Previously granted “permanent” exemptions may be gone, but requests for new exemptions can still be filed by January 18; failure to file means programming must be closed captioned by January 19

If you happen to be one of the 298 television programmers who lost closed captioning exemptions last October, heads up – your programming must be fully compliant with the closed captioning rules beginning January 19, 2012. But take heart, you can re-apply for your exemptions. The deadline for re-filing is January 18, 2012.

As we reported back in October, the Commission pulled the exemption rug out from under nearly 300 programmers who thought, not unreasonably, that the exemptions that the FCC’s Consumer and Governmental Affairs Bureau (CGB) had granted them five years ago were permanent. Turns out that the full Commission disagreed.

But the Commission did leave the door open for any of those programmers to try to get their exemptions back, as long as they can satisfy the new standards announced in October. The deadline for making such a request is January 18, 2012.

Programmers who are interested in petitioning for a new exemption must submit current, detailed documentation showing that it would be “economically burdensome” to provide closed captioning on the specific programming for which an exemption is sought. (“Economically burdensome” is the standard established by the Twenty-First Century Communications and Video Accessibility Act of 2010, but the Commission has provisionally interpreted the new test to mean the same thing as the old “undue burden.”)

Whether closed captioning is considered economically burdensome for a particular provider or program owner will depend on: (1) the nature and cost of the closed captioning; (2) the impact on the operation of the entity; (3) the financial resources of the entity; and (4) the type of operations. Although these factors appear similar to those used in the past, the categorical presumption that CGB used to use – a presumption that allowed it to green light lots of exemptions without carefully inspecting each request – is now gone. Instead, each new petition will now be considered strictly on a case-by-case basis.

Petitions for exemption must include:

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

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