Legal Alerts

Additional Reporting and Compliance Requirements

The Federal Communications Commission published a Final Rule in the Federal Register on Tuesday, imposing new reporting requirements on public, educational and governmental access programming with respect to the closed captioning of video programming on television. These obligations include:

1. New requirements to certify compliance with or exemption from the FCC’s closed captioning rules;
2. Introduction of a “burden-shifting” model for the resolution of complaints about closed captioning; and
3. Introduction of a new “Video Programmer Registration” system in which PEG access stations will have to provide contact information into the FCC’s website.

The rules, which apply broadly to the industry as a whole and not simply to PEG programmers, go into effect on Sept. 22.

Federal regulations governing cable television largely divide the world into video programming distributors and video programmers. PEG access stations are video programmers, not VPDs. But the new rule also defines what is a video programming owner, and this will likely impact PEG access stations. Programming owners are defined as entities that either license programming to a distributor, or act as a distributor in licensing video programming intended for households.

So while PEG access programmers are generally not considered VPDs, new regulations are being imposed upon PEG access stations either in their existing role as video programmers, or in their new role as program owners.

Previously, the obligation to provide closed captioning information fell primarily on VPDs. The obligations borne by video programmers and video program owners were, in most respects, subsidiary to the VPD’s obligation to ensure closed captioning. In this Final Rule, that has changed. Video programmers have new compliance obligations.

Most significantly, the obligation to provide closed captioning has been broadened from one primarily falling on VPDs to one falling on both VPDs and video programmers, including programming owners.

Mandatory Certification

The order puts in place new requirements to make certification of closed caption mandatory, and to make such certification directly to the FCC. The new rule makes it mandatory that each video programmer certify that its programming complies with the closed captioning rule and complies with the agency’s quality standards. The new trigger for compliance is a new section 79.1(m), “Video programmer certification,” which requires that, by July 1, 2017, or prior to making video programming available, “each video programmer shall submit a certification to the Commission through a web form located on the Commission’s website….”

Importantly for PEG programmers, video programmers may either attest to their compliance, attest to the fact that all of the video programmer’s programs are exempt from closed captioning rules (and state the category of exemption claimed by the video provider), or both certify compliance and note exemptions.

Burden Shifting for Complaints

When complaints are received about the quality or existence of closed captioning, the VPD has the initial burden of reviewing the source of the problem and whether its equipment is causing the absence of closed captioning. If the VPD cannot address the complaint upon investigation, the burden shifts to the video programmer. Complaints may be filed either with the FCC or with the VPD.

Video Programmer Registration

Previously, VPDs were responsible for providing the FCC with contact information for the receipt and handling of closed captioning complaints. This contact database was known as the “VPD Registry.” With the additional responsibility now imposed upon video programmers, the FCC is creating a Video Programmer Registration system for the handling of closed captioning complaints. Video programmers must update changed information within 10 business days. This information is to be submitted through a web form on the FCC website, through which compliance certifications will also be submitted. The Consumer and Governmental Affairs Bureau will be responsible for the development of such forms.

The Alliance for Community Media, the national association of PEG programmers and stations, is seeking a waiver of rules for PEG access programmers that distribute on exempt channels. In a letter to the FCC, the group highlighted the concern that the new definition of a video programming owner “could mean tens of thousands of ordinary citizens and organizations – Cub Scouts, gospel choirs, political candidates, and community groups of every possible stripe – will be required to certify to the Commission on a yearly basis that their programming is exempt due to their distribution on exempt PEG channels.”

Importantly, the list of “exempt programs and providers” remains unchanged. For PEG access stations, the most important of these existing exemptions include programming for which the captioning requirement has been waived by the FCC, locally produced non-news programming with no repeat value and locally produced educational programming.

The FCC’s new closed captioning rules impose obligations upon video programmers, including certification of compliance or exemption to the FCC, meeting the burden of responding to complaints about absent or erroneous closed captioning that cannot be addressed by the VPD, and providing registration and contact information to the FCC. Although the standards for exemption or waiver for PEG programming have not been changed, PEG access stations now have additional reporting requirements and compliance rules.

For more information about these rules and how they may impact your agency, contact the attorney authors of this Legal Alert listed at right in the Telecommunications practice group, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.