**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of:                | *  | CSR 6287                     |
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| Awakening Ministries             | ** |                              |
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| Video Programming Accessibility  | *  |                              |
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| Petition for Waiver of Closed    | ** |                              |
| Captioning                       |    |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: June 13, 2005 Released: June 15, 2005**

By the Deputy Chief, Policy Division, Media Bureau:

# introduction

1.  In this Order, we address a petition for exemption from Section 79.1
    of the Commission's rules,[^1] implementing Section 713 of the
    Communications Act of 1934, as amended (the "Act"),[^2] filed by
    Awakening Ministries ("Awakening") regarding its video program.
    Telecommunications for the Deaf, Inc. ("TDI"), National Association
    of the Deaf ("NAD"), The Deaf and Hard of Hearing Consumer Advocacy
    Network ("DHHCAN"), and Self Help for Hard of Hearing People
    ("SHHH") filed oppositions to the petition for exemption, to which
    Awakening filed a reply.[^3] For the reasons discussed below,
    Awakening's petition is denied, to the extent stated herein.

2.  In *Implementation of Section 305 of the Telecommunications Act of
    1996 -- Video Programming Accessibility,* the Commission established
    rules and implementation schedules for the closed captioning of
    video programming.[^4] In enacting Section 713, Congress recognized
    that, in certain limited situations, the costs of captioning might
    impose an undue burden on video programming providers or owners, and
    it authorized the Commission to adopt appropriate exemptions.[^5]
    Congress defined "undue burden" to mean "significant difficulty or
    expense."[^6] When determining if the closed captioning requirements
    will impose an undue burden, the statute requires the Commission to
    consider the following factors: (1) the nature and cost of the
    closed captions for the programming; (2) the impact on the operation
    of the provider or program owner; (3) the financial resources of the
    provider or program owner; and (4) the type of operations of the
    provider or program owner.[^7] A petition for exemption must be
    supported by sufficient evidence to demonstrate that compliance with
    the requirements to close caption video programming would cause an
    undue burden.[^8] Petitioners also are instructed to submit any
    other information they deem appropriate and relevant to the
    Commission's final determination.[^9]

# discussion

3.  In its Petition and Reply, Awakening asserts that its video program
    is a locally produced and distributed non-news program with no
    repeat value, pursuant to Section 79.1(d)(8) of the Commission's
    rules.[^10] However, the Commission intended that the exemption for
    locally produced and distributed non-news programming with limited
    repeat value be a narrowly focused exemption. It is intended to
    apply only to a limited class of truly local materials, including,
    for example, local parades, local high school and other
    nonprofessional sports, live unscripted local talk shows and
    community theatre productions.[^11] Moreover, the Commission
    concluded that the programming in question would have to be locally
    created and not networked outside of the local service area or
    market of a broadcast station.[^12] Awakening fails to explain or
    provide support for its contention that the scope of its program
    relates only to local issues and that the program is truly local in
    nature. In addition, because Awakening provides no information on
    the extent of distribution of its program, it is difficult to
    determine whether Petitioner's programming reaches beyond its
    locale. Therefore, because Awakening has failed to provide
    sufficient information, we are unable to determine whether the
    Section 79.1(d)(8) exemption applies here.[^13] However, the option
    of an undue burden exemption still remains available if Petitioner
    makes the proper showing.

4.  Awakening indicated that it did not have the financial resources to
    absorb the cost of closed captioning.[^14] Section 79.1(f)(11)
    provides that during the pendency of an undue burden determination,
    video programming subject to the request for exemption is exempt
    from the closed captioning requirements.[^15] Awakening has been
    exempt from the captioning requirements since the filing of its
    petition in 2003. Ideally, this period of exemption should have
    allowed Awakening the opportunity to identify additional sources of
    financial sponsorship, identify affordable captioning providers, and
    develop a solid infrastructure for its programming. We emphasize
    that this exemption was not designed to perpetually relieve a
    petitioner of its captioning obligation. Awakening has been given a
    sufficient amount of time to benefit from its exemption from the
    closed captioning requirements. Therefore, Awakening is expected to
    complete the process of making closed captioning available to
    viewers with hearing disabilities.

5.  Our decision herein is without prejudice to Awakening bringing a
    future petition for exemption that adequately documents that
    compliance with our rules continues to impose an undue burden.
    Implicit in the Section 79.1(f) requirement of a showing as to the
    financial resources of a petitioner, such as Awakening, is the
    question of the extent to which the distributors of its programming
    can be called upon to contribute towards the captioning expense.
    Thus, any subsequent petition should document whether Awakening
    solicited captioning assistance from the distributors of its
    programming and the response to these solicitations. Absent such a
    petition, Petitioner is given 3 months from the release date of this
    *Order* to come into complete compliance with the rules.

6.  Accordingly, **IT IS ORDERED** that the petition for exemption from
    the closed captioning requirements of Section 79.1 of the
    Commission's rules **IS DENIED** to the extent indicated herein**.**
    Petitioner must comply with the captioning requirements within 3
    months from the release date of this *Order.*

7.  This action is taken under delegated authority pursuant to Section
    0.283 of the Commission\'s rules.[^16]

FEDERAL COMMUNICATIONS COMMISSION

Steven A. Broeckaert

Deputy Chief, Policy Division

Media Bureau

[^1]: 47 C.F.R. § 79.1.

[^2]: 47 U.S.C. § 613.

[^3]: TDI, NAD, DHHCAN, and SHHH argue that grant of an exemption from
    the closed captioning rules is not warranted because Petitioner has
    not provided sufficient evidence to demonstrate that an exemption is
    warranted under the four statutory exemption factors.

[^4]: *Implementation of Section 305 of the Telecommunications Act of
    1996 - Video Programming Accessibility,* 13 FCC Rcd 3272 (1997)
    ("*Report and Order"*).

[^5]: 47 U.S.C. § 613(d)(1).

[^6]: 47 U.S.C. § 613(e).

[^7]: *Id.*; *see also* 47 C.F.R. § 79.1(f).

[^8]: 47 C.F.R. § 79.1(f)(2).

[^9]: 47 C.F.R. § 79.1(f)(3).

[^10]: Petition and Reply at 1.

[^11]: *See Report and Order,* 13 FCC Rcd 3272, 3348 (1997).

[^12]: *Id.*

[^13]: *See* 47 C.F.R. § 79.1(d)(8)*.*

[^14]: Petition at 1.

[^15]: 47 C.F.R. § 79.1(f)(11).

[^16]: 47 C.F.R. § 0.283.