[Federal Register Volume 62, Number 179 (Tuesday, September 16, 1997)]
[Rules and Regulations]
[Pages 48487-48496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24504]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 79
[MM Docket No. 95-176; FCC 97-279]
Closed Captioning of Video Programming
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission adopts rules implementing Section 713 of the
Communications Act of 1934, as amended. Section 713, Video Programming
Accessibility, was added to the Communications Act by section 305 of
the Telecommunications Act of 1996 and directed the Commission to adopt
rules by August 8, 1998, that generally require the closed captioning
of video programming. The rules adopted by the Commission generally
assign responsibility for compliance with the closed captioning
requirements to the entity which delivers the programming to the
consumer, establish separate transition schedules for programming first
published or exhibited on or after the effective date of these rules
and for programming first published or exhibited prior to the effective
date of the rules, provide for a number of exemptions authorized by
Congress and establish mechanisms for enforcement and compliance
review. These rules are intended to increase the accessibility of video
programming for persons with hearing disabilities.
EFFECTIVE DATE: These requirements and regulations become effective
January 1, 1998.
ADDRESSES: A copy of any comments on the information collections
contained herein should be submitted to Timothy Fain, Office of
Management and Budget, Room 10236 NEOB, Washington, DC 20503, (202)
395-3561 or via Internet at fain__t@al.eop.gov, and to Judy Boley,
Federal Communications Commission, Room 234, 1919 M St., NW.,
Washington, DC 20554 or via Internet to jboley@fcc.gov.
FOR FURTHER INFORMATION CONTACT: Marcia Glauberman, John Adams or
Alexis Johns, Cable Services Bureau, (202) 418-7200, TTY (202) 418-
7172. For additional information concerning the information collections
contained in this Report and Order, contact Judy Boley at (202) 418-
0217, or via the Internet at jboley@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Report and Order
in MM Docket No. 95-176, FCC 97-279, adopted August 7, 1997 and
released August 22, 1997. The complete text of this Report and Order is
available for inspection and copying during normal business hours in
the FCC Reference Center (Room 239), 1919 M Street, NW, Washington, DC,
and also may be purchased from the Commission's copy contractor,
International Transcription Services, Inc. (``ITS'') at (202) 857-3800,
1919 M Street, NW, Suite 246, Washington, DC 20554. For copies in
alternative formats, such as braille, audio cassette or large print,
please contact Sheila Ray at ITS.
Paperwork Reduction Act
This rulemaking contains modified information collections. The
Commission, as part of its continuing effort to reduce paperwork burden
invites the general public and other Federal agencies to take this
opportunity to comment on the following information collection, as
required by the Paperwork Reduction Act of 1995, Public Law 104-13.
Comments should address: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
OMB Approval Number: 3060-0761.
Title: Closed Captioning of Video Programming.
Type of Review: Revision to an existing collection.
Respondents: Individuals or households; business and other for-
profit entities.
Number of Respondents: 100 petitions + 100 petition responses +
1,500 viewer complaints to program providers + 1,500 complaint
responses from program providers + 500 instructions to refile
complaints + 300 viewer complaints to the Commission + 300 complaint
responses to the Commission = 4,300.
Estimated Time Per Response: .5-5 hours estimated for both the
petition and complaint processes. Estimated annual burden to
petitioners and respondents for petition processes: We estimate that
program providers will annually initiate 100 petitions requesting
exemption from the closed captioning requirements. We estimate that the
average burden to complete all aspects of each petition process,
including filing any possible reply comments and associated
certifications, will be 5 hours. We estimate that 50% of petitions will
be prepared using in-house assistance to draft petitions and that 50%
of petitions will be prepared using outside legal assistance. Petitions
prepared using outside legal assistance will undergo an average burden
of 2 hours for each petition to coordinate information with outside
legal assistance.
50 (50% of petitions prepared in-house assistance) x 5 hours = 250
hours.
50 (50% of petitions prepared using outside legal assistance) x 2 hours
= 100 hours.
We estimate that there will be an average of one response to every
petition filed. The average burden to complete all aspects of the
response process, including making certification, is estimated to be 5
hours. We estimate that 50% of responses will be prepared using in-
house assistance and that 50% of responses will be prepared using
outside legal assistance.Commenters using outside legal assistance will
undergo an average burden of 2 hours for each response to coordinate
information with outside legal assistance.
50 (50% of responses prepared using in-house assistance) x 5 hours =
250 hours.
50 (50% of responses prepared using outside legal assistance) x 2 hours
= 100 hours.
Estimated annual burden to viewers and program providers for the
complaint process: We estimate there will be 1,500 annual complaints
filed by viewers at the local level. The average burden for each
complaint and response is estimated to be 1 hour per viewer and 1 hour
per program provider. 1,500 viewer complaints x 1 hour and 1,500
program provider responses x 1 hour = 3,000 hours. In the case of an
alleged violation by a television broadcast station or other program
distributor for which the programming distributor is exempt from closed
captioning responsibility pursuant to Sec. 79.1(e)(9), the complaint
shall be sent directly to the station or owner of the programming. A
video programming distributor receiving a complaint regarding such
programming must forward the complaint within seven days of receipt to
the programmer or
[[Page 48488]]
send written instructions to the complainant on how to refile with the
programmer. We estimate that one-third of complaints at the local level
will have to be refiled in this manner, and that the average burden for
programmers to either forward the complaint or send written
instructions to the complainant on how to refile will have an average
burden of 30 minutes (.5 hours) per complaint. 500 complaint x .5 hours
= 250 hours.
We estimate that the majority of complaints will be resolved at the
local level between the respective viewer and program provider. We
estimate that approximately 300 (20% of 1,500) will go unresolved,
resulting in complaints and responses being filed with the Commission.
A copy of the complaint and any supporting documentation that is filed
with the Commission must also be served on the video programming
distributor. Responses to complaints filed with the Commission must
also be served on the complainant. The average burden for all aspects
of each complaint and response in this instance is estimated to be 2
hours per viewer and 4 hours per program provider. 300 viewer
complaints x 2 hours and 30000 program provider responses x 4 hours =
1,800 hours.
Total Annual Burden to Respondents: 250 + 100 + 250 + 100 + 1,500 +
1,500 + 1,800 = 5,750 hours.
Total Annual Cost to Respondents: $42,100 estimated as follows:
Program providers will use outside legal assistance paid at $150 per
hour to complete approximately 50 petitions. 50 petitions x 5 hours per
petition x $150 per hour = $37,500. Postage and stationery costs for
petitions are estimated at an average of $5 per waiver. 100 petitions x
$5 = $500. Viewers and program providers will undergo average postage
and stationary costs for the complaint process estimated as follows:
1,500 viewer complaints filed with program providers x $1 = $1,500.
1,500 complaint responses x $1 = $1,500. 500 instructions to refile
complaints x $1 = $500. 300 viewer complaints filed at the Commission x
$1 per complaint = $300. 300 program provider responses x $1 = $300.
Total annual cost to respondents: $37,500 + $500 + $1,500 + $1,500 +
$500 + $300 + $600 = $42,100.
Needs and Uses: This Report and Order is adopted pursuant to
section 713 of the Communications Act of 1934, as amended. The
requirements set forth in section 713 are intended to ensure that video
programming is accessible to individuals with hearing disabilities
through closed captioning, regardless of the delivery mechanism used to
reach consumers.
Synopsis of Report and Order
1. By the Report and Order (``R&O''), the Commission adopts rules
to implement section 713 of the Communications Act, 47 U.S.C. 613,
which generally requires video programming be closed captioned. In
particular, this provision required the Commission to prescribe by
August 8, 1997, rules and implementation schedules for the closed
captioning of video programming and to establish appropriate
exemptions. The rules we adopt are based on comments received in
response to a Notice of Proposed Rulemaking in this proceeding
summarized at 62 FR 4959 (February 3, 1997).
2. In the R&O, we address: (a) The responsibility for compliance
with the rules we adopt; (b) obligations as to programming first
published or exhibited on or after the effective date of our rules
(``new programming'') and programming first published or exhibited
prior to the effective date of our rules (``pre-rule programming''),
including phase-in schedules; (c) the measurement of compliance with
our rules; (d) exemptions authorized by Congress, including those based
on the ``economically burdensome standard, existing contracts, and the
undue burden standard; (e) standards for quality and accuracy of closed
captioning; (f) mechanisms for enforcement and compliance review; and
(g) other issues relating to the implementation of section 713 and
matters for future review. The rules will become effective January 1,
1998.
3. Video programming distributors, defined as all entities that
provide video programming directly to customers' homes, regardless of
distribution technology used (e.g., broadcasters, cable operators, DBS
operators) will, generally, be responsible for compliance with the new
closed captioning requirements. Video programming distributors,
however, will not be responsible for the captioning of programming that
is not subject to their editorial control. The responsibility for
compliance with respect to such programming will be placed on the
providers and owners of such programming.
4. Section 713 requires the Commission to adopt rules to ensure
that video programming first published or exhibited after the effective
date of the rules be fully accessible through closed captioning. For
this new programming that does not meet any of the criteria for
exemption, we adopt an eight year transition period with benchmarks
specified as a number of hours of required captioning at two year
intervals. We will define full accessibility as the captioning of 95%
of all new, nonexempt programming to provide for unforeseen
difficulties that may arise. Compliance will be measured on a channel-
by-channel basis for multichannel video programming distributors
(``MVPDs'') and will be measured over each calendar quarter. During the
transition period, each channel of programming will be required to meet
the specified benchmark unless the amount of new, nonexempt programming
offered on the channel is less than the benchmark. In such instances,
at least 95% of the nonexempt, new programming will be required to be
captioned. The first benchmark becomes effective during the first
calendar quarter of 2000 and requires that 450 hours of programming be
captioned during each quarter of 2000 and 2001. During each calendar
quarter of 2002 and 2003, 900 hours of new, nonexempt programming must
be captioned. The benchmark for each calendar quarter of 2004 and 2005
is 1350 hours of new, nonexempt programming.
5. Section 713 also requires the Commission to maximize the
accessibility of video programming first published or exhibited prior
to the effective date of the rules. For programming first published or
exhibited before January 1, 1998, that does not meet any of our
criteria for exemption, we will require that at least 75% of such
programming be captioned after the end of a ten year transition period.
We will not set specific benchmarks for pre-rule programming. We will,
however, monitor distributors' efforts to increase the amount of
captioning of pre-rule programming to ensure that channels are
progressing toward the 75% requirement. After four years, we will
reevaluate our decision not to establish specific benchmarks and
consider whether the 75% threshold is appropriate to meet the goals of
the statute.
6. We will also require video programming providers to continue to
provide closed captioning at a level substantially the same as the
average level of captioning that they provided during the first six
months of 1997, even if the amount of captioned programming exceeds
that required under the benchmarks. In addition, video programming
distributors are required to pass through to consumers any programming
they receive with closed captioning, when they do not edit the
programming.
7. Section 713 permits the Commission to exempt by regulation
[[Page 48489]]
programs, classes of programs or services for which we determine a
requirement to provide closed captioning will be economically
burdensome. In creating these exemptions we intend to preserve the
economic viability of certain classes of programming or certain
entities associated with discreet classes of programming. We will,
therefore, exempt non-English language programming and programming
distributed between 2 a.m. and 6 a.m local time. We will also exempt
primarily textual programming for which captioning would be largely
redundant, including programming guide services or community bulletin
boards, which provide the relevant information about program schedules
or events in textual form. This exemption does not apply to
programming, such as sports programming, home shopping or weather
reports, where a significant amount of the relevant information is not
readily available as text. Similarly, we will exempt programming which
consists primarily of instrumental music such as a symphony or ballet.
In such cases, where the majority of the program simply could not be
captioned, we will also exempt any introductory discussion because the
resources necessary to caption such minor portions of the program would
outweigh any possible benefit. We will also exempt interstitial
announcements, promotional programming and public service announcements
that are ten minutes or less in duration. In this context,
advertisements that are five minutes or less in duration are not
considered programming and are not subject to our closed captioning
rules. Similarly, we will exempt locally-produced and distributed non-
news programming with limited repeat value such as local parades, local
high school or nonprofessional sports or community theater productions.
This exemption does not include programming readily captioned using ENR
or programs with repeat value. We also adopt several exemptions
designed to protect certain classes of video programming providers
which might otherwise be harmed if subject to our rules. Thus
programming produced for the instructional television fixed service
(``ITFS'') will be exempt regardless of whether it is distributed by an
ITFS licensee or other video programming distributor. We further exempt
the programming on a new network for its first four years of operation.
In addition, we will not require any video programming provider from
the closed captioning requirements where the provider had annual gross
revenues for an individual channel during the proceeding year of less
than three million dollars. Finally, we will not require any video
programming provider to spend more than 2% of its annual gross revenues
for the proceeding year on the captioning of any channel of video
programming.
8. Under section 713(d)(2), a video programming provider is exempt
from captioning programming if such action would be inconsistent with a
contract in effect on the date of enactment of the 1996 Act.
Accordingly, we exempt programming subject to a contract in effect on
February 8, 1998, for which compliance with our closed captioning
requirements would constitute a breach of that contract.
9. Under section 713(d)(3), the Commission is required to consider
petitions for exemption from the closed captioning rules if the
requirements would impose an undue burden, which is defined as a
significant burden or expense. A petition may be submitted by any party
in the programming distribution chain, including video programming
producers, syndicators and providers. Petitions must include
information that demonstrates how our closed captioning requirements
would result in an undue burden. Factors we will consider include: (a)
The nature and cost of the closed captions for the programming; (b) the
impact on the operation of the provider or program owner; (c) the
financial resources of the provider or program owner; and (d) the type
of operations of the provider or program owner. Petitioners may also
submit any other information they deem appropriate for our evaluation
of their circumstances. Depending on the individual circumstance, we
may grant partial exemptions and may consider proposals that
programming be made more accessible through alternative means (e.g.,
additional text or graphics).
10. The rules require video programming providers to deliver intact
the closed captioning they receive as part of the programming they
distribute to viewers, if the programming is not edited. They also must
maintain their equipment to ensure the technical quality of the closed
captioning they transmit. We will not, however, adopt standards for the
non-technical aspects of closed captioning. We will monitor the
captions that result from the implementation of our rules and may
revisit this issue at a later date. We will not restrict the use of
captioning methodology generally and will permit the use of electronic
news room (``ENR'') capability to create captions from teleprompter
scripts.
11. We will enforce our rules through a complaint process modeled
after existing complaint procedures. Complaints alleging violation of
our closed captioning rules must first be directed in writing to the
video programming distributor responsible for delivery of the
programming directly to the customer's home. Complaints must be filed
no later than the end of the calendar quarter following the calendar
quarter in which the alleged violation occurred. The video programming
distributor must respond to the complaint no later than 45 days after
the end of the calendar quarter in which the violation is alleged to
have occurred or 45 days after receipt of the written complaint,
whichever is later. If a video programming distributor fails to respond
to a complaint or a dispute remains following this initial procedure, a
complaint may be filed with the Commission within 30 days after the
time allotted for the video programming distributor to respond has
ended. The video programming distributor will have 15 days to respond
to any complaint filed with the Commission. We will not adopt any
specific recordkeeping requirements. In response to a complaint, a
video programming distributor is obligated to provide the Commission
with sufficient records and documentation to demonstrate that it is in
compliance with the rules. We also will permit video programming
distributors to rely on certifications from program suppliers to
demonstrate compliance.
12. In addition, in the R&O, we indicated that there are several
issues related to the implementation of closed captioning requirements
that need to be studied further or reevaluated during our transition
period. We intend to study further technological changes that may
affect closed captioning in a subsequent proceeding, including issues
relating to digital television and other technologies that may change
the way captions are created and delivered. We also are concerned about
providing viewers with hearing disabilities with accurate information
regarding fast breaking news of great importance such as severe weather
conditions, earthquakes and disruptions of the transportation system.
As we did not receive sufficient information on this issue in this
proceeding, we will initiate a proceeding to determine whether
additional rules are needed in this area. Moreover, we will reexamine a
number of our decisions during the transition period, including the
captioning requirements for pre-rule programming, the appropriateness
of certain
[[Page 48490]]
exemptions, the use of ENR and the decision not to adopt standards
relating to non-technical quality.
Regulatory Flexibility Act Certification
13. As required by the Regulatory Flexibility Act (RFA), an Initial
Regulatory Flexibility Analysis (``IRFA'') was incorporated into the
Notice of Proposed Rulemaking in this proceeding. We sought written
public comment on the expected impact of the proposed policies and
rules on small entities in the NPRM, including comments on the IRFA.
This present Final Regulatory Flexibility Analysis (``FRFA'') conforms
to the RFA.
14. Need for Action and Objectives of the Rule: The 1996 Act added
a new Section 713 to the Communications Act of 1934 that inter alia
requires the Commission to develop rules to increase the availability
of video programming with closed captioning. We are promulgating these
rules in order to implement this provision of section 713. The
statutory objective of the closed captioning provisions is to promote
the increased accessibility of video programming for persons with
hearing disabilities.
15. Summary of Significant Issues Raised by the Public Comments in
Response to the IRFA: The Small Cable Business Association (``SCBA'')
filed the only comment specifically responsive to the IRFA. Several
other commenters addressed the IRFA in their general comments. Other
parties, while not specifically commenting on the IRFA, discuss the
potential effect of the proposed rules on small entities.
16. SCBA concurs with our estimates regarding the number of small
cable operators that may be affected by our closed captioning
requirements. SCBA offers several specific suggestions to minimize the
effects of the closed captioning requirements on small cable operators.
These proposals include: (a) Allocating the burden of compliance to
programming producers and owners; (b) a class exemption for small cable
operators serving 1,000 or fewer subscribers; (c) streamlined
compliance and complaint rules for small cable systems serving 15,000
or fewer subscribers including; (d) streamlined waiver procedures to
permit qualifying small systems to access a simplified, low-cost waiver
process; (e) a class exemption for PEG programming; (f) a class
exemption for local origination programming.
17. Cassidy asserts that our conclusions are overly inclusive and,
if all small providers were exempted, Congress' intent to increase the
availability of closed captioned programming would be circumvented.
Commenters representing smaller captioning agencies suggest ways to
minimize the effect of the new regulations on small captioners.
Specifically, Para Technologies proposes that we adopt a phase-in
schedule requiring video program providers to increase closed captioned
programming 4% every three months over the eight year transition
period. According to Para Technologies, this plan would increase
competition in the captioning industry, leading to lower rates and more
widely available captioned programming. MCS suggests that we should
require that video producers and program providers use small captioning
companies for a minimum of 25% of their real time captioning
requirements.
18. Kaleidoscope indicates that its proposal to define economic
burden as a situation where the cost of captioning would exceed 10% of
the relative program budget should minimize the burden on small
entities. Kaleidoscope asserts that this is an objective test that
would exempt small entities from closed captioning requirements that
they may find economically burdensome.
19. The Association of America's Public Television Stations
(``APTS'') asserts that the closed captioning requirements would be
especially onerous to its smaller members. APTS suggests that a $3
million benchmark is generally accepted among noncommercial stations as
indicative of a small station and urges us to adopt an economic burden
exemption for local programming produced by such stations.
20. Instructional Television Fixed Services (``ITFS'') licensees
argue that their programming should not be subject to the closed
captioning requirements as they represent a formidable economic burden.
Several commenters argue that they are already obligated to ensure that
their services are accessible under both the ADA and the Rehabilitation
Act of 1973. These commenters propose excluding ITFS providers from the
definition of ``video programming provider'' and exempting ITFS
programming carried on wireless cable systems from any closed
captioning requirements.
21. Several low power television station (``LPTV'') operators
assert that as small businesses, LPTV operators warrant an exemption
based on the economic burden that closed captioning requirements would
pose. The Community Broadcasters Association (``CBA'') suggests that
specific classes of programming carried by some LPTV stations should be
exempt in order to relieve these providers of an economic burden.
22. Access centers and organizations providing governmental
programming assert that their operations qualify as small entities.
These commenters assert that, in many cases, the financial requirements
for closed captioning would exceed or substantially consume their
entire annual budgets. Several of these commenters state that mandatory
captioning requirements could effectively eliminate public, educational
and governmental (``PEG'') programming. Accordingly, these commenters
seek an exemption based on the economic burden posed by closed
captioning requirements unless an alternative funding mechanism becomes
available. The Greater Metro Telecommunications Consortium (``GMTC'')
suggests that PEG programmers should be allowed to weigh the costs and
the benefits of providing captioning and consider alternatives. Several
commenters representing multichannel video programming distribution
systems (``MVPDs'') join the access centers in arguing that PEG
channels should be exempt. These commenters concur that PEG channels
generally operate on very limited budgets which preclude captioning.
23. Description and Estimate of the Number of Small Entities to
Which the Rules Will Apply: The RFA directs the Commission to provide a
description of and, where feasible, an estimate of the number of small
entities that will be affected by the proposed rules. The RFA defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small business
concern'' under section 3 of the Small Business Act. Under the Small
Business Act, a small business concern is one which: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
SBA.
24. Small MVPDs: The SBA has developed a definition of small
entities for cable and other pay television services, which includes
all such companies generating $11 million or less in annual receipts.
13 CFR 121.201 (SIC 4841). This definition includes cable system
operators, closed circuit television services, direct broadcast
satellite services (``DBS''), multichannel multipoint distribution
systems (``MMDS''), satellite master antenna systems (``SMATV'') and
subscription television services. According to the Bureau of the
Census, there were 1,758 total cable and other pay television
[[Page 48491]]
services and 1,423 had less than $11 million in revenue as of 1992. We
address below each service individually to provide a more precise
estimate of small entities.
25. Cable Systems: We have developed, with SBA's approval, our own
definition of a small cable system operator for the purposes of rate
regulation. Under our rules, a ``small cable company'' is one serving
fewer than 400,000 subscribers nationwide. 47 CFR 76.901(e). Based on
our most recent information, we estimate that there were 1439 cable
operators that qualified as small cable companies at the end of 1995.
Since then, some of those companies may have grown to serve over
400,000 subscribers, and others may have been involved in transactions
that caused them to be combined with other cable operators.
Consequently, we estimate that there are fewer than 1439 small entity
cable system operators that may be affected by the decisions and rules
we are adopting.
26. The Communications Act also contains a definition of a small
cable system operator, which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than 1% of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' 47 U.S.C. 543(m)(2). We have determined that there are
61,700,000 subscribers in the United States. Therefore, an operator
serving fewer than 617,000 subscribers shall be deemed a small
operator, if its annual revenues, when combined with the total annual
revenues of all of its affiliates, do not exceed $250 million in the
aggregate. Based on available data, we find that the number of cable
operators serving 617,000 subscribers or less totals 1450. Although it
seems certain that some of these cable system operators are affiliated
with entities whose gross annual revenues exceed $250,000,000, we are
unable at this time to estimate with greater precision the number of
cable system operators that would qualify as small cable operators
under the definition in the Communications Act.
27. MMDS: We refined the definition of ``small entity'' for the
auction of MMDS spectrum as an entity that together with its affiliates
has average gross annual revenues that are not more than $40 million
for the preceding three calendar years. This definition of a small
entity in the context of MMDS auctions has been approved by the SBA. 47
CFR 21.961(b)(1).
28. We completed the MMDS auction in March 1996 for authorizations
in 493 basic trading areas (``BTAs''). Of 67 winning bidders, 61
qualified as small entities. Five bidders indicated that they were
minority-owned and four winners indicated that they were women-owned
businesses. MMDS is an especially competitive service, with
approximately 1573 previously authorized and proposed MMDS facilities.
Information available to us indicates that no MMDS facility generates
revenue in excess of $11 million annually. We conclude that, for
purposes of this FRFA, there are approximately 1634 small MMDS
providers as defined by the SBA and the auction rules.
29. ITFS: There are presently 2032 ITFS licensees. All but 100 of
these licenses are held by educational institutions. Educational
institutions are included in the definition of a small business. 5
U.S.C. 601(5). However, we do not collect annual revenue data for ITFS
licensees and are not able to ascertain how many of the 100 non-
educational licensees would be categorized as small under the SBA
definition.
30. DBS: Because DBS provides subscription services, DBS falls
within the SBA definition of cable and other pay television services
(SIC 4841). As of December 1996, there were eight DBS licensees. We do
not collect annual revenue data for DBS and, therefore, are unable to
ascertain the number of small DBS licensees that could be affected by
these rules. Estimates of 1996 revenues for various DBS operators are
significantly greater than $11,000,000 and range from a low of
$31,132,000 for Alphastar to a high of $1,100,000,000 for Primestar.
Accordingly, we now conclude that no DBS operator qualifies as a small
entity.
31. Home Satellite Dish (``HSD''): The market for HSD service is
difficult to quantify. HSD owners have access to more than 265 channels
of programming placed on C-band satellites by programmers for receipt
and distribution by MVPDs, of which 115 channels are scrambled and
approximately 150 are unscrambled. HSD owners can watch unscrambled
channels without paying a subscription fee. To receive scrambled
channels, however, an HSD owner must purchase an integrated receiver-
decoder from an equipment dealer and pay a subscription fee to an HSD
programming packager. According to the most recently available
information, there are approximately 30 program packagers nationwide
offering packages of scrambled programming to retail consumers. These
program packagers provide subscriptions to approximately 2,314,900
subscribers nationwide. This is an average of about 77,163 subscribers
per program packager. This is substantially smaller than the 400,000
subscribers used in the Commission's definition of a small multiple
system operator (``MSO''). Furthermore, because this an average, it is
likely that some program packagers may be substantially smaller.
32. Open Video System (``OVS''): We have certified nine OVS
operators. Of these nine, only two are providing service. They are Bell
Atlantic serving its Dover, New Jersey system and Metropolitan Fiber
Systems operating OVS systems in Boston and New York. Bell Atlantic and
Metropolitan Fiber Systems have sufficient revenues to assure us that
they do not qualify as small business entities. Little financial
information is available for the other entities authorized to provide
OVS that are not yet operational. Given that other entities have been
authorized to provide OVS service but have not yet begun to generate
revenues, we conclude that at least some of the OVS operators qualify
as small entities.
33. SMATVs: Industry sources estimate that approximately 5200 SMATV
operators were providing service as of December 1995. Other estimates
indicate that SMATV operators serve approximately 1.05 million
residential subscribers as of September 1996. The ten largest SMATV
operators together pass 815,740 units. If we assume that these SMATV
operators serve 50% of the units passed, the ten largest SMATV
operators serve approximately 40% of the total number of SMATV
subscribers. Because these operators are not rate regulated, they are
not required to file financial data with the Commission. Furthermore,
we are not aware of any privately published financial information
regarding these operators. Based on the estimated number of operators
and the estimated number of units served by the largest ten SMATVs, we
conclude that a substantial number of SMATV operators qualify as small
entities.
34. Local Multipoint Distribution System (``LMDS''): Unlike the
above pay television services, LMDS technology and spectrum allocation
will allow licensees to provide wireless telephony, data, and/or video
services. Therefore, the definition of a small LMDS entity may be
applicable to both cable and other pay television (SIC 4841) and/or
radiotelephone communications companies (SIC 4812). The SBA definition
for cable and other pay services is defined in paragraph 24 supra. A
small radiotelephone entity is one with 1500 employees or less. 13 CFR
121.1201. However, for the
[[Page 48492]]
purposes of this R&O on closed captioning, we include only an estimate
of LMDS video service providers.
35. LMDS is a service that is expected to be auctioned by the FCC
in 1997. The vast majority of LMDS entities providing video
distribution could be small businesses under the SBA's definition of
cable and pay television (SIC 4841). However, in the Third NPRM, CC
Docket No. 92-297, 58 FR 6400 (January 28, 1993), we proposed to define
a small LMDS provider as an entity that, together with affiliates and
attributable investors, has average gross revenues for the three
preceding calendar years of less than $40 million. We have not yet
received approval by the SBA for this definition.
36. There is only one company, CellularVision, that is currently
providing LMDS video services. Although the Commission does not collect
data on annual receipts, we assume that CellularVision is a small
business under both the SBA definition and our proposed auction rules.
We also conclude that a majority of the potential LMDS licensees will
be small entities, as that term is defined by the SBA.
37. Small Broadcast Stations: The SBA defines small television
broadcasting stations as television broadcasting stations with $10.5
million or less in annual receipts. 13 CFR 121.201.
38. Estimates Based on Census and BIA Data: According to the Bureau
of the Census, in 1992, 1155 out of 1478 operating television stations
reported revenues of less than $10 million for 1992. This represents
78% of all television stations, including noncommercial stations. The
Bureau of the Census does not separate the revenue data by commercial
and noncommercial stations in this report. Neither does it allow us to
determine the number of stations with a maximum of $10.5 million in
annual receipts. Census data also indicate that 81% of operating firms
(that owned at least one television station) had revenues of less than
$10 million.
We also have performed a separate study based on the data contained
in the BIA Publications, Inc. Master Access Television Analyzer
Database, which lists a total of 1141 full power commercial television
stations. It should be noted that, using the SBA definition of small
business concern, the percentage figures derived from the BIA database
may be underinclusive because the database does not list revenue
estimates for noncommercial educational stations, and these therefore
are excluded from our calculations based on the database. The BIA data
indicate that, based on 1995 revenue estimates, 440 full power
commercial television stations had an estimated revenue of $10.5
million or less. That represents 54% of full power commercial
television stations with revenue estimates listed in the BIA program.
The database does not list estimated revenues for 331 stations. Using a
worst case scenario, if those 331 stations for which no revenue is
listed are counted as small stations, there would be a total of 771
stations with an estimated revenue of $10.5 million or less,
representing approximately 68% of the 1141 full power commercial
television stations listed in the BIA data base.
40. Alternatively, if we look at owners of commercial television
stations as listed in the BIA database, there are a total of 488
owners. The database lists estimated revenues for 60% of these owners,
or 295. Of these 295 owners, 156 or 53% had annual revenues of less
than $10.5 million. Using a worst case scenario, if the 193 owners for
which revenue is not listed are assumed to be small, then small
entities would constitute 72% of the total number of owners.
41. In summary, based on the foregoing worst case analysis using
Bureau of the Census data, we estimate that our rules will apply to as
many as 1150 commercial and noncommercial television stations (78% of
all stations) that could be classified as small entities. Using a worst
case analysis based on the data in the BIA data base, we estimate that
as many as 771 commercial television stations (about 68% of all
commercial television stations) could be classified as small entities.
As we noted above, these estimates are based on a definition that we
tentatively believe greatly overstates the number of television
broadcasters that are small businesses. Further, it should be noted
that under the SBA's definitions, revenues of affiliates that are not
television stations should be aggregated with the television station
revenues in determining whether a concern is small. The estimates
overstate the number of small entities since the revenue figures on
which they are based do not include or aggregate such revenues from
nontelevision affiliated companies.
42. Program Producers and Distributors: The Commission has not
developed a definition of small entities applicable to producers or
distributors of television programs. Therefore, we will utilize the SBA
classifications of Motion Picture and Video Tape Production (SIC 7812),
Motion Picture and Video Tape Distribution (SIC 7822), and Theatrical
Producers (Except Motion Pictures) and Miscellaneous Theatrical
Services (SIC 7922). These SBA definitions provide that a small entity
in the television programming industry is an entity with $21.5 million
or less in annual receipts for SIC 7812 and 7822, and $5 million or
less in annual receipts for SIC 7922. 13 CFR 121.201. The 1992 Bureau
of the Census data indicate the following: (1) There were 7265 U.S.
firms classified as Motion Picture and Video Production (SIC 7812), and
that 6987 of these firms had $16,999 million or less in annual receipts
and 7002 of these firms had $24,999 million or less in annual receipts;
(2) there were 1139 U.S. firms classified as Motion Picture and Tape
Distribution (SIC 7822), and that 1007 of these firms had $16,999
million or less in annual receipts and 1013 of these firms had $24,999
million or less in annual receipts; and (3) there were 5671 U.S. firms
classified as Theatrical Producers and Services (SIC 7922), and that
5627 of these firms had less than $5 million in annual receipts.
43. Each of these SIC categories is very broad and includes firms
that may be engaged in various industries including television.
Specific figures are not available as to how many of these firms
exclusively produce and/or distribute programming for television or how
many are independently owned and operated. Consequently, we conclude
that there are approximately 6987 small entities that produce and
distribute taped television programs, 1013 small entities primarily
engaged in the distribution of taped television programs, and 5627
small producers of live television programs that may be affected by the
rules adopted in this R&O.
44. Description of Reporting, Recordkeeping and Other Compliance
Requirements: We do not prescribe any reporting requirements. While
several parties encouraged adoption of such requirements, we believe
that our enforcement process alleviates the need for reporting. Thus,
we are not imposing recordkeeping requirements for video programming
distributors. Rather, we allow them to exercise their own discretion
and only require that they retain records sufficient to demonstrate
compliance with our rules (Sec. 79.1(g)(6)). In order to further
relieve small video programming distributors of any unnecessary
recordkeeping burden, we permit video programming distributors to rely
on certifications from the programming suppliers to demonstrate
compliance with our closed captioning rules (Sec. 79.1(g)(6)).
45. Steps Taken to Minimize Significant Economic Impact On Small
[[Page 48493]]
Entities and Significant Alternatives Considered: In formulating our
closed captioning rules, we have taken steps to minimize the effect on
small entities while making video programming more accessible to
persons with hearing disabilities. These efforts are consistent with
the Congressional goal of increasing the availability of closed
captioned programming while preserving the diversity of available
programming.
46. Generally, we do not specifically exempt any class of video
programming distributor because we have determined that all video
programming distributors are technically capable of delivering
captioning. We do, however, recognize that ITFS licensees serve a
particular, well defined niche as distributors of specialized
programming directed at specified sites and not generally intended for
residential use. We also recognize that the general public benefits
from the redistribution of this programming by MMDS operators. We
therefore determine that ITFS operators warrant a blanket exemption.
Accordingly, we exempt programming originated by ITFS licensees,
regardless of the facility used to distribute this programming
(Sec. 79.1(d)(7)).
47. We also recognize the significance of locally produced and
distributed non-news programming of primarily local interest and
limited repeat value. Much of this programming is produced on a low
budget as a public service and our closed captioning requirements might
impose a significant economic burden that could result in such
programming not being televised. We therefore create a limited
exemption for such programming (Sec. 79.1(d)(8)).
48. We recognize that many new video programming services will
often qualify as small entities. We also recognize the need to allow
new and innovative services designed to serve emerging or niche markets
greater flexibility than more established services serving well defined
markets. Accordingly, our rules provide an exemption to relieve new
services from our captioning requirements for their first four years of
operation (Sec. 79.1(d)(9)).
49. We do not require any video programming provider to spend more
than 2% of its annual gross revenues received from a channel on closed
captioning (Sec. 79.1(d)(11)). This will require video programming
providers to devote a reasonable portion of their revenue stream to
closed captioning. This mechanism will help to avoid an ``all or
nothing'' approach thus ensuring that accessibility to captioned
programming is increased without creating an economic burden on video
programming providers.
50. Furthermore, we exempt from our closed captioning requirements
any video programming provider with less than $3 million in annual
gross revenues except that it will be required to pass through any
captioning it may receive (Sec. 79.1(d)(12)). This provision is
intended to address the problems of small video programming providers
that are not in a position to devote significant resources towards
captioning and who would, even if they expended 2% of their revenues on
captioning, provide only a minimal amount of captioned programming.
This will relieve the smallest of entities of any burdensome obligation
to provide captioning without significantly reducing the availability
of captioning.
51. In order to further minimize the impact of any unanticipated
burdens that may be created by our closed captioning requirements, we
adopt a petition process that permits us to consider requests for
individual exemptions from these rules based on the statutory undue
burden standard (Sec. 79.1(f)). This mechanism will allow us to address
the impact of these rules on individual entities and modify the rules
to accommodate individual circumstances. We have specifically designed
these procedures to ameliorate the impact of the closed captioning
rules in a manner consistent with the objective of increasing the
availability of captioned programming.
Ordering Clauses
52. Accordingly, it is ordered that, pursuant to authority found
in sections 4(i), 303(r), and 713 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303(r), and 613, the Commission's rules are
hereby amended by adding a new part 79 as set forth below. The
amendments set forth below shall become effective January 1, 1998.
53. It is further ordered that the Secretary shall send a copy of
this Report and Order, including the Final Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with paragraph 603(a) of the Regulatory
Flexibility Act, Pub. L. 96-354, 94 Stat. 1164, 5 U.S.C. 601 et seq.
(1981).
List of Subjects in 47 CFR Part 79
Cable television, Closed captioning, Television.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Title 47 of the Code of Federal Regulations is amended by adding a
new Part 79 consisting of Sec. 79.1 to read as follows:
PART 79--CLOSED CAPTIONING OF VIDEO PROGRAMMING
Sec.
79.1 Closed captioning of video programming.
Authority: 47 U.S.C. 613.
Sec. 79.1 Closed captioning of video programming.
(a) Definitions. For purposes of this section the following
definitions shall apply:
(1) Video programming. Programming provided by, or generally
considered comparable to programming provided by, a television
broadcast station that is distributed and exhibited for residential
use. Video programming includes advertisements of more than five
minutes in duration but does not include advertisements of five
minutes' duration or less.
(2) Video programming distributor. Any television broadcast station
licensed by the Commission and any multichannel video programming
distributor as defined in Sec. 76.1000(e) of this chapter, and any
other distributor of video programming for residential reception that
delivers such programming directly to the home and is subject to the
jurisdiction of the Commission. An entity contracting for program
distribution over a video programming distributor that is itself exempt
from captioning that programming pursuant to paragraph (e)(9) of this
section shall itself be treated as a video programming distributor for
purposes of this section To the extent such video programming is not
otherwise exempt from captioning, the entity that contracts for its
distribution shall be required to comply with the closed captioning
requirements of this section.
(3) Video programming provider. Any video programming distributor
and any other entity that provides video programming that is intended
for distribution to residential households including, but not limited
to broadcast or nonbroadcast television network and the owners of such
programming.
(4) Closed captioning. The visual display of the audio portion of
video programming contained in line 21 of the vertical blanking
interval (VBI) pursuant to the technical specifications set forth in
Sec. 15.119 of this chapter or the equivalent thereof.
[[Page 48494]]
(5) New programming. Video programming that is first published or
exhibited on or after January 1, 1998.
(6) Pre-rule programming. (i) Video programming that was first
published or exhibited before January 1, 1998. (ii) Video programming
first published or exhibited for display on television receivers
equipped for display of digital transmissions or formatted for such
transmission and exhibition prior to the date on which such television
receivers must, by Commission rule, be equipped with built-in decoder
circuitry designed to display closed-captioned digital television
transmissions.
(7) Nonexempt programming. Video programming that is not exempt
under paragraph (d) of this section and, accordingly, is subject to
closed captioning requirements set forth in this section.
(b) Requirements for closed captioning of video programming--(1)
Requirements for new programming. Video programming distributors must
provide closed captioning for nonexempt video programming that is being
distributed and exhibited on each channel during each calendar quarter
in accordance with the following requirements:
(i) Between January 1, 2000, and December 31, 2001, video
programming distributors shall provide at least 450 hours of captioned
video programming, or if the video programming distributor provides
less than 450 hours of new nonexempt video programming, then 95% of its
new nonexempt video programming must be provided with captions;
(ii) Between January 1, 2002, and December 31, 2003, video
programming distributors shall provide at least 900 hours of captioned
video programming, or if the video programming distributor provides
less than 900 hours of new nonexempt video programming, then 95% of its
new nonexempt video programming must be provided with captions;
(iii) Between January 1, 2004, and December 31, 2005, video
programming distributors shall provide at least an average of 1350
hours of captioned video programming, or if the video programming
distributor provides less than 1350 hours of new nonexempt video
programming, then 95% of its new nonexempt video programming must be
provided with captions; and
(iv) As of January 1, 2006, and thereafter, 95% of the programming
distributor's new nonexempt video programming must be provided with
captions.
(2) Requirements for pre-rule programming. As of January 1, 2008,
and thereafter, 75% of the programming distributor's pre-rule nonexempt
video programming being distributed and exhibited on each channel
during each calendar quarter must be provided with closed captioning.
(3) Video programming distributors shall continue to provide
captioned video programming at substantially the same level as the
average level of captioning that they provided during the first 6
months of 1997 even if that amount of captioning exceeds the
requirements otherwise set forth in this section.
(c) Obligation to pass through captions of already captioned
programs.--All video programming distributors shall deliver all
programming received from the video programming owner or other
origination source containing closed captioning to receiving television
households with the original closed captioning data intact in a format
that can be recovered and displayed by decoders meeting the standards
of Sec. 15.119 of this chapter unless such programming is recaptioned
or the captions are reformatted by the programming distributor.
(d) Exempt programs and providers.--For purposes of determining
compliance with this section, any video programming or video
programming provider that meets one or more of the following criteria
shall be exempt to the extent specified in this paragraph.
(1) Programming subject to contractual captioning restrictions.
Video programming that is subject to a contract in effect on or before
February 8, 1996, but not any extension or renewal of such contract,
for which an obligation to provide closed captioning would constitute a
breach of contract.
(2) Video programming or video programming provider for which the
captioning requirement has been waived. Any video programming or video
programming provider for which the Commission has determined that a
requirement for closed captioning imposes an undue burden on the basis
of a petition for exemption filed in accordance with the procedures
specified in paragraph (f) of this section.
(3) Non-english language programming. All programming for which the
audio is in a language other than English, except that scripted
programming that can be captioned using the ``electronic news room''
technique is not exempt.
(4) Primarily textual programming. Video programming or portions of
video programming for which the content of the soundtrack is displayed
visually through text or graphics (e.g., program schedule channels or
community bulletin boards).
(5) Programming distributed in the late night hours. Programming
that is being distributed to residential households between 2 a.m. and
6 a.m. local time. Video programming distributors providing a channel
that consists of a service that is distributed and exhibited for
viewing in more than a single time zone shall be exempt from closed
captioning that service for any continuous 4 hour time period they may
select, commencing not earlier than 12 a.m. local time and ending not
later than 7 a.m. local time in any location where that service is
intended for viewing. This exemption is to be determined based on the
primary reception locations and remains applicable even if the
transmission is accessible and distributed or exhibited in other time
zones on a secondary basis. Video programming distributors providing
service outside of the 48 contiguous states may treat as exempt
programming that is exempt under this paragraph when distributed in the
contiguous states.
(6) Interstitials, promotional announcements and public service
announcements. Interstitial material, promotional announcements, and
public service announcements that are 10 minutes or less in duration.
(7) ITFS programming. Video programming produced for the
instructional television fixed service (ITFS).
(8) Locally produced and distributed non-news programming with
limited repeat value. Programming that is locally produced by the video
programming distributor, has no repeat value, is of local public
interest, is not news programming, and for which the ``electronic news
room'' technique of captioning is unavailable.
(9) Programming on new networks. Programming on a video programming
network for the first four years after it begins operation.
(10) Primarily non-vocal musical programming. Programming that
consists primarily of non-vocal music.
(11) Captioning expense in excess of 2% of gross revenues. No video
programming provider shall be required to expend any money to caption
any video programming if such expenditure would exceed 2% of the gross
revenues received from that channel during the previous calendar year.
(12) Channels producing revenues of under $3,000,000. No video
programming provider shall be required to expend any money to caption
any channel of video programming producing annual gross revenues of
less
[[Page 48495]]
than $3,000,000 during the previous calendar year other than the
obligation to pass through video programming already captioned when
received pursuant to paragraph (c) of this section.
(e) Responsibility for and determination of compliance.--(1)
Compliance shall be calculated on a per channel, calendar quarter
basis;
(2) Open captioning or subtitles in the language of the target
audience may be used in lieu of closed captioning;
(3) Live programming or repeats of programming originally
transmitted live that are captioned using the so-called ``electronic
news room'' technique will be considered captioned. The live portions
of noncommercial broadcasters' fundraising activities that use
automated software to create a continuous captioned message will be
considered captioned;
(4) Compliance will be required with respect to the type of video
programming generally distributed to residential households.
Programming produced solely for closed circuit or private distribution
is not covered by these rules;
(5) Video programming that is exempt pursuant to paragraph (d) of
this section that contains captions, except video programming exempt
pursuant to paragraph (d)(5) of this section (late night hours
exemption), can count towards the compliance with the requirements for
new programming prior to January 1, 2006. Video programming that is
exempt pursuant to paragraph (d) of this section that contains
captions, except that video programming exempt pursuant to paragraph
(d)(5) of this section (late night hours exemption), can count towards
compliance with the requirements for pre-rule programming.
(6) For purposes of paragraph (d)(11) of this section, captioning
expenses include direct expenditures for captioning as well as
allowable costs specifically allocated by a programming supplier
through the price of the video programming to that video programming
provider. To be an allowable allocated cost, a programming supplier may
not allocate more than 100% of the costs of captioning to individual
video programming providers. A programming supplier may allocate the
captioning costs only once and may use any commercially reasonable
allocation method;
(7) For purposes of paragraphs (d)(11) and (d)(12) of this section,
annual gross revenues shall be calculated for each channel individually
based on revenues received in the preceding calendar year from all
sources related to the programming on that channel. Revenue for
channels shared between network and local programming shall be
separately calculated for network and for non-network programming, with
neither the network nor the local video programming provider being
required to spend more than 2% of its revenues for captioning. Thus,
for example, compliance with respect to a network service distributed
by a multichannel video service distributor, such as a cable operator,
would be calculated based on the revenues received by the network
itself (as would the related captioning expenditure). For local service
providers such as broadcasters, advertising revenues from station-
controlled inventory would be included. For cable operators providing
local origination programming, the annual gross revenues received for
each channel will be used to determine compliance. Evidence of
compliance could include certification from the network supplier that
the requirements of the test had been met. Multichannel video
programming distributors, in calculating non-network revenues for a
channel offered to subscribers as part of a multichannel package or
tier, will not include a pro rata share of subscriber revenues, but
will include all other revenues from the channel, including advertising
and ancillary revenues. Revenues for channels supported by direct sales
of products will include only the revenues from the product sales
activity (e.g., sales commissions) and not the revenues from the actual
products offered to subscribers. Evidence of compliance could include
certification from the network supplier that the requirements of this
test have been met.
(8) If two or more networks (or sources of programming) share a
single channel, that channel shall be considered to be in compliance if
each of the sources of video programming are in compliance where they
are carried on a full time basis;
(9) Video programming distributors shall not be required to provide
closed captioning for video programming that is by law not subject to
their editorial control, including but not limited to the signals of
television broadcast stations distributed pursuant to sections 614 and
615 of the Communications Act or pursuant to the compulsory copyright
licensing provisions of sections 111 and 119 of the Copyright Act
(Title 17 U.S.C. 111 and 119); programming involving candidates for
public office covered by sections 315 and 312 of the Communications Act
and associated policies; commercial leased access, public access,
governmental and educational access programming carried pursuant to
sections 611 and 612 of the Communications Act; video programming
distributed by direct broadcast satellite (DBS) services in compliance
with the noncommercial programming requirement pursuant to section
335(b)(3) of the Communications Act to the extent such video
programming is exempt from the editorial control of the video
programming provider; and video programming distributed by a common
carrier or that is distributed on an open video system pursuant to
section 653 of the Communications Act by an entity other than the open
video system operator. To the extent such video programming is not
otherwise exempt from captioning, the entity that contracts for its
distribution shall be required to comply with the closed captioning
requirements of this section.
(f) Procedures for exemptions based on undue burden.--(1) A video
programming provider, video programming producer or video programming
owner may petition the Commission for a full or partial exemption from
the closed captioning requirements. Exemptions may be granted, in whole
or in part, for a channel of video programming, a category or type of
video programming, an individual video service, a specific video
program or a video programming provider upon a finding that the closed
captioning requirements will result in an undue burden.
(2) A petition for an exemption must be supported by sufficient
evidence to demonstrate that compliance with the requirements to closed
caption video programming would cause an undue burden. The term ``undue
burden'' means significant difficulty or expense. Factors to be
considered when determining whether the requirements for closed
captioning impose an undue burden include:
(i) The nature and cost of the closed captions for the programming;
(ii) The impact on the operation of the provider or program owner;
(iii) The financial resources of the provider or program owner; and
(iv) The type of operations of the provider or program owner.
(3) In addition to these factors, the petition shall describe any
other factors the petitioner deems relevant to the Commission's final
determination and any available alternatives that might constitute a
reasonable substitute for the closed captioning requirements including,
but not limited to, text or graphic display of the content of the audio
portion of the programming. Undue burden shall be evaluated with regard
to the individual outlet.
[[Page 48496]]
(4) An original and two (2) copies of a petition requesting an
exemption based on the undue burden standard, and all subsequent
pleadings, shall be filed in accordance with Sec. 0.401(a) of this
chapter.
(5) The Commission will place the petition on public notice.
(6) Any interested person may file comments or oppositions to the
petition within 30 days of the public notice of the petition. Within 20
days of the close of the comment period, the petitioner may reply to
any comments or oppositions filed.
(7) Comments or oppositions to the petition shall be served on the
petitioner and shall include a certification that the petitioner was
served with a copy. Replies to comments or oppositions shall be served
on the commenting or opposing party and shall include a certification
that the commenter was served with a copy.
(8) Upon a showing of good cause, the Commission may lengthen or
shorten any comment period and waive or establish other procedural
requirements.
(9) All petitions and responsive pleadings shall contain a
detailed, full showing, supported by affidavit, of any facts or
considerations relied on.
(10) The Commission may deny or approve, in whole or in part, a
petition for an undue burden exemption from the closed captioning
requirements.
(11) During the pendency of an undue burden determination, the
video programming subject to the request for exemption shall be
considered exempt from the closed captioning requirements.
(g) Complaint procedures.--(1) No complaint concerning an alleged
violation of the closed captioning requirements of this section shall
be filed with the Commission unless such complaint is first sent to the
video programming distributor responsible for delivery and exhibition
of the video programming. A complaint must be in writing, must state
with specificity the alleged Commission rule violated and must include
some evidence of the alleged rule violation. In the case of an alleged
violation by a television broadcast station or other programming for
which the video programming distributor is exempt from closed
captioning responsibility pursuant to paragraph (e)(9) of this section,
the complaint shall be sent directly to the station or owner of the
programming. A video programming distributor receiving a complaint
regarding such programming must forward the complaint within seven days
of receipt to the programmer or send written instructions to the
complainant on how to refile with the programmer.
(2) A complaint will not be considered if it is filed with the
video programming distributor later than the end of the calendar
quarter following the calendar quarter in which the alleged violation
has occurred.
(3) The video programming distributor must respond in writing to a
complaint no later than 45 days after the end of the calendar quarter
in which the violation is alleged to have occurred or 45 days after
receipt of a written complaint, whichever is later.
(4) If a video programming distributor fails to respond to a
complaint or a dispute remains following the initial complaint
resolution procedures, a complaint may be filed with the Commission
within 30 days after the time allotted for the video programming
distributor to respond has ended. An original and two (2) copies of the
complaint, and all subsequent pleadings shall be filed in accordance
with Sec. 0.401(a) of this chapter. The complaint shall include
evidence that demonstrates the alleged violation of the closed
captioning requirements of this section and shall certify that a copy
of the complaint and the supporting evidence was first directed to the
video programming distributor. A copy of the complaint and any
supporting documentation must be served on the video programming
distributor.
(5) The video programming distributor shall have 15 days to respond
to the complaint. In response to a complaint, a video programming
distributor is obligated to provide the Commission with sufficient
records and documentation to demonstrate that it is in compliance with
the Commission's rules. The response to the complaint shall be served
on the complainant.
(6) Certifications from programming suppliers, including
programming producers, programming owners, networks, syndicators and
other distributors, may be relied on to demonstrate compliance.
Distributors will not be held responsible for situations where a
program source falsely certifies that programming delivered to the
distributor meets our captioning requirements if the distributor is
unaware that the certification is false. Video programming providers
may rely on the accuracy of certifications. Appropriate action may be
taken with respect to deliberate falsifications.
(7) The Commission will review the complaint, including all
supporting evidence, and determine whether a violation has occurred.
The Commission shall, as needed, request additional information from
the video programming provider.
(8) If the Commission finds that a violation has occurred,
penalties may be imposed, including a requirement that the video
programming distributor deliver video programming containing closed
captioning in an amount exceeding that specified in paragraph (b) of
this section in a future time period.
(h) Private rights of action prohibited.--Nothing in this section
shall be construed to authorize any private right of action to enforce
any requirement of this section. The Commission shall have exclusive
jurisdiction with respect to any complaint under this section.
[FR Doc. 97-24504 Filed 9-15-97; 8:45 am]
BILLING CODE 6712-01-P
