By Kathleen A. Kirby, Partner, Wiley Rein LLP
The FCC adopted rules mandating closed captioning of video programming in 1998, establishing benchmarks for a phase-in of captioning over the years that followed. The closed captioning rules apply to video programming distributors (“VPDs”), such as television broadcasters (including digital multicast channels, Class A television stations, low power television stations and television translator stations), cable and direct broadcast satellite operators and other multichannel video programming distributors.
Today, all “new” programming, whether English or Spanish language, must be captioned, unless the programming is subject to one of the FCC’s specific captioning exemptions. In addition, certain captioning benchmarks apply to older programming. The FCC defines “new” programming as programming that was first exhibited on or after January 1, 1998 (the date the captioning rules originally took effect). “Exhibited” includes any public showing—in a movie theater, on pay cable, home video, etc., not just on broadcast television.
The FCC is in the midst of an ongoing review of its closed captioning rules, now that more than a decade has passed since the rules were first adopted. Recently, the Commission revised the rules with an eye toward making them more consumer-friendly. The FCC’s new requirements, which became effective in February 2010: (1) provide additional means through which consumers may lodge closed captioning complaints; (2) tighten the timelines for filing and responding to complaints; and (3) obligate VPDs to provide specific contact information to the public and the FCC. The deadline for submitting contact information to the FCC was Monday, March 22, 2010.
Based on the number of phone calls I’ve been receiving, this week’s deadline and the increased ease with which consumers may voice closed captioning complaints appears to have prompted questions among VPDs about their closed captioning obligations, particularly those pertaining to news programming. At present, only the major national broadcast television networks (i.e., ABC, CBS, Fox and NBC), affiliates of those networks in the top 25 markets, and national nonbroadcast networks serving at least 50 percent of all homes subscribing to multichannel video programming services must use real-time captioning in order to comply with the closed captioning rules.
Other VPDs (e.g., network affiliates outside of the Top 25 markets) may still use the so-called “electronic newsroom technique” (“ENR”) to caption their news programming. Even though only the scripted portions of newscasts will be captioned under this option, the FCC will consider the entirety of the program captioned for purposes of compliance with the closed captioning rules. Note, however, that the FCC is re-evaluating the use of ENR captioning, and a real-time captioning requirement may ultimately be adopted.
It is extremely important to remember that if you rely on ENR captioning and emergency information is disseminated during an unscripted portion of the newscast (e.g., during the weather segment), you still must comply with the rules governing accessibility of emergency information. Those rules require that emergency information (i.e., information about a current emergency that is intended to further the protection of life, health, safety and property) be accompanied by an aural tone and be made accessible to persons with hearing disabilities either through closed captioning or by using an alternate means of visual presentation.
The FCC’s rule provides the following non-exhaustive list of examples of the types of emergencies covered: tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings and changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in weather.
“Details” include, among other things, specific details regarding the areas that will be affected by the emergency, evacuation orders, detailed descriptions of areas to be evacuated, specific evacuation routes, approved shelters or the way to take shelter in one’s home, instructions on how to secure personal property, road closures, advisories to viewers on possible health concerns from air pollution caused by wildfires, and how to obtain relief assistance. Emergency information should not block any closed captioning and any closed captioning should not block any emergency information provided by means other than closed captioning.
Emergency information must also be provided to persons who are blind or have low vision. The FCC expects that emergency information that is provided in the video portion of a regularly scheduled newscast or a newscast that interrupts regular programming will be described in the main audio. If the emergency information is provided during programming that is not a regularly scheduled newscast (e.g., through crawling or scrolling during regular programming), the information must be accompanied by an aural tone to alert persons with vision disabilities to tune to another source for more information.
The FCC has issued stiff fines for failure to comply with its rules governing closed captioning and the accessibility of emergency information, so now is a good time to make sure you are familiar and in compliance with the rules.
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