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.