Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | CG Docket No. 05-231         |
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| Closed Captioning of Video       | ** |                              |
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| Telecommunications for the Deaf, | *) |                              |
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**NOTICE OF PROPOSED RULEMAKING**

**Adopted: July 14, 2005 Released: July 21, 2005**

**Comment Date: (45 days after publication in the Federal Register)**

**Reply Comment Date: (60 days after publication in the Federal
Register)**

By the Commission: Chairman Martin; Commissioners Abernathy, Copps, and
Adelstein issuing

> separate statements.

**TABLE OF CONTENTS**

**[Paragraph Number]{.underline}**

I. INTRODUCTION 1

II\. BACKGROUND 4

> A. History of Closed Captioning 4
>
> B. Closed Captioning Orders 6
>
> C. TDI Petition 8

III\. Discussion 9

> A. General Considerations 9
>
> 1\. Non-technical Quality Standards for Closed Captioning 10
>
> 2\. Technical Quality Standards 17
>
> 3\. Monitoring of Captioning 21
>
> 4\. Complaint Procedures 26
>
> 5\. Accessibility of Contact Information 32
>
> 6\. Standardized Captioning Complaint Form 35
>
> 7\. Fines and Penalties for Failure to Caption 36
>
> 8\. Compliance Reports 40
>
> 9\. Use of Electronic Newsroom Technique 44
>
> 10\. Availability of Captioners 49
>
> 11\. Electronic Filing of Exemption Requests 52
>
> B. Other Issues Raised in the TDI Petition 54
>
> 1\. Pass Through of Original Captioning 55
>
> 2\. Reformatting of Closed Captions 56
>
> 3\. Benchmark Compliance Audits 57

IV\. CONCLUSION. 58

V. procedural matters 59

VI\. ordering clause......................................... 67

AppenDICES:

Appendix A -- TDI's Sample TV Captioning Complaint Form

Appendix B -- Initial Regulatory Flexibility Analysis

# INTRODUCTION

1.  In this Notice of Proposed Rulemaking (NPRM), we grant a petition
    for rulemaking and initiate a proceeding to examine the Commission's
    closed captioning rules.[^1] Specifically, we seek comment on: 1)
    the current status of the Commission's closed captioning rules in
    ensuring that video programming is accessible to deaf and hard of
    hearing Americans and whether any revisions should be made to
    enhance the effectiveness of those rules; and 2) several compliance
    and quality issues relating to closed captioning that were raised in
    a Petition for Rulemaking filed by Telecommunications for the Deaf,
    Inc. (TDI), the National Association of the Deaf, Self Help for Hard
    of Hearing People, Inc., the Association for Late Deafened Adults,
    and the Deaf and Hard of Hearing Consumer Advocacy Network.[^2]

2.  In 1996, Congress added section 713 to the Communications Act of
    1934, as amended, (the Act) to generally require that video
    programming be closed captioned to ensure access to people with
    hearing disabilities, and required the Commission to adopt rules and
    implementation schedules for the closed captioning of video
    programming.[^3] The Commission has noted that closed captioning can
    be an important learning tool for both children with hearing
    disabilities and children without hearing disabilities learning to
    read, and for millions of persons learning English as a second
    language in improving their reading comprehension and spelling
    skills.[^4]

3.  The Commission has now had more than seven years experience with the
    closed captioning rules since they became effective on January
    1, 1998. At the time the Commission adopted the closed captioning
    rules, it indicated that it would review the rules after closed
    captioning was implemented to determine whether its expectations
    regarding closed captioning were being met.[^5] We initiate this
    review as a follow-up to the Commission's prior assurances and in
    response to the *TDI Petition*. We share a common goal with TDI in
    ensuring that closed captioning works as Congress intended, and in
    making sure the rules adopted in 1997 are consistent with Congress'
    goal that "all Americans ultimately have access to video services
    and programs, particularly as video programming becomes an
    increasingly important part of the home, school, and
    workplace.\"[^6] We also note that, effective January 1, 2006, all
    non-exempt new English language programming must be captioned.[^7]
    We believe this rulemaking provides an excellent opportunity to
    ensure that video programming distributors are prepared to fulfill
    this requirement.

# BACKGROUND 

## History of Closed Captioning 

4.  Closed captioning of television programs began in the 1970's.[^8]
    Closed captioning is hidden as encoded data transmitted within the
    vertical blanking interval (VBI) of the television signal which,
    "when decoded, provides a visual depiction of information
    simultaneously being presented on the aural channel (captions)."[^9]
    To implement the Television Decoder Circuitry Act of 1990
    (TDCA),[^10] the Commission adopted rules that require all
    television receivers with screen sizes 13 inches or larger to be
    capable of receiving and displaying closed captions.[^11] Although
    there was a significant increase in captioning following the
    enactment of the TDCA, Congress remained concerned that as the
    number of channels of video programming continues to increase and
    the variety of programming offerings expands "video programming
    through all delivery systems should be accessible."[^12]

5.  Prior to 1996, closed captioning of video programming was provided
    through the voluntary efforts of the video programming industry and
    private entities.[^13] Section 305 of the 1996 Act added a new
    Section 713, Video Programming Accessibility, to the Act.[^14]
    Section 713 required the Commission to prescribe rules and
    implementation schedules for captioning of video programming.[^15]
    In enacting Section 713, Congress generally required that video
    programming be closed captioned, regardless of distribution
    technology,[^16] to ensure access to persons with hearing
    disabilities. Section 713 is intended to further Congress' goal "to
    ensure that all Americans ultimately have access to video services
    and programs, particularly as video programming becomes an
    increasingly important part of the home, school, and
    workplace."[^17]

## Closed Captioning Orders

6.  In accordance with Section 713, the Commission adopted rules in 1997
    for closed captioning of video programming.[^18] These rules require
    that all video programming distributors, including over-the-air
    broadcast television services and all multichannel video programming
    distributors ("MVPDs") (including cable television, direct-to-home
    satellite services, wireless cable systems, satellite master antenna
    television, and open video systems)[^19] increase gradually the
    amount of captioned programming offered and, generally require that
    100% of new programming be closed captioned as of January 1, 2006,
    subject to certain exceptions.[^20] New programming is defined as
    programs first published or exhibited on or after January 1,
    1998.[^21] Additionally, these rules established a transition period
    for captioning of pre-rule programming, and require that 75% of all
    pre-rule nonexempt programming delivered to consumers during the
    first quarter of 2008 and thereafter must be captioned.[^22]
    Pre-rule programming is defined as programs first published or
    exhibited before January 1, 1998.[^23] The rules also require that,
    pursuant to an established phase-in schedule, as of January 1, 2010,
    100% of non-exempt new Spanish language programming be closed
    captioned,[^24] and, as of January 1, 2012, and thereafter, 75% of
    non-exempt Spanish language pre-rule programming be closed
    captioned.[^25]

7.  In July 2000, the Commission amended the closed captioning rules to
    require an increasing amount of digital programming to be captioned
    in a format that can be recovered and displayed by decoders meeting
    the EIA-708 standard.[^26] The *DTV Closed Captioning Order* adopted
    the same benchmark transition period for new and pre-rule digital
    programming as exists for analog programming. The *DTV Closed
    Captioning Order* also established July 1, 2002, as the date for
    determining whether digital programming is new programming or
    pre-rule programming.[^27] The rules for digital captioning became
    effective July 1, 2002.[^28] Therefore, as of January 1, 2006, 100%
    of new nonexempt analog *and* digital English language video
    programming must be captioned. In the *DTV Closed Captioning Order*,
    the Commission observed that viewers will be able to watch digital
    programming on existing analog displays using a DTV converter, and
    alerted programming distributors that in order for them "to count
    captioned digital television programming toward their closed
    captioning requirements in 47 C.F.R. Section 79.1, they must also
    transmit captions that can be decoded by the decoder in that analog
    set."[^29]

## TDI Petition

8.  On July 23, 2004, Telecommunications for the Deaf, Inc. filed a
    Petition for Rulemaking, requesting that the Commission initiate a
    rulemaking to "establish additional enforcement mechanisms to better
    implement the captioning rules, and to establish captioning quality
    standards to ensure high quality and reliable closed
    captioning."[^30] The *TDI* *Petition* specifically requests that
    the Commission: 1) create a Commission-maintained database with
    updated contact information for video programming distributors and
    providers and a captioning complaint form; 2) establish compliance
    reporting requirements and undertake audits to ensure effective
    implementation of the captioning requirements; 3) revise the
    complaint rules to require responses to consumer complaints
    regarding captioning quality issues within 30 days; 4) establish
    fines or penalties for non-compliance with the captioning rules; 5)
    require continuous monitoring of captioning by the video programming
    distributor or provider to ensure that technical problems are
    remedied promptly and efficiently; 6) require video programming
    distributors to reformat edited or compressed captioning; 7) require
    that for a program to be considered "captioned" under the existing
    rules, it must meet minimum standards set by the Commision for
    completeness, accuracy, readability, and synchronicity with the
    audio portion of the program; and 8) adopt non-technical standards
    to ensure that video programming is "fully accessible" to deaf and
    hard of hearing individuals.[^31] More than 90 comments were filed
    in response to the *TDI Petition*. The majority of these commenters
    supported the *TDI Petition*.[^32] The National Cable &
    Telecommunications Association (NCTA) opposed the *TDI Petition*,
    stating that it provides no cause for revisiting the captioning
    rules, and noting that the rules "established a careful balance of
    interests which has resulted in an enormous increase in the amount
    of captioned programming over the last several years."[^33]

# Discussion

## General Considerations

9.  The main objective of this NPRM is to seek comment on whether our
    closed captioning rules as currently constituted are the most
    effective and efficient way of ensuring that television viewing is
    available to the millions of deaf and hard of hearing Americans. We
    also seek comment on rules that the Commission may adopt to enhance
    the effectiveness of closed captioning.

10. ***Non-technical Quality Standards for Closed Captioning***.
    Currently there are no standards for non-technical quality aspects
    of closed captioning. The Commission has considered non-technical
    aspects of captioning to include matters such as accuracy of
    transcription, spelling, grammar, punctuation, placement,
    identification of nonverbal sounds, pop-on or roll-up style,[^34]
    verbatim or edited for reading speed, and type font.[^35] In the
    *1997 Closed Captioning NPRM*, the Commission recognized "that
    captions must provide information substantially equivalent to that
    of the audio portion of a video program in order to be useful and
    ensure accessibility to individuals with hearing disabilities," and
    "that it is well within the Commission's discretion to consider
    whether to adopt rules, standards, or guidelines that address these
    matters."[^36]

11. In adopting the closed captioning rules, the Commission declined to
    set standards, but instead encouraged video programming providers to
    establish standards through their arrangements and contracts with
    captioning companies.[^37] The Commission expected quality standards
    to become more common in captioning contracts.[^38] In the *Closed
    Captioning Report and Order*, the Commission rejected the idea that
    program producers would not strive for high quality captioning via
    their contracts simply because they are not the actual consumers of
    the captions, stating that "consumers can demonstrate their
    satisfaction or lack of satisfaction with what is shown through
    their purchase of advertised products, subscriptions to programming
    services, or contacts with the video programming providers or video
    programmers."[^39] The Commission stated it would consider
    revisiting this issue if it becomes apparent that the Commission's
    assumptions regarding the marketplace incentives for quality
    captioning were incorrect.[^40]

12. TDI contends that market incentives have been insufficient to
    address non-technical quality issues, resulting in little
    improvement in captioning quality over the past five years. TDI
    asserts there are "widespread problems" with non-technical
    captioning quality based upon complaints they have received, and
    urges the Commission to seek comment on establishing such
    standards.[^41] NCTA, however, states that a rule regulating caption
    quality would be counterproductive and burdensome.[^42] NCTA states
    that although the accuracy of captions can suffer, especially when
    the captioning must be done quickly and at the last minute, every
    effort is made to avoid these errors.[^43] Further, NCTA contends
    that cable networks have "significant" competitive and branding
    incentives to provide quality captions, that program networks often
    include accuracy requirements in their contracts with captioning
    agencies, and that cable networks monitor the quality of the
    captions, either in-house or through their contracts.[^44] Based on
    the record before us, we seek comment on certain aspects of
    non-technical quality issues.[^45]

13. *Non-technical Quality Issues.* Should the Commission establish
    standards for the non-technical quality of closed captioning? Are
    there non-technical quality issues other than those generally
    considered (accuracy of transcription, spelling, grammar,
    punctuation, placement, identification of nonverbal sounds, pop-on
    or roll-up style, verbatim or edited for reading speed, and type
    font) that the Commission should consider? What would constitute an
    "error"? Are there reasons not to set standards for non-technical
    quality aspects of closed captioning?

14. *Costs.* What would the costs be to programmers and distributors of
    mandating non-technical quality standards? Does the captioning pool
    consist of an adequate number of competent captioners to meet a
    non-technical quality standard mandate?

15. *Pre-produced Programs.* We also seek comment on whether any
    non-technical quality standards should be different for pre-produced
    programs versus live programming. For example, when this issue was
    raised in 1997, one commenter proposed that the Commission set a
    maximum error rate of no more than two tenths of a percent (0.2%) of
    the words in a prerecorded show, and require that no more than 3% of
    the words in a live show may be wrong, misspelled, or absent.[^46]
    We seek comment on whether these error rates are appropriate and, if
    not, what error rates would be appropriate.

16. *Responsibility.* The *TDI Petition* notes that many distributors
    disclaim responsibility for the quality of captioning: "Even more
    disturbing is a recent trend among providers to include a disclaimer
    in its broadcast stating that the provider is not responsible for
    the correctness of captions."[^47] Additionally, TDI asserts that
    the programming distributors should be held ultimately responsible
    for monitoring captioning.[^48] TDI argues that if the text is full
    of errors, it should not be counted as captioned for purposes of
    meeting the captioning requirements.[^49] We seek comment on these
    assertions.

17. ***Technical Quality Standards***. In the *Closed Captioning Report
    and Order,* the Commission adopted a "pass through" rule to ensure
    that programming with closed captions is delivered in a complete
    manner with the belief that the enforcement of this rule, the
    captioning requirements, and Sections 15.119 and 73.682 would ensure
    the technical quality of captioning.[^50] The Commission stated: "We
    find it unacceptable that existing captions might fail to be
    transmitted in a complete and intact manner to consumers. The
    reported problems -- such as captions not being delivered intact,
    captions not synchronized with the video portion of the program,
    captions ending before the end of the programming, programming
    without captions even though the program indicated captioning or
    captions transmitted during one offering of the program but not
    another -- deny accessibility to persons with hearing disabilities
    even when captioning seems to be available."[^51] The "pass through"
    rule requires video programming providers to "pass through any
    captioning they receive that is included with the video programming
    they distribute as long as the captions do not need to be
    reformatted."[^52]

18. In the *TDI* *Petition*, TDI asserts that the "pass through"
    requirement[^53], along with Sections 15.119 and 76.606, have not
    been sufficient to prevent and remedy technical problems that result
    in captions not being delivered intact, thus not providing "full
    accessibility" to video programming as required by Section 713 of
    the Act.[^54] TDI asks the Commission to adopt additional mechanisms
    and procedures to prevent technical problems from occurring and to
    expeditiously remedy any technical problems that do arise. TDI notes
    that the following types of technical problems occur
    frequently:[^55]

-   Captions turn off ten minutes before the end of national network
    programming.

-   Captions disappear one hour into a two-hour movie.

-   Captions are absent, although TV programming schedules label the
    show as captioned.

-   Captions are illegible, including white boxes and overtypes.

-   Captions appear on a national program in one locality but not
    another.

-   Captions are missing from repeats of previously aired captioned
    programming or are scrambled and unreadable.

19. The *NCTA Opposition* states that the *Petition* contains no
    evidence that the "pass through" rule is being ignored or that the
    technical quality issues mentioned relate at all to this rule.[^56]
    Further, NCTA asserts that "so far as we are aware, the availability
    of captions in any particular program from its creation to the
    transmission to cable operators and other multi-channel distributors
    is routinely checked, either through active monitoring or spot
    checks."[^57] NCTA states that the "pass through" rule does not need
    modification, and that technical quality standards should not be
    imposed by the Commission.[^58]

20. The Commission seeks comment on the need for additional mechanisms
    and procedures in addition to the "pass through" rule to prevent
    technical problems from occurring and to expeditiously remedy any
    technical problems that do arise. Are such mechanisms and procedures
    warranted? If so, what form should they take? We seek comment on the
    kinds of technical problems experienced by consumers as well as
    distributors.

21. ***Monitoring of Captioning***. In the *Closed Captioning Report and
    Order*, the Commission stated that video programming distributors
    are responsible for monitoring and maintaining their equipment and
    signal transmissions to ensure that the captioning that is included
    with the programming actually reaches consumers.[^59] However, the
    Commission did not establish specific rules or steps that video
    programming distributors would be required to follow. The Commission
    placed the responsibility on the programming distributors to take
    any corrective measures necessary to ensure the delivery of captions
    and to make sure that the equipment used is working properly. The
    Commission also allowed distributors to rely on certifications from
    video programming suppliers stating that the programming actually
    contains captions.[^60]

22. In its 1996 Report to Congress on Video Programming Accessibility,
    the Commission stated:

> Problems also occur because of inadvertent errors in the transmission
> of captions by the broadcaster, distributor, cable network, local
> station or cable system operator. In many cases, the captions have
> been stripped, moved to the wrong line of the VBI \[vertical blanking
> interval\] or flipped onto the wrong field of line 21 by maladjusted
> signal processing equipment. The critical technical steps of a quality
> captioning service are accurate encoding, transmission reception and
> decoding of the signal. To avoid such errors, it is important that the
> captioned signal be monitored as it is fed, monitored during the
> duplication process and checked to ensure that the equipment used is
> not inadvertently stripping the captions, moving them onto the wrong
> line or placing them in the wrong field.[^61]

23. TDI asserts that consumers continue to face many technical problems
    that could be eliminated if "video programming distributors and
    providers had mechanisms in place to monitor captioning and
    routinely check their engineering equipment and procedures."[^62]
    However, TDI states that based on feedback from their consumers,
    many providers and distributors do not know that problems exist
    until they receive a consumer complaint.[^63] TDI raises further
    concern that without continuous monitoring and equipment
    maintenance, many video programming distributors may be counting
    certain programming as captioned when in fact the captions were not
    delivered with the programming.[^64] TDI also raises the concern
    that programming guides may list rebroadcast or time compressed
    material as captioned even though no captions appear, compounding
    this problem, an issue that was also raised by commenters in
    response to the *2004 Video Programming NOI*.[^65] TDI asks the
    Commission to not allow incomplete or garbled captioning caused by
    technical problems to be counted toward compliance.[^66]

24. NCTA argues that it is unnecessary and impractical for the
    Commission to require constant monitoring of equipment.[^67] NCTA
    states that cable operators routinely monitor their equipment to
    ensure high quality transmissions of each signal's video, audio, and
    line 21 closed captioning material.[^68] NCTA also asserts that
    program networks monitor their network transmission to ensure the
    quality of each program's technical specifications, including video,
    audio, and closed captions.[^69] NCTA states that the Commission\'s
    rules strike a careful balance of interests to ensure that the
    responsibility for captioning is not unduly burdensome, and that the
    video programming distributor\'s responsibility is to ensure that
    the equipment used to transmit 500 plus channels to viewers is
    capable of passing the captioning through, along with the
    programming, and is in proper working order.[^70]

25. We seek comment on video programming distributors' responsibility to
    monitor and maintain their equipment and signal transmissions.
    Should distributors have specific mechanisms in place for monitoring
    and maintenance? If so, what should these mechanisms consist of?
    What impact would such mechanisms have on distributors? We also seek
    comment on alternate ways to ensure that captioning is delivered
    intact to consumers. Lastly, we seek comment on whether distributors
    are monitoring their programming and advertising materials to ensure
    that a program advertised to be closed captioned is indeed closed
    captioned.[^71]

26. ***Complaint Procedures***. In the *1997 Closed Captioning NPRM* ,
    the Commission required that complaints regarding closed captioning
    first be directed to video programming distributors because it
    believed this approach would "lead to quicker action to resolve a
    complaint than if the complaint were filed directly with the
    Commission."[^72] Pursuant to these rules, complaints must be filed
    with the video programming distributor prior to the end of the
    calendar quarter following the calendar quarter in which the alleged
    violation has occurred, and video program distributors must respond
    to the complaint no later than 45 days after the end of the quarter
    in which the violation is alleged to have occurred or 45 days after
    receipt of the written complaint, whichever is later.[^73] If a
    consumer mistakenly sends a complaint to the wrong distributor
    (*e.g.*, to a cable company instead of the local TV station that the
    cable company carries), or if the programming about which the
    consumer complains is exempt from the closed captioning rules
    pursuant to Section 79.1(e)(9), the distributor is required to
    either forward the complaint to the programmer within seven days, or
    return the complaint within seven days to the consumer and to
    provide the name and address of the correct distributor to whom the
    complaint should be sent.[^74] If a video programming distributor
    fails to respond to a complaint or a dispute remains after the
    initial attempt at resolution by the video programming distributor
    and the complainant, the complaint may be filed with the Commission
    within 30 days after the time allotted for the video programming
    provider to respond.[^75] The rule specifies the information that
    the complainant and the distributor must provide to each other and
    to the Commission, and states that if the Commission determines that
    a violation has occurred, appropriate penalties may be imposed.[^76]
    In adopting these procedures, the Commission stated its belief that
    these procedures would provide consumers with an effective and
    easily accessible complaint resolution mechanism, while freeing the
    programming industry of any unnecessary burdens.[^77]

27. On reconsideration, the Commission denied petitioners' attempts to
    eliminate the requirement that consumers contact the provider first
    as well as petitioners' request to decrease the time in which video
    programming distributors must respond to complaints.[^78]
    Petitioners had argued on reconsideration that at least complaints
    alleging failure to pass through captioning should be handled on a
    more expedited basis than the time frame adopted by the Commission
    in the *Closed Captioning Report and Order*.[^79] The Commission
    reasoned that the adopted process was appropriate for complaints
    regarding the measurement of compliance with the required amounts of
    captioning (*i.e.*, benchmarks) since they are calculated on a
    quarterly basis.[^80] In order to avoid confusion, the Commission
    determined that all complaints of whatever nature (including
    complaints alleging failure to pass through) would be handled in the
    same fashion.[^81]

28. *TDI's Petition* states that under the current rules, four months
    could pass before a video programming provider is legally required
    to respond to a complaint, and in the interim, the consumer may
    suffer from lack of access to the television video programming.[^82]
    TDI notes that this problem is compounded when the consumer is
    paying the high costs of cable, satellite or other distribution
    services, but is not receiving captioned programming, "so that in
    effect they have no access to the services for which they are paying
    premium prices."[^83] TDI suggests the Commission revise the
    complaint process to establish two categories of complaints:
    complaints regarding the number of hours captioned; and complaints
    regarding other captioning issues not related to the number of hours
    captioned (*e.g*., technical problems resulting in missing or
    garbled captions).[^84] TDI also encourages the Commission to
    develop and make available on its website a standard captioning
    complaint form that may be used by consumers to file written
    complaints with the relevant video programming
    distributor/producer.[^85]

29. NCTA opposes any change to the closed captioning complaint process.
    It states that *TDI's Petition* provides no evidence that adopting a
    new rule is either a necessary or appropriate response.[^86] NCTA
    states that, with respect to cable television, in the normal course,
    captioning questions can be quickly resolved, but when necessary, it
    may require time to determine why a particular show is not
    captioned. NCTA questions whether cable operators or programmers
    have waited until the end of the calendar quarter to respond to
    complaints. Lastly, NCTA notes that cable customer service rules
    contain aggressive guidelines for resolving service interruptions
    and responding to consumer inquiries.[^87]

30. As the Commission noted in the *Reconsideration Order*, part of the
    rationale for giving video programming distributors additional time
    to respond to consumer complaints was that distributors might have
    to seek additional information from various video programming
    providers before responding to consumer complaints.[^88] Given that,
    effective January 1, 2006, all nonexempt new programming must be
    captioned, it may be inconsistent to allow video programming
    distributors more than 45 days in which to contact a programmer to
    determine whether a given program is exempt before responding to a
    captioning complaint. In addition, it may be appropriate that a
    consumer who is faced with a sudden loss of captioning should have a
    quicker means of recourse than writing a complaint and waiting for a
    response that could take two months or longer.

31. As such, we seek comment on whether the Commission should revise the
    current rule to allow for shorter complaint and response times. We
    seek comment on what those time frames should be. We also seek
    comment on whether complainants should be permitted to complain
    directly to the Commission without complaining to the video
    programming distributor first. If we decide to retain the current
    complaint process, should the filing and response deadlines be
    revised, and if so, how?

32. ***Accessibility of Contact Information.*** We seek comment on
    whether the rules should be amended to allow consumers to complain
    about closed captioning directly and immediately to video
    programming distributors either via email, phone or fax; and,
    whether distributors should be required to provide the name or phone
    numbers for customer services on their websites, and in bills and
    telephone directories. We also seek comment on whether placement of
    customer service information in telephone directories and on
    websites may be appropriate in the case of broadcast services, since
    these are not subscription services with corresponding bills.

33. The *TDI Petition* requests that the Commission require video
    programming distributors to post complete contact information on
    their websites, update this information on a routine basis, and
    provide the information to the FCC for posting on its website. NCTA
    argues, however, that the Commission should not adopt a rule
    requiring that video programming distributors that send bills to
    consumers be required to include in those bills specific contact
    information for submitting captioning complaints. NCTA notes that
    cable operators already have customer service representatives (CSRs)
    that can assist customers in resolving complaints, making a separate
    point of contact for captioning complaints unnecessary.[^89] We seek
    comment on this issue.

34. Given that the method by which deaf and hard of hearing people
    communicate by telephone with hearing people differs from the method
    used when two hearing people communicate, we seek comment on the
    experiences that deaf and hard of hearing people have had when
    contacting video programming distributors to complain or ask
    questions, and seek comment from distributors regarding their
    experiences in this area.[^90]

35. ***Standardized Captioning Complaint Form***. The *TDI Petition*
    asked the Commission to develop and make available on its website a
    captioning form that consumers can opt to use when filing written
    complaints with a video programming distributor/producer similar to
    the Commission's Form 475 used for general telephone complaints and
    Form 501 for slamming complaints.[^91] TDI stresses that this
    complaint form should be optional so that the consumer has other
    options when filing complaints and submitted a sample complaint form
    as Exhibit A in their Petition.[^92] The Commission seeks comment on
    whether such a captioning complaint form would be useful.

36. ***Fines and Penalties for Failure to Caption.*** Neither the
    Commission's closed captioning rules nor the Commission's Guidelines
    for Assessing Forfeitures set specific forfeiture amounts for
    violations of the closed captioning rules.[^93] The *TDI Petition*
    argues that as new, more technically-advanced methods of
    transmitting programming, such as digital television, become more
    prevalent, the marketplace has failed to ensure compliance with the
    captioning requirements.[^94] The *TDI Petition* contains the
    results of a recent nationwide sampling of locally broadcast digital
    television programming, conducted by WGBH's National Center for
    Accessible Media (NCAM), which showed that 35% of local digital
    television stations [failed to provide any closed
    captioning]{.underline} and only 20% provided captions in compliance
    with the Commission's caption decoder rules (47 CFR § 15.122).[^95]

37. TDI proposes the establishment of punitive measures, such as
    specific fines, for noncompliance with the Commission's captioning
    rules.[^96] TDI states that "\[s\]uch a forfeiture would create a
    financial incentive for video programming distributors or providers
    to comply with the Commission's benchmarks," and proposes an \$8,000
    per violation base forfeiture amount for violations of the
    captioning benchmark requirements, with each hour of programming
    below the applicable benchmark being counted as a separate
    violation.[^97] TDI suggests that, in January 2006, when 100%
    captioning is required for new non-exempt programming, the \$8,000
    per violation fine should apply for every hour of new programming
    that is not captioned.[^98] TDI believes that increased enforcement
    measures are required to provide incentives for the regulated
    industry to comply with the rules and to ensure captioning quality,
    reliability, and availability.[^99]

38. NCTA argues that these suggested punitive measures are unwarranted,
    and that the authority already exists for the Commission to impose
    penalties for violations of the rules. NCTA argues that occasional
    glitches provide no basis for assuming each program that fails to
    provide the required captions merits a fine.[^100] NCTA states that
    fines may be appropriate in the case of willful or repeated failure
    to comply with the rules, but that inadvertent mistakes or
    occasional technical problems provide no basis for assuming each
    program that fails to provide required captions merits a fine.[^101]

39. Section 79.1(g)(8) states: "If the Commission finds that a violation
    has occurred, penalties may be imposed, including a requirement that
    the video programming distributor deliver video programming
    containing closed captioning in an amount exceeding that specified
    in paragraph (b) of this section in a future time period."[^102] The
    Commission's *Forfeiture Guidelines* do not contain any specific
    guidelines regarding forfeitures for violations of the closed
    captioning rules. We seek comment on whether the Commission should
    establish specific per violation forfeiture amounts for
    non-compliance with the captioning rules, and if so, what those
    amounts should be. We direct commenters to Section 1.80(b) of the
    Commission's rules for guidance on existing forfeitures for
    violations of other Commission rules.

40. ***Compliance Reports***. In the *Closed Captioning Report and
    Order*, the Commission placed the responsibility for compliance with
    the closed captioning requirements on video programming
    distributors, both for efficient monitoring and enforcement of the
    rules, as well as to allow for a convenient, single entity to
    address complaints.[^103] The Commission did not adopt reporting
    requirements for distributors or require the filing of periodic
    reports showing compliance with the closed captioning rules, stating
    that such requirements would be unduly burdensome and
    administratively cumbersome.[^104] In order to address potential
    complaints, the Commission stated that video programming
    distributors are required to "maintain records sufficient to
    demonstrate compliance."[^105] On reconsideration, the Commission
    did not disturb its decision regarding compliance reporting.[^106]

41. TDI asserts that the lack of reporting requirements "has seriously
    hampered the effectiveness of the captioning rules and the ability
    of captioning consumers, their advocates, and the Commission itself
    to monitor compliance with the captioning rules."[^107] TDI states
    that with very few exceptions, "the Commission and captioning
    consumers have no means of determining whether video programming
    distributors have complied with the captioning benchmarks for each
    channel, for each calendar quarter, since the rules went into
    effect\[.\]"[^108] Further, TDI states that, "\[p\]etitioners fear
    that the lack of a benchmark reporting requirement has created a
    situation where many providers are unaware that they are out of
    compliance with the benchmarks\[.\]"[^109] TDI asserts that even
    after the January 1, 2006, deadline, "the creation of a benchmark
    reporting requirement would assist in the determination of whether
    providers are in compliance with the Commission's benchmarks for
    pre-rule non-exempt programming and for Spanish-language
    programming."[^110] TDI proposes that the Commission require MVPDs
    and broadcasters to certify compliance with the captioning rules to
    the Commission, on a quarterly basis, within 30 days following the
    end of the previous quarter.[^111]

42. NCTA argues that the Commission should not impose burdensome
    recordkeeping requirements and notes that the Commission previously
    rejected a proposal to enforce its captioning rules through a
    reporting obligation.[^112] NCTA also notes that the Commission
    allows cable operators to rely on certifications of compliance from
    various networks they carry, and that many cable operators request
    these certifications in writing.[^113] NCTA states that, with
    several hundred channels on a given cable system, this is the only
    practical way for a cable operator to confirm it is in compliance
    with the rules.[^114] NCTA argues that maintaining and posting
    captioning reports on a quarterly basis would impose a significant
    paperwork and recordkeeping burden on the part of cable
    operators.[^115]

43. The Commission seeks comment on requiring video programming
    distributors to file compliance reports as to the amount of closed
    captioning they provide. Should the Commission require such reports
    to be filed? If so, how often should they be filed? How should they
    be filed? Should the reports include information relating to new
    non-exempt programming or only information pertaining to pre-rule
    non-exempt and Spanish-language programming? How would a reporting
    requirement be implemented? In the event we were to impose a
    reporting requirement for closed captioning, we seek comment on
    whether distributors would be able to rely on certifications from
    programmers that the programming contains closed captioning. Are
    there alternative methods to verify compliance? If we do or do not
    impose a reporting requirement, we seek comment on whether the
    Commission's rules should be amended to place a greater burden on
    video programming distributors to ensure that the programming they
    carry is captioned, regardless of the assurances they receive from
    programmers. We seek comment on any other issues regarding
    compliance reporting requirements.

44. ***Use of Electronic Newsroom Technique***. In the *Closed
    Captioning Report and Order*, the Commission declined to adopt any
    limits on the methodology that can be used to create closed
    captioning and permitted the use of electronic newsroom technique
    (ENT), in which the captions come from the text in the station's
    news script computers.[^116] Only text transmitted from the
    scripting computers to the teleprompters is captioned.[^117]
    Unscripted material, such as breaking news, live reports from the
    field, and some weather and sports reports, that do not appear on
    the teleprompter are not typically captioned by this method.[^118]

45. In the *Closed Captioning Report and Order*, the Commission allowed
    the use of ENT so as not to place any limits on the methodology used
    to create closed captioning and because of the record's conflicting
    accounts as to the number of real-time captioners available for live
    newscasts where ENT could be used as an alternative.[^119] At the
    same time, the Commission raised concerns that since certain
    portions of live newscasts remain uncaptioned when using ENT, this
    method is not the "functional equivalent" of the audio portion of
    the programming.[^120] On reconsideration, the Commission noted the
    limitations of ENT, especially with regard to field reports and late
    breaking weather and sports reports, and narrowed the circumstances
    in which captions created with ENT could be counted toward the
    closed captioning requirement.[^121] As a result of that decision,
    as of January 1, 2000, most video programming providers in the
    largest 25 television markets were no longer allowed to count ENT
    captioning toward compliance with the Commission's closed captioning
    requirements.[^122] On reconsideration, the Commission prohibited
    the major national broadcast networks (*i.e.*, ABC, CBS, Fox and
    NBC), affiliates of these networks in the top 25 television markets
    as defined by Nielsen's Designated Market Areas (DMAs), and national
    nonbroadcast networks serving at least 50% of all homes subscribing
    to multi-channel video programming services from counting electronic
    newsroom-captioned programming towards compliance with the closed
    captioning rules.[^123] The Commission also stated that, whenever a
    broadcast television station, a broadcast television network or a
    nonbroadcast network satisfies one of these criteria, it becomes
    subject to the limitations placed on the use of ENT for compliance
    with the rules.[^124]

46. At the same time the Commission limited the circumstances in which
    ENT captions could be used as a substitute for real time captioning,
    the Commission suggested it would eventually phase out its
    recognition of ENT captioning.[^125] The Commission noted that it
    expected the ability to use ENT would "by far be the exception
    rather than the general rule, and that only those entities that are
    so small or who present unusual circumstances will be permitted to
    continue to use EN\[T\] because live closed captioning would be an
    economic burden."[^126]

47. The current rule provides that "\[l\]ive programming, or repeats of
    programming originally transmitted live that are captioned using
    \[\] 'electronic newsroom technique' will be considered captioned,
    except that effective January 1, 2000, and thereafter, the major
    national broadcast networks (i.e., ABC, CBS, Fox and NBC),
    affiliates of these networks in the top 25 television markets as
    defined by Nielsen's Designated Market Areas (DMAs) and national
    nonbroadcast networks serving at least 50% of all homes subscribing
    to multi-channel video programming services shall not count
    electronic newsroom captioned programming towards compliance with
    these rules."[^127]

48. TDI asks the Commission to extend the prohibition of counting ENT to
    markets beyond the top 25 DMAs.[^128] TDI states that the use of ENT
    should be disfavored because it "does not provide a quality
    captioned end product to consumers."[^129] NCTA opposes TDI's
    suggestion, noting that the costs of live captioning "still remain
    significant, particularly for local cable news operations that often
    operate 24 hours a day, and that between the high costs and the
    significant shortage of captioners, additional live captioning
    obligations should not be imposed at this time."[^130] NCTA notes
    that, although ENT captioning can only provide captions for
    pre-recorded material, it does allow many more live newscasts to be
    captioned than might otherwise be affordable.[^131] We seek comment
    on TDI's proposal regarding ENT. We also seek comment on whether the
    rationale that led to the Commission permitting the use of ENT by
    some distributors, due to ENT's lower cost, is still relevant.[^132]
    It appears that the cost of captioning has decreased substantially
    since the *1996 Report to Congress*.[^133] Have captioning costs
    decreased such that little hardship would result if the Commission
    were to further limit the circumstances under which captions created
    using electronic newsroom technique would be allowed to count as
    captioned programming?

49. ***Availability of Captioners.*** In arriving at the transition
    schedule for implementing closed captioning, the Commission
    acknowledged the limited number of available captioners and
    captioning services in existence, as well as the anticipated
    increase in demand for captioning services as a result of Section
    713.[^134] In arriving at an eight-year phase in period for
    captioning 100% of new programming, the Commission weighed the needs
    of deaf and hard of hearing individuals with the ability of the
    programming industry to meet the demand for increased
    captioning.[^135]

50. In this NPRM, we seek comment on the supply of captioners available
    for real-time and pre-recorded captioning. We also seek comment on
    the number of companies providing closed captioning services. We
    seek comment on the impact that imposing a quality standard, if
    adopted, will have on the supply of captioners.

51. We note that legislation is pending before Congress that, if passed,
    would authorize the Department of Commerce's National
    Telecommunications and Information Administration (NTIA) to provide
    competitive grants for training court reporters and closed
    captioners.[^136] The proposed legislation states: "Over the past
    decade, student enrollment in programs that train realtime writers
    and closed captioners has decreased by 50 percent, even though job
    placement upon graduation is 100 percent."[^137] We seek comment on
    what other steps could be taken to encourage individuals to train
    and become captioners.

52. ***Electronic Filing of Exemption Requests***. In the *Closed
    Captioning Report and Order,* the Commission stated that entities
    requesting an exemption based on an undue burden from the closed
    captioning rules would be required to petition the Commission for
    that exemption.[^138] The Commission recognized that the Internet
    and e-mail provides persons with hearing disabilities increased
    accessibility to Commission activities and noted that the possible
    use of electronic filing was being explored in a separate
    proceeding.[^139] This electronic filing proceeding did not
    ultimately make a decision as to electronic filings for situations
    beyond rulemaking-related proceedings, such as petitions.[^140] The
    Commission encouraged parties filing petitions for exemptions under
    the undue burden standard to include a disk containing an electronic
    version of their filing so the petition could be posted on the
    Commission's website, making it more accessible.[^141]

53. Currently, Section 79.1 of the Commission's rules requires that a
    petition for a full or partial exemption from the closed captioning
    requirements based on an undue burden must be filed with the
    Commission in writing, placed on public notice, and permit
    interested persons to file comments or oppositions to the
    petition.[^142] Due to the nature of this process, the petition
    itself is generally not available electronically, unless a disk
    containing an electronic version of the petition is submitted.
    Rather, interested parties must come to the Commission's Reference
    Information Center or contact the Commission's copy contractor to
    retrieve a hardcopy version of the petition, in order to file
    comments or oppositions.[^143] In comments filed in the *11^th^
    Annual Video Competition Report* proceeding, the National
    Association for the Deaf (NAD) recommended that the Commission
    reduce the administrative delay in processing petitions for
    exemption.[^144] We seek comment on requiring electronic filing for
    petitions for exemption from the Commission's closed captioning
    rules under the undue burden standard of Section 79.1(f). What
    impact would such a requirement have on entities filing such
    petitions, as well as on parties, including consumers, wishing to
    file comments or oppositions to the petition? We seek comment on
    whether electronic filing should be mandated or merely allowed. We
    seek comment on whether an electronic filing requirement would
    reduce the perceived delay in processing such petitions, as noted by
    NAD.

## Other Issues Raised in the TDI Petition

54. The *TDI Petition* seeks review of several other aspects of the
    closed captioning rules. These remaining *issues* are already
    addressed in the Commission's rules, and we take this opportunity to
    remind video programming distributors and programmers of their
    obligations.

55. ***Pass Through of Original Captioning.*** First, TDI notes the
    failure of many distributors to pass through captioning that they
    receive and to ensure that captioning is not garbled and is
    complete, even during the transitions between programs and into/out
    of commercials (which are not currently required to be
    captioned).[^145] Section 79.1(c) requires distributors to deliver
    all programming they receive that contains closed captioning to
    consumers with the captions intact (*i.e*., pass through the
    original captions). This requires distributors to ensure that their
    equipment is working properly in order to meet this rule.[^146]

56. ***Reformatting of Closed Captions.*** TDI also notes that many
    programs are not reformatted, and asks the Commission to require
    distributors to reformat previously captioned programming that has
    been edited or compressed in order for the distributors to have
    proper procedures in place for reformatting in anticipation of the
    January 1, 2006, 100% benchmark date. In order for distributors to
    comply with the January 1, 2006, 100% benchmark, they will be
    required to pass through any original captions intact, and
    re-caption the programming, or reformat edited or compressed
    programming that contains captioning.[^147]

57. ***Benchmark Compliance Audits.*** Lastly, TDI requests a rulemaking
    to authorize the use of benchmark compliance audits. NCTA notes that
    the Commission already stated that it would conduct random audits of
    captioning similar to the audits used to monitor compliance with
    other rules.[^148] Given that the Commission already has the
    authority to conduct audits regarding video programming
    distributors' compliance with the closed captioning rules, we do not
    think it is necessary to seek comment on this issue.[^149]

# CONCLUSION

58. We initiate this proceeding to assess how the Commission's closed
    captioning rules are succeeding in ensuring that video programming
    is accessible to the millions of deaf and hard of hearing Americans
    and whether any revisions should be made to enhance the
    effectiveness of those rules. After review of the record we will
    determine what rules or other next steps are appropriate. Finally,
    we welcome comment on any other issues relevant to the topics
    addressed in this NPRM.

# procedural matters

59. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
    CFR §§ 1.415, 1.419, interested parties may file comments and reply
    comments on or before the dates indicated on the first page of this
    document. Comments may be filed using: (1) the Commission's
    Electronic Comment Filing System (ECFS), (2) the Federal
    Government's eRulemaking Portal, or (3) by filing paper
    copies.[^150] For additional information on this proceeding, please
    contact Amelia Brown in the Consumer & Governmental Affairs Bureau,
    Disability Rights Office at (202) 418-2799.

60. [Electronic Filers]{.underline}: Comments may be filed
    electronically using the Internet by accessing the ECFS:
    <http://www.fcc.gov/cgb/ecfs/> or the Federal eRulemaking Portal:
    [http://www.regulations.gov](http://www.regulations.gov/). Filers
    should follow the instructions provided on the website for
    submitting comments.

    ■ [For ECFS Filers]{.underline}, if multiple docket or rulemaking
    numbers appear in the caption of this poceeding, filers must
    transmit one electronic copy of the comments for each docket or
    rulemaking number referenced in the caption. In completing the
    transmittal screen, filers should include their full name, U.S.
    Postal Service mailing address, and the applicable docket or
    rulemaking number. Parties may also submit an electronic comment by
    Internet e-mail. To get filing instructions, filers should send an
    e-mail to <ecfs@fcc.gov>, and include the following words in the
    body of the message, "get form." A sample form and directions will
    be sent in response.

    61\. [Paper Filers]{.underline}: Parties who choose to file by paper
    must file an original and four copies of each filing. If more than
    one docket or rulemaking number appears in the caption of this
    proceeding, filers must submit two additional copies for each
    additional docket or rulemaking number. Filings can be sent by hand
    or messenger delivery, by commercial overnight courier, or by
    first-class or overnight U.S. Postal Service mail (although we
    continue to experience delays in receiving U.S. Postal Service
    mail). All filings must be addressed to the Commission's Secretary,
    Office of the Secretary, Federal Communications Commission.

62\. The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8:00 a.m. to 7:00 p.m. All hand deliveries
must be held together with rubber bands or fasteners. Any envelopes must
be disposed of *before* entering the building.

> ■ Commercial overnight mail (other than U.S. Postal Service Express
> Mail and Priority Mail) must be sent to 9300 East Hampton Drive,
> Capitol Heights, MD 20743.

■ U.S. Postal Service first-class, Express, and Priority mail should be
addressed to 445 12^th^ Street, SW, Washington DC 20554.

Comments and reply comments must include a short and concise summary of
the substantive discussion and questions raised in the NPRM. We further
direct all interested parties to include the name of the filing party
and the date of the filing on each page of their comments and reply
comments. We strongly encourage that parties track the organization set
forth in this NPRM in order to facilitate our internal review process.
Comments and reply comments must otherwise comply with section 1.48 and
all other applicable sections of the Commission's rules.[^151]

63\. [People with Disabilities]{.underline}: To request materials in
accessible formats for people with disabilities (braille, large print,
electronic files, audio format), send an e-mail to <fcc504@fcc.gov> or
call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice),
202-418-0432 (TTY).

64\. [Ex Parte Rules.]{.underline} These matters shall be treated as a
"permit-but-disclose" proceeding in accordance with the Commission's *ex
parte* rules.[^152] Persons making oral *ex parte* presentations are
reminded that memoranda summarizing the presentations must contain
summaries of the substance of the presentations and not merely a listing
of the subjects discussed. More than a one or two sentence description
of the views and arguments presented is generally required.[^153] Other
requirements pertaining to oral and written presentations are set forth
in section 1.1206(b) of the Commission's rules.

65\. [Initial Regulatory Flexibility Analysis.]{.underline} With respect
to this NPRM, an Initial Regulatory Flexibility Analysis (IRFA), *see
generally*, 5 U.S.C. § 603, is contained in Appendix B. Comments must be
identified as responses to the IRFA and must be filed by the deadlines
for comments on the NPRM specified *supra*. The Commission will send a
copy of the NPRM, including the IRFA, to the Chief Counsel for Advocacy
of the Small Business Administration.[^154]

66\. [Initial Paperwork Reduction Act of 1995 Analysis.]{.underline}
This document contains proposed or modified information collection
requirements. The Commission, as part of its continuing effort to reduce
paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Public and agency comments are
due 60 days after date of publication of this Notice in the Federal
Register. Comments should address: (a) whether the proposed collection
of information is necessary for the proper performance of the functions
of the Commission, including whether the information shall have
practical utility; (b) the accuracy of the Commission\'s burden
estimates; (c) ways to enhance the quality, utility, and clarity of the
information collected; and (d) ways to minimize the burden of the
collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology. In addition, pursuant to the Small Business Paperwork Relief
Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4), we seek
specific comment on how we might "further reduce the information
collection burden for small business concerns with fewer than 25
employees."

# ordering clauseS

67\. IT IS ORDERED, that pursuant to sections 4(i), 303(r) and 713 of
the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r)
and 713, this Notice of Proposed Rulemaking is hereby ADOPTED.

68\. IT IS FURTHER ORDERED that the Commission\'s Consumer &
Governmental Affairs Bureau, Reference Information Center, SHALL SEND a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

TV Captioning Complaint Form

(As submitted by TDI)

Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Mailing Address:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Email Address:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Phone Number:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ check
one -- ()TTY () Voice

Fax Number:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Preferred Method of Contact:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

When did you have this captioning problem? Month \_\_\_\_\_\_ Day
\_\_\_\_\_ Year \_\_\_\_\_

Which TV Program did you notice had the problem?
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Program was on: TV Station \_\_\_\_\_\_\_\_\_\_\_ Cable Company and
channel: \_\_\_\_\_\_\_

Satellite provider \_\_\_\_\_

Program lasted from \_\_\_\_p.m/a.m. to \_\_\_\_ p.m./a.m.

Captioning problem occurred around on \_\_\_\_\_ p.m./a.m. and ended
around on \_\_\_\_\_ p.m./a.m.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

What was the problem with captioning?

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

Did you attempt to contact someone to discuss the problem? Yes\_\_\_
No\_\_\_\_

Were you successful? Yes \_\_\_\_ No \_\_\_\_

If No, why not?
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

If Yes, Date of Contact:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Person contacted:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Were you given a Reference Number or a Tracking Number? Yes \_\_\_\_ No
\_\_\_\_

Reference or Tracking Number (if applicable):
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Name of TV Station/Cable Provider/Network:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

What was the response?

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

Other comments (if needed)
**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**APPENDIX B**

**INITIAL REGULATORY FLEXIBILITY ANALYSIS**

1\. As required by the Regulatory Flexibility Act of 1980, as
amended,[^155] the Commission has prepared this Initial Regulatory
Flexibility Analysis of the possible significant economic impact on a
substantial number of small entities by the policies and rules proposed
in the Notice of Proposed Rulemaking. Written public comments are
requested on this IRFA. Comments must be identified as responses to the
IRFA and must be filed by the deadlines for comments on the Notice of
Proposed Rulemaking provided in the item. The Commission will send a
copy of this entire Notice of Proposed Rulemaking (\"NPRM\"), including
this IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration (\"SBA\").[^156] In addition, the Notice of Proposed
Rulemaking and the IRFA (or summaries thereof) will be published in the
Federal Register.[^157]

**A. Need For, and Objectives of, the Proposed Rules.**

2\. We initiate this review relating to closed captioning in response to
several compliance and quality issues raised in a Petition for
Rulemaking filed by Telecommunications for the Deaf, Inc., the National
Association of the Deaf, Self Help for Hard of Hearing People, Inc., the
Association for Late Deafened Adults, and the Deaf and Hard of Hearing
Consumer Advocacy Network. This rulemaking proceeding will examine the
current status of the Commission's closed captioning rules with the goal
of ensuring that video programming is accessible to deaf and hard of
hearing Americans. This Notice also serves as a follow-up to the
Commission's prior assurances at the time the closed captioning rules
were adopted that certain captioning provisions would be reviewed and
evaluated at a future date. As described more fully below, this Notice
seeks to determine whether any revisions should be made to enhance the
effectiveness of those rules. In addition, given that, effective January
1, 2006, all nonexempt new programming must be captioned, we believe
this is an excellent opportunity to renew the discussion related to
closed captioning and remind programmers and distributors of their
obligations in order to ensure that video programmers and distributors
are prepared to fulfill this requirement. In particular, the Notice
seeks comment on establishing standards for the non-technical quality of
closed captioning, the potential costs for programmers and distributors,
the availability of competent captioners to meet a non-technical quality
standard mandate, and establishing different non-technical quality
standards for pre-produced versus live programming. In addition, the
Notice seeks comment on whether additional mechanisms and procedures,
beyond those already in the Commission's rules, are necessary to prevent
technical problems from occurring and to expeditiously remedy any
technical problems that do arise. The Notice also seeks comment on video
programming distributors' responsibility to monitor and maintain their
equipment and signal transmissions, and whether specific mechanisms
should be established for monitoring and maintenance. Additionally, the
Notice seeks comment on whether to revise the current rule to allow for
shorter complaint and response times, what those time frames should be,
and whether complainants should be permitted to complain directly to the
Commission without complaining to the video programming distributor
first. Further, the Notice seeks comment on requiring video programming
distributors to file compliance reports as to the amount of closed
captioning they provide, and any alternative methods available to verify
compliance.

B.  **Legal Basis.**

3\. The authority for this proposed rulemaking is contained in Sections
4(i), 303(r) and 713 of the Communications Act of 1934, as amended, 47
U.S.C. §§ 154(i), 303(r) and 713.

**C. Description and Estimate of the Number of Small Entities Impacted**

4\. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules and policies, if adopted.[^158] The RFA
generally defines the term \"small entity\" as having the same meaning
as the terms \"small business,\" \"small organization,\" and \"small
governmental jurisdiction.\"[^159] In addition, the term \"small
business\" has the same meaning as the term \"small business concern\"
under the Small Business Act.[^160] A \"small business concern\" is one
which: (1) is independently owned and operated; (2) is not dominant in
its field of operation; and (3) satisfies any additional criteria
established by the SBA.[^161]

5\. Cable and Other Program Distribution. This category includes among
others, cable systems operators, closed circuit television services,
direct broadcast satellite services, home satellite dish services,
multipoint distribution systems, multichannel multipoint distribution
service, satellite master antenna television systems, and subscription
television services. The SBA has developed a small business size
standard for this census category, which includes all such companies
generating \$12.5 million or less in revenue annually.[^162] According
to Census Bureau data for 1997, there were a total of 1,311 firms in
this category, that had operated for the entire year.[^163] Of this
total, 1,180 firms had annual receipts of under \$10 million and an
additional 52 firms had receipts of \$10 million or more but less than
\$25 million. Consequently, the Commission estimates that the majority
of providers in this service category are small businesses that may be
affected by the rules and policies involved herein.

6\. Cable and Other Subscription Programming. Entities in this category
"primarily engag\[e\] in operating studios and facilities for the
broadcasting of programs on a subscription or fee basis. The broadcast
programming is typically narrowcast in nature (e.g., limited format,
such as news, sports, education, or youth-oriented). These
establishments produce programming in their own facilities or acquire
programming from external sources."[^164] The SBA has developed a small
business size standard for this category; that size standard is \$12.5
million or less in average annual receipts.[^165] According to Census
Bureau data for 1997, there were 234 firms in this category that
operated for the entire year.[^166] Of these, 188 had annual receipts of
under \$10 million, and an additional 16 firms had receipts of between
\$10 million and \$24,999,999. Consequently, we estimate that the
majority of these firms are small entities that may be affected by our
action. In addition, limited preliminary census data for 2002 indicate
that the total number of Cable and Other Subscription Programming
entities increased approximately 44.5 percent from 1997 to 2002.[^167]

7\. Cable System Operators (Rate Regulation Standard). The Commission
has developed its own small business size standard for cable system
operators, for purposes of rate regulation. Under the Commission\'s
rules, a \"small cable company\" is one serving fewer than 400,000
subscribers nationwide.[^168] The most recent estimates indicate that
there were 1,439 cable operators who qualified as small cable system
operators at the end of 1995.[^169] Since then, some of those companies
may have grown to serve over 400,000 subscribers, and others may have
been involved in transactions that caused them to be combined with other
cable operators. Consequently, the Commission estimates that there are
now fewer than 1,439 small entity cable system operators that may be
affected by the rules and policies involved herein.

8\. Cable System Operators (Telecom Act Standard). The Communications
Act of 1934, as amended, also contains a size standard for small cable
system operators, which is \"a cable operator that, directly or through
an affiliate, serves in the aggregate fewer than 1 percent of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
\$250,000,000.\" [^170] The Commission has determined that there are
67,700,000 subscribers in the United States.[^171] Therefore, an
operator serving fewer than 677,000 subscribers shall be deemed a small
operator, if its annual revenues, when combined with the total annual
revenues of all its affiliates, do not exceed \$250 million in the
aggregate.[^172] Based on available data, the Commission estimates that
the number of cable operators serving 677,000 subscribers or fewer,
totals 1,450.[^173] The Commission neither requests nor collects
information on whether cable system operators are affiliated with
entities whose gross annual revenues exceed \$250 million,[^174] and
therefore are unable, at this time, to estimate more accurately the
number of cable system operators that would qualify as small cable
operators under the size standard contained in the Communications Act of
1934.

9\. Cable Television Relay Service. This service includes transmitters
generally used to relay cable programming within cable television system
distribution systems. The SBA has defined a small business size standard
for Cable and other Program Distribution, consisting of all such
companies having annual receipts of no more than \$12.5 million.[^175]
According to Census Bureau data for 1997, there were 1,311 firms in the
industry category Cable and Other Program Distribution, total, that
operated for the entire year.[^176] Of this total, 1,180 firms had
annual receipts of \$10 million or less, and an additional 52 firms had
receipts of \$10 million or more but less than \$25 million.[^177] Thus,
under this standard, we estimate that the majority of providers in this
service category are small businesses that may be affected by the rules
and policies involved herein.

10\. Direct Broadcast Satellite (\"DBS\") Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic \"dish\" antenna at
the subscriber\'s location. Because DBS provides subscription services,
DBS falls within the SBA-recognized definition of Cable and Other
Program Distribution.[^178] This definition provides that a small entity
is one with \$12.5 million or less in annual receipts.[^179] Currently,
only four operators hold licenses to provide DBS service, which requires
a great investment of capital for operation. All four currently offer
subscription services. Two of these four DBS operators, DirecTV[^180]
and EchoStar Communications Corporation (\"EchoStar\"),[^181] report
annual revenues that are in excess of the threshold for a small
business. A third operator, Rainbow DBS, is a subsidiary of
Cablevision\'s Rainbow Network, which also reports annual revenues in
excess of \$12.5 million, and thus does not qualify as a small
business.[^182] The fourth DBS operator, Dominion Video Satellite, Inc.
(\"Dominion\"), offers religious (Christian) programming and does not
report its annual receipts.[^183] The Commission does not know of any
source which provides this information and, thus, we have no way of
confirming whether Dominion qualifies as a small business. Because DBS
service requires significant capital, we believe it is unlikely that a
small entity as defined by the SBA would have the financial wherewithal
to become a DBS licensee. Nevertheless, given the absence of specific
data on this point, we acknowledge the possibility that there are
entrants in this field that may not yet have generated \$12.5 million in
annual receipts, and therefore may be categorized as a small business,
if independently owned and operated.

11\. Local Multipoint Distribution Service. Local Multipoint
Distribution Service (LMDS) is a fixed broadband point-to-multipoint
microwave service that provides for two-way video
telecommunications.[^184] The auction of the 986 Local Multipoint
Distribution Service (LMDS) licenses began on February 18, 1998 and
closed on March 25, 1998. The Commission established a small business
size standard for LMDS licenses as an entity that has average gross
revenues of less than \$40 million in the three previous calendar
years.[^185] An additional small business size standard for \"very small
business\" was added as an entity that, together with its affiliates,
has average gross revenues of not more than \$15 million for the
preceding three calendar years.[^186] The SBA has approved these small
business size standards in the context of LMDS auctions.[^187] There
were 93 winning bidders that qualified as small entities in the LMDS
auctions. A total of 93 small and very small business bidders won
approximately 277 A Block licenses and 387 B Block licenses. On March
27, 1999, the Commission re-auctioned 161 licenses; there were 32 small
and very small businesses winning that won 119 licenses.

12\. Multipoint Distribution Service, Multichannel Multipoint
Distribution Service, and Instructional Television Fixed Service.
Multichannel Multipoint Distribution Service (MMDS) systems, often
referred to as \"wireless cable,\" transmit video programming to
subscribers using the microwave frequencies of the Multipoint
Distribution Service (MDS) and Instructional Television Fixed Service
(ITFS).[^188] In connection with the 1996 MDS auction, the Commission
defined \"small business\" as an entity that, together with its
affiliates, has average gross annual revenues that are not more than
\$40 million for the preceding three calendar years.[^189] The SBA has
approved of this standard.[^190] The MDS auction resulted in 67
successful bidders obtaining licensing opportunities for 493 Basic
Trading Areas (BTAs).[^191] Of the 67 auction winners, 61 claimed status
as a small business. At this time, we estimate that of the 61 small
business MDS auction winners, 48 remain small business licensees. In
addition to the 48 small businesses that hold BTA authorizations, there
are approximately 392 incumbent MDS licensees that have gross revenues
that are not more than \$40 million and are thus considered small
entities.[^192]

Concerning ITFS, we note that educational institutions are included in
this analysis as small entities.[^193] There are currently 2,032 ITFS
licensees, and all but 100 of these licenses are held by educational
institutions. Thus, we tentatively conclude that at least 1,932 ITFS
licensees are small businesses.

13\. Open Video Services. Open Video Service (OVS) systems provide
subscription services.[^194] The SBA has created a small business size
standard for Cable and Other Program Distribution.[^195] This standard
provides that a small entity is one with \$12.5 million or less in
annual receipts. The Commission has certified approximately 100 OVS
operators to serve 75 areas, and some of these are currently providing
service.[^196] Affiliates of Residential Communications Network, Inc.
(RCN) received approval to operate OVS systems in New York City, Boston,
Washington, D.C., and other areas. RCN has sufficient revenues to assure
that they do not qualify as a small business entity. Little financial
information is available for the other entities that are authorized to
provide OVS and are not yet operational. Given that some entities
authorized to provide OVS service have not yet begun to generate
revenues, the Commission concludes that those OVS operators remaining
might qualify as small businesses that may be affected by the rules and
policies proposed herein.

14\. Television Broadcasting. The SBA defines a television broadcasting
station as a small business if such station has no more than \$12
million in annual receipts.[^197] Business concerns included in this
industry are those \"primarily engaged in broadcasting images together
with sound.\"[^198] According to Commission staff review of the BIA
Publications, Inc. Master Access Television Analyzer Database as of June
26, 2004, about 860 of the 1,270 commercial television stations in the
United States have revenues of \$12 million or less. We note, however,
that, in assessing whether a business concern qualifies as small under
the above definition, business (control) affiliations [^199] must be
included. Our estimate, therefore, likely overstates the number of small
entities that might be affected by our action, because the revenue
figure on which it is based does not include or aggregate revenues from
affiliated companies. There are also 2,127 low power television stations
(LPTV).[^200] Given the nature of this service, we will presume that all
LPTV licensees qualify as small entities under the SBA definition.

15\. In addition, an element of the definition of \"small business\" is
that the entity not be dominant in its field of operation. We are unable
at this time to define or quantify the criteria that would establish
whether a specific television station is dominant in its field of
operation. Accordingly, the estimate of small businesses to which rules
may apply do not exclude any television station from the definition of a
small business on this basis and are therefore over-inclusive to that
extent. Also as noted, an additional element of the definition of
\"small business\" is that the entity must be independently owned and
operated. We note that it is difficult at times to assess these criteria
in the context of media entities and our estimates of small businesses
to which they apply may be over-inclusive to this extent.

**D. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements.**

16\. The proposed rules may impose additional reporting or recordkeeping
requirements on a number of different entities. For example, the Notice
discusses whether video programming distributors should be required to
submit reports to the Commission certifying that they are complying with
monitoring and maintenance of equipment and signal transmissions. In
addition the NPRM asks whether video programming distributors should be
required to file compliance reports as to the amount of closed
captioning they provide. These proposals may impose additional reporting
or recordkeeping requirements on entities. We seek comment on the
possible burden these requirements would place on small entities. Also,
we seek comment on whether a special approach toward any possible
compliance burdens on small entities might be appropriate.

**E. Steps Taken to Minimize Significant Impact on Small Entities, and
Significant Alternatives Considered.**

17\. The RFA requires an agency to describe any significant alternatives
that it has considered in reaching its proposed approach, which may
include the following four alternatives (among others): (1) the
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.[^201] The Commission seeks comment on whether it should indeed
be the responsibility of the video programming distributor to monitor
and maintain equipment and signal transmissions and asks if specific
mechanisms should be in place and what would be the impact of such
mechanisms on distributors. The Notice notes that, alternatively, NCTA
points out that a distributor's responsibilities should not be unduly
burdensome and invites comment on this matter. The Notice also proposes
providing a standardized captioning complaint form for consumers, which
may be a useful tool to those filing complaints. In addition, the Notice
discusses allowing consumers to complain to video programming
distributors via e-mail, phone or fax, which is aimed at providing
easier options for consumers who have concerns regarding captioning
problems and seek more immediate redress. The NPRM also points out that
effective January 1, 2006, all nonexempt new programming must be
captioned. Video programming distributors and providers will have to
caption their programming. Generally, 100% compliance is required;
however, particular entities, and under certain circumstances small
entities, may be exempt from the captioning requirements if they qualify
for an exemption pursuant to Section 79.1(d) which provides for exempt
programs and providers meeting the particular qualifications cited in
the rule or/and if captioning presents an undue burden, pursuant to
Section 79.1(f) which allows parties to file a petition with the
Commission requesting an exemption from captioning upon a sufficient
showing that captioning would pose significant difficulty or expense.

**F. Federal Rules Which Duplicate, Overlap, or Conflict With, the**
**Commission\'s Proposals.**

> None.

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

Re: *Telecommunications Relay Services and Speech-to-Speech Services
for*

*Individuals with Hearing and Speech Disabilities*, Order (CC Docket No.
98-67,

CG Docket No. 03-123), FCC 05-141

*Telecommunications Relay Services and Speech-to-Speech Services for*

*Individuals with Hearing and Speech Disabilities*, Report and Order (CG
Docket

No. 03-123, CC Docket No. 98-67), FCC 05-140

*Telecommunications Relay Services and Speech-to-Speech Services for*

> *Individuals with Hearing and Speech Disabilities*, Order on
> Reconsideration (CC Docket No. 98-67, CG Docket No. 03-123), FCC
> 05-139

*Closed Captioning of Video Programming Telecommunications for the Deaf,
Inc.*

*Petition for Rulemaking*, Notice of Proposed Rulemaking (CG Docket No.
05-

231), FCC 05-142

The items that we adopt today should improve the quality of life for
individuals with hearing or speech disabilities. One of the critical
functions of the Commission is to ensure that these individuals have
access to communications technologies in the same manner as people
without hearing or speech disabilities. Those consumers that rely on
Telecommunications Relay Services and Closed Captioning Services must
not be left out of the telecommunications revolution. In each of the
orders adopted today, we take measures to fulfill our statutory goal of
ensuring that every person has equal access to this nation's
communications services.

The four items adopted today coincide with the upcoming 15^th^
anniversary of President George H. W. Bush's signing of the Americans
with Disabilities Act (ADA) on July 26^th^ and the recent 25^th^
anniversary of closed captioning which occurred last March. With the
passage of the ADA in 1990, the Commission was directed to ensure that
hearing or speech disabilities not pose an impediment to communication.
I take this charge very seriously. Accessing communication services is
vital to the ability of the individuals with disabilities to participate
fully in society. The ADA specifically requires the Commission to ensure
that Telecommunications Relay Services (TRS) "are available, to the
extent possible and in the most efficient manner, to hearing-impaired
and speech-impaired individuals in the United States." In honor of the
15^th^ anniversary of this very important statute, we adopt several
items that make TRS more accessible to this community.

During the past 15 years, we have seen the evolution of TRS. Traditional
TTY service over regular phone lines has evolved into IP Relay and Video
Relay Services (VRS) used over Internet connections. VRS permits users
to participate in near real-time conversations in the users' primary
language, American Sign Language (ASL). Because of these features, its
popularity in the deaf and hard of hearing community has soared. For
example, the minutes of use of VRS have increased ten-fold in the past
two years and are continuing to grow at a phenomenal rate.

With the steps we take today, we expand the reach of the TRS fund to
compensate VRS translations between spoken Spanish and ASL as well as
two-line captioned phone service. In addition, we take an important step
to achieving adequate service quality of VRS by, for the first time,
imposing speed of answer and hours of service requirements. Just as a
hearing person can pick up the phone and immediately place a call, a
person with a disability should be able to reach his or her VRS provider
to place a call without experiencing unreasonable delays. We also begin
a rulemaking on whether our closed captioning rules are achieving our
goal of making video programming accessible to the millions of deaf and
hard of hearing Americans, and we ask whether any revisions should be
made to make these rules more effective.

The Commission is more committed than ever to ensuring that the goals of
the ADA are achieved. The actions we take today join the many others
that the Commission has taken over the years to eradicate the barriers
that stand in the way of functional equivalency. Functional equivalency
means individuals with disabilities having access to the same services
as everyone else. This equal access is vital to accessing jobs,
education, public safety, and simple communications with family,
friends, and neighbors.

Although there is still more to do in order to achieve functional
equivalence, I am proud of the items adopted today. I want to assure
those of you with hearing or speech disabilities that we will not stop
actively working to fulfill your need for functional equivalence. We
could not have taken today's actions without your valuable input. We
thank you for your participation in our proceedings and look forward to
working with you and the service providers to come up with solutions to
the next set of challenges that we intend to tackle. It is by working
together that we can best ensure that the tremendous advances in
communications are enjoyed by *all* Americans.

**STATEMENT OF**

**COMMISSIONER KATHLEEN Q. ABERNATHY**

> *Re: Telecommunications Relay Services and Speech-to-Speech Services
> for Individuals with Hearing and Speech Disabilities (CC Docket No.
> 98-67 and CG Docket No. 03-123), FCC 05-141*
>
> *Re: Telecommunications Relay Services and Speech-to-Speech Services
> for Individuals with Hearing and Speech Disabilities (CG Docket No.
> 03-123 and CC Docket No. 98-67), FCC 05-140*
>
> *Re: Telecommunications Relay Services and Speech-to-Speech Services
> for Individuals with Hearing and Speech Disabilities (CC Docket No.
> 98-67 and CG Docket No. 03-123), FCC 05-139*
>
> *Re: Closed Captioning of Video Programming and Telecommunications for
> the Deaf, Inc. Petition for Rulemaking (CG Docket No. 05-231), FCC
> 05-142*

Lou Ann Walker, a noted advocate for the hearing-impaired, once said
that the inability to *hear* is a nuisance, but the inability to
*communicate* is a tragedy. These four items will allow consumers with
hearing or speech impediments to communicate better by enabling them to
receive improved service from their telephones and televisions.

Many of the decisions this Commission is called upon to make involve
arcane matters with sometimes ambiguous results. That is not the case
here. The issues in these items could not be clearer, and the effects of
our rulings could not be more concrete. Today's decisions promise to
have a profound and positive impact on the lives of millions of
Americans living with hearing and speech disabilities. In short, I am
hopeful that by expanding access to TRS and VRS offerings, and by
opening a new proceeding to consider our closed captioning rules for
video programming, we are helping to turn tragedies into nuisances.

Of course, whenever we enhance offerings such as TRS, VRS, and closed
captioning, we must bear in mind the costs imposed by those offerings,
which are borne by all consumers. I am pleased that the TRS and VRS
items will dramatically expand access to these services *without*
significantly increasing the costs involved. I am also satisfied that
the *Notice of Proposed Rulemaking* on closed captioning seeks comment
on issues relating to cost and practicality, and will produce a full
record on those matters for the Commission's consideration.

Finally, I am particularly pleased that we have been able to resolve the
cost-containment questions raised by compensating Spanish-language VRS
from the Interstate TRS Fund. The record shows that Spanish is, by far,
the most widely used non-English language spoken in the United States.
It also demonstrates that the costs of providing ASL-to-Spanish VRS
service are not significantly greater than the costs associated with
ASL-to-English VRS service, a factor that was not clearly evident from
the prior record. In my judgment these factors warranted reevaluation,
and ultimately reversal, of our earlier decision denying compensation
for such services.

One of our most important responsibilities is to make sure that there
are no telecom "have-nots," and that the wealth of services provided by
today's new technologies are available to *all* consumers. These four
items, taken together, help to do just that.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

Re: *Telecommunications Relay Services and Speech-to-Speech Services
for*

*Individuals with Hearing and Speech Disabilities*, Order (CC Docket No.
98-67,

CG Docket No. 03-123), FCC 05-141

*Telecommunications Relay Services and Speech-to-Speech Services for*

*Individuals with Hearing and Speech Disabilities*, Report and Order (CG
Docket

No. 03-123, CC Docket No. 98-67), FCC 05-140

*Telecommunications Relay Services and Speech-to-Speech Services for*

*Individuals with Hearing and Speech Disabilities*, Order on
Reconsideration

(CC Docket No. 98-67, CG Docket No. 03-123), FCC 05-139

*Closed Captioning of Video Programming Telecommunications for the Deaf,
Inc.*

*Petition for Rulemaking*, Notice of Proposed Rulemaking (CG Docket No.
05-

231), FCC 05-142

We all join in celebrating the fifteenth anniversary of the Americans
with Disabilities Act. It's hard to believe it's already been fifteen
years since Congress directed the Commission to ensure that people with
disabilities have access to functionally equivalent communications
services. "Functional equivalency" may sound like Washington jargon, but
for 54 million Americans it translates into equal opportunity, equal
rights and fuller participation in society.

We have come a long way in these fifteen years. And I am pleased that
the Commission has been a part of some of that progress---expanding TRS,
bringing new services like IP relay and VRS into the TRS fold, ensuring
hearing aid compatibility with wireless phones. But this would be a
hollow celebration if we did not also use this anniversary as a time of
rededication, a time of commitment to new goals and new challenges.
Because while the old obstacles of access and education and outreach
have not been resolved completely, new challenges, born of technology
and economic change, rise up to confront us.

The Commission takes on some of these challenges today. By finding that
two-line captioned telephone service is eligible for support from the
TRS fund, we expand functional equivalency for millions of Americans who
are hard of hearing. By developing speed of answer requirements for VRS,
we recognize that the ability to make a telephone call without delay is
fundamental to our concept of a "rapid, efficient, Nation-wide"
communications system. To date, VRS customers have endured unacceptably
long waiting times---sometimes, I am told, up to 30 minutes---before
being able to place a call. This kind of delay undermines functional
equivalency. So I am pleased that today we introduce speed of answer
standards that will pare down waiting time, without sacrificing the
quality of the interpreting service.

We also reverse last year's misguided decision to exclude some forms of
non-shared language TRS from reimbursement. As I pointed out at the
time, Spanish speakers are the fastest growing minority group in the
deaf school age population in the United States. For this population to
communicate in a functionally equivalent manner with their
Spanish-speaking parents, American Sign Language-Spanish VRS should be
eligible for compensation from the TRS fund. I am pleased that we
finally reach this conclusion here.

In addition to these actions on the TRS front, the Commission initiates
a Notice of Proposed Rulemaking to update our closed captioning
policies. For individuals who are deaf and hard of hearing, closed
captions provide a critical link to news, entertainment and emergency
information. By granting the petition for rulemaking filed by
Telecommunications for the Deaf, the National Association of the Deaf,
Self Help for Hard of Hearing People, the Association for Late Deafened
Adults and the Deaf and Hard of Hearing Consumer Advocacy Network, we
make an effort to keep our rules current and ensure that video
programming is accessible to everyone.

Though we make progress today, there are many issues that still need our
attention. There are open questions about equipment interoperability and
certification for national VRS providers. There is the need always for
more outreach and education. And, on another front, the disability
community is justly concerned about fallout from the U.S. Supreme Court
decision in *Brand X.* They do not want to see semantic exercises in
classification and reclassification deny them the victories they have
already won and the opportunities that new technologies hold for the
future.

So we have our work cut out for us. Even as we celebrate this fifteenth
anniversary, there is still a long and winding road to travel---rules to
be adopted, jobs to be secured, people to be appreciated for their
talents and humanity, hearts and minds to be really won over. Our
actions today represent some good strides down that road. I am pleased
to support them in full.

Finally, a note of appreciation for the Consumer and Governmental
Affairs Bureau. The Disability Rights Office is not the largest office
in this agency. But millions of Americans with disabilities---and their
friends, and their families, and their co-workers---are better off
because of the work of this office. Their efforts keep us all better
connected. Thank you.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: In the Matter of Closed Captioning of Video Programming,
Accessibility of Programming Providing Emergency Information,
Telecommunications for the Deaf, Inc., Petition for Rulemaking, CG
Docket No. 05-231, Notice of Proposed Rulemaking.*

In light of the fifteenth anniversary of the Americans with Disabilities
Act, now is the time to review whether our closed captioning rules have
been successful at achieving the important goal of increasing access to
high quality video programming for the hearing-impaired community. I
fully support this Notice to seek comment on the adequacy of our current
closed captioning rules and on how the rules can be made more effective
and efficient.

Both Congress and the Commission have recognized how important it is
that *all* people have access to video programming, which is
increasingly affecting how we operate in the home, at the office, and at
school. When closed captioning is inaccurate, unavailable, or
unintelligible, millions of hearing-impaired individuals are excluded
from the opportunity to participate in political and cultural
experiences that shape our identity as Americans. For example, when
closed-captioning errors prevented many hearing-impaired viewers from
casting their vote for Fox television's program, "American Idol," these
viewers were prevented from being a part of this cultural event.

Television is increasingly the medium relied upon as the primary source
of local and national news, and a healthy democracy demands a
well-informed citizenry to make reasoned decisions about where our
country is and should be headed. Closed-captioning errors, however,
leave millions of Americans without access to this vital information and
uninformed. The consequences are even greater when the closed captioning
is providing emergency information.

As we prepare to review the current closed captioning rules, we must
remain committed to ensuring that video programming is not only
accessible, but also high quality. I am therefore pleased that this
Notice of Proposed Rulemaking addresses the issues of both technical and
non-technical standards for closed captioning. I am also pleased that
this Notice seeks comment on how the Commission can best ensure
compliance. We provide nothing but empty promises if our rules overlook
the critical means for monitoring and enforcement.

The Commission has already taken the important step of mandating that
non-exempt new programming be captioned as of January 1, 2006. Today's
rulemaking takes another step forward toward ensuring that the
hearing-impaired community receives functionally equivalent video
programming services. I commend my colleagues for their dedication to
confronting these issues that are so important for the deaf and hard of
hearing community, and I would like to thank the Consumer & Governmental
Affairs Bureau for all their hard work on this matter.

[^1]: *See* 47 C.F.R. Part 79. Closed captioning is an assistive
    technology designed to provide access to television for persons with
    hearing disabilities. Closed captioning is similar to subtitles in
    that it displays the audio portion of a television signal as printed
    words on the television screen. To assist viewers with hearing
    disabilities, captions may also identify speakers, sound effects,
    music and laughter. Unlike subtitles, however, closed captioning is
    hidden as encoded data transmitted within the television signal. For
    a more complete description of closed captioning, *see
    Implementation of Section 305 of the Telecommunications Act of 1996
    -- Video Programming Accessibility,* MM Docket No. 95-176, Notice of
    Proposed Rulemaking, 12 FCC Rcd 1044 (Jan. 17, 1997) (*1997 Closed
    Captioning NPRM*).

[^2]: *See* Telecommunications for the Deaf Inc. *et al.* Petition for
    Rulemaking, RM-11065 (July 23, 2004) (*TDI Petition*). The joint
    petitioners are collectively referred to herein as TDI. The Petition
    appeared on Public Notice on September 2, 2004. *See* Public Notice,
    Report No. 2670, dated September 2, 2004. More than 90 comments were
    filed in response to the *TDI Petition*, most of which support the
    Petition. The National Cable & Telecommunications Association filed
    an Opposition to the *TDI Petition* on October 4, 2004 (*NCTA
    Opposition*).

[^3]: 47 U.S.C. § 613. Section 713, Video Programming Accessibility, was
    added to the Act by Section 305 of the Telecommunications Act of
    1996. Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56
    (1996) (the 1996 Act).

[^4]: *See Closed Captioning and Video Description of Video Programming,
    Implementation of Section 305 of the Telecommunications Act of
    1996,* MM Docket No. 95-176, Report, 11 FCC Rcd 19214 at 19227,
    para. 34 (July 29, 1996) (*1996 Closed Captioning Report to
    Congress*). The Commission noted that "\[s\]tudies have demonstrated
    that captioning can improve a student's reading comprehension and
    spelling, augment vocabulary and word recognition and increase
    overall motivation to read." *Id*.

[^5]: *See Closed Captioning and Video Description of Video Programming,
    Implementation of Section 305 of the Telecommunications Act of 1996,
    Video Programming Accessibility,* MM Docket No. 95-176, Report and
    Order, 13 FCC Rcd 3272, 3387, paras. 254-257 (August 22, 1997)
    (*Closed Captioning Report and Order)*.

[^6]: H.R. Report 104-458 104^th^ Cong., 2d Sess. at 183-84 (*Conference
    Report*) (Aug. 22, 1996).

[^7]: 47 C.F.R. § 79.1(b)(1)(iv).

[^8]: *1997 Closed Captioning NPRM*, 12 FCC Rcd 1044 at 1050, para. 7.

[^9]: 47 C.F.R. § 73.682(a)(22). In 1976, the Commission adopted rules
    which provide that line 21 of the VBI is to be primarily used for
    the transmission of closed captioning. The Commission's rules
    specify technical standards for the reception and display of such
    captioning. *Id*.

[^10]: Pub. L. No. 101-431, 104 Stat. 960 (1990) (codified at 47 U.S.C.
    §§ 303(u), 330(b)).

[^11]: *See Implementation of Television Decoder Circuitry Act*, GEN
    Docket No. 91-1, Report and Order, 6 FCC Rcd 2419 (Apr. 15, 1991).

[^12]: H.R. Report 104-204, 104^th^ Cong., 1^st^ Sess. at 113-14 (1995).

[^13]: *See* *Closed Captioning Report and Order*, 13 FCC Rcd at 3276,
    para. 7.

[^14]: 47 U.S.C. § 613.

[^15]: 47 U.S.C § 613(b)-(c).

[^16]: Video programming may be delivered to consumers through a variety
    of technologies. These distribution technologies include broadcast
    television, cable television, wireless cable, direct-to-home
    satellite services, and local telephone exchange carrier video.

[^17]: H.R. Report 104-458, 104^th^ Cong., 2d Sess. at 183-84 (1996).

[^18]: *Closed Captioning and Video Description of Video Programming,
    Implementation of Section 305 of the Telecommunications Act of 1996,
    Video Programming Accessibility,* MM Docket No. 95-176, Order on
    Reconsideration, 13 FCC Rcd 19973 (Oct. 2, 1998) (*Reconsideration
    Order)*.

[^19]: "Video programming distributor" is defined in 47 C.F.R. §
    79.1(a)(2) as any television broadcast station licensed by the
    Commission and any multichannel video programming distributor as
    defined in section 76.100 of this chapter, and any other distributor
    of video programming for residential reception that delivers such
    programming directly to the home and is subject to the jurisdiction
    of the Commission.

[^20]: *See* 47 C.F.R. §§ 79.1(b)(1), (b)(3), (d), (e), (f); *see also
    Closed Captioning Report and Order*, 13 FCC Rcd at 3292-3295, paras.
    41-47; *Reconsideration Order*, 13 FCC Rcd at 19978-79, paras. 9-10.

[^21]: 47 C.F.R. § 79.1(a)(5).

[^22]: 47 C.F.R. § 79.1(b)(2); *Closed Captioning Report and Order*, 13
    FCC Rcd at 3301-02, paras 61-63.

[^23]: 47 C.F.R. § 79.1(a)(6).

[^24]: 47 C.F.R. § 79.1(b)(3)(iv).

[^25]: 47 C.F.R. § 79.1(b)(4)(ii).

[^26]: *Closed Captioning Requirements for Digital Television
    Receivers*, *Closed Captioning and Video Description of Video
    Programming , Implementation of Section 305 of the
    Telecommunications Act of 1996, Video Programming Accessibility*, ET
    Docket No. 99-254, MM Docket No. 95-176, Report and Order, 15 FCC
    Rcd. 16788 (July 31, 2000) (*DTV Closed Captioning Order*); 47
    C.F.R. § 15.122(b) (incorporating by reference, EIA-708-B, "Digital
    Television Closed Captioning," Electronics Industries Alliance (Dec.
    1999) ("EIA-708-B")). *See* Summary of Requirements at 15 FCC Rcd at
    16790-16791 (listing requirements of the decoder operation, covered
    devices, and compliance dates); *see also* 47 C.F.R. § 79.1.

[^27]: *DTV Closed Captioning Order*, 15 FCC Rcd at 16790-91 (*See*
    Summary of Requirements); *see also* 47 C.F.R. § 79.1(a)(6)(ii).

[^28]: *DTV Closed Captioning Order*, 15 FCC Rcd. at 16791, para. 5;
    *see also* 47 C.F.R. § 79.1(a)(6)(ii).

[^29]: *DTV Closed Captioning Order*, 15 FCC Rcd. at 16809, para. 63.

[^30]: *TDI Petition* at i.

[^31]: *See generally* *TDI Petition*. In addition to *TDI's Petition*,
    comments submitted in response to the *Annual Assessment of the
    Status of Competition in the Market for the Delivery of Video
    Programming,* MB Docket No. 04-227, Notice of Inquiry, 19 FCC Rcd
    10909 (June 17, 2004) (*2004 Video Programming NOI)* regarding the
    Commission's annual assessment of the status of competition in the
    market for the delivery of video programming similarly reflect
    consumers' continuing concerns with closed captioning. *See Annual
    Assessment of the Status of Competition in the Market for the
    Delivery of Video Programming,* MB Docket No. 04-227, 11^th^ Annual
    Report, 20 FCC Rcd 2755, 2850-51, para. 177 (Feb. 4, 2005) (*11^th^
    Annual Video Programming Report).*

[^32]: *See, e.g.,* Comments of Elizabeth Rocchino (Aug. 26, 2004);
    Accessible Media Industry Coalition (Sept. 29, 2004); Larry
    Goldberg, National Center for Accessible Media (Sept. 28, 2004);
    Jerald Jordan (Sept. 27, 2004); Nancy Linke-Ellis (Sept. 23, 2004);
    Liz Petersen (Sept. 27, 2004).

[^33]: *NCTA Opposition* at 1-2. No other Oppositions were filed.

[^34]: With "pop-on captions," a phrase or sentence appears on the
    screen all at once -- not line by line -- stays there for a few
    seconds and then disappears or is replaced by another full caption.
    The captions are timed to synchronize with the program and placed on
    the screen to help identify the speaker. Pop-on captions are used
    for prerecorded captioning. **"**Roll-up captions" roll onto and off
    the screen in a continuous motion. Usually two to three lines of
    text appear at one time. As a new line comes along, it appears on
    the bottom, pushing the other lines on the screen up. Roll-up
    captions are used for all live captioning and can also be used for
    prerecorded captioning. *See* National Captioning Institute webpage:
    <http://www.ncicap.org/preview/capterms.asp>.

[^35]: *1997 Closed Captioning NPRM*, 12 FCC Rcd at 1090-1091, para.
    111; *Closed Captioning Report and Order*, 13 FCC Rcd at 3370, para.
    214.

[^36]: *1997 Closed Captioning NPRM*, 12 FCC Rcd at 1087, para.104, at
    1090-1091, para. 111.

[^37]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3374, para.
    222.

[^38]: *Id.* at 3374, para. 222, n.716.

[^39]: *Id.* at 3374, para. 223.

[^40]: *Id.* at 3374, para. 222.

[^41]: *TDI Petition* at 35 and 37.

[^42]: *NCTA Opposition* at 16.

[^43]: *Id.* at 15-16.

[^44]: *Id.* at 15.

[^45]: In response to the *2004 Video Programming NOI*, approximately
    220 informal comments were filed by consumers. Quality issues were
    among the topics discussed in these comments, including the accuracy
    of captions, which commenters claim ranges from excellent to
    undecipherable. *See 11^th^ Annual Video Programming Report*, 20 FCC
    Rcd at 2850-51, para. 177.

[^46]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3373, para.
    219 (referring to the Comments of VITAC).

[^47]: *TDI Petition* at 27.

[^48]: *Id.*

[^49]: *Id*.

[^50]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3368-3369,
    para. 211; 47 C.F.R. § 79.1(c); 47 C.F.R. § 73.682 (TV transmission
    standards). Section 15.119 sets forth the closed caption decoder
    requirements for analog television receivers. 47 C.F.R. § 15.119.
    Section 73.682 sets forth television transmission standards. 47
    C.F.R. § 73.682.

[^51]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3368-3369,
    para. 211*.*

[^52]: *Id.* at 3368-3369, para. 211*.*

[^53]: *See* 47 C.F.R. § 79.1(c).

[^54]: *TDI Petition* at 24-26. (47 C.F.R. § 76.606 is titled "Closed
    captioning").

[^55]: *TDI Petition* at 26-27.

[^56]: *NCTA Opposition* at 9.

[^57]: *Id.* at 10.

[^58]: *Id.* at 9.

[^59]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3369, para.
    212.

[^60]: *Id*.

[^61]: *1996 Closed Captioning Report to Congress*, 11 FCC Rcd at 19253,
    para. 93.

[^62]: *TDI Petition* at 28.

[^63]: *Id.* at 28.

[^64]: *Id.* at 29.

[^65]: *TDI Petition* at 32; *11^th^ Annual Video Programming Report*,
    20 FCC Rcd at 2850, para. 177, n.794.

[^66]: *TDI Petition* at 30.

[^67]: *NCTA Opposition* at 9-10.

[^68]: *Id.* at 9.

[^69]: *Id.* at 9-10.

[^70]: *Id.* at 10.

[^71]: *See Reconsideration Order*, 13 FCC Rcd at 20009, para. 83, in
    which the Commission notes its expectation that "video programming
    providers in conjunction with those publicizing programming and
    publishing programming schedules will make every effort to correctly
    label programming as to whether it is captioned."

[^72]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3381, para.
    240. On reconsideration, the Commission rejected petitioners'
    requests to allow complaints to be filed directly with the
    Commission, as is the case with complaints alleging violations of
    the childrens' television rules. *Reconsideration Order*, 13 FCC Rcd
    at 20023-20025, paras. 114-116.

[^73]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3382, para.
    243; *see also* 47 C.F.R. § 79.1(g)(3).

[^74]: 47 C.F.R. § 79.1(g)(1).

[^75]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3382-83,
    para. 243; *see also* 47 C.F.R. § 79.1(g)(4).

[^76]: *Id.*

[^77]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3383, para.
    244.

[^78]: *Reconsideration Order*, 13 FCC Rcd at 20025, para. 116.

[^79]: *Id.* at 20025, para. 115.

[^80]: *Id.* at 20025, para. 116.

[^81]: *Id.*

[^82]: *TDI Petition* at 21.

[^83]: *Id.*

[^84]: *Id.* at 22*.*

[^85]: *Id.* at 15-16. TDI notes that the complaint form may be
    optional, and that consumers may use email or other means of
    communication to provide the substance of the complaint. A copy of
    the proposed complaint form included in the *TDI Petition* as
    Exhibit A is attached hereto as Appendix A.

[^86]: *NCTA Opposition* at 7.

[^87]: *Id.,* n.17, citing 47 C.F.R. § 76.309.

[^88]: *Reconsideration Order,* 13 FCC Rcd at 20025, para. 116.

[^89]: *NCTA Opposition* at 3-4.

[^90]: On reconsideration, the Commission stated its expectation that
    programming distributors would be responsive to consumers'
    complaints and noted that, while all complaints must be filed in
    writing, it is important that video programming distributors make
    their organizations accessible to persons with hearing disabilities
    seeking information about the entity's closed captioning or other
    matters. *Reconsideration Order,* 13 FCC Rcd at 20025, para. 116 and
    n.394.

[^91]: *TDI Petition* at 15-16.

[^92]: *TDI Petition* at Exhibit A, attached hereto as Appendix A.

[^93]: 47 C.F.R. § 1.80(b): Guidelines for Assessing Forfeitures
    (*Forfeiture Guidelines).*

[^94]: *TDI Petition* at 23.

[^95]: *TDI Petition* at 23-24.

[^96]: *TDI Petition* at 22-23. TDI cites a 2002 action wherein the
    Cable Services Bureau suggested it could impose increased captioning
    requirements for failure to comply with the closed captioning rules.
    *TDI Petition* at 23 n.37 citing *Comcast Order*, at 5 n.32 (47 CFR
    § 79.1(b)(8)).

[^97]: *TDI Petition* at 23. TDI notes that \$8,000 is akin to the
    Commission's current forfeiture amount for violation of the
    Commission's childrens' television programming requirements. *TDI
    Petition* at 23 n.38.

[^98]: *TDI Petition* at 23.

[^99]: *TDI Petition* at 24.

[^100]: *NCTA Opposition* at 8.

[^101]: *NCTA Opposition* at 8.

[^102]: 47 C.F.R. § 79.1(g)(8).

[^103]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3286, para.
    27.

[^104]: *Id.* at 3383, para. 244.

[^105]: *Id.*

[^106]: *Reconsideration Order,* 13 FCC Rcd at 20026-27, para. 118.

[^107]: *TDI Petition* at 16.

[^108]: *Id.* at 16-17.

[^109]: *Id.* at 18.

[^110]: *Id*.

[^111]: *Id.* at 19. TDI notes that when the Commission elected not to
    adopt benchmark compliance reporting requirements, it stated that it
    would conduct compliance audits, but TDI is unaware that any such
    audits have been conducted. The lack of compliance audits, TDI
    asserts, "seriously undermines enforcement of the captioning rules
    and \[their\] effectiveness\[.\]" *TDI Petition* at 20.

[^112]: *NCTA Opposition* at 4-5.

[^113]: *Id.* In the *Closed Captioning Report and Order* the Commission
    stated that distributors may rely on certifications from program
    suppliers that the programming is either captioned or exempt from
    the rules and will not be held responsible if the program supplier
    submits false certifications. *Closed Captioning* *Report and
    Order*, 13 FCC Rcd at 3286-3287, para. 28; 3369, para. 212; 3383,
    para. 244. In addition, the Commission's rules allow distributors to
    rely on the certifications of program providers that programming is
    captioned; and limits a distributor's responsibility for captioning
    in situations where a program source falsely certifies that
    programming meets the Commission's captioning requirements if the
    distributor is unaware that the certification is false. 47 C.F.R. §
    79.1(g)(6).

[^114]: *NCTA Opposition* at 5-6.

[^115]: *Id.* at 6.

[^116]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3311, para.
    84; *see also 1997 Closed Captioning NPRM*, 12 FCC Rcd at 1058,
    para. 21.

[^117]: *1997 Closed Captioning NPRM*, 12 FCC Rcd at 1058, para. 21.

[^118]: *Id.*

[^119]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3311-12,
    para. 84.

[^120]: *Id.* As noted by the Commission, "\[ENT\] can only be used to
    convert the dialogue included on a teleprompter script into
    captions. As many live newscasts use interviews, field reports and
    late-breaking weather and sports that cannot be scripted or
    presented in textual or graphical form, persons with hearing
    disabilities do not have full access to this programming when
    \[ENT\] is used." *Reconsideration Order*, 13 FCC Rcd at 19991,
    para. 35.

[^121]: *Reconsideration Order*, 13 FCC Rcd at 19991, para. 35-36.

[^122]: *Id.* at 19992, para. 38. We note that Section 79.1(d)(3) does
    not exempt from the closed captioning requirements programming other
    than English or Spanish language if the scripted program can be
    captioned using ENT. 47 C.F.R. § 79.1(d)(3).

[^123]: *Reconsideration Order*, 13 FCC Rcd at 19992, para. 38.

[^124]: *Id.*

[^125]: *Id.* at 19991, para. 36.

[^126]: *Id.* at 19993, para. 40.

[^127]: 47 C.F.R. § 79.1(d)(3).

[^128]: *TDI Petition* at 35.

[^129]: *TDI Petition* at 34-35.

[^130]: *NCTA Opposition* at 13-14.

[^131]: *Id.* at 13.

[^132]: *See Reconsideration Order*, 13 FCC Rcd at 19993, para. 39.

[^133]: In response to the *2004 Video Programming NOI*, Fox provided
    information on captioning costs paid to the several vendors they use
    for originally-produced broadcast and nonbroadcast programming, both
    live and recorded. "Fox's regional sports networks spend between
    \$105 and \$365 to caption a single hour of programming, with the
    higher fee associated with live sports events. For its National
    Geographic channel, Fox indicates that it typically costs \$165 to
    caption an hour of original programming ...when it purchases
    programming from a third party, the cost of captioning is included
    in the overall costs of the programming." *11th Annual Video
    Programming Report*, 20 FCC Rcd at 2852, para. 180.

[^134]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3292-93,
    para. 41-42.

[^135]: *Id.* at 3292-94, paras. 41-44; *Reconsideration Order*, 13 FCC
    Rcd at 19981, para. 15.

[^136]: Training for Realtime Writers Act of 2005, S. 268, 109^th^
    Cong., 1^st^ Sess. (2005).

[^137]: *Id.* at § 2(7).

[^138]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3363-64,
    para. 199.

[^139]: *Id.* at 3365, para. 203.

[^140]: *See generally, Electronic Filing of Documents in Rulemaking
    Proceedings*, GC Docket No. 97-113, Notice of Proposed Rulemaking,
    12 FCC Rcd 5150 (April 7, 1997) (*Electronic Filing NPRM*).

[^141]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3365, para.
    203; at 3383-84 para. 245; *see also* *Electronic Filing NPRM*, 12
    FCC Rcd 5150.

[^142]: 47 C.F.R. § 79.1(f).

[^143]: We note that these Petitions are occasionally placed on the DRO
    website.

[^144]: National Association of the Deaf, Comments at 7, *11^th^ Annual
    Video Programming Report*, 20 FCC Rcd at 2851-52, paras. 179-180.

[^145]: *TDI Petition* at 31-34.

[^146]: *Closed Captioning Report and Order*, 13 FCC Rcd at 3312, para.
    85.

[^147]: Section 79.1(c) obligates all video programming distributors to
    deliver "all programming received from the video programming owner
    or other original source containing closed captioning to receiving
    television households with the original closed captioning data
    intact in a format that can be recovered and displayed by decoders
    meeting the standards of part 15 of \[the Commission's rules\]
    unless such programming is recaptioned or the captions are
    reformatted by the programming distributor." 47 C.F.R. § 79.1(c).
    However, on reconsideration, the Commission clarified that, "as the
    benchmarks increase, distributors will have to reformat the captions
    to comply with the rules." *Reconsideration Order*, 13 FCC Rcd at
    20009, para. 82.

[^148]: *Reconsideration Order*, 13 FCC Rcd at 20026-27, para. 118.

[^149]: *Id.* Commission states its intention to conduct random audits
    of captioning similar to the audits used to monitor compliance with
    other Commission rules.

[^150]: *See Electronic Filing of Documents in Rulemaking Proceedings*,
    63 FR 24121 (1998).

[^151]: *See* 47 C.F.R. § 1.48.

[^152]: 47 C.F.R. §§ 1.1200, *et seq*.

[^153]: *See* 47 C.F.R. § 1.1206(b)(2).

[^154]: *See* 5 U.S.C. § 603(a). In addition, the NPRM and IRFA (or
    summaries thereof) will be published in the Federal Register.

[^155]: *See* 5 U.S.C. § 603. The RFA, see 5 U.S.C. §§601-612, has been
    amended by the Small Business Regulatory Enforcement Fairness Act of
    1996 (\"SBREFA\"), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^156]: *See* 5 U.S.C. § 603(a).

[^157]: *Id*.

[^158]: 5 U.S.C. § 603(b)(3).

[^159]: 5 U.S.C. § 601(6).

[^160]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    \"small-business concern\" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies \"unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register.\"

[^161]: 15 U.S.C. § 632.

[^162]: 13 C.F.R. § 121.201, NAICS code 513220 (changed to 517510 in
    October 2002).

[^163]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, \"Establishment and Firm Size (Including Legal Form of
    Organization),\" Table 4, NAICS code 513220 (issued October 2000).

[^164]: U.S. Census Bureau, "2002 NAICS Definitions: 515210 Cable and
    Other Subscription Programming" (online, July 2005, at
    [www.census.gov](http://www.census.gov/)).

[^165]: 13 C.F.R. § 121.201, NAICS code 515210 (changed from 513210 in
    Oct. 2002).

[^166]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, \"Establishment and Firm Size (Including Legal Form of
    Organization),\" Table 4, NAICS code 513210 (issued Oct. 2000).

[^167]: *See* U.S. Census Bureau, 2002 Economic Census, Industry Series:
    "Information," Table 2, Comparative Statistics for the United States
    (1997 NAICS Basis): 2002 and 1997, NAICS code 513210 (issued Dec.
    2004). The preliminary data indicate that the total number of
    "establishments" increased from 494 to 714. In this context, the
    number of establishments is a less helpful indicator of small
    business prevalence than is the number of "firms," because the
    latter number takes into account the concept of common ownership or
    control. The more helpful 2002 census data on firms, including
    employment and receipts numbers, will be issued in late 2005.

[^168]: 47 C.F.R. § 76.901(e). The Commission developed this definition
    based on its determination that a small cable system operator is one
    with annual revenues of \$100 million or less. Implementation of
    Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and
    Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 60 FR
    10534 (February 27, 1995).

[^169]: Paul Kagan Associates, Inc., Cable TV Investor, February 29,
    1996 (based on figures for December 30, 1995).

[^170]: 47 U.S.C. § 543(m)(2).

[^171]: *See* FCC Announces New Subscriber Count for the Definition of
    Small Cable Operator, Public Notice, DA 01-158 (released January 24,
    2001).

[^172]: 47 C.F.R. § 76.901(f).

[^173]: *See* FCC Announces New Subscriber Count for the Definition of
    Small Cable Operator, Public Notice, DA 01-158 (released January 24,
    2001).

[^174]: The Commission does receive such information on a case-by-case
    basis if a cable operator appeals a local franchise authority\'s
    finding that the operator does not qualify as a small cable operator
    pursuant to Section 76.901(f) of the Commission\'s rules. *See* 47
    C.F.R. 909(b).

[^175]: 13 C.F.R. § 121.201, NAICS code 517510.

[^176]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, \"Establishment and Firm Size (Including Legal Form of
    Organization),\" Table 4 (issued October 2000).

[^177]: *Id*.

[^178]: [13 C.F.R. §
    121.201](http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=13CFRS121.201&FindType=L),
    NAICS code 517510.

[^179]: *Id*.

[^180]: DirecTV is the largest DBS operator and the second largest MVPD,
    serving an estimated 13.04 million subscribers nationwide; see
    Annual Assessment of Status of Competition in the Market for the
    Delivery of Video Programming, Eleventh Annual Report, FCC 05-13, ¶
    55 (rel. Feb. 4, 2005)(\"2005 Cable Competition Report\").

[^181]: EchoStar, which provides service under the brand name Dish
    Network, is the second largest DBS operator and the fourth largest
    MVPD, serving an estimated 10.12 million subscribers nationwide.
    *Id*.

[^182]: Rainbow DBS, which provides service under the brand name VOOM,
    reported an estimated 25,000 subscribers. *Id*.

[^183]: Dominion, which provides service under the brand name Sky Angel,
    does not publicly disclose its subscribership numbers on an
    annualized basis. *Id*.

[^184]: *See* Rulemaking to Amend Parts 1, 2, 21, 25, of the
    Commission\'s Rules to Redesignate the 27.5-29.5 GHz Frequency Band,
    Reallocate the 29.5-30.5 Frequency Band, to Establish Rules and
    Policies for Local Multipoint Distribution Service and for Fixed
    Satellite Services, Second Report and Order, Order on
    Reconsideration, and Fifth Notice of Proposed Rule Making, 12 FCC
    Rcd 12545, 12689-90, ¶ 348 (1997).

[^185]: *Id*.

[^186]: *Id*.

[^187]: *See* Letter to Dan Phythyon, Chief, Wireless Telecommunications
    Bureau, FCC, from Aida Alvarez, Administrator, SBA (Jan. 6, 1998).

[^188]: Amendment of Parts 21 and 74 of the Commission\'s Rules with
    Regard to Filing Procedures in the Multipoint Distribution Service
    and in the Instructional Television Fixed Service and Implementation
    of Section 309(j) of the Communications Act - Competitive Bidding,
    Report and Order, 10 FCC Rcd 9589, 9593 ¶ 7 (1995)(MDS Auction R&O).

[^189]: 47 C.F.R. § 21.961(b)(1).

[^190]: *See* Letter to Margaret Wiener, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, FCC, from
    Gary Jackson, Assistant Administrator for Size Standards, Small
    Business Administration, dated March 20, 2003 (noting approval of
    \$40 million size standard for MDS auction).

[^191]: Basic Trading Areas (BTAs) were designed by Rand McNally and are
    the geographic areas by which MDS was auctioned and authorized. See
    MDS Auction R&O, 10 FCC Rcd at 9608. ¶ 34.

[^192]: 47 U.S.C. § 309(j). Hundreds of stations were licensed to
    incumbent MDS licensees prior to implementation of Section 309(j) of
    the Communications Act of 1934, 47 U.S.C. § 309(j). For these
    pre-auction licenses, the applicable standard is SBA\'s small
    business size standard for \"other telecommunications\" (annual
    receipts of \$12.5 million or less). See 13 C.F.R. § 121.201, NAICS
    code 517910.

[^193]: The term \"small entity\" under SBREFA applies to small
    organizations (nonprofits) and to small governmental jurisdictions
    (cities, counties, towns, townships, villages, school districts, and
    special districts with populations of less than 50,000). 5 U.S.C. §§
    601(4)-(6). We do not collect annual revenue data on ITFS licensees.

[^194]: *See* 47 U.S.C. § 573.

[^195]: 13 C.F.R. § 121.201, NAICS code 513220 (changed to 517510 in
    October 2002).

[^196]: *See* http://www.fcc.gov/csb/ovs/csovscer.html (current as of
    June 2004).

[^197]: *See* 13 C.F.R. § 121.201, NAICS Code 515120 (adopted Oct.
    2002).

[^198]: NAICS Code 515120. This category description continues, \"These
    establishments operate television broadcasting studios and
    facilities for the programming and transmission of programs to the
    public. These establishments also produce or transmit visual
    programming to affiliated broadcast television stations, which in
    turn broadcast the programs to the public on a predetermined
    schedule. Programming may originate in their own studios, from an
    affiliated network, or from external sources.\" Separate census
    categories pertain to businesses primarily engaged in producing
    programming. *See* Motion Picture and Video Production, NAICS code
    512110; Motion Picture and Video Distribution, NAICS Code 512120;
    Teleproduction and Other Post-Production Services, NAICS Code
    512191; and Other Motion Picture and Video Industries, NAICS Code
    512199.

[^199]: \"\[Business concerns\] are affiliates of each other when one
    concern controls or has the power to control the other or a third
    party or parties controls or has to power to control both.\" 13
    C.F.R. § 121.103(a)(1).

[^200]: FCC News Release, \"Broadcast Station Totals as of September 30,
    2002.\"

[^201]: 5 U.S.C. § 603(b).