[Federal Register Volume 77, Number 62 (Friday, March 30, 2012)]
[Rules and Regulations]
[Pages 19480-19520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7247]



[[Page 19479]]

Vol. 77

Friday,

No. 62

March 30, 2012

Part IV





Federal Communications Commission





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47 CFR Parts 15 and 79





 Closed Captioning of Internet Protocol-Delivered Video Programming: 
Implementation of the Twenty-First Century Communications and Video 
Accessibility Act of 2010; Final Rule

Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules 
and Regulations

[[Page 19480]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 15 and 79

[MB Docket No. 11-154; FCC 12-9]


Closed Captioning of Internet Protocol-Delivered Video 
Programming: Implementation of the Twenty-First Century Communications 
and Video Accessibility Act of 2010

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: Pursuant to the Twenty-First Century Communications and Video 
Accessibility Act of 2010, the FCC revises its regulations to require 
closed captioning of IP-delivered video programming that is published 
or exhibited on television with captions after the effective date of 
the new regulations. The FCC also imposes closed captioning 
requirements on certain apparatus that receive or play back video 
programming, and on certain recording devices. This action will better 
enable individuals who are deaf or hard of hearing to view IP-delivered 
video programming, as Congress intended.

DATES: Effective April 30, 2012, except for Sec. Sec.  79.4(c)(1)(ii), 
79.4(c)(2)(ii) through (iii), 79.4(d)(1) through (4) and (d)(6) through 
(9), 79.4(e)(1) through (6), and 79.103(b)(3) through (4), which 
contain information collection requirements that are not effective 
until approved by the Office of Management and Budget. The FCC will 
publish a document in the Federal Register announcing the effective 
date for those sections. The incorporation by reference of certain 
publications listed in the rules is approved by the Director of the 
Federal Register as of April 30, 2012. Written comments on the 
Paperwork Reduction Act (PRA) modified information collection 
requirements must be submitted by the public, OMB and other interested 
parties on or before May 29, 2012.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding pertaining to Section 202 of the CVAA, contact Diana 
Sokolow, <a href="/cdn-cgi/l/email-protection#d397bab2bdb2fd80bcb8bcbfbca493b5b0b0fdb4bca5"><span class="__cf_email__" data-cfemail="a6e2cfc7c8c788f5c9cdc9cac9d1e6c0c5c588c1c9d0">[email protected]</span></a>, of the Policy Division, Media Bureau, 
(202) 418-2120. For additional information on this proceeding 
pertaining to Section 203 of the CVAA, contact Jeffrey Neumann, 
<a href="/cdn-cgi/l/email-protection#367c53505044534f187853435b5758587650555518515940"><span class="__cf_email__" data-cfemail="48022d2e2e3a2d3166062d3d25292626082e2b2b662f273e">[email protected]</span></a>, of the Engineering Division, Media Bureau, 
(202) 418-7000. For additional information concerning the Paperwork 
Reduction Act information collection requirements contained in this 
document, contact Cathy Williams at 202-418-2918, or via the Internet 
at <a href="/cdn-cgi/l/email-protection#d9898b9899bfbabaf7beb6af"><span class="__cf_email__" data-cfemail="b7e7e5f6f7d1d4d499d0d8c1">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, FCC 12-9, adopted on January 12, 2012 and released on 
January 13, 2012, and the Erratum thereto, released on January 30, 
2012. The full text of this document is available for public inspection 
and copying during regular business hours in the FCC Reference Center, 
Federal Communications Commission, 445 12th Street SW., CY-A257, 
Washington, DC 20554. This document will also be available via ECFS 
(http://www.fcc.gov/cgb/ecfs/). (Documents will be available 
electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete 
text may be purchased from the Commission's copy contractor, 445 12th 
Street SW., Room CY-B402, Washington, DC 20554. To request this 
document in accessible formats (computer diskettes, large print, audio 
recording, and Braille), send an email to <a href="/cdn-cgi/l/email-protection#35535656000501755356561b525a43"><span class="__cf_email__" data-cfemail="35535656000501755356561b525a43">[email protected]</span></a> or call the 
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Paperwork Reduction Act of 1995 Analysis

    This document contains modified information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public to comment on the 
information collection requirements contained in this Report and Order 
as required by the Paperwork Reduction Act of 1995, Public Law 104-13. 
In addition, the Commission notes that pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), we previously sought specific comment on how the Commission 
might further reduce the information collection burden for small 
business concerns with fewer than 25 employees. We did not receive any 
comments specifically addressing this issue. In the present document, 
we have assessed the effects of the new requirements on small 
businesses, including those with fewer than 25 employees, in the Final 
Regulatory Flexibility Analysis (``FRFA'') below.

Summary of the Report and Order

I. Introduction

    1. Pursuant to our responsibilities under the Twenty-First Century 
Communications and Video Accessibility Act of 2010 (``CVAA''),\1\ this 
Report and Order adopts rules governing the closed captioning 
requirements for the owners, providers, and distributors of video 
programming delivered using Internet protocol (``IP'').\2\ This Report 
and Order also adopts rules governing the closed captioning 
capabilities of certain apparatus on which consumers view video 
programming. Closed captioning is the visual display of the audio 
portion of video programming, which provides access to individuals who 
are deaf or hard of hearing. Prior to the adoption of the CVAA, the 
Communications Act of 1934, as amended (the ``Act''), required the use 
of closed captioning on television, but not on IP-delivered video 
programming that was not part of a broadcaster or multichannel video 
programming distributor (``MVPD'') service. That changed with the 
enactment of the CVAA, which directed the Federal Communications 
Commission (``Commission'') to revise its regulations to require closed 
captioning of IP-delivered video programming that is published or 
exhibited on television with captions after the effective date of the 
new regulations. Further, the CVAA directed the Commission to impose 
closed captioning requirements on certain apparatus that receive or 
play back video programming, and on certain recording devices. The 
rules we adopt here will better enable individuals who are deaf or hard 
of hearing to view IP-delivered video programming, as Congress 
intended. Moreover, we believe these benefits of our rules to deaf or 
hard of hearing consumers will outweigh the affected entities' costs of 
compliance.
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    \1\ Public Law 111-260, 124 Stat. 2751 (2010). See also 
Amendment of Twenty-First Century Communications and Video 
Accessibility Act of 2010, Public Law 111-265, 124 Stat. 2795 (2010) 
(making technical corrections to the CVAA).
    \2\ The CVAA defines ``Internet protocol'' as including 
``Transmission Control Protocol and a successor protocol or 
technology to Internet protocol.'' Public Law 111-260, sec. 206(5).
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    2. As discussed in Section III below, we adopt the following closed 
captioning requirements for the owners, providers, and distributors of 
IP-delivered video programming under Section 202(b) through (c) of the 
CVAA. Specifically, we adopt rules that will:
    <bullet> Specify the obligations of entities subject to Section 
202(b) by:
    [cir] Requiring video programming owners to send required caption 
files for IP-delivered video programming to video programming 
distributors and providers along with program files;

[[Page 19481]]

    [cir] Requiring video programming distributors and providers to 
enable the rendering or pass through of all required captions to the 
end user, including through the hardware or software that a distributor 
or provider makes available for this purpose;
    [cir] Requiring video programming owners and video programming 
distributors and providers to agree upon a mechanism to make available 
to video programming distributors and providers information on video 
programming that is subject to the IP closed captioning requirements on 
an ongoing basis; and
    [cir] Requiring video programming owners to provide video 
programming distributors and providers with captions of at least the 
same quality as the television captions for the same programming, and 
requiring distributors and providers to maintain the quality of the 
captions provided by the video programming owner.
    <bullet> Create a schedule of deadlines under which:
    [cir] All prerecorded programming that is not edited for Internet 
distribution and is subject to the new requirements must be captioned 
if it is shown on television with captions on or after the date six 
months after publication of these rules in the Federal Register;
    [cir] All live and near-live programming subject to the new 
requirements must be captioned if it is shown on television with 
captions on or after the date 12 months after publication of these 
rules in the Federal Register;
    [cir] All prerecorded programming that is edited for Internet 
distribution and is subject to the new requirements must be captioned 
if it is shown on television with captions on or after the date 18 
months after publication of these rules in the Federal Register; and
    [cir] Archival content must be captioned according to the following 
deadlines: Beginning two years after publication of these rules in the 
Federal Register, all programming that is subject to the new 
requirements and is already in the VPD's library before it is shown on 
television with captions must be captioned within 45 days after it is 
shown on television with captions. Beginning three years after 
publication of these rules in the Federal Register, such programming 
must be captioned within 30 days after it is shown on television with 
captions. Beginning four years after publication of these rules in the 
Federal Register, such programming must be captioned within 15 days 
after it is shown on television with captions;
    <bullet> Craft procedures by which video programming providers and 
owners may petition the Commission for exemptions from the new 
requirements based on economic burden;
    <bullet> Not treat a de minimis failure to comply with the new 
rules as a violation, and permit entities to comply with the new 
requirements by alternate means, as provided in the CVAA; and
    <bullet> Adopt procedures for complaints alleging a violation of 
the new requirements.
    3. As discussed in Section IV below, we adopt the following closed 
captioning requirements for the manufacturers of devices used to view 
video programming under Section 203 of the CVAA. Specifically, we adopt 
rules that will:
    <bullet> Establish what apparatus are covered by Section 203:
    [cir] All physical devices designed to receive and play back video 
programming, including smartphones, tablets, personal computers, and 
television set-top boxes;
    [cir] All ``integrated software'' in covered devices (that is, 
software installed in the device by the manufacturer before sale or 
that the manufacturer requires the consumer to install after sale); and
    [cir] All recording devices and removable media players;
    <bullet> Exclude professional and commercial equipment from the 
scope of Section 203;
    <bullet> Exempt display-only monitors as set forth in Section 203, 
and establish procedures for finding a lack of achievability or 
technical feasibility;
    <bullet> Establish the requirements for devices covered by Section 
203:
    [cir] Specify how covered apparatus must implement closed 
captioning by adopting functional display standards;
    [cir] Require apparatus to render or pass-through closed captioning 
on each of their video outputs;
    [cir] Decline to grant blanket waivers or exempt any device or 
class of devices from our rules based on achievability or the waiver 
provisions set forth in Section 203;
    <bullet> Establish general complaint procedures and modify our 
existing television receiver closed captioning decoder requirements to 
conform to screen size and achievability provisions; and
    <bullet> Establish a deadline for compliance of January 1, 2014 by 
which devices must comply with the requirements of Section 203.
    Finally, we adopt a safe harbor for use of a particular interchange 
and delivery format.

II. Background

    4. On October 8, 2010, President Obama signed the CVAA into law, 
requiring the Commission to establish closed captioning rules for the 
owners, providers, and distributors of IP-delivered video programming, 
and for certain apparatus on which consumers view video programming. 
The CVAA also required the Commission to establish an advisory 
committee known as the Video Programming Accessibility Advisory 
Committee (``VPAAC''), which submitted its statutorily mandated report 
on closed captioning of IP-delivered video programming to the 
Commission on July 12, 2011.\3\ The Commission initiated this 
proceeding in September 2011.\4\ In the NPRM, the Commission provided 
extensive background information regarding the history of closed 
captioning, IP-delivered closed captioning, the applicable provisions 
of the CVAA, and the VPAAC Report, which we need not repeat here. The 
CVAA directs the Commission to revise its rules within six months of 
the submission of the VPAAC Report to require closed captioning on IP-
delivered video programming and include a schedule of deadlines for the 
provision of such closed captioning. By the same date, Section 203 of 
the CVAA directs the Commission to adopt requirements for the closed 
captioning capabilities of certain apparatus. To fulfill these 
statutory mandates, we adopt the rules discussed below.\5\
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    \3\ See First Report of the Video Programming Accessibility 
Advisory Committee on the Twenty-First Century Communications and 
Video Accessibility Act of 2010: Closed Captioning of Video 
Programming Delivered Using Internet Protocol, July 12, 2011, 
available at http://transition.fcc.gov/cgb/dro/VPAAC/First_VPAAC_Report_to_the_FCC_7-11-11_FINAL.pdf (``VPAAC Report'').
    \4\ Closed Captioning of Internet Protocol-Delivered Video 
Programming: Implementation of the Twenty-First Century 
Communications and Video Accessibility Act of 2010, FCC 11-138, 76 
FR 59963, Sept. 28, 2011 (``NPRM'').
    \5\ Given the tight statutory deadline, we decline to consider 
proposals that go beyond implementation of the specific requirements 
of the CVAA.
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    5. As discussed in the NPRM, in 1997 the Commission first adopted 
rules and implementation schedules for closed captioning of video 
programming on television.\6\ In recent years, the Internet has become 
a powerful method of video programming distribution, and the amount of 
video content available on the Internet is increasing significantly 
each year. IP-delivered video programming today takes a number of 
forms, such as programming delivered to a personal computer, tablet 
device,

[[Page 19482]]

cellular telephone, game console, Blu-ray player, or set-top box. 
Through the CVAA, Congress sought to ``update the communications laws 
to help ensure that individuals with disabilities are able to fully 
utilize communications services and equipment and better access video 
programming.'' \7\ Video programming owners sometimes make their video 
programming available via IP through their own Web sites, and sometimes 
they enter into licensing agreements with third parties to distribute 
their video programming using IP. Although closed captioning of IP-
delivered video programming has not been required previously, certain 
companies have chosen to make it available voluntarily. When a video 
programming owner enters into a licensing agreement with a third party 
to enable the third party to distribute the owner's programming via IP, 
the video programming owner or other entity may provide a closed 
captioning file to the third-party distributor, which may then make the 
closed captioning available to end users. The rules adopted below will 
implement new responsibilities regarding the distribution of video 
programming over IP, as well as new requirements for the apparatus 
consumers use to view video programming.
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    \6\ See NPRM; see also Closed Captioning of Video Programming, 
FCC 97-279, 62 FR 48487, Sept. 16, 1997 (``1997 Closed Captioning 
Order''), recon. granted in part, Order on Reconsideration, FCC 98-
236, 63 FR 55959, Oct. 20, 1998 (``1998 Closed Captioning Recon. 
Order'').
    \7\ See S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010) 
(``Senate Committee Report''); H.R. Rep. No. 111-563, 111th Cong., 
2d Sess. at 19 (2010) (``House Committee Report'').
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III. Section 202 of the CVAA

A. Entities Subject to Section 202(b) of the CVAA and Their Obligations

1. Definition of Video Programming Owner, Distributor, and Provider
    6. Provisions in Section 202(b) and (c) of the CVAA use the terms 
``video programming owner'' (``VPO''), ``video programming 
distributor'' (``VPD''), and ``video programming provider'' (``VPP'') 
without defining these terms. Accordingly, the Commission must define 
these terms for purposes of our implementing regulations.\8\
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    \8\ The definitions we adopt for the terms VPO, VPD and VPP in 
this Report and Order apply only to those terms as used with regard 
to Sections 202 and 203 of the CVAA, and not to those terms in other 
contexts, such as our television closed captioning or video 
description rules.
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    7. Video Programming Owner. As explained below, we define a VPO as 
``any person or entity that either (i) licenses the video programming 
to a video programming distributor or provider that makes the video 
programming available directly to the end user through a distribution 
method that uses Internet protocol; or (ii) acts as the video 
programming distributor or provider, and also possesses the right to 
license the video programming to a video programming distributor or 
provider that makes the video programming available directly to the end 
user through a distribution method that uses Internet protocol.'' In 
the NPRM, the Commission proposed to define a VPO as ``any person or 
entity that owns the copyright of the video programming delivered to 
the end user through a distribution method that uses IP.'' Several 
commenters support this proposal. DIRECTV, however, proposes that the 
Commission ``should define `owner' as the single entity that licenses 
the copyrighted work for distribution,'' and Consumer Groups argue that 
the definition of VPO proposed in the NPRM should be ``more robust.'' 
We agree with DIRECTV that the definition proposed in the NPRM is 
problematic for present purposes because multiple copyright owners may 
possess particular rights in a single piece of video programming. In 
this context, we are interested in the person or entity that licenses 
the video programming to a video programming distributor or provider 
that makes the video programming available directly to the end user 
through a distribution method that uses IP. Defining a VPO in this 
manner will ensure that a single entity is responsible for fulfilling 
the VPO's responsibilities, which is beneficial from an enforcement 
perspective given that an alternative definition may create problems in 
identifying the responsible VPO. We expect that the VPO often, but not 
always, will be the copyright owner. Even in instances in which the VPO 
does not itself create captions for the programming, we expect that the 
VPO (as we define that term) will be better positioned than the VPD or 
VPP to obtain the captions, since by definition the VPO is higher up 
the distribution chain than the VPD or VPP. Accordingly, we adopt 
DIRECTV's proposed definition of VPO. We recognize, however, that there 
may be situations where the VPO is also the VPD or VPP (for example, if 
the VPO makes its video programming available through its own Web 
site), and we believe that our definition also should cover VPOs in 
such situations, even though there is no licensing agreement in such 
circumstances.\9\ Accordingly, we expand the definition of VPO proposed 
by DIRECTV to include any person or entity that acts as the video 
programming distributor or provider, and also possesses the right to 
license the video programming to a video programming distributor or 
provider that makes the video programming available directly to the end 
user through a distribution method that uses Internet protocol. Thus, 
the definition of VPO is intended to include entities that have the 
right to license IP distribution of programming to others, but make the 
programming available through their own Web sites, as well as entities 
that license others to distribute the video programming to the end 
users.
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    \9\ Where the VPO is also the VPD or VPP, it may not rely on a 
good faith use of the mechanism described in Section III.A.2, infra, 
because as the VPO, it should know whether its programming is shown 
on television with captions after the effective date of our new 
rules.
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    8. Video Programming Distributor and Provider. We adopt the 
definition of VPD and VPP that the Commission proposed in the NPRM, 
with one modification. Specifically, we define a VPD or VPP as any 
person or entity that makes video programming available directly to the 
end user through a distribution method that uses IP. We have added the 
phrase ``person or'' to this proposed definition to parallel the VPO 
definition adopted herein, and to make explicit our coverage of an 
individual distributor or provider, to the extent one exists.
    9. We affirm the NPRM's tentative conclusion to define VPDs and 
VPPs as meaning the same thing. Congress directed the Commission to 
``describe the responsibilities of video programming providers or 
distributors,'' leaving it to the Commission's discretion to determine 
whether to define the terms as interchangeable. Based on the existing 
record, we find that in the context of IP closed captioning, VPDs and 
VPPs are both people or entities that make video programming available 
directly to the end user through a distribution method that uses IP. We 
have no factual basis on which to distinguish between VPDs and VPPs and 
the record does not support different definitions.\10\ Although we 
recognize that certain provisions in the CVAA reference VPPs but not 
VPDs, we disagree with TWC that Congress affirmatively decided that 
VPDs and VPPs are distinct categories with distinct responsibilities, 
and we do not see any support for that position in the legislative 
history. Thus, we find no legal or policy basis for interpreting VPDs 
and VPPs differently. In this regard, we note that several commenters 
in the record support our finding. And we also note that, although the 
Commission in the NPRM highlighted the fact that certain statutory 
provisions

[[Page 19483]]

reference VPPs, but not VPDs, and asked specifically about the 
relevance of this, commenters did not provide any insight on this 
issue.
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    \10\ Since for the reasons stated in this paragraph, we define 
VPDs and VPPs as meaning the same thing, we will refer to them as 
``VPDs'' throughout the rest of this Report and Order.
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    10. We note that commenters that suggest that VPD and VPP should 
mean different things propose definitions that would reach entities 
that we do not believe Congress intended to cover through the CVAA, 
such as an Internet service provider (``ISP'') from which end users 
receive Internet access. Congress specifically excluded such entities 
from obligations under the CVAA for advanced communications services, 
and similarly we do not think that Congress intended to reach them 
here. We agree with ACA, ITTA, and NCTA that VPDs and VPPs should not 
include entities that are acting as ISPs, simply providing access to 
video programming distributed by another entity.\11\ We find that 
regulating such entities as part of the IP closed captioning regime 
would be unworkable; for example, Section 202(b) of the CVAA requires 
VPDs and VPPs to make ``a good faith effort to identify video 
programming subject to the'' closed captioning requirements, a 
requirement that could not be met by an entity that merely provides 
Internet access and is not aware of the video programming content that 
it passes along the distribution chain.
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    \11\ To the extent an ISP distributes video programming directly 
to end users, for example by making video programming available on 
its own Web site, the ISP is not merely providing access to the 
video programming distributed by another VPD, but rather, is acting 
as a VPD.
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    11. For the reasons explained below, the IP closed captioning rules 
will not apply to a broadcaster's or MVPD's provision of programming 
that is subject to the Commission's television closed captioning rules. 
Section 79.1 imposes television closed captioning requirements on video 
programming distributors, which it defines as ``[a]ny television 
broadcast station licensed by the Commission and any [MVPD] as defined 
in Sec.  76.1000(e) 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.'' In the NPRM, the Commission proposed to define VPD in the 
IP closed captioning context as ``any entity that makes available 
directly to the end user video programming through a distribution 
method that uses IP.'' Some commenters support the proposed definition. 
Others assert that rather than ``IP'' distribution, the Commission's 
regulations should focus more specifically on online or Internet 
distribution. These commenters express concern over the confusion that 
would result from new rules that cover some of the same MVPD services, 
such as IPTV,\12\ that are covered by the Commission's existing 
television closed captioning rules. We agree with ACA that we must 
presume Congress knew that MVPDs are subject to existing closed 
captioning rules. The television closed captioning rules are broader 
than the IP closed captioning rules adopted herein, insofar as the 
television closed captioning rules require closed captioning for all 
new nonexempt English- and Spanish-language video programming, whereas 
the CVAA only requires closed captioning of IP-delivered video 
programming if the programming is ``published or exhibited on 
television with captions after the effective date'' of the new rules. 
Congress did not give any indication that it intended the new IP closed 
captioning rules to override the existing television closed captioning 
rules where an MVPD provides its service via IP. Thus, we clarify that 
the new IP closed captioning rules do not apply to traditional managed 
video services that MVPDs provide to their MVPD customers within their 
service footprint, regardless of the transmission protocol used; 
rather, such services are already subject to Sec.  79.1 of the 
Commission's rules.\13\
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    \12\ Internet Protocol Television (``IPTV'') is a technology 
used by some MVPDs to deliver television services. Video content 
typically travels over a managed, two-way IP network and can be 
delivered to the subscriber using a combination of fiber and Digital 
Subscriber Line (``xDSL'') over copper technology.
    \13\ By ``traditional managed video service,'' we mean a service 
through which an MVPD offers multiple channels of video programming, 
including IP-based video offerings such as those provided by AT&T.
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    12. All video programming that is available on the Internet is IP-
delivered, but not all video programming that is delivered via IP is 
Internet programming. We therefore decline to limit application of the 
IP closed captioning requirements to programming that VPDs deliver over 
the Internet. While some portions of the legislative history reference 
``Internet distribution,'' we agree with Consumer Groups that such 
references were not intended to limit the reach of Section 202(b) to 
Internet-delivered video programming. To the contrary, consistent with 
the language of the statute itself, the legislative history made 
repeated references to ``Internet protocol.'' We agree with Consumer 
Groups that if Congress had intended the CVAA to apply more narrowly to 
a certain class of IP-delivered video programming, it would have said 
so. We note that, as technology evolves, a decision to limit the 
application of the new IP closed captioning rules to ``Internet'' or 
``online'' video programming could have unforeseen consequences. For 
the same reasons, we disagree with ACA's proposal that an MVPD be 
subject to the new IP closed captioning requirements only when it is 
``acting as an online video distributor outside its MVPD footprint.'' 
An MVPD that distributes video programming online within its MVPD 
footprint, but not as part of its MVPD service subject to Sec.  79.1, 
will be subject to new Sec.  79.4. In general, an MVPD will be subject 
to the new IP closed captioning rules if it is distributing IP-
delivered video programming that is not part of the traditional managed 
video services that it provides its MVPD customers within its service 
footprint. The distinction that ACA proposes, which would exclude from 
coverage online video distribution within the MVPD's footprint, is 
unsupported by the CVAA and its legislative history.
    13. We are not persuaded by the concerns of Consumers Groups that 
the proposed definition of VPD is both under-inclusive and over-
inclusive. Specifically, Consumer Groups argue that the proposed 
definition is under-inclusive, in that it includes the term 
``directly'' and thus may not reach certain entities, and over-
inclusive, in that it ``may lay captioning responsibility at the feet 
of network providers and other entities that lack the ability to assist 
consumers in fixing videos with insufficient or missing captions.'' We 
do not believe that inclusion of the term ``directly'' in the 
definition of VPD is under-inclusive; rather, use of the word 
``directly'' avoids placing requirements on certain entities, such as 
ISPs, that are not aware of the video programming content that they 
pass along the distribution chain. Our definition is also consistent 
with Section 202(b) of the CVAA, which requires the Commission's 
regulations to ``clarify that * * * the terms `video programming 
distributors' and `video programming providers' include an entity that 
makes available directly to the end user video programming through a 
distribution method that uses Internet protocol.'' As to the argument 
that the proposed definition is over-inclusive, we find that VPDs, as 
we have defined them, will in fact include the entities that are best 
suited to address consumer concerns in the first instance. We agree 
with Consumer Groups that an entity that merely caches Internet videos 
hosted on another Web site or server is not a VPD.

[[Page 19484]]

2. Responsibilities of Video Programming Owners, Distributors, and 
Providers
    14. Section 202(b) of the CVAA requires the Commission's 
regulations to ``describe the responsibilities of video programming 
providers or distributors and video programming owners.'' It also 
requires the Commission to ``establish a mechanism to make available to 
video programming providers and distributors information on video 
programming subject to the Act on an ongoing basis.'' The purpose of 
the required ``mechanism'' is to enable VPDs to determine whether the 
video programming that they intend to make available via IP has been 
shown on television with captions after the effective date of the new 
rules. Section 202(b) further provides that the Commission's 
regulations for closed captioning of IP-delivered video programming:

Shall consider that the video programming provider or distributor 
shall be deemed in compliance if such entity enables the rendering 
or pass through of closed captions and makes a good faith effort to 
identify video programming subject to the Act using the mechanism 
[referenced above].

    15. Video programming owner responsibilities. We adopt the NPRM's 
proposal to require VPOs to send program files to VPDs with all 
required captions.\14\ We find that placing such an obligation on VPOs 
is consistent with the CVAA and the record in this proceeding.\15\ 
Although we acknowledge that the Commission chose not to directly 
regulate video programming owners in the television context and that 
there are similarities between the television and IP captioning 
statutory schemes, the record in this proceeding reflects that ``closed 
captioning over television and IP are fundamentally different and merit 
different regulatory approaches.''
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    \14\ We leave it to the parties to determine how or whether a 
VPO should convey to a VPD that captions are not required for a 
particular program because it has not been shown on television with 
captions, even though the VPO is providing a caption file. We 
strongly encourage VPDs to provide captioning for programming 
delivered via IP in all instances in which the VPO makes an 
appropriate captioning file available.
    \15\ Of course, a VPD that is also a VPO is subject to the 
requirements of VPDs and the requirements of VPOs, such that it must 
produce the captions.
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    16. Our decision is consistent with the statutory language. Section 
202(b) of the CVAA requires the Commission to revise its regulations to 
require closed captioning\16\ of IP-delivered video programming that 
was shown on broadcast or MVPD-delivered television with captions after 
the effective date of the new regulations. While the CVAA does not 
direct the Commission to impose captioning obligations on VPOs, it 
clearly authorizes the Commission to promulgate rules directly 
affecting VPOs as well as VPDs.\17\ Direct regulation of VPOs closes a 
potential gap in the statutory scheme. Section 202(b) of the CVAA 
provides that a VPD ``shall be deemed in compliance if such entity 
enables the rendering or pass through of closed captions and makes a 
good faith effort to identify video programming subject to the [CVAA] 
using the mechanism created'' herein for identifying such 
programming.\18\ Under this provision, a VPD is responsible for 
rendering or pass through of closed captions and good faith efforts to 
identify programming subject to the CVAA, and is protected from 
liability for distributing programming without closed captions if those 
two requirements are met. We recognize that, in the absence of a 
requirement that VPOs provide captioning, VPDs and VPOs may nonetheless 
enter into private contracts placing such an obligation on VPOs. We 
find, however, that it is more efficient and less costly to place 
appropriate obligations on VPOs and on VPDs, rather than to expect the 
parties to enter into contracts mandating the same obligations. Thus, 
we believe that imposing responsibility on VPOs as well as VPDs is both 
consistent with the Commission's authority to identify the 
responsibilities of VPOs under the statute and necessary to further the 
statutory purpose of helping to ``ensure that individuals with 
disabilities are able to fully utilize communications services and 
equipment and better access video programming.''\19\
---------------------------------------------------------------------------

    \16\ The rules we adopt here define ``closed captioning'' to 
mean, ``The visual display of the audio portion of video programming 
pursuant to the technical specifications set forth in this part.'' 
The NPRM defined the term to mean, ``The visual display of the audio 
portion of video programming.'' We have added the phrase ``pursuant 
to the technical specifications set forth in this part'' to follow 
the approach used to define the term ``closed captioning'' for 
purposes of the Commission's television closed captioning 
requirements, 47 CFR 79.1(a)(4), and to clarify that the closed 
captioning requirements we adopt herein are subject to the 
applicable technical specifications.
    \17\ Specifically, under the ``requirements for regulations,'' 
the CVAA directs the Commission to ``describe the responsibilities 
of video programming providers or distributors and video programming 
owners.'' See 47 U.S.C. 613(c)(2)(D)(iv) (emphasis added). See also 
47 U.S.C. 613(c)(2)(D)(vii) (directing that the Commission's 
regulations ``provide that de minimis failure to comply with such 
regulations by a video programming provider or owner shall not be 
treated as a violation of the regulations.'') (emphasis added); 47 
U.S.C. 613(c)(2)(C) (authorizing the Commission to delay or waive 
its IP closed captioning regulations to the extent it finds the 
``regulations would be economically burdensome to providers of video 
programming or program owners'') (emphasis added). The legislative 
history sheds no additional light on the issue of Congress's intent 
with respect to direct regulation of VPOs.
    \18\ See 47 U.S.C. 613(c)(2)(D)(vi). The previous version of 
Section 713 of the Act, which addressed television closed 
captioning, did not contain a comparable limitation on the 
imposition of VPD responsibilities. The mechanism that the CVAA 
provides for is discussed later in this Section III.A.2.
    \19\ Senate Committee Report at 1; House Committee Report at 19.
---------------------------------------------------------------------------

    17. Further, we find that imposing responsibility on VPOs is 
consistent with the statutory directive to establish a ``mechanism'' to 
make available to VPDs information on video programming subject to the 
Act on an ongoing basis because it will help to ensure that the 
mechanism the statute provides for will function effectively. In 
contrast, leaving VPOs' responsibilities to be defined entirely by 
private contractual arrangements would be more costly and less 
efficient than appropriately allocating certain responsibilities among 
both VPOs and VPDs by Commission rule.
    18. We also find that placing obligations on VPOs will ensure that 
the Commission may hold a responsible party accountable for violations 
of the CVAA. For example, if a VPO erroneously certifies to a VPD that 
captions are not required for a particular program, and the VPD makes a 
good faith use of the ``mechanism'' discussed below, there would be no 
entity to hold legally accountable (e.g., with respect to a consumer 
complaint or enforcement action) in the absence of rules placing 
obligations on the VPO. We note that Consumer Groups state that, ``to 
the extent that the Commission interprets the CVAA to require a safe 
harbor for VPDs and VPPs who pass through or render caption files, * * 
* we would support a decision by the Commission to make VPOs and their 
licensees and sublicensees responsible for captioning IP-delivered 
video programming to the extent the CVAA does not permit placing that 
responsibility with VPPs or VPDs.'' Thus, Consumer Groups support the 
approach we adopt here. In that regard, we note that Consumer Groups 
initially expressed concern about placing responsibilities on both VPDs 
and VPOs on the ground that consumers and the Commission would be faced 
with the potentially difficult task of identifying VPOs against whom to 
file a complaint or seek enforcement. To address these concerns, as 
explained below, we make clear that consumers will be free to file 
their complaints against VPDs, and the Commission will require VPDs to 
provide information on

[[Page 19485]]

the VPO's identity if the VPD claims that the captioning problem was 
the fault of the VPO. Accordingly, we agree with Verizon that 
regulating VPOs as well as VPDs will not have a negative impact on 
consumers.
    19. Our examination of the record in this proceeding likewise 
provides support for imposing duties directly on VPOs. Numerous 
commenters support the NPRM's proposal to impose captioning obligations 
on content owners rather than assign such obligations exclusively to 
VPDs. Even one VPO recognizes that the Commission should allocate 
responsibilities among the parties in the chain of IP content delivery, 
with requirements placed on both VPOs and VPDs. Commenters argue that 
``VPOs are in the best position to assess whether captions are required 
for a particular program since they have knowledge of which content has 
been shown on television,'' and ``as the copyright holders, the VPOs 
typically possess the necessary legal rights to modify the content and 
insert closed captions.'' We agree, and believe that these factors 
further justify placing the obligation to provide required captions on 
VPOs.\20\ We also agree with Google that placing such obligations on 
VPDs would be unduly burdensome, as their systems generally do not 
enable them to review video content, determine whether captions are 
required, and then insert captions. Further, for the reasons above, we 
agree with commenters who suggest that imposing obligations on VPOs 
would be most consistent with the statute.
---------------------------------------------------------------------------

    \20\ We recognize that some of the above arguments may be 
premised on VPO copyright ownership, consistent with the VPO 
definition proposed in the NPRM, whereas we have decided to define a 
VPO based on its license to distribute programming to a VPD. Even if 
a VPO does not own the copyright to programming, however, we believe 
it will be in a better position than the VPD to determine whether 
the programming aired on television with captions and to obtain the 
rights necessary to add captions because it will be closer to the 
copyright owner than the VPD in the ``potentially complicated chain 
of copyright ownership.''
---------------------------------------------------------------------------

    20. We agree with commenters who argue that key differences between 
the television and IP contexts justify different regulatory treatment 
of VPOs. Similar to the CVAA, the closed captioning statute governing 
broadcast television and MVPD services authorizes the Commission to 
regulate closed captioning of programming by providers and owners of 
video programming. The Commission decided in 1997 to place the 
responsibility for compliance with the closed captioning rules on video 
programming distributors, defined as all entities who provide video 
programming directly to customers' homes, regardless of distribution 
technology used (i.e., broadcast or MVPD). The Commission reasoned in 
1997 that placing compliance obligations on distributors would promote 
more efficient monitoring and enforcement of the closed captioning 
rules, because there would typically be a single entity to which 
complaints must be addressed, and there would be no need for tracking 
the entities responsible for producing programs alleged to violate the 
rules. The Commission expressed an expectation that distributors would 
privately negotiate with program owners regarding ``an efficient 
allocation of captioning responsibilities'' and that program owners 
would ``cooperate with distributors to ensure that nonexempt 
programming is closed captioned in accordance with our rules.'' Thus, 
the Commission chose to limit regulatory oversight to distributors, 
notwithstanding that excluding program owners from the rules would 
leave a liability gap in the television/MVPD captioning context. In 
that regard, the Commission explained, ``[d]istributors will not be 
held responsible for situations where a program source falsely 
certifies that programming delivered to the distributor meets our 
captioning requirements if the distributor is unaware that the 
certification is false.''
    21. Notwithstanding the statutory and regulatory similarities 
between IP and television closed captioning, we find that a different 
regulatory approach for the IP closed captioning regime than the 
television closed captioning regime is justified by fundamental 
differences between television and IP distribution. ``[I]n the 
television context,'' as Microsoft explains, ``a single broadcaster, 
MVPD, or similar entity is responsible for the delivery of video 
programming,'' whereas ``video on the Internet often will pass through 
the hands of numerous parties on its way to the consumer'' and VPDs in 
a chain often cannot identify one another, lack contractual 
relationships, and will not possess the rights necessary to caption a 
work. Indeed, Congress mandated that the Commission establish a 
mechanism to make available to VPDs information about whether 
programming has aired on television, a mechanism that is unnecessary in 
the television context. We believe that this characteristic of the IP 
distribution chain helps to justify imposing obligations directly on 
VPOs in the IP context, whereas the Commission reasonably believed that 
in the television/MVPD context it could rely on video programming 
distributors or providers working with program suppliers with whom they 
have close contractual relationships. Even where a distribution chain 
is complex and the VPO itself does not create the closed captions, we 
expect that the VPO will be better positioned than the VPD to obtain 
the captions, since by definition the VPO is farther up the 
distribution chain than the VPD.
    22. We also believe that the differences between video programming 
distributors vis-[agrave]-vis video programming owners in the 
television and IP closed captioning contexts help to justify different 
regulatory approaches. Importantly, the IP closed captioning provisions 
of the CVAA reach a broader class of VPDs than the video programming 
distributors subject to the Commissions' television closed captioning 
rules--i.e., broadcasters and MVPDs. This is significant because after 
the Commission placed sole liability on distributors in the television 
closed captioning context, we understand that in practice broadcasters 
and MVPDs typically placed certain obligations on content owners by 
contract. As explained above, we find that it is more efficient and 
less costly to place appropriate obligations on VPOs and on VPDs, 
rather than to expect the parties to enter into contracts placing 
certain obligations on VPOs. The record indicates that captioning 
problems in the television context are sometimes the fault of the 
content owner rather than the distributor, and so private contractual 
arrangements may indemnify television distributors in such instances. 
We are not confident that all VPDs of IP-delivered video programming 
(including online video distributors and other new media companies) 
have sufficient leverage and ability to obtain similar contract clauses 
or even have privity of contract with the entity with captioning 
rights. Thus, although the Commission concluded in the television 
context that holding distributors responsible for captioning would be 
the most efficient approach, in the IP closed captioning context we 
find it would be most effective to regulate both VPOs and VPDs.
    23. We also note that distinctions between the two statutory 
schemes support adoptions of a different regulatory approach in the IP 
context. In that regard, Verizon points out that, unlike the statutory 
provisions governing television closed captioning, the CVAA 
``explicitly limits the video distributors and providers' 
responsibility to passing through the closed captions they receive from 
content owners.'' In other words, the

[[Page 19486]]

provisions governing television closed captioning allow the Commission 
to establish video programming distributor or provider responsibilities 
that encompass the actual provision of closed captioning, whereas the 
CVAA precludes imposing that direct responsibility.
    24. We therefore disagree with commenters that argue that the 
Commission's proposals improperly allocate responsibility, and that the 
regulations should focus exclusively on the entity with the direct-to-
consumer relationship rather than on the VPO. As discussed above, VPOs 
are better suited than VPDs to determine whether their programming has 
been shown on television with captions after the effective date, and 
VPOs more likely possess the rights necessary to caption their own 
content. Even if a VPO lacks the rights necessary to caption its 
content, by definition the VPO is higher up the distribution chain than 
the VPD, and thus is better positioned than the VPD to obtain required 
captions. We also disagree with MPAA and Time Warner that extending the 
existing television regime to the IP context is justified because it 
would be simpler. We believe that any benefit from such consistency is 
outweighed by the considerations set forth above, including the 
enforcement benefits of clearly defining the VPO as a single 
responsible person or entity. Further, we find unpersuasive MPAA's 
argument that a ``potentially complicated chain of copyright 
ownership'' mandates against direct regulation of VPOs. On the 
contrary, for the reasons above, we find that such complexity supports 
regulating VPOs directly in the IP context. We recognize that because 
the copyright ownership chain may be complicated, under some 
circumstances, the VPO as we have defined it may not possess captioning 
rights or be ideally positioned to determine whether programming it 
licenses is subject to the Act. Under such circumstances, however, we 
believe that the VPO is better positioned than the VPD to obtain 
required captions, and that it is necessary to impose captioning 
responsibility on a person or entity, rather than leaving a regulatory 
vacuum. As between the VPO and the VPD, we believe that the VPO--who 
owns the programming or is closer in the chain of custody to the 
owner--will be better positioned than the VPD to obtain the necessary 
rights and information and fulfill the responsibilities that we impose 
on VPOs, in particular providing captions, pursuant to our regulations.
    25. Further, we reject commenters' arguments that imposing closed 
captioning obligations on content owners would raise First Amendment 
concerns. MPAA argues that regulating VPOs directly would represent a 
``major shift from the existing captioning regime,'' impermissibly and 
unnecessarily target a new category of speakers, and impose a greater 
burden on content owners' speech than is necessary to ensure the deaf 
community has online access to television content. As an initial 
matter, closed captioning requirements implicate the First Amendment 
only marginally at best. The DC Circuit has rejected the argument that 
captioning requirements regulate program content in violation of 
protected rights under the First Amendment, finding that closed 
captioning ``would not significantly interfere with program content.'' 
\21\ Indeed, because closed captioning involves a ``precise repetition 
of the spoken words'' communicated by the speaker, any First Amendment 
burden is only incidental.\22\ The DC Circuit's explanation that closed 
captioning is a ``precise repetition'' is consistent with our 
definition of closed captioning as the visual display of the audio 
portion of video programming. Here, the captioning requirement is 
triggered only after the programming has been shown on television with 
closed captions. In addition, the record does not reflect that the 
total burden on all speakers associated with imposing responsibilities 
on VPOs would be any greater than the total burden on all speakers 
associated with regulating only providers and distributors. VPOs have 
no greater First Amendment right than VPDs to be free of captioning 
duties,\23\ and some VPDs are already subject to broadcast television 
captioning requirements and have not objected to extension of such 
requirements to the IP context. The Commission would simply be 
allocating similar captioning burdens differently among video 
programming owners, distributors and providers in the IP context than 
in the traditional television context, in order to implement the 
statutory directives and objectives as described above. This allocation 
does not impermissibly burden VPOs' First Amendment rights.
---------------------------------------------------------------------------

    \21\ Gottfried v. FCC, 655 F.2d 297, 311 n. 54 (1981), rev'd in 
part, 459 U.S. 498 (1983) (Supreme Court did not disturb dictum of 
D.C. Circuit suggesting the constitutionality of closed captioning 
regulations). See also MPAA v. FCC, 309 F.3d 796, 803 (D.C. Cir. 
2002).
    \22\ MPAA v. FCC, 309 F.3d 796, 803 (D.C. Cir. 2002) (noting a 
key difference for First Amendment purposes between video 
description (which regulates video content) and closed captioning 
(which involves a precise repetition of the spoken words)).
    \23\ See Turner Broadcasting Systems, Inc. v. FCC, 512 U.S. 622, 
636 (1994) (``There can be no disagreement on an initial premise: 
Cable programmers and cable operators engage in and transmit speech, 
and they are entitled to the protection of the speech and press 
provisions of the First Amendment. Through `original programming or 
by exercising editorial discretion over which stations or programs 
to include in its repertoire,' cable programmers and operators 
`see[k] to communicate messages on a wide variety of topics and in a 
wide variety of formats' '').
---------------------------------------------------------------------------

    26. Video programming distributor or provider responsibilities. We 
require VPDs to enable ``the rendering or pass through'' of all 
required captions to the end user, as proposed in the NPRM. In adopting 
this requirement, we note that it was generally unopposed in the 
record.\24\ When a VPD initially receives a program with required 
captions for IP delivery, we will require the VPD to include those 
captions at the time it makes the program file available to end 
users.\25\ Other than requiring a good faith use of the ``mechanism'' 
discussed below, we decline to impose specific obligations on VPDs to 
determine whether captions are required and to ensure that video 
programming has the required captions. Commenters express their 
objection to such additional obligations. We note, however, that the 
existence of an agreed-upon mechanism, discussed below, is not a 
defense for failure to enable the rendering or pass through of required 
captions to the end user if--at any time before or during the period in 
which the VPD made the video programming at issue available to end 
users through IP delivery--evidence shows that the VPD's reliance on 
the mechanism was not in good faith.
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    \24\ We note that, as discussed in Section III.A.1 above, we 
rejected the proposals of a few commenters that we should impose 
separate responsibilities for VPDs and for VPPs, based on the 
different definitions of the terms that they advocated.
    \25\ This time frame is different for archival programming, as 
discussed below.
---------------------------------------------------------------------------

    27. We find that as part of the VPDs' responsibilities under the 
Section 202(b) ``render or pass through'' obligation, they must ensure 
that any application, plug-in,\26\ or device that they provide to the 
consumer is capable of rendering or passing through closed captions. In 
other words, if a VPD chooses to deploy an application, device, or 
plug-in to deliver video to consumers, the VPD must ensure that 
captions can actually be displayed on the screen--whether by causing 
the text to appear or by passing the text through to another component 
on the device that will accept and

[[Page 19487]]

display that text.\27\ This includes making the captioning readily 
available to users, because if users cannot turn on the captioning and 
otherwise control the captions, the rendering or passing through of 
captions will be meaningless. We find that this is a reasonable and 
necessary interpretation of the requirement that a VPD must enable 
``the rendering or pass through of closed captions,'' because otherwise 
captions of video programming that VPDs render or pass through via 
their associated applications or hardware may not be viewable by end 
users. Our interpretation of the ``render or pass through'' obligation 
is consistent with how our existing closed captioning rules operate. 
Thus, interpreting the ``render or pass through'' obligation in this 
way is consistent with Commission precedent. We note that this approach 
also is consistent with the Commission's approach in the ACS Order 
that, if a provider of advanced communications services makes software 
available to provide covered services, the provision of that software 
is subject to the applicable requirements.\28\ Importantly, just as the 
Commission found in the ACS Order that an advanced communications 
service provider or equipment manufacturer is not responsible for 
third-party applications and services, we find that a VPD is also not 
responsible for third-party services and applications. This means that 
if a consumer downloads software from a third party entity not 
affiliated with or used by the VPD in the delivery of its programming, 
and the consumer uses that software to access content provided by the 
VPD, the VPD is not responsible for ensuring closed captioning support 
in that application. We note, however, that where a VPD requires a 
consumer to download software or software upgrades from a third party, 
and the consumer could not otherwise view closed captioning on video 
programming for which the VPD bears a closed captioning obligation, the 
VPD is responsible for ensuring the accessibility of such software or 
software upgrades. Finally, as part of its obligation to enable the 
rendering or pass through of closed captions, a VPD providing an 
application, plug-in, or device to consumers in order to deliver video 
programming must ensure that the application, plug-in, or device 
complies with the requirements discussed below related to 
interconnection mechanisms (to the extent the VPD supplies the consumer 
covered devices under Section 203) and display of captions.
---------------------------------------------------------------------------

    \26\ A ``plug-in'' is defined as ``[a] program of data that 
enhances, or adds to, the operation of a (usually larger) parent 
program.'' See H. Newton, Newton's Telecom Dictionary 642 (20th ed. 
2004).
    \27\ For example, if a VPD provides an application that 
consumers can download onto their smartphones to view the VPD's 
programming, then the application must be capable of rendering or 
passing through closed captions. Likewise, if a VPD provides a 
device, such as a set-top box, to view the VPD's programming, that 
device must be capable of rendering or passing through closed 
captions. Additionally, if the VPD delivers its programming through 
a Web site, it must design its Web site to permit the user to enable 
the display of closed captions. Where the VPD passes the text 
through to another component on a physical device over which the VPD 
has no control, then the manufacturer of that device will have 
separate obligations to ensure the capability to display such 
captions under Section 203 of the CVAA. See infra Section IV. We 
note that if the VPD is reasonably relying on the captioning display 
functionality in a device over which it has no control to display 
captions, the VPD has no liability to the extent that the captioning 
functionality on the device fails or operates improperly. We also 
note that to the extent that the VPD believes that it would be 
economically burdensome for it to comply with this requirement in a 
specific instance, it may petition us accordingly.
    \28\ See Implementation of Sections 716 and 717 of the 
Communications Act of 1934, as Enacted by the Twenty-First Century 
Communications and Video Accessibility Act of 2010, 26 FCC Rcd 
14557, 14591 at para. 86 (2011) (``ACS Order'').
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    28. Mechanism for information on video programming subject to the 
CVAA. Having set forth the allocation of responsibilities between VPDs 
and VPOs, we turn to the ``mechanism'' that the Commission must 
establish to make available to VPDs information on video programming 
that must be captioned when delivered via IP. The CVAA requires that 
the Commission's implementing regulations ``(v) shall establish a 
mechanism to make available to video programming providers and 
distributors information on video programming subject to the Act on an 
ongoing basis,'' and ``(vi) shall consider that the video programming 
provider or distributor shall be deemed in compliance if such entity * 
* * makes a good faith effort to identify video programming subject to 
the Act using the mechanism created in (v).'' Without the good faith 
use of such a ``mechanism,'' the Senate Committee Report explained that 
a VPD that is not also an MVPD may face difficulty in determining 
whether a particular program was shown on television with captions 
after the effective date of the new rules. As explained below, we will 
require each VPO and each VPD to which the VPO has provided or will 
provide video programming for IP delivery to agree upon a ``mechanism'' 
that will inform the VPD of which programming is subject to the IP 
closed captioning requirements on an ongoing basis. The ``mechanism'' 
must provide adequate information to enable the VPD to identify 
programming subject to the IP closed captioning requirements on an 
ongoing basis.
    29. We interpret the word ``mechanism'' to mean any process, method 
or system agreed upon between a VPO and a VPD that makes available to 
the VPD sufficient information to determine whether captioning is 
required of programming that it receives from the VPO and makes 
available directly to end users through a distribution method that uses 
IP. This interpretation is consistent with the statutory language, 
history, and purpose, and will provide maximum flexibility to VPOs and 
VPDs to comply with the CVAA's requirements. The CVAA does not define 
the term ``mechanism.'' A common meaning of the term, however, is ``a 
process or technique for achieving a result.'' \29\ Assigning the term 
its common meaning in the CVAA is consistent with the legislative 
purpose and history. In that regard, the CVAA requires a ``mechanism'' 
so that VPOs will make information available to VPDs regarding whether 
IP-delivered programming is subject to the captioning requirements in 
recognition of the difficulties VPDs otherwise might face in obtaining 
such information. In addition, the statute requires that VPDs be 
``deemed in compliance'' when they make a good faith effort to identify 
programming subject to the captioning requirements using the mechanism. 
Although the statutory reference to ``a'' mechanism might suggest that 
Congress contemplated a single method for making information available 
to VPDs, we find no support in the legislative history for such an 
interpretation, and nothing in the statutory scheme requires such a 
narrow interpretation. On the contrary, the broad interpretation we 
adopt will better serve the statutory purpose of maximizing the 
accessibility of IP-delivered video programming by providing 
flexibility for VPOs and VPDs to agree on processes or methods tailored 
to their needs, as well as by ``encourag[ing] the development of 
technology to accurately identify video programming subject to this 
section.'' \30\
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    \29\ See Webster's New Collegiate Dictionary 737 (9th Ed. 1989).
    \30\ See Senate Committee Report at 14. Rather than limiting the 
definition of the statutorily-required mechanism to a specific 
process or method, we believe that our approach will enhance 
economic incentives for the development of technology, For example, 
under our rules, entities may choose to rely on a commercially 
available third-party database (to the extent one is developed) that 
accurately identifies video programming subject to the CVAA.
---------------------------------------------------------------------------

    30. Our broad interpretation of the statutory term ``mechanism'' 
also is justified by our examination of the record in this proceeding, 
which reflects sharply differing views as to whether a particular 
``mechanism'' would work best, supporting our conclusion that one size 
may not fit all. While some

[[Page 19488]]

commenters are amenable to the system of certifications proposed in the 
NPRM, others argue that the proposed certification mechanism would be 
unworkable and unduly burdensome. Some commenters favor allowing a VPD 
to monitor a third-party database, and still others support leaving the 
choice for the parties to resolve by private contract. We believe that 
the broad interpretation we adopt, by permitting the parties to select 
the ``mechanism'' that is most suitable for them, will provide needed 
flexibility to VPOs and VPDs while ensuring that VPDs will be able to 
obtain the information necessary to determine when a program must be 
provided with captions.
    31. We will require each VPO and each VPD to which the VPO has 
provided or will provide video programming for IP delivery to agree 
upon a ``mechanism'' that will inform the VPD of which programming is 
subject to the IP closed captioning requirements on an ongoing 
basis.\31\ This obligation will apply to programming that VPOs newly 
provide VPDs for IP delivery, as well as to programming that VPOs 
provided VPDs for IP delivery previously if it remains available to 
consumers, as explained below. Any mechanism agreed upon by a VPO and 
VPD must provide adequate information to enable the VPD to identify 
programming subject to the IP closed captioning requirements on an 
ongoing basis, consistent with the definition of ``mechanism'' that we 
adopt here. A VPD cannot rely in ``good faith'' on a mechanism that 
fails to provide adequate information for it to identify programming 
subject to the Act, and a VPD that does rely on such a mechanism 
despite its inadequacy will not be ``deemed in compliance'' within the 
meaning of Section 202(b) of the CVAA. If the parties agree upon a 
mechanism that involves certifications, they have the flexibility to 
determine whether certifications should apply to specific programming 
or whether to use a more general certification, for example, by 
addressing in a certification all programming covered by a particular 
contract. That is, we impose no requirement on the parties that the 
certifications apply on a program-by-program basis or include a 
program-specific explanation as to whether captions are, or are not, 
required.
---------------------------------------------------------------------------

    \31\ Should a captioning problem occur where the VPD and VPO 
have failed to agree upon an adequate mechanism, the Commission may 
hold both parties responsible.
---------------------------------------------------------------------------

    32. In the NPRM, the Commission proposed ``to require VPOs 
providing video programming to VPDs for IP delivery to provide each 
program either with captions simultaneously, or with a dated 
certification stating that captions are not required for a reason 
stated in the certification.'' Because we have decided to afford 
parties flexibility in choosing a mechanism, we decline to adopt a 
certification requirement. In the interest of providing certainty to 
those VPDs that may choose to use certification as the method of 
determining whether captioning is required, however, we declare that 
VPDs may rely in good faith on certifications, as long as they meet 
certain requirements. First, to the extent that a VPD relies on a 
certification by a VPO that the subject programming need not be 
captioned, such certification must include a clear and concise 
explanation of why captioning is not required. We believe that such an 
explanation is necessary to enable a VPD to rely on the certification 
in good faith, as it will enable the VPD to review the VPO's reasoning 
and evaluate whether the VPD may rely on the certification. Second, in 
order to rely on a certification in the event of a complaint, VPDs must 
be able to produce it to the Commission. Thus, VPDs should retain any 
certifications on which they may need to rely until one year after they 
cease making the subject programming available to end users via IP 
delivery. If these requirements are met, VPDs may rely in good faith on 
such certifications for purposes of the ``deemed in compliance'' 
provision of the statute. In other words, when faced with a complaint, 
VPDs relying upon certifications need not prove that the mechanism they 
chose was adequate. In addition, if VPDs wish to obtain Commission 
determinations that other proposed mechanisms provide adequate 
information for them to be able to rely on the mechanisms in good faith 
for purposes of the ``deemed in compliance'' provision, they may seek 
such a determination by filing an informal request, and providing 
sufficient information for the Commission to determine whether the 
proposed mechanism would provide the VPD with adequate information for 
it to identify programming subject to the Act.\32\
---------------------------------------------------------------------------

    \32\ See 47 CFR 1.41. Parties filing any request pursuant to the 
rules we adopt here may seek confidential treatment of information 
submitted with their request pursuant to the Commission's 
confidentiality rules. See 47 CFR 0.459.
---------------------------------------------------------------------------

    33. We note that an uncaptioned, archival IP-delivered program that 
is not subject to the IP closed captioning requirements as of the 
effective date of the new rules may later become subject to the 
requirements, once it is shown on television with captions after the 
effective date. In the NPRM, the Commission proposed that VPOs be 
required to provide VPDs with updated certifications as to the 
captioning status of a previously delivered program (and a caption 
file, if not previously provided) within seven days of the program 
becoming subject to the IP closed captioning requirements, and that 
VPDs be required to make required captions available to end users 
within five days of the receipt of an updated certification. We decline 
to adopt this proposal in light of our decision to provide flexibility 
for VPOs and VPDs to agree to different mechanisms to enable VPDs to 
identify programming subject to the CVAA. We emphasize, however, that 
VPOs must provide updated information to VPDs concerning uncaptioned, 
archival IP-delivered programs pursuant to whatever ``mechanism'' they 
agree to use in order for VPDs to be able to rely on that mechanism in 
good faith, subject to the deadlines discussed below. For example, if 
the mechanism that a VPD and a VPO agree to use involves 
certifications, the VPO would have to provide the VPD with an updated 
certification to inform the VPD that a program in the VPD's library has 
been shown on television with captions after the applicable compliance 
deadline.
    34. Based on examination of the record, we conclude that VPOs and 
VPDs must be provided with a reasonable period of time to develop 
processes or methods of addressing uncaptioned, archival IP-delivered 
content that is shown on television with captions after the effective 
date of the new rules. The record reflects that no process or method 
presently exists to enable VPOs to accurately identify such content, 
and that the task of developing one is likely to be complex. The record 
also reflects that the ``costs and complexities involved in taking down 
a program already online and adding captions to it'' would make 
compliance with our proposed seven- and five-day deadlines impossible 
at present. Accordingly, for a period of two years after this Report 
and Order is published in the Federal Register, we will not require 
captioning of uncaptioned, archival IP-delivered programming that is 
already in the VPD's library before it is shown on television with 
captions. We believe that two years will provide a reasonable period of 
time for VPDs to develop and implement a process to address such 
content. For such programming that is already in a VPD's library and is 
shown on television with

[[Page 19489]]

captions on or after the date two years from Federal Register 
publication, the VPD must update its program file to enable the 
rendering or pass through of closed captions within 45 days of the 
program being shown on television with captions.\33\ We believe that 45 
days will provide sufficient time for VPDs to update program files to 
enable the rendering or pass through of closed captions, given that 
VPDs and VPOs will have two years to develop methods of complying with 
the 45-day deadline.\34\ We further note that 45 days is significantly 
longer than the objected-to NPRM proposal.\35\ We expect that, with the 
passage of time, parties will have established a better functioning 
mechanism for the update of archival content. Given this, we require 
that for programming that is already in a VPD's library and is shown on 
television with captions on or after the date three years from Federal 
Register publication, the VPD must update its program file to enable 
the rendering or pass through of closed captions within 30 days of the 
program being shown on television with captions. Further, we require 
that for programming that is already in a VPD's library and is shown on 
television with captions on or after the date four years from Federal 
Register publication, the VPD must update its program file to enable 
the rendering or pass through of closed captions within 15 days of the 
program being shown on television with captions. We expect that by four 
years after Federal Register publication, 15 days will be sufficient 
for VPDs to caption any archival content that remains uncaptioned.\36\
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    \33\ Uncaptioned, archival programming will not be subject to 
the IP closed captioning requirements unless and until it is shown 
on television with captions on or after the two-year deadline. For 
the reasons discussed above, VPOs and VPDs will need two years to 
develop processes or methods of addressing such programming, and 
before such processes or methods are in place we do not believe it 
is reasonable to require them to keep track of whether such 
programming is shown on television with captions.
    \34\ Although we give VPOs and VPDs two years to develop a 
process for captioning archival content that is subject to the CVAA, 
we note that nothing in the statute precludes the VPO, during this 
period, from providing captions to the VPD for the archival content 
posted in the VPD's library.
    \35\ The lengthy compliance deadline adopted herein for 
programming already in a VPD's library is consistent with NCTA's 
request for a separate category in the schedule of deadlines for 
reruns.
    \36\ The Commission may reconsider the time frames set forth in 
this paragraph upon a showing that VPOs and VPDs are incapable of 
compliance within these time frames.
---------------------------------------------------------------------------

    35. We reject the arguments of some commenters that our IP closed 
captioning rules should not apply to programming that is available from 
a VPD before it is shown on television with captions. Section 202(b) of 
the CVAA requires the Commission to ``revise its regulations to require 
the provision of closed captioning on video programming delivered using 
Internet protocol that was published or exhibited on television with 
captions after the effective date of such regulations.'' Some 
commenters maintain that the statute does not cover content delivered 
to the VPD and posted online prior to the effective date of the 
regulations, seemingly reading the term ``delivered'' in Section 202(b) 
to refer to the time of the VPO's delivery of content to the VPD rather 
than the time of publication or exhibition on television with captions. 
These commenters argue that requiring updates of such programming to 
include closed captions would be inconsistent with Congress's intent to 
apply the requirements prospectively only. We disagree. We interpret 
Section 202(b) to cover any programming delivered to consumers using 
IP, provided that the programming was published or exhibited on 
television with captions after the effective date of the regulations. 
We believe that this interpretation is consistent with the language, 
history, and purpose of the statute. The statutory phrase ``after the 
effective date of such regulations'' does not modify ``programming 
delivered using Internet protocol''; rather, it modifies the phrase 
``published or exhibited on television with captions.'' Thus, whether 
the VPO delivered the programming to the VPD before or after the 
effective date of the regulations is irrelevant to whether the 
programming is covered by the statute. While the legislative history of 
the CVAA indicates Congress's intent ``to apply the captioning 
requirement only prospectively,'' we believe that our reading is 
consistent with that intent: under our reading, captioning requirements 
do not apply to IP-delivered programming unless and until the 
programming is published or exhibited on television with captions after 
the effective date of our regulations. Our reading is also consistent 
with the statutory purpose of maximizing the availability of closed 
captions, whereas the reading advocated by some commenters would remove 
a significant amount of captioned television programming from the scope 
of the CVAA based upon whether a particular program happened to be in a 
VPD's archive before it was shown on television with captions. 
Accordingly, we do not see any statutory basis for exempting the 
existing IP-delivered programming from the IP closed captioning 
requirements as some commenters request.
3. Quality of IP-Delivered Video Programming
    36. The CVAA authorizes the Commission to impose requirements on 
the quality of video programming provided by VPOs for IP delivery, and 
on the quality of IP-delivered video programming that VPDs make 
available directly to end users.\37\ The VPAAC recommended that the 
consumer experience with captions of IP-delivered video programming 
should be ``equal to, if not better than,'' the television experience, 
and it specifically proposed the consideration of such factors as 
completeness, placement, accuracy, and timing in making this 
determination. The NPRM proposed to require captions to be of at least 
the same quality as the television captions for the programming, and 
that an evaluation of ``quality'' includes the consideration of such 
factors as completeness, placement, accuracy, and timing. While some 
commenters support the proposed quality standards, others express 
concern that such a requirement could make VPOs or VPDs responsible for 
factors that affect caption quality but are outside of their control, 
such as broadband connection speeds or the constraints of a particular 
apparatus.
---------------------------------------------------------------------------

    \37\ See 47 U.S.C. 613(c)(2)(D)(iv) (authorizing the Commission 
to ``describe the responsibilities of video programming providers or 
distributors and video programming owners'').
---------------------------------------------------------------------------

    37. We will require VPOs to provide VPDs with captions of at least 
the same quality as the television captions provided for that 
programming. We will also require VPDs to maintain (i.e., not degrade) 
the quality of the captions provided by VPOs in enabling the rendering 
or pass through of captions, and to transmit captions in a format 
reasonably designed to reach the end user in that quality. In 
evaluating whether the captions are of at least the same quality, the 
Commission will consider such factors as completeness, placement, 
accuracy, and timing.\38\ At the same time, recognizing the complex 
chain of video programming delivery from the VPO to the consumer, we 
will not hold VPDs or VPOs responsible for quality issues outside of 
their control such as broadband connection speeds or the constraints of 
a particular apparatus. This slight modification of the quality 
requirements proposed in the NPRM focuses on the quality of the 
captions that VPOs send, and on the quality of the captions that VPDs 
render or pass through, and is designed to address the

[[Page 19490]]

concern raised by commenters that VPDs and VPOs may be held responsible 
for variations in quality caused by outside factors. It also mitigates 
the concerns raised by certain commenters that quality requirements 
could be subjective and time-consuming because the quality standard is 
based on the objective quality characteristics of the actual closed 
captions used for the televised version of the programming, which are 
readily apparent. We reject commenters' argument that regulation of 
caption quality would raise First Amendment concerns. As explained 
above, the quality standards we adopt here are based upon the quality 
of the television captions provided for that programming. Thus, our 
quality standards impose no greater burden than our television closed 
captioning requirements, which the DC Circuit has already suggested are 
constitutional. We do not expect that this quality requirement will 
create disincentives to making video programming available online, 
since it merely requires VPOs to provide captions comparable to those 
available for television distribution. Although some commenters suggest 
that a decision to impose quality standards here would be inconsistent 
with the lack of television closed captioning quality standards, in 
fact, the Commission has a proceeding pending on the caption quality of 
television programming.\39\ Further, the IP closed captioning regime 
differs from the television closed captioning regime since the 
television closed captioning rules require that captions be created in 
the first instance, whereas in the IP context, captions are only 
required for IP-delivered video programming that has already been 
published or exhibited on television with captions. We believe that 
quality standards are appropriate in the IP context to prevent VPOs or 
VPDs from degrading the quality of the captions that actually appeared 
on television when the same programming is distributed with captions 
via IP. The record provides no basis for concluding that it is 
unreasonable to expect VPOs and VPDs to at least maintain the same 
quality with respect to programming distributed via IP, since we will 
not hold VPOs and VPDs responsible for quality effects that result from 
outside factors. To the extent any VPO or VPD believes that the quality 
requirement is economically burdensome, it may file an exemption 
petition.
---------------------------------------------------------------------------

    \38\ As we gain experience with the application of these rules, 
we may revisit the issue.
    \39\ See Closed Captioning of Video Programming, 
Telecommunications for the Deaf, Inc. Petition for Rulemaking, FCC 
05-142, 70 FR 56150, Sept. 26, 2005 (issued in response to a 
Petition for Rulemaking filed by the TDI Coalition on July 23, 
2004). See also Consumer & Governmental Affairs Bureau Seeks to 
Refresh the Record on Notices of Proposed Rulemaking Regarding 
Closed Captioning Rules, DA 10-2050, 75 FR 70168, Nov. 17, 2010.
---------------------------------------------------------------------------

    38. We are not persuaded that any of the alternate approaches to 
caption quality proposed by commenters would be preferable to the 
approach adopted herein. Specifically, CEA proposes the adoption of 
``specific minimum technical requirements * * * if achievable,'' which 
proposal focuses improperly on the ``achievability'' language of 
Section 203 of the CVAA rather than on regulations specific to VPOs and 
VPDs pursuant to Section 202 of the CVAA. Other commenters also propose 
a ``functional equivalence'' quality standard, which Microsoft 
describes as having a focus on ``[e]ssential equality in function 
rather than exact equality with respect to all the features and 
capabilities.'' We find that such an approach is amorphous and does not 
offer any benefits not provided by the quality standard adopted herein.
    39. We encourage VPDs to improve caption quality to enhance 
accessibility, if doing so is not constrained or prohibited by 
copyright law or private agreement. AT&T expresses concern that 
``[e]ncouraging VPPs/VPDs to edit captions could create inconsistencies 
in the quality of programming from one medium to another,'' which is 
not an issue when the VPO handles edits for all media simultaneously. 
In the NPRM, the Commission explained that it did not intend to require 
VPDs to improve caption quality, but rather, to allow them to do so if 
they had any necessary permission. Some commenters express the view 
that copyright concerns should not prevent a VPD from improving caption 
quality. Some commenters argue that improving caption quality for an 
IP-delivered video program would be a non-infringing fair use of the 
video under copyright law. In contrast, other commenters assert that 
copyright law generally would prevent a VPD from improving caption 
quality. We see no need to determine in this proceeding whether a VPD 
may, consistent with copyright law, improve caption quality without the 
consent of a VPO. We expect that VPOs and VPDs will typically agree 
through their contractual negotiations about the appropriate extent, if 
any, of VPD improvement to a VPO's caption file.\40\
---------------------------------------------------------------------------

    \40\ In the NPRM, the Commission contemplated that a requirement 
for captions of IP-delivered video programming to be of at least the 
same quality as captions of television programming would require IP-
delivered captions to include the same user tools, such as the 
ability to change caption font and size. We believe that the issue 
of user tools is better suited to our discussion of requirements for 
devices subject to Section 203 of the CVAA than the present 
discussion of requirements for VPOs and VPDs pursuant to Section 
202(b) of the CVAA.
---------------------------------------------------------------------------

4. Video Programming Subject to Section 202(b)
    40. In the paragraphs below, we define the types of programming 
that are subject to the IP closed captioning rules. We generally adopt 
the definitions proposed in the NPRM but modify some of them, as 
discussed below. As proposed in the NPRM, we also limit our rules to 
programming aired with captions on television in the United States.
    41. Video programming. We adopt the NPRM's proposal to codify the 
CVAA's definition of ``video programming'' in our rules. Section 202(a) 
of the CVAA defines ``video programming'' as ``programming by, or 
generally considered comparable to programming provided by a television 
broadcast station, but not including consumer-generated media (as 
defined in section 3).'' \41\ The Senate and House Committee Reports 
did not elaborate on the term ``video programming,'' and commenters 
generally did not further explore the meaning of the term. We agree 
with the suggestion by Consumer Groups that programming ``that was 
published or exhibited on television'' by definition constitutes 
``video programming,'' since anything that was published or exhibited 
on television must be provided by, or be comparable to programming 
provided by, a television broadcast station.\42\
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    \41\ 47 U.S.C. 613(h)(2). This definition of ``video 
programming'' is almost identical to the definition set forth in 
Section 602(20) of the Act. See 47 U.S.C. 522(20) (defining ``video 
programming'' as ``programming provided by, or generally considered 
comparable to programming provided by, a television broadcast 
station'').
    \42\ The Act and our rules establish that programming aired by 
MVPDs is ``video programming.'' See, e.g., 47 U.S.C. 522(13) (an 
MVPD ``makes available for purchase * * * multiple channels of video 
programming''); 47 CFR 76.5(a) (cable television system is 
``designed to provide cable service which includes video 
programming''); id. 76.1000(e) (defining MVPD as an entity that 
makes available for purchase multiple channels of video 
programming).
---------------------------------------------------------------------------

    42. Consumer-generated media. We also adopt the NPRM's proposal to 
codify the CVAA's definition of ``consumer-generated media'' in our 
rules. Section 3 of the Act, as revised by the CVAA, defines 
``consumer-generated media'' as ``content created and made available by 
consumers to online Web sites and services on the Internet, including 
video, audio, and multimedia content.'' The Senate and House Committee 
Reports did not elaborate on the definition, but certain commenters 
made proposals concerning the proper scope of ``consumer-generated 
media'' with regard to the new IP closed

[[Page 19491]]

captioning requirements. We agree with Consumer Groups that, when 
consumer-generated content is shown on television as part of a 
captioned full-length program which a VPD then distributes over the 
Internet, the Internet version of the captioned full-length program 
must include captions. We conclude that in such a circumstance, the 
captioned full-length program does not constitute ``consumer-generated 
media'' merely because it includes certain content that was originally 
consumer-generated; rather, pursuant to the CVAA, captioning is 
required when the full-length program is delivered via IP because it is 
``video programming delivered using Internet protocol that was 
published or exhibited on television with captions after the effective 
date of such regulations.'' For example, if a consumer creates a video 
and makes it available on YouTube, and that video is then shown with 
captions as part of a news broadcast on television, then that full-
length news broadcast (which includes the consumer-generated video) 
must include captions when a VPD distributes it via IP. We also agree 
with commenters who propose that ``consumer-generated media'' for these 
purposes should include content that is made available online by 
individual consumers without the consent of a VPO that has rights in 
the content, since in such situations VPOs do not maintain control over 
the programming and caption file, and VPDs do not maintain control over 
the distribution of the programming directly to the end user. Thus, it 
is not reasonable to expect VPOs and VPDs to bear any obligations for 
captioning content made available online by individual consumers 
without the necessary consent.
    43. Players embedded in a Web site present a different situation. 
When a VPD makes full-length video programming available to consumers 
to redistribute through a player embedded in a Web site, the player is 
controlled by the VPD, even though it appears as if it is playing video 
on the Web site through which the consumer redistributes it, such as a 
blog or a social networking Web site. When a VPD makes full-length 
video programming available to consumers to redistribute through such a 
player, the video programming is not consumer-generated media and the 
VPD must ensure that the player displays required captions pursuant to 
its ``pass through or render'' obligations discussed in paragraph 27 
above.
    44. Full-length programming. The NPRM proposed to define ``full 
length programming'' as ``video programming that is not video clips or 
outtakes.'' Consistent with our proposal in the NPRM, that the 
captioning requirements of Section 202(b) apply to full-length 
programming, and not to video clips or outtakes, we adopt the proposed 
definition with a slight modification to make our rules more clear. 
Specifically, we define ``full-length video programming'' as video 
programming that appears on television and is distributed to end users, 
substantially in its entirety, via IP. This definition thereby excludes 
video clips or outtakes of the video programming that appeared on 
television. We find that this decision is supported by commenters. 
Through the inclusion of ``substantially in its entirety,'' we mean to 
reference video programming that is distributed via IP as a complete 
video programming presentation, such as an episode of a television show 
or a movie. At the same time, as explained below, when substantially 
all of a full-length program is available via IP, we will not consider 
that program to be a ``clip,'' but rather, a ``full-length program'' 
subject to the IP closed captioning requirements.
    45. We define ``video clips'' as excerpts of full-length video 
programming, consistent with the proposals of some commenters. We 
believe that this definition is consistent with what consumers commonly 
think of as ``video clips.'' When substantially all of a full-length 
program is available via IP, we will not consider that program to be a 
``clip,'' but rather, a ``full-length program'' subject to the IP 
closed captioning requirements. For example, an entity covered by our 
new rules would not be permitted simply to shave off a few minutes (or 
brief segments) from a full-length half hour program just to avoid 
fulfilling its captioning obligations. Our decision that substantially 
all of a full-length program does not constitute a ``clip'' is 
consistent with congressional intent to increase the accessibility of 
video programming to individuals who are deaf or hard of hearing. We 
also agree with members of the industry and consumer groups that a 
full-length program posted online in multiple segments, to enable 
consumers to more readily access a particular segment of the program, 
constitutes full-length programming and will have to be captioned under 
our new rules. Thus, for example, a VPD that divides a program into 
various segments for easy viewing and posts the segments on the 
Internet would still have to ensure the pass through or rendering of 
the captions for each of these segments. Individuals should not be 
denied access to captioned IP-delivered programming because it is 
available online only in segmented format.
    46. We note that in the NPRM, the Commission had proposed to define 
``video clips'' as ``small'' sections of a larger video programming 
presentation, consistent with the Comcast-NBCU Order. We now reject 
that approach. The word ``small'' in the proposed definition of ``video 
clips'' could inadvertently create a class of programming that is 
neither a ``video clip'' nor a ``full-length program,'' because a 
particular clip may not be ``small'' but also may not be a full-length 
video program. We believe that the definition of ``video clips'' 
adopted herein addresses that concern because it eliminates any need to 
evaluate whether a particular video clip constitutes a small section of 
a larger video programming presentation. Further, we encourage VPOs and 
VPDs to provide closed captions for IP-delivered video clips where they 
are able to do so. We emphasize that, ``if there is clear evidence that 
an entity has developed a pattern of attempting to use video clips to 
evade its captioning obligations,'' we may find a violation of our 
rules.
    47. We reject proposals that the Commission limit the definition of 
``video clips'' to promotional materials that do not exceed a certain 
duration or fraction of the program. There is no evidence in the CVAA 
or its legislative history that Congress intended to exclude ``video 
clips'' only if they are promotional in nature, and we do not see any 
evidence that Congress sought to exclude only clips of a certain 
duration or percentage of the full-length program.\43\
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    \43\ We also reject the proposal of Consumer Groups that ``video 
clips'' must be no longer than 30 seconds in duration, and the 
proposal of DIRECTV that video clips must not exceed one quarter of 
the program's overall length, as Consumer Groups and DIRECTV fail to 
justify the strained readings of the terms ``video clips'' and 
``full-length programming'' on which their proposals rely.
---------------------------------------------------------------------------

    48. Finally, we emphasize that the legislative history states that 
Congress ``intends, at this time, for the regulations to apply to full-
length programming and not to video clips or outtakes.'' We believe 
that this legislative language, which references the present time only, 
signals Congress's intent to leave open the extent to which such 
programming should be covered under this section at some point in the 
future. Accordingly, we may determine, at a later time, that 
congressional intent ``to help ensure that individuals with 
disabilities are able to * * * better access video programming'' may 
warrant applying these captioning requirements beyond

[[Page 19492]]

full-length programming, by for example including video clips within 
the captioning requirements or defining the term more narrowly. It is 
particularly important that news content, which plays the vital role of 
ensuring an informed citizenry, be made accessible to all citizens. As 
Representative Markey and Senator Pryor recognize, ``Americans 
increasingly are accessing online news, information and entertainment 
in * * * segments * * *.'' We therefore encourage the industry to make 
captions available on all TV news programming that is made available 
online, even if it is made available through the use of video clips as 
defined above. If we find that consumers who are deaf or hard of 
hearing are not getting access to critical areas of programming, such 
as news, because of the way the programming is posted (e.g., through 
selected segments rather than full-length programs), we may reconsider 
this issue to ensure that our rules meet Congress's intent to bring 
captioning access to individuals viewing IP-delivered programming.
    49. We adopt the definition of ``outtakes'' that the Commission 
proposed in the NPRM. The Commission proposed to define ``outtakes'' as 
content that is not used in an edited version of video programming 
shown on television. Of the few commenters that discuss this proposed 
definition, all express their support. We agree with Consumer Groups 
that ``bloopers'' and other incidental material shown on television 
with captions do not fall within the definition of ``outtakes'' 
prescribed herein, when such content is, in fact, used in an edited 
version of video programming shown on television.
    50. Foreign programming. We affirm the NPRM's tentative conclusion 
that the CVAA requires closed captioning of IP-delivered video 
programming that was published or exhibited on television in the United 
States with captions after the effective date of the regulations. The 
Commission stated in the NPRM that the best reading of the CVAA seemed 
to be that closed captioning is required on IP-delivered video 
programming that was published or exhibited on television in this 
country with captions after the effective date of the regulations. 
Industry commenters generally agree with the Commission that 
programming that has been shown on television with captions only in 
another country should not be subject to the new requirements for IP 
closed captioning. Consumer Groups argue, however, that the IP closed 
captioning requirements should apply to programming that is shown on 
television in another country with captions after the effective date of 
the new rules, because ``the CVAA's captioning requirements contain no 
textual limitation on programming published or exhibited on television 
in other countries,'' and because ``Consumer Groups see no tenable 
rationale for excluding the broad range of foreign programming that is 
available via Internet distribution in the United States.'' We 
disagree. Although the text of the CVAA does not explicitly exclude 
from coverage programming shown only in another country, we conclude 
that Congress did not intend to reach such programming through the 
CVAA, which commenters have explained could create many difficulties, 
such as the need to reconcile different captioning requirements 
applicable in different countries and monitor foreign television 
broadcasts. Had Congress intended to create such a broad range of 
issues, such as those that would arise with programming shown in a 
foreign country, it would have said so expressly. Moreover, examination 
of the record reflects that there are sound reasons for excluding 
foreign television programming from the scope of the CVAA.

B. Compliance Deadlines

    51. Section 202(b) of the CVAA requires the Commission's 
regulations for closed captioning of IP-delivered video programming to 
``include an appropriate schedule of deadlines for the provision of 
closed captioning, taking into account whether such programming is 
prerecorded and edited for Internet distribution, or whether such 
programming is live or near-live and not edited for Internet 
distribution.'' We adopt the proposal from the NPRM to implement the 
schedule of compliance deadlines set forth by the VPAAC, which is as 
follows: (1) For programming that is prerecorded and not edited for 
Internet distribution, a compliance deadline of six months after the 
rules are published in the Federal Register; (2) for programming that 
is live or near-live, a compliance deadline of 12 months after the 
rules are published in the Federal Register; and (3) for programming 
that is prerecorded and edited for Internet distribution, a compliance 
deadline of 18 months after the rules are published in the Federal 
Register. Having reviewed the record, we conclude that adoption of the 
schedule of compliance deadlines proposed in the NPRM will provide the 
industry with a sufficient time frame within which to develop processes 
or methods for addressing such programming, and will provide consumers 
with access to accessible programming in the near future. We reiterate 
that the schedule of deadlines proposed in the NPRM was agreed on by 
the VPAAC, which includes representatives from industries that will be 
subject to our new rules, as well as consumer groups that have a strong 
interest in ensuring that our rules are implemented as quickly as 
possible. Based on our review of the record, we conclude that 
compliance deadlines of six, 12, and 18 months after Federal Register 
publication are reasonable in light of the varying degrees of 
difficulty involved in closed captioning of IP-delivered prerecorded 
and unedited, live or near-live, and prerecorded edited video 
programming. The compliance deadlines are applicable only to initial 
compliance with the rules.\44\ Once a deadline has been reached for a 
particular category of programming, that content must be captioned 
immediately when delivered via IP, with the exception of updates to 
content already in a VPD's library.\45\ Once the applicable deadline 
has been reached for a certain program, VPOs and VPDs must fulfill 
their responsibilities to ensure that the program has captions when 
delivered to end users via IP.
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    \44\ Programming will not be subject to the IP closed captioning 
requirements unless and until it is shown on television with 
captions on or after the deadlines established here. Our choice of 
compliance deadlines recognizes that VPOs and VPDs will need to use 
the time between publication of our rules in the Federal Register 
and the compliance deadlines to develop processes or methods of 
addressing such programming. Before such processes or methods are in 
place we do not believe it is reasonable to require them to keep 
track of whether such programming is shown on television with 
captions. This approach is consistent with the CVAA's mandate that 
we include ``an appropriate schedule of deadlines for the provision 
of closed captioning.'' 47 U.S.C. 613(c)(2)(B).
    \45\ For such updated content, the captioning requirement will 
not be triggered for a period of two years from the date of Federal 
Register publication, as discussed above, and at that point we will 
impose a 45-day deadline from the date on which the programming is 
shown on television. Beginning three years from the date of the 
Federal Register publication, this deadline will be reduced to 30 
days, and beginning four years from the date of the Federal Register 
publication, this deadline will be reduced to 15 days.
---------------------------------------------------------------------------

    52. Opponents of the compliance deadlines adopted herein have not 
demonstrated that the deadlines would be problematic on an industry-
wide basis. We find that the lengthier deadlines proposed by some 
commenters are not justified because of support for the proposed 
deadlines in the record and by the VPAAC, which demonstrates that the 
proposed deadlines appear to be achievable on an industry-wide basis. 
Further, we note that entities that find it economically

[[Page 19493]]

burdensome to meet the deadlines may petition for an exemption. The 
CVAA directs us, in adopting a schedule of deadlines, to ``tak[e] into 
account whether such programming is prerecorded and edited for Internet 
distribution, or whether such programming is live or near-live and not 
edited for Internet distribution. '' Thus, by adopting multiple 
deadlines for different types of programming, the schedule of deadlines 
adopted herein takes into account the concerns that Congress directed 
the Commission to consider. We encourage VPOs and VPDs to make 
captioned programming available in advance of the applicable deadlines, 
to the extent they are able to do so.
    53. As we discuss above, VPDs that provide applications, plug-ins, 
or devices to consumers have an obligation under Section 202 to ensure 
that those applications, plug-ins, or devices render or pass through 
closed captions to subscribers. In many cases, compliance with this 
obligation would require the VPD to design consumer devices or software 
running on such devices to render or pass through closed captions. If a 
VPD uses software to enable the rendering or pass through of captions, 
the VPD is responsible only for software it deploys after the 
applicable compliance dates discussed in paragraph 51 above. We believe 
this limitation is warranted as we do not believe it is appropriate to 
require VPDs to provide new versions of software if the VPD did not 
otherwise intend to do so.\46\ If a VPD relies on hardware to enable 
the rendering or pass through of closed captions, the VPD must meet the 
compliance deadline of January 1, 2014. We believe this time period is 
appropriate because it is consistent with our analysis under Section 
203.\47\ We note that, while the achievability standard of Section 203 
of the CVAA does not apply to Section 202, VPDs that find it 
economically burdensome to meet their obligations may file an exemption 
petition, as discussed below.\48\
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    \46\ We will consider upgrades to VPD software to be new 
applications. If a VPD is unable to meet all of the captioning 
requirements for such upgrades, it may request an exemption due to 
economic burden, as discussed in Section III.C.1 below.
    \47\ The same rationale for the two-year apparatus deadline 
applies to these VPD requirements.
    \48\ We clarify that when a VPD seeks an economic burden 
exemption from the requirements discussed in this paragraph, we will 
consider the exemption petition with regard to the specific 
feature(s) and device(s) for which implementing the captions 
purportedly would be economically burdensome, as discussed in 
Section IV.B (Achievability, Purpose-Based Waivers, and Display-Only 
Monitor Exemption), below.
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    54. The CVAA also requires the Commission's regulations to 
``contain a definition of `near-live programming' and `edited for 
Internet distribution.''' In the NPRM the Commission sought comment on 
definitions of ``live programming,'' ``near-live programming,'' 
``prerecorded programming,'' and ``edited for Internet distribution.'' 
We explain below how we have defined these terms. The Commission 
proposed to apply these definitions solely to rules applicable to IP 
closed captioning pursuant to the CVAA. We conclude that the 
definitions we adopt herein for the terms ``live programming,'' ``near-
live programming,'' ``prerecorded programming,'' and ``edited for 
Internet distribution'' apply solely to our regulation of IP closed 
captioning, as explained further below.
    55. Live Programming. We adopt the definition of ``live 
programming'' proposed in the NPRM. The Commission proposed to define 
``live programming'' as video programming that is shown on television 
substantially simultaneously with its performance. This definition is 
comparable to the definition of ``live programming'' adopted in the 
recent Video Description Order, which was ``programming aired 
substantially simultaneously with its performance,'' \49\ with a slight 
modification to clarify that in the IP closed captioning context, the 
performance occurs substantially simultaneously to its airing on 
television, not necessarily to the IP distribution. The Commission 
explained in the NPRM that the phrase ``substantially simultaneously'' 
contemplates that live programming may include a slight delay when it 
is shown on television. Some commenters express their support for the 
proposed definition of ``live programming.'' Examples of programming 
that may fit within the definition of ``live programming'' are news, 
sporting events, and awards shows.
---------------------------------------------------------------------------

    \49\ Video Description: Implementation of the Twenty-First 
Century Communications and Video Accessibility Act of 2010, FCC 11-
126, 76 FR 55585, Sept. 8, 2011 (``Video Description Order'').
---------------------------------------------------------------------------

    56. We decline to adopt rules specifically addressing simulcast 
programming, that is, programming that is shown simultaneously on 
television and the Internet. Rather, live and near-live television 
programming that is simulcast shall be subject to the live and near-
live programming compliance deadline, and prerecorded programming that 
is simulcast shall be subject to the prerecorded programming compliance 
deadlines. As we explained in the NPRM, we do not believe that the 
VPAAC, by mentioning simulcast programming in its definition of ``live 
programming,'' meant to encompass a ``simulcast'' in which prerecorded 
programming is shown on television and the Internet simultaneously.\50\ 
We do not believe that our decision to apply the ``live'' and ``near-
live'' deadlines to the simulcast of live and near-live programming 
will, as NAB claims, create a significant barrier to the distribution 
of live or near-live programming over the Internet. Rather, we expect 
that the compliance deadline of 12 months from the date of publication 
in the Federal Register for ``live'' and ``near-live'' programming will 
provide a sufficient period of time within which VPOs and VPDs can 
develop processes or methods to ensure the immediate closed captioning 
of simulcasts of live and near-live programming. We note that 
programming aired on television substantially simultaneously with its 
performance would not lose its status as ``live programming'' by being 
simulcast via IP. We disagree with NCTA's suggestion that simultaneous 
streaming of prerecorded programming on television and the Internet 
should have the same compliance schedule as live programming. NCTA has 
not explained why a longer deadline is necessary for the simulcast of 
pre-recorded programming, and the record contains no evidence 
justifying a longer deadline.
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    \50\ We understand that a simulcast may involve either live 
programming or prerecorded programming. It strains common 
understanding of the phrase ``live programming'' to think that the 
VPAAC intended to extend the definition of that phrase to 
programming that is shown on television and the Internet 
simultaneously.
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    57. Near-Live Programming. We adopt the same definition of ``near-
live programming'' that the Commission adopted in the Video Description 
Order, with one modification discussed below.\51\ In the NPRM, the 
Commission proposed to define ``near-live programming'' as ``video 
programming that is substantively recorded and produced within 12 hours 
of its distribution to television viewers.'' Instead, we will define 
``near-live programming'' as ``video programming

[[Page 19494]]

that is performed and recorded less than 24 hours prior to the time it 
was first aired on television.''
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    \51\ The VPAAC did not agree on a single definition of ``near-
live programming,'' with consumer group members supporting a 
definition of ``near-live programming'' as ``any programming that 
was produced from start to finish within 12 hours of being published 
or exhibited on television,'' and industry members supporting a 
definition that would reference programming that was ``substantively 
produced'' within the 12 hour limit. See VPAAC Report at 29, 34-35. 
Consumer Groups, in their comments to this proceeding, now express 
support for 24 hours as the dividing time for this type of 
programming.
---------------------------------------------------------------------------

    58. The Video Description Order defined ``near-live programming'' 
as ``programming performed and recorded less than 24 hours prior to the 
time it was first aired.'' Industry and consumer group commenters 
support using that definition in the current proceeding. The NPRM noted 
certain differences between the video description and closed captioning 
contexts, but on further review, we find that those differences do not 
justify the adoption of a different definition of ``near-live 
programming'' in the IP closed captioning context as compared to the 
video description context. Thus, we conclude that there is no need to 
adopt a significantly different definition of ``near-live programming'' 
in the IP closed captioning context than in the video description 
context. We make one modification to the Video Description Order's 
definition to clarify that ``near-live programming,'' in the context of 
IP closed captioning, is video programming that is performed and 
recorded less than 24 hours prior to the time it was first aired on 
television.\52\ We recognize that in the context of IP closed 
captioning, some ``near-live'' programming, such as a late-night talk 
show that is performed and recorded earlier the same day, may include 
some prerecorded elements, for example, a late-night talk show might 
include a segment that was performed and recorded more than 24 hours 
prior to its distribution on television. The presence of such 
prerecorded elements does not change the nature of the ``near-live'' 
programming.
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    \52\ We recognize that NCTA expresses its support for the 
Commission's proposed definition in the NPRM of ``near-live 
programming,'' which was video programming that is substantively 
recorded and produced within 12 hours of its distribution to 
television viewers. We believe that the definition from the Video 
Description Order is clearer, however, and would not lead to 
potentially subjective determinations of what constitutes near-live 
programming.
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    59. Prerecorded Programming. We adopt the proposal from the NPRM to 
define ``prerecorded programming'' as video programming that is not 
``live'' or ``near live.'' No commenter provided any substantive 
evaluation of the proposed definition of ``prerecorded programming.'' 
By defining ``prerecorded programming'' as video programming that is 
not ``live'' or ``near live,'' we will ensure that video programming 
fits within one category or the other.
    60. Edited for Internet Distribution. We adopt the proposal from 
the NPRM to define video programming that is ``edited for Internet 
distribution'' as video programming for which the television version is 
substantially edited prior to its Internet distribution. We think this 
definition appropriately captures that class of edited video 
programming that might require a lengthier compliance deadline to 
facilitate the development of necessary procedures. No commenter 
proposed an alternate definition of ``edited for Internet 
distribution.'' As stated in the NPRM, we agree with the VPAAC that 
examples of ``substantial edits'' include the deletion of scenes or 
alterations to the televised version of musical scores, and that 
changes to the number or duration of advertisements would not 
constitute ``substantial edits.'' We do not agree with NAB that 
distinguishing between ``prerecorded programming'' and ``edited for 
Internet distribution'' would be unworkable \53\ because the VPAAC 
provided clear examples and explanations of what constitutes 
substantial edits and what does not.
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    \53\ We understand that rights issues may, for example, 
necessitate changes in music scores from the television version to 
the IP version of a television program, which may also necessitate 
changes to the captioning from one version to the other. See VPAAC 
Report at 30. Regardless of whether the VPO itself makes these 
changes or the VPD is authorized to make the changes, we find that 
the need for such changes justifies a longer compliance deadline for 
prerecorded edited video programming than for prerecorded unedited 
video programming.
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C. Exemption Process

1. Case-by-Case Exemptions
    61. Section 713(d)(3) of the Act originally authorized the 
Commission to grant an individual exemption from the television closed 
captioning rules upon a showing that providing closed captioning 
``would result in an undue burden.'' Congress provided guidance to the 
Commission on how it should evaluate such captioning exemptions by 
setting forth, in Section 713(e) of the Act, four ``factors to be 
considered'' in determining whether providing closed captioning ``would 
result in an undue economic burden:'' (1) the nature and cost of the 
closed captions for the programming; (2) the impact on the operation of 
the provider or program owner; (3) the financial resources of the 
provider or program owner; and (4) the type of operations of the 
provider or program owner.
    62. In the CVAA, Congress amended Section 713(d)(3) of the Act by 
replacing the term ``undue burden'' with the term ``economically 
burdensome,'' and by adding certain guidance on the exemption 
procedures. Amended Section 713(d)(3) provides as follows:

[A] provider of video programming or program owner may petition the 
Commission for an exemption from the requirements of this section, 
and the Commission may grant such petition upon a showing that the 
requirements contained in this section would be economically 
burdensome. During the pendency of such a petition, such provider or 
owner shall be exempt from the requirements of this section. The 
Commission shall act to grant or deny any such petition, in whole or 
in part, within 6 months after the Commission receives such 
petition, unless the Commission finds that an extension of the 6-
month period is necessary to determine whether such requirements are 
economically burdensome.\54\
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    \54\ 47 U.S.C. 613(d)(3). Because the statutory provision 
regarding exemptions due to economic burden references only VPPs and 
VPOs, our rule implementing this provision also will reference VPPs 
and VPOs, but not VPDs. We note, however, that the exclusion of VPDs 
has no practical effect as we have defined VPD and VPP as having the 
same meaning.

    The Senate Committee on Commerce, Science, and Transportation 
encouraged the Commission, in determining whether the requirements 
enacted under Section 202(b) are ``economically burdensome,'' to 
consider the factors listed in pre-existing Section 713(e) of the Act, 
listed above.
    63. We adopt the proposal in the NPRM and create a process by which 
VPDs and VPOs may petition the Commission on a case-by-case basis for a 
full or partial exemption of their IP closed captioning obligations, 
which the Commission may grant upon a finding that the requirements 
would be economically burdensome. This process is comparable to the 
Commission's procedures for assessing exemption requests from our 
television closed captioning rules prior to the amendment of Section 
713(d)(3), and nearly identical to the procedures for exemptions based 
on economic burden that the Commission recently adopted for video 
description.\55\ We will provide in our rules that the petitioner must 
support a petition for exemption with sufficient evidence to 
demonstrate that compliance with the requirements for closed captioning 
of video programming delivered via Internet protocol would be 
economically burdensome. The term ``economically burdensome'' means 
imposing significant difficulty or expense. In addition to the four 
statutory factors enumerated above, the petitioner must describe any 
other factors it deems relevant to the

[[Page 19495]]

Commission's final determination and any available alternatives that 
might constitute a reasonable substitute for the IP closed captioning 
requirements, for example, text or graphic display of the content of 
the audio portion of the programming. The Commission will place 
exemption petitions on public notice, and any interested person may 
file comments or oppositions to the petition within 30 days after 
release of the public notice of the petition. Within 20 days after the 
close of the period for filing comments or oppositions, the petitioner 
may reply to any comments or oppositions filed. Upon a finding of good 
cause, the Commission may lengthen or shorten any comment period and 
waive or establish other procedural requirements. Those filing 
petitions and responsive pleadings must include a detailed, full 
showing, supported by affidavit, of any facts or considerations relied 
on.
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    \55\ See 47 CFR 79.1(f), 79.3(d). See also Interpretation of 
Economically Burdensome Standard; Amendment of Section 79.1(f) of 
the Commission's Rules; Video Programming Accessibility, Order and 
Notice of Proposed Rulemaking, 26 FCC Rcd 14941, 14957-62, paras. 
30-39 (2011) (``Interim Standard Order and NPRM'').
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    64. We disagree with those commenters who contend that Congress 
expressly amended Section 713(d) to lower the applicable burden, and 
that the ``economically burdensome'' standard is broader than the 
previous ``undue burden'' standard. In the recent Interim Standard 
Order, the Commission interpreted on a provisional basis the term 
``economically burdensome'' as used in Section 202 of the CVAA to be 
synonymous with the term ``undue burden'' that was formerly used in 
Section 713(e) of the Act.\56\ The Commission stated ``that Congress, 
when it enacted the CVAA, intended for the Commission to continue using 
the undue burden factors contained in Section 713(e), as interpreted by 
the Commission and reflected in Commission rules and precedent, for 
individual exemption petitions, rather than to make a substantive 
change to this standard.'' Among other things, in that proceeding the 
Commission cited to the legislative history of the 1996 amendments to 
the Act, in which Congress clearly distinguished between the more 
extensive factors that should be used to evaluate categorical 
exemptions adopted by regulation under Section 713(d)(1) of the Act and 
the factors that should be used to evaluate the individual exemption 
requests submitted under Section 713(d)(3) of the Act. Accordingly, we 
disagree with any suggestion that the Commission should apply the 
broader standards applicable to categorical exemption requests to our 
consideration of individual exemption requests in the IP closed 
captioning context. Rather, we interpret the term ``economically 
burdensome'' in Section 713(d)(3) of the Act, as amended by the CVAA, 
to be synonymous with the term ``undue burden'' as this section was 
originally drafted.
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    \56\ In the Notice of Proposed Rulemaking that accompanied the 
Interim Standard Order, the Commission sought comment on making 
permanent this provisional interpretation of ``economically 
burdensome.'' See Interim Standard Order and NPRM, 26 FCC Rcd at 
14961-62, paras. 38-39. The Commission has received one comment in 
response, which supports this interpretation.
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    65. Thus, consistent with the analyses in the Interim Standard 
Order and the Video Description Order, we adopt the process proposed in 
the NPRM for case-by-case exemptions based on economic burden with a 
few minor modifications.\57\ First, in the NPRM the Commission proposed 
the following language in what is now numbered new Sec.  79.4(d)(3) of 
our rules: ``The Commission will evaluate economic burden with regard 
to the individual outlet or programming.'' In the context of the IP 
closed captioning rules, the ``individual outlet'' references the VPO 
or VPD. To be consistent with Sec.  79.1(f)(3) as it now exists in the 
Commission's rules and as the Commission has proposed amending it in 
the Interim Standard Order and NPRM and with Sec.  79.3(d)(3) as 
adopted in the Video Description Order, we will omit the phrase ``or 
programming.'' \58\ As we explained in the 1997 Closed Captioning 
Order, in evaluating economic burden, we ``examine the overall budget 
and revenues of the individual outlet and not simply the resources it 
chooses to devote to a particular program.'' Consistent with that 
directive, when deciding whether to grant a petition for an exemption 
from the IP closed captioning rules, we will consider the overall 
budget and revenues of the individual outlet and its ability to provide 
closed captioning, and not simply the resources it chooses to devote to 
a particular program. Second, in the NPRM the Commission proposed to 
codify the following language in our rules governing exemption 
petitions based on economic burden: ``The Commission shall act to deny 
or approve any such petition, in whole or in part, within 6 months 
after the Commission receives such petition, unless the Commission 
finds that an extension of the 6-month period is necessary to determine 
whether such requirements are economically burdensome.'' Consistent 
with the Interim Standard Order and NPRM and the adopted rules in the 
Video Description Order, we find it unnecessary to codify in our rules 
the time limit for Commission action on exemption petitions, since the 
6-month deadline for Commission action is codified in the CVAA and thus 
it applies regardless of whether it is codified in our rules. Third, in 
the NPRM the Commission proposed to include the following language in 
what is now numbered new Sec.  79.4(d)(11): ``During the pendency of an 
economic burden determination, the Commission will consider the video 
programming provider or owner subject to the request for exemption as 
exempt from the requirements of this section.'' \59\ To be consistent 
with Sec.  79.1(f)(11) as proposed in the Interim Standard Order and 
NPRM and with Sec.  79.3(d)(11) as adopted in the Video Description 
Order, we will omit the words ``provider or owner'' from Sec.  
79.4(e)(11) as proposed in the NPRM. By revising the proposed language 
to omit those words, we intend to clarify that the outlet seeking an 
exemption is relieved of its closed captioning obligations only for the 
specific programming for which it requested an exemption.
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    \57\ We note that Consumer Groups make additional proposals 
about case-by-case exemption petitions. Because we intend to address 
exemption petitions on a case-by-case basis, we decline to adopt the 
categorical findings suggested by Consumer Groups. Further, neither 
the language nor the history of the CVAA indicates that Congress 
intended to require a heightened prima facie showing for such 
petitions, as suggested by Consumer Groups.
    \58\ The Commission's television closed captioning rules 
currently require consideration of the extent to which the provision 
of closed captions will create an undue burden with regard to the 
individual outlet. See 47 CFR 79.1(f)(3). The Interim Standard Order 
and NPRM proposes to amend this section by replacing the term 
``undue burden'' with the term ``economically burdensome,'' in 
accordance with the changes made in the CVAA. See Interim Standard 
Order and NPRM, 26 FCC Rcd at 14989 (App. B--Proposed Rules); 47 CFR 
79.3(d)(3).
    \59\ Of course, the programming will still be subject to the 
closed captioning requirements under 47 CFR 79.1 when provided on 
broadcast television or by an MVPD, notwithstanding its exemption 
from the IP closed captioning requirements under 47 CFR 79.4.
---------------------------------------------------------------------------

    66. Finally, we will require electronic filing of individual closed 
captioning exemption requests, and will require electronic filing of 
comments on and oppositions to such petitions. We hereby delegate to 
the Chief, Consumer and Governmental Affairs Bureau, authority to 
establish by Public Notice the electronic filing procedures for 
individual exemption requests. Such a requirement is consistent with 
the 2011 Electronic Filing Report and Order, in which the Commission 
adopted a requirement to use electronic filing whenever technically 
feasible.\60\ Although the NPRM proposed to require

[[Page 19496]]

paper filings, we find that an electronic filing requirement would be 
most consistent with the Commission's stated goals of efficiency and 
modernization and would streamline the petition process for all 
parties. Persons who file comments or oppositions to the petition must 
serve the petitioner with copies of those comments or oppositions and 
must include a certification that the petitioner was served with a 
copy, and any petitioner filing a reply to comments or oppositions must 
serve the commenting or opposing party with a copy of the reply and 
must include a certification that the party was served with a copy. We 
clarify that pursuant to Sec.  79.4(d)(7), comments or oppositions and 
replies shall be served upon a party, its attorney, or its other duly 
constituted agent by delivery or mailing a copy to the party's last 
known address, or by service via email as provided in the final rules.
---------------------------------------------------------------------------

    \60\ Commission's Rules of Practice, Procedure, and 
Organization, FCC 11-16, 76 FR 24383, May 2, 2011 (``2011 Electronic 
Filing Report and Order'').
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2. Categorical Exemptions
    67. In Section 202(b) of the CVAA, Congress provided that the 
Commission ``may exempt any service, class of service, program, class 
of program, equipment, or class of equipment for which the Commission 
has determined that the application of such regulations would be 
economically burdensome for the provider of such service, program, or 
equipment.'' In the context of television closed captioning, the 
Commission has recognized that the term ``economically burdensome'' is 
applied differently to case-by-case exemptions than it is to rulemaking 
decisions to exempt categories of programming. Existing rules for 
closed captioning of television programming contain a number of 
categorical exemptions. In the NPRM, the Commission sought comment on 
whether any of the categorical exemptions found in the television 
closed captioning rules should apply to IP closed captioning.
    68. We decline at this time to apply any of the categorical 
exemptions found in the television closed captioning rules to the IP 
closed captioning rules. Thus, programming that appears on television 
with captions after the effective date of the IP closed captioning 
rules will be subject to the rules even if the programming was exempt 
from the television closed captioning requirements but was nevertheless 
captioned voluntarily. Programming that is exempt from the television 
closed captioning requirements and that never appears on television 
with captions is not subject to the IP closed captioning requirements, 
which by definition do not apply to programming that appears on 
television only without captions. The record does not contain 
sufficient evidence to demonstrate that it would be economically 
burdensome to require captioning of programming that would fit within 
one of the television exemptions, if that programming was shown on 
television with captions after the effective date of our new rules. 
This approach we adopt is consistent with the CVAA, which requires 
``closed captioning on video programming delivered using Internet 
protocol that was published or exhibited on television with captions 
after the effective date of such regulations.'' If Congress intended to 
limit the IP closed captioning rules to programming that ``was required 
to be published or exhibited on television with captions,'' it would 
have said so.
    69. We emphasize an important difference between exemptions for 
closed captioning of IP-delivered video programming and exemptions for 
closed captioning of television programming. In the television context, 
programming that is exempt from the closed captioning requirements may 
never have been associated with a closed captioning file. In contrast, 
the IP closed captioning rules only apply to programming that was 
captioned on television, and thus, they do not require the creation of 
closed captions where captions did not already exist. We acknowledge 
that a particular program may be shown on television both without 
captions by an entity that is exempt under the television closed 
captioning rules, and with captions by an entity that is not exempt. 
Once the program is shown on television with captions after the 
effective date of our new rules, all VPDs must enable the rendering or 
pass through of closed captions to the end user, except for any VPD 
that obtains an individual exemption due to economic burden pursuant to 
the procedures adopted above.
    70. We reject the categorical exemptions proposed by CTIA, NCTA, 
and Starz. CTIA requests an exemption from the requirements of Section 
202 of the CVAA for mobile service providers. NCTA suggests that a new 
network that is exempt from the television closed captioning 
requirements should also be exempt from the IP closed captioning 
requirements. Starz requests ``that the Commission clarify that VPOs 
need not caption other programming streamed through VPOs' Web sites'' 
besides linear and video-on-demand programming streamed to 
authenticated subscribers. We find that these requested categorical 
exemptions are overly broad and not sufficiently supported by the 
record, the statute, or legislative history. None of these parties 
demonstrates that compliance with the IP closed captioning requirements 
would be an economic burden for an entire category of entities. 
Further, we will consider on a case-by-case basis petitions requesting 
an exemption based on economic burden filed by a particular mobile 
service provider, new network, or other person or entity.
    71. We also adopt the NPRM proposal not to delay implementation of, 
or waive, the rules as applied to live programming, except by adopting 
the VPAAC recommendation to provide a lengthier compliance deadline for 
live programming than that provided for prerecorded programming that is 
not edited for Internet distribution. Section 202(b) of the CVAA 
permits the Commission to delay or waive the applicability of its IP 
closed captioning rules ``to the extent the Commission finds that the 
application of the regulation to live video programming delivered using 
Internet protocol with captions after the effective date of such 
regulations would be economically burdensome to providers of video 
programming or program owners.'' The VPAAC considered the special 
nature of live programming by proposing a longer compliance deadline 
for live programming than for prerecorded and unedited video 
programming, which we adopt above. We do not see any justification for 
a further delay or waiver of the Commission's new IP closed captioning 
rules as applied to live programming at this time.

D. De Minimis Failure To Comply and Alternate Means of Compliance

    72. De Minimis Failure to Comply. Section 202(b) of the CVAA 
requires the Commission's IP closed captioning regulations to ``provide 
that de minimis failure to comply with such regulations by a video 
programming provider or owner shall not be treated as a violation of 
the regulations.'' \61\ The statute and legislative history did not 
elaborate upon the meaning of ``de minimis failure to comply.'' In the 
NPRM, the Commission proposed that, to determine whether a failure to 
comply is de minimis, it would ``consider the particular circumstances 
of the failure to comply, including the type of failure, the reason for 
the failure, whether the failure was one-time or continuing, and

[[Page 19497]]

the time frame within which the failure was remedied.''
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    \61\ Because the statutory provision regarding de minimis 
failures to comply references only VPPs and VPOs, our rule 
implementing this provision also will reference VPPs and VPOs, but 
not VPDs. We note, however, that the exclusion of VPDs has no 
practical effect as we have defined VPD and VPP as having the same 
meaning.
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    73. We adopt the proposed rule, which provides that a video 
programming provider or owner's de minimis failure to comply with Sec.  
79.4 of our rules shall not be treated as a violation of the 
requirements.\62\ We intend to apply the de minimis standard in a 
flexible manner, consistent with our approach in the television realm, 
rather than specifying particular criteria that we will apply to make a 
de minimis determination. In the television context, ``[i]n considering 
whether an alleged violation has occurred, [the Commission] will 
consider any evidence provided by the video programming distributor in 
response to a complaint that demonstrates that the lack of captioning 
was de minimis and reasonable under the circumstances.'' \63\ This 
approach is also supported by the record. Thus, we decline to adopt 
specific criteria that we will consider in evaluating whether a failure 
to comply is de minimis.
---------------------------------------------------------------------------

    \62\ This language is intended to make clear that de minimis 
violations will not lead to enforcement actions.
    \63\ 1998 Closed Captioning Recon. Order.
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    74. Alternate Means of Compliance. Section 202(b) of the CVAA 
provides that ``[a]n entity may meet the requirements of this section 
through alternate means than those prescribed by regulations pursuant 
to subsection (b), as revised pursuant to paragraph (2)(A) of this 
subsection, if the requirements of this section are met, as determined 
by the Commission.'' \64\ Should an entity seek to use an ``alternate 
means'' to comply with the IP closed captioning requirements, that 
entity may either (i) request a Commission determination that the 
proposed alternate means satisfies the statutory requirements through a 
request pursuant to Sec.  1.41 of our rules; or (ii) claim in defense 
to a complaint or enforcement action that the Commission should 
determine that the party's actions were permissible alternate means of 
compliance. Rather than specify what may constitute a permissible 
``alternate means,'' we conclude that the best means of implementing 
this provision is to address any specific requests from parties subject 
to the new IP closed captioning rules when they are presented to us.
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    \64\ As explained in the NPRM, the statute and legislative 
history did not elaborate upon the meaning of ``alternate means'' in 
this provision, although the House Committee explained that in the 
context of Section 203, alternate means was intended ``to afford 
entities maximum flexibility in meeting the requirement that video 
programming delivered using Internet protocol be captioned,'' and 
that the Commission should ``provide some flexibility where 
technical constraints exist.''
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E. Complaint Procedures

    75. In the NPRM, the Commission proposed to adopt procedures for 
complaints alleging a violation of the IP closed captioning rules that 
are analogous to the procedures the Commission uses for complaints 
alleging a violation of the television closed captioning rules, with 
certain modifications. Commenters generally support the Commission's 
proposed approach of modeling the IP closed captioning complaint 
process on the existing television closed captioning complaint process. 
As explained below, we adopt these proposals with certain enhancements 
and changes.\65\
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    \65\ The complaint procedures discussed in this Report and Order 
address the process by which the Commission's Consumer and 
Governmental Affairs Bureau processes complaints. This process 
differs from that of the Commission's Enforcement Bureau, which 
investigates whether a violation has occurred and, if so, what 
penalty to assess, regardless of whether a complaint has been filed.
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    76. Timing of Complaint. In the NPRM, the Commission asked whether 
to impose the same 60-day time frame for complaints involving IP-
delivered video programming as for complaints involving programming 
aired on television. We recognize that determining the date on which 
IP-delivered video programming was noncompliant may be more difficult 
than determining the date on which television programming was 
noncompliant, since television programming often airs at specified 
times whereas IP-delivered video programming may be available 
continuously. If IP-delivered video programming is available without 
required captioning, then it is noncompliant during the entire time 
that it is available. A number of commenters support the adoption of a 
filing deadline for complaints alleging violations of the IP closed 
captioning rules based on the date on which the consumer experienced 
the captioning problem, explaining that it would provide VPDs and VPOs 
with some certainty as to previously distributed content, and would 
ensure that the complaint process occurs when evidence is fresh. Some 
commenters support a 60-day time frame, while others support a shorter 
or longer time frame.
    77. We adopt the proposed 60-day time frame and require that 
complaints be filed within 60 days after the complainant experiences a 
problem with the captioning of IP-delivered video programming. We 
recognize that problems with captions of IP-delivered video programming 
often may be ongoing, in that a program may remain online without 
captions for a period of time. We will require the consumer to file a 
complaint within 60 days of any date on which the consumer accessed the 
programming and did not receive compliant captions. The Commission will 
accept a consumer's allegations as to the timeliness of a complaint as 
true, unless a VPO or VPD demonstrates otherwise. Establishing a 
deadline based on the date the complainant accessed noncompliant 
programming will provide certainty to VPOs and VPDs and ensure that the 
evidence available at the time of the complaint remains fresh. The 60-
day time frame, in particular, has worked well in the television 
context, and we therefore find it appropriate to use the same deadline 
here.
    78. We find that it is important to provide a limit on the time 
within which a complaint must be filed, so that evidence is available 
to adjudicate the complaint properly. For example, even if a particular 
program remains available via IP, technical problems with the 
consumer's device or Internet connection on a specific date might have 
been the cause of a particular captioning problem, and it might be 
difficult to make that determination if too much time has elapsed. We 
disagree with Consumer Groups that the time frame should begin at the 
last time the violating video was distributed to any consumer. Some 
video programming may be available online for years, and so it may be 
difficult to investigate a complaint filed by a consumer years after 
the captioning problem occurred.
    79. Option to File Complaints with the Commission or with the VPD. 
Similar to the television closed captioning rules, we will create a 
process for complainants to file their complaints either with the 
Commission or with the VPD responsible for enabling the rendering or 
pass through of the closed captions for the video programming. First, 
we adopt a process by which complainants may file complaints with the 
Commission, and those complaints may be directed against a particular 
VPD or VPO. Second, to encourage the prompt resolution of complaints in 
the marketplace, we also adopt a process by which complainants may 
first file their complaints with the VPD, and if complainants are not 
satisfied by that process, they may then file their complaints with the 
Commission. These procedures are discussed further below. We do not 
create a process by which complainants may first file their complaints 
with the VPO, because VPOs

[[Page 19498]]

generally do not maintain direct relationships with consumers and may 
lack the ability to provide consumers with means of access such as the 
contact information we require below of VPDs.
    80. In the NPRM, the Commission asked whether we should permit 
those filing complaints alleging a violation of the IP closed 
captioning rules to file the complaint directly with the VPD first, or 
whether it is instead preferable to require all complaints to come 
directly to the Commission in the first instance. Some commenters 
support a Commission procedure for filing complaints with the VPD 
first. Permitting the filing of complaints directly with the VPD, and 
allowing the VPD to attempt to resolve the complaint with the consumer 
before the Commission engages in enforcement proceedings, would benefit 
VPDs by minimizing their involvement in complaint proceedings at the 
Commission and may benefit consumers by fostering a prompt resolution 
of their complaints. Thus, we adopt procedures to permit complainants 
to file their complaints either with the Commission or with the VPD 
responsible for enabling the rendering or pass through of the closed 
captions for the video programming.\66\
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    \66\ The record does not support the creation of a process by 
which consumers file complaints directly with the VPO. We find it 
unlikely in any event that a consumer would choose to file a 
complaint with a VPO, with which it has no direct relationship, 
instead of with a VPD from which it receives IP-delivered video 
programming. Of course, any consumer that wishes to contact a VPO to 
share a captioning concern may do so.
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    81. Consumers who file their complaints first with the Commission 
may name a VPD or VPO in the complaint, since both entities are subject 
to the IP closed captioning rules. The Commission will forward such 
complaints to the named VPD and/or VPO, as well as to any other VPD or 
VPO that Commission staff determines may be involved, as discussed 
further below. If a complaint is filed first with the VPD, our rules 
will require the VPD to respond in writing to the complainant within 
thirty (30) days after receipt of a closed captioning complaint.\67\ If 
a VPD fails to respond to the complainant within thirty (30) days, or 
the response does not satisfy the consumer, the complainant may file 
the complaint with the Commission within thirty (30) days after the 
time allotted for the VPD to respond. If the consumer then files the 
complaint with the Commission (after filing with the VPD), the 
Commission will forward the complaint to the named VPD, as well as to 
any other VPD or VPO that Commission staff determines may be 
involved.\68\ If the Commission is aware that a complaint has been 
filed simultaneously with the Commission and the VPD, the Commission 
may allow the process involving the VPD and the consumer to reach its 
conclusion before moving forward with its complaint procedures, in the 
interest of efficiency.\69\
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    \67\ If a VPD receives a complaint directly from a consumer but 
believes that the captioning problem was caused by the VPO, the VPD 
may indicate in its response to the consumer that the consumer may 
choose to file a complaint with the Commission against the VPO. To 
the extent a VPD believes that fault for the captioning problem lies 
elsewhere, the VPD should make this clear, and provide any other 
relevant information, in its written response to the consumer.
    \68\ These procedures are consistent with procedures in our 
existing television closed captioning rules.
    \69\ We note Consumer Groups' proposal that Commission 
enforcement proceedings and VPD attempts at remediation should occur 
concurrently. In response, AT&T explains that the proposal of 
Consumer Groups would violate the Administrative Procedure Act and 
the Constitutional guarantee of due process. The Commission may not 
be aware that a complaint has been filed simultaneously with the 
Commission and with a VPD, but when so informed, the Commission will 
provide the VPD with the 30-day period after the VPD received the 
complaint to resolve the complaint with the complainant first, in 
the interest of efficiency.
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    82. The flexible complaint process adopted herein will benefit 
consumers because it enables them to file their complaints with the 
Commission naming either the VPD or the VPO. We reiterate our 
expectation that consumers generally will name the VPD in their 
complaints, since that is the entity that distributes the programming 
to consumers. Nevertheless, if a consumer names a VPD in its complaint 
but the Commission determines that its investigation should be directed 
against the VPO, the Commission will forward the complaint to the VPO 
without any further involvement of the consumer.\70\ In addition, if a 
VPD receives a complaint from the Commission that it believes the 
Commission should have directed to the VPO, the VPD may say so in its 
response to the complaint. In such instances, however, the VPD's 
response must also indicate the identity and contact information of the 
VPO to which the VPD believes the complaint should be directed. Since 
consumers may file any IP closed captioning complaint with the VPD or 
name the VPD in any complaint filed with the Commission, we find that 
Consumer Groups' concern that consumers may be unable to determine the 
entity against which they should file a complaint is unfounded, because 
consumers are not required to name or otherwise identify the applicable 
VPO. The complaint process will be aided further by the Commission's 
ability to request additional information from any relevant entities 
when, in the estimation of Commission staff, such information is needed 
to investigate the complaint or adjudicate potential violation(s) of 
Commission rules.
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    \70\ While the complaint procedures proposed in the NPRM would 
provide the Commission with needed flexibility to reach the 
responsible entity or entities, we do not intend to burden parties 
by engaging in simultaneous investigations, where a complaint can 
best be resolved by focusing the Commission's investigation on a 
single party or on one party followed by another party.
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    83. Complaint Response Time. Upon receipt of a complaint from the 
Commission, we will require the VPD and/or VPO to respond in writing to 
the Commission and the complainant within 30 days. We conclude that the 
record does not support deviating from the 30-day time frame contained 
in the television closed captioning rules for responding to complaints. 
While Consumer Groups propose that the Commission instead require VPDs 
to respond to complaints within 15 calendar days, we agree with other 
commenters that such a short deadline would be unworkable. Although in 
the NPRM the Commission proposed to provide explicitly in our rules 
that the Commission may specify response periods longer than 30 days on 
a case-by-case basis, we find it unnecessary to do so because the 
Commission may waive its rules for good cause, sua sponte or pursuant 
to a waiver request, and it can grant motions for extension of time.
    84. In response to a complaint, VPDs and VPOs must file with the 
Commission sufficient records and documentation to prove that the 
responding entity was (and remains) in compliance with the Commission's 
rules. Conclusory or insufficiently supported assertions of compliance 
will not carry a VPD's or VPO's burden of proof. If the responding 
entity admits that it was not or is not in compliance with the 
Commission's rules, it shall file with the Commission sufficient 
records and documentation to explain the reasons for its noncompliance, 
show what remedial steps it has taken or will take, and show why such 
steps have been or will be sufficient to remediate the problem.
    85. Resolution of Complaints. We decline at this time to specify a 
time frame within which the Commission must act on IP closed captioning 
complaints. While we recognize the importance of prompt actions on 
complaints, no such time frame exists for television closed captioning 
complaints, and we agree with commenters who explain that it would be 
difficult at this juncture to predict

[[Page 19499]]

the length of time the Commission will need to resolve IP closed 
captioning complaints. In evaluating a complaint, the Commission will 
review all relevant information provided by the complainant and the 
subject VPDs or VPOs, as well as any additional information the 
Commission deems relevant from its files or public sources. When the 
Commission requests additional information, parties to which such 
requests are addressed must provide the requested information in the 
manner and within the time period the Commission specifies.
    86. Sanctions or Remedies. We decline to create sanctions or 
remedies for IP closed captioning enforcement proceedings that deviate 
from the Commission's flexible, case-by-case approach governed by Sec.  
1.80 of our rules. We do not find warranted the proposal of Consumer 
Groups that the Commission assess a new violation for each complaint, 
with a minimum forfeiture level of $10,000 per violation. The record 
does not support either the $10,000 minimum forfeiture level proposed 
by the Consumer Groups or establishing a base forfeiture level for IP 
closed captioning complaints at this time. Further, since closed 
captioning requirements for IP-delivered video programming are new, the 
Commission may benefit from conducting investigations before codifying 
a base forfeiture for addressing violations. As stated in the NPRM, we 
will adjudicate complaints on the merits and may employ the full range 
of sanctions and remedies available to the Commission under the Act.
    87. Content of Complaints. Given the variety of issues that could 
cause IP closed captioning not to reach an end user (for example, a 
VPO's failure to provide captions, a VPD's failure to render or pass 
through captions, captions of an inadequate quality, a problem with the 
device used to view the captions, or the fact that captions were not 
required because the programming had not been shown on television with 
captions after the effective date of the new rules), we think it is 
important that we receive complaints containing as much information as 
possible that will enable their prompt and accurate resolution. 
Accordingly, complaints should include the following information: \71\ 
(a) The name, postal address, and other contact information of the 
complainant, such as telephone number or email address; \72\ (b) the 
name and postal address, Web site, or email address of the VPD and/or 
VPO against which the complaint is alleged, and information sufficient 
to identify the video programming involved; (c) information sufficient 
to identify the software or device used to view the program; (d) a 
statement of facts sufficient to show that the VPD and/or VPO has 
violated or is violating the Commission's rules, and the date and time 
of the alleged violation; \73\ (e) the specific relief or satisfaction 
sought by the complainant; and (f) the complainant's preferred format 
or method of response to the complaint. Consumer Groups also suggest 
that the Commission should permit consumers to submit photographic or 
video evidence of the captioning problem when filing a complaint. If a 
consumer wishes to submit such evidence, Commission staff will consider 
the evidence as part of the complaint proceeding. If a complaint is 
filed with the Commission, the Commission will forward complaints 
meeting the above-specified requirements to the appropriate party or 
parties. If a complaint does not contain all of the information 
specified in this paragraph and Commission staff determines that 
certain information is essential to resolving the complaint, Commission 
staff may work with the complainant to ascertain the necessary 
information and supplement the complaint. The Commission retains 
discretion not to investigate complaints that lack the above-specified 
information and complaints for which the Commission is unable to 
ascertain such information after further inquiries to the complainant.
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    \71\ While we proposed in the NPRM to require complaints to 
include this information, we recognize that some of the requested 
information may not be readily ascertained by consumers. For 
example, it may be difficult for consumers to determine the identity 
of the VPO, the postal address of the VPD or VPO, and the type of 
software or device the consumer used to view IP-delivered video 
programming. Accordingly, we provide that complaints should (but are 
not required to) include the specified information. The Commission 
will best be in a position to investigate complaints that include 
the maximum information requested.
    \72\ We have enhanced this category of information from what was 
proposed in the NPRM, to facilitate contacting the complainant by 
means other than postal mail.
    \73\ We have modified this requirement from what was proposed in 
the NPRM, in recognition of the finding that the date and time of 
the alleged violation should be included with all IP closed 
captioning complaints.
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    88. Written Complaints. We conclude that complaints filed either 
with the Commission or with the VPD must be in writing. Consumer Groups 
propose that the Commission should permit the filing of complaints by 
``any reasonable means,'' and it also proposes that the Commission 
accommodate evidence for closed captioning complaints submitted in 
American Sign Language. NAB disagrees, proposing instead that the means 
of filing complaints should mirror the television closed captioning 
rules. We find no reason to deviate from the requirement in the 
television closed captioning rules that a complaint must be in writing, 
and we thus adopt that proposed requirement, which has worked well in 
the television context. We clarify that, if a complainant calls the 
Commission for assistance in preparing a complaint (by calling either 
1-888-CALL-FCC or 1-888-TELL-FCC (TTY)), and Commission staff documents 
the complaint in writing for the consumer, that constitutes a written 
complaint. A written complaint filed with the Commission must be 
transmitted to the Consumer and Governmental Affairs Bureau through the 
Commission's online informal complaint filing system, U.S. Mail, 
overnight delivery, or facsimile. After the rules become effective, the 
Consumer and Governmental Affairs Bureau will release a consumer 
advisory with instructions on how to file complaints in various 
formats, including via the Commission's Web site.
    89. Revisions to Form 2000C. The Commission directs the Consumer 
and Governmental Affairs Bureau to revise the existing complaint form 
for disability access complaints (Form 2000C) in accordance with this 
Report and Order, to foster the filing of IP closed captioning 
complaints. In the NPRM, the Commission asked if it should revise the 
existing complaint form for disability access complaints (Form 2000C) 
to request information specific to complaints involving IP closed 
captioning, and industry and consumer groups support this proposal. 
Should the complaint filing rules adopted in this Report and Order 
become effective before the revised Form 2000C is available to 
consumers, IP closed captioning complaints may be filed in the interim 
by fax, mail, or email.
    90. Contact Information. We will require VPDs to make contact 
information available to end users for the receipt and handling of 
written IP closed captioning complaints. Given that we will permit 
consumers to file their IP closed captioning complaints directly with a 
VPD, we think it is important that consumers have the information 
necessary to contact the VPD. At this time, we decline to specify how 
VPDs must provide contact information for the receipt and handling of 
written IP closed captioning complaints, but we expect that VPDs will 
prominently display their contact

[[Page 19500]]

information in a way that it is accessible to all end users of their 
services. We agree with AT&T that ``a general notice on the VPP's/VPD's 
Web site with contact information for making inquiries/complaints 
regarding closed captioning over IP video'' would be sufficient, but we 
emphasize that such notice should be provided in a location that is 
conspicuous to viewers. We also agree with Consumer Groups that 
creating a database comparable to the television database of video 
programming distributor contact information may be infeasible in the IP 
context, given the potentially large number of VPDs that may emerge 
over time. Therefore, we decline at this time to create a database of 
IP video providers and their closed captioning contacts; if we find 
that VPDs are not providing their contact information in a sufficient 
manner, however, we may revisit this issue. Very few commenters 
provided their views on what contact information we should require. 
Accordingly, we will parallel the requirements for television video 
programming distributor contact information for the receipt and 
handling of written closed captioning complaints. Thus, we will require 
VPDs of IP-delivered video programming to make the following contact 
information accessible to end users: the name of a person with primary 
responsibility for IP closed captioning issues and who can ensure 
compliance with our rules; and that person's title or office, telephone 
number, fax number, postal mailing address, and email address. VPDs 
shall keep this information current and update it within 10 business 
days of any change.
    91. We will not, however, require VPDs to make contact information 
available for the immediate receipt and handling of closed captioning 
concerns of consumers. The television closed captioning rules require 
video programming distributors to ``make available contact information 
for the receipt and handling of immediate closed captioning concerns 
raised by consumers while they are watching a program,'' so that 
distributors can work with consumers to resolve the program at that 
time. We draw this distinction for these rules because we are concerned 
that Web sites and other sources of IP-delivered video programming may 
not be well-positioned to respond to a consumer's immediate closed 
captioning concerns.

IV. Section 203 of the CVAA

    92. The CVAA amends Section 303(u) of the Act to ``require that, if 
technically feasible, apparatus designed to receive or play back video 
programming transmitted simultaneously with sound * * * and us[ing] a 
picture screen of any size be equipped with built-in closed caption 
decoder circuitry or capability designed to display closed-captioned 
video programming.'' In the discussion that follows, we first provide 
our interpretation of the statutory term ``apparatus.'' We then analyze 
additional provisions of Section 203 of the statute, including the 
provisions that ``apparatus'' that use a screen of any size are covered 
and that our requirements only apply to the extent they are technically 
feasible. Further, we address the statutory provisions for waivers of 
closed captioning obligations that are not ``achievable'' or are not 
appropriate given the primary purpose of the device being used to view 
video programming, as well as the statutory exemption for display-only 
monitors. We then address the specific, functional requirements covered 
devices will be required to satisfy. Additionally, we incorporate the 
statutory language regarding recording devices, including the 
obligations that they receive, store, and play back closed captioning, 
address interconnection mechanisms, and make minor changes to our 
existing closed captioning rules for analog and digital television 
receivers. Finally, we address how parties may meet these requirements 
through alternate means of compliance, specify the time frames by which 
manufacturers must meet their obligations under these rules, and 
describe how consumers may file complaints for violations of these 
rules.

A. Apparatus Subject to Section 203 of the Act

    93. The CVAA does not define the term ``apparatus,'' requiring the 
Commission to interpret the term to determine the exact meaning and 
extent of the statute's reach. Taking into account the statutory 
language and purpose, the record in this proceeding, and the 
conclusions the Commission reached in the ACS Order,\74\ we interpret 
this language to apply to hardware (that is, physical devices such as 
set-top boxes, PCs, smartphones, and tablets) designed to receive or 
play back video programming transmitted simultaneously with sound and 
any integrated software (that is, software installed in the device by 
the manufacturer before sale or that the manufacturer requires the 
consumer to install after sale). Commenters unanimously agree that 
physical devices capable of displaying video are covered by the 
statutory term ``apparatus.'' Given the fact that the means by which a 
device actually displays video--the ``video player''--may be comprised 
of hardware, software, or a combination of both, we do not believe that 
it would be appropriate to define ``apparatus'' solely in terms of 
hardware. Rather, in order to effectuate the statutory goals, we define 
``apparatus'' to include the physical device and the video players that 
manufacturers install into the devices they manufacture (whether in the 
form of hardware, software, or a combination of both) before sale, as 
well as any video players that manufacturers direct consumers to 
install.\75\ Thus, ``apparatus'' includes integrated video players, 
i.e., video players that manufacturers embed in their devices, video 
players designed by third parties but installed by manufacturers in 
their devices before sale, and video players that manufacturers require 
consumers to add to the device after sale in order to enable the device 
to play video.\76\ In addition, if a manufacturer offers updates or 
upgrades to a video player component of a device, it also must ensure 
that those updates or upgrades are capable of displaying closed 
captions.\77\ Further, if a manufacturer

[[Page 19501]]

selects a third-party operating system that includes a video player, 
that video player will also be considered part of the ``apparatus.''
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    \74\ The ACS Order applies the accessibility requirements of 
Section 716 of the CVAA to non-interconnected VoIP services, 
electronic messaging services, and interoperable video conferencing 
services. ACS Order, 26 FCC Rcd at 14564, para. 13, implementing 
Public Law 111-260 sec. 104; 47 U.S.C. 617-619. In applying the 
provisions of the CVAA to entities that make or produce end user 
equipment, including tablets, laptops, and smartphones responsible 
for the accessibility of the hardware and manufacturer-provided 
software used for email, SMS text messaging, and other advanced 
communications services, the Commission addressed many issues of 
first impression related both to the CVAA and to the regulation of 
high-tech devices not traditionally reached by the Commission's 
accessibility rules. We find the ACS Order a useful guide to 
interpreting similar provisions and issues in this proceeding. 
Accordingly, we refer to the ACS Order at various points in the 
following discussion.
    \75\ We note that manufacturers of covered apparatus pursuant to 
this section must also comply with the performance and display 
requirements set forth below.
    \76\ As provided in the ACS Order, ``[m]anufacturers are 
responsible for the software components of their [devices] whether 
they pre-install the software, provide the software to the consumer 
on a physical medium such as a CD, or require the consumer to 
download the software.'' ACS Order, 26 FCC Rcd at 14582, para. 69.
    \77\ We reject commenters' arguments that Section 203 is limited 
to enabling the display of closed captioning solely to video 
programming provided pursuant to Section 202 of the CVAA. Section 
203 broadly requires covered devices to be equipped and capable of 
displaying closed captioned video programming. 47 U.S.C. 
303(u)(1)(A). The legislative history states that the CVAA was 
enacted to ``ensure that devices consumers use to view video 
programming are able to display closed captions.'' Moreover, as a 
technical and practical matter, once a device implements the closed 
captioning capability for a particular format of content, then the 
origin of that content is immaterial. Under current technology, 
there would be no way for the device manufacturer to limit 
captioning only for a particular type of content.
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    94. Our approach is consistent with the statute, which uses broad 
terminology, applying to ``apparatus designed to receive and play back 
video programming transmitted simultaneously with sound.'' In addition 
to the statute's broad language, the legislative history suggests that 
the statute was intended to have a broad scope. For example, the House 
and Senate Committee Reports describe the goal of Section 203(a) as 
``ensur[ing] that devices consumers use to view video programming are 
able to display closed captions.'' As explained above, applying our 
rules solely to hardware would not fulfill this goal because the 
ability to display closed captions may be implemented through hardware, 
software or a combination of both. Thus, defining apparatus to include 
``integrated software'' is necessary to achieve Congress's goal to 
ensure individuals with disabilities are able to fully access video 
programming. We recognize that this places the burden on manufacturers 
to ensure that all the software they choose to build into or preinstall 
in their devices complies with our closed captioning rules. We 
conclude, however, that this is necessary to implement the statute and 
effectuate congressional intent. The approach we adopt is also 
consistent with the approach the Commission followed in the ACS 
Order.\78\ We decline to include within the scope of our interpretation 
of the statutory term ``apparatus'' third-party software that is 
downloaded or otherwise added to the device independently by the 
consumer after sale and that is not required by the manufacturer to 
enable the device to play video.\79\ Given our interpretation of the 
statute to cover integrated software, as well as our decision under 
Section 202 (as discussed above) that VPDs must ensure that any video 
player they provide to the consumer is capable of rendering or passing 
through closed captions, we believe that the rules we adopt will cover 
the majority of situations in which consumers view video, and therefore 
do not believe that it is necessary to hold manufacturers responsible 
for such ``third-party software'' or to regulate software companies 
directly.\80\ In interpreting the scope of the statute in this manner, 
we have balanced the needs of consumers with the need to minimize 
burdens on the industry to ensure that our rules do not impede 
innovation in the device and software markets.
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    \78\ In the ACS Order, the Commission adopted rules holding 
``entities that make or produce end user equipment, including 
tablets, laptops, and smartphones, responsible for the accessibility 
of the hardware and manufacturer-provided software used for email, 
SMS text messaging, and other ACS. We also hold these entities 
responsible for software upgrades made available by such 
manufacturers for download by users.'' See ACS Order, 26 FCC Rcd at 
14588-89, para. 13.
    \79\ This is also consistent with the ACS Order, which stated 
``[a]dditionally, we conclude that, except for third-party 
accessibility solutions, there is no liability for a manufacturer of 
end user equipment for the accessibility of software that is 
independently selected and installed by the user, or that the user 
chooses to use in the cloud.'' See ACS Order, 26 FCC Rcd at 14588, 
para. 13. We expect, however, that to the extent that third-party 
software provides closed captioning support, the manufacturer will 
ensure that the device does not block the transmission of 
captioning.
    \80\ To the extent, in the future, there is evidence to suggest 
that our rule no longer ensures that the goals of the statute are 
met--for example, if video programming is increasingly provided 
using third-party software unaffiliated with both VPDs and device 
manufacturers--we may revisit this issue. See ACS Order, 26 FCC Rcd 
at 14586, para. 72 (``[T]he Commission will have an occasion to 
examine whether application of the CVAA's requirements directly to 
developers of consumer-installed software is warranted, and make any 
necessary adjustments to our rules to achieve accessibility in 
accordance with the intent of the CVAA.'').
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    95. Designed to Receive or Play Back Video Programming. Our 
decision to cover ``integrated video players'' is consistent with the 
statutory language of Section 203 of the CVAA which covers those 
apparatus ``designed to receive or play back video programming 
transmitted simultaneously with sound.'' Under our interpretation, if a 
device is sold with (or updated by the manufacturer to add) an 
integrated video player capable of displaying video programming, that 
device is ``designed to receive or play back video programming'' and 
subject to our rules adopted pursuant to Section 203. Some commenters 
argue that we should evaluate whether a device is covered by focusing 
on the original design or intent of the manufacturer of the apparatus 
and not the consumer's ultimate use of that apparatus. We disagree. We 
believe that to determine whether a device is designed to receive or 
play back video programming, and therefore covered by the statute, we 
should look to the device's functionality, i.e. whether it is capable 
of receiving or playing back video programming. We are persuaded that 
adopting this bright-line standard based on the device's capability 
will provide more certainty for manufacturers.\81\ In any event, to the 
extent a device is built with a video player, it would be reasonable to 
conclude that viewing video programming is one of the intended uses of 
the device. From a consumer perspective, it would also be reasonable to 
expect that a device with a video player would be capable of displaying 
captions.
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    \81\ As noted above, our rules cover manufacturer-provided 
updates and upgrades to devices; thus, a device that originally 
included no video player but that the manufacturer requires the 
consumer to update or upgrade to enable video reception or play-back 
will be covered by our rules (our rules, of course, equally cover 
updates or upgrades to existing video players). Looking solely at 
the manufacturer's original intent, therefore, would be too narrow 
an approach. However, we would not hold manufacturers liable for 
failure to include closed captioning capability in devices 
manipulated or modified by consumers in the aftermarket to provide 
services not intended by the manufacturer.
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    96. Picture Screen of Any Size. The statute applies to apparatus 
``if such apparatus * * * uses a picture screen of any size.'' We 
interpret the term ``use'' to mean that the apparatus works in 
conjunction with a picture screen. We reject the argument that Section 
203 applies only to devices that include screens, as neither the 
statute nor the legislative history compels such a narrow construction. 
The original Television Decoder Circuitry Act's captioning requirement 
covered an apparatus only if ``its television picture screen is 13 
inches or greater in size.'' The Commission previously interpreted the 
narrower phrase used in the Television Decoder Circuitry Act (``its 
television screen'') to permit coverage of devices that are not 
connected to a picture screen. In the 2000 DTV Closed Captioning Order, 
the Commission explained that separating the tuning and receive 
function from the display function of a device is common, allows 
consumers to customize their systems, and should not eliminate the 
obligation to provide closed captioning.\82\ Commenters have failed to 
persuade us that this reasoning should not apply here as well.\83\ 
Moreover, we find that reading Section 203(a) to apply only to devices 
with built-in screens would undermine the goals of the statute, as it 
would exclude one of the most common

[[Page 19502]]

means by which consumers view programming. Thus, we find that it is 
reasonable to conclude that Congress's intent in Section 203(a) of the 
CVAA was to eliminate the screen-size limitation, not to narrow the 
classes of apparatus covered. Therefore, devices designed to work in 
conjunction with a screen, though not including a screen themselves, 
such as set-top boxes, personal computers, and other receiving devices 
separated from a screen must be equipped with closed caption decoder 
circuitry or capability designed to display closed-captioned video 
programming, unless that device is otherwise exempted pursuant to the 
limitations and exceptions described below.
---------------------------------------------------------------------------

    \82\ Closed Captioning Requirements for Digital Television 
Receivers, FCC 00-259, 65 FR 58467, Sept. 29, 2000 (``2000 DTV 
Closed Captioning Order'') (implementing the previous version of 47 
U.S.C. 303(u)).
    \83\ We note that a separate provision of the CVAA provides that 
apparatus ``that use a picture screen that is less than 13 inches in 
size'' be subject to closed captioning requirements only if such 
requirements are ``achievable,'' 47 U.S.C. 303(u)(2)(a), but we 
interpret the reference to ``a picture screen that is less than 13 
inches in size'' in that provision to express Congress's intent to 
recognize the potential difficulties of achieving compliance with 
respect to devices that use small screens, and do not find it to be 
inconsistent with the reasoning set forth above.
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    97. Technically Feasible. Under the CVAA, the requirements of 
Section 203 only apply to the extent they are ``technically feasible.'' 
Because neither the statute nor the legislative history provides 
guidance as to the meaning of ``technically feasible,'' the Commission 
is obligated to interpret the term to best effectuate the purpose of 
the statute. To assist us in our analysis, we look to how the 
Commission in the past has interpreted this and other, similar terms in 
the context of accessibility for people with disabilities. For example, 
in the context of Section 255 of the Act, the Commission defined 
``readily achievable'' to mean, in part, ``technically feasible,'' and 
then defined that term by rulemaking to encompass a product's 
technological and physical limitations.\84\ The Commission further 
found that a requirement should not be considered technically 
infeasible simply because it would be costly to implement, or that it 
involved physical modifications or alterations to the design of a 
product.
---------------------------------------------------------------------------

    \84\ See Implementation of Section 255 and 251(a)(2) of the 
Communications Act of 1934, as enacted by the Telecommunications Act 
of 1996, Report and Order and Further Notice of Inquiry, 16 FCC Rcd 
6417, at 6444-6445, para. 63 (1999) (``Section 255 Report and 
Order'') (``[W]hile technical infeasibility is a consideration, we 
agree with commenters that it does not exist merely because a 
particular feature has not yet been implemented by any other 
manufacturer or service provider. We also caution that technical 
infeasibility should not be confused with cost factors. In other 
words, a particular feature cannot be characterized as technically 
infeasible simply because it would be costly to implement * * * . We 
also agree with several commenters that technical infeasibility 
encompasses not only a product's technological limitations, but also 
its physical limitations. We note, however, that manufacturers and 
service providers should not make conclusions about technical 
infeasibility within the ``four corners'' of a product's current 
design. Section 255 requires a manufacturer or service provider to 
consider physical modifications or alterations to the existing 
design of a product. Finally, we agree with commenters that 
manufacturers and service providers cannot make bald assertions of 
technical infeasibility. Any engineering or legal conclusions that 
implementation of a feature is technically infeasible should be 
substantiated by empirical evidence or documentation.'').
---------------------------------------------------------------------------

    98. We find that for the ``technically feasible'' qualifier to be 
triggered, it must be more than merely difficult to implement 
captioning capability on the apparatus; \85\ rather, manufacturers must 
show that changes to the design of the apparatus to incorporate closed 
captioning capability are not physically or technically possible.\86\ 
We believe that, as a general matter, if it is technically feasible for 
a manufacturer to include a video player in an apparatus, it is 
technically feasible for that manufacturer to include closed captioning 
functionality as well. That is, if an apparatus includes the complex 
functionality of a video player, which requires a relatively 
significant amount of processing power, it is technically feasible to 
include a significantly less computationally demanding functionality 
such as closed captioning, which requires significantly less processing 
power. We recognize that at least some models of apparatus of all 
classes that provide video in the market today--for example, 
televisions, set-top boxes, computers, smartphones, and tablets--also 
enable the rendering or pass through of closed captioning. On the 
strength of this marketplace evidence, we reject CTIA's argument that 
there is insufficient evidence that closed captioning capabilities are 
``technically feasible for all mobile devices capable of video playback 
across a diverse IP-delivered video programming ecosystem.'' CTIA did 
not substantiate its claims with any specific evidence to support its 
claim of technical infeasibility. Thus, we find no justification in the 
record to exempt all mobile devices capable of video playback from the 
closed captioning requirements. If new apparatus or classes of 
apparatus for viewing video programming emerge on which it would not be 
technically feasible to include closed captioning, parties may raise 
that argument as a defense to a complaint or, alternatively, file a 
request for a ruling under Sec.  1.41 of the Commission's rules before 
manufacturing or importing the product.
---------------------------------------------------------------------------

    \85\ We therefore reject CEA's proposal that insufficient 
processor or memory, or lack of appropriate standards such as for 3D 
video, may make implementing captioning or a particular feature of 
captioning on a particular apparatus technically infeasible. Under 
the interpretation of technically feasible established by the 
Commission in the Section 255 Report and Order, expanding the 
processor or memory or developing standards for a new product such 
as 3D video would be technically feasible absent additional evidence 
demonstrating the technical barriers to doing so.
    \86\ Our approach to technical feasibility is also consistent 
with uses of that term in the direct broadcast satellite and common 
carrier context. See Implementation of the Satellite Home Viewer 
Improvement Act of 1999: Broadcast Signal Carriage Issues/
Retransmission Consent Issues, FCC 00-417, 66 FR 7410, Jan. 23, 
2001; 47 CFR 54.5; 47 CFR 51.5. We disagree with CTIA's statement 
that these definitions can be synthesized here to mean 
``demonstrably capable of accomplishment without technical or 
operational concerns'' because the definitions cited herein for 
technical feasibility all call for overcoming technical and 
operational concerns when it is possible to do so.
---------------------------------------------------------------------------

    99. Removable media players. We decline to exclude removable media 
play back apparatus,\87\ such as DVD and Blu-ray players, from the 
scope of the rule. Section 203 covers ``apparatus designed to receive 
or play back video programming transmitted simultaneously with sound.'' 
Section 203 of the CVAA amends Section 303(u) of the Act, which 
previously limited the decoder capability mandate only to those 
``apparatus designed to receive television pictures broadcast 
simultaneously with sound.'' The phrase ``or play back'' in Section 203 
makes clear that Congress no longer intended to only cover devices that 
receive programming. Section 203 expands the prior statutory mandate to 
include not only apparatus that ``receive'' programming, but also 
apparatus designed to ``play back'' programming, whether or not such 
apparatus is also capable of receiving the programming. Some commenters 
argue that the word ``transmitted'' indicates content that is streamed, 
downloaded, or broadcast via ``wire or radio,'' thus excluding such 
removable media devices. We are not persuaded by this argument. The 
reading these commenters advocate ignores Congress's use of the word 
``or,'' and instead would require devices to both ``receive and play 
back'' video programming in order to be covered under the statute. We 
think the better interpretation of the word ``transmitted'' in context 
is that Congress's substitution of the words ``television pictures 
broadcast * * *'' with the corresponding words ``video programming 
transmitted * * *,'' while retaining the phrase ``simultaneously with 
sound,'' was intended to expand the scope of the statute beyond devices 
that receive broadcast television without narrowing the statute's prior 
coverage. For these reasons, we believe the better reading of the 
phrase ``transmitted simultaneously with sound'' in this context is to 
describe how the video programming is conveyed from the device (e.g., 
DVD player) to the end user (simultaneously with sound), rather

[[Page 19503]]

than describe how the video programming arrived at the device (e.g., 
DVD player). Accordingly, we agree with the Consumer Groups and Ronald 
H. Vickery that the better interpretation of Section 203 is that it 
covers removable media play back apparatus, such as DVD players, which 
are commonly used by consumers to view video programming. In this 
regard, we note that even though not required by law, many video 
programs on DVDs contain closed captions, and our interpretation will 
ensure that those captions can be viewed.
---------------------------------------------------------------------------

    \87\ ``Removable'' media describes a form of media storage, such 
as DVDs and flash drives, which can be removed from a computer or 
other equipment while the system is running.
---------------------------------------------------------------------------

    100. Although we recognize that DVDs and other removable media 
often contain subtitles, we do not believe that subtitles generally 
meet the functional requirements necessary to accomplish the goals of 
the statute. Specifically, we recognize that some removable media 
include either subtitles or ``subtitles for the deaf and hard of 
hearing'' (``SDH'') in place of closed captions. Subtitles are similar 
to closed captions in that they display the dialogue of a program as 
printed words on the screen, but often do not also identify speakers 
and background noises, such as sound effects, or the existence of music 
and laughter, information that is often critically important to 
understanding a program's content. SDH are a version of subtitles that 
sometimes includes visual text to convey more than just the program's 
dialogue, for example, speaker identification. However, when these 
subtitles are viewed on removable media devices, such devices do not 
typically offer consumers the user controls available when closed 
captions are provided in accordance with the EIA-708 technical standard 
used for digital television programming.\88\ We agree that these user 
control features for manipulating closed captions must be supported in 
all devices, including those that use removable media, and accordingly 
require built-in closed caption capability designed to display closed-
captioned video programming in these devices in accordance with our 
rules.
---------------------------------------------------------------------------

    \88\ Section 15.122 of the Commission's rules incorporates by 
reference EIA-708-B, ``Digital Television Closed Captioning,'' 
Electronics Industries Alliance (Dec. 1999) (``EIA-708-B''), which 
provides comprehensive instructions for the encoding, delivery, and 
display of closed captioning information for digital television 
systems. The standard provides for a larger set of captioning user 
options than the analog captioning standard, EIA-608, permitting 
users to control the size, font, color and other caption features. 
47 CFR 15.122. See also, 2000 DTV Closed Captioning Order. As 
discussed below and indicated in the Final Rules, we are relocating 
Sec.  15.122 to Sec.  79.102.
---------------------------------------------------------------------------

    101. Professional and commercial equipment. We agree with CEA that 
we should exclude commercial video equipment, including professional 
movie theater projectors, and similar types of professional equipment, 
from our Section 203 rules. The legislative history of the CVAA 
explains that Section 203(a) was intended to ``ensure[] that devices 
consumers use to view video programming are able to display closed 
captions * * * .'' We believe that based on the legislative history, 
Congress intended the Commission's regulations to cover apparatus that 
are used by consumers. Accordingly, we find that because professional 
or commercial equipment is not typically used by the public, it is 
beyond the scope of this directive. Significantly, no commenters argued 
that the Commission's rules should cover this equipment. We note, 
however, that other federal laws may impose accessibility obligations 
to ensure that professional or commercial equipment is accessible to 
employees with disabilities, or enables the delivery of accessible 
services.

B. Achievability, Purpose-Based Waivers, and Display-Only Monitor 
Exemption

    102. As noted above, except for an exemption for display-only 
monitors, we decline to grant blanket waivers or exempt any device or 
class of devices from our rules as requested by several industry 
coalitions. Other than making broad assertions, no commenters that urge 
us to make such exceptions provide any technical basis or other 
evidence to support their contentions that certain classes of devices 
warranted an exemption.\89\ We believe Congress intended the rules 
implementing Section 203 to cover a broad range of consumer devices, 
and we agree with the Consumer Groups that it would be inappropriate to 
waive the rules for broad classes of devices, many of which have 
already demonstrated the ability both to receive video programming and 
display closed captioning. In fact, the very purpose of Section 203 was 
to expand coverage of the original Television Decoder Circuitry Act's 
captioning requirement covering television sets with screens greater 
than 13 inches, to include consumer devices of various sizes and types 
(both wired and wireless), whose usage is rapidly expanding. Moreover, 
we lack a record on which to grant a blanket waiver or exemption for 
any particular model of device or class of equipment.
---------------------------------------------------------------------------

    \89\ Granting such blanket waivers would defeat the purpose of 
the CVAA to expand the ability of people who are deaf or hard of 
hearing to access video programming on modern devices used in the 
twenty-first century.
---------------------------------------------------------------------------

    103. Congress, however, included two limitations in Section 203. 
First, for devices using screens less than 13 inches in size, only 
those features that are ``achievable'' must be implemented. Second, the 
statute provides that manufacturers may seek waivers based on the 
primary purpose or essential utility of the device. We will follow the 
model established in the ACS Order and take a flexible, case-by-case 
approach in addressing any waiver requests. As discussed below, we also 
implement the statute's categorical exemption for display-only 
monitors.
    104. Achievability. Section 203 amends Section 303(u) of the 
Communications Act to require that, ``notwithstanding [the provisions 
of Section 303(u)(1)], apparatus described [in Section 303(u)(1)] that 
use a picture screen that is less than 13 inches in size [must] meet 
the requirements of [these regulations] only if the requirements of 
such subparagraphs are achievable (as defined in section 716).'' 
Section 716 of the CVAA defines achievability as, ``with reasonable 
effort or expense, as determined by the Commission'' based on four 
factors: (1) The nature and cost of the steps needed to meet the 
requirements of this section with respect to the specific equipment or 
service in question; (2) the technical and economic impact on the 
operation of the manufacturer or provider and on the operation of the 
specific equipment or service in question, including on the development 
and deployment of new communications technologies; (3) the type of 
operations of the manufacturer or provider; and (4) the extent to which 
the service provider or manufacturer in question offers accessible 
services or equipment containing varying degrees of functionality and 
features, and [those services or equipment are] offered at differing 
price points.
    105. In the ACS Order, the Commission applied the Section 716 
achievability standard to advanced communications services and 
equipment and discussed each of the four factors. There, the Commission 
concluded that it is appropriate to weigh each of the four factors 
equally, and that achievability should be evaluated on a case-by-case 
basis. We agree with CEA that we should adopt the same approach for 
closed captioning as it will provide the greatest possible flexibility 
for manufacturers. When faced with a complaint for violation of our 
rules under Section 203, a manufacturer may raise as a defense that a 
particular apparatus does not comply with the rules because compliance 
was

[[Page 19504]]

not achievable under the statutory factors. Alternatively, a 
manufacturer may seek a determination from the Commission before 
manufacturing or importing the apparatus as to its claims that 
compliance with all of our rules is not achievable.\90\ In evaluating 
evidence offered to prove that compliance was not achievable, the 
Commission will be informed by the analysis in the ACS Order. To the 
extent that implementation of particular aspects of closed captioning 
functionality is not achievable on a particular apparatus for a 
particular manufacturer, it does not necessarily follow that no part of 
our closed captioning rules is achievable for that manufacturer on that 
apparatus. Rather, seeking to bring as much of the captioning 
experience to the greatest number of consumers possible, we will treat 
the functional captioning requirements we discuss below as severable, 
and require manufacturers to seek exemptions based on the achievability 
of individual features.\91\ We remind parties that the achievability 
limitation is applicable only with regard to apparatus using screens 
less than 13 inches in size. For apparatus that use a screen size that 
is 13 inches or larger, a manufacturer may seek relief from the 
Commission based on a showing of technical infeasibility, which applies 
to apparatus of any size.\92\
---------------------------------------------------------------------------

    \90\ Any such requests should follow the procedures for an 
informal request for Commission action pursuant to Sec.  1.41 of our 
rules and the requirements of Sec.  79.103(b)(3). 47 CFR 1.41, Final 
Rules Sec.  79.103(b)(3).
    \91\ For example, we can envision that in certain circumstances 
it may not be achievable to implement variable opacity for captions 
or the caption background on specific devices, but it would 
nevertheless be achievable to implement the ability to change the 
caption color and the font size over an opaque or transparent 
background, depending on the specific capabilities and 
characteristics of a device's screen and processing power.
    \92\ See 47 CFR 1.41 (Informal requests for Commission action).
---------------------------------------------------------------------------

    106. Purpose-Based Waivers. Section 203 grants the Commission the 
discretion to waive the requirements of Section 203 for any apparatus 
or class of apparatus that are ``primarily designed for activities 
other than receiving or playing back video programming transmitted 
simultaneously with sound'' or ``for equipment designed for multiple 
purposes, capable of receiving or playing video programming transmitted 
simultaneously with sound but whose essential utility is derived from 
other purposes.'' The statute does not define ``primarily designed,'' 
nor does it define ``essential utility'' except to state that it may be 
derived from more than one purpose. Both the House and Senate Committee 
Reports state that waiver under these provisions is available ``where, 
for instance, a consumer typically purchases a product for a primary 
purpose other than viewing video programming, and access to such 
programming is provided on an incidental basis.'' We expect that such 
waiver requests will be highly fact specific and unique to each device 
presented. Accordingly, we will address any waivers under these 
sections on a case-by-case basis. We expect that, over time, the 
Commission will develop a body of precedent that will prove instructive 
to manufacturers and consumers alike.
    107. Based on our analysis above, we reject the broad, unspecific 
requests made by several commenters. CTIA, for example, requests that 
all mobile devices be exempted from these regulations until such time 
as the market for video to mobile devices ``becomes stable,'' and in 
order to promote the growth of the mobile video market. We decline to 
do so here, as the mobile marketplace is incredibly diverse, and while 
the above assertion may be true for a particular device, it is 
unsupported with regard to the entire mobile industry. TechAmerica 
requests that the Commission ``exercise its waiver authority freely,'' 
and grant blanket waivers to smartphones ``as their essential utility 
is to function as a communications device,'' and to consider similar 
treatment for tablets. We disagree, as TechAmerica's request conflates 
the primary purpose waiver standard for single-purpose devices with 
incidental video capability and the essential utility standard, under 
which both communications and viewing video programming may be purposes 
which comprise a device's essential utility. Further, TechAmerica makes 
a sweeping request, asking the Commission to view all smartphones 
equivalently, which as we discuss above, does not comport with the 
fact-based, case-by-case approach we adopt. In addition, TechAmerica's 
request is in opposition to notable marketplace evidence that many 
mobile devices already support captioning. TIA comments that the 
Commission should grant broad, categorical waivers, in an effort to 
give manufacturers certainty, to ``gaming consoles, cellular 
telephones, and tablets.'' Based on our reasoning above, we find that 
this request too is overbroad and lacks the facts and circumstances 
necessary to grant a waiver. Nevertheless, we reiterate that these 
waivers are available prospectively, for manufacturers seeking 
certainty prior to the sale of a device.\93\
---------------------------------------------------------------------------

    \93\ See 47 CFR 1.41 (Informal requests for Commission action).
---------------------------------------------------------------------------

    108. Display-Only Monitor Exemption. Section 203(a)(2)(B) states 
that ``any apparatus or class of apparatus that are display-only video 
monitors with no playback capability are exempt from the requirements'' 
to implement closed captioning. We conclude this requirement is self-
explanatory and that in most instances the operation of this provision 
will be clear. Accordingly, we incorporate the language of the 
statutory provision directly into our rules. Consumer Groups proposed 
that we define display-only monitors as monitors that are dependent on 
another device subject to our closed captioning rules. This proposed 
definition is too narrow, however, because it fails to account for 
display-only monitors that work in conjunction with devices not subject 
to our closed captioning rules, such as commercial video equipment. CEA 
suggested that devices that can accept ``only a baseband or 
uncompressed video stream,'' \94\ such as many computer monitors, are 
appropriately classified as display-only monitors. This definition is 
also too narrow, because a monitor could conceivably accept a 
compressed video stream and still be considered a display-only monitor. 
We therefore decline to adopt these qualifications. To the extent a 
manufacturer would like a Commission determination as to whether its 
device qualifies for this exemption it may make such a request.\95\
---------------------------------------------------------------------------

    \94\ A ``baseband signal'' is defined as ``transmission of a 
digital or analog signal at its original frequencies, i.e., a signal 
in its original form, not changed by modulation.'' See H. Newton, 
Newton's Telecom Dictionary 101 (20th ed. 2004). An ``uncompressed 
signal'' is a signal that has not been compressed. ``Compression'' 
is defined as ``the art and science of squeezing out unneeded 
information in a picture, or a stream of pictures (a movie) or sound 
before sending or storing it.'' See H. Newton, Newton's Telecom 
Dictionary 199 (20th ed. 2004).
    \95\ A manufacturer may seek a Commission declaration that a 
monitor is exempt under this provision pursuant to Sec.  1.41 of the 
Commission's rules. See 47 CFR 1.41.
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C. Display of Captions

    109. Section 203 of the CVAA requires that the Commission's rules 
``provide performance and display standards for such built-in decoder 
circuitry or capability designed to display closed captioned video 
programming * * *.'' We adopt functional requirements that will ensure 
that consumers' online captioning experience is equivalent to their 
television captioning experience. When

[[Page 19505]]

the Commission adopted the digital closed captioning standards, it 
noted the ``substantial benefits for consumers'' that are provided when 
video programming apparatus support user options that enable closed 
caption displays to be customized to suit the needs of individual 
viewers. For example, the Commission explained that ``the ability to 
alter colors, fonts, and sizes * * * can benefit a person with both a 
hearing disability and a visual disability in a way not possible with 
the current analog captions.'' After also noting the benefits that 
adjustable caption sizes can afford younger children learning how to 
read, the Commission concluded that ``[o]nly by requiring decoders to 
respond to these various features can we ensure that closed captioning 
will be accessible for the greatest number of persons who are deaf and 
hard of hearing, and thereby achieve Congress's vision that to the 
fullest extent made possible by technology, people who are deaf and 
hard of hearing have equal access to the television medium.'' More than 
a decade ago, consumers urged the Commission to ``ensure that the 
promised benefits of [DTV] actually accrue to persons who are deaf, 
late deafened, hard of hearing or deaf-blind'' and to create a ``level 
viewing field'' through the adoption of the EIA-708 captioning 
standard.\96\ Most recently, the Consumer Groups reiterated that the 
Commission should consider ways to ensure that caption users are able 
to benefit from advanced technologies in designing our rules for 
apparatus to have captioning capability under Section 203.
---------------------------------------------------------------------------

    \96\ Reply Comments of Telecommunications for the Deaf, Inc., 
Closed Captioning Requirements for Digital Television Receivers, ET 
Docket No. 99-254 at 2-3 (filed Nov. 15, 1999).
---------------------------------------------------------------------------

    110. To assist the Commission in interpreting this provision, 
Congress directed the VPAAC to identify ``performance requirement[s] 
for protocols, technical capabilities, and technical procedures needed 
to permit content providers, content distributors, Internet service 
providers, software developers, and device manufacturers to reliably 
encode, transport, receive, and render closed captions of video 
programming * * * delivered using Internet protocol.'' The VPAAC Report 
identifies the rules, technologies, and procedures necessary to provide 
consumers with a captioning experience equivalent to the experience 
provided when the content was aired on television using the CEA-608/708 
standard.\97\ Specifically, the VPAAC identified four components that 
make up the television ``caption experience,'' seven technical 
requirements necessary to implement that experience, and a list of 
optional best practices that may be implemented to deliver the highest 
possible captioning experience.
---------------------------------------------------------------------------

    \97\ See VPAAC Report at 13. CEA-608 is the technical standard 
used for analog closed captioning, and CEA-708 is technical standard 
for digital closed captioning. See Final Rules 47 CFR 79.101 
(previously 47 CFR 15.119, CEA-608), 79.102 (previously Sec.  
15.122, CEA-708) for the current captioning requirements, 
respectively.
---------------------------------------------------------------------------

    111. The VPAAC identified the four components of the captioning 
``experience'' as:
    <bullet> The presentation format of the captioning; e.g., within or 
on separate caption ``windows,'' text that appears all at once (pop-
on), text that scrolls up as new text appears (roll-up), or the display 
of each new letter or word as it arrives (paint-on);
    <bullet> Semantically significant formatting, such as italics, 
colors, and underlining;
    <bullet> The timing of the presentation of caption text with 
respect to the video; and
    <bullet> The consumer's ability to control the caption display, 
including the ability to turn it on and off, and to select font sizes, 
styles, and colors, and background color and opacity.
    The VPAAC further identified specific technical requirements as 
necessary to implement the captioning experience detailed in the VPAAC 
Report:
    <bullet> Support for displaying fonts in the full CEA-708 64-color 
palette and allowing users to override the default font color with one 
of the eight standard caption colors.
    <bullet> Support for users to vary character opacity between at 
least three settings, including opaque (100% opacity) and semi-
transparent (at 75% or 25% opacity);
    <bullet> Support for the various font types contained in CEA-708 as 
well as the ability for users to assign fonts from the selection 
included with their device to each of these default fonts;
    <bullet> Support for displaying the caption background in the full 
CEA-708 64-color palette and allowing users to override the default 
caption background color with one of the eight standard colors, and 
support for users to vary the caption background opacity between at 
least four settings, opaque (100% opacity), semi-transparent (at 75% or 
25% opacity), and transparent (0% opacity);
    <bullet> Support for character edge attributes including: none, 
raised, depressed, uniform, or drop shadowed;
    <bullet> Support for displaying the caption window in the full CEA-
708 64-color palette and allowing users to override the default caption 
background window with one of the eight standard colors, and support 
for users to vary the caption window opacity between at least four 
settings, opaque (100% opacity), semi-transparent (at 75% or 25% 
opacity), and transparent (0% opacity);
    <bullet> Support for selecting among multiple language tracks, 
where available, and a requirement that simplified or reduced caption 
text be identified as such or as ``easy reader'' captions.

Additionally, the VPAAC Report states that video player tools must 
permit the user to preview setting changes, remember settings between 
viewing sessions, and provide the ability to turn captions on and off 
as easily as muting the audio or adjusting the volume.
    112. The VPAAC Report represents the consensus view of a wide, 
diverse cross-section of the industry and consumer interests. 
Therefore, their consensus approach to these issues provides a 
compelling guide for our actions here. Specifically, based on the 
consensus view that online captioning must, at minimum, replicate the 
television experience, and absent any guidance in the statute or 
legislative history, and absent any comment on the record indicating 
that some other goal should be used, we adopt that goal as the 
Commission's goal here. However, we find that we need not specifically 
incorporate into our rules all four components of the captioning 
experience detailed in the VPAAC Report. Instead, we find that all but 
one of the components is subsumed in the specific technical 
requirements also set forth in the VPAAC Report. First, we find that 
the second and fourth components, support for semantically significant 
formatting and control of caption appearance, are encompassed by and 
expanded on by the seven technical requirements. Therefore, to avoid 
redundancy, we do not include them in our rules. We find that it is 
inappropriate to include the third component of the experience, 
addressing the timing of captions with video, here. We conclude that 
ensuring that timing data is properly encoded and maintained through 
the captioning interchange and delivery system is an obligation of 
Section 202 VPDs, and not of device manufacturers.\98\ Therefore,

[[Page 19506]]

we incorporate into our rules the first component of the caption 
experience, the presentation of captions on the screen, as a discrete 
rule in addition to the seven technical requirements.\99\
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    \98\ The VPAAC Report expands on the timing requirements, 
explaining, ``all processing through the distribution chain, 
including transcoding, must provide a timing experience that is 
equal to or an improvement to the timing of captions provided in the 
captioning shown on television.'' VPAAC Report at 14. We find that 
this direction from the VPAAC Report places no responsibility on 
device manufacturers, and so we do not include any such requirement 
in our rules for devices.
    \99\ We find it necessary to make a small change to the text 
regarding presentation of captions. As the VPAAC Report describes 
the experience as requiring the use of one of the presentation 
styles, where no more than one style is in use at a time, it 
delimits the list with an ``or.'' VPAAC Report at 13. However, 
manufacturers must support all three styles in order to enable such 
choice, and therefore our rule delimits the list with an ``and.'' 
Final Rules 47 CFR 79.103(c)(1).
---------------------------------------------------------------------------

    113. We believe that by incorporating the precise language of the 
VPAAC Report, we will ensure that manufacturers will clearly understand 
their obligations regarding the features they are required to implement 
and support. The NPRM proposed to incorporate into our rules these 
functionality requirements in a slightly simplified form and without 
specifying the exact nature of the support for each requirement. Some 
commenters advocate that we adopt rules that merely state that 
captioning should be ``functionally equivalent'' to that on television. 
AT&T contends that the NPRM's proposed rules were too specific and 
should be more flexible. CEA, however, argues that a mandate of ``at 
least the same quality'' as television would be ambiguous, preferring 
instead that the Commission adopt minimum technical requirements that 
will help ensure functional equivalency, preserve flexibility, and 
provide certainty to manufacturers. In the context of Section 203 of 
the CVAA, we are persuaded by CEA's argument and find that it is 
necessary to adopt a set of specific minimum functional requirements 
rather than the simplified language of the NPRM. By doing so, we 
believe that we will make it easier for manufacturers to determine how 
to comply with our rules as well as facilitate the ability of the 
Commission to evaluate compliance in the event of a complaint. We agree 
with Consumer Groups that the record contains no evidence that 
specifying what functions devices must implement will negatively impact 
the ability of captions to be delivered to those devices. CTIA 
expresses concern that some features will not be supportable on devices 
with limited screen sizes, low resolutions, or limited processing. 
However, as discussed above, parties can seek relief for any features 
that they believe can not be implemented.\100\
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    \100\ Section 203 requires manufacturers only to implement 
captioning to the extent that it is technically feasible. Moreover, 
for small-screen devices, manufacturers need only include those 
features that are achievable. Finally, pursuant to Section 202, VPDs 
may seek exemptions if complying with any of these requirements 
would be economically burdensome.
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D. Recording Devices

    114. In addition to devices that consumers use to directly view 
video programming, those that record video programming must also have 
closed-captioning capability. Specifically, Section 203(b) of the CVAA 
directs the Commission to ``require that, if achievable * * *, 
apparatus designed to record video programming transmitted 
simultaneously with sound, * * * [must] enable the rendering or the 
pass through of closed captions * * * .'' Commenters largely did not 
address recording devices, except to caution the Commission against 
regulating the subcomponents of recording devices, rather than the 
devices themselves. Therefore, we adopt the proposal in the NPRM to 
incorporate the statutory language of Section 203(b) directly into our 
rules. Consistent with our discussion above, we expect identifying 
apparatus designed to record to be straightforward. We note that when 
devices such as DVD, Blu-ray, and other removable media recording 
devices are capable of recording video programming, they also qualify 
as recording devices under Section 203(b) and therefore must enable 
viewers to activate and de-activate the closed captions as video 
programming is played back.

E. Interconnection Mechanisms

    115. Section 203(b) of the CVAA directs the Commission to require 
that ``interconnection mechanisms and standards for digital video 
source devices are available to carry from the source device to the 
consumer equipment the information necessary to permit or render the 
display of closed captions and to make encoded video description and 
emergency information audible.'' \101\ The NPRM sought comment on how 
to implement this provision. Based on the record at this time, we 
conclude that current interconnection mechanisms satisfy the 
requirements of the CVAA, and clarify that the statute requires 
manufacturers to implement closed captioning on every video output of a 
covered device. Thus, we adopt a rule requiring that all video outputs 
of covered apparatus shall be capable of conveying from the source 
device to the consumer equipment the information necessary to permit or 
render the display of closed captions. As discussed below, we find that 
it is sufficient, for purposes of this provision, if the video output 
of a digital source device renders the closed captioning in the source 
device. Accordingly, we find that the manner in which the HDMI 
connection carries captions satisfies the statutory requirement for 
interconnection mechanisms. At the same time, however, we note that 
other interconnection mechanisms, such as MoCA and DLNA, currently 
support the pass-through of closed captions to consumer display devices 
and we encourage this practice. Although we do not impose any 
additional regulations on interconnection mechanisms at this time, we 
note that we are interpreting an ambiguous statutory provision and, 
although we believe our interpretation is reasonable based on the 
record before us, we may revisit the issue if we find that our 
decision, in practice, does not provide the benefits to consumers that 
were intended by Congress.
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    \101\ The portions of 303(z)(2) which deal with video 
description and emergency information will be implemented separately 
by the Commission, 18 months after the submission of a separate 
VPAAC Report. See Public Law 111-260, sec. 203(d)(2).
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    116. As the statute states, ``interconnection mechanisms'' carry 
information from source devices to consumer equipment. Interconnection 
mechanisms consist of an output, a transmission path, and an input. We 
generally refer to these mechanisms by their output standard or the 
cable or cord they utilize, such as ``coaxial cable,'' ``Ethernet,'' or 
``HDMI.'' In discussing how to implement this statutory mandate, 
commenters predominantly focus on one particular digital output, the 
HDMI connector. HDMI is the preeminent audio-video interconnection 
standard used by manufacturers to enable uncompressed video signals to 
be carried from a source device (such as an MVPD set-top box) to 
consumer equipment (such as a television).\102\ Industry commenters 
explain that with respect to the HDMI connector, ``the captions and 
video are decoded in the source device and carried as opened captions 
to the display, which acts only as a monitor.'' When captions are 
transmitted in an ``open'' manner, such as is the case with HDMI, they 
are ``rendered'' by the source device, embedded (decoded and mixed) 
into the video stream, then carried by the HDMI connector to the 
receiving device in a manner that does not allow the consumer to access 
or utilize the captioning decoding and rendering functionality of the 
receiving device. When captions are ``closed,'' they are transmitted as 
data alongside the video stream, and permit consumers to access and 
utilize the captioning

[[Page 19507]]

functionality of the receiving device. Set-top boxes with standard 
definition analog outputs are generally capable of passing closed 
captions to consumer equipment for decoding and display by that device. 
However, high-definition analog outputs and HDMI were not developed 
with this capability, and as consumers increasingly transition to high-
definition video sources and digital interconnection, standard 
definition analog outputs are declining in use. As a result, if an HDMI 
or high definition analog connection is being used, consumers must use 
their set-top box's closed captioning functionality rather than the 
functionality contained in their television or continue to watch video 
programming in standard definition.
---------------------------------------------------------------------------

    \102\ HDMI stands for ``High Definition Multimedia Interface.'' 
Over 2 billion HDMI equipped devices have been deployed worldwide.
---------------------------------------------------------------------------

    117. The question is thus whether the manner in which the HDMI 
connector carries captions satisfies the statutory requirement. For the 
reasons stated below, we conclude that it does. We find the CVAA's 
requirement that interconnection mechanisms be ``available to carry 
from the source device to the consumer equipment the information 
necessary to permit or render the display of closed captions'' to be 
ambiguous. The statute does not expressly address what is meant by 
information necessary to ``permit'' the display of closed captions or 
information necessary to ``render'' the display of closed captions.'' 
In context, we interpret the language requiring carriage of information 
to ``render'' the display of closed captions to require that the 
interconnection mechanism carry the requisite data to allow caption 
functionality in the receiving device. In other words, the source 
device transmits captions in a closed manner to the receiving equipment 
(e.g., a television set), which is capable of performing the rendering 
of the captions for display. The use of the phrase ``or permit'' 
indicates an alternative means by which an interconnection device may 
satisfy the statute. Read in context, we believe Congress intended to 
give the term ``permit'' a different meaning than the term ``render.'' 
We thus interpret the alternative requirement to ``permit'' the display 
of closed captions to mean that the interconnection mechanism may carry 
the information necessary for the rendered captions to be displayed on 
the receiving device, without regard to the receiving device's caption 
functionality. We believe that our interpretation is reasonable because 
we give effect to Congress's use of the disjunctive ``or,'' and because 
our interpretation achieves the statutory purpose of ensuring consumer 
access to closed captions. Based on this interpretation, we find that 
rendering captions in the source device, then transmitting the captions 
in an open manner to the receiving device, such as in the case of HDMI, 
satisfies the statute because caption text is viewable on the video 
programming. Further, we conclude that the availability of closed 
captioning should not be limited to particular outputs, as consumers 
should not be limited in their viewing of content due to the lack of 
closed captioning support on a particular output.
    118. Although many consumers may prefer to use the closed 
captioning features of their display devices, we believe there are 
other considerations, raised in the record, that support our reading of 
the statute. The record shows that it may be impractical to require all 
interconnection mechanisms, including HDMI, to pass-through the closed 
captions to receiving equipment given commenters' concerns about the 
time and expense associated with such a requirement. Our interpretation 
provides flexibility for manufacturers and avoids unnecessary burdens, 
while at the same time we believe it fulfills the statutory purpose of 
ensuring access to closed captions. Moreover, although we recognize 
that some consumers have had frustrations with using the caption 
functionality in the source device, as HDMI Licensing notes, this is 
not an issue related to the HDMI interface, but rather caused by poor 
implementation in some set-top boxes. In this regard, we note that all 
apparatus, including set-top boxes, are subject to the performance 
rules we adopt today. We also note that the CVAA contains provisions to 
address the difficulty consumers face in enabling closed captioning on 
source devices.\103\ Together, technologies like HDMI Consumer 
Electronics Control (or CEC) and Commission implementation of the 
statutory provision requiring that ``built in access to * * * closed 
captioning [be available through] a mechanism that is reasonably 
comparable to a button, key, or icon'' may result in the resolution of 
at least one source of consumer complaints. The record also shows that 
there are at least two interconnection mechanisms currently available 
in the market that already support caption functionality in receiving 
devices.
---------------------------------------------------------------------------

    \103\ See Public Law 111-260, secs. 204 (User interfaces on 
digital apparatus), 205 (Access to video programming guides and 
menus provided on navigation devices).
---------------------------------------------------------------------------

    119. In reaching our conclusion, we also note that the problems 
some consumers discussed in the record relating to HDMI may be 
ameliorated by the fact that all cable operator-provisioned HD set-top 
boxes are currently required to include a connection capable of 
delivering recordable HD video and closed captioning data in a closed 
manner. In addition, although we refrain from requiring pass-through of 
closed captioning on HDMI, we recognize the widespread consumer 
reliance on HDMI and therefore we encourage HDMI Licensing, the HDMI 
specification licensing agent, to include closed captioning provisions 
in future versions.\104\
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    \104\ We recognize that HDMI was designed for a purpose other 
than carrying encoded information. We also note, however, that HDMI 
has already been modified to provide a data connection capable of 
transmitting encoded data between devices. See Frequently Asked 
Questions for HDMI 1.4, http://www.hdmi.org/manufacturer/hdmi_1_4/hdmi_1_4_faq.aspx. In addition, HDMI Licensing acknowledges that 
the HDMI standard could be updated to include this functionality 
within about three years.
---------------------------------------------------------------------------

F. Changes to Television Rules and Movement of Device Rules to Part 79

    120. Section 203 of the CVAA replaces Section 303(u) of the 
Act,\105\ which originally gave the Commission authority to require 
closed captioning on television receivers with a screen size 13 inches 
or greater. Under the revised provision, our television closed 
captioning rules are no longer limited to apparatus with screen sizes 
13 inches or greater, though those with smaller screen sizes are 
required to comply only if compliance is achievable. As proposed in the 
NPRM, we will revise our television captioning rules accordingly. 
Additionally, as proposed in the NPRM, we will relocate the closed 
captioning device rules, Sec. Sec.  15.119 and 15.122, and their 
associated incorporations by reference, into Part 79 of the 
Commission's rules, which will also list the obligations of owners, 
providers, and distributors of video programming adopted pursuant to 
Section 202 of the CVAA.\106\
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    \105\ 47 U.S.C. 303(u). Section 203(b) of the CVAA also adds a 
new Section 303(z) to address recording devices and interconnection 
mechanisms. 47 U.S.C. 303(z). Further, Section 203(c) of the CVAA 
revises Section 330(b) to address Sections 303(u) and (z), to 
provide authority for performance and display standards, and to 
address video description. 47 U.S.C. 330(b).
    \106\ Part 15 of the Commission's rules requires devices to be 
authorized prior to the initiation of marketing, either through the 
Verification process or through a Declaration of Conformity or 
Certification. See 47 CFR 15.101, et seq. However, those rules are 
concerned only with the device's performance as an unintentional 
radiator into the radio-frequency spectrum. Since closed-captioning 
functionality exists separately from the RF receiving and tuning 
functionality of a device, and new IP-based devices may not include 
receivers of the type Part 15 regulates, we find it unnecessary to 
require a Declaration of Conformity or Certification regarding the 
closed-captioning functionality of the devices we cover here, or to 
trigger certification or verification for a device solely because it 
includes closed-captioning functionality. We therefore find it 
inappropriate to continue to house these rules in Part 15. Of 
course, to the extent that a Section 203 device is otherwise covered 
by Part 15, that device must continue to comply with the 
Commission's rules in Part 15.

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[[Page 19508]]

G. Alternate Means of Compliance

    121. Section 203(e) of the CVAA provides that ``an entity may meet 
the requirements of Sections 303(u), 303(z), and 330(b) of the [Act] 
through alternate means than those prescribed by regulations * * * if 
the requirements of those sections are met, as determined by the 
Commission.'' Therefore, parties may meet all of the requirements we 
discuss in sections IV and V of this Report and Order, as well as our 
existing rules regarding television receivers and converter boxes, via 
alternate means. Should an entity seek to use an ``alternate means'' to 
comply with the applicable requirements, that entity may either (i) 
request a Commission determination that the proposed alternate means 
satisfies the statutory requirements through a request pursuant to 
Sec.  1.41 of our rules; or (ii) claim in defense to a complaint or 
enforcement action that the Commission should determine that the 
party's actions were permissible alternate means of compliance. Rather 
than specify what may constitute a permissible ``alternate means,'' we 
conclude that the best means of implementing this provision is to 
address any specific requests from parties when they are presented to 
us.

H. Deadlines for Compliance

    122. We conclude that two years is the appropriate amount of time 
to design and implement the functionality required by Section 203 of 
the CVAA, as discussed in Section IV of this Report and Order, and to 
bring that functionality to market. The CVAA does not specify the time 
frame by which the Section 203 requirements must become effective, but 
nearly all commenters who addressed the issue support a two-year 
implementation period. As the Commission has repeatedly determined, 
manufacturers generally require approximately two years to design, 
develop, test, manufacture, and make available for sale new products. 
Accordingly, we establish a compliance date for covered devices of 
January 1, 2014. We agree with Consumer Groups that incorporating 
captioning functionality later in the design cycle of a feature-rich 
device may prove more difficult than implementing such functionality at 
the commencement of design. Although the compliance deadline is two 
years away, consistent with the ACS Order, beginning on the effective 
date of these regulations, i.e., 30 days after the date this Report and 
Order and rules are published in the Federal Register, we expect 
manufacturers to take accessibility into consideration as early as 
possible during the design process for new and existing equipment and 
to begin taking steps to bring closed captioning to consumers as 
required by our rules.

I. Complaints

    123. Consistent with prior Commission practice and the Commission's 
television and IP closed captioning complaint rules, we adopt the 
following procedures for the filing of written complaints alleging 
violations of the Commission's rules requiring apparatus designed to 
receive, play back, or record video programming to be equipped with 
built-in closed caption decoder circuitry or capability designed to 
display closed-captions. Such complaints should include the following 
information: \107\ (a) The name, postal address, and other contact 
information of the complainant, such as telephone number or email 
address; (b) the name and contact information, such as postal address, 
of the apparatus manufacturer or provider; (c) information sufficient 
to identify the software or device used to view or to attempt to view 
video programming with closed captions; (d) the date or dates on which 
the complainant purchased, acquired, or used, or tried to purchase, 
acquire, or use the apparatus to view closed captioned video 
programming; (e) a statement of facts sufficient to show that the 
manufacturer or provider has violated or is violating the Commission's 
rules; (f) the specific relief or satisfaction sought by the 
complainant; and (g) the complainant's preferred format or method of 
response to the complaint.\108\ A written complaint filed with the 
Commission must be transmitted to the Consumer and Governmental Affairs 
Bureau through the Commission's online informal complaint filing 
system, U.S. Mail, overnight delivery, or facsimile.\109\ The 
Commission may forward such complaints to the named manufacturer or 
provider, as well as to any other entity that Commission staff 
determines may be involved, and may request additional information from 
any relevant parties when, in the estimation of Commission staff, such 
information is needed to investigate the complaint or adjudicate 
potential violations of Commission rules. After the closed caption 
decoder rules adopted in this Report and Order become effective, the 
Consumer and Governmental Affairs Bureau will release a consumer 
advisory with instructions on how to file complaints in various 
formats, including via the Commission's Web site.\110\
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    \107\ We recognize that some of the requested information may 
not be readily ascertained by consumers, such as the contact 
information of the apparatus manufacturer. Accordingly, we provide 
that complaints should (but are not required to) include the 
specified information. The Commission will best be in a position to 
investigate complaints that include the maximum information 
requested.
    \108\ The complainant's preferred format or method of response 
may be by letter, facsimile transmission, telephone (voice/TRS/TTY), 
email, or some other method that would best accommodate the 
complainant.
    \109\ We clarify that, if a complainant calls the Commission for 
assistance in preparing a complaint (by calling either 1-888-CALL-
FCC or 1-888-TELL-FCC (TTY)), and Commission staff documents the 
complaint in writing for the consumer, that constitutes a written 
complaint.
    \110\ The Commission further directs the Consumer and 
Governmental Affairs Bureau to revise the existing complaint form 
for disability access complaints (Form 2000C) in accordance with 
this Report and Order, to facilitate the filing of closed caption 
decoder complaints. Should the closed caption decoder rules adopted 
in this Report and Order become effective before the revised Form 
2000C is available to consumers, closed caption decoder complaints 
may be filed in the interim by fax, mail, or email.
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V. Technical Standards for IP-Delivered Video Programming

    124. For the reasons set forth below, we adopt the Society of 
Motion Picture and Television Engineers (``SMPTE'') Timed Text format 
(SMPTE ST 2052-1:2010: ``Timed Text Format (SMPTE-TT)'' 2010) (``SMPTE-
TT'') as a safe harbor interchange and delivery format. Section 202 of 
the CVAA requires that the Commission describe the responsibilities of 
video programming providers or distributors and video programming 
owners. Section 203 of the CVAA requires that the Commission's rules 
``provide performance and display standards for such built-in decoder 
circuitry or capability designed to display closed captioned video 
programming * * *.'' We believe to best implement these statutory 
provisions, it is necessary to establish a safe harbor standard. IP-
delivered video programming currently uses multiple closed captioning 
formats. In contrast, the Commission requires CEA-608 as the technical 
standard for analog television closed captioning, and CEA-708 as the 
technical standard for digital television closed captioning. As no such 
Commission requirement exists for IP closed captioning, parties must 
agree on

[[Page 19509]]

both an interchange format, in which the VPO sends a caption file to 
the VPD, and a delivery format, in which the VPD sends captions to an 
apparatus on which the end user views video programming if captions are 
to be usable by the receiving party.
    125. The VPAAC proposed that the Commission require a single 
standard interchange format so that video programming does not need to 
be re-captioned to comply with different standards. The VPAAC proposed 
SMPTE-TT as the standard interchange format. For the delivery format, 
if a VPD is not affiliated with the manufacturer of the device on which 
the consumer views video programming, the VPAAC also recommended the 
use of SMPTE-TT.\111\ The VPAAC recommended using the SMPTE-TT standard 
in each case because it ``best meets all the requirements'' established 
by the participants on the VPAAC and because it ``is already being 
employed in production environments to repurpose television content for 
Internet use.'' In the NPRM, contrary to the VPAAC's proposal, the 
Commission proposed not to adopt a specific interchange format, in an 
effort to foster technological innovation. The NPRM additionally sought 
comment on whether the Commission should require a particular delivery 
format. In response, a number of commenters argue that the Commission 
should specify SMPTE-TT as the mandatory interchange format. For both 
the interchange and delivery format, several commenters propose various 
safe harbor approaches, under which use of SMPTE-TT as the interchange 
and/or delivery format would be deemed compliant. Among the asserted 
benefits of adopting SMPTE-TT as a safe harbor interchange format is 
that it would minimize the need for VPOs to author multiple standards 
and potentially re-caption programming. Similarly, CEA argues that 
``where IP-delivered video content is rendered by a consumer device 
using a standardized video player * * * a single minimum delivery 
format ensures that a manufacturer of such apparatus can readily 
support and render IP captions.'' Further, unlike adopting SMPTE-TT as 
the mandatory interchange or delivery format, commenters explain that a 
safe harbor approach would balance goals of efficiency, certainty, and 
consumer access with needed flexibility to continue to innovate.\112\
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    \111\ The VPAAC Report separates delivery of content where 
parties are affiliated and unaffiliated. Where parties are 
affiliated by contract or ownership, the VPAAC report determined 
that no standard-setting by the Commission was advisable. Where 
delivery is between unaffiliated parties, creation of a relationship 
may be more burdensome than adopting the recommendations of the 
Commission for exchanging captioning data.
    \112\ We note that some commenters propose a variation on the 
safe harbor approach, under which the Commission would deem 
compliant the use of a standard adopted in an open process by a 
recognized industry standard-setting organization, without 
specifying the format. TWC proposes another alternate approach to 
the interchange format, by which the Commission would specify 
functions that captions must support rather than specifying 
standards. At this time, we decline to adopt any of the proposed 
alternative approaches, as we find that the adoption of SMPTE-TT as 
a safe harbor interchange and delivery format best provides the 
industry with both clarity and flexibility.
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    126. Although some commenters advocate that we not specify an 
interchange or delivery format, a large number of commenters from all 
segments of the industry argue that the complete absence of a standard 
would hinder the deployment of IP closed captioning because parties 
would lack certainty as to what is expected. In addition to the VPAAC's 
endorsement of the SMPTE-TT standard, many commenters confirm the 
benefits of SMPTE-TT, and the industry does not seem to have coalesced 
around any other standard in such a manner. We find that the safe 
harbor approach for use of SMPTE-TT as the interchange and delivery 
standard, as numerous commenters propose, would provide certainty while 
enabling the industry to continue to innovate and permitting parties to 
agree to use an alternative standard. To use a different standard, 
parties would not need to first request Commission approval. We note, 
however, where use of an alternate standard results in noncompliant 
captions, both parties may be held responsible for violation of our 
rules. The flexibility in such a safe harbor approach will address many 
of the concerns expressed by parties against the adoption of a 
particular standard, because the parties will retain the option of 
using an alternative standard if that standard better meets their needs 
and achieves the required result. For all of the above reasons, we 
adopt SMPTE-TT as a safe harbor interchange and delivery format. Thus, 
we will provide in our rules that if a VPO provides captions to a VPD 
using the SMPTE-TT format, then the VPO has fulfilled its obligation to 
deliver captions to the VPD in an acceptable format. We will also 
provide in our rules that devices that implement SMPTE-TT will be 
deemed in compliance with our rules, while simultaneously allowing 
devices to achieve the same functionality without implementing that 
standard.\113\ We intend to monitor the marketplace and, to the extent 
that additional open standards from recognized industry standard-
setting organizations appear appropriate, we will consider 
incorporating those standards into our rules as additional safe 
harbors.
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    \113\ When implementing SMPTE-TT as a means of being deemed in 
compliance with the requirements for captioning functionality, we 
expect manufacturers will look to the practices of the industry, 
especially when standardized or adopted by an industry body, such as 
the recommended practice for conversion of CEA-608 data to SMPTE-TT 
to determine the reasonable extent to which features must be 
supported. See Society of Motion Picture Television Engineers 
recommended practice ``Conversion from CEA-608 Data to SMPTE-TT,'' 
RP 2052-10-2010 (2010). We expect a similar recommended practice 
regarding the conversion of CEA-708 data to SMPTE-TT to be 
developed.
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VI. Procedural Matters

A. Final Regulatory Flexibility Analysis

    127. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''), the Commission has prepared the following Final 
Regulatory Flexibility Analysis (``FRFA'') relating to this Report and 
Order in MB Docket No. 11-154. An Initial Regulatory Flexibility 
Analysis (``IRFA'') was incorporated in the NPRM in this proceeding. 
The Federal Communications Commission (``Commission'') sought written 
public comment on the proposals in the NPRM, including comment on the 
IRFA. The Commission received no comments on the IRFA, although some 
commenters discussed the effect of the proposals on smaller entities, 
as discussed below. This present Final Regulatory Flexibility Analysis 
(``FRFA'') conforms to the RFA.
Need for, and Objectives of, the Report and Order
    128. Pursuant to our responsibilities under the Twenty-First 
Century Communications and Video Accessibility Act of 2010 (``CVAA''), 
this Report and Order adopts rules governing the closed captioning 
requirements for the owners, providers, and distributors of video 
programming delivered using Internet protocol (``IP''). This Report and 
Order also adopts rules governing the closed captioning capabilities of 
certain apparatus on which consumers view video programming. Closed 
captioning is the visual display of the audio portion of video 
programming, which provides access to individuals who are deaf or hard 
of hearing. Prior to the adoption of the CVAA, the Communications Act 
of 1934, as amended (the ``Act''), required the use of closed 
captioning on

[[Page 19510]]

television, but not on IP-delivered video programming that was not part 
of a broadcaster or multichannel video programming distributor 
(``MVPD'') service. That changed with the enactment of the CVAA, which 
directed the Federal Communications Commission (``Commission'') to 
revise its regulations to require closed captioning of IP-delivered 
video programming that is published or exhibited on television with 
captions after the effective date of the new regulations. Further, the 
CVAA directed the Commission to impose closed captioning requirements 
on certain apparatus that receive or play back video programming, and 
on certain recording devices. The rules we adopt herein will better 
enable individuals who are deaf or hard of hearing to view IP-delivered 
video programming, as Congress intended. Moreover, we believe these 
benefits of our rules to deaf or hard of hearing consumers will 
outweigh the affected entities' costs of compliance.
    129. As discussed in Section III of the Report and Order, we adopt 
the following closed captioning requirements for the owners, providers, 
and distributors of IP-delivered video programming under Section 202(b) 
through (c) of the CVAA. Specifically, we adopt rules that will:
    <bullet> Specify the obligations of entities subject to Section 
202(b) by:
    [cir] Requiring video programming owners (``VPOs'') to send 
required caption files for IP-delivered video programming to video 
programming distributors and providers (``VPDs'') along with program 
files;
    [cir] Requiring VPDs to enable the rendering or pass through of all 
required captions to the end user, including through the hardware of 
software that a VPD makes available for this purpose;
    [cir] Requiring VPOs and VPDs to agree upon a mechanism to make 
available to VPDs information on video programming that is subject to 
the IP closed captioning requirements on an ongoing basis; and
    [cir] Requiring VPOs to provide VPDs with captions of at least the 
same quality as the television captions for the same programming, and 
requiring VPDs to maintain the quality of the captions provided by the 
VPO.
    <bullet> Create a schedule of deadlines under which:
    [cir] All prerecorded programming that is not edited for Internet 
distribution and is subject to the new requirements must be captioned 
if it is shown on television with captions on or after the date six 
months after publication of these rules in the Federal Register;
    [cir] All live and near-live programming subject to the new 
requirements must be captioned if it is shown on television with 
captions on or after the date 12 months after publication of these 
rules in the Federal Register;
    [cir] All prerecorded programming that is edited for Internet 
distribution and is subject to the new requirements must be captioned 
if it is shown on television with captions on or after the date 18 
months after publication of the rules in the Federal Register; and
    [cir] Archival content must be captioned according to the following 
deadlines: Beginning two years after publication of these rules in the 
Federal Register, all programming that is subject to the new 
requirements and is already in the VPD's library before it is shown on 
television with captions must be captioned within 45 days after it is 
shown on television with captions. Beginning three years after 
publication of these rules in the Federal Register, such programming 
must be captioned within 30 days after it is shown on television with 
captions. Beginning four years after publication of these rules in the 
Federal Register, such programming must be captioned within 15 days 
after it is shown on television with captions.
    <bullet> Craft procedures by which VPDs and VPOs may petition the 
Commission for exemptions from the new requirements based on economic 
burden;
    <bullet> Not treat a de minimis failure to comply with the new 
rules as a violation, and permit entities to comply with the new 
requirements by alternate means, as provided in the CVAA; and
    <bullet> Adopt procedures for complaints alleging a violation of 
the new requirements.
    130. In addition, we adopt the following closed captioning 
requirements for the manufacturers of devices used to view video 
programming under Section 203 of the CVAA. Specifically, we adopt rules 
that will:
    <bullet> Establish what apparatus are covered by Section 203:
    [cir] All physical devices designed to receive and play back video 
programming, including smartphones, tablets, personal computers, and 
television set-top boxes;
    [cir] All ``integrated software'' in covered devices (that is, 
software installed in the device by the manufacturer before sale or 
that the manufacturer requires the consumer to install after sale); and
    [cir] All recording devices and removable media players;
    <bullet> Exclude professional and commercial equipment from the 
scope of Section 203;
    <bullet> Exempt display-only monitors as set forth in Section 203, 
and establish procedures for finding a lack of achievability or 
technical feasibility;
    <bullet> Establish the requirements for devices covered by Section 
203:
    [cir] Specify how covered apparatus must implement closed 
captioning by adopting functional display standards;
    [cir] Require apparatus to render or pass-through closed captioning 
on each of their video outputs;
    [cir] Decline to grant blanket waivers or exempt any device or 
class of devices from our rules based on achievability or the waiver 
provisions set forth in Section 203;
    <bullet> Establish general complaint procedures and modify our 
existing television receiver closed captioning decoder requirements to 
conform to screen size and achievability provisions; and
    <bullet> Establish a deadline for compliance of January 1, 2014 by 
which devices must comply with the requirements of Section 203.
    Finally, we adopt a safe harbor for use of a particular interchange 
and delivery format.
Legal Basis
    131. The authority for the action taken in this rulemaking is 
contained in the Twenty-First Century Communications and Video 
Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751, and 
Sections 4(i), 4(j), 303, 330(b), 713, and 716 of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303, 330(b), 613, 
and 617.
Summary of Significant Issues Raised by Public Comments in Response to 
the IRFA
    132. No comments were filed in response to the IRFA. In response to 
the NPRM, commenters express their approval of proposals that gave 
appropriate consideration to smaller entities.
    133. The American Cable Association (``ACA'') and the National 
Association of Broadcasters (``NAB'') also express concerns about the 
burdens of the mechanism proposed in the NPRM on smaller entities. As 
explained in the Report and Order, instead of adopting the proposed 
mechanism, we will permit VPOs and VPDs to agree upon a mechanism. This 
flexibility will alleviate the concerns of ACA and NAB.
    134. Further, ACA argues that MVPDs, especially smaller operators, 
should not have to comply with multiple sets of rules aimed at 
achieving

[[Page 19511]]

the same purpose. In response, the Report and Order clarifies that the 
IP closed captioning rules will not apply to a broadcaster's or MVPD's 
provision of programming that is subject to the Commission's television 
closed captioning rules.
Description and Estimate of the Number of Small Entities to Which the 
Proposals Will Apply
    135. The RFA directs the Commission to provide a description of 
and, where feasible, an estimate of the number of small entities that 
will be affected by the proposed rules if adopted. The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. 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 
Small Business Administration (``SBA'').
    136. Small Businesses, Small Organizations, and Small Governmental 
Jurisdictions. Our action may, over time, affect small entities that 
are not easily categorized at present. We therefore describe here, at 
the outset, three comprehensive, statutory small entity size standards. 
First, nationwide, there are a total of approximately 27.5 million 
small businesses, according to the SBA. In addition, a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
Nationwide, as of 2007, there were approximately 1,621,315 small 
organizations. Finally, the term ``small governmental jurisdiction'' is 
defined generally as ``governments of cities, towns, townships, 
villages, school districts, or special districts, with a population of 
less than fifty thousand.'' Census Bureau data for 2011 indicate that 
there were 89,476 local governmental jurisdictions in the United 
States. We estimate that, of this total, a substantial majority may 
qualify as ``small governmental jurisdictions.'' Thus, we estimate that 
most governmental jurisdictions are small.
    137. Cable Television Distribution Services. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers; that category is defined as follows: 
``This industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' The SBA has developed a small business size standard 
for this category, which is: all such firms having 1,500 or fewer 
employees. Census data for 2007, which supersede data contained in the 
2002 Census, show that there were 1,383 firms that operated that year. 
Of those 1,383, 1,368 had fewer than 100 employees, and 15 firms had 
more than 100 employees. Thus under this category and the associated 
small business size standard, the majority of such firms can be 
considered small.
    138. Cable Companies and Systems. The Commission has also developed 
its own small business size standards, for the purpose of cable rate 
regulation. Under the Commission's rules, a ``small cable company'' is 
one serving 400,000 or fewer subscribers, nationwide. Industry data 
indicate that, of 1,076 cable operators nationwide, all but eleven are 
small under this size standard. In addition, under the Commission's 
rules, a ``small system'' is a cable system serving 15,000 or fewer 
subscribers. Industry data indicate that, of 6,635 systems nationwide, 
5,802 systems have fewer than 10,000 subscribers, and an additional 302 
systems have 10,000-19,999 subscribers. Thus, under this second size 
standard, most cable systems are small.
    139. Cable System Operators. 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.'' The Commission has determined that 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. Industry 
data indicate that, of 1,076 cable operators nationwide, all but ten 
are small under this size standard. We note that the Commission neither 
requests nor collects information on whether cable system operators are 
affiliated with entities whose gross annual revenues exceed $250 
million, and therefore we are unable to estimate more accurately the 
number of cable system operators that would qualify as small under this 
size standard.
    140. 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. DBS, by exception, is now included in the 
SBA's broad economic census category, ``Wired Telecommunications 
Carriers,'' which was developed for small wireline firms. Under this 
category, the SBA deems a wireline business to be small if it has 1,500 
or fewer employees. To gauge small business prevalence for the DBS 
service, the Commission relies on data currently available from the 
U.S. Census for the year 2007. According to that source, there were 
3,188 firms that in 2007 were Wired Telecommunications Carriers. Of 
these, 3,144 operated with less than 1,000 employees, and 44 operated 
with more than 1,000 employees. However, as to the latter 44 there is 
no data available that shows how many operated with more than 1,500 
employees. Based on this data, the majority of these firms can be 
considered small. Currently, only two entities provide DBS service, 
which requires a great investment of capital for operation: DIRECTV and 
EchoStar Communications Corporation (``EchoStar'') (marketed as the 
DISH Network). Each currently offers subscription services. DIRECTV and 
EchoStar each report annual revenues that are in excess of the 
threshold for 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 
service provider.
    141. Satellite Telecommunications Providers. Two economic census 
categories address the satellite industry. The first category has a 
small business size standard of $15 million or less in average annual 
receipts, under SBA rules. The second has a size standard of $25 
million or less in annual receipts.
    142. The category of Satellite Telecommunications ``comprises 
establishments primarily engaged in providing telecommunications 
services to other establishments in the telecommunications and 
broadcasting industries by forwarding and receiving communications 
signals via a system of satellites or reselling satellite 
telecommunications.'' Census Bureau data for 2007 show that 512 
Satellite Telecommunications firms operated for that entire year. Of 
this total, 464 firms had annual receipts of under $10 million, and 18 
firms had receipts of

[[Page 19512]]

$10 million to $24,999,999. Consequently, the Commission estimates that 
the majority of Satellite Telecommunications firms are small entities 
that might be affected by our action.
    143. The second category, i.e. ``All Other Telecommunications'' 
comprises ``establishments primarily engaged in providing specialized 
telecommunications services, such as satellite tracking, communications 
telemetry, and radar station operation. This industry also includes 
establishments primarily engaged in providing satellite terminal 
stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. 
Establishments providing Internet services or voice over Internet 
protocol (VoIP) services via client-supplied telecommunications 
connections are also included in this industry.'' For this category, 
Census Bureau data for 2007 show that there were a total of 2,383 firms 
that operated for the entire year. Of this total, 2,346 firms had 
annual receipts of under $25 million and 37 firms had annual receipts 
of $25 million to $49,999,999. Consequently, the Commission estimates 
that the majority of All Other Telecommunications firms are small 
entities that might be affected by our action.
    144. Television Broadcasting. The SBA defines a television 
broadcasting station as a small business if such station has no more 
than $14.0 million in annual receipts. Business concerns included in 
this industry are those ``primarily engaged in broadcasting images 
together with sound.'' The Commission has estimated the number of 
licensed commercial television stations to be 1,390. According to 
Commission staff review of the BIA Kelsey Inc. Media Access Pro 
Television Database (BIA) as of January 31, 2011, 1,006 (or about 78 
percent) of an estimated 1,298 commercial television stations in the 
United States have revenues of $14 million or less and, thus, qualify 
as small entities under the SBA definition. The Commission has 
estimated the number of licensed noncommercial educational (``NCE'') 
television stations to be 391. We note, however, that, in assessing 
whether a business concern qualifies as small under the above 
definition, business (control) affiliations 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. The Commission does not compile and otherwise 
does not have access to information on the revenue of NCE stations that 
would permit it to determine how many such stations would qualify as 
small entities.
    145. 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.
    146. Open Video Services. Open Video Service (OVS) systems provide 
subscription services. The open video system (``OVS'') framework was 
established in 1996, and is one of four statutorily recognized options 
for the provision of video programming services by local exchange 
carriers. The OVS framework provides opportunities for the distribution 
of video programming other than through cable systems. Because OVS 
operators provide subscription services, OVS falls within the SBA small 
business size standard covering cable services, which is ``Wired 
Telecommunications Carriers.'' The SBA has developed a small business 
size standard for this category, which is: All such firms having 1,500 
or fewer employees. To gauge small business prevalence for the OVS 
service, the Commission relies on data currently available from the 
U.S. Census for the year 2007. According to that source, there were 
3,188 firms that in 2007 were Wired Telecommunications Carriers. Of 
these, 3,144 operated with less than 1,000 employees, and 44 operated 
with more than 1,000 employees. However, as to the latter 44 there is 
no data available that shows how many operated with more than 1,500 
employees. Based on this data, the majority of these firms can be 
considered small. In addition, we note that the Commission has 
certified some OVS operators, with some now providing service. 
Broadband service providers (``BSPs'') are currently the only 
significant holders of OVS certifications or local OVS franchises. The 
Commission does not have financial or employment information regarding 
the entities authorized to provide OVS, some of which may not yet be 
operational. Thus, at least some of the OVS operators may qualify as 
small entities. The Commission further notes that it has certified 
approximately 45 OVS operators to serve 75 areas, and some of these are 
currently providing service. Affiliates of Residential Communications 
Network, Inc. (``RCN'') received approval to operate OVS systems in New 
York City, Boston, Washington, DC, 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 up to 44 OVS operators 
(those remaining) might qualify as small businesses that may be 
affected by the rules and policies adopted herein.
    147. Cable and Other Subscription Programming. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in operating studios and facilities 
for the broadcasting of programs on a subscription or fee basis * * *. 
These establishments produce programming in their own facilities or 
acquire programming from external sources. The programming material is 
usually delivered to a third party, such as cable systems or direct-to-
home satellite systems, for transmission to viewers.'' To gauge small 
business prevalence in the Cable and Other Subscription Programming 
industries, the Commission relies on data currently available from the 
U.S. Census for the year 2007. According to that source, which 
supersedes data from the 2002 Census, there were 396 firms that in 2007 
were engaged in production of Cable and Other Subscription Programming. 
Of these, 386 operated with less than 1,000 employees, and 10 operated 
with more than 1,000 employees. However, as to the latter 10 there is 
no data available that shows how many operated with more than 1,500 
employees. Thus, under this category and associated small business size 
standard, the majority of firms can be considered small.
    148. Motion Picture and Video Production. The Census Bureau defines 
this category as follows: ``This industry comprises establishments 
primarily engaged in producing, or producing and distributing motion 
pictures, videos, television programs, or television

[[Page 19513]]

commercials.'' We note that firms in this category may be engaged in 
various industries, including cable programming. Specific figures are 
not available regarding how many of these firms produce and/or 
distribute programming for cable television. To gauge small business 
prevalence in the Motion Picture and Video Production industries, the 
Commission relies on data currently available from the U.S. Census for 
the year 2007. The size standard established by the SBA for this 
business category is that annual receipts of $29.5 million or less 
determine that a business is small. According to the 2007 Census, there 
were 9,095 firms that in 2007 were engaged in Motion Picture and Video 
Production. Of these, 8,995 had annual receipts of $24,999,999 or less, 
and 100 had annual receipts ranging from not less that $25,000,000 to 
$100,000,000 or more. Thus, under this category and associated small 
business size standard, the majority of firms can be considered small.
    149. Motion Picture and Video Distribution. The Census Bureau 
defines this category as follows: ``This industry comprises 
establishments primarily engaged in acquiring distribution rights and 
distributing film and video productions to motion picture theaters, 
television networks and stations, and exhibitors.'' We note that firms 
in this category may be engaged in various industries, including cable 
programming. Specific figures are not available regarding how many of 
these firms produce and/or distribute programming for cable television. 
To gauge small business prevalence in the Motion Picture and Video 
Distribution industries, the Commission relies on data currently 
available from the U.S. Census for the year 2007. Based on the SBA size 
standard of annual receipts of 29.5 million dollars, and according to 
that 2007 Census source, which supersedes data from the 2002 Census, 
there were 450 firms that in 2007 were engaged in Motion Picture and 
Video Distribution. Of that number, 434 received annual receipts of 
$24,999,999 or less, and 16 received annual receipts ranging from 
$25,000,000 to $100,000,000 or more. Thus, under this category and 
associated small business size standard, the majority of firms can be 
considered small.
    150. Small Incumbent Local Exchange Carriers (LECs). We have 
included small incumbent local exchange carriers in this present RFA 
analysis. As noted above, a ``small business'' under the RFA is one 
that, inter alia, meets the pertinent small business size standard 
(e.g., a telephone communications business having 1,500 or fewer 
employees), and ``is not dominant in its field of operation.'' The 
SBA's Office of Advocacy contends that, for RFA purposes, small 
incumbent local exchange carriers are not dominant in their field of 
operation because any such dominance is not ``national'' in scope. We 
have therefore included small incumbent local exchange carriers in this 
RFA analysis, although we emphasize that this RFA action has no effect 
on Commission analyses and determinations in other, non-RFA contexts.
    151. Incumbent Local Exchange Carriers (Incumbent LECs). Neither 
the Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. The appropriate 
size standard under SBA rules is for the category Wired 
Telecommunications Carriers. Under that size standard, such a business 
is small if it has 1,500 or fewer employees. Census Bureau data for 
2007, which now supersede data from the 2002 Census, show that there 
were 3,188 firms in this category that operated for the entire year. Of 
this total, 3,144 had employment of 999 or fewer, and 44 firms had had 
employment of 1,000 or more. According to Commission data, 1,307 
carriers reported that they were incumbent local exchange service 
providers. Of these 1,307 carriers, an estimated 1,006 have 1,500 or 
fewer employees and 301 have more than 1,500 employees. Consequently, 
the Commission estimates that most providers of local exchange service 
are small entities that may be affected by the rules and policies 
adopted. Thus under this category and the associated small business 
size standard, the majority of these incumbent local exchange service 
providers can be considered small providers.
    152. Competitive Local Exchange Carriers (Competitive LECs), 
Competitive Access Providers (CAPs), Shared-Tenant Service Providers, 
and Other Local Service Providers. Neither the Commission nor the SBA 
has developed a small business size standard specifically for these 
service providers. The appropriate size standard under SBA rules is for 
the category Wired Telecommunications Carriers. Under that size 
standard, such a business is small if it has 1,500 or fewer employees. 
Census Bureau data for 2007, which now supersede data from the 2002 
Census, show that there were 3,188 firms in this category that operated 
for the entire year. Of this total, 3,144 had employment of 999 or 
fewer, and 44 firms had had employment of 1,000 employees or more. Thus 
under this category and the associated small business size standard, 
the majority of these Competitive LECs, CAPs, Shared-Tenant Service 
Providers, and Other Local Service Providers can be considered small 
entities. According to Commission data, 1,442 carriers reported that 
they were engaged in the provision of either competitive local exchange 
services or competitive access provider services. Of these 1,442 
carriers, an estimated 1,256 have 1,500 or fewer employees and 186 have 
more than 1,500 employees. In addition, 17 carriers have reported that 
they are Shared-Tenant Service Providers, and all 17 are estimated to 
have 1,500 or fewer employees. In addition, 72 carriers have reported 
that they are Other Local Service Providers. Of the 72, seventy have 
1,500 or fewer employees and two have more than 1,500 employees. 
Consequently, the Commission estimates that most providers of 
competitive local exchange service, competitive access providers, 
Shared-Tenant Service Providers, and Other Local Service Providers are 
small entities that may be affected by rules adopted pursuant to the 
NPRM.
    153. Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. The Census Bureau defines this category as 
follows: ``This industry comprises establishments primarily engaged in 
manufacturing radio and television broadcast and wireless 
communications equipment. Examples of products made by these 
establishments are: transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment.'' The SBA has developed a small business size 
standard for Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing, which is: all such firms having 
750 or fewer employees. According to Census Bureau data for 2007, there 
were a total of 939 establishments in this category that operated for 
part or all of the entire year. According to Census Bureau data for 
2007, there were a total of 919 firms in this category that operated 
for the entire year. Of this total, 771 had less than 100 employees and 
148 had more than 100 employees. Thus, under that size standard, the 
majority of firms can be considered small.
    154. Audio and Video Equipment Manufacturing. The SBA has 
classified the manufacturing of audio and video equipment under the 
NAICS Codes classification scheme as an industry in

[[Page 19514]]

which a manufacturer is small if it has less than 750 employees. Data 
contained in the 2007 U.S. Census indicate that 491 establishments 
operated in that industry for all or part of that year. In that year, 
376 establishments had between 1 and 19 employees; 80 had between 20 
and 99 employees; and 35 had more than 100 employees. Thus, under the 
applicable size standard, a majority of manufacturers of audio and 
video equipment may be considered small.
    155. Internet Publishing and Broadcasting and Web Search Portals. 
The Census Bureau defines this category to include ``* * * 
establishments primarily engaged in (1) publishing and/or broadcasting 
content on the Internet exclusively or (2) operating Web sites that use 
a search engine to generate and maintain extensive databases of 
Internet addresses and content in an easily searchable format (and 
known as Web search portals). The publishing and broadcasting 
establishments in this industry do not provide traditional (non-
Internet) versions of the content that they publish or broadcast. They 
provide textual, audio, and/or video content of general or specific 
interest on the Internet exclusively. Establishments known as Web 
search portals often provide additional Internet services, such as 
email, connections to other Web sites, auctions, news, and other 
limited content, and serve as a home base for Internet users.''
    156. In this category, the SBA has deemed an Internet publisher or 
Internet broadcaster or the provider of a Web search portal on the 
Internet to be small if it has fewer than 500 employees. For this 
category of manufacturers, Census data for 2007, which supersede 
similar data from the 2002 Census, show that there were 2,705 such 
firms that operated that year. Of those 2,705 firms, 2,682 
(approximately 99%) had fewer than 500 employees and, thus, would be 
deemed small under the applicable SBA size standard. Accordingly, the 
majority of establishments in this category can be considered small 
under that standard.
    157. Closed Captioning Services. These entities would be indirectly 
affected by our action. The SBA has developed two small business size 
standards that may be used for closed captioning services. The two size 
standards track the economic census categories, ``Teleproduction and 
Other Postproduction Services'' and ``Court Reporting and Stenotype 
Services.''
    158. The first category of Teleproduction and Other Postproduction 
Services ``comprises establishments primarily engaged in providing 
specialized motion picture or video postproduction services, such as 
editing, film/tape transfers, subtitling, credits, closed captioning, 
and animation and special effects.'' The relevant size standard for 
small businesses in these services is an annual revenue of less than 
$29.5 million. For this category, Census Bureau Data for 2007 indicate 
that there were 1,605 firms that operated in this category for the 
entire year. Of that number, 1,597 had receipts totaling less than 
$29,500,000. Consequently we estimate that the majority of 
Teleproduction and Other Postproduction Services firms are small 
entities that might be affected by our action.
    159. The second category of Court Reporting and Stenotype Services 
``comprises establishments primarily engaged in providing verbatim 
reporting and stenotype recording of live legal proceedings and 
transcribing subsequent recorded materials.'' The size standard for 
small businesses in these services is an annual revenue of less than $7 
million. For this category, Census Bureau data for 2007 show that there 
were 2,706 firms that operated for the entire year. Of this total, 
2,590 had annual receipts of under $5 million, and 19 firms had 
receipts of $5 million to $9,999,999. Consequently, we estimate that 
the majority of Court Reporting and Stenotype Services firms are small 
entities that might be affected by our action.
Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements for Small Entities
    160. The rules adopted in the Report and Order generally require 
VPOs to send required caption files for IP-delivered video programming 
to VPDs along with program files. The rules also require VPDs to enable 
the rendering or pass through of all required captions to the end user. 
Further, the rules impose closed captioning requirements on certain 
apparatus that receive or play back video programming, and on certain 
recording devices.
    161. The rules will require VPOs and VPDs to agree upon a 
``mechanism'' that will make available to the VPD information on video 
programming subject to the IP closed captioning requirements on an 
ongoing basis. The ``mechanism'' may involve a system of certifications 
that are kept up-to-date, or it may involve the use of a third-party 
database, private contractual arrangements, or another ``mechanism'' 
agreed upon by the parties.
    162. The Report and Order creates a process by which VPDs and VPOs 
may petition the Commission for a full or partial exemption of the 
requirements for closed captioning of IP-delivered video programming, 
which the Commission may grant upon a finding that the requirements 
would be economically burdensome. Further, the Report and Order creates 
a process by which manufacturers of apparatus may petition the 
Commission for a full or partial exemption of the requirements to 
implement closed captioning in their apparatus, which the Commission 
may grant upon a finding that implementation would not be achievable, 
technically feasible, that the apparatus is a display only monitor, or 
that purpose of the apparatus is such that the rules are inapplicable. 
The Report and Order also adopts procedures for complaints alleging a 
violation of the IP closed captioning rules, and it requires VPDs to 
make contact information available to end users for the receipt and 
handling of written IP closed captioning complaints.
Steps Taken To Minimize Significant Economic Impact on Small Entities 
and Significant Alternatives Considered
    163. 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.
    164. These rules may have a significant economic impact in some 
cases, and that impact may affect a substantial number of small 
entities. Although alternatives to minimize economic impact have been 
considered, we note that our action is governed by the congressional 
mandate contained in Sections 202(b), (c), and 203 of the CVAA. The 
Report and Order adopts procedures enabling the Commission to grant 
exemptions to the rules governing closed captioning of IP-delivered 
video programming pursuant to Section 202 of the CVAA, where a 
petitioner has shown that compliance would present an economic burden 
(i.e., a significant difficulty or expense), and pursuant to Section 
203 of the CVAA, where a petitioner has shown that compliance is not 
achievable (i.e., cannot be accomplished with reasonable effort or 
expense) or not technically feasible. This exemption process will allow 
the

[[Page 19515]]

Commission to address the impact of the rules on individual entities, 
including smaller entities, and to modify the application of the rules 
to accommodate individual circumstances. Further, the Report and Order 
provides that a de minimis failure to comply with the requirements 
adopted pursuant to Section 202 of the CVAA shall not be treated as a 
violation, and it provides that parties may use alternate means of 
compliance to the rules adopted pursuant to either Section 202 or 
Section 203 of the CVAA. Individual entities, including smaller 
entities, may benefit from these provisions.
    165. To fulfill the statutory mandate that the Commission 
``establish a mechanism to make available to video programming 
providers and distributors information on video programming subject to 
the Act on an ongoing basis,'' the NPRM proposed a system of 
certifications and updated certifications. Due to concerns that such a 
system may be burdensome for entities that must comply, including 
smaller entities, in the Report and Order the Commission instead 
adopted a flexible process by which VPOs and VPDs must agree upon a 
``mechanism'' to make available to the VPD information on video 
programming subject to the IP closed captioning requirements on an 
ongoing basis.
Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules
    166. None.
Report to Congress
    167. The Commission will send a copy of the Report and Order, 
including this FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act. In addition, the Commission will send a copy 
of the Report and Order, including this FRFA, to the Chief Counsel for 
Advocacy of the SBA. The Report and Order and FRFA (or summaries 
thereof) will also be published in the Federal Register.

B. Congressional Review Act

    168. The Commission will send a copy of this Report and Order in MB 
Docket No. 11-154 in a report to be sent to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).

VII. Ordering Clauses

    169. Accordingly, it is ordered that, pursuant to the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Public Law 
111-260, 124 Stat. 2751, and the authority found in Sections 4(i), 
4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 154(j), 303, 330(b), 613, and 617, this 
Report and Order is adopted, effective thirty (30) days after the date 
of publication in the Federal Register, except for Sec. Sec.  
79.4(c)(1)(ii), 79.4(c)(2)(ii)-(iii), 79.4(d)(1)-(4) and (d)(6)-(9), 
79.4(e)(1)-(6), and 79.103(b)(3)-(4), which shall become effective upon 
announcement in the Federal Register of OMB approval and an effective 
date of the rule(s).
    170. It is ordered that, pursuant to the Twenty-First Century 
Communications and Video Accessibility Act of 2010, Public Law 111-260, 
124 Stat. 2751, and the authority found in Sections 4(i), 4(j), 303, 
330(b), 713, and 716 of the Communications Act of 1934, as amended, 47 
U.S.C. 154(i), 154(j), 303, 330(b), 613, and 617, the Commission's 
rules are hereby amended as set forth in the Final Rules.
    171. It is further ordered that we delegate authority to the Media 
Bureau and the Consumer and Governmental Affairs Bureau to consider all 
requests for declaratory rulings pursuant to Sec.  1.2 of the 
Commission's rules, 47 CFR 1.2, all waiver requests, and all informal 
requests for Commission action pursuant to Sec.  1.41 of the 
Commission's rules, 47 CFR 1.41, filed under these rules and pursuant 
to Sections 202(b) and 203 of the CVAA.
    172. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order in MB Docket No. 11-154, including the 
Final Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.
    173. It is further ordered that the Commission shall send a copy of 
this Report and Order in MB Docket No. 11-154 in a report to be sent to 
Congress and the Government Accountability Office pursuant to the 
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects

47 CFR Part 15

    Communications equipment, Incorporation by reference, Labeling, and 
Reporting and recordkeeping requirements.

47 CFR Part 79

    Cable television operators, Incorporation by reference, 
Multichannel video programming distributors (MVPDs), Satellite 
television service providers, Television broadcasters.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons stated in the preamble, the Federal Communications 
Commission amends 47 CFR parts 15 and 79 as follows:

PART 15--RADIO FREQUENCY DEVICES

0
1. The authority citation for part 15 continues to read as follows:

    Authority: 47 U.S.C. 154, 302a, 303, 304, 307, 336, 544a, and 
549.


Sec.  15.38  [Amended]

0
2. In Sec.  15.38, remove and reserve paragraph (b)(10).

0
3. Redesignate Sec.  15.119 as Sec.  79.101.

0
4. Add and reserve Sec.  15.119.

0
5. Redesignate Sec.  15.122 as Sec.  79.102.

0
6. Add and reserve Sec.  15.122.

PART 79--CLOSED CAPTIONING AND VIDEO DESCRIPTION OF VIDEO 
PROGRAMMING

0
7. The authority citation for part 79 is revised to read as follows:

    Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 
330, 544a, 613, 617.


0
8. Amend Sec.  79.1 by revising paragraphs (a)(4) and (c) to read as 
follows:


Sec.  79.1  Closed captioning of video programming.

    (a) * * *
    (4) Closed captioning. The visual display of the audio portion of 
video programming pursuant to the technical specifications set forth in 
this part.
* * * * *
    (c) Obligation to pass through captions of already captioned 
programs. All video programming distributors shall deliver all 
programming received from the video programming owner or other 
origination 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 this part unless such programming is recaptioned or the captions are 
reformatted by the programming distributor.
* * * * *

0
9. Add Sec.  79.4 to read as follows:

[[Page 19516]]

Sec.  79.4  Closed captioning of video programming delivered using 
Internet protocol.

    (a) Definitions. For purposes of this section the following 
definitions shall apply:
    (1) Video programming. Programming provided by, or generally 
considered comparable to programming provided by, a television 
broadcast station, but not including consumer-generated media.
    (2) Full-length video programming. Video programming that appears 
on television and is distributed to end users, substantially in its 
entirety, via Internet protocol, excluding video clips or outtakes.
    (3) Video programming distributor or video programming provider. 
Any person or entity that makes available directly to the end user 
video programming through a distribution method that uses Internet 
protocol.
    (4) Video programming owner. Any person or entity that either:
    (i) Licenses the video programming to a video programming 
distributor or provider that makes the video programming available 
directly to the end user through a distribution method that uses 
Internet protocol; or
    (ii) Acts as the video programming distributor or provider, and 
also possesses the right to license the video programming to a video 
programming distributor or provider that makes the video programming 
available directly to the end user through a distribution method that 
uses Internet protocol.
    (5) Internet protocol. Includes Transmission Control Protocol and a 
successor protocol or technology to Internet protocol.
    (6) Closed captioning. The visual display of the audio portion of 
video programming pursuant to the technical specifications set forth in 
this part.
    (7) Live programming. Video programming that is shown on television 
substantially simultaneously with its performance.
    (8) Near-live programming. Video programming that is performed and 
recorded less than 24 hours prior to the time it was first aired on 
television.
    (9) Prerecorded programming. Video programming that is not ``live'' 
or ``near-live.''
    (10) Edited for Internet distribution. Video programming for which 
the television version is substantially edited prior to its Internet 
distribution.
    (11) Consumer-generated media. Content created and made available 
by consumers to online Web sites and services on the Internet, 
including video, audio, and multimedia content.
    (12) Video clips. Excerpts of full-length video programming.
    (13) Outtakes. Content that is not used in an edited version of 
video programming shown on television.
    (14) Nonexempt programming. Video programming that is not exempted 
under paragraph (d) of this section and, accordingly, is subject to 
closed captioning requirements set forth in this section.
    (b) Requirements for closed captioning of Internet protocol-
delivered video programming. All nonexempt full-length video 
programming delivered using Internet protocol must be provided with 
closed captions if the programming is published or exhibited on 
television in the United States with captions on or after the following 
dates:
    (1) September 30, 2012, for all prerecorded programming that is not 
edited for Internet distribution, unless it is subject to paragraph 
(b)(4) of this section.
    (2) March 30, 2013, for all live and near-live programming, unless 
it is subject to paragraph (b)(4) of this section.
    (3) September 30, 2013, for all prerecorded programming that is 
edited for Internet distribution, unless it is subject to paragraph 
(b)(4) of this section.
    (4) All programming that is already in the video programming 
distributor's or provider's library before it is shown on television 
with captions must be captioned within 45 days after the date it is 
shown on television with captions on or after March 30, 2014 and before 
March 30, 2015. Such programming must be captioned within 30 days after 
the date it is shown on television with captions on or after March 30, 
2015 and before March 30, 2016. Such programming must be captioned 
within 15 days after the date it is shown on television with captions 
on or after March 30, 2016.
    (c) Obligations of video programming owners, distributors and 
providers.
    (1) Obligations of video programming owners. Each video programming 
owner must:
    (i) Send program files to video programming distributors and 
providers with captions as required by this section, with at least the 
same quality as the television captions provided for the same 
programming. If a video programming owner provides captions to a video 
programming distributor or provider using the Society of Motion Picture 
and Television Engineers Timed Text format (SMPTE ST 2052-1:2010, 
incorporated by reference, see Sec.  79.100), then the VPO has 
fulfilled its obligation to deliver captions to the video programming 
distributor or provider in an acceptable format. A video programming 
owner and a video programming distributor or provider may agree upon an 
alternative technical format for the delivery of captions to the video 
programming distributor or provider.
    (ii) With each video programming distributor and provider that such 
owner licenses to distribute video programming directly to the end user 
through a distribution method that uses Internet protocol, agree upon a 
mechanism to inform such distributors and providers on an ongoing basis 
whether video programming is subject to the requirements of this 
section.
    (2) Obligations of video programming distributors and providers. 
Each video programming distributor and provider must:
    (i) Enable the rendering or pass through of all required captions 
to the end user, maintaining the quality of the captions provided by 
the video programming owner and transmitting captions in a format 
reasonably designed to reach the end user in that quality. A video 
programming distributor or provider that provides applications, plug-
ins, or devices in order to deliver video programming must comply with 
the requirements of Sec.  79.103(c) and (d).
    (ii) With each video programming owner from which such distributor 
or provider licenses video programming for distribution directly to the 
end user through a distribution method that uses Internet protocol, 
agree upon a mechanism to inform such distributor or provider on an 
ongoing basis whether video programming is subject to the requirements 
of this section, and make a good faith effort to identify video 
programming subject to the requirements of this section using the 
agreed upon mechanism. A video programming distributor or provider may 
rely in good faith on a certification by a video programming owner that 
the video programming need not be captioned if:
    (A) The certification includes a clear and concise explanation of 
why captioning is not required; and
    (B) The video programming distributor or provider is able to 
produce the certification to the Commission in the event of a 
complaint.
    (iii) Make contact information available to end users for the 
receipt and handling of written closed captioning complaints alleging 
violations of this section. The contact information required for 
written complaints shall include the name of a person with primary 
responsibility for Internet protocol captioning issues and who can 
ensure compliance with these rules. In

[[Page 19517]]

addition, this contact information shall include the person's title or 
office, telephone number, fax number, postal mailing address, and email 
address. Video programming distributors and providers shall keep this 
information current and update it within 10 business days of any 
change.
    (3) A video programming provider's or owner's de minimis failure to 
comply with this section shall not be treated as a violation of the 
requirements.
    (d) Procedures for exemptions based on economic burden.
    (1) A video programming provider or owner may petition the 
Commission for a full or partial exemption from the closed captioning 
requirements of this section, which the Commission may grant upon a 
finding that the requirements would be economically burdensome.
    (2) The petitioner must support a petition for exemption with 
sufficient evidence to demonstrate that compliance with the 
requirements for closed captioning of video programming delivered via 
Internet protocol would be economically burdensome. The term 
``economically burdensome'' means imposing significant difficulty or 
expense. The Commission will consider the following factors when 
determining whether the requirements for closed captioning of Internet 
protocol-delivered video programming would be economically burdensome:
    (i) The nature and cost of the closed captions for the programming;
    (ii) The impact on the operation of the video programming provider 
or owner;
    (iii) The financial resources of the video programming provider or 
owner; and
    (iv) The type of operations of the video programming provider or 
owner.
    (3) In addition to these factors, the petitioner must describe any 
other factors it deems relevant to the Commission's final determination 
and any available alternatives that might constitute a reasonable 
substitute for the closed captioning requirements of this section 
including, but not limited to, text or graphic display of the content 
of the audio portion of the programming. The Commission will evaluate 
economic burden with regard to the individual outlet.
    (4) The petitioner must electronically file its petition for 
exemption, and all subsequent pleadings related to the petition, in 
accordance with Sec.  0.401(a)(1)(iii) of this chapter.
    (5) The Commission will place the petition on public notice.
    (6) Any interested person may electronically file comments or 
oppositions to the petition within 30 days after release of the public 
notice of the petition. Within 20 days after the close of the period 
for filing comments or oppositions, the petitioner may reply to any 
comments or oppositions filed.
    (7) Persons who file comments or oppositions to the petition must 
serve the petitioner with copies of those comments or oppositions and 
must include a certification that the petitioner was served with a 
copy. Any petitioner filing a reply to comments or oppositions must 
serve the commenting or opposing party with a copy of the reply and 
shall include a certification that the party was served with a copy. 
Comments or oppositions and replies shall be served upon a party, its 
attorney, or its other duly constituted agent by delivering or mailing 
a copy to the party's last known address in accordance with Sec.  1.47 
of this chapter or by sending a copy to the email address last provided 
by the party, its attorney, or other duly constituted agent.
    (8) Upon a finding of good cause, the Commission may lengthen or 
shorten any comment period and waive or establish other procedural 
requirements.
    (9) Persons filing petitions and responsive pleadings must include 
a detailed, full showing, supported by affidavit, of any facts or 
considerations relied on.
    (10) The Commission may deny or approve, in whole or in part, a 
petition for an economic burden exemption from the closed captioning 
requirements of this section.
    (11) During the pendency of an economic burden determination, the 
Commission will consider the video programming subject to the request 
for exemption as exempt from the requirements of this section.
    (e) Complaint procedures.
    (1) Complaints concerning an alleged violation of the closed 
captioning requirements of this section shall be filed in writing with 
the Commission or with the video programming distributor or provider 
responsible for enabling the rendering or pass through of the closed 
captions for the video programming within sixty (60) days after the 
date the complainant experienced a problem with captioning. A complaint 
filed with the Commission must be directed to the Consumer and 
Governmental Affairs Bureau and submitted through the Commission's 
online informal complaint filing system, U.S. Mail, overnight delivery, 
or facsimile.
    (2) A complaint should include the following information:
    (i) The name, postal address, and other contact information of the 
complainant, such as telephone number or email address;
    (ii) The name and postal address, Web site, or email address of the 
video programming distributor, provider, and/or owner against which the 
complaint is alleged, and information sufficient to identify the video 
programming involved;
    (iii) Information sufficient to identify the software or device 
used to view the program;
    (iv) A statement of facts sufficient to show that the video 
programming distributor, provider, and/or owner has violated or is 
violating the Commission's rules, and the date and time of the alleged 
violation;
    (v) The specific relief or satisfaction sought by the complainant; 
and
    (vi) The complainant's preferred format or method of response to 
the complaint (such as letter, facsimile transmission, telephone 
(voice/TRS/TTY), email, or some other method that would best 
accommodate the complainant).
    (3) If a complaint is filed first with the Commission, the 
Commission will forward complaints satisfying the above requirements to 
the named video programming distributor, provider, and/or owner, as 
well as to any other video programming distributor, provider, and/or 
owner that Commission staff determines may be involved. The video 
programming distributor, provider, and/or owner must respond in writing 
to the Commission and the complainant within 30 days after receipt of 
the complaint from the Commission.
    (4) If a complaint is filed first with the video programming 
distributor or provider, the video programming distributor or provider 
must respond in writing to the complainant within thirty (30) days 
after receipt of a closed captioning complaint. If a video programming 
distributor or provider fails to respond to the complainant within 
thirty (30) days, or the response does not satisfy the consumer, the 
complainant may file the complaint with the Commission within thirty 
(30) days after the time allotted for the video programming distributor 
or provider to respond. If a consumer re-files the complaint with the 
Commission (after filing with the distributor or provider) and the 
complaint satisfies the above requirements, the Commission will forward 
the complaint to the named video programming distributor or provider, 
as well as to any other video programming distributor, provider, and/or 
owner that Commission staff determines may be involved. The video 
programming distributor, provider, and/or owner must then respond in 
writing to the Commission and the complainant

[[Page 19518]]

within 30 days after receipt of the complaint from the Commission.
    (5) In response to a complaint, video programming distributors, 
providers, and/or owners shall file with the Commission sufficient 
records and documentation to prove that the responding entity was (and 
remains) in compliance with the Commission's rules. Conclusory or 
insufficiently supported assertions of compliance will not carry a 
video programming distributor's, provider's, or owner's burden of 
proof. If the responding entity admits that it was not or is not in 
compliance with the Commission's rules, it shall file with the 
Commission sufficient records and documentation to explain the reasons 
for its noncompliance, show what remedial steps it has taken or will 
take, and show why such steps have been or will be sufficient to 
remediate the problem.
    (6) The Commission will review all relevant information provided by 
the complainant and the subject video programming distributors, 
providers, and/or owners, as well as any additional information the 
Commission deems relevant from its files or public sources. The 
Commission may request additional information from any relevant 
entities when, in the estimation of Commission staff, such information 
is needed to investigate the complaint or adjudicate potential 
violation(s) of Commission rules. When the Commission requests 
additional information, parties to which such requests are addressed 
must provide the requested information in the manner and within the 
time period the Commission specifies.
    (7) If the Commission finds that a video programming distributor, 
provider, or owner has violated the closed captioning requirements of 
this section, it may employ the full range of sanctions and remedies 
available under the Communications Act of 1934, as amended, against any 
or all of the violators.
    (f) Private rights of action prohibited. Nothing in this section 
shall be construed to authorize any private right of action to enforce 
any requirement of this section. The Commission shall have exclusive 
jurisdiction with respect to any complaint under this section.

0
10. Add Sec.  79.100 to read as follows:


Sec.  79.100  Incorporation by reference.

    (a) The materials listed in this section are incorporated by 
reference in this part. These incorporations by reference were approved 
by the Director of the Federal Register in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. These materials are incorporated as they 
exist on the date of the approval, and notice of any change in these 
materials will be published in the Federal Register. The materials are 
available for purchase at the corresponding addresses as noted, and all 
are available for inspection at the Federal Communications Commission, 
445 12th St. SW., Reference Information Center, Room CY-A257, 
Washington, DC 20554, (202) 418-0270, and at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (b) Global Engineering Documents, 15 Inverness Way East, Englewood, 
CO 80112, (800) 854-7179, or at http://global.ihs.com:
    (1) EIA-708-B: ``Digital Television (DTV) Closed Captioning,'' 
1999, IBR approved for Sec.  79.102.
    (2) [Reserved]
    (c) Society of Motion Picture & Television Engineers (SMPTE), 3 
Barker Ave., 5th Floor, White Plains, NY 10601, or at the SMPTE Web 
site: http://www.smpte.org/standards/:
    (1) SMPTE ST 2052-1:2010: ``Timed Text Format (SMPTE-TT)'' 2010, 
IBR approved for Sec. Sec.  79.4 and 79.103.
    (2) [Reserved]

0
11. Amend newly redesignated Sec.  79.101 by revising paragraphs (a) 
and (m) to read as follows:


Sec.  79.101  Closed caption decoder requirements for analog television 
receivers.

    (a)(1) Effective July 1, 1993, all television broadcast receivers 
with picture screens 33 cm (13 in) or larger in diameter shipped in 
interstate commerce, manufactured, assembled, or imported from any 
foreign country into the United States shall comply with the provisions 
of this section.
    Note to paragraph (a)(1): This paragraph places no restriction on 
the shipping or sale of television receivers that were manufactured 
before July 1, 1993.
    (2) Effective January 1, 2014, all television broadcast receivers 
shipped in interstate commerce, manufactured, assembled, or imported 
from any foreign country into the United States shall comply with the 
provisions of this section, if technically feasible, except that 
television broadcast receivers that use a picture screen less than 13 
inches in size must comply with the provisions of this section only if 
doing so is achievable pursuant to Sec.  79.103(b)(3).
* * * * *
    (m) Labeling and consumer information requirements. (1) The box or 
other package in which the individual television receiver is to be 
marketed shall carry a statement in a prominent location, visible to 
the buyer before purchase, which reads as follows:
    This television receiver provides display of television closed 
captioning in accordance with FCC rules.
    (2) Receivers that do not support color attributes or text mode, as 
well as receivers that display only upper-case characters pursuant to 
paragraph (g) of this section, must include with the statement, and in 
the owner's manual, language indicating that those features are not 
supported.
* * * * *

0
12. Amend newly redesignated Sec.  79.102 by adding paragraph (a)(3) 
and revising paragraph (b) to read as follows:


Sec.  79.102  Closed caption decoder requirements for digital 
television receivers and converter boxes.

    (a) * * *
    (3) Effective January 1, 2014, all digital television receivers and 
all separately sold DTV tuners shipped in interstate commerce or 
manufactured in the United States shall comply with the provisions of 
this section, if technically feasible, except that digital television 
receivers that use a picture screens less than 13 inches in size must 
comply with the provisions of this section only if doing so is 
achievable pursuant to Sec.  79.103(b)(3).
    (b) Digital television receivers and tuners must be capable of 
decoding closed captioning information that is delivered pursuant to 
EIA-708-B: ``Digital Television (DTV) Closed Captioning'' (incorporated 
by reference, see Sec.  79.100).
* * * * *

0
13. Add Sec.  79.103 to read as follows:


Sec.  79.103  Closed caption decoder requirements for all apparatus.

    (a) Effective January 1, 2014, all digital apparatus designed to 
receive or play back video programming transmitted simultaneously with 
sound, if such apparatus is manufactured in the United States or 
imported for use in the United States and uses a picture screen of any 
size must be equipped with built-in closed caption decoder circuitry or 
capability designed to display closed-captioned video programming 
pursuant to the provisions of this section, if technically feasible, 
except that apparatus that use a picture screen less than 13 inches in 
size must comply with the provisions of this section only if doing so 
is achievable as defined in this section.
    Note to paragraph (a): Apparatus includes the physical device and 
the video players that manufacturers install

[[Page 19519]]

into the devices they manufacture before sale, whether in the form of 
hardware, software, or a combination of both, as well as any video 
players that manufacturers direct consumers to install after sale.
    (b) Exempt apparatus. (1) Display-only monitors. Apparatus or class 
of apparatus that are display-only video monitors with no playback 
capability are not required to comply with the provisions of this 
section.
    (2) Professional or commercial equipment. Apparatus or class of 
apparatus that are professional or commercial equipment not typically 
used by the public are not required to comply with the provisions of 
this section.
    (3)(i) Achievable. Manufacturers of apparatus that use a picture 
screen of less than 13 inches in size may petition the Commission for a 
full or partial exemption from the closed captioning requirements of 
this section pursuant to Sec.  1.41 of this chapter, which the 
Commission may grant upon a finding that the requirements of this 
section are not achievable, or may assert that such apparatus is fully 
or partially exempt as a response to a complaint, which the Commission 
may dismiss upon a finding that the requirements of this section are 
not achievable.
    (ii) The petitioner or respondent must support a petition for 
exemption or a response to a complaint with sufficient evidence to 
demonstrate that compliance with the requirements of this section is 
not ``achievable'' where ``achievable'' means with reasonable effort or 
expense. The Commission will consider the following factors when 
determining whether the requirements of this section are not 
``achievable:''
    (A) The nature and cost of the steps needed to meet the 
requirements of this section with respect to the specific equipment or 
service in question;
    (B) The technical and economic impact on the operation of the 
manufacturer or provider and on the operation of the specific equipment 
or service in question, including on the development and deployment of 
new communications technologies;
    (C) The type of operations of the manufacturer or provider; and
    (D) The extent to which the service provider or manufacturer in 
question offers accessible services or equipment containing varying 
degrees of functionality and features, and offered at differing price 
points.
    (4) Waiver. Manufacturers of apparatus may petition the Commission 
for a full or partial waiver of the closed captioning requirements of 
this section, which the Commission may grant, upon a finding that the 
apparatus meets one of the following provisions:
    (i) The apparatus is primarily designed for activities other than 
receiving or playing back video programming transmitted simultaneously 
with sound; or
    (ii) The apparatus is designed for multiple purposes, capable of 
receiving or playing back video programming transmitted simultaneously 
with sound but whose essential utility is derived from other purposes.
    (c) Specific technical capabilities. All apparatus subject to this 
section shall implement the following captioning functionality:
    (1) Presentation. All apparatus shall implement captioning such 
that the caption text may be displayed within one or separate caption 
windows and supporting the following modes: text that appears all at 
once (pop-on), text that scrolls up as new text appears (roll-up), and 
text where each new letter or word is displayed as it arrives (paint-
on).
    (2) Character color. All apparatus shall implement captioning such 
that characters may be displayed in the 64 colors defined in CEA-708 
and such that users are provided with the ability to override the 
authored color for characters and select from a palette of at least 8 
colors including: white, black, red, green, blue, yellow, magenta, and 
cyan.
    (3) Character opacity. All apparatus shall implement captioning 
such that users are provided with the ability to vary the opacity of 
captioned text and select between opaque and semi-transparent 
opacities.
    (4) Character size. All apparatus shall implement captioning such 
that users are provided with the ability to vary the size of captioned 
text and shall provide a range of such sizes from 50% of the default 
character size to 200% of the default character size.
    (5) Fonts. All apparatus shall implement captioning such that fonts 
are available to implement the eight fonts required by CEA-708 and 
Sec.  79.102(k). Users must be provided with the ability to assign the 
fonts included on their apparatus as the default font for each of the 
eight styles contained in Sec.  79.102(k).
    (6) Caption background color and opacity. All apparatus shall 
implement captioning such that the caption background may be displayed 
in the 64 colors defined in CEA-708 and such that users are provided 
with the ability to override the authored color for the caption 
background and select from a palette of at least 8 colors including: 
white, black, red, green, blue, yellow, magenta, and cyan. All 
apparatus shall implement captioning such that users are provided with 
the ability to vary the opacity of the caption background and select 
between opaque, semi-transparent, and transparent background opacities.
    (7) Character edge attributes. All apparatus shall implement 
captioning such that character edge attributes may be displayed and 
users are provided the ability to select character edge attributes 
including: no edge attribute, raised edges, depressed edges, uniform 
edges, and drop shadowed edges.
    (8) Caption window color. All apparatus shall implement captioning 
such that the caption window color may be displayed in the 64 colors 
defined in CEA-708 and such that users are provided with the ability to 
override the authored color for the caption window and select from a 
palette of at least 8 colors including: white, black, red, green, blue, 
yellow, magenta, and cyan.
    All apparatus shall implement captioning such that users are 
provided with the ability to vary the opacity of the caption window and 
select between opaque, semi-transparent, and transparent background 
opacities.
    (9) Language. All apparatus must implement the ability to select 
between caption tracks in additional languages when such tracks are 
present and provide the ability for the user to select simplified or 
reduced captions when such captions are available and identify such a 
caption track as ``easy reader.''
    (10) Preview and setting retention. All apparatus must provide the 
ability for the user to preview default and user selection of the 
caption features required by this section, and must retain such 
settings as the default caption configuration until changed by the 
user.
    (11) Safe Harbor. Apparatus which implement Society of Motion 
Picture and Television Engineers Timed Text format (SMPTE ST 2052-
1:2010 incorporated by reference, see Sec.  79.100) with respect to the 
functionality in paragraphs (c)(1) through (10) of this section shall 
be deemed in compliance with paragraph (c) of this section.
    Note to paragraph (c): Where video programming providers or 
distributors subject to Sec.  79.4 of this part display or render 
captions, they shall implement the functional requirements contained in 
paragraphs (c)(1) through (10) of this section unless doing so is 
economically burdensome as defined in Sec.  79.4(d).
    (d) Interconnection. All video outputs of covered apparatus shall 
be capable of conveying from the source device to the consumer 
equipment the information necessary to permit or render the display of 
closed captions.


[[Page 19520]]



0
14. Add Sec.  79.104 to read as follows:


Sec.  79.104  Closed caption decoder requirements for recording 
devices.

    (a) Effective January 1, 2014, all apparatus designed to record 
video programming transmitted simultaneously with sound, if such 
apparatus is manufactured in the United States or imported for use in 
the United States, must comply with the provisions of this section 
except that apparatus must only do so if it is achievable as defined in 
Sec.  79.103(b)(3).
    (b) All apparatus subject to this section must enable the rendering 
or the pass through of closed captions such that viewers are able to 
activate and de-activate the closed captions as the video programming 
is played back as described in Sec.  79.103(c).
    (c) All apparatus subject to this section must comply with the 
interconnection mechanism requirements in Sec.  79.103(d).

[FR Doc. 2012-7247 Filed 3-29-12; 8:45 am]
BILLING CODE 6712-01-P


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