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FCC’s 2016 Order on Closed Captioning Responsibility Explained by the FCC

Eliot GreenwaldDeputy Chief, Disability Rights OfficeFCC

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Lily Bond (Moderator)Director of Marketing3Play Medialily@3playmedia.com

3Play Media WebinarMarch 9, 2016

Eliot GreenwaldDeputy Chief, Disability Rights OfficeConsumer and Governmental Affairs BureauFederal Communications Commission

FCC noted expectation that video programming providers will establish captioning quality controls through their arrangements, contracts, and licensing agreements with captioning companies

FCC expected captioning quality mandates will not be necessary because providers will have their own strong incentives to maintain the overall quality of captions as an integral part of programming, commensurate with the quality of other video and audio program components

FCC expected consumers can demonstrate disapproval of a program’s captions through their purchase of advertised products, subscriptions to programming services, or contacts with the video programming providers or programmers

FCC promised to revisit the need to adopt quality standards if its assumptions about marketplace incentives for quality captioning were incorrect, and problems relating to closed captioning quality surface

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July 2004 – Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI) and other deaf and hard of hearing advocacy groups petitioned FCC for rules on captioning quality – they sought:◦ Requirements on accuracy, timing, completeness and

placement to make video programming fully accessible◦ Mechanisms to ensure video programming providers

(VPDs) pass through captions intact◦ Extension of prohibitions on using electronic newsroom

technique (ENT) to all TV markets◦ Revision of complaint process

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2005 – FCC sought comment on consumer captioning quality petition 2007 – FCC’s Consumer Advisory Committee submitted report to FCC

detailing captioning problems resulting from the DTV transition (overlapping, obscured, and garbled captions, etc.)

2008 – FCC issued Order and Declaratory Ruling that:◦ Amended captioning complaint process to allow complaints to go directly

to the FCC and specified deadline for their resolution; ◦ Required VPDs to provide contact information for the receipt and handling

of immediate closed captioning concerns and written captioning complaints FCC database since created for receipt of this contact data

◦ Clarified that there is no “digital exemption” to the obligation to caption TV programming

February 2014 – Adopted Closed Captioning Quality Order, 29 FCC Rcd 2221

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FCC received >1600 comments, in which consumers report “widespread problems” with the quality of closed captions: “inaccurate,” “gibberish,” “garbled,” “butchered,” “incomplete,” “misspelled,” “incomprehensible,” “obscure the speaker,” “significant lags behind spoken words”

FCC received an average of 465 captioning complaints per year FCC concluded that its original assumptions regarding the marketplace

incentives for quality captioning have not borne out FCC found that some providers provide high captioning quality, but this is not

consistent throughout the industry, and that the inaccuracies that occur are often severe enough to “affect the comprehensibility of a program”

FCC concluded that quality standards are necessary to achieve section 713’s requirement for video programming to be fully accessible to consumers

As in the 1990s, FCC recognized that captions must provide information substantially equivalent to the audio portion of a video program in order to be useful, ensure accessibility, and not interfere with the viewability of the video portion of the program

FCC noted that the need for captioning quality standards is even greater given the Communications and Video Accessibility Act’s (CVAA’s) mandates for closed captioning on video programming delivered using Internet protocol

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4 Quality Components – 47 CFR § 79.1(j)(2) and (3)◦ Accuracy: Captions must reflect the dialogue and other sounds and music

in the audio track to the fullest extent possible based on the type of the programming, and must identify the speakers

◦ Synchronicity: Captions must be synchronous with their corresponding dialogue and other sounds to the fullest extent possible based on the type of the programming, and must appear at a speed that can be read by viewers

◦ Program Completeness: Captions must run from the beginning to the end of the program, to the fullest extent possible, based on the type of the programming

◦ Placement: Captions may not cover up other important on-screen information, such as character faces, featured text, graphics, or other information essential to the understanding or accessing of a program’s content, and other information may not cover up captions

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Pre-recorded Programming: Compliance with 4 components expected. Alternative: Follow best practices (discussed below)

Live Programming: FCC will consider the challenges (e.g., lack of an opportunity to review captions), but expects captioning to be sufficiently accurate, synchronous, complete, and appropriately placed to allow a viewer who depends on captioning to understand the program and have a viewing experience that is comparable to someone listening to the sound track

Near-Live Programming: Programming that is performed and recorded within 24 hours prior to when it is first aired on television will be evaluated under the same standards applied to live programming, although the Commission encourages measures that can be taken prior to the program’s airing to improve its captioning quality (e.g., delivery of material in advance to captioner)

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Includes agreements with captioning vendors that include performance requirements for high quality captions - examples:◦ Requirements for error-free captions that are punctuated

correctly, placed properly, and synchronized with audio◦ Performance evaluations of captioners◦ Screening, training and supervision of captioners◦ Ensuring technical system functionalities (e.g., properly

working telephone lines and IP transmissions)◦ Video programmers providing preparatory materials,

such as names of people and places, to real-time captioners

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Electronic Newsroom Technique (ENT) is a process that converts the teleprompter script into captions, that can be used for live programming

Pursuant to 47 CFR § 79.1(e)(3), ENT is not permitted to be used by:◦ ABC, NBC, CBS, Fox and their affiliates in the top 25 Nielsen

Designated Market Areas (DMAs)◦ Non-broadcast networks that serve at least 50% of all homes

subscribing to multi-channel video programming distribution (MVPD) services, such as cable and satellite

Prior to June 30, 2014, when ENT was used, many portions of a newscast, including late breaking news, live interviews, field reports, weather, and sports were not captioned

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New ENT rules - 47 CFR § 79.1(e)(11): In-studio produced news, sports, weather and

entertainment programming must be scripted Weather information explaining the visual

information on the screen will scripted, but scripts may not precisely track the spoken words

Pre-produced segments must be scripted for ENT For live interviews, on-the-scene reporting, and

late-breaking news, stations will supplement with crawls, textual information, or other means

Stations must appoint an ENT Coordinator for compliance

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National Association of Broadcasters (NAB) filed an ENT progress report on October 28, 2015

A coalition of consumer organizations (Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI), National Association of the Deaf (NAD), and Hearing Loss Association of America (HLAA)) and the Technology Access Program at Gallaudet University (TAP) filed a Reply on November 13, 2015

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Codified existing requirement for video programming distributors (VPDs) to monitor and maintain their equipment and take any corrective measures necessary to ensure that such equipment is in proper working order, as part of their obligation to ensure that the captioning included with video programming reaches consumers – 47 CFR § 79.1(c)(2)

New requirement for VPDs to perform routine technical equipment checks in a manner that is sufficient to ensure that captions are passed through to viewers intact – 47 CFR § 79.1(c)(2)

New requirement for VPDs to keep records for 2 years of their activities related to the maintenance, monitoring and routine technical checks of their captioning equipment – 47 CFR § 79.1(c)(3)

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New bilingual English and Spanish language programming and 75% of older (pre-1998) bilingual English and Spanish language programming must be closed captioned

Small, discrete portions of English or Spanish segments that account for only a small percentage of an otherwise non-English or non-Spanish program, respectively, need not be captioned

All video programming distributors are required to make contact information available to consumers and the Commission

“On demand” programming must comply with captioning rules (caption 100 percent of all new English, Spanish and bilingual English and Spanish language programming; and 75 percent of older (pre-1998) English, Spanish and bilingual English and Spanish language programming)

Low power television stations must comply with the Commission’s closed captioning rules

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The Second Report and Order released on February 19, 2016, FCC 16-17:◦ Extends some of the responsibilities for the

quality and provision of closed captioning to other entities involved in the production and delivery of video programming

◦ Revises procedures for the handling of complaints

◦ Revises video programmer certification requirements

◦ Makes other procedural modifications

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Assigns responsibility for the quality of closed captioning to video programming distributors (VPDs) and video programmers

Each entity is responsible for closed captioning issues that are primarily within its control

Video programmers are responsible for:◦ Closed captioning problems that stem from production of the

captions◦ Transmission of the captions up to the point where they are

handed off to VPDs VPDs are responsible for:

◦ Quality problems that are the result of the VPDs’ faulty equipment

◦ Failure to pass through the closed captioning data intact

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Maintains current rules that place primary responsibility for the provision of closed captioning on video programming distributors

Also holds video programmers responsible for a lack of captions where they have failed to provide captions on non-exempt programs

Those rules addressing assignment of responsibilities become effective 30 days after a summary is published in the Federal Register◦ We expect publication around the end of this month

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Under 47 CFR § 79.1(g)(2), complaints filed with the Commission must include:◦ (1) the channel number, channel name, call sign, or network◦ (2) the name of the MVPD, if applicable◦ (3) the date and time when the captioning problem occurred ◦ (4) the name of the program with the captioning problem and ◦ (5) a detailed description of the captioning problem, including

specifics about the frequency and type of problem (e.g., garbling, captions cut off at certain times or on certain days, and accuracy problems)

The Commission will work with the consumer to fill in the missing information

These rules were adopted in 2014 and have been in effect

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Revises the procedures for receiving, serving, and addressing television closed captioning complaints in accordance with a burden-shifting compliance model - 47 CFR § 79.1(g) ◦ The video programming distributor (VPD) is required to

initially address complaints◦ Allows the VPD to shift the responsibility for responding

to a complaint to the video programmer If the VPD, after conducting an investigation Determines that the problem was not within its control but

appears to be within the control of the video programmer

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◦ The VPD may also (after investigation) find that the cause of the problem is third-party equipment that is not within the control of the VPD or video programmer

Establishes a “compliance ladder” for the Commission’s television closed captioning quality requirements – 47 CFR § 79.1(g)(9)◦ Provides video programming distributors and video

programmers with opportunities to take informal and prompt corrective action to reduce the need for enforcement action by the Commission

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Revisions to the complaint procedures and the new compliance ladder for caption quality complaints become effective after:◦ Paperwork Reduction Act (PRA) approval by the Office of

Management and Budget (OMB) and◦ The Commission issues a notice of the effective date in

the Federal Register◦ This process can take approximately 6 months

Until the new rules take effect, the current rules for handling complaints remain in effect

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47 CFR § 79.1(m) requires each video programmer to file with the Commission a certification that:

The video programmer is in compliance with the rules requiring the inclusion of closed captions, and either:◦ (1) Is in compliance with the captioning quality standards

or ◦ (2) Has adopted and is following related Best Practices or◦ (3) Is exempt from the captioning obligations

If exempt, the video programmer must include in its certification the specific exemptions claimed

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47 CFR § 79.1(i)(3) requires each video programmer to register with the Commission:◦ Contact information for the receipt and handling of

written closed captioning complaints◦ Must use the Commission’s web form

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The new rules for video programmer registration and certification become effective after:◦ PRA approval by OMB◦ Development of the web form for filing the information◦ The Commission issues a notice of the effective date in the

Federal Register◦ This process can take approximately 6 to 12 months

Until the new rules take effect◦ There are no registration requirements for video programmers

VPDs must continue to register under current 47 CFR § 79.1(i)(3), and this requirement will not change when the rule revisions take effect

◦ Video programmers must continue to provide widely available certifications pursuant to 47 CFR §§ 79.1(j)(1) and (k)(1)(iv)

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Eliot Greenwald - 202-418-2235 (voice) Eliot.Greenwald@fcc.gov Subscribe to AccessInfo by sending an e-mail to

AccessInfo@fcc.gov and typing “subscribe” in the subject line or the main body of the e-mail

DRO website: www.fcc.gov/general/disability-rights-office

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Presenters

Eliot GreenwaldFCCDeputy Chief, Disability Rights Officeeliot.greenwald@fcc.gov202-418-2235

Lily Bond (Moderator)3Play MediaDirector of Marketinglily@3playmedia.com617-764-5189 x119

Q&APlease type your questions into the window in your control panel. A recording of this

webinar will be available for replay.

ResourcesCome see us at NAB!www.3playmedia.com/schedule-a-meeting/Booth SU9525 in South Hall (Upper Level)

White Paper: FCC Closed Captioning Requirementsinfo.3playmedia.com/wp-fcc.html

FCC Second Report & Order (Captioning Responsibility)Transition.fcc.gov/Daily_Releases/Daily_Business/2016/

db0302/FCC-16-17A1.pdf

Closed Captioning for Media and Entertainment: www.3playmedia.com/solutions/entertainment

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