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.