2024-17071. Closed Captioning of Video Programming

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Federal Communications Commission

1. 47 CFR Part 79
2. [CG Docket No. 05-231; FCC 24-80, FR ID 235802]

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

The Federal Communications Commission (Commission) proposes to amend its closed captioning rules to relieve video programmers that provide programming exclusively to Public, Educational, and Governmental (PEG) channels that are exempt from the closed captioning requirements from the obligation to register with the Commission and certify captioning compliance. In addition, for programming carried on nonbroadcast networks for distribution by a cable operator or other multichannel video programming distributor (MVPD), the Commission proposes that captioning registration and certification requirements shall not apply to the providers of such programming if the network itself certifies that it is exempt or that all programming comprising the network's linear line-up is either exempt from or compliant with the closed captioning rules. This action is intended to simplify compliance procedures and reduce administrative costs for video programmers, without compromising the quality and availability of closed captioning.

DATES:

Comments are due September 3, 2024. Reply comments are due September 16, 2024.

ADDRESSES:

You may submit comments, identified by CG Docket No. 05-231, via the Federal Communications Commission's website: https://www.fcc.gov/​ecfs/​. Follow the instructions for submitting comments.

For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Joshua Mendelsohn, Disability Rights Office, Consumer and Governmental Affairs Bureau, at 202-559-7304, or [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Further Notice of Proposed Rulemaking, document FCC 24-80, adopted on July 16, 2024, released on July 18, 2024, in CG Docket No. 05-231. The full text of document FCC 24-80 is available for public inspection and copying via the Commission's Electronic Comment Filing System (ECFS). To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [e-mail] or call the Consumer and Governmental Affairs Bureau at [phone].

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).

• Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: https://www.fcc.gov/​ecfs/​.
• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing.
• Filings can be sent by hand or messenger delivery, by commercial courier, or by the U.S. Postal Service. All filings must be addressed to the Secretary, Federal Communications Commission.
• Hand-delivered or messenger-delivered paper filings for the Commission's Secretary are accepted between 8:00 a.m. and 4:00 p.m. by the FCC's mailing contractor at 9050 Junction Drive, Annapolis Junction, MD 20701. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
• Commercial courier deliveries (any deliveries not by the U.S. Postal Service) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• Filings sent by U.S. Postal Service First-Class Mail, Priority Mail, and Priority Mail Express must be sent to 45 L Street NE, Washington, DC 20554.

Providing Accountability Through Transparency Act: The Providing Accountability Through Transparency Act, Public Law 118-9, requires each agency, in providing notice of a rulemaking, to post online a brief plain-language summary of the proposed rule. The required summary of this Further Notice of Proposed Rulemaking is available at https://www.fcc.gov/​proposed-rulemakings.

Ex Parte Rules. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. 47 CFR 1.1200 et seq. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b) of the Commission's rules. In proceedings governed by § 1.49(f) of the Commission's rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

Initial Paperwork Reduction Act of 1995 Analysis

Document FCC 24-80 may result in a new or revised information collection requirement. If the Commission adopts any new or revised information collection requirement, the Commission will publish a notice in the Federal Register inviting the public to comment on the requirement, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

Synopsis

Background

Section 713 of the Communications Act (the Act) directs the Commission to ensure that video programming is fully accessible through the provision of closed captioning. 47 U.S.C. 613(b). At present, all new English and Spanish language video programming, both analog and digital, and 75 percent of pre-rule video programming that is not exempt from the Commission's rules must be captioned. 47 CFR 79.1(b). Programming is exempt from the Commission's captioning rules if it (1) falls into one of 13 self-implementing, categorical exemptions, 47 CFR 79.1(d), or (2) has been granted an individual exemption from the closed captioning obligations after making a showing that providing captions would be economically burdensome. 47 U.S.C. 613(d)(3); 47 CFR 79.1(f). Categorical or individual captioning exemptions may apply on a channel-wide or program-by-program basis.

Since the inception of the Commission's closed captioning rules, the Commission has assigned primary responsibility for the provision of closed captioning on television programming to video programming distributors (VPDs). In 2014, the Commission added quality requirements for captions. In 2016, the Commission also placed captioning obligations on video programmers, as well as VPDs, and adopted requirements for each video programmer to register with the Commission and certify compliance with the captioning rules. Video programmers are required to register and submit certifications of compliance to the Commission once the Commission's website is ready to receive such certifications and a compliance date is published in the Federal Register .

Section 611 of the Act allows cable franchising authorities to establish requirements in a franchise with respect to designation or use of channel capacity for PEG use. Public access channels are available for the general public's use and typically are administered either by a cable operator or by a third party designated by the franchising authority. Programming time on educational access channels is typically allocated among local schools, colleges and universities by the franchising authority or the cable operator. Governmental access channels generally are controlled by local governments, which use these channels for governmental programming in their jurisdictions.

In a petition filed in August 2016, the Alliance for Community Media (ACM) requests that the closed captioning registration and certification requirements be waived for program producers that provide programs exclusively over PEG channels. ACM states that the vast majority of PEG channels fall within one or more of the Commission's closed captioning exemption categories, e.g., because the channel produces annual revenue less than $3,000,000. Requiring each PEG program producer to register and certify compliance for its video programming on channels that are themselves exempt, ACM argues, would impose a significant and unnecessary burden on such programmers and needlessly clutter the Commission's registration system. The Commission sought and received comments on this petition.

In its comments, NCTA requests a clarification that video program owners (VPOs) of individual programs included in linear program networks distributed by MVPDs need not register or certify compliance with the captioning rules—or alternatively, that such obligations are waived if the network itself certifies compliance. NCTA suggests that a program-by-program certification or registration for each program licensed to a network for distribution by an MVPD is unnecessary.

The Commission proposes to amend its rules to provide that the closed-caption registration and certification requirements do not apply to any video programmer that provides video programming exclusively to PEG channels that are exempt on a channel-wide basis (under either a self-implementing exemption or the economic-burden exemption) and for which exemption certifications have been filed by the channel administrator. The Commission also seeks comment on the extent to which cable operators or other PEG channel administrators would be able, if they chose, to file accurate certifications of captioning compliance or exemption for the programming carried on non-exempt PEG channels, i.e., those PEG channels that do not qualify for a channel-wide exemption. Finally, the Commission proposes to amend the captioning rules to provide that the registration and certification requirements do not apply to any video programmer that only licenses video programming to a nonbroadcast network for distribution by a cable operator or other MVPD, if such network has registered and certified to the Commission that the network itself is exempt or that all the programming comprising its linear line-up is either compliant with captioning obligations or exempt.

Exempt PEG Channels. The Commission tentatively concludes that the purpose of its captioning rules—to ensure the accessibility of all video programming for which an exemption from captioning is not warranted—is not served by requiring video programmers to file registrations and certifications if their programs are distributed exclusively on exempt PEG channels for which an exemption certification has been filed. The record indicates that most PEG programs are exhibited on PEG channels that are themselves exempt from the Commission's captioning rules, and for which an exemption certification could be filed by the channel administrator. Requiring that PEG programmers also certify to the same exemptions, ACM and others contend, would result in the filing of redundant exemption certifications by thousands of PEG programmers. A number of commenters point out that this would be burdensome and would serve no useful purpose. So long as the PEG channel administrator files the required contact information and a certification attesting to the channel's exemption from the captioning rules, the record to date suggests that consumers will have access to the information intended by the certification requirement, and that the Commission will have sufficient documentation to ensure accountability for compliance with its rules. Under the Commission's proposal, the PEG channel administrator would be responsible for the truthfulness of its certification. The Commission seeks comment on its tentative conclusion and its underlying rationale.

If the rules are amended as the Commission proposes, the Commission anticipates that most administrators of exempt PEG channels will certify as to the channel's exempt status. The Commission seeks comment on this expectation. In instances where a channel administrator does not register and certify, the Commission does not propose to relieve individual video programmers of their obligations to comply with the registration and certification requirements.

Non-Exempt PEG Channels. The Commission also seeks comment on whether there are circumstances in which video programmers whose programs are carried on non-exempt PEG channels should be relieved from registration and certification obligations. A non-exempt PEG channel is a PEG channel that does not qualify on a channel-wide basis for a categorical or individual exemption based on its revenues or the type of programming it carries. Specifically, are there instances in which the administrator of a non-exempt PEG channel would have the ability to certify that all the programming carried on the channel is either compliant with or exempt from captioning obligations, thereby making it unnecessary for the individual programmers to provide certifications? The Commission notes that, because section 611(e) of the Act bars a cable operator from exercising editorial control over PEG channels, 47 U.S.C. 531(e), Commission rules do not require cable operators to provide closed captioning for PEG channel programming. 47 CFR 79.1. Where a PEG channel is administered by a cable operator, the Commission seeks comment on the extent to which, consistent with section 611(e) of the Act and Commission rules, a cable operator would be able to make accurate certifications of captioning compliance for video programming distributed on non-exempt PEG channels. Are other PEG channel administrators—such as government agencies, educational institutions, and designees of franchising authorities—able, as a factual matter, to make accurate certifications as to the exemption or captioning compliance of programming carried on non-exempt PEG channels? Do public interest considerations weigh in favor of or against the Commission relying on such certifications by cable operators or other administrators of non-exempt PEG channels? To the extent that the administrators of non-exempt PEG channels are able and willing to make such certifications, should the Commission amend its rules to relieve video programmers from filing duplicative certifications (as well as registration information) in such cases?

To be clear, the Commission is not proposing to require that cable operators or other PEG channel administrators submit certifications regarding any PEG channels or PEG channel programming; rather, the Commission seeks comment on the extent to which such certifications are feasible— i.e., whether they could be accurately made, on a voluntary basis, to ease a regulatory burden that, under the current rules, would fall on producers of video programming carried on non-exempt PEG channels—and on whether to modify the Commission's rules to permit this.

Effect on Caption Quality. The Commission seeks comment on whether, and if so how, its proposed rule amendments would affect the quality of closed captioning on exempt and non-exempt PEG channels. The Commission further requests that all commenters identify costs and benefits to support their positions. The Commission notes that it does not propose any change in any video programmer's substantive captioning obligations for non-exempt programming. Accordingly, each such video programmer must either qualify individually for an exemption or provide closed captions. 47 CFR 79.1(b). The Commission also notes that even if a PEG channel is exempt under the Commission's rules, PEG channel administrators and the associated video programmers may still have obligations under other federal laws, such as the Americans with Disabilities Act, to make their video programming accessible to individuals with disabilities. Further, if the administrator of a PEG channel does not certify to the compliance or exemption of all programming on the channel, the providers of such programming would remain subject to the registration and certification requirements.

Nonbroadcast Network Programming. The Commission tentatively concludes that closed captioning registration and certification requirements should not apply to video programmers that provide or license video programming exclusively to a nonbroadcast network for distribution by a cable operator or other MVPD if such network has filed registration information and a certification with the Commission indicating that (1) the network itself is exempt or (2) all programming comprising its linear line-up is compliant with or exempt from captioning obligations. Conversely, if a nonbroadcast network does not certify that it is itself fully exempt, or that each of the programs comprising its channel line-up is in compliance with, or exempt from, the closed captioning obligations, each video programmer that provides programming on such network will remain subject to the registration and certification requirements. As an example, if the proposed rules are adopted, a food or sports network would continue to have an obligation to register with the Commission and certify the overall compliance of their programming with the captioning rules—or with applicable exemptions therefrom. However, the individual programmers that provide programs shown on these networks—such as baking shows and cooking contests in the case of a food network, and football and baseball games in the case of a sports network—would not be obligated to make these filings so long as their networks meet their own filing requirements.

Nonbroadcast networks are those networks whose programming is delivered via MVPDs, such as cable systems or satellite services. The Commission includes local and regional cable channels, such as local and regional cable news and sports channels, within the meaning of the term nonbroadcast networks. The Commission does not include PEG channels within the meaning of the term nonbroadcast networks. Nonbroadcast networks are themselves “video programmers” under the Commission's captioning rules. See47 CFR 79.1(a)(9). Therefore, after the compliance date for registration and certification by video programmers, each nonbroadcast network must register with the Commission and annually certify either that the network itself is exempt or that each of the programs comprising its channel line-up is compliant with (or exempt from) the captioning rules. 47 CFR 79.1(i)(3), (m). These nonbroadcast networks must identify the categories of exemptions that are claimed, although they need not provide specific details, such as the names and timeslots for each such program.

In light of these existing registration and certification requirements for nonbroadcast networks, the Commission tentatively concludes that it would be unnecessarily duplicative for potentially thousands of program owners that supply programming exclusively to nonbroadcast networks to also register and file annual certifications with the Commission for the same programming addressed in the networks' filings. It appears that such redundant certifications would impose significant and unnecessary regulatory burdens. The Commission seeks comment on its tentative conclusion and its underlying rationale. Will the registration and certifications made by nonbroadcast networks provide the necessary information for consumers and the Commission to ensure accountability with and enforcement of Commission rules? Commenters should discuss the costs and benefits of any advocated approach.

Digital Equity and Inclusion. The Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the issues discussed herein. Specifically, the Commission seeks comment on how any Commission actions taken to address barriers to the distribution of independent and diverse programming may promote or inhibit advances in diversity, equity, inclusion, and accessibility.

Initial Regulatory Flexibility Analysis

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules proposed in this document. The Commission requests written public comments on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments specified on the first page of this document.

Need for, and Objective of, the Proposed Rules

The Commission proposes to modify the video programmer registration and certification requirements by not applying those requirements to video programmers that either: provide video programming exclusively to public, educational, and governmental access channels (PEG channels) that are exempt from the provision of closed captioning pursuant to § 79.1(d) or (f) of the Commission's rules, or that certify compliance with or exemption from the closed captioning obligations for all programming shown over the PEG channel itself; or provide or license video programming to nonbroadcast networks for distribution by a cable operator or other MVPD, to the extent that such networks certify that the network itself is exempt, or certify compliance with or exemption from the closed captioning obligations for all programming comprising the network's linear line-up. The purpose of this proposed rule change is to relieve providers of video programming to cable or other multichannel systems from the obligation to register with the Commission and to certify captioning compliance if the relevant certification has been filed by another competent entity.

Legal Basis. The proposed action is authorized under sections 151, 154(i), 154(j), 303(r) and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), and 613.

Small Entities Impacted. The proposals will affect obligations of small businesses, small organizations, and small governmental jurisdictions; establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis; establishments primarily engaged in producing, or producing and distributing motion pictures, videos, television programs, or television commercials; closed captioning services—teleproduction and other postproduction services; and court reporting and stenotype services.

Description of Reporting, Recordkeeping, and Other Compliance Requirements

The Commission proposes to amend the rules to not apply registration and certification requirements to those video programmers that either provide video programming exclusively to PEG access channels that are exempt from the provision of closed captioning or that certify compliance with or exemption from the closed captioning obligations for all programming shown over the PEG channel itself; or provide or license video programming to nonbroadcast networks, to the extent that such networks certify that the network itself is exempt, or certify compliance with or exemption from the closed captioning obligations for all programming comprising the network's linear line-up.

Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered

In proposing to amend the Commission's closed captioning rules, the Commission believes that it will minimize the effect on small entities while continuing to make television programming accessible to persons who are deaf and hard of hearing. The Commission's proposed amendments would relieve many entities, including small entities, from reporting requirements. Thus, the Commission proposes an amendment to the rules that would exclude coverage of the rule for many entities, including small entities, under certain circumstances.

Federal Rules Which Duplicate, Overlap, or Conflict With, the Commission's Proposals

None.

List of Subjects in 47 CFR Part 79

• Cable television
• Television

Federal Communications Commission.

Katura Jackson,

Federal Register Liaison Officer.

Proposed Rules

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 part 79 as follows:

PART 79—ACCESSIBILITY OF VIDEO PROGRAMMING

1. The authority citation for part 79 continues to read as follows:

Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 330, 544a, 613, 617.

2. Amend § 79.1 by redesignating paragraphs (a)(6) through (a)(13) as paragraphs (a)(7) through (a)(14) and adding paragraphs (a)(6), (i)(3)(iii), and (m)(6) to read as follows:

§ 79.1

Closed captioning of televised video programming.

* * * * *

(a) * * *

(6) Nonbroadcast Network. Networks whose programming is delivered via multichannel video programming distributors. Local and regional cable channels are included within the meaning of the term nonbroadcast networks.

* * * * *

(i) * * *

(3) * * *

(iii) Video programmers shall not be required to file contact information with the Commission pursuant to paragraph (i)(3)(ii) of this section if they provide video programming exclusively to a public, educational, or governmental (PEG) access channel, as described in section 531 of title 47 of the United States Code, or a nonbroadcast network, for which the administrator of the PEG access channel or nonbroadcast network has on file with the Commission:

(A) the contact information required by paragraph (i)(3)(ii); and

(B) a certification pursuant to paragraph (m) of this section attesting to:

( 1) an exemption from the captioning rules for the nonbroadcast network or PEG channel itself; or

( 2) compliance with, or exemption from, the captioning rules for the entire programming line-up of the nonbroadcast network or PEG channel itself.

* * * * *

(m) * * *

(6) Video programmers shall not be required to submit certifications to the Commission pursuant to this paragraph (m) if they provide video programming exclusively on a public, educational, or governmental (PEG) access channel, as described in section 531 of title 47 of the United States Code, or a nonbroadcast network, for which the administrator of the PEG access channel or nonbroadcast network has on file with the Commission:

(i) the contact information required by paragraph (i)(3)(ii); and

(ii) a certification pursuant to this paragraph (m) attesting to:

(A) an exemption from the captioning rules for the nonbroadcast network or PEG channel itself; or

(B) compliance with, or exemption from, the captioning rules for the entire programming line-up of the nonbroadcast network or PEG channel itself.