**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

)

In the Matter of: )

)

Closed Captioning and Video Description )

of Video Programming )

)

) MM Docket No. 95-176

)

)

Implementation of Section 305 of the )

Telecommunications Act of 1996 )

)

Video Programming Accessibility )

**CLARIFICATION ORDER**

**Adopted: February 27, 2001 Released: March 2, 2001**

By the Commission:

**I**. **INTRODUCTION**

1\. In this *Clarification Order*, the Commission addresses CBS
Corporation\'s (\"CBS\") Request for Clarification of the *Order on
Reconsideration*[^1] in the above-captioned proceeding implementing
Section 713 of the Communications Act of 1934, as amended
(\"Communications Act\").[^2] Section 713 titled \"Video Programming
Accessibility\" was added to the Communications Act by Section 305 of
the Telecommunications Act of 1996 (\"1996 Act\") and generally requires
that video programming be closed captioned to ensure that it is
accessible to persons with hearing disabilities.[^3] The National
Association of the Deaf and the Consumer Action Network (\"NAD/CAN\"),
Self Help for Hard of Hearing People, Inc. (\"SHHH\"), and Mr. Jack
O\'Keeffe of Aliquippa, Pennsylvania filed comments. The Council of
Organizational Representatives on National Issues Concerning People Who
are Deaf or Hard of Hearing (\"COR\") and Telecommunications for the
Deaf, Inc. (\"TDI\") filed reply comments.

2\. **[Summary of Decision]{.underline}**: To the extent indicated
below, we grant CBS' request for clarification. Large Programming
Providers[^4] must real-time caption a specific amount of programming
set forth in our rules. This amount is called the Benchmark Amount. In
addition, if a Large Programming Provider captioned more programming
during the first six months of 1997 than the Benchmark Amount, the Large
Programming Provider must also caption up to that additional amount. If
the Large Programming Provider used real-time captioning during the
first six months of 1997, our rules require the Large Programming
Provider must real-time caption its entire captioning requirement
(Benchmark Amount plus additional amount). If the Large Programming
Provider used ENR[^5] captioning during the first six months of 1997,
our rules require that the Large Programming Provider must real-time
caption the Benchmark Amount but gives the Large Programming Provider
the choice of whether to caption the additional amount of programming
using the ENR captioning method or the real-time captioning method.

**II. BACKGROUND**

3\. Section 713 required the Commission to prescribe rules and
implementation schedules for the closed captioning of video
programming[^6] regardless of the entity that provides the programming
to consumers or the category of programming.[^7] Section 713 required
the Commission to adopt rules including implementation schedules to
ensure that: (1) video programming first published or exhibited after
the effective date of such regulations (\"new programming\") is fully
accessible through the provision of closed captions; and (2) video
programming providers or owners maximize the accessibility of video
programming first published or exhibited prior to the effective date of
such regulations (\"pre-rule programming\") through the provision of
closed captions.[^8]

4\. The statute directed the Commission to adopt exemptions from the
general captioning requirements for programs, classes of programs, or
services for which we determine that the provision of closed captioning
would be economically burdensome to the provider or owner of such
programming.[^9] The statute also states that a provider of video
programming or program owner may petition the Commission for an
exemption from closed captioning when the requirements would impose an
undue *burden*, which is defined as significant difficulty or
expense.[^10] Section 713 also gave the Commission exclusive
jurisdiction with respect to any complaint under this section.[^11] To
implement Section 713, the Commission added a new Part 79, Closed
Captioning of Video Programming, to its rules, which became effective on
January 1, 1998.[^12]

5\. The Commission established rules and procedures for measuring
compliance with the closed captioning requirements adopted in the
*Closed Captioning and Video Description of Video Programming -
Implementation of Section 305 of the Telecommunications Act of 1996 -
Video Programming Accessibility* (\"*Report and Order*\").[^13] In the
*Report and Order,* the Commission determined that it would allow video
programmers to count, as part of compliance with the closed captioning
requirements, any captions created using the electronic newsroom
technique.[^14] The electronic newsroom technique is commonly used for
live programming, especially newscasts, and creates captions from a news
script computer or teleprompter. Only material that is scripted can be
captioned using this technique and, thus, within a program live field
reports, breaking news, sports and weather may remain uncaptioned.[^15]

6\. On reconsideration, however, the Commission decided that it would be
\"more consistent with the statutory intent\" of Section 713 to limit
the circumstances where we will count the use of electronic newsroom
captioning as a substitute for real-time captioning, and to eventually
phase out our recognition of electronic newsroom captioning.[^16]
Acknowledging that a real-time captioning requirement could, in certain
instances, impose an economic burden on smaller entities since resources
are likely to be limited the Commission, \"in recognition of the goal of
Section 713 to ensure full accessibility, made \[its\] best effort to
identify a class of video programmers for whom a real-time captioning
requirement would not be economically burdensome.\"[^17] We concluded
that it would not be economically burdensome to impose a real-time
captioning requirement on a limited group of the largest video
programming providers, including the four major national broadcast
networks (*i.e.*, ABC, CBS, Fox and NBC), broadcast stations affiliated
with these networks in the top 25 television markets as defined by
Nielsen\'s Designated Market Areas (\"DMAs\"), and nonbroadcast networks
serving 50% or more of the total number of multichannel video
programming distributor (\"MVPD\") households (hereinafter \"Large
Programming Providers\").[^18] 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 electronic newsroom captioning to comply with our rules.[^19]

7\. We established an eight-year transition schedule to phase in closed
captioning for new non-exempt video programming with benchmarks set at
two-year intervals.[^20] Captioning is measured on a per channel,
calendar quarter basis.[^21] To ensure that video programming
distributors have sufficient time to make the necessary arrangements to
comply with closed captioning requirements, the initial benchmark for
captioning was set for the first calendar quarter of 2000.[^22] For
example, the timetable for closed captioning of new English language
programming is set forth in Section 79.1(b)(1) of the Commission\'s
rules. In 2000 and 2001, video program distributors must provide at
least 450 hours of captioned new programming per channel during each
calendar quarter. In 2002 and 2003, that number will increase to 900
hours per channel, per calendar quarter. In 2004 and 2005, that number
will increase to an average of 1,350 hours per channel, per calendar
quarter. As of January 1, 2006, 100% of the distributor\'s new,
nonexempt programs must be provided with captions.[^23] Notwithstanding
the specific transition requirements and the exemptions otherwise
provided for in the rules, in order to make sure that the level of
captioning is generally increasing, the Commission also required video
programming providers to continue to provide closed captioning at a
level substantially the same as the average level that they provided
during the first six months of 1997, even if the amount of captioned
programming exceeds the requirement under the benchmarks.[^24] The
Commission refers to this requirement as the \"no backsliding\" rule.

**III. DISCUSSION**

8\. CBS\'s request seeks to have the Commission clarify the obligations
of those program providers that used the electronic newsroom technique
during the first six months of 1997 and will not be permitted to count
electronic newsroom captioned programming toward the applicable
captioning requirements beginning January 1, 2000. Specifically, CBS
seeks an order clarifying that these program providers, while encouraged
to switch to real-time captioning, will be permitted to continue to use
electronic newsroom captioning to fulfill their obligation to caption
substantially the same amount of live programming as they captioned
using this method in 1997, as long as they do not count electronic
newsroom captioning towards compliance with the applicable benchmark
requirements.

9\. CBS seeks clarification of the real-time captioning requirement in
conjunction with the applicable benchmarks and the no backsliding rule.
Specifically, CBS seeks clarification regarding whether it is permitted
to count electronic newsroom captioning towards compliance with the no
backsliding rule as long as it does not count electronic newsroom
captioned programming to meet the express benchmark requirements. In
discussing the real-time captioning requirement, we stated in the *Order
on Reconsideration* that:

we believe that a better balance of the desire to ensure accessibility
of video programming against the reality of resource limitations, is to
find that certain video programming providers, i.e., those most likely
to have access to real-time captioning resources and for which such a
requirement will not impose an economic burden, *should not be allowed
to use \[electronic newsroom captioning\] in lieu of real-time
captioning*.[^25]

Portions of the *Order on Reconsideration* refer to the amount of
programming that a Large Programming Provider must real-time caption to
remain in \"compliance with the rules,\"[^26] while other portions refer
to real-time captioning \"required by the benchmark.\"[^27]

10\. NAD/CAN maintain that CBS and other providers covered by the
Commission\'s new real-time mandates should not be permitted to count
electronic newsroom captioning toward compliance with any of the
Commission\'s captioning mandates, including the no backsliding rule.
NAD/CAN argue that permitting providers to fulfill their captioning
obligations through electronic newsroom captioning would conflict with
Congress\' mandate for full access to video programming.[^28]

11\. SHHH contends that the Commission determined that, beginning
January 1, 2000, the four major national broadcast networks (ABC, CBS,
Fox and NBC) and television stations in the top 25 television markets
that are affiliated with these networks will not be permitted to count
electronic newsroom captioned programming toward compliance with their
captioning requirements. SHHH argues that CBS\'s interpretation of this
mandate would effectively grandfather certain past users of electronic
newsroom captioning and permit them to continue using the electronic
newsroom captioning method in the year 2000 and beyond.[^29] SHHH argues
that the Commission should affirm that, effective January 1, 2000 and
thereafter, the major national broadcast television networks and their
affiliates in the top 25 television markets shall, in addition to
meeting the applicable benchmarks, continue to provide captioning at a
level substantially the same as the average level of captioning that
they provided during the first six months of 1997, and shall not count
new programming captioned by the electronic newsroom captioning
technique towards compliance with these rules.[^30]

12\. COR opposes the CBS proposal that it be permitted to continue
counting the electronic newsroom captioning technique to satisfy the no
backsliding rule, as it would nullify the intent and effect of both
Section 713 of the Communications Act and the Commission\'s own
real-time ruling in its *Order on Reconsideration.*[^31] TDI opposes
CBS\'s request for clarification for three reasons. First, the
Commission\'s *Order on Reconsideration* states plainly that electronic
newsroom captioning will not be acceptable for any nonexempt
programming.[^32] Second, the Commission determined that electronic
newsroom captioning is inferior to real-time closed captioning because
it does not provide the same degree of access to the individuals who are
deaf, hard of hearing, late deaf, and deaf-blind.[^33] Finally, TDI
argues that the financial impact on CBS for implementing real-time
closed captioning is neither significant nor burdensome.[^34]

13\. Mr. Jack O\'Keeffe argues that the Commission should reject CBS\'s
request and reaffirm that the rules require CBS and its affiliates in
the top 25 television markets, in addition to meeting all captioning
benchmarks, continue to provide captioning at substantially the same
level provided during the first six months of 1997, and should not count
programming captioned by electronic newsroom captioning towards
compliance.[^35]

14. To the extent necessary, we hereby clarify the interaction between
    our closed captioning rules. Section 79.1(b)(5), the no backsliding
    rule, requires that video programming distributors shall continue to
    provide captioned programming at substantially the same level as the
    average level of captioning that they provided during the first six
    months of 1997 even if that amount of captioning exceeds the
    benchmark requirements set forth in Section 79.1(b)(1)-(4).[^36] A
    programming provider must satisfy its express benchmark requirement,
    and the amount required by the no backsliding rule if the amount of
    programming captioned through any method for the first six months of
    1997 exceeds the express benchmark requirements.

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15. With regard to Large Programming Providers, we hereby clarify that
    to satisfy the electronic newsroom captioning requirement set forth
    in Section 79.1(e)(3), those providers must real-time caption only
    the express benchmark amount set forth in Sections 79.1(b)(1)-(4).
    If the amount required by the no backsliding rule of Section
    79.1(b)(5) exceeds the express benchmark requirements, Large
    Programming Providers are permitted to use whichever captioning
    method that the Large Programming Provider used during the first six
    months of 1997 to satisfy the no backsliding requirement. Thus, if a
    Large Programming Provider was using the electronic newsroom
    captioning method during the first six months of 1997, it may use
    electronic newsroom captioning to satisfy the no backsliding rule.
    Conversely, if a Large Programming Provider was using the real-time
    captioning method during the first six months of 1997, it must use
    real time captioning to satisfy the no backsliding rule.

16\. While some commenters strongly argue that all captioning required
of Large Programming Providers not count the electronic newsroom
captioning format, these arguments are contrary to the intent of the no
backsliding rule. The no backsliding rule was intended to ensure that
broadcasters that were captioning more programming in the first six
months of 1997 than that required by the express captioning benchmarks
did not scale-back its captioning efforts to the benchmark levels. The
no backsliding rule was not intended to impose greater costs and
responsibilities on programming providers.[^37]

**IV. ORDERING CLAUSES**

17\. Accordingly, **IT IS ORDERED** pursuant to Sections 4(i), 4(j) and
303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(j)
and 303(r), that the Request for Clarification filed by CBS Corporation
**IS GRANTED** to the extent discussed in this Clarification Order.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]:     ^?^*Implementation of Section 305 of the Telecommunications
    Act of 1996 - Video Programming Accessibility*, Order on
    Reconsideration, 13 FCC Rcd 19973 (1998) (\"*Order on
    Reconsideration*\").

[^2]:     ^?^47 U.S.C. § 613.

[^3]:     ^?^Pub. L. 104-104, 110 Stat. 56 (1996).

[^4]:     ^?^Defined as the four major national broadcast networks
    (*i.e.*, ABC, CBS, Fox and NBC), broadcast stations affiliated with
    these networks in the top 25 television markets as defined by
    Nielsen\'s Designated Market Areas (\"DMAs\"), and nonbroadcast
    networks serving 50% or more of the total number of multichannel
    video programming distributor (\"MVPD\") households.

[^5]:     ^?^Formerly known as electronic newsroom reporting (\"ENR\"),
    the Commission now refers to this technology as the electronic
    newsroom captioning technique. *See Federal Communications
    Commission Fact Sheet*: Closed Captioning of Video Programming (June
    1999).

[^6]:     ^?^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 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,* Report, 11 FCC Rcd 19214 (1996) (\"*Report*\") and
    *Implementation of Section 305 of the Telecommunications Act of
    1996 - Video Programming Accessibility*, Notice of Proposed
    Rulemaking, 12 FCC Rcd 1044 (1997) (\"*Notice*\").

[^7]:     ^?^*Notice* 12 FCC Rcd at 1048; *Report and Order* 13 FCC Rcd
    at 3276.

[^8]:     ^?^47 U.S.C. § 613(b) & (c).

[^9]:     ^?^47 U.S.C. § 613(d)(1). In addition, under Section 713, a
    provider of video programming or the owner of any program carried by
    the provider is not obligated to supply closed captions if such
    action would be inconsistent with contracts in effect on February 8,
    1996, the date of enactment of the 1996 Act. 47 U.S.C. § 613(d)(2).

[^10]:     ^?^47 U.S.C. § 613(d)(3) & (e).

[^11]:     ^?^47 U.S.C. § 613(h).

[^12]:     ^?^For a more complete summary of the rules, *see Report and
    Order* 13 FCC Rcd at 3280-82. *See also* 47 C.F.R. Part 79.

[^13]:     ^?^13 FCC Rcd 3272, 3309-13 (1997); 47 C.F.R. § 79.1(e*)*.

[^14]:     ^?^13 FCC Rcd at 3311-12; 47 C.F.R. § 79.1(e)(3).

[^15]:     ^?^*Report*, 11 FCC Rcd at 19231, 19235.

[^16]:     ^?^*Order on Reconsideration*, 13 FCC Rcd at 19991.
    \"Real-time\" captioning is a methodology that converts the entire
    audio portion of a live program to captions. *See Federal
    Communications Commission Fact Sheet:* Closed Captioning of Video
    Programming (June 1999).

[^17]:     ^?^*Id*. at 19991-92.

[^18]:     ^?^*Id.* at 19992.

[^19]:     ^?^*Id*.

[^20]:     ^?^Programs first shown on or after January 1, 1998, are
    considered \"new\" programming.

[^21]:     ^?^47 C.F.R. § 79.1(e)(1).

[^22]:     ^?^*Report and Order*, 13 FCC Rcd at 3294.

[^23]:     ^?^With respect to all the benchmark periods, if a video
    programming distributor provides less than the prescribed number of
    hours of new nonexempt video programming, then 95% of its new
    nonexempt video programming must be provided with captions. 47
    C.F.R. § 79.1(b)(1).

[^24]:     ^?^ 47 C.F.R. § 79.1(b)(3).

[^25]:     ^?^*Order on Reconsideration*, 13 FCC Rcd at 19991-92
    (emphasis added).

[^26]:     ^?^*Id.* at 19991-92 (*See* paragraphs 38 & 40).

[^27]:     ^?^*Id.* at 19993 (*See* paragraph 40).

[^28]:     ^?^NAD/CAN Comments at 2-4. NAD/CAN assert that full access
    cannot be achieved with electronic newsroom captioning because it
    does not provide captioning of live interviews, field reports,
    sports and weather updates, late breaking stories which are not
    pre-scripted, and banter among anchor persons. *Id.* at 3.

[^29]:     ^?^SHHH Comments at 2.

[^30]:     ^?^*Id.* at 5.

[^31]:     ^?^*COR Reply Comments at 2.* COR argues that video
    programming providers have an obligation under Section 713 to
    provide full access to their programs unless doing so would impose
    an economic or undue burden on these providers. COR also notes that
    the Commission has already determined that \"persons with hearing
    disabilities do not have full access to . . . programming when
    electronic newsroom captioning is used.\" *Id.* at 3, *quoting Order
    on Reconsideration*, 13 FCC Rcd at 19991.

[^32]:     ^?^TDI Reply Comments at 3, citing *Order on Reconsideration*
    at 19991-92.

[^33]:     ^?^*Id.*, citing, *Federal Communications Fact Sheet: Closed
    Captioning of Video Programming* (March 1999).

[^34]:     ^?^*Id.* at 3-5. TDI observes that the captioning
    requirements set forth in the *Order on Reconsideration* apply only
    to major broadcast networks and their affiliates in the top 25
    national television markets.

[^35]:     ^?^O\'Keeffe\'s Comments at 1.

[^36]:     ^?^47 C.F.R. § 79.1(b)(5).

[^37]:     ^?^Exemptions to our closed captioning rules may be granted,
    in whole or in part, for a channel of video programming, a category
    or type of video programming, an individual video service, a
    specific video program or a video programming provider upon a
    finding that the closed captioning requirements will result in an
    undue burden. 47 C.F.R. § 79.1(f)(1).