Modified programmer compliance certifications, complaint procedures, to take effect September 22, 2016

For nearly two decades the FCC has been working to insure that television programming is appropriately accessible to the deaf and hard of hearing through closed captioning technology. In 2014 it finally got around to developing quality control standards which it applied not only to video programming distributors (VPDs) – i.e., television broadcasters, cable operators, etc. – but also to video programmers – i.e., the folks who create the programming in the first place. (You can find a report on the elaborate quality control process here.)

But even as it did that, the Commission acknowledged that the system featured something of a loophole: while the FCC clearly had the ability to compel VPDs to comply – since VPDs tend to be regulatees directly subject to the FCC’s jurisdiction – the Commission’s ability to reach many video programmers was less obvious. Accordingly, months after it had adopted the quality control standards, the FCC opened an inquiry into whether (and if so, how) the Commission can or should increase its direct regulation of video programmers.

The result: a Second Report and Order (2d R&O) in which the FCC attempts to allocate responsibility for quality captioning more effectively between VPDs and video programmers. Along the same line, the Commission has revised to some extent the respective obligations of VPDs and programmers relative to the provision of captioning. The bottom line: video programmers will be having to provide annual certifications to the FCC concerning their provision of captioning and their compliance with the Commission’s quality control process. Additionally, the Commission has revised the way that complaints about captions are to be processed.

Programmer Certifications
On the caption provisioning side, the FCC has historically held VPDs responsible for making sure that the non-exempt programming they carry is captioned. That’s not changing: the Commission still expects VPDs to be “fully engaged” to ensure that nonexempt programming is captioned, so they will still bear primary responsibility on that score. But the Commission has now imposed a separate certification requirement on video programmers as well.

Up to now, a VPD has been permitted to rely on a video programmer’s certification to the effect that the programmer’s programming complies with the captioning provision rules. That certification was provided by the programmer to the VPD; no separate certification to the FCC has been required. But now, video programmers will be required to make that captioning provision certification to the FCC. The theory is that it is “more effective and efficient” to impose separate obligations directly on the programmers (while still keeping VPDs responsible as well).

On the quality control side, recall that, when the Commission ventured into that area in 2014, it imposed primary responsibility for captioning quality control on VPDs. At the same time, it recognized that some captioning violations are outside VPDs’ control; accordingly, the FCC allowed VPDs to avoid penalties for such violations by making certain “best efforts”. Those “best efforts” consisted of trying to get video programmers to certify either (a) that they’re exempt from captioning obligations or, if they’re not exempt, then that (b) they comply with the FCC’s standards or (c) they follow certain FCC-defined “best practices”. Again, the programmer’s certificate was directed to the VPD, not to the FCC. If a video programmer failed to provide the requisite certification, the VPD was obligated to rat it out to the FCC, which would then compile and publicize a list of non-certifying programmers.

Under the new rules, video programmers will be required to make their provisioning and quality control certifications not to VPDs upon request, but rather directly to the FCC, annually. (And if they claim that their programming is exempt, they will have to specify the basis for that claim.) VPDs will then be able to check the FCC’s files to confirm whether the video programmers providing them programming have provided the appropriate certification. Having such a central repository is expected to be more efficient for all concerned – and requiring video programmers to file directly with the FCC should remind programmers of the significance of their certifications.

Once the new certification requirements kick in, VPDs will no longer have to report on non-certifying video programmers. And VPDs will be deemed to have complied with their captioning provision obligations if they rely on the programmer’s certification. VPDs are not entirely off the hook in that regard, though. In order to enjoy that protection, the VPD must (a) pass through, intact, the captions as received from the programmer and (b) not know, or have any reason to know, that the programmer’s certification was false.

Complaint Process
In an effort to avoid inefficiency, duplication of effort and potential confusion, the Commission has adopted a new approach for handling any type of closed captioning complaint. The new approach – described by the FCC as “burden-shifting” – places initial responsibility for investigating complaints on the VPD.

Complainants may file their gripes with either the Commission or the VPD. If the complaint goes to the FCC, the complainant must include: (1) the channel number; (2) the channel name, network, or call sign; (3) the name of the VPD; (4) the date and time that the captioning problem occurred; (5) the name of the program involved; and (6) a detailed description of the problem. If an incoming complaint has all that information, the Commission will forward it to the VPD and the relevant video programmer, if the Commission can figure out who the programmer might be. (If it can’t, the Commission will alert the VPD, which in turn will have to provide the programmer’s ID and contact information to the Commission within 10 days; the Commission with then forward a copy of the complaint to the programmer.)

Even though the programmer gets tagged early on, it is under no obligation to do anything right away (although the FCC fantasizes that the programmer may nevertheless start investigating ASAP). Not so for the VPD, which must get investigating right away to try to identify the nature and source of the problem. The requisite “thorough” investigation must include checks of the program stream, the processing equipment and the consumer’s premises, as warranted by the circumstances. If the problem turns out to be the VPD’s fault, the VPD must notify the FCC, the programmer and the complainant, in writing, of how it plans to fix the problem, and the complaint must be resolved within 30 days after the FCC forwards the complaint to the VPD.

If the VPD concludes that the problem was not within the VPD’s control but, rather, was present in the program when the program arrived from the programmer, then the VPD has to certify (to the FCC, the programmer and the complainant) that it made a diligent investigation to identify the problem and determined that the problem was not within the VPD’s control. With that certification the burden for tracking down the problem shifts to the programmer (unless the VPD has also determined, and so certified, that its investigation established that the programmer also was not at fault). The programmer then has 30 days to delve into the question and come up with a written response. If the programmer’s investigation indicates that the program was properly captioned when it was handed off to the VPD and no potential third-party interference has been identified, then the VPD and the programmer must cooperate to determine and correct the source of the problem.

If the complaint is initially sent to the VPD rather than the FCC, the VPD is required to go through essentially the same investigatory drill because the Commission “expects” the same level of investigatory care. If the complainant isn’t happy with the way the VPD responds, he or she may file directly with the FCC, which starts the whole process over again.

An interesting if arcane wrinkle arises when the complaint goes to the VPD in the first instance. If the VPD’s investigation suggests that the problem is really with the programmer (or somebody else), the VPD is expected to forward the complaint to whoever appears to be the source of the problem. But a VPD is statutorily forbidden from disclosing to third parties its customers’ personally identifiable information (PII), such as name and contact information. But forwarding a complaint would ordinarily include disclosure of precisely such information. What to do? To address this problem, the Commission requires that any PII be redacted from the complaint before it is forwarded. Alternatively, the VPD may provide enough information about the nature of the complaint to permit investigation and resolution.

Compliance Ladder
The closed captioning complaint process is likely to turn up the occasional VPD rule violation. In the hope of improving the quality of captioning, the Commission has decided to use a “compliance ladder” approach with respect to caption quality issues. (No compliance ladder will be used in connection with captioning provisioning, equipment issues, registration or certification.)

Basically, if the FCC receives one, or maybe just a few, complaints about a VPD’s captioning quality control, the Commission will not necessarily initiate any separate enforcement action looking toward a possible fine or other sanction. But if the Commission notices a “pattern or trend of possible noncompliance” with the captioning quality rules, it will notify the VPD, which will then have 30 days to file a response explaining (among other things) what corrective action the VPD is taking. If, after than 30-day deadline comes and goes, the FCC notifies the VPD of further evidence of a pattern or trend of noncompliance, the VPD will have 30 days in which to prepare and submit an “action plan” for addressing the problem. Six months (actually, 180 days) later, the VPD will have to file a follow-up report on the results of its action plan. And if, after that follow-up report, the FCC finds a continued pattern or trend of noncompliance with the captioning quality rules, it will “consider” enforcement action.

The crucial element of this approach lies in how the FCC will identify a “pattern or trend of noncompliance”. The trigger is non-specific: it could involve several complaints over a long period of time or a flurry of complaints in a short timeframe. Again, this “compliance ladder” approach will be used only for noncompliance with captioning quality rules.

The new rules (which will also require VPDs and video programmers to use a form on the FCC’s website to input contact information into the VPD registry) are set to take effect on September 22, 2016 – except for 47 CFR 79.1(g)(1) through (9), (i)(1) through (3), (j)(1) and (4), (k)(1)(iv), and (m), all of which will have to be run past OMB thanks to the hilariously-named Paperwork Reduction Act. Check back here for updates on that front.