Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of :               | * |                              |
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| Kelby Nathan Brick               | ) |                              |
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| Comcast Cablevision of Maryland  | * |                              |
| and Courtroom                    | * |                              |
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| Television Network               | * |                              |
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| Request For Compliance with the  |   |                              |
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| Closed Captioning Requirements   | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: January 7, 2002** **Released: January 11, 2002**

By the Chief, Cable Services Bureau:

# I. INTRODUCTION {#i.-introduction .unnumbered}

1\. In the above-captioned proceeding,[^1] Kelby Nathan Brick, a cable
subscriber in Prince George's County, Maryland, filed a complaint
against the Courtroom Television Network ("Court TV") and Comcast
Cablevision of Maryland, Inc. ("Comcast") alleging that Comcast and
Court TV failed to comply with the Commission's closed captioning
requirements during the first and second quarters during the year
2000.[^2] Comcast filed a reply to the complaint and Court TV submitted
information regarding its captioning efforts.

# BACKGROUND 

2\. Section 713 of the Communications Act of 1934, as amended (the
"Act"), Video Programming Accessibility, was added by Section 305 of the
Telecommunications Act of 1996.[^3] To implement Section 713, the
Commission added a new Part 79, Closed Captioning of Video Programming,
to the rules, which became effective on January 1, 1998.[^4] Section 713
generally requires that video programming be closed captioned,
regardless of distribution technologies, to ensure that it is accessible
to persons with hearing disabilities. In *Implementation of Section 305
of the Telecommunications Act of 1996 -- Video Programming
Accessibility,* the Commission established rules, implementation
schedules, as well as compliance and enforcement mechanisms for the
closed captioning of video programming. The Commission's rules hold
video programming distributors responsible for compliance with the
closed captioning rules.[^5] The Commission stated that placing
compliance obligations on distributors will allow the Commission to
monitor and enforce the rules more efficiently, and would identify a
single entity to which complaints could be addressed.[^6] Although we
placed the ultimate responsibility on program distributors, we further
stated that distributors would likely incorporate closed captioning
requirements into their contracts with producers and owners to negotiate
for an efficient allocation of captioning responsibilities.[^7]

3\. For programming first broadcast or exhibited after the effective
date of the Commission's closed captioning rules,[^8] the Commission
adopted an eight year transition period during which distributors are
required to increase over time the amount of closed captioned video
programming they distribute until full accessibility of new programming
is achieved.[^9] Captioning is measured on a per channel, calendar
quarter basis.[^10] The eight year transition schedule phases in closed
captioning for new, nonexempt video programming with benchmarks set at
two year intervals.[^11] The initial benchmark began in the first
quarter of 2000. Video programming distributors are required to provide
at least 450 hours of captioned video programming on each channel,
during each calendar quarter, between January 1, 2000, and December 31,
2001.[^12] After this initial benchmark period, the captioning
requirements incrementally increase until full accessibility is
achieved.[^13] The Commission also established one benchmark provision
to require at least 30% of a channel's pre-rule programming be provided
with captions beginning on January 1, 2003.[^14] In addition, the
Commission adopted a ten year transition period for captioning of
pre-rule programming and required that 75% of all pre-rule programming
delivered to consumers during the first quarter of 2008 and thereafter
be captioned.[^15] With regard to the enforcement of rule provisions,
the Commission affords parties the opportunity to file complaints to
address violations of the closed captioning requirements, pursuant to
Section 79.1(g).[^16]

# DISCUSSION

4\. In his complaint to the Commission, Mr. Brick states that he
contacted Comcast and Court TV alleging that Court TV had failed to
caption new programming for the requisite 450 hours per quarter, during
the first and second quarters of 2000.[^17] Mr. Brick asserts that in
response to his complaint, Court TV maintained that it captioned three
hours of programming each weekday and that it was in compliance with the
captioning rules.[^18] Mr. Brick asserts, however, that three hours of
captioning each weekday yields only 15 hours of captioning per week and
195 hours of captioning per quarter, as there are approximately 13 weeks
in each quarter.[^19] Mr. Brick contends that because Court TV captioned
less than 450 hours of new programming, and failed to comply with
Section 79.1 of the Commission's rules, it is appropriate that the
Commission impose sanctions. Mr. Brick suggests several alternatives to
the Commission to address Court TV's failure to comply with the
captioning requirements, including imposing a fine, requiring the
completion of a plan to assure future compliance, and increasing the
captioning level to 75% for Court TV programming for the remainder of
the calendar year.[^20] In addition, Mr. Brick requests that the
Commission issue regulations requiring all networks, cable operators and
programmers to file compliance reports as to previous quarters, as well
as plans for captioning programs in upcoming quarters.[^21]

5\. Comcast states that after receiving Mr. Brick's complaint it
contacted Court TV. It states that by letter, Court TV explained that it
was in compliance with Part 79.[^22] Comcast asserts that it relied on
Court TV's representation that captioning had been completed to the
extent required and it thereafter assured Mr. Brick by letter that Court
TV was in compliance with the captioning requirements.[^23] However,
Comcast notes that Court TV thereafter discovered that it miscalculated
the number of hours of programming it actually captioned and advised
Comcast that it failed to meet its captioning obligations during the
first two calendar quarters of 2000.[^24] Comcast states that Court TV
subsequently certified that it intended to transmit sufficient hours of
captioned programming in the remaining quarters of 2000 to achieve an
annualized total of 1800 hours.[^25] Comcast indicates that Court TV
also certified that it would provide at least 450 hours of captioned new
programming in the remaining calendar quarters.[^26]

6\. Court TV, which filed a separate response with the Commission,
maintains that it captioned approximately 325 to 350 hours of
programming, not 195 hours, during first and second quarters of
2000.[^27] Upon discovering that the actual amount of captioning fell
short of the 450 hours per quarter required by the Commission's rules,
Court TV states that it immediately sought to increase its captioning
efforts.[^28] Court TV asserts that by July 10, 2000, it increased its
level of captioning to 530 hours of new original captioned programming
during the third quarter of 2000, and that it planned to transmit 549
hours during the fourth quarter.[^29] Court TV further asserts that it
will have transmitted approximately 2100 hours of captioned programming
during the year 2000 and intends to continue to provide at least the
same level of captioned new programming per calendar quarter in
2001.[^30]

7\. At issue in Mr. Brick's complaint is the captioning of new
programming and his allegation that the requisite hours of captioned
programming was not being provided during the first and second quarters
of 2000. While the total number of hours of new programming captioned
during this period is not clear, it is undisputed that the required
number of hours were not captioned. In addition, although Mr. Brick's
relief request is directed to both Court TV and Comcast, the closed
captioning regulations provide that distributors are responsible for
ensuring compliance with the captioning requirements. Given this
responsibility, Comcast should have more closely scrutinized the
information provided by Court TV for its accuracy. In its letter to
Comcast, Court TV indicated that three hours of programming was
captioned daily. Upon receiving such information, Comcast should have
known that Court TV was not in compliance with the captioning rules. As
a distributor of programming, Comcast is responsible for ensuring that
the programming it distributes on its systems complies with the
Commission's captioning requirements. It failed to do so here.

8\. Because there was an obvious lack of captioning for the required
number of hours during the first half of the year 2000, we instruct
Comcast to be more vigilant in ensuring compliance with the captioning
regulations. We are, however, encouraged that the level of closed
captioning of Court TV's daily schedule of original programming during
the third and fourth quarters of 2000 increased, and that Court TV
exceeded during those periods the required hours for captioning. Court
TV also indicated that it would continue to provide at least the same
level of captioned new programming per calendar quarter in the year
2001.[^31] As there has been a successful, albeit delayed, effort to
comply with the captioning requirements, penalties, sanctions or other
remedial measures are not warranted at this time.[^32]

# IV. ordering clauses  {#iv.-ordering-clauses .unnumbered}

9\. Accordingly, **IT IS ORDERED** that the complaint filed by Kelby
Nathan Brick against Comcast Corporation and Courtroom Television
Network **IS GRANTED** to the extent indicated herein.

10\. This action is taken pursuant to delegated authority under Section
0.321 of the Commission's rules.[^33]

FEDERAL COMMUNICATIONS COMMISSION

W. Kenneth Ferree

Chief, Cable Services Bureau

[^1]: We note that Mr. Brick first sought to address his concerns by
    filing a complaint with Comcast and Court TV, as required by the
    Commission rules. *See* 47 C.F.R. § 79.1(g). As the complaint was
    not resolved to his satisfaction during that initial stage, Mr.
    Brick filed this complaint with the Commission.

[^2]: Comcast distributes programming provided by Court TV on its cable
    system.

[^3]: 47 U.S.C. § 613.

[^4]: S*ee Implementation of Section 305 of the Telecommunications Act
    of 1996 -- Video Programming Accessibility,* 13 FCC Rcd 3272 (1998)
    (*Report and Order)*; *see also* 47 C.F.R. Part 79.

[^5]: *Report and Order,* 13 FCC Rcd at 3286; *see also* 47 C.F.R. §
    79.1(a)(2). Video programming distributors are entities who provide
    video programming directly to a customer's home, regardless of the
    distribution technology employed. Distributors include broadcasters,
    cable operators, wireless cable operators, SMATV operators, DBS
    providers, DTH providers, HSD providers and OVS operators.

[^6]: *Report and Order,* 13 FCC Rcd at 3286.

[^7]: *Id.*

[^8]: New nonexempt programming refers to programming first published on
    or after January 1, 1998, the effective date of the rules. Section
    713(d) authorizes the Commission to exempt certain programming from
    the captioning requirements by regulation. *See* 47 U.S.C. § 613(d).

[^9]: *Implementation of Section 305 of the Telecommunications Act of
    1996 -- Video Programmming Accessibility,* 13 FCC Rcd 19973, 19976
    (1998) ("*Order on Reconsideration")*.

[^10]: 47 C.F.R. § 79.1(e)(1).

[^11]: *Order on Reconsideration,* 13 FCC Rcd at 19976.

[^12]: *Id.*

[^13]: *See* 47 C.F.R. § 79.1(b). The Commission defines full
    accessibility to be the captioning of 100% of all new, nonexempt
    video programming. Effective January 1, 2006, 100% of the
    programming distributor's new, nonexempt programming must be
    provided with captions. To the extent that the number of hours of
    new, nonexempt programming on a channel during a calendar quarter is
    less than the benchmarks specified during the transition period,
    then 100% of all new, nonexempt programming on that channel must be
    captioned.

[^14]: *Order on Reconsideration,* 13 FCC Rcd at 19988.

[^15]: *Id.* at 19984, 19988. Programming published or exhibited prior
    to January 1, 1998, is defined as pre-rule programming under the
    Commission's closed captioning rules.

[^16]: *Id.* at 20022-25; *see also* 47 C.F.R. § 79.1(g).

[^17]: Complaint at 1.

[^18]: *Id. See* Letter from Glenn Moss, Vice President for Business
    Affairs and Affiliate Relations Court TV, to Kelby Nathan Brick
    (June 16, 2000).

[^19]: Complaint at 1.

[^20]: *Id.* Mr. Brick does not request a similar sanction for Comcast.

[^21]: *Id.*

[^22]: Comcast Reply at 2.

[^23]: *Id*. *See* Letter from Thomas R. Nathan, General Counsel,
    Comcast, to Kelby Nathan Brick (June 19, 2000).

[^24]: Comcast Reply at 3.

[^25]: Certification of Compliance with Closed Captioning Requirements
    for January 1, 2000 through December 31, 2001, Glenn Moss, Vice
    President Court TV (July 10, 2000).

[^26]: *Id.*

[^27]: Court TV Response at 3.

[^28]: *Id.* Court TV states that during the first half of the year,
    among the programs captioned were episodes of the show "Cops," which
    it acknowledges was originally produced before January 1, 1998.
    Court TV asserts that the program was "new" to its network and, as
    such, was considered by Court TV to be new programming. As we have
    stated, programs produced prior to 1998 are considered pre-rule
    programming and would not satisfy the requirements for new
    programming.

[^29]: *Id.* at 4. *See also* Declaration of Glenn Moss, Vice President
    for Business Affairs and Affiliate Relations, Court TV (July 24,
    2000). He states that by July 10, 2000, Court TV had begun airing
    new captioned programming from 11:30 am to 6:30 pm, and as of July
    17, 2000, its entire daytime schedule of original programming, from
    9 am to 6:30 pm, was aired in closed captions. Moreover, Moss states
    that Court TV determined that it needed to increase its use of
    closed captioning for original programming, independent of showing
    episodes of the program "Cops."

[^30]: *Id.* at 4.

[^31]: Court TV Response at 4.

[^32]: Comcast should be aware that violations of the captioning
    obligations in the future may result in more severe penalties.
    Section 79.1(g)(8) provides that various penalties may be imposed,
    including requiring a video programming distributor to deliver
    programming containing closed captioning in an amount exceeding the
    benchmarks specified for a particular captioning time period. *See*
    47 C.F.R. § 79.1(g)(8).

[^33]: 47 C.F.R. § 0.321.