Devices Must Follow IP Captioning Rules, Which Apply to Content Owners
The FCC didn’t back down from First Amendment concerns expressed by video programming owners that VPOs should have no or little role in ensuring broadcast-TV and subscription video is captioned when put online. Such concerns expressed by VPOs led Commissioner Robert McDowell to concur with the rules implementing the Internet Protocol captioning rules in the 21st Century Communications and Video Accessibility Act. Commissioner Mignon Clyburn cited the “marketplace of ideas embodied in the First Amendment” as reason to let those with hearing problems know what’s happening on-screen, online. The final order released Friday afternoon had few changes from the first draft that circulated for a vote the last work day before Christmas. That conformed with expectations (CD Jan 6 p4).
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Captions won’t go online or on consumer electronics immediately, under a staggered implementation process. Devices must display captioned content by Jan. 1, 2014. Different types of shows that are currently on TV must be captioned when they go online starting within six months of the rules taking effect for prerecorded programming, within a year for live shows and those that are produced nearly in real-time and in 18 months for programs edited to go online.
Despite a last-minute lobbying effort that included the House and Senate authors of the disabilities legislation (CD Jan 12 p4), video clips and programming of similar length that could be considered to be other than clips needn’t be captioned. Additional language so that the rules aren’t gamed was inserted, an FCC official noted. Rules on archived programming also were changed a bit during drafting, but otherwise there were few substantive modifications to the draft order, the official said. Old content must be captioned when it’s transmitted by IP within 45 days of being shown on TV, starting two years after the rules take effect. A year later, the material must be captioned online in 30 days. One year after that, there’s a 15-day period to caption such content, according to the order.
The order makes program owners send the caption files required under the new rules along with the actual content to video programming distributors (VPD) like TV stations and cable, DBS and telco-TV providers. Distributors had sought that role. They must enable IP captions to be rendered or passed through on consumer electronics to viewers, and the captions must be as good online as they were on traditional TV. The order dismissed the MPAA’s free-speech concerns, citing the legislation and appeals court rulings. “We find unpersuasive MPAA’s argument that a ‘potentially complicated chain of copyright ownership’ mandates against direct regulation of VPOs,” the order said. “Such complexity supports regulating VPOs directly in the IP context."
Captioning rules don’t impede content owners’ free-speech rights, as the U.S. Court of Appeals for the D.C. Circuit has ruled, the commission said. “The captioning requirement is triggered only after the programming has been shown on television with closed captions.” The “total burden on all speakers associated with imposing responsibilities on VPOs” hasn’t been shown to be “any greater than the total burden on all speakers associated with regulating only providers and distributors” of video, the order said. “VPOs have no greater First Amendment right than VPDs to be free of captioning duties, 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 MPAA and its members may end up deciding not to sue the FCC to block the order, commission and industry officials predicted, noting no decision has been made by the association. Petitions for reconsideration of the order may end up being filed by programmers or others, a commission official noted. “We are reviewing the order,” an MPAA spokesman said. The CEA and NCTA had no comment.
"Apparatus” gets two years to comply with the captioning rules, the commission said in implementing Section 203 of the legislation. McDowell is heartened the agency will consider waivers, he said he hopes the exemptions will be “reasonably provided to alleviate burdens” on VPOs, VPDs and device makers “in the event that our rules cause unintended consequences.” Display-only monitors are exempted, and an entity that “merely caches Internet videos hosted on another website or server” isn’t considered a VPD, the order said.
Considered covered by Section 203 are a wide array of consumer devices. They are “all physical devices designed to receive and play back video programming, including smartphones, tablets, personal computers, and television set-top boxes,” the order said. “Integrated software” in covered devices also falls under the rules, as do “all recording devices and removable media players,” the order said. “We believe these benefits of our rules to deaf or heard of hearing consumers will outweigh the affected entities’ costs of compliance.”