Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of :               | * | CSR 5444                     |
|                                  | * |                              |
| The Wild Outdoors                | ) |                              |
|                                  | * |                              |
| Video Programming Accessibility  | * |                              |
|                                  |   |                              |
| Petition for Waiver of Closed    | * |                              |
| Captioning                       | * |                              |
|                                  | ) |                              |
| Requirements                     | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: July 5, 2001 Released: July 9, 2001**

By the Chief, Cable Services Bureau:

# introduction

1\. In this Order, we address a petition for full 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 Jay
Gregory and Tammy Gregory ("Gregorys" or "Petitioners"), owners and
producers of the video program, "The Wild Outdoors." Several informal
comments were filed.[^3] For the reasons discussed herein, we grant a
partial exemption, to the extent stated herein.

# background

2\. Section 713, Video Programming Accessibility, was added to the
Communications Act by Section 305 of the Telecommunications Act of 1996.
Section 713 generally requires that video programming be closed
captioned, regardless of distribution technologies, to ensure that it is
accessible to persons with hearing disabilities.[^4] 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.[^5] In enacting Section 713, Congress recognized that in
some situations requiring that programming be closed captioning might
prove to be burdensome on video programming providers or owners, and it
authorized the Commission to adopt appropriate exemptions.[^6]
Accordingly, the Commission established transition schedules to phase in
the closed captioning of video programming, and provided for exemptions
in instances where imposing a captioning obligation would be
burdensome.[^7] As provided by the statute, the Commission adopted
exemptions for programs, classes of programs, or services for which the
provision of closed captioning would be economically burdensome to the
provider or owner of such programming.

3\. In addition, the statute provides the Commission with authority to
grant a petition for an exemption from the closed captioning
requirements upon a showing that the requirements would result in an
undue burden for the program provider or owner.[^8] Congress defined
"undue burden" to mean significant difficulty or expense.[^9] 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 operation of the provider or program owner.[^10]

4\. The Commission's rule permits any party in the video distribution
chain, including a video programming provider or program owner, to
petition for an exemption from closed captioning where it can be shown
that such requirements would impose an undue burden.[^11] Petitions must
include information that demonstrates how the statutory factors are
met.[^12] Petitioners also are instructed to submit any other
information they deem appropriate and relevant to the Commission's final
determination.[^13] While an undue burden petition is pending, the
programming that is the subject of the petition will be considered
exempt from the closed captioning requirements.[^14]

# discussion

5\. The Gregorys seek a "full exemption" from the closed captioning
requirements for their video program "The Wild Outdoors," which is
broadcast weekly on television stations in Kansas City and St. Joseph,
Missouri, and carried on The Outdoor Channel.[^15] They assert that
twenty-six shows are produced each year, each show is thirty minutes in
duration, and that providing closed captioning would constitute an undue
burden.[^16] The Gregorys state that it would cost approximately \$480
per show, or \$12,480 per year, to include "pop up"[^17] captions to the
"The Wild Outdoors" program, and that such captioning would have to be
done for the twenty-six new shows that are produced yearly.[^18] They
submit that they lack the technical capabilities to provide closed
captioning and that they would be unable to produce and market the
program if required to purchase captioning service.[^19] Petitioners
also state that they do not have the financial means to absorb the cost
of closed captioning, and if required to caption, would have to cease
production because of cost and budget constraints.[^20] In the informal
comments filed, parties generally argue that grant of an exemption from
the closed captioning rules is not warranted because the Petitioners
have not provided documentation regarding the profitability or revenue
produced by the "The Wild Outdoors" program and, as hearing-impaired
individuals, they state that they are entitled to equal access to
programs broadcast.[^21]

6\. Section 79.1(f) of the Commission's rules permits exemptions from
the closed captioning requirements provided there is sufficient evidence
to demonstrate that compliance with the requirements would cause an
undue burden. The rule provides that an exemption is warranted only when
the applicability of the closed captioning requirements would cause
significant difficulty or expense. In making that determination, we are
to evaluate petitions in accordance with the four factors set forth by
Congress in Section 713(e).[^22] Further, in the *Report and Order*, the
Commission determined that we are to consider the resources of the
individual outlet and its ability to provide closed captioning when
deciding whether to grant a petition for an undue burden exemption.[^23]
The Commission stated that the overall budget and revenues of the
individual outlet, and not simply the resources it chooses to devote to
a particular program, are relevant for these purposes.[^24]

7\. Regarding the first factor to be considered in an undue burden
analysis, the nature and cost of the closed captions, the Gregorys argue
that the cost of closed captioning will be approximately \$480 per show,
or \$12,480 per year. Petitioners assert that captioning would be a
burden and that it would cause them to have to cease production of "The
Wild Outdoors" because of cost and budget constraints. The Gregorys,
however, do not provide details regarding their financial resources.
They also do not address whether they have sought any means to recoup
the cost of closed captioning, such as through grants or sponsorships,
or through arrangements with The Outdoor Channel or program distributors
(e.g. cable systems). Moreover, Petitioners do not provide information
regarding the basis of the \$480 figure quoted as the cost for
captioning. Nor do the Gregorys indicate whether several estimates were
sought to determine the most reasonable price for the captioning
service. Without additional information on the financial resources of
Petitioners, their efforts to find companies that provide captioning at
a reasonable cost, a listing of various prices quoted, or information
concerning other possible means of gaining captioning, the impact of
implementing closed captioning is difficult to determine. The captioning
cost information submitted is not adequate to assess the impact of the
cost of closed captions. Thus, because the Gregorys have not submitted
sufficient information, we are unable to determine whether or not factor
one of the undue burden test favors granting the petition.

8\. With regard to the second factor, the impact on the operation of the
provider or program owner, the Petitioners state that they would be
unable to produce and market their program if required to provide for
closed captioning. The Gregorys explain that cost and budget constraints
are the specific reason for such inability to caption. As with the
analysis of the first factor, however, additional and more detailed
financial information would have assisted us in accessing the
reasonableness of the request for relief from the captioning
requirement. Accordingly, we are again unable to determine whether or
not the second factor favors granting the petition.

9\. With regard to the third factor, financial resources of the provider
or program owner, Petitioners indicate that their financial resources
are limited. In order to make this determination, we will examine the
overall budget and revenues of the individual outlet and not simply the
resources it chooses to devote to a particular program.[^25] Based on
the limited information the Petitioners have chosen to provide, however,
we are unable to determine whether or not Petitioners have sufficient
financial resources to comply with their closed captioning obligations.

10\. Finally, with regard to the fourth factor, the type of operations
of the program provider, Petitioners point out that their production
company is a small operation, consisting of only two individuals and
their company does not have the technical capabilities or financial
resources to caption.[^26] In addition, Petitioners state that if forced
to caption, production of the program would have to cease. The
information that Petitioners have submitted regarding operations
provides a degree of insight as to the level of difficulty the company
might encounter in seeking to comply with the captioning requirements.
It appears that production of the "The Wild Outdoors" is accomplished
with limited staff and resources. More detailed information, however,
would have been helpful in assessing whether a full exemption is
warranted.

11\. The Commission seeks to make closed captioning an integral part of
video programming. Persons with hearing disabilities should have the
same opportunity to share in the benefits provided by television
programming that others have.[^27] We believe, however, that the
petition for exemption filed by the Gregorys is not supported by
sufficient evidence to demonstrate that a full exemption is justified.
We recognize that captioning involves an expense, but the significance
of the burden here is unclear. Indeed, the information submitted by the
Gregorys is not sufficient to make a clear determination under three of
the four exemption factors. However, we do note that Petitioners have
shown clearly that the size of their operation is small, their staff is
limited, and there is an indication that the requirement to caption will
have an impact on their operation. Rather than the full exemption
requested, we believe a partial exemption is appropriate to allow
Petitioners relief from the captioning requirements for a limited period
during which, if they so chose, they may request a broader exemption on
a more complete record. The duration of this partial exemption will be
limited to one year from the release date of this *Order*. The exemption
will apply to all episodes of "The Wild Outdoors" program created during
the exemption period. We note that the partial exemption granted herein
applies solely to the Petitioners and should not, at this time, affect
the amount of programming that a broadcaster or cable network carrying
"The Wild Outdoors" is required to caption pursuant to Section
79.1(b)(1).[^28]

12\. If Petitioners elect to seek a further exemption from the closed
captioning requirements of Section 79.1, we advise Petitioners that our
rules require a detailed showing for each prong of the undue burden
exemption supported by record evidence. Failure to support a future
exemption request with adequate evidence will result in the dismissal of
their petition.

13\. During this partial exemption period, we encourage Petitioners to
explore additional or alternative sources of financing to enable them to
provide closed captioning. Petitioners also are encouraged to consider
alternative mechanisms that might constitute a reasonable substitute for
closed captioning that would make their programming more readily
accessible to persons with hearing disabilities.[^29] The *Report and
Order* noted that some alternatives may include, but are not limited to,
text or graphic display of the content of the audio portion of the
programming, or the use of sign language interpretation.[^30]

# ordering clause

14\. For the reasons set forth above, the petition for full exemption
from the closed captioning requirements of Section 79.1 of the
Commission's rules **IS DENIED**. A partial exemption **IS GRANTED** to
the extent indicated above for one year from the release date of this
*Order*.

15\. **IT IS FURTHER ORDERED,** if captioning commences on or before the
expiration of the partial waiver granted herein, that the Gregorys
inform the Commission of the date on which they commence closed
captioning of "The Wild Outdoors."

16\. This action is taken pursuant to delegated authority pursuant to
Section 0.321 of the Commission's rules.[^31]

FEDERAL COMMUNICATIONS COMMISSION

W. Kenneth Ferree

> Chief, Cable Services Bureau

#  {#section .unnumbered}

[^1]: 47 C.F.R. § 79.1.

[^2]: 47 U.S.C. § 613.

[^3]: Interested parties filed comments by e-mail following the end of
    the official comment period. Because these comments are untimely
    filed, they need not be considered. In this instance, however, we
    believe that the public interest is better served by permitting the
    most complete record possible. Therefore, we will consider these
    comments. Comments were received from the following individuals:
    John Babbitt; Brenda and Garry Mowl; Malisa W. Janes; and Willis
    Mann.

[^4]: For a more complete description of closed captioning, *see
    Implementation of Section 305 of the Telecommunications Act of
    1996 - Video Programming Accessibility,* 11 FCC Rcd 19214 (1996).

[^5]: *Implementation of Section 305 of the Telecommunications Act of
    1996 - Video Programming Accessibility,* 13 FCC Rcd 3272 (1997)
    ("*Report and Order"*).

[^6]: 47 U.S.C. § 613(d)(1).

[^7]: *Report and Order,* 13 FCC Rcd at 3342.

[^8]: 47 U.S.C. § 613(d)(3).

[^9]: 47 U.S.C. § 613(e).

[^10]: *Id.*; s*ee also* 47 C.F.R. § 79.1(f).

[^11]: 47 C.F.R. § 79.1(f).

[^12]: 47 C.F.R. § 79.1(f)(2).

[^13]: 47 C.F.R. § 79.1(f)(3).

[^14]: 47 C.F.R. § 79.1(f)(11).

[^15]: Petitioners do not explain what is meant by their request for
    "full exemption." We will assume, however, that they seek an
    exemption from having to provide any closed captioning for the
    entire period that their program is aired.

[^16]: Petition at 1.

[^17]: "Pop up" captions are similar to movie subtitles, whereby the
    captions pop a sentence or more at a time contemporaneous with the
    dialogue. Each caption is time coded so that it appears synchronous
    with the dialogue.

[^18]: Petition at 2.

[^19]: *Id.*

[^20]: *Id.*

[^21]: *See* Comments of John Babbitt, Brenda and Garry Mowl; Malisa W.
    Janes; and Willis Mann.

[^22]: 47 U.S.C. § 613(e); 47 C.F.R. § 79.1(f)(2).

[^23]: *Report and Order*, 13 FCC Rcd at 3366.

[^24]: *Id.*

[^25]: *Report and Order,* 13 FCC Rcd at 3366.

[^26]: We note that in most instances, closed captioning is not done by
    the distributor or the originator of the programming, but is
    contracted out to companies that perform such a service.

[^27]: *Id.* at 3277.

[^28]: The responsibility for compliance with the closed captioning
    rules is on video programming distributors, defined as all entities
    who provide video programming directly to customers' homes (i.e.
    broadcasters and MVPDs). The partial exemption granted herein would
    reduce the amount of programming that a broadcaster or cable network
    carrying "The Wild Outdoors" is required to caption only in the
    situation in which the amount of programming subject to closed
    captioning exemption aired by a broadcaster or cable network exceeds
    the number of hours that such broadcaster or cable network is not
    required to caption pursuant to Section 79.1(b)(1). After January 1,
    2006, when 100% of a programming distributor's new nonexempt
    programming must be captioned, an exemption granted by the
    Commission to a program producer would operate to reduce the amount
    of programming that a broadcaster or cable network is required to
    caption by the number of hours that the exempt program is aired by
    the broadcaster or cable network. 47 C.F.R. § 79.1(b)(1)(iv)*.*

[^29]: *Id*. at 3364.

[^30]: *Id.*

[^31]: 47 C.F.R. § 0.321.