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.