get started right away, but most of which do not contemplate final action for at least a year (and in many cases, several years).

Virtually every segment of the broadcasting and telecommunications industries that has anything to do with broadband or video programming will be affected. Key provisions include:

  • Manufacturers and service providers of “advanced communications services and equipment” – that is, interconnected and non-interconnected VoIP, electronic messaging services (e-mail, text messaging), and video conferencing – must ensure that their equipment or service is accessible to individuals with disabilities. 
  • Internet browsers provided by a manufacturer or provider of mobile phones must be usable by the blind or visually impaired, including the ability to launch the browser.
  • TV programs that are re-broadcast over the Internet must retain closed captioning. This provision may be more feasible now that software is becoming available to automatically convert existing closed-captioning for webcast versions of television shows. Internet-only TV shows and user-generated content are not required to have closed captioning. As an aside, however, it is getting easier for users to voluntarily provide closed captioning. Google has just introduced a YouTube feature that will enable content creators to add voice-recognition closed-captioning (we note that viewers can also use this feature to translate captions into various languages – extending its usefulness well beyond the disabled community). Google closed-captioning and translation functions are fresh out of beta and amusingly glitchy, but are a glimpse of things to come.
  • Hearing aid compatibility requirements are extended to anything that remotely resembles a telephone—that is, equipment “designed to provide 2-way voice communication via a built-in speaker intended to be held to the ear in a manner functionally equivalent to a telephone”.  (It will be interesting to see how the Commission squares this provision with its own proposed method of extending HAC to VoIP: i.e. defining a “telephone” as “anything that is commonly understood to be a telephone”.)
  • The Commission is required to reinstate its video description regulations (which were struck down by the D.C. Circuit in 2002).  Video description is a service that provides a voice-over description of the visual components of a video program (“as Bambi stands alone in the forest, a light snow starts to fall.”). The Commission’s initial video description rules, adopted in 2000 and tossed by the Court in 2002, were ginned up by the FCC without Congressional authorization. The lack of such authorization was fatal, according to the Court. That should not be a problem this time around, as the 21CenComVidAcc expressly provides the FCC all the authority it should need.
  • The Commission must require video programmers and distributors to convey emergency information to the blind and visually impaired. The FCC is also authorized to promulgate regulations to ensure access by individuals with disabilities to an IP emergency network.  
  • Video display apparatus must be able to display closed captioning, video description, and emergency information.  Devices that record video must enable the pass-through of such information.
  • Accessibility functions, including those on navigation devices such as converter boxes, must be easier to activate. Advocates of the legislation cited circumstances in which a blind user, for example, would have to navigate multiple (visual) menus before being able to activate a voice feature.
  • Telecommunications Relay Service funding will be available to support programs to distribute equipment designed to make telecommunications service, Internet access service, and advanced communications services accessible by individuals who are deaf-blind.

An ambitious array of administrative errands, to be sure. But don’t worry – the FCC will have some help, because Congress has ordered it to establish a couple of “advisory committees” to assist in the development of the regulations mandated by the Act. The FCC’s first order of business will be to form the committees, dubbed (ruh roh – Potential Confusion Ahead!) the “Emergency Access Advisory Committee” and the separate and distinct “Video Programming and Emergency Access Advisory Committee”. Both must be established by December 8, 2010. They will then proceed to investigate and survey and do the kinds of things that advisory committees do, including especially making recommendations.

As far as substantive rule changes go, 21CenComVidAccAct specifies that the video description rules must be reinstated by October 8, 2011 (although compliance will be phased-in over a period of several years). The closed captioning decoding regs are due within six months of the Advisory Committee report on closed captioning (estimate somewhere between October, 2011 and April, 2012 for those rules). Additional rules will be developed in due course.

With all these irons in the fire, we can expect a slew of documents to come out of the FCC in the relatively near-term as it works its way through the honey-do list that Congress has thoughtfully passed along. Check back here for updates.