# Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-7247 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** March 30, 2012 - **Citation:** 77 FR 19480 ## Text FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 15 and 79 [MB Docket No. 11-154; FCC 12-9] Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 AGENCY: Federal Communications Commission. ACTION: Final rule. 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 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. 1 Public Law 111-260, 124 Stat. 2751 (2010). See also Amendment of Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-265, 124 Stat. 2795 (2010) (making technical corrections to the CVAA). 2 The CVAA defines “Internet protocol” as including “Transmission Control Protocol and a successor protocol or technology to Internet protocol.” Public Law 111-260, sec. 206(5). 2. As discussed in Section III below, we adopt the following closed captioning requirements for the owners, providers, and distributors of IP-delivered video programming under Section 202(b) through (c) of the CVAA. Specifically, we adopt rules that will: • Specify the obligations of entities subject to Section 202(b) by: ○ Requiring video programming owners to send required caption files for IP-delivered video programming to video programming distributors and providers along with program files; ○ 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; ○ 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 ○ 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: ○ 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 ; ○ 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 ; ○ 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 ○ 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: ○ All physical devices designed to receive and play back video programming, including smartphones, tablets, personal computers, and television set-top boxes; ○ 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 ○ 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: ○ Specify how covered apparatus must implement closed captioning by adopting functional display standards; ○ Require apparatus to render or pass-through closed captioning on each of their video outputs; ○ 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 IP-delivered video programming, and for certain apparatus on which consumers view video programming. The CVAA also required the Commission to establish an advisory committee known as the Video Programming Accessibility Advisory Committee (“VPAAC”), which submitted its statutorily mandated report on closed captioning of IP-delivered video programming to the Commission on July 12, 2011. 3 The Commission initiated this proceeding in September 2011. 4 In the NPRM, the Commission provided extensive background information regarding the history of closed captioning, IP-delivered closed captioning, the applicable provisions of the CVAA, and the VPAAC Report, which we need not repeat here. The CVAA directs the Commission to revise its rules within six months of the submission of the VPAAC Report to require closed captioning on IP-delivered video programming and include a schedule of deadlines for the provision of such closed captioning. By the same date, Section 203 of the CVAA directs the Commission to adopt requirements for the closed captioning capabilities of certain apparatus. To fulfill these statutory mandates, we adopt the rules discussed below. 5 3 See First Report of the Video Programming Accessibility Advisory Committee on the Twenty-First Century Communications and Video Accessibility Act of 2010: Closed Captioning of Video Programming Delivered Using Internet Protocol, July 12, 2011, available at http://transition.fcc.gov/cgb/dro/VPAAC/First_VPAAC_Report_to_the_FCC_7-11-11_FINAL.pdf (“VPAAC Report”). 4 Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, FCC 11-138, 76 FR 59963, Sept. 28, 2011 (“ NPRM” ). 5 Given the tight statutory deadline, we decline to consider proposals that go beyond implementation of the specific requirements of the CVAA. 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, cellular telephone, game console, Blu-ray player, or set-top box. Through the CVAA, Congress sought to “update the communications laws to help ensure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming.” 7 Video programming owners sometimes make their video programming available via IP through their own Web sites, and sometimes they enter into licensing agreements with third parties to distribute their video programming using IP. Although closed captioning of IP-delivered video programming has not been required previously, certain companies have chosen to make it available voluntarily. When a video programming owner enters into a licensing agreement with a third party to enable the third party to distribute the owner's programming via IP, the video programming owner or other entity may provide a closed captioning file to the third-party distributor, which may then make the closed captioning available to end users. The rules adopted below will implement new responsibilities regarding the distribution of video programming over IP, as well as new requirements for the apparatus consumers use to view video programming. 6 See NPRM; see also Closed Captioning of Video Programming, FCC 97-279, 62 FR 48487, Sept. 16, 1997 (“ 1997 Closed Captioning Order” ), recon. granted in part, Order on Reconsideration, FCC 98-236, 63 FR 55959, Oct. 20, 1998 (“ 1998 Closed Captioning Recon. Order” ). 7 See S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010) (“Senate Committee Report”); H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19 (2010) (“House Committee Report”). 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 8 The definitions we adopt for the terms VPO, VPD and VPP in this Report and Order apply only to those terms as used with regard to Sections 202 and 203 of the CVAA, and not to those terms in other contexts, such as our television closed captioning or video description rules. 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. 9 Where the VPO is also the VPD or VPP, it may not rely on a good faith use of the mechanism described in Section III.A.2, infra, because as the VPO, it should know whether its programming is shown on television with captions after the effective date of our new rules. 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 reference VPPs, but not VPDs, and asked specifically about the relevance of this, commenters did not provide any insight on this issue. 10 Since for the reasons stated in this paragraph, we define VPDs and VPPs as meaning the same thing, we will refer to them as “VPDs” throughout the rest of this Report and Order. 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 To the extent an ISP distributes video programming directly to end users, for example by making video programming available on its own Web site, the ISP is not merely providing access to the video programming distributed by another VPD, but rather, is acting as a VPD. 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 IP-delivered video programming if the programming is “published or exhibited on television with captions after the effective date” of the new rules. Congress did not give any indication that it intended the new IP closed captioning rules to override the existing television closed captioning rules where an MVPD provides its service via IP. Thus, we clarify that the new IP closed captioning rules do not apply to traditional managed video services that MVPDs provide to their MVPD customers within their service footprint, regardless of the transmission protocol used; rather, such services are already subject to § 79.1 of the Commission's rules. 13 12 Internet Protocol Television (“IPTV”) is a technology used by some MVPDs to deliver television services. Video content typically travels over a managed, two-way IP network and can be delivered to the subscriber using a combination of fiber and Digital Subscriber Line (“xDSL”) over copper technology. 13 By “traditional managed video service,” we mean a service through which an MVPD offers multiple channels of video programming, including IP-based video offerings such as those provided by AT&T. 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 under-inclusive, in that it includes the term “directly” and thus may not reach certain entities, and over-inclusive, in that it “may lay captioning responsibility at the feet of network providers and other entities that lack the ability to assist consumers in fixing videos with insufficient or missing captions.” We do not believe that inclusion of the term “directly” in the definition of VPD is under-inclusive; rather, use of the word “directly” avoids placing requirements on certain entities, such as ISPs, that are not aware of the video programming content that they pass along the distribution chain. Our definition is also consistent with Section 202(b) of the CVAA, which requires the Commission's regulations to “clarify that * * * the terms `video programming distributors' and `video programming providers' include an entity that makes available directly to the end user video programming through a distribution method that uses Internet protocol.” As to the argument that the proposed definition is over-inclusive, we find that VPDs, as we have defined them, will in fact include the entities that are best suited to address consumer concerns in the first instance. We agree with Consumer Groups that an entity that merely caches Internet videos hosted on another Web site or server is not a VPD. 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.” 14 We leave it to the parties to determine how or whether a VPO should convey to a VPD that captions are not required for a particular program because it has not been shown on television with captions, even though the VPO is providing a caption file. We strongly encourage VPDs to provide captioning for programming delivered via IP in all instances in which the VPO makes an appropriate captioning file available. 15 Of course, a VPD that is also a VPO is subject to the requirements of VPDs and the requirements of VPOs, such that it must produce the captions. 16. Our decision is consistent with the statutory language. Section 202(b) of the CVAA requires the Commission to revise its regulations to require closed captioning 16 of IP-delivered video programming that was shown on broadcast or MVPD-delivered television with captions after the effective date of the new regulations. While the CVAA does not direct the Commission to impose captioning obligations on VPOs, it clearly authorizes the Commission to promulgate rules directly affecting VPOs as well as VPDs. 17 Direct regulation of VPOs closes a potential gap in the statutory scheme. Section 202(b) of the CVAA provides that a VPD “shall be deemed in compliance if such entity enables the rendering or pass through of closed captions and makes a good faith effort to identify video programming subject to the [CVAA] using the mechanism created” herein for identifying such programming. 18 Under this provision, a VPD is responsible for rendering or pass through of closed captions and good faith efforts to identify programming subject to the CVAA, and is protected from liability for distributing programming without closed captions if those two requirements are met. We recognize that, in the absence of a requirement that VPOs provide captioning, VPDs and VPOs may nonetheless enter into private contracts placing such an obligation on VPOs. We find, however, that it is more efficient and less costly to place appropriate obligations on VPOs and on VPDs, rather than to expect the parties to enter into contracts mandating the same obligations. Thus, we believe that imposing responsibility on VPOs as well as VPDs is both consistent with the Commission's authority to identify the responsibilities of VPOs under the statute and necessary to further the statutory purpose of helping to “ensure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming.” 19 16 The rules we adopt here define “closed captioning” to mean, “The visual display of the audio portion of video programming pursuant to the technical specifications set forth in this part.” The NPRM defined the term to mean, “The visual display of the audio portion of video programming.” We have added the phrase “pursuant to the technical specifications set forth in this part” to follow the approach used to define the term “closed captioning” for purposes of the Commission's television closed captioning requirements, 47 CFR 79.1(a)(4), and to clarify that the closed captioning requirements we adopt herein are subject to the applicable technical specifications. 17 Specifically, under the “requirements for regulations,” the CVAA directs the Commission to “describe the responsibilities of video programming providers or distributors and video programming owners.” See 47 U.S.C. 613(c)(2)(D)(iv) (emphasis added). See also 47 U.S.C. 613(c)(2)(D)(vii) (directing that the Commission's regulations “provide that de minimis failure to comply with such regulations by a video programming provider or owner shall not be treated as a violation of the regulations.”) (emphasis added); 47 U.S.C. 613(c)(2)(C) (authorizing the Commission to delay or waive its IP closed captioning regulations to the extent it finds the “regulations would be economically burdensome to providers of video programming or program owners” ) (emphasis added). The legislative history sheds no additional light on the issue of Congress's intent with respect to direct regulation of VPOs. 18 See 47 U.S.C. 613(c)(2)(D)(vi). The previous version of Section 713 of the Act, which addressed television closed captioning, did not contain a comparable limitation on the imposition of VPD responsibilities. The mechanism that the CVAA provides for is discussed later in this Section III.A.2. 19 Senate Committee Report at 1; House Committee Report at 19. 17. Further, we find that imposing responsibility on VPOs is consistent with the statutory directive to establish a “mechanism” to make available to VPDs information on video programming subject to the Act on an ongoing basis because it will help to ensure that the mechanism the statute provides for will function effectively. In contrast, leaving VPOs' responsibilities to be defined entirely by private contractual arrangements would be more costly and less efficient than appropriately allocating certain responsibilities among both VPOs and VPDs by Commission rule. 18. We also find that placing obligations on VPOs will ensure that the Commission may hold a responsible party accountable for violations of the CVAA. For example, if a VPO erroneously certifies to a VPD that captions are not required for a particular program, and the VPD makes a good faith use of the “mechanism” discussed below, there would be no entity to hold legally accountable ( e.g., with respect to a consumer complaint or enforcement action) in the absence of rules placing obligations on the VPO. We note that Consumer Groups state that, “to the extent that the Commission interprets the CVAA to require a safe harbor for VPDs and VPPs who pass through or render caption files, * * * we would support a decision by the Commission to make VPOs and their licensees and sublicensees responsible for captioning IP-delivered video programming to the extent the CVAA does not permit placing that responsibility with VPPs or VPDs.” Thus, Consumer Groups support the approach we adopt here. In that regard, we note that Consumer Groups initially expressed concern about placing responsibilities on both VPDs and VPOs on the ground that consumers and the Commission would be faced with the potentially difficult task of identifying VPOs against whom to file a complaint or seek enforcement. To address these concerns, as explained below, we make clear that consumers will be free to file their complaints against VPDs, and the Commission will require VPDs to provide information on the VPO's identity if the VPD claims that the captioning problem was the fault of the VPO. Accordingly, we agree with Verizon that regulating VPOs as well as VPDs will not have a negative impact on consumers. 19. Our examination of the record in this proceeding likewise provides support for imposing duties directly on VPOs. Numerous commenters support the NPRM' s proposal to impose captioning obligations on content owners rather than assign such obligations exclusively to VPDs. Even one VPO recognizes that the Commission should allocate responsibilities among the parties in the chain of IP content delivery, with requirements placed on both VPOs and VPDs. Commenters argue that “VPOs are in the best position to assess whether captions are required for a particular program since they have knowledge of which content has been shown on television,” and “as the copyright holders, the VPOs typically possess the necessary legal rights to modify the content and insert closed captions.” We agree, and believe that these factors further justify placing the obligation to provide required captions on VPOs. 20 We also agree with Google that placing such obligations on VPDs would be unduly burdensome, as their systems generally do not enable them to review video content, determine whether captions are required, and then insert captions. Further, for the reasons above, we agree with commenters who suggest that imposing obligations on VPOs would be most consistent with the statute. 20 We recognize that some of the above arguments may be premised on VPO copyright ownership, consistent with the VPO definition proposed in the NPRM, whereas we have decided to define a VPO based on its license to distribute programming to a VPD. Even if a VPO does not own the copyright to programming, however, we believe it will be in a better position than the VPD to determine whether the programming aired on television with captions and to obtain the rights necessary to add captions because it will be closer to the copyright owner than the VPD in the “potentially complicated chain of copyright ownership.” 20. We agree with commenters who argue that key differences between the television and IP contexts justify different regulatory treatment of VPOs. Similar to the CVAA, the closed captioning statute governing broadcast television and MVPD services authorizes the Commission to regulate closed captioning of programming by providers and owners of video programming. The Commission decided in 1997 to place the responsibility for compliance with the closed captioning rules on video programming distributors, defined as all entities who provide video programming directly to customers' homes, regardless of distribution technology used ( i.e., broadcast or MVPD). The Commission reasoned in 1997 that placing compliance obligations on distributors would promote more efficient monitoring and enforcement of the closed captioning rules, because there would typically be a single entity to which complaints must be addressed, and there would be no need for tracking the entities responsible for producing programs alleged to violate the rules. The Commission expressed an expectation that distributors would privately negotiate with program owners regarding “an efficient allocation of captioning responsibilities” and that program owners would “cooperate with distributors to ensure that nonexempt programming is closed captioned in accordance with our rules.” Thus, the Commission chose to limit regulatory oversight to distributors, notwithstanding that excluding program owners from the rules would leave a liability gap in the television/MVPD captioning context. In that regard, the Commission explained, “[d]istributors will not be held responsible for situations where a program source falsely certifies that programming delivered to the distributor meets our captioning requirements if the distributor is unaware that the certification is false.” 21. Notwithstanding the statutory and regulatory similarities between IP and television closed captioning, we find that a different regulatory approach for the IP closed captioning regime than the television closed captioning regime is justified by fundamental differences between television and IP distribution. “[I]n the television context,” as Microsoft explains, “a single broadcaster, MVPD, or similar entity is responsible for the delivery of video programming,” whereas “video on the Internet often will pass through the hands of numerous parties on its way to the consumer” and VPDs in a chain often cannot identify one another, lack contractual relationships, and will not possess the rights necessary to caption a work. Indeed, Congress mandated that the Commission establish a mechanism to make available to VPDs information about whether programming has aired on television, a mechanism that is unnecessary in the television context. We believe that this characteristic of the IP distribution chain helps to justify imposing obligations directly on VPOs in the IP context, whereas the Commission reasonably believed that in the television/MVPD context it could rely on video programming distributors or providers working with program suppliers with whom they have close contractual relationships. Even where a distribution chain is complex and the VPO itself does not create the closed captions, we expect that the VPO will be better positioned than the VPD to obtain the captions, since by definition the VPO is farther up the distribution chain than the VPD. 22. We also believe that the differences between video programming distributors vis-à-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 provisions governing television closed captioning allow the Commission to establish video programming distributor or provider responsibilities that encompass the actual provision of closed captioning, whereas the CVAA precludes imposing that direct responsibility. 24. We therefore disagree with commenters that argue that the Commission's proposals improperly allocate responsibility, and that the regulations should focus exclusively on the entity with the direct-to-consumer relationship rather than on the VPO. As discussed above, VPOs are better suited than VPDs to determine whether their programming has been shown on television with captions after the effective date, and VPOs more likely possess the rights necessary to caption their own content. Even if a VPO lacks the rights necessary to caption its content, by definition the VPO is higher up the distribution chain than the VPD, and thus is better positioned than the VPD to obtain required captions. We also disagree with MPAA and Time Warner that extending the existing television regime to the IP context is justified because it would be simpler. We believe that any benefit from such consistency is outweighed by the considerations set forth above, including the enforcement benefits of clearly defining the VPO as a single responsible person or entity. Further, we find unpersuasive MPAA's argument that a “potentially complicated chain of copyright ownership” mandates against direct regulation of VPOs. On the contrary, for the reasons above, we find that such complexity supports regulating VPOs directly in the IP context. We recognize that because the copyright ownership chain may be complicated, under some circumstances, the VPO as we have defined it may not possess captioning rights or be ideally positioned to determine whether programming it licenses is subject to the Act. Under such circumstances, however, we believe that the VPO is better positioned than the VPD to obtain required captions, and that it is necessary to impose captioning responsibility on a person or entity, rather than leaving a regulatory vacuum. As between the VPO and the VPD, we believe that the VPO—who owns the programming or is closer in the chain of custody to the owner—will be better positioned than the VPD to obtain the necessary rights and information and fulfill the responsibilities that we impose on VPOs, in particular providing captions, pursuant to our regulations. 25. Further, we reject commenters' arguments that imposing closed captioning obligations on content owners would raise First Amendment concerns. MPAA argues that regulating VPOs directly would represent a “major shift from the existing captioning regime,” impermissibly and unnecessarily target a new category of speakers, and impose a greater burden on content owners' speech than is necessary to ensure the deaf community has online access to television content. As an initial matter, closed captioning requirements implicate the First Amendment only marginally at best. The DC Circuit has rejected the argument that captioning requirements regulate program content in violation of protected rights under the First Amendment, finding that closed captioning “would not significantly interfere with program content.” 21 Indeed, because closed captioning involves a “precise repetition of the spoken words” communicated by the speaker, any First Amendment burden is only incidental. 22 The DC Circuit's explanation that closed captioning is a “precise repetition” is consistent with our definition of closed captioning as the visual display of the audio portion of video programming. Here, the captioning requirement is triggered only after the programming has been shown on television with closed captions. In addition, the record does not reflect that the total burden on all speakers associated with imposing responsibilities on VPOs would be any greater than the total burden on all speakers associated with regulating only providers and distributors. VPOs have no greater First Amendment right than VPDs to be free of captioning duties, 23 and some VPDs are already subject to broadcast television captioning requirements and have not objected to extension of such requirements to the IP context. The Commission would simply be allocating similar captioning burdens differently among video programming owners, distributors and providers in the IP context than in the traditional television context, in order to implement the statutory directives and objectives as described above. This allocation does not impermissibly burden VPOs' First Amendment rights. 21 Gottfried v. FCC, 655 F.2d 297, 311 n. 54 (1981), rev'd in part, 459 U.S. 498 (1983) (Supreme Court did not disturb dictum of D.C. Circuit suggesting the constitutionality of closed captioning regulations). See also MPAA v. FCC, 309 F.3d 796, 803 (D.C. Cir. 2002). 22 MPAA v. FCC, 309 F.3d 796, 803 (D.C. Cir. 2002) (noting a key difference for First Amendment purposes between video description (which regulates video content) and closed captioning (which involves a precise repetition of the spoken words)). 23 See Turner Broadcasting Systems, Inc. v. FCC, 512 U.S. 622, 636 (1994) (“There can be no disagreement on an initial premise: Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment. Through `original programming or by exercising editorial discretion over which stations or programs to include in its repertoire,' cable programmers and operators `see[k] to communicate messages on a wide variety of topics and in a wide variety of formats' ”). 26. Video programming distributor or provider responsibilities. We require VPDs to enable “the rendering or pass through” of all required captions to the end user, as proposed in the NPRM. In adopting this requirement, we note that it was generally unopposed in the record. 24 When a VPD initially receives a program with required captions for IP delivery, we will require the VPD to include those captions at the time it makes the program file available to end users. 25 Other than requiring a good faith use of the “mechanism” discussed below, we decline to impose specific obligations on VPDs to determine whether captions are required and to ensure that video programming has the required captions. Commenters express their objection to such additional obligations. We note, however, that the existence of an agreed-upon mechanism, discussed below, is not a defense for failure to enable the rendering or pass through of required captions to the end user if—at any time before or during the period in which the VPD made the video programming at issue available to end users through IP delivery—evidence shows that the VPD's reliance on the mechanism was not in good faith. 24 We note that, as discussed in Section III.A.1 above, we rejected the proposals of a few commenters that we should impose separate responsibilities for VPDs and for VPPs, based on the different definitions of the terms that they advocated. 25 This time frame is different for archival programming, as discussed below. 27. We find that as part of the VPDs' responsibilities under the Section 202(b) “render or pass through” obligation, they must ensure that any application, plug-in, 26 or device that they provide to the consumer is capable of rendering or passing through closed captions. In other words, if a VPD chooses to deploy an application, device, or plug-in to deliver video to consumers, the VPD must ensure that captions can actually be displayed on the screen—whether by causing the text to appear or by passing the text through to another component on the device that will accept and display that text. 27 This includes making the captioning readily available to users, because if users cannot turn on the captioning and otherwise control the captions, the rendering or passing through of captions will be meaningless. We find that this is a reasonable and necessary interpretation of the requirement that a VPD must enable “the rendering or pass through of closed captions,” because otherwise captions of video programming that VPDs render or pass through via their associated applications or hardware may not be viewable by end users. Our interpretation of the “render or pass through” obligation is consistent with how our existing closed captioning rules operate. Thus, interpreting the “render or pass through” obligation in this way is consistent with Commission precedent. We note that this approach also is consistent with the Commission's approach in the ACS Order that, if a provider of advanced communications services makes software available to provide covered services, the provision of that software is subject to the applicable requirements. 28 Importantly, just as the Commission found in the ACS Order that an advanced communications service provider or equipment manufacturer is not responsible for third-party applications and services, we find that a VPD is also not responsible for third-party services and applications. This means that if a consumer downloads software from a third party entity not affiliated with or used by the VPD in the delivery of its programming, and the consumer uses that software to access content provided by the VPD, the VPD is not responsible for ensuring closed captioning support in that application. We note, however, that where a VPD requires a consumer to download software or software upgrades from a third party, and the consumer could not otherwise view closed captioning on video programming for which the VPD bears a closed captioning obligation, the VPD is responsible for ensuring the accessibility of such software or software upgrades. Finally, as part of its obligation to enable the rendering or pass through of closed captions, a VPD providing an application, plug-in, or device to consumers in order to deliver video programming must ensure that the application, plug-in, or device complies with the requirements discussed below related to interconnection mechanisms (to the extent the VPD supplies the consumer covered devices under Section 203) and display of captions. 26 A “plug-in” is defined as “[a] program of data that enhances, or adds to, the operation of a (usually larger) parent program.” See H. Newton, Newton's Telecom Dictionary 642 (20th ed. 2004). 27 For example, if a VPD provides an application that consumers can download onto their smartphones to view the VPD's programming, then the application must be capable of rendering or passing through closed captions. Likewise, if a VPD provides a device, such as a set-top box, to view the VPD's programming, that device must be capable of rendering or passing through closed captions. Additionally, if the VPD delivers its programming through a Web site, it must design its Web site to permit the user to enable the display of closed captions. Where the VPD passes the text through to another component on a physical device over which the VPD has no control, then the manufacturer of that device will have separate obligations to ensure the capability to display such captions under Section 203 of the CVAA. See infra Section IV. We note that if the VPD is reasonably relying on the captioning display functionality in a device over which it has no control to display captions, the VPD has no liability to the extent that the captioning functionality on the device fails or operates improperly. We also note that to the extent that the VPD believes that it would be economically burdensome for it to comply with this requirement in a specific instance, it may petition us accordingly. 28 See Implementation of Sections 716 and 717 of the Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010, 26 FCC Rcd 14557, 14591 at para. 86 (2011) (“ ACS Order” ). 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 29 See Webster's New Collegiate Dictionary 737 (9th Ed. 1989). 30 See Senate Committee Report at 14. Rather than limiting the definition of the statutorily-required mechanism to a specific process or method, we believe that our approach will enhance economic incentives for the development of technology, For example, under our rules, entities may choose to rely on a commercially available third-party database (to the extent one is developed) that accurately identifies video programming subject to the CVAA. 30. Our broad interpretation of the statutory term “mechanism” also is justified by our examination of the record in this proceeding, which reflects sharply differing views as to whether a particular “mechanism” would work best, supporting our conclusion that one size may not fit all. While some commenters are amenable to the system of certifications proposed in the NPRM, others argue that the proposed certification mechanism would be unworkable and unduly burdensome. Some commenters favor allowing a VPD to monitor a third-party database, and still others support leaving the choice for the parties to resolve by private contract. We believe that the broad interpretation we adopt, by permitting the parties to select the “mechanism” that is most suitable for them, will provide needed flexibility to VPOs and VPDs while ensuring that VPDs will be able to obtain the information necessary to determine when a program must be provided with captions. 31. We will require each VPO and each VPD to which the VPO has provided or will provide video programming for IP delivery to agree upon a “mechanism” that will inform the VPD of which programming is subject to the IP closed captioning requirements on an ongoing basis. 31 This obligation will apply to programming that VPOs newly provide VPDs for IP delivery, as well as to programming that VPOs provided VPDs for IP delivery previously if it remains available to consumers, as explained below. Any mechanism agreed upon by a VPO and VPD must provide adequate information to enable the VPD to identify programming subject to the IP closed captioning requirements on an ongoing basis, consistent with the definition of “mechanism” that we adopt here. A VPD cannot rely in “good faith” on a mechanism that fails to provide adequate information for it to identify programming subject to the Act, and a VPD that does rely on such a mechanism despite its inadequacy will not be “deemed in compliance” within the meaning of Section 202(b) of the CVAA. If the parties agree upon a mechanism that involves certifications, they have the flexibility to determine whether certifications should apply to specific programming or whether to use a more general certification, for example, by addressing in a certification all programming covered by a particular contract. That is, we impose no requirement on the parties that the certifications apply on a program-by-program basis or include a program-specific explanation as to whether captions are, or are not, required. 31 Should a captioning problem occur where the VPD and VPO have failed to agree upon an adequate mechanism, the Commission may hold both parties responsible. 32. In the NPRM, the Commission proposed “to require VPOs providing video programming to VPDs for IP delivery to provide each program either with captions simultaneously, or with a dated certification stating that captions are not required for a reason stated in the certification.” Because we have decided to afford parties flexibility in choosing a mechanism, we decline to adopt a certification requirement. In the interest of providing certainty to those VPDs that may choose to use certification as the method of determining whether captioning is required, however, we declare that VPDs may rely in good faith on certifications, as long as they meet certain requirements. First, to the extent that a VPD relies on a certification by a VPO that the subject programming need not be captioned, such certification must include a clear and concise explanation of why captioning is not required. We believe that such an explanation is necessary to enable a VPD to rely on the certification in good faith, as it will enable the VPD to review the VPO's reasoning and evaluate whether the VPD may rely on the certification. Second, in order to rely on a certification in the event of a complaint, VPDs must be able to produce it to the Commission. Thus, VPDs should retain any certifications on which they may need to rely until one year after they cease making the subject programming available to end users via IP delivery. If these requirements are met, VPDs may rely in good faith on such certifications for purposes of the “deemed in compliance” provision of the statute. In other words, when faced with a complaint, VPDs relying upon certifications need not prove that the mechanism they chose was adequate. In addition, if VPDs wish to obtain Commission determinations that other proposed mechanisms provide adequate information for them to be able to rely on the mechanisms in good faith for purposes of the “deemed in compliance” provision, they may seek such a determination by filing an informal request, and providing sufficient information for the Commission to determine whether the proposed mechanism would provide the VPD with adequate information for it to identify programming subject to the Act. 32 32 See 47 CFR 1.41. Parties filing any request pursuant to the rules we adopt here may seek confidential treatment of information submitted with their request pursuant to the Commission's confidentiality rules. See 47 CFR 0.459. 33. We note that an uncaptioned, archival IP-delivered program that is not subject to the IP closed captioning requirements as of the effective date of the new rules may later become subject to the requirements, once it is shown on television with captions after the effective date. In the NPRM, the Commission proposed that VPOs be required to provide VPDs with updated certifications as to the captioning status of a previously delivered program (and a caption file, if not previously provided) within seven days of the program becoming subject to the IP closed captioning requirements, and that VPDs be required to make required captions available to end users within five days of the receipt of an updated certification. We decline to adopt this proposal in light of our decision to provide flexibility for VPOs and VPDs to agree to different mechanisms to enable VPDs to identify programming subject to the CVAA. We emphasize, however, that VPOs must provide updated information to VPDs concerning uncaptioned, archival IP-delivered programs pursuant to whatever “mechanism” they agree to use in order for VPDs to be able to rely on that mechanism in good faith, subject to the deadlines discussed below. For example, if the mechanism that a VPD and a VPO agree to use involves certifications, the VPO would have to provide the VPD with an updated certification to inform the VPD that a program in the VPD's library has been shown on television with captions after the applicable compliance deadline. 34. Based on examination of the record, we conclude that VPOs and VPDs must be provided with a reasonable period of time to develop processes or methods of addressing uncaptioned, archival IP-delivered content that is shown on television with captions after the effective date of the new rules. The record reflects that no process or method presently exists to enable VPOs to accurately identify such content, and that the task of developing one is likely to be complex. The record also reflects that the “costs and complexities involved in taking down a program already online and adding captions to it” would make compliance with our proposed seven- and five-day deadlines impossible at present. Accordingly, for a period of two years after this Report and Order is published in the Federal Register , we will not require captioning of uncaptioned, archival IP-delivered programming that is already in the VPD's library before it is shown on television with captions. We believe that two years will provide a reasonable period of time for VPDs to develop and implement a process to address such content. For such programming that is already in a VPD's library and is shown on television with captions on or after the date two years from Federal Register publication, the VPD must update its program file to enable the rendering or pass through of closed captions within 45 days of the program being shown on television with captions. 33 We believe that 45 days will provide sufficient time for VPDs to update program files to enable the rendering or pass through of closed captions, given that VPDs and VPOs will have two years to develop methods of complying with the 45-day deadline. 34 We further note that 45 days is significantly longer than the objected-to NPRM proposal. 35 We expect that, with the passage of time, parties will have established a better functioning mechanism for the update of archival content. Given this, we require that for programming that is already in a VPD's library and is shown on television with captions on or after the date three years from Federal Register publication, the VPD must update its program file to enable the rendering or pass through of closed captions within 30 days of the program being shown on television with captions. Further, we require that for programming that is already in a VPD's library and is shown on television with captions on or after the date four years from Federal Register publication, the VPD must update its program file to enable the rendering or pass through of closed captions within 15 days of the program being shown on television with captions. We expect that by four years after Federal Register publication, 15 days will be sufficient for VPDs to caption any archival content that remains uncaptioned. 36 33 Uncaptioned, archival programming will not be subject to the IP closed captioning requirements unless and until it is shown on television with captions on or after the two-year deadline. For the reasons discussed above, VPOs and VPDs will need two years to develop processes or methods of addressing such programming, and before such processes or methods are in place we do not believe it is reasonable to require them to keep track of whether such programming is shown on television with captions. 34 Although we give VPOs and VPDs two years to develop a process for captioning archival content that is subject to the CVAA, we note that nothing in the statute precludes the VPO, during this period, from providing captions to the VPD for the archival content posted in the VPD's library. 35 The lengthy compliance deadline adopted herein for programming already in a VPD's library is consistent with NCTA's request for a separate category in the schedule of deadlines for reruns. 36 The Commission may reconsider the time frames set forth in this paragraph upon a showing that VPOs and VPDs are incapable of compliance within these time frames. 35. We reject the arguments of some commenters that our IP closed captioning rules should not apply to programming that is available from a VPD before it is shown on television with captions. Section 202(b) of the CVAA requires the Commission to “revise its regulations to require the provision of closed captioning on video programming delivered using Internet protocol that was published or exhibited on television with captions after the effective date of such regulations.” Some commenters maintain that the statute does not cover content delivered to the VPD and posted online prior to the effective date of the regulations, seemingly reading the term “delivered” in Section 202(b) to refer to the time of the VPO's delivery of content to the VPD rather than the time of publication or exhibition on television with captions. These commenters argue that requiring updates of such programming to include closed captions would be inconsistent with Congress's intent to apply the requirements prospectively only. We disagree. We interpret Section 202(b) to cover any programming delivered to consumers using IP, provided that the programming was published or exhibited on television with captions after the effective date of the regulations. We believe that this interpretation is consistent with the language, history, and purpose of the statute. The statutory phrase “after the effective date of such regulations” does not modify “programming delivered using Internet protocol”; rather, it modifies the phrase “published or exhibited on television with captions.” Thus, whether the VPO delivered the programming to the VPD before or after the effective date of the regulations is irrelevant to whether the programming is covered by the statute. While the legislative history of the CVAA indicates Congress's intent “to apply the captioning requirement only prospectively,” we believe that our reading is consistent with that intent: under our reading, captioning requirements do not apply to IP-delivered programming unless and until the programming is published or exhibited on television with captions after the effective date of our regulations. Our reading is also consistent with the statutory purpose of maximizing the availability of closed captions, whereas the reading advocated by some commenters would remove a significant amount of captioned television programming from the scope of the CVAA based upon whether a particular program happened to be in a VPD's archive before it was shown on television with captions. Accordingly, we do not see any statutory basis for exempting the existing IP-delivered programming from the IP closed captioning requirements as some commenters request. 3. Quality of IP-Delivered Video Programming 36. The CVAA authorizes the Commission to impose requirements on the quality of video programming provided by VPOs for IP delivery, and on the quality of IP-delivered video programming that VPDs make available directly to end users. 37 The VPAAC recommended that the consumer experience with captions of IP-delivered video programming should be “equal to, if not better than,” the television experience, and it specifically proposed the consideration of such factors as completeness, placement, accuracy, and timing in making this determination. The NPRM proposed to require captions to be of at least the same quality as the television captions for the programming, and that an evaluation of “quality” includes the consideration of such factors as completeness, placement, accuracy, and timing. While some commenters support the proposed quality standards, others express concern that such a requirement could make VPOs or VPDs responsible for factors that affect caption quality but are outside of their control, such as broadband connection speeds or the constraints of a particular apparatus. 37 See 47 U.S.C. 613(c)(2)(D)(iv) (authorizing the Commission to “describe the responsibilities of video programming providers or distributors and video programming owners”). 37. We will require VPOs to provide VPDs with captions of at least the same quality as the television captions provided for that programming. We will also require VPDs to maintain ( i.e., not degrade) the quality of the captions provided by VPOs in enabling the rendering or pass through of captions, and to transmit captions in a format reasonably designed to reach the end user in that quality. In evaluating whether the captions are of at least the same quality, the Commission will consider such factors as completeness, placement, accuracy, and timing. 38 At the same time, recognizing the complex chain of video programming delivery from the VPO to the consumer, we will not hold VPDs or VPOs responsible for quality issues outside of their control such as broadband connection speeds or the constraints of a particular apparatus. This slight modification of the quality requirements proposed in the NPRM focuses on the quality of the captions that VPOs send, and on the quality of the captions that VPDs render or pass through, and is designed to address the concern raised by commenters that VPDs and VPOs may be held responsible for variations in quality caused by outside factors. It also mitigates the concerns raised by certain commenters that quality requirements could be subjective and time-consuming because the quality standard is based on the objective quality characteristics of the actual closed captions used for the televised version of the programming, which are readily apparent. We reject commenters' argument that regulation of caption quality would raise First Amendment concerns. As explained above, the quality standards we adopt here are based upon the quality of the television captions provided for that programming. Thus, our quality standards impose no greater burden than our television closed captioning requirements, which the DC Circuit has already suggested are constitutional. We do not expect that this quality requirement will create disincentives to making video programming available online, since it merely requires VPOs to provide captions comparable to those available for television distribution. Although some commenters suggest that a decision to impose quality standards here would be inconsistent with the lack of television closed captioning quality standards, in fact, the Commission has a proceeding pending on the caption quality of television programming. 39 Further, the IP closed captioning regime differs from the television closed captioning regime since the television closed captioning rules require that captions be created in the first instance, whereas in the IP context, captions are only required for IP-delivered video programming that has already been published or exhibited on television with captions. We believe that quality standards are appropriate in the IP context to prevent VPOs or VPDs from degrading the quality of the captions that actually appeared on television when the same programming is distributed with captions via IP. The record provides no basis for concluding that it is unreasonable to expect VPOs and VPDs to at least maintain the same quality with respect to programming distributed via IP, since we will not hold VPOs and VPDs responsible for quality effects that result from outside factors. To the extent any VPO or VPD believes that the quality requirement is economically burdensome, it may file an exemption petition. 38 As we gain experience with the application of these rules, we may revisit the issue. 39 See Closed Captioning of Video Programming, Telecommunications for the Deaf, Inc. Petition for Rulemaking, FCC 05-142, 70 FR 56150, Sept. 26, 2005 (issued in response to a Petition for Rulemaking filed by the TDI Coalition on July 23, 2004). See also Consumer & Governmental Affairs Bureau Seeks to Refresh the Record on Notices of Proposed Rulemaking Regarding Closed Captioning Rules, DA 10-2050, 75 FR 70168, Nov. 17, 2010. 38. We are not persuaded that any of the alternate approaches to caption quality proposed by commenters would be preferable to the approach adopted herein. Specifically, CEA proposes the adoption of “specific minimum technical requirements * * * if achievable,” which proposal focuses improperly on the “achievability” language of Section 203 of the CVAA rather than on regulations specific to VPOs and VPDs pursuant to Section 202 of the CVAA. Other commenters also propose a “functional equivalence” quality standard, which Microsoft describes as having a focus on “[e]ssential equality in function rather than exact equality with respect to all the features and capabilities.” We find that such an approach is amorphous and does not offer any benefits not provided by the quality standard adopted herein. 39. We encourage VPDs to improve caption quality to enhance accessibility, if doing so is not constrained or prohibited by copyright law or private agreement. AT&T expresses concern that “[e]ncouraging VPPs/VPDs to edit captions could create inconsistencies in the quality of programming from one medium to another,” which is not an issue when the VPO handles edits for all media simultaneously. In the NPRM, the Commission explained that it did not intend to require VPDs to improve caption quality, but rather, to allow them to do so if they had any necessary permission. Some commenters express the view that copyright concerns should not prevent a VPD from improving caption quality. Some commenters argue that improving caption quality for an IP-delivered video program would be a non-infringing fair use of the video under copyright law. In contrast, other commenters assert that copyright law generally would prevent a VPD from improving caption quality. We see no need to determine in this proceeding whether a VPD may, consistent with copyright law, improve caption quality without the consent of a VPO. We expect that VPOs and VPDs will typically agree through their contractual negotiations about the appropriate extent, if any, of VPD improvement to a VPO's caption file. 40 40 In the NPRM, the Commission contemplated that a requirement for captions of IP-delivered video programming to be of at least the same quality as captions of television programming would require IP-delivered captions to include the same user tools, such as the ability to change caption font and size. We believe that the issue of user tools is better suited to our discussion of requirements for devices subject to Section 203 of the CVAA than the present discussion of requirements for VPOs and VPDs pursuant to Section 202(b) of the CVAA. 4. Video Programming Subject to Section 202(b) 40. In the paragraphs below, we define the types of programming that are subject to the IP closed captioning rules. We generally adopt the definitions proposed in the NPRM but modify some of them, as discussed below. As proposed in the NPRM, we also limit our rules to programming aired with captions on television in the United States. 41. Video programming. We adopt the NPRM' s proposal to codify the CVAA's definition of “video programming” in our rules. Section 202(a) of the CVAA defines “video programming” as “programming by, or generally considered comparable to programming provided by a television broadcast station, but not including consumer-generated media (as defined in section 3).” 41 The Senate and House Committee Reports did not elaborate on the term “video programming,” and commenters generally did not further explore the meaning of the term. We agree with the suggestion by Consumer Groups that programming “that was published or exhibited on television” by definition constitutes “video programming,” since anything that was published or exhibited on television must be provided by, or be comparable to programming provided by, a television broadcast station. 42 41 47 U.S.C. 613(h)(2). This definition of “video programming” is almost identical to the definition set forth in Section 602(20) of the Act. See 47 U.S.C. 522(20) (defining “video programming” as “programming provided by, or generally considered comparable to programming provided by, a television broadcast station”). 42 The Act and our rules establish that programming aired by MVPDs is “video programming.” See, e.g., 47 U.S.C. 522(13) (an MVPD “makes available for purchase * * * multiple channels of video programming”); 47 CFR 76.5(a) (cable television system is “designed to provide cable service which includes video programming”); id. 76.1000(e) (defining MVPD as an entity that makes available for purchase multiple channels of video programming). 42. Consumer-generated media. We also adopt the NPRM' s proposal to codify the CVAA's definition of “consumer-generated media” in our rules. Section 3 of the Act, as revised by the CVAA, defines “consumer-generated media” as “content created and made available by consumers to online Web sites and services on the Internet, including video, audio, and multimedia content.” The Senate and House Committee Reports did not elaborate on the definition, but certain commenters made proposals concerning the proper scope of “consumer-generated media” with regard to the new IP closed captioning requirements. We agree with Consumer Groups that, when consumer-generated content is shown on television as part of a captioned full-length program which a VPD then distributes over the Internet, the Internet version of the captioned full-length program must include captions. We conclude that in such a circumstance, the captioned full-length program does not constitute “consumer-generated media” merely because it includes certain content that was originally consumer-generated; rather, pursuant to the CVAA, captioning is required when the full-length program is delivered via IP because it is “video programming delivered using Internet protocol that was published or exhibited on television with captions after the effective date of such regulations.” For example, if a consumer creates a video and makes it available on YouTube, and that video is then shown with captions as part of a news broadcast on television, then that full-length news broadcast (which includes the consumer-generated video) must include captions when a VPD distributes it via IP. We also agree with commenters who propose that “consumer-generated media” for these purposes should include content that is made available online by individual consumers without the consent of a VPO that has rights in the content, since in such situations VPOs do not maintain control over the programming and caption file, and VPDs do not maintain control over the distribution of the programming directly to the end user. Thus, it is not reasonable to expect VPOs and VPDs to bear any obligations for captioning content made available online by individual consumers without the necessary consent. 43. Players embedded in a Web site present a different situation. When a VPD makes full-length video programming available to consumers to redistribute through a player embedded in a Web site, the player is controlled by the VPD, even though it appears as if it is playing video on the Web site through which the consumer redistributes it, such as a blog or a social networking Web site. When a VPD makes full-length video programming available to consumers to redistribute through such a player, the video programming is not consumer-generated media and the VPD must ensure that the player displays required captions pursuant to its “pass through or render” obligations discussed in paragraph 27 above. 44. Full-length programming. The NPRM proposed to define “full length programming” as “video programming that is not video clips or outtakes.” Consistent with our proposal in the NPRM, that the captioning requirements of Section 202(b) apply to full-length programming, and not to video clips or outtakes, we adopt the proposed definition with a slight modification to make our rules more clear. Specifically, we define “full-length video programming” as video programming that appears on television and is distributed to end users, substantially in its entirety, via IP. This definition thereby excludes video clips or outtakes of the video programming that appeared on television. We find that this decision is supported by commenters. Through the inclusion of “substantially in its entirety,” we mean to reference video programming that is distributed via IP as a complete video programming presentation, such as an episode of a television show or a movie. At the same time, as explained below, when substantially all of a full-length program is available via IP, we will not consider that program to be a “clip,” but rather, a “full-length program” subject to the IP closed captioning requirements. 45. We define “video clips” as excerpts of full-length video programming, consistent with the proposals of some commenters. We believe that this definition is consistent with what consumers commonly think of as “video clips.” When substantially all of a full-length program is available via IP, we will not consider that program to be a “clip,” but rather, a “full-length program” subject to the IP closed captioning requirements. For example, an entity covered by our new rules would not be permitted simply to shave off a few minutes (or brief segments) from a full-length half hour program just to avoid fulfilling its captioning obligations. Our decision that substantially all of a full-length program does not constitute a “clip” is consistent with congressional intent to increase the accessibility of video programming to individuals who are deaf or hard of hearing. We also agree with members of the industry and consumer groups that a full-length program posted online in multiple segments, to enable consumers to more readily access a particular segment of the program, constitutes full-length programming and will have to be captioned under our new rules. Thus, for example, a VPD that divides a program into various segments for easy viewing and posts the segments on the Internet would still have to ensure the pass through or rendering of the captions for each of these segments. Individuals should not be denied access to captioned IP-delivered programming because it is available online only in segmented format. 46. We note that in the NPRM, the Commission had proposed to define “video clips” as “small” sections of a larger video programming presentation, consistent with the Comcast-NBCU Order. We now reject that approach. The word “small” in the proposed definition of “video clips” could inadvertently create a class of programming that is neither a “video clip” nor a “full-length program,” because a particular clip may not be “small” but also may not be a full-length video program. We believe that the definition of “video clips” adopted herein addresses that concern because it eliminates any need to evaluate whether a particular video clip constitutes a small section of a larger video programming presentation. Further, we encourage VPOs and VPDs to provide closed captions for IP-delivered video clips where they are able to do so. We emphasize that, “if there is clear evidence that an entity has developed a pattern of attempting to use video clips to evade its captioning obligations,” we may find a violation of our rules. 47. We reject proposals that the Commission limit the definition of “video clips” to promotional materials that do not exceed a certain duration or fraction of the program. There is no evidence in the CVAA or its legislative history that Congress intended to exclude “video clips” only if they are promotional in nature, and we do not see any evidence that Congress sought to exclude only clips of a certain duration or percentage of the full-length program. 43 43 We also reject the proposal of Consumer Groups that “video clips” must be no longer than 30 seconds in duration, and the proposal of DIRECTV that video clips must not exceed one quarter of the program's overall length, as Consumer Groups and DIRECTV fail to justify the strained readings of the terms “video clips” and “full-length programming” on which their proposals rely. 48. Finally, we emphasize that the legislative history states that Congress “intends, at this time, for the regulations to apply to full-length programming and not to video clips or outtakes.” We believe that this legislative language, which references the present time only, signals Congress's intent to leave open the extent to which such programming should be covered under this section at some point in the future. Accordingly, we may determine, at a later time, that congressional intent “to help ensure that individuals with disabilities are able to * * * better access video programming” may warrant applying these captioning requirements beyond full-length programming, by for example including video clips within the captioning requirements or defining the term more narrowly. It is particularly important that news content, which plays the vital role of ensuring an informed citizenry, be made accessible to all citizens. As Representative Markey and Senator Pryor recognize, “Americans increasingly are accessing online news, information and entertainment in * * * segments * * *.” We therefore encourage the industry to make captions available on all TV news programming that is made available online, even if it is made available through the use of video clips as defined above. If we find that consumers who are deaf or hard of hearing are not getting access to critical areas of programming, such as news, because of the way the programming is posted ( e.g., through selected segments rather than full-length programs), we may reconsider this issue to ensure that our rules meet Congress's intent to bring captioning access to individuals viewing IP-delivered programming. 49. We adopt the definition of “outtakes” that the Commission proposed in the NPRM. The Commission proposed to define “outtakes” as content that is not used in an edited version of video programming shown on television. Of the few commenters that discuss this proposed definition, all express their support. We agree with Consumer Groups that “bloopers” and other incidental material shown on television with captions do not fall within the definition of “outtakes” prescribed herein, when such content is, in fact, used in an edited version of video programming shown on television. 50. Foreign programming. We affirm the NPRM' s tentative conclusion that the CVAA requires closed captioning of IP-delivered video programming that was published or exhibited on television in the United States with captions after the effective date of the regulations. The Commission stated in the NPRM that the best reading of the CVAA seemed to be that closed captioning is required on IP-delivered video programming that was published or exhibited on television in this country with captions after the effective date of the regulations. Industry commenters generally agree with the Commission that programming that has been shown on television with captions only in another country should not be subject to the new requirements for IP closed captioning. Consumer Groups argue, however, that the IP closed captioning requirements should apply to programming that is shown on television in another country with captions after the effective date of the new rules, because “the CVAA's captioning requirements contain no textual limitation on programming published or exhibited on television in other countries,” and because “Consumer Groups see no tenable rationale for excluding the broad range of foreign programming that is available via Internet distribution in the United States.” We disagree. Although the text of the CVAA does not explicitly exclude from coverage programming shown only in another country, we conclude that Congress did not intend to reach such programming through the CVAA, which commenters have explained could create many difficulties, such as the need to reconcile different captioning requirements applicable in different countries and monitor foreign television broadcasts. Had Congress intended to create such a broad range of issues, such as those that would arise with programming shown in a foreign country, it would have said so expressly. Moreover, examination of the record reflects that there are sound reasons for excluding foreign television programming from the scope of the CVAA. B. Compliance Deadlines 51. Section 202(b) of the CVAA requires the Commission's regulations for closed captioning of IP-delivered video programming to “include an appropriate schedule of deadlines for the provision of closed captioning, taking into account whether such programming is prerecorded and edited for Internet distribution, or whether such programming is live or near-live and not edited for Internet distribution.” We adopt the proposal from the NPRM to implement the schedule of compliance deadlines set forth by the VPAAC, which is as follows: (1) For programming that is prerecorded and not edited for Internet distribution, a compliance deadline of six months after the rules are published in the Federal Register; (2) for programming that is live or near-live, a compliance deadline of 12 months after the rules are published in the Federal Register; and (3) for programming that is prerecorded and edited for Internet distribution, a compliance deadline of 18 months after the rules are published in the Federal Register. Having reviewed the record, we conclude that adoption of the schedule of compliance deadlines proposed in the NPRM will provide the industry with a sufficient time frame within which to develop processes or methods for addressing such programming, and will provide consumers with access to accessible programming in the near future. We reiterate that the schedule of deadlines proposed in the NPRM was agreed on by the VPAAC, which includes representatives from industries that will be subject to our new rules, as well as consumer groups that have a strong interest in ensuring that our rules are implemented as quickly as possible. Based on our review of the record, we conclude that compliance deadlines of six, 12, and 18 months after Federal Register publication are reasonable in light of the varying degrees of difficulty involved in closed captioning of IP-delivered prerecorded and unedited, live or near-live, and prerecorded edited video programming. The compliance deadlines are applicable only to initial compliance with the rules. 44 Once a deadline has been reached for a particular category of programming, that content must be captioned immediately when delivered via IP, with the exception of updates to content already in a VPD's library. 45 Once the applicable deadline has been reached for a certain program, VPOs and VPDs must fulfill their responsibilities to ensure that the program has captions when delivered to end users via IP. 44 Programming will not be subject to the IP closed captioning requirements unless and until it is shown on television with captions on or after the deadlines established here. Our choice of compliance deadlines recognizes that VPOs and VPDs will need to use the time between publication of our rules in the Federal Register and the compliance deadlines to develop processes or methods of addressing such programming. Before such processes or methods are in place we do not believe it is reasonable to require them to keep track of whether such programming is shown on television with captions. This approach is consistent with the CVAA's mandate that we include “an appropriate schedule of deadlines for the provision of closed captioning.” 47 U.S.C. 613(c)(2)(B). 45 For such updated content, the captioning requirement will not be triggered for a period of two years from the date of Federal Register publication, as discussed above, and at that point we will impose a 45-day deadline from the date on which the programming is shown on television. Beginning three years from the date of the Federal Register publication, this deadline will be reduced to 30 days, and beginning four years from the date of the Federal Register publication, this deadline will be reduced to 15 days. 52. Opponents of the compliance deadlines adopted herein have not demonstrated that the deadlines would be problematic on an industry-wide basis. We find that the lengthier deadlines proposed by some commenters are not justified because of support for the proposed deadlines in the record and by the VPAAC, which demonstrates that the proposed deadlines appear to be achievable on an industry-wide basis. Further, we note that entities that find it economically 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 46 We will consider upgrades to VPD software to be new applications. If a VPD is unable to meet all of the captioning requirements for such upgrades, it may request an exemption due to economic burden, as discussed in Section III.C.1 below. 47 The same rationale for the two-year apparatus deadline applies to these VPD requirements. 48 We clarify that when a VPD seeks an economic burden exemption from the requirements discussed in this paragraph, we will consider the exemption petition with regard to the specific feature(s) and device(s) for which implementing the captions purportedly would be economically burdensome, as discussed in Section IV.B (Achievability, Purpose-Based Waivers, and Display-Only Monitor Exemption), below. 54. The CVAA also requires the Commission's regulations to “contain a definition of `near-live programming' and `edited for Internet distribution.'” In the NPRM the Commission sought comment on definitions of “live programming,” “near-live programming,” “prerecorded programming,” and “edited for Internet distribution.” We explain below how we have defined these terms. The Commission proposed to apply these definitions solely to rules applicable to IP closed captioning pursuant to the CVAA. We conclude that the definitions we adopt herein for the terms “live programming,” “near-live programming,” “prerecorded programming,” and “edited for Internet distribution” apply solely to our regulation of IP closed captioning, as explained further below. 55. Live Programming. We adopt the definition of “live programming” proposed in the NPRM. The Commission proposed to define “live programming” as video programming that is shown on television substantially simultaneously with its performance. This definition is comparable to the definition of “live programming” adopted in the recent Video Description Order, which was “programming aired substantially simultaneously with its performance,” 49 with a slight modification to clarify that in the IP closed captioning context, the performance occurs substantially simultaneously to its airing on television, not necessarily to the IP distribution. The Commission explained in the NPRM that the phrase “substantially simultaneously” contemplates that live programming may include a slight delay when it is shown on television. Some commenters express their support for the proposed definition of “live programming.” Examples of programming that may fit within the definition of “live programming” are news, sporting events, and awards shows. 49 Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, FCC 11-126, 76 FR 55585, Sept. 8, 2011 (“ Video Description Order” ). 56. We decline to adopt rules specifically addressing simulcast programming, that is, programming that is shown simultaneously on television and the Internet. Rather, live and near-live television programming that is simulcast shall be subject to the live and near-live programming compliance deadline, and prerecorded programming that is simulcast shall be subject to the prerecorded programming compliance deadlines. As we explained in the NPRM, we do not believe that the VPAAC, by mentioning simulcast programming in its definition of “live programming,” meant to encompass a “simulcast” in which prerecorded programming is shown on television and the Internet simultaneously. 50 We do not believe that our decision to apply the “live” and “near-live” deadlines to the simulcast of live and near-live programming will, as NAB claims, create a significant barrier to the distribution of live or near-live programming over the Internet. Rather, we expect that the compliance deadline of 12 months from the date of publication in the Federal Register for “live” and “near-live” programming will provide a sufficient period of time within which VPOs and VPDs can develop processes or methods to ensure the immediate closed captioning of simulcasts of live and near-live programming. We note that programming aired on television substantially simultaneously with its performance would not lose its status as “live programming” by being simulcast via IP. We disagree with NCTA's suggestion that simultaneous streaming of prerecorded programming on television and the Internet should have the same compliance schedule as live programming. NCTA has not explained why a longer deadline is necessary for the simulcast of pre-recorded programming, and the record contains no evidence justifying a longer deadline. 50 We understand that a simulcast may involve either live programming or prerecorded programming. It strains common understanding of the phrase “live programming” to think that the VPAAC intended to extend the definition of that phrase to programming that is shown on television and the Internet simultaneously. 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 that is performed and recorded less than 24 hours prior to the time it was first aired on television.” 51 The VPAAC did not agree on a single definition of “near-live programming,” with consumer group members supporting a definition of “near-live programming” as “any programming that was produced from start to finish within 12 hours of being published or exhibited on television,” and industry members supporting a definition that would reference programming that was “ substantively produced” within the 12 hour limit. See VPAAC Report at 29, 34-35. Consumer Groups, in their comments to this proceeding, now express support for 24 hours as the dividing time for this type of programming. 58. The Video Description Order defined “near-live programming” as “programming performed and recorded less than 24 hours prior to the time it was first aired.” Industry and consumer group commenters support using that definition in the current proceeding. The NPRM noted certain differences between the video description and closed captioning contexts, but on further review, we find that those differences do not justify the adoption of a different definition of “near-live programming” in the IP closed captioning context as compared to the video description context. Thus, we conclude that there is no need to adopt a significantly different definition of “near-live programming” in the IP closed captioning context than in the video description context. We make one modification to the Video Description Order' s definition to clarify that “near-live programming,” in the context of IP closed captioning, is video programming that is performed and recorded less than 24 hours prior to the time it was first aired on television. 52 We recognize that in the context of IP closed captioning, some “near-live” programming, such as a late-night talk show that is performed and recorded earlier the same day, may include some prerecorded elements, for example, a late-night talk show might include a segment that was performed and recorded more than 24 hours prior to its distribution on television. The presence of such prerecorded elements does not change the nature of the “near-live” programming. 52 We recognize that NCTA expresses its support for the Commission's proposed definition in the NPRM of “near-live programming,” which was video programming that is substantively recorded and produced within 12 hours of its distribution to television viewers. We believe that the definition from the Video Description Order is clearer, however, and would not lead to potentially subjective determinations of what constitutes near-live programming. 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. 53 We understand that rights issues may, for example, necessitate changes in music scores from the television version to the IP version of a television program, which may also necessitate changes to the captioning from one version to the other. See VPAAC Report at 30. Regardless of whether the VPO itself makes these changes or the VPD is authorized to make the changes, we find that the need for such changes justifies a longer compliance deadline for prerecorded edited video programming than for prerecorded unedited video programming. 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 54 47 U.S.C. 613(d)(3). Because the statutory provision regarding exemptions due to economic burden references only VPPs and VPOs, our rule implementing this provision also will reference VPPs and VPOs, but not VPDs. We note, however, that the exclusion of VPDs has no practical effect as we have defined VPD and VPP as having the same meaning. The Senate Committee on Commerce, Science, and Transportation encouraged the Commission, in determining whether the requirements enacted under Section 202(b) are “economically burdensome,” to consider the factors listed in pre-existing Section 713(e) of the Act, listed above. 63. We adopt the proposal in the NPRM and create a process by which VPDs and VPOs may petition the Commission on a case-by-case basis for a full or partial exemption of their IP closed captioning obligations, which the Commission may grant upon a finding that the requirements would be economically burdensome. This process is comparable to the Commission's procedures for assessing exemption requests from our television closed captioning rules prior to the amendment of Section 713(d)(3), and nearly identical to the procedures for exemptions based on economic burden that the Commission recently adopted for video description. 55 We will provide in our rules that the petitioner must support a petition for exemption with sufficient evidence to demonstrate that compliance with the requirements for closed captioning of video programming delivered via Internet protocol would be economically burdensome. The term “economically burdensome” means imposing significant difficulty or expense. In addition to the four statutory factors enumerated above, the petitioner must describe any other factors it deems relevant to the 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. 55 See 47 CFR 79.1(f), 79.3(d). See also Interpretation of Economically Burdensome Standard; Amendment of Section 79.1(f) of the Commission's Rules; Video Programming Accessibility, Order and Notice of Proposed Rulemaking, 26 FCC Rcd 14941, 14957-62, paras. 30-39 (2011) (“ Interim Standard Order and NPRM” ). 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. 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. 65. Thus, consistent with the analyses in the Interim Standard Order and the Video Description Order, we adopt the process proposed in the NPRM for case-by-case exemptions based on economic burden with a few minor modifications. 57 First, in the NPRM the Commission proposed the following language in what is now numbered new § 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 captio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-7247. Public record. Not legal advice.