19480 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 

1Public 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). 

2The 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). 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 15 and 79 

[MB Docket No. 11–154; FCC 12–9] 

Closed Captioning of Internet ProtocolDelivered Video Programming: 

Implementation of the Twenty-First 

Century Communications and Video 

Accessibility Act of 2010 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

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 §§ 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, 

Diana.Sokolow@fcc.gov, 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, 

Jeffrey.Neumann@fcc.gov, 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 

PRA@fcc.gov. 

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 

fcc504@fcc.gov 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 IPdelivered 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. 

2. As discussed in Section III below, 

we adopt the following closed 

captioning requirements for the owners, 

providers, and distributors of IPdelivered video programming under 

Section 202(b) through (c) of the CVAA. 

Specifically, we adopt rules that will: 

• Specify the obligations of entities 

subject to Section 202(b) by: 

Æ Requiring video programming 

owners to send required caption files for 

IP-delivered video programming to 

video programming distributors and 

providers along with program files; 


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Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 19481 

3See First Report of the Video Programming 

Accessibility Advisory Committee on the TwentyFirst 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’’). 

4Closed Captioning of Internet Protocol-Delivered 

Video Programming: Implementation of the TwentyFirst 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. 

6See 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’’). 

Æ 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; 

Æ 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 

Æ 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. 

• Create a schedule of deadlines 

under which: 

Æ 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; 

Æ 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; 

Æ 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 

Æ 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; 

• Craft procedures by which video 

programming providers and owners may 

petition the Commission for exemptions 

from the new requirements based on 

economic burden; 

• 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 

• 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: 

• Establish what apparatus are 

covered by Section 203: 

Æ All physical devices designed to 

receive and play back video 

programming, including smartphones, 

tablets, personal computers, and 

television set-top boxes; 

Æ 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 

Æ All recording devices and 

removable media players; 

• Exclude professional and 

commercial equipment from the scope 

of Section 203; 

• Exempt display-only monitors as 

set forth in Section 203, and establish 

procedures for finding a lack of 

achievability or technical feasibility; 

• Establish the requirements for 

devices covered by Section 203: 

Æ Specify how covered apparatus 

must implement closed captioning by 

adopting functional display standards; 

Æ Require apparatus to render or 

pass-through closed captioning on each 

of their video outputs; 

Æ 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; 

• Establish general complaint 

procedures and modify our existing 

television receiver closed captioning 

decoder requirements to conform to 

screen size and achievability provisions; 

and 

• 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 IPdelivered 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 IPdelivered 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, IPdelivered 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

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, 


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19482 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 

7See 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’’). 8The 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. 

9Where 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. 

10Since 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. 

cellular telephone, game console, Bluray 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. 

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

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. 

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 


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Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 19483 

11To 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. 

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. 

13By ‘‘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. 

reference VPPs, but not VPDs, and asked 

specifically about the relevance of this, 

commenters did not provide any insight 

on this issue. 

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. 

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 § 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 IPdelivered 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 § 79.1 of the Commission’s 

rules.13

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 § 79.1, will be subject to new § 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 underinclusive, 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 overinclusive, 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. 


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19484 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 

14We 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. 

15Of 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. 

16The 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. 

17Specifically, 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. 

18See 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. 

19Senate Committee Report at 1; House 

Committee Report at 19. 

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.’’ 

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 

captioning16 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

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 


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20We 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.’’ 

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 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-a`-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 


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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)). 

23See 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’ ’’). 

24We 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. 

25This time frame is different for archival 

programming, as discussed below. 

26A ‘‘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). 

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. 

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. 

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 


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27For 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. 

28See 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’’). 

29See Webster’s New Collegiate Dictionary 737 

(9th Ed. 1989). 

30See 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. 

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. 

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

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 


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31Should a captioning problem occur where the 

VPD and VPO have failed to agree upon an 

adequate mechanism, the Commission may hold 

both parties responsible. 

32See 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. 

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-byprogram basis or include a programspecific explanation as to whether 

captions are, or are not, required. 

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

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 


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33Uncaptioned, 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. 

34Although 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. 

35The 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. 

36The 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. 

37See 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’’). 

38As we gain experience with the application of 

these rules, we may revisit the issue. 

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 objectedto 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

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 IPdelivered 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. 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 


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39See 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. 

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. 

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’’). 

42The 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). 

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. 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

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 consumergenerated 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

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 


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43We 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. 

captioning requirements. We agree with 

Consumer Groups that, when consumergenerated content is shown on 

television as part of a captioned fulllength 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 fulllength 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

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 


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44Programming 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). 

45For 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. 

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 IPdelivered 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. 

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 


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Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 19493 

46We 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. 

47The same rationale for the two-year apparatus 

deadline applies to these VPD requirements. 

48We 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, PurposeBased Waivers, and Display-Only Monitor 

Exemption), below. 

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’’). 

50We 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. 

51The 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. 

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

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. 

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 nearlive 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. 

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 


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52We 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 nearlive programming. 

53We 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. 

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. 

55See 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’’). 

that is performed and recorded less than 

24 hours prior to the time it was first 

aired on television.’’ 

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 ‘‘nearlive 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. 

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. 

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

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 


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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. 

57We 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. 

58The 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). 

59Of 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. 

60Commission’s Rules of Practice, Procedure, and 

Organization, FCC 11–16, 76 FR 24383, May 2, 2011 

(‘‘2011 Electronic Filing Report and Order’’). 

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. 

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. 

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 caseby-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 

§ 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 

§ 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 § 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 § 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 § 79.1(f)(11) as proposed 

in the Interim Standard Order and 

NPRM and with § 79.3(d)(11) as adopted 

in the Video Description Order, we will 

omit the words ‘‘provider or owner’’ 

from § 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. 

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 


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61Because 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. 

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 

§ 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. 

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 


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62This language is intended to make clear that de 

minimis violations will not lead to enforcement 

actions. 

63 1998 Closed Captioning Recon. Order. 

64As 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.’’ 

65The 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. 

the time frame within which the failure 

was remedied.’’ 

73. We adopt the proposed rule, 

which provides that a video 

programming provider or owner’s de 

minimis failure to comply with § 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. 

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 § 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. 

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

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 IPdelivered 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 


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66The 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. 

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. 

68These procedures are consistent with 

procedures in our existing television closed 

captioning rules. 

69We 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. 

70While 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. 

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

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

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. 

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 caseby-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 


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71While 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. 

72We have enhanced this category of information 

from what was proposed in the NPRM, to facilitate 

contacting the complainant by means other than 

postal mail. 

73We 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. 

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 § 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 abovespecified 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. 

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 


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19500 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 

74The ACS Order applies the accessibility 

requirements of Section 716 of the CVAA to noninterconnected 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. 

75We note that manufacturers of covered 

apparatus pursuant to this section must also comply 

with the performance and display requirements set 

forth below. 

76As provided in the ACS Order, 

‘‘[m]anufacturers are responsible for the software 

components of their [devices] whether they preinstall 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. 

77We 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 

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 IPdelivered 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 wellpositioned 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 closedcaptioned 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 


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Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 19501 

immaterial. Under current technology, there would 

be no way for the device manufacturer to limit 

captioning only for a particular type of content. 

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. 

79This 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. 

80To 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 thirdparty 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 consumerinstalled software is warranted, and make any 

necessary adjustments to our rules to achieve 

accessibility in accordance with the intent of the 

CVAA.’’). 

81As noted above, our rules cover manufacturerprovided 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. 

82Closed 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)). 

83We 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. 

selects a third-party operating system 

that includes a video player, that video 

player will also be considered part of 

the ‘‘apparatus.’’ 

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. 

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. 

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 


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19502 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 

84See 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.’’). 

85We 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. 

86Our 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. 

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. 

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. 

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. 

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 § 1.41 of the Commission’s rules 

before manufacturing or importing the 

product. 

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 


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88Section 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 § 15.122 to § 79.102. 

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. 

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. 

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. 

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. 

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 


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90Any such requests should follow the 

procedures for an informal request for Commission 

action pursuant to § 1.41 of our rules and the 

requirements of § 79.103(b)(3). 47 CFR 1.41, Final 

Rules § 79.103(b)(3). 

91For 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. 

92See 47 CFR 1.41 (Informal requests for 

Commission action). 

93See 47 CFR 1.41 (Informal requests for 

Commission action). 

94A ‘‘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). 

95A manufacturer may seek a Commission 

declaration that a monitor is exempt under this 

provision pursuant to § 1.41 of the Commission’s 

rules. See 47 CFR 1.41. 

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

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 factbased, 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

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 selfexplanatory 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

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 


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96Reply 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). 97See 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 § 15.122, CEA–708) for the 

current captioning requirements, respectively. 

98The 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. 

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. 

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. 

111. The VPAAC identified the four 

components of the captioning 

‘‘experience’’ as: 

• 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); 

• Semantically significant formatting, 

such as italics, colors, and underlining; 

• The timing of the presentation of 

caption text with respect to the video; 

and 

• 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: 

• 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. 

• Support for users to vary character 

opacity between at least three settings, 

including opaque (100% opacity) and 

semi-transparent (at 75% or 25% 

opacity); 

• 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; 

• 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); 

• Support for character edge 

attributes including: none, raised, 

depressed, uniform, or drop shadowed; 

• 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), semitransparent (at 75% or 25% opacity), 

and transparent (0% opacity); 

• 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, 


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99We 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). 

100Section 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. 101The 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). 

102HDMI stands for ‘‘High Definition Multimedia 

Interface.’’ Over 2 billion HDMI equipped devices 

have been deployed worldwide. 

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

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

D. Recording Devices 

114. In addition to devices that 

consumers use to directly view video 

programming, those that record video 

programming must also have closedcaptioning 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. 

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 


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103See Public Law 111–260, secs. 204 (User 

interfaces on digital apparatus), 205 (Access to 

video programming guides and menus provided on 

navigation devices). 

104We 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. 

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). 

106Part 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 IPContinued 

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. 

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. 

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 operatorprovisioned 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

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, 

§§ 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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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. 

107We 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. 

108The 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. 

109We 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. 

110The 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. 

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 § 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 twoyear 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

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 


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111The 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. 

112We 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. 

113When 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. 

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 recaptioned 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

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. 

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 


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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: 

• Specify the obligations of entities 

subject to Section 202(b) by: 

Æ 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; 

Æ 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; 

Æ 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 

Æ 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. 

• Create a schedule of deadlines 

under which: 

Æ 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; 

Æ 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; 

Æ 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 

Æ 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. 

• Craft procedures by which VPDs 

and VPOs may petition the Commission 

for exemptions from the new 

requirements based on economic 

burden; 

• 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 

• 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: 

• Establish what apparatus are 

covered by Section 203: 

Æ All physical devices designed to 

receive and play back video 

programming, including smartphones, 

tablets, personal computers, and 

television set-top boxes; 

Æ 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 

Æ All recording devices and 

removable media players; 

• Exclude professional and 

commercial equipment from the scope 

of Section 203; 

• Exempt display-only monitors as 

set forth in Section 203, and establish 

procedures for finding a lack of 

achievability or technical feasibility; 

• Establish the requirements for 

devices covered by Section 203: 

Æ Specify how covered apparatus 

must implement closed captioning by 

adopting functional display standards; 

Æ Require apparatus to render or 

pass-through closed captioning on each 

of their video outputs; 

Æ 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; 

• Establish general complaint 

procedures and modify our existing 

television receiver closed captioning 

decoder requirements to conform to 

screen size and achievability provisions; 

and 

• 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 


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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 


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$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 


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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 


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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 IPdelivered 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 


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

§§ 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 § 1.2 

of the Commission’s rules, 47 CFR 1.2, 

all waiver requests, and all informal 

requests for Commission action 

pursuant to § 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 

■ 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. 

§ 15.38 [Amended] 

■ 2. In § 15.38, remove and reserve 

paragraph (b)(10). 

■ 3. Redesignate § 15.119 as § 79.101. 

■ 4. Add and reserve § 15.119. 

■ 5. Redesignate § 15.122 as § 79.102. 

■ 6. Add and reserve § 15.122. 

PART 79—CLOSED CAPTIONING AND 

VIDEO DESCRIPTION OF VIDEO 

PROGRAMMING 

■ 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. 

■ 8. Amend § 79.1 by revising 

paragraphs (a)(4) and (c) to read as 

follows: 

§ 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. 

* * * * * 

■ 9. Add § 79.4 to read as follows: 


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19516 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 

§ 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 ‘‘nearlive.’’ 

(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 fulllength 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 fulllength 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 § 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 

§ 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 


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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 protocoldelivered 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 

§ 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 § 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 


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19518 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 

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. 

■ 10. Add § 79.100 to read as follows: 

§ 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 § 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 §§ 79.4 and 79.103. 

(2) [Reserved] 

■ 11. Amend newly redesignated 

§ 79.101 by revising paragraphs (a) and 

(m) to read as follows: 

§ 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 § 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. 

* * * * * 

■ 12. Amend newly redesignated 

§ 79.102 by adding paragraph (a)(3) and 

revising paragraph (b) to read as follows: 

§ 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 

§ 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 § 79.100). 

* * * * * 

■ 13. Add § 79.103 to read as follows: 

§ 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 builtin closed caption decoder circuitry or 

capability designed to display closedcaptioned 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 


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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) Displayonly 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 

§ 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 (rollup), and text where each new letter or 

word is displayed as it arrives (painton). 

(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 semitransparent 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 

§ 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 § 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, semitransparent, 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 § 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 § 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 § 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. 


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19520 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations 

■ 14. Add § 79.104 to read as follows: 

§ 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 § 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 deactivate the closed captions as the video 

programming is played back as 

described in § 79.103(c). 

(c) All apparatus subject to this 

section must comply with the 

interconnection mechanism 

requirements in § 79.103(d). 

[FR Doc. 2012–7247 Filed 3–29–12; 8:45 am] 

BILLING CODE 6712–01–P 


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