Update: FCC Divides Closed Captioning Compliance Responsibility, Imposes New Obligations Directly on Programmers

UPDATE: The FCC released its Second Report and Order on February 19, 2016. The advisory below has been updated to reflect the details of the order.

At its Open Meeting on February 18, 2016, the Federal Communications Commission (FCC) adopted a Second Report and Order that impacts several aspects of the FCC’s television closed captioning requirements. Most significantly, for the first time since the FCC imposed captioning obligations, video programmers will be held directly responsible for significant aspects of the provisioning and quality of closed captions, and required to submit annual certifications to the FCC. While video programming distributors (VPDs) remain responsible for other aspects of provisioning and quality, the rules now establish a clear burden-shifting complaint process under which distributors and programmers must investigate claims within their respective areas of primary control and determine the source of the underlying captioning problem.

To summarize, the FCC’s new rules:

• Assign shared responsibility for the quality of closed captioning to VPDs and video programmers (“programmers”), with each entity responsible for closed captioning issues that are primarily within its control.
  • Now, programmers have primary responsibility, up to the point of hand-off to VPDs, for ensuring that captioning is accurate, synchronous, complete, and placed such that it is viewable and does not block other important visual content.
  • VPDs remain responsible for ensuring that captions are passed through with captioning intact and in a format that can be recovered and displayed by decoders.
• Shift some responsibility for the provisioning of captioning (that is, ensuring that programming has captions) to programmers, as the FCC will hold them directly responsible for a lack of captions on non-exempt programs.
  • However, VPDs remain primarily responsible for ensuring that non-exempt programming is provisioned with captions.
• Require programmers to file annual certifications with the FCC regarding their insertion of captions and compliance with captioning quality standards (or use of the FCC’s Best Practices), rather than continuing to certify to VPDs or making certifications “widely available” to them.
  • VPDs are obligated to confirm that programmers have so certified, and may rely on certifications in defense of complaints unless they know or have reason to know a certification is false.
• Clarify that covered video programming owners now include entities that either (i) license to a VPD (or video programming provider (VPP)) programming that is intended for distribution to residential households; or (ii) act as the VPD or VPP, and also possess the right to license to a VPD or VPP video programming that is intended for distribution to residential households.
• Revise procedures to better formalize the steps for receiving, serving, and addressing television closed captioning complaints in accordance with a burden-shifting compliance model.
  • The VPD must meet certain due diligence obligations in investigating any complaints and certify to the customer, programmer and FCC that it performed such due diligence and determined the problem(s) came from something outside the VPD’s control.
  • VPDs remain the primary contact with the customer (even for problems caused by the programmer).
  • When forwarding complaints to programmers, VPDs must either redact Personally Identifiable Information (PII) or instead describe the complaint with sufficient specificity to enable the programmer to identify and address the problem.
  • Programmers may investigate immediately upon receiving a complaint from the customer along with the VPD, but are in any event required to investigate once the VPD completes its due diligence and “burden-shifts” the complaint to the programmer.
• Establish a three-tier compliance ladder such that captioning quality complaints typically rise to Enforcement Bureau only if there is an established pattern or trend of problems, though the Enforcement Bureau still has a free hand to proceed at any point, on a case-by-case basis.
• Require both VPDs and programmers to provide contact information to the FCC using a specific new electronic form.

All that said, although the prospect of direct liability newly attaching to programmers is no doubt significant, the new rules do not appear to require particularly onerous operational changes for programmers as a practical matter, though the changes may redirect where, how, and when programmers direct their compliance efforts.

Certain of the new rules will take effect 30 days after the Second Report and Order is published in the Federal Register. However, the bulk of the new rules – including those relating to complaints, the compliance ladder, certification, and contact information/registration – are subject to review by the Office of Management and Budget (OMB) and will take effect only after OMB approves, the FCC provides notice of the approval and effective date, and its website is up and ready to receive the new certifications and contact information.

Further details on the rule changes follows.

Background

In a 2014 Report and Order and Further Notice of Proposed Rulemaking, the FCC sought comment on reapportioning captioning responsibility among the various stakeholders in the programming distribution chain. In adopting the Second Report and Order the FCC moves to a new shared-responsibility, certification and burden-shifting model that, while still imposing certain responsibilities on VPDs such as broadcasters, cable and DBS operators, newly shifts other responsibilities – particularly concerning captioning quality – directly to programmers.

Since the first captioning order issued in 1997, ultimate responsibility for compliance with FCC captioning requirements was placed on VPDs. But various parties had urged the FCC to reallocate that responsibility or to at least create a burden-shifting liability mechanism in which VPDs would initially investigate captioning problems, but could shift responsibility for resolving issues to programmers as necessary. Now, pursuant to new rules, the Commission enacts several important changes.

Responsibility

Responsibility for compliance with closed captioning quality requirements is now allocated to both VPDs and programmers with respect to the steps in the captioning process that are within each party’s primary control. In many respects, this new regulatory assignment of responsibility mirrors what has been contractually required in programmer/VPD distribution agreements in the past. In particular, under the new rules:

• Responsibility for captioning quality as delivered for distribution will fall upon programmers, up to the point of hand-off to the VPD for distribution.
• Responsibility thereafter for passing through captions, and for ensuring the captions are maintained and delivered intact, falls upon VPDs.
• VPDs remain primarily responsible for the provision of captioning – the inclusion of captions in programming in the first instance – but programmers now bear responsibility when they fail altogether to provide captions on non-exempt programming.
  • As under existing rules, VPDs can demonstrate compliance by relying on programmer certifications (see certification discussion, below), so long as the lack of captions is not due to the VPD’s failure to pass through the captioning and the VPD did not know or have reason to know that a programmer’s certification was false.
• VPDs and programmers may be jointly responsible in circumstances where violations arise from acts within the control of both entities but the responsibility will not manifest in joint and several liability.
• The FCC did not say how “responsibility” for programmers translates into potential forfeitures where the programmer does not hold an FCC license or authorization, as such entities generally must receive a citation before a forfeiture may be imposed.

Certification and Closed Captioning Contact Information

Certifications that programmers presently provide to VPDs attesting that they are in compliance with the captioning rules, that they adhere to actual-compliance or best practices regarding captioning quality, or that they are exempt, are now mandatory. Whereas certifications had previously come in two varieties – covering inclusion of captions that typically went directly to VPDs (often quarterly), and another covering adherence to the quality rules separately as made “widely available” for VPDs to access – the FCC now collapses certification into a single rule, and requires programmers to file them directly with the FCC, annually, rather than with VPDs.

• Certifications must be filed via a new online system to be established by the FCC.
• Certifications by programmers that claim exempt status must include a showing of how the exemption applies by specifying the category of exemption claimed.
• The FCC will issue a Public Notice establishing procedures and setting a deadline for the first filing or programmer certifications.
  • After that, programmers who have not previously certified must provide the requisite certifications when they first launch, and all programmers must file annually by July 1 each year. 
• No longer will VPDs need to use best efforts to obtain programmer certifications, insofar as they will be required to be filed with the FCC.
  • Similarly, VPDs will not be responsible for informing programmers of the need to provide certifications, nor will VPDs be required to check on and report programmers that do not comply with the certification requirement.
• Programmers are now required to file, through an FCC web form, the same contact information as VPDs for a person within the organization primary responsibility for captioning issues and ensuring compliance with the rules (i.e., name, title or office, telephone number, fax number, mailing address, and email address). Like VPDs, programmers must also update this information within 10 days if there is a change.
  • The FCC will issue a Public Notice to provide guidance as well as procedures and deadlines for filing contact information, as with certifications.

Complaints

In connection with this redistribution of responsibilities, the FCC also amended the captioning complaint rules. Whereas current rules assign the duty to respond to captioning complaints primarily to VPDs – though VPDs often rely on programmers to investigate and address the complaints – the revised rules incorporate a new burden-shifting model. 

Under the amended rule, VPDs still initially have to investigate and respond to captioning complaints. Moreover, the rules newly spell out the steps VPDs must take in investigating captioning complaints in the areas for which they are responsible, including not only checks of the programming stream and their equipment, but checking consumer premises equipment, if necessary.

The new rules then allow VPDs to shift responsibility for addressing the complaint to the programmer if the VPD’s investigation finds the asserted problem arises not from matters principally within the VPD’s primary control, but rather from the creation and/or delivery of the programming for distribution that is primarily in the programmer’s control.  At that point, the programmer’s duty to investigate takes over, and is coupled with new reporting requirements for the results of the investigation.

The rules delineate different procedures depending whether a consumer files his or her complaint with the FCC or directly with the VPD. Under both circumstances, though, the VPD is generally the primary point of contact throughout the complaint process, as the VPD is typically the entity with a direct relationship with the consumer, and is usually required to make certain certifications to and/or correspondence with the FCC, the programmer, and the consumer/complainant.

For complaints filed with the FCC:

• The rules regarding information that will be required from a complainant now apply to all complaints (stemming from either caption provisioning or captioning quality). It must include enough information to identify with a fair degree of specificity the program where the alleged problem arose, and the nature of the problem.
• The FCC will serve the complaint on both the VPD and the programmer simultaneously.
  • If after the due diligence described above the VPD determines the problem is within its control, it must correct the issue and provide a written response to the FCC, the programmer and the consumer within 30 days.
  • If the VPD’s investigation determines that the problem is not within the VPD’s control, the VPD will certify as much to the FCC, the programmer and the consumer, and the burden shifts to the programmer (unless the VPD finds that the problem is on the consumer’s end, in which case it informs the FCC, the programmer, and the consumer of such).
• Once the burden shifts, the programmer must investigate and attempt to resolve the problem, to the extent doing so is within its control.
  • However, the VPD is still required to continue to assist the programmer with resolving the complaint.
  • The programmer must provide a written response to the FCC, the VPD and the consumer describing the steps taken to fix the problem, or certifying that the problems are not within its control.
• If the programmer certifies that the programming stream contained fully functioning captioning at time it was handed off to the VPD, and the VPD has not determined a third-party source of the problem, the VPD and programmer must work together to determine and correct the source of the captioning problem.

Complaints may also be filed directly with the VPD, whereafter the same due diligence and hand-off process described above ensues. The main difference in this regime is that it implicates issues related to the disclosure of personally identifiable information (PII) of the complainant, as follows:

• When the VPD forwards the issue to the programmer, the consumer’s PII (name, contact information, other identifying information) must be redacted by the VPD, or the VPD can simply information from the original complaint sufficient to achieve the programmer’s investigation and resolution.
  • The VPD must also assign a unique “complaint ID number” and transmit that to the programmer (regardless whether the complaint is forwarded with redacted PII or the VPD provides information from the complaint in lieu of a copy thereof).
• If the problem is not resolved after investigation by the VPD and the programmer, and/or the VPD does not respond, and/or if the consumer is otherwise dissatisfied with the response, the consumer can refile the complaint with the FCC, invoking the steps described above for FCC-filed complaints.

Complaints also may be filed with the programmer, but will not trigger the complaint rules described above.

Compliance Ladder

While the FCC will continue to utilize the informal complaint resolution process explained above for captioning-related problems other than noncompliance with the quality standards – such as caption provisioning, equipment monitoring and maintenance, registration, and certification –  the new rules incorporate a “compliance ladder” for captioning quality issues. 

Under this approach, VPDs and programmers will be provided opportunities to take informal actions to correct captioning quality shortcomings, short of facing enforcement action by the FCC. However, the FCC’s enforcement staff will have the ability to move directly to an enforcement action, if it is determined that circumstances warrant it in any particular case.

The compliance ladder applies where captioning quality complaints indicate a “pattern or trend” – which will be defined broadly, according to the FCC – of noncompliance with the captioning quality rules, and will operate as follows:

• If the FCC sends notice of a pattern or trend of possible noncompliance, the VPD or programmer must respond within 30 days, describing the corrective measures taken.
  • These would include initial steps such as modification in the instructions given to a captioning provider going forward, repair or adjustment of equipment that caused errors, etc.
• If the FCC subsequently finds further evidence indicating a pattern or trend of noncompliance, it will provide notice thereof, and the VPD or programmer must submit within 30 days a written action plan describing additional measures it will take.
  • These would include such steps as revised personnel training, use of improved equipment, more frequent equipment checks, improved monitoring, changes in captioning vendors/procedures, etc.
  • In addition, the VPD or programmer will have to conduct spot checks of its captioning performance, and report to FCC staff on the results of the action plan and spot checks, within 180 days after submission of the action plan.
• After that, if the FCC finds continued evidence of a pattern or trend of noncompliance, the FCC will then consider, via the Enforcement Bureau, appropriate enforcement actions.

Effective Dates

Some of the new rules take effect 30 days after the order is published in the Federal Register, but the bulk of the specific new rules discussed above – including those relating to complaints, the compliance ladder, certifications, and contact information/registration – are subject to approval by the Office of Management and Budget (OMB). As such, those rules will be effective after OMB approval, the resultant effective date is published in the Federal Register, and the FCC provides public notice of the dates the rules are in effect and first-filings of certification and contact information are due, which also will require the new webpage(s) for those submissions to be up and running.