By Edwin Komen and Brian Weimer
New FCC regulations on closed captioning of IP-delivered video programming have caught many by surprise even though they have been in the works for the past two years. Many of those who will be directly impacted by the new rules may still be unaware of the rapidly approaching compliance deadline of September 30, 2012. Most pre-recorded video programming must be captioned for IP-delivery if it is shown on television with captions on or after September 30, 2012. The producer or supplier of the content bears the initial responsibility for inserting the captioning but the distributors also have the duty to confirm compliance. There are many variations and different applicable dates for different kinds of programming (e.g., live vs. pre-recorded but edited vs. archived). As in all aspects of the law, the application of the law and the associated regulations depends on the specific circumstances surrounding each video program in a library. However, since the dates for implementation vary widely depending on the content and whether it has been broadcast on television in the US, producers, suppliers and distributors must carefully consider each video program in relationship to the relevant regulations. Video programming distributers will also be subject to new consumer complaint procedures that require distributors to have prescribed procedures in place by September 30, 2012. And while the deadline for device manufacturers to comply with their new closed captioning requirements is not until 2014, the reality of equipment development cycles requires device manufacturers to pay close attention to the new requirements immediately.
The FCC regulations in question seemingly arise outside the scope of the agency’s typical regulatory focus. However, the FCC authority for passing these regulations flows directly from the Twenty-First Century Communications and Video Accessibility Act of 2010, S. 3304, 11th Congress, effective October 8, 2010 (the “CVAA”). Notably, although signed into law by President Obama, the law was a bipartisan measure supported unanimously in the Senate and passed by a voice vote in the House. The purpose behind the legislation was to provide greater access to online video programming to both the visually and hearing impaired. This article focuses primarily on the hearing impaired rules that require, to one extent or another, the closed captioning of television programs and motion pictures.
With certain exceptions (e.g., archived content), once a television program or motion picture has been shown on television with captions in the United States on or after September 30, 2012, the same video program must also have captions for IP-delivery. Conversely, video programs that are distributed via IP are not required to be captioned unless and until they have been shown on television with captions in the United States on or after September 30, 2012. Foreign television broadcasts do not trigger the new IP closed captioning rules.
Below are several key provisions of the CVAA and the FCC implementing regulations:
- The CVAA and FCC regulations never apply to — so that no closed captioning is required for — programming that is ONLY shown on the Internet and NEVER “published or exhibited” on television in the United States with captions.
- The strangely worded “edited for Internet distribution” provisions are designed to reach program content altered for the Internet. Absent such a requirement, it might be possible to argue that edited content is a “new” program that was never “published or exhibited” on television and, hence, not subject to the IP closed captioning requirements. This would provide an easy mechanism for closed captioning avoidance simply by altering the content for Internet distribution. On the other hand, since altered content is less likely to include pre-existing captioning, the deadline for compliance is September 30, 2013, one year after the general compliance date.
- The “live and near-live” programming requirement is designed to reach primarily simulcast retransmissions of live broadcast content such as, for example, the Olympics or other sports events. This requirement has an extended effective date of March 30, 2013.
- The mandate only applies to full-length programming. It does not apply to “clips” of such programming.
- The mandate does not apply to consumer-generated content such as the kind of video shorts commonly found on social networking sites like YouTube.
- The primary obligation applies to video programming owners although the distributors have an obligation to make certain that the content they distribute is in compliance.
- The video programming distributor must agree upon a mechanism with each video programming owner to determine whether programming is in compliance and then to make a good faith effort to identify programming subject to the requirements of the FCC regulations.
- A distributor may rely in good faith on a certification from a video programming owner that the video programming need not be captioned if the certification includes a clear and concise explanation of why captioning is not required and the distributor is able to produce the certification to the FCC in the event of a complaint.
- Nothing in the FCC regulations requires a video programming distributor to accept such a certification. Given the regulatory framework and potential risk, it seems likely that most distributors will, instead, insist on closed captioning prior to delivery especially where they are licensing a large library of content where each individual component would potentially be subject to its own closed captioning deadline.
- The FCC regulations provide for exemptions based on economic burden. These provisions will likely NOT apply to many programming providers, but they should still be explored before drawing any hard and fast conclusions.
- The FCC regulations provide for a specific complaint procedure. Complaints must be filed in writing with the FCC or the video programming distributor within 60 days after the date the complainant experienced a problem with the captioning. Video programming distributors must provide contact information for filing such complaints. A general notice on the company website will suffice provided the requisite contact information is included.
- Private rights of action are expressly prohibited.
- The CVAA “‘require[s] that, if technically feasible, apparatus designed to receive or play back video programming transmitted simultaneously with sound . . . and us[ing] a picture screen of any size be equipped with built-in closed caption decoder circuitry or capability designed to display closed-captioned video programming.’” This mandate becomes effective on January 1, 2014 and covers devices such as PCs, smartphones, and tablets (as well as any integrate software).
- The FCC adopted the Society of Motion Picture and Television Engineers Timed Text format (SMPTE ST 2052-1:2010: “Timed Text Format (SMPTE-TT)” 2010) as a safe harbor interchange and delivery format. Where use of an alternate standard results in noncompliant captions, both the video programming owner and the video programming distributor may be held responsible for violations of the new rules.
Although the new FCC closed captioning regulations may be viewed as another regulation requiring burdensome compliance, video programming owners and distributors should be equally concerned by a recently issued decision in the U.S. District Court for the District of Massachusetts. In National Association of the Deaf v Netflix, Inc., C.A. No. 11-CV-30168-MAP, 2012 U.S. Dist. LEXIS 84518 (June 19, 2012), the Court denied Netflix’s motion for Judgment on the Pleadings in a complaint for failure to provide equal access to the Netflix video streaming web site, “Watch Instantly,” for deaf and hearing impaired individuals pursuant to Title III of the Americans with Disabilities Act (the “ADA”). The Court held that the Internet is a “place of public accommodation,” a term it found was not restricted to physical places. The Court did state that Netflix may be able to demonstrate that it does not “control” the content sufficiently to provide closed captioning due to copyright issues, but the Court merely invited the parties to revisit that issue in a later stage of the litigation.
Perhaps most significantly, however, the Court found no irreconcilable conflict between the ADA and the CVAA, since any obligation Netflix may have to provide captioning under the ADA would not contravene any provision of the CVAA. Furthermore, the different CVAA time line for captioning does not create an irreconcilable conflict with the ADA since Netflix can comply with both statutes. Also, the Court found the exclusively administrative complaint procedure under the CVAA was not inconsistent with a private right of action under the ADA for the same wrong. Finally, the Court found no inconsistency between the exemptions in the CVAA for demonstrated economic burdens and the ADA since a court may conclude that the ADA also forecloses liability for a de minimus lack of captioning that is reasonable under the circumstances.
As stated by the Court, “In sum, although the subject matter of the CVAA overlaps with the ADA and the two statutes to some extent impose different requirements on distributors of video programming, such as Defendant, none of these differences create a ‘positive repugnancy’ between the two laws. [Citations omitted.] As such, the court must give effect to both statutes.” The Court further justified its holding by observing that the ADA covers a substantially broader scope of closed captioning as opposed to the narrow scope of the CVAA’s reach that is limited solely to programming first broadcast on television with closed captioning.
The Netflix decision, relying on the ADA, seemingly provides a much broader mandate than the CVAA. Most disturbingly, the ADA mandate would seem largely unregulated whereas, in sharp contrast, the CVAA and the FCC regulations are narrowly tailored to provide a balanced approach to protecting the rights of the impaired while not overly burdening the duties of the video owners and distributors. It is not clear whether the Netflix decision, which is still on the Trial Court’s calendar, will ultimately be decided in the Plaintiff’s favor. However, it does strongly suggest that providing captioning earlier, rather than later, should be a goal of any video programming owner since it will likely be a delivery requirement of most distributors and, in any event, may serve to avoid potential ADA claims.