Closed Captioning of Video Programming Closed Captioning Requirements for Digital Television Receivers

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Text

Federal Communications Commission

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Closed Captioning of Video Programming

Closed Captioning Requirements for Digital

Television Receivers

)

CG Docket No. 05-231

ET Docket No. 99-254

FCCOS-255

DECLARATORY RULING, ORDER, AND NOTICE OF PROPOSED RULEMAKING

Adopted: November 3, 2008

Released: November 7, 2008

Comment Date: 30 days after date of publication in the Federal Register

Reply Comment Date: 45 days after date of publication in the Federal Register

By the Commission: Commissioners Copps, Adelstein, Tate, and McDowell issuing separate statements.

INTRODUCTION

In this Declaratory Ruling, Order, and Notice of Proposed Rulemalcing we take steps to

ensure that all Americans, including persons who are deaf or hard of hearing, can enjoy video

programming. In the Declaratory Ruling, we clarify several points regarding video programming

distributors' obligations to close caption digital programming Wlder section 713 of the Communications

Act of 1934, as amended (Act), and the Commission's implementing regulations.1 We are especially

mindful of the need to clarify our rules in light of technological changes inherent in the digital television

transition for full-power broadcasting, which must be completed by February 17, 2009, by Congressional

mandate.2 In the accompanying Order, we amend our rules to provide for more efficient complaint

processes and methods for consumers to contact distributors with concerns about closed captioning.

Finally, in the attached Notice of Proposed Rulemaking, we seek comment on how the exemption in

section 79 .1 ( dX 12) of the Commission's rules should apply to digital broadcasters that multicast

onal

mandate.2 In the accompanying Order, we amend our rules to provide for more efficient complaint

processes and methods for consumers to contact distributors with concerns about closed captioning.

Finally, in the attached Notice of Proposed Rulemaking, we seek comment on how the exemption in

section 79 .1 ( dX 12) of the Commission's rules should apply to digital broadcasters that multicast. 3 We

find that these actions will ensure that the Commission's closed captioning rules are consistent with

Congress's goal that "all Americans ultimately have access to video services and programs, particularly

as video programming becomes an increasingly important part of the home, school, and workplace. "4

1 See47 U.S.C. § 613 ("Video Programming Accessibility''); 47 C.F.R. § 79.l (''Closed captioning of video

programming''). Video programming distributors generally include over-the-air broadcast television services and all

"multichannel video programming distributors" (MVPDs ), which include cable television and satellite television

services. See 47 C.F.R. § 79.l(a)(2) (defining "Video programming distributor").

2 See Digital Television and Public Safety Act of2005 ("DTV Act"), which is Title III of the Deficit Reduction Act

of2005, Pub. L. No. 109-171, 120 Stat. 4 (2006) ("ORA") (codified at41 U.S.C. §§ 3090)(14) & 337(e)). The

DTV Act established February 17, 2009, as the hard deadline for the end of analog transmissions by full-power

stations. It also created a coupon program to subsidize the purchase of digital-to-analog converter boxes.

3 See 47 C.F.R. § 79.l(d)(12) (channels producing revenues of under $3,000,000).

4 House Conference Report No. 458, 1041h Cong., 2d Sess. at 183-84 (Jan. 31, 1996) (H.R. Conf. Rep. No. 458).

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d February 17, 2009, as the hard deadline for the end of analog transmissions by full-power

stations. It also created a coupon program to subsidize the purchase of digital-to-analog converter boxes.

3 See 47 C.F.R. § 79.l(d)(12) (channels producing revenues of under $3,000,000).

4 House Conference Report No. 458, 1041h Cong., 2d Sess. at 183-84 (Jan. 31, 1996) (H.R. Conf. Rep. No. 458).

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II.

BACKGROUND

Section 713 and tile Closed Captioning Regulations

Closed captioning is an assistive technology that provides persons with hearing

disabilities access to television programs. Closed captioning displays the audio portion of a television

signal as printed words on the television screen. Because closed captioning is hidden as encoded data

transmitted within the television signal, the consumer can tum the captioning on or off. Captions may

also identify speakers, sound effects, music, and laughter.

Captioning technology began more than forty years ago when the Public Broadcasting

System initiated captions in an "open captioning format'' by transmitting text with the video on the

television screen in a manner visible to all viewers.5 In 1976, the Commission adopted rules providing

that line 21 of the vertical blanking interval (VBI) be primarily used for the transmission of closed

captioning in analog receivers. For analog television, closed captioning is hidden as encoded data

transmitted within the VBI of the television signal which, ''when decoded, provides a visual depiction of

information simultaneously being presented on the aural channel (captions).''6 As discussed infra, in

2000, the Commission adopted rules for the display of captions on digital receivers. The Commission's

rules specify technical standards for the reception and display of captioning on analog and digital

receivers.7

f the television signal which, ''when decoded, provides a visual depiction of

information simultaneously being presented on the aural channel (captions).''6 As discussed infra, in

2000, the Commission adopted rules for the display of captions on digital receivers. The Commission's

rules specify technical standards for the reception and display of captioning on analog and digital

receivers.7

The Television Decoder Circuitry Act of 1990 (TDCA}8 requires closed captioning

capability for all television receivers with screen sizes of 13 inches or larger, manufactured or sold in the

United States.9 When this legislation passed, the video programming industry and private entities

provided closed captioning of video programming selectively and on a volwtary basis.10 Although the

amount of captioning increased following the enactment of the TOCA, Congress determined that, as the

number of channels of video programming increased, "video programming through all delivery systems

should be accessible."

As part of the Teleconnnunications Act of 1996, Congress added a section entitled

"Video Programming Accessibility," to the Communications Act.12 Section 713 requires closed

captioning of video programming to ensure access for persons with hearing disabilities. Section 713 also

5 See generally Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of

the Telecommunications Act of 1996, 12 FCC Red 1044 (Jan. 17, 1997); see also Closed Captioning and Video

Description of Video Programming, Implementati.on of Section 305 of the Telecommunications Act of 1996, Video

Programming Accessibility, MM Docket No. 95-176, Report, 11 FCC Red at 19214, 19223, para. 25 (July 29,

1996).

6 47 C.F.R. § 73.682(a)(22).

7 47 C.F.R. §§ 15.119, 15.122.

8 Pub. L. No. 101-431, 104 Stat. 960 (1990)(codified at47 U.S.C. §§ 303(u), 330(b)).

9 See also Implementation of Television Decoder Circuitry Act, GEN Docket No. 91-1, Report and Order, 6 FCC

Red 2419 (Apr. 15, 1991)

ideo

Programming Accessibility, MM Docket No. 95-176, Report, 11 FCC Red at 19214, 19223, para. 25 (July 29,

1996).

6 47 C.F.R. § 73.682(a)(22).

7 47 C.F.R. §§ 15.119, 15.122.

8 Pub. L. No. 101-431, 104 Stat. 960 (1990)(codified at47 U.S.C. §§ 303(u), 330(b)).

9 See also Implementation of Television Decoder Circuitry Act, GEN Docket No. 91-1, Report and Order, 6 FCC

Red 2419 (Apr. 15, 1991).

10 See Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the

Telecommunications Act of 1996, Video Programming Accessibility, MM Docket No. 95-176, Report and Order, 13

FCC Red 3272, 3276, para. 7 (Aug. 22, 1997) (Closed Captioning Report and Order), reconsideration granted in

part, Order on Reconsideration, 13 FCC Red 19973 (Oct. 2, 1998) (Closed Captioning Reconsideration Order).

11 H.R. Report 104-204, 104th Cong., 111 Sess. at 113-14 (1995).

12 See Section 305 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 (codified at 47 U.S.C. §

613) (1996 Act).

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directs the Commission to prescribe rules and implementation schedules for captioning of video

programming. 13

In 1997, the Commission adopted rules and implementation schedules for closed

captioning that became effective on January 1, 1998.14 These rules require ''video programming

distributors"15 to provide an increasing number of hours of captioned programming over specified periods

of time. 16 The benchmarks (i.e., implementation schedules) for captioning differ, based on whether the

programming is analog or digital, Spanish or English, and whether it is pre-rule (i.e., older) or new

programming. Under the implementation schedule, effective January l, 2006, all nonexempt, new

English language programming must be captioned.17

aptioned programming over specified periods

of time. 16 The benchmarks (i.e., implementation schedules) for captioning differ, based on whether the

programming is analog or digital, Spanish or English, and whether it is pre-rule (i.e., older) or new

programming. Under the implementation schedule, effective January l, 2006, all nonexempt, new

English language programming must be captioned.17

Analog programming (whether Spanish or English) that first aired prior to January 1,

1998, is called pre-rule analog programrning.18 Digital programming (whether Spanish or English) that

first aired prior to July 1, 2002, is called pre-rule digital programming. Programming that first aired after

the noted dates is called new programming (i.e., analog or digital).19 Spanish language programming is

subject to a longer phase-in schedule than is English language programming. Specifically, the rules

require that, as of January 1, 2010, 100% of nonexempt new Spanish language programming be closed

captioned,20 and, as of January 1, 2012, and thereafter, 75% of nonexempt pre-rule Spanish language

programming be closed captioned.21 For English language programming, the rules require that, as of

January l, 2006, 100% of new nonexempt English language programming must be closed captioned,22

and, beginning January 1, 2008, 75% of all pre-rule nonexempt English language programming must be

closed captioned.23 These timeframes are the same for analog or digital programming.

13 47 U.S.C. § 613(b}{c).

14 See generally Closed Captioning Report and Order. At the time the Commission adopted these rules, it indicated

that it would subsequently review the rules to determine whether its expectations regarding closed captioning were

being met. Id., 13 FCC Red at 3387, paras. 254-57.

15 "Video programming distributor'' is defined as (I) any television broadcast station licensed by the Connnission;

14 See generally Closed Captioning Report and Order. At the time the Commission adopted these rules, it indicated

that it would subsequently review the rules to determine whether its expectations regarding closed captioning were

being met. Id., 13 FCC Red at 3387, paras. 254-57.

15 "Video programming distributor'' is defined as (I) any television broadcast station licensed by the Connnission;

(2) any multichannel video programming distnbutor (MVPD) as defined in Section 76. lOOO(e); and (3) 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. 47 C.F.R. § 79.l(a)(2). MVPD is "an entity engaged in the

business of making available for purchase, by subscribers or customers, multiple channels of video programming.

Such entities include, but are not limited to, a cable operator, a BRS/EBS [Broadband Radio Service, formerly

known as the Multipoint Distnbution Service (MDS)/Multichannel Multipoint Distnbution Service (MMDS) and

Educational Broadband Service, formally known as the Instructional Television Fixed Service (ITFS)] provider, a

direct broadcast satellite service, a television receive-only satellite program distnbutor, and a satellite master

antenna television system operator, as well as buying groups or agents of all such entities." 47 C.F.R. § 76.IOOO(e).

16 47 C.F.R. § 79.l(b).

17 47 C.F.R. § 79.I(b)(l)(iv).

18 47 C.F.R. § 79.l(a)(6).

19 47 C.F.R. § 79.l(a)(5).

20 47 C.F.R. § 79.l(b)(3)(iv).

21 47 C.F.R. § 79. l(b)(4)(ii). Currently, a video programming distributor must caption at least 1350 hours of

Spanish language video programming or all of its new nonexempt Spanish language video programming, whichever

is less, per channel per quarter. 47 C.F.R. § 79.l(b)(3)(iii).

22 See41C.F.R.§79.l(b)(l}, (b)(3}, (d), (e), (f); see also Closed Captioning Report and Order, 13 FCC Red at

3292-95, paras

R. § 79. l(b)(4)(ii). Currently, a video programming distributor must caption at least 1350 hours of

Spanish language video programming or all of its new nonexempt Spanish language video programming, whichever

is less, per channel per quarter. 47 C.F.R. § 79.l(b)(3)(iii).

22 See41C.F.R.§79.l(b)(l}, (b)(3}, (d), (e), (f); see also Closed Captioning Report and Order, 13 FCC Red at

3292-95, paras. 41-47; Closed Captioning Reconsideration Order, 13 FCC Red at 19978-79, paras. 9-10.

23 47 C.F.R. § 79.l(b}(2); Closed Captioning Report and Order, 13 FCC Red at 3301-02, paras. 61-63.

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The dates that determine whether digital programming is pre-rule or new differ from the

dates used to determine whether analog programming is pre-rule or new because, when the Commission

established the closed captioning rules in 1997, final standards for digital television (DTV) receivers did

· not yet exist, making it difficult to fonnat captions for such receivers. 24 Therefore, in 1997, the

Commission temporarily defined program material prepared for digital transmission as pre-rule until such

time as the necessary decoder standard rules had been adopted by the Commission and were effective.

In July 2000, the Commission adopted technical standards for the display of closed captions on DTV

receivers. 26 At the same time, the Commission established July 1, 2002, as the date that determines ·

whetherdigital programming constitutes new or pre-rule programming,27 and adopted the same

benchmark transition periods for new and pre-rule digital programming that exists for analog

programming.

The TDI Petition and the 2005 Closed Captioning NPRM

e display of closed captions on DTV

receivers. 26 At the same time, the Commission established July 1, 2002, as the date that determines ·

whetherdigital programming constitutes new or pre-rule programming,27 and adopted the same

benchmark transition periods for new and pre-rule digital programming that exists for analog

programming.

The TDI Petition and the 2005 Closed Captioning NPRM

On July 23, 2004, several advocacy groups filed a joint petition for rulemaking, seeking

"to establish additional enforcement mechanisms to better implement the captioning rules, and to

establish captioning quality standards to ensure high quality and reliable closed captioning."28 The TD/

Petition also requested that the Commission revise the process for submitting closed captioning

complaints and create a database of contact information for video programming distributors and

providers.29 On September 2, 2004, the Commission placed the TD! Petition on public notice.

24 Closed Captioning Report and Order, 13 FCC Red at 3300-01, para. 60; Closed Captioning Reconsideration

Order, 13 FCC Red at 19986-87, para 27.

25 Closed Captioning Report and Order, 13 FCC Red at 3300-01, para. 60.

26 Closed Caption Decoder Requirements for Digital Television Receivers, Closed Captioning and Video

Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Video

Programming Accessibility, ET Docket No. 99-254, MM Docket No. 95-176, Report and Order, 15 FCC Red 16788,

16790-91, para. S (July 31, 2000) (DTV Closed Captioning Order); 47 C.F.R. § 15.122(b) (incorporating by

reference, EIA-708-B, "Digital Television Closed Captioning," Electronics Industries Alliance (Dec. 1999) ("EIA-

708-B")); see also 41 C.F.R. § 79.1. The EIA-708 standard provides comprehensive instructions for the encoding,

delivery, and display of closed captioning information for digital television systems

(July 31, 2000) (DTV Closed Captioning Order); 47 C.F.R. § 15.122(b) (incorporating by

reference, EIA-708-B, "Digital Television Closed Captioning," Electronics Industries Alliance (Dec. 1999) ("EIA-

708-B")); see also 41 C.F.R. § 79.1. The EIA-708 standard provides comprehensive instructions for the encoding,

delivery, and display of closed captioning information for digital television systems. The standard provides for a

larger set of captioning characters than the analog captioning standard, EIA-608, but the EIA-708 also supports

transport of the analog EIA-608 captioning information for use when a digital broadcast is being viewed on an

analog receiver through a DTV converter. See Second Periodic Review of the Commission's Rules and Policies

Affecting the Conversion to Digital Television, MB Docket No. 03-15, RM 9832, Report & Order, 19 FCC Red at

18279, 18350, para. 163 (Sept 7, 2004) (DTV Second Periodic Review Report & Order).

27 DTVC/osed Captioning Order, 15 FCC Red at 16790-91, para. 5; see also 47 C.F.R. § 79.l(aX6)(ii). In the DTV

Closed Captioning Order, the Commission observed that viewers will be able to watch digital programming on

existing analog displays using a digital-to-analog converter, and alerted programming distributors that in order for

them ''to count captioned digital television programming toward their closed captioning requirements in Section

79 .1, they must also transmit captions that can be decoded by the decoder in that analog set." DTV Closed

Captioning Order, 15 FCC Red at 16809, para. 63.

28 See Telecommunications for the Deaf Inc. et al. Petition for Rulemaking, RM-11065 (July 23, 2004) (TD/

Petition). Petitioners included Telecommunications for the Deaf, Inc. (TDI), the National Association of the Deaf

(NAO), Self Help for Hard of Hearing People, Inc. (SHHH), the Association for Late Deafened Adults (ALDA), and

the Deaf and Hard of Hearing Consumer Advocacy Network (DHHCAN). The joint petitioners are collectively

referred to herein as TDI or Petitioners

11065 (July 23, 2004) (TD/

Petition). Petitioners included Telecommunications for the Deaf, Inc. (TDI), the National Association of the Deaf

(NAO), Self Help for Hard of Hearing People, Inc. (SHHH), the Association for Late Deafened Adults (ALDA), and

the Deaf and Hard of Hearing Consumer Advocacy Network (DHHCAN). The joint petitioners are collectively

referred to herein as TDI or Petitioners.

29 See generally TD/ Petition.

30 The TD/ Petition appeared on Public Notice on September 2, 2004. See Public Notice, Report No. 2670 (Sept. 2,

2004).

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10.

On July 21, 2005, the Commission released a Notice of Proposed Rulemaking granting

the TD/ Petition and initiating a proceeding to examine the Commission's closed captioning rules.

31 The

2005 Closed Captioning NPRM sought comment on a broad range of issues concerning closed captioning.

Interested parties filed more than 1600 comments, reply comments, and ex parte letters.

DECLARATORY RULING

11.

Unless otherwise exempt, all digital programming - including, but not limited to, high

definition (HD) programming - must be captioned pursuant to the applicable benchmarks for that type of

programming.33 There is no "digital exemption" to the obligation to caption digital programming.

Although a particular digital channel may be exempt from the captioning rules for other reasons pmsuant

to section 79 .1 ( d), 34 no digital channel, including an HD channel, is automatically exempt from the

captioning rules simply because it is being transmitted in digital

chmarks for that type of

programming.33 There is no "digital exemption" to the obligation to caption digital programming.

Although a particular digital channel may be exempt from the captioning rules for other reasons pmsuant

to section 79 .1 ( d), 34 no digital channel, including an HD channel, is automatically exempt from the

captioning rules simply because it is being transmitted in digital. Further, even where a digital channel is

exempt from the closed captioning rules because it is subject to a self-implementing ex~tion in section

79.l(d),35 or is otherwise exempt pursuant to the undue bmden standard in section 79.l(t), 6 the

distributor is still obligated to pass through any captioning it receives, even on rebroadcasts of programs,

but is not obligated to create new digital captions where only analog captions are provided.37 This

31 See Closed Captioning of Video Programming, Telecommunications for the Deaf. Inc., Petition for Rulemalcing,

CG Docket No. 05-231, Notice ofProposedRulemaking, 20 FCC Red 13211(July21, 2005) (2005 Closed

Captioning NPRM).

32 See Appendix E, infra.

33 See 41 C.F.R. § 79.l(b) (setting forth the captioning benchmarks for various types of programming). Under the

benchmarks, as of January 1, 2006, 100 percent of "new" nonexempt English language video programming must be

captioned. See 41 C.F.R. § 79.l(bXI)(iv). "Video programming" is programming provided by, or generally

considered comparable to programming provided by, a television broadcast station that is distributed and e:xlubited

forresidential use. See 41 C.F.R. § 79.l(a)(l). Aside from defining '<pre-rule" digital or analog programming based

on the date on which it was first exhibited, the closed captioning rules make no distinction between analog and

digital progrannning, all of which is covered under the rules. See 41 C.F.R. § 79.l(a)(6) (setting forth different

threshold dates for "pre-rule programming" depending on whether that programming is analog or digital)

Aside from defining '<pre-rule" digital or analog programming based

on the date on which it was first exhibited, the closed captioning rules make no distinction between analog and

digital progrannning, all of which is covered under the rules. See 41 C.F.R. § 79.l(a)(6) (setting forth different

threshold dates for "pre-rule programming" depending on whether that programming is analog or digital). Although

the demarcation dates between new and pre-rule progrannning should be clear from our prior decisions and our

rules, see, e.g., DTV Closed Captioning Order, 15 FCC Red at 16790-91, para. 5, and 47 C.F.R. § 79.l(a)(5), we

amend the definitions of "new programming" and ''pre-rule programming" to state expressly the applicable

demarcation dates for analog new and pre-rule programming and for digital new and pre-rule programming to

ensure complete clarity. See S U.S.C. § 553(b)(A) (exempting interpretative rules from notice and comment

requirements of the Administrative Procedure Act); see also Paralyzed Veterans of America v. D.C. Arena, L.P.,

117 F .3d 579, 588 (D.C. Cir. 1997) (court determined that Department of Justice supplemental interpretation of

certain requirements for compliance with American Disabilities Act was an interpretation that "spells out a duty

fairly encompassed within the regulation that the interpretation purports to construe," and therefore was not

"sufficiently distinct or additive to the regulation to require notice and comment").

34 47 C.F.R. § 79.l(d) (setting forth thirteen self-implementing exemptions to the closed captioning rules).

35 See, e.g., 47 C.F.R. § 79.l(d)(l2) ("Channels producing revenues of under $3,000,000. No video programming

provider shall be required to expend any money to caption any channel of video programming producing annual

gross revenues ofless than $3,000,000 during the previous calendar year other than the obligation to pass through

video programming already captioned when received pursuant to paragraph (c) of this section").

36 47 C.F.R

annels producing revenues of under $3,000,000. No video programming

provider shall be required to expend any money to caption any channel of video programming producing annual

gross revenues ofless than $3,000,000 during the previous calendar year other than the obligation to pass through

video programming already captioned when received pursuant to paragraph (c) of this section").

36 47 C.F.R. § 79.l(t) (pennitting a video programming provider, producer, or owner to petition the Commission for

an exemption from the closed captioning obligations where captioning would result in an ''undue burden").

37 See 41 C.F.R. § 79.I(c) ("Obligation to pass through captions of already captioned programs. All video

programming distributors shall deliver all programming received from the video programming owner or other

origination source containing closed captioning to receiving television households with the original closed

captioning data intact in a format that can be recovered and displayed by decoders meeting the standards of part 15

(continued ... )

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requirement ~lies "regardless of whether the distributor has already met the relevant captioning

benchmark."3 The Commission also encourages distributors that have met their closed captioning

obligations to exceed those requirements, where the obligations are not currently to caption 100 pereent of

the programming. 39

12.

Similarly, where an existing broadcaster ceases operations on its current analog channel

after the completion of the digital transition for full power television (i.e., on February 18, 2009), and

commences or continues to air programming on its main40 digital channel, that broadcaster is required to

close caption its main digital channel pmsuant to the relevant captioning benchmarks, as if there had been

no change

xisting broadcaster ceases operations on its current analog channel

after the completion of the digital transition for full power television (i.e., on February 18, 2009), and

commences or continues to air programming on its main40 digital channel, that broadcaster is required to

close caption its main digital channel pmsuant to the relevant captioning benchmarks, as if there had been

no change. The broadcaster will not be entitled to the self-implementing exemption (described below)

that pertains to channels that generated less than $3 million in revenues during the prior year. For

example, if a local broadcaster's current analog channel is channel 8, but its digital channel is channel 48

after February 17, 2009, the broadcaster may not claim that channel 48 had fewer than $3 million in

revenues in 2008, thus excusing it from captioning in 2009. Additionally, with regard to broadcasters that

are currently simulcasting their programming on their analog channel and main digital channel, they must

caption the digital channel as well as the analog channel.

13.

Further, we clarify that the "new network" exemption under section 79.l(d)(9) of the

Commission's rules does not apply to a channel that merely transitions from analog to digital. Under the

"new network" exemption, programming on a video programming network is exempt from the captioning

requirements for the first four years after it begins operation.41 This exemption was adopted because new

programming networks face significant start-up costs, and the additional costs of captioning could pose an

economic burden that might deter entry.42 In the case of an analog channel that transitions to digital, the

video programming distributor is already in operation and has presumably been captioning in compliance

with om rules. Thus, the new network start-up costs the Commission was concerned about do not arise in

the context of a transitioning station

dditional costs of captioning could pose an

economic burden that might deter entry.42 In the case of an analog channel that transitions to digital, the

video programming distributor is already in operation and has presumably been captioning in compliance

with om rules. Thus, the new network start-up costs the Commission was concerned about do not arise in

the context of a transitioning station. In this circumstance, the new network exemption does not apply

and, absent reliance on some other exemption, captioning must be provided.43 Video programming

(Continued from previous page) _________ _

of this chapter unless such programming is recaptioned or the captions are reformatted by the programming

distnl>utor"); Closed Captioning Report and Order, 13 FCC Red at 3368-69, para. 211.

38 Closed Captioning Report and Order, 13 FCC Red at 3312, para. 85.

39 See, e.g., id. at 3312, para. 84 ("We also hope that once an entity invests in the software needed to convert a

teleprompter script into captions, it will have an incentive to use this equipment for all or a significant portion of its

live programming (e.g., all its newscasts), and not just the amount of programming needed to satisfy the transition

benchmarks. Thus, additional programming may be made accessible at a faster rate.").

40 The main digital channel is the digital equivalent of the prior analog channel. We note that the main digital

channel number may differ from the prior analog channel number.

41 See41 C.F.R. § 79.l(d)(9) ("Programming on new networks. Programming on a video programming network for

the first four years after it begins operations, except that programming on a video programming network that was in

operation Jess than four ( 4) years on I anuary 1, I 998 is exempt until January I, 2002"). Commission staff bas

received complaints from consumers that some digital programming, including HD programming, is not closed

captioned

rks. Programming on a video programming network for

the first four years after it begins operations, except that programming on a video programming network that was in

operation Jess than four ( 4) years on I anuary 1, I 998 is exempt until January I, 2002"). Commission staff bas

received complaints from consumers that some digital programming, including HD programming, is not closed

captioned. In their complaints, some consumers allege that the distributor informed them that digital programming

is not subject to closed captioning. See, e.g., Comments fded by The Coalition of Organizations for Accessible

Technology (COAT) at 6-8, filed in Media Bureau Docket No. 07-91 pursuant to the Third Periodic Review of the

Commission's Rules and Policies Affecting the Conversion to Digital Television (filed Aug. 9, 2007) (COAT

Comments).

42 See Closed Captioning Report and Order, 13 FCC Red at 3346, para. 154 (Commission stated that it did not

intend for the "closed captioning requirements to inhibit new sources of video programming due to [its) interest in

fostering diversity in video programming").

43 We also note that where a licensee chooses to multicast, the multicast channels do not constitute a new network.

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distributors are reminded that failure to comply with the closed captioning rules may result in

enforcement action.

FCCOS..2SS

14.

We remind distributors that, after February 17, 2009, some consumers will continue to

use analog televisions connected to digital-to-analog converter boxes, and rely on antennas to receive

over-the-air reception

etwork.

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distributors are reminded that failure to comply with the closed captioning rules may result in

enforcement action.

FCCOS..2SS

14.

We remind distributors that, after February 17, 2009, some consumers will continue to

use analog televisions connected to digital-to-analog converter boxes, and rely on antennas to receive

over-the-air reception. The Commission's rules require that each digital-to-analog converter box

manufactured after June 30, 2002, pass available analog caption information to an attached television

receiver in a form recognizable by that receiver's built-in caption decoder circuitry.44 Because these

viewers will receive digital television programming on analog sets, in order for program distributors to

cotlllt captioned digital programming toward the closed captioning requirements of section 79.1, they

must transmit captions that can be decoded by the decoders in those analog sets. 45 As a practical matter,

this means that video programming distributors, including broadcasters and MVPDs, must continue to

transmit captions in the CEA-608 (analog) standard after February 17, 2009.46

15.

Finally, we remind MVPDs that provide customer premises equipment (CPE), such as

set-top boxes, to their subscribers, that they are responsible for enswing that this equipment transmits all

available captions to the television set, for both analog and digital formatted programs.

47 Captions must

be delivered intact and in a way that can be displayed by captioning decoders. In these circumstances,

failure of the equipment to~ through captions would cause the distributor to be in violation of the

pass-through requirement.

Further, the programming will not be considered captioned and the

distributor may be in violation of the captioning benchmark for that type of programming. 49

IV.

ORDER

Complaint Procedures

that can be displayed by captioning decoders. In these circumstances,

failure of the equipment to~ through captions would cause the distributor to be in violation of the

pass-through requirement.

Further, the programming will not be considered captioned and the

distributor may be in violation of the captioning benchmark for that type of programming. 49

IV.

ORDER

Complaint Procedures

16.

We agree with commenters asserting that the present closed captioning complaint process

can be modified to better serve the interests of consumers or video programming distributors. We

therefore adopt new complaint processes for alleged violations of the closed captioning rules, as described

below, and amend our rules accordingly.

17.

Background. Under the present rules, complaints must be filed in writing with the video

programming distributor prior to the end of the calendar quarter following the calendar quarter in which

the alleged violation has occurred. Video programming distributors must respond to the complaint no

later than 45 days after the end of the quarter in which the violation is alleged to have occurred or 45 days

after receipt of the written complaint, whichever is later.50 If a video programming distnbutor fails to

44 47 C.F.R. § 15.122(a)(2).

45 DTV Closed Captioning Order, 15 FCC Red at 16809, para. 63; DTV Second Periodic Review Report & Order,

19 FCC Red at 18350-51, paras. 163-64.

46 This is not a new requirement; the Commission clarified this issue in the 2000 DTV Closed Captioning Order.

See DTV Closed Captioning Order, 15 FCC Red at 16809, para. 63.

47 The Commission has received complaints from consumers that CPE provided by cable or satellite providers

removes captioning from some programs. See also COAT Comments at 5-6.

48 47 C.F.R. § 79.l(c).

49 See id. This conclusion necessarily follows from the pass through rule found in section 79. I ( c ). 4 7 C.F .R. §

79.l(c).

so See generally 41 C.F .R. § 79. I (g)

CC Red at 16809, para. 63.

47 The Commission has received complaints from consumers that CPE provided by cable or satellite providers

removes captioning from some programs. See also COAT Comments at 5-6.

48 47 C.F.R. § 79.l(c).

49 See id. This conclusion necessarily follows from the pass through rule found in section 79. I ( c ). 4 7 C.F .R. §

79.l(c).

so See generally 41 C.F .R. § 79. I (g). The Commission required that closed captioning complaints first be directed

to video programming distributors because this approach would "lead to quicker action to resolve a complaint than if

the complaint were filed directly with the Commission." Closed Captioning Report and Order, 13 FCC Red at

3381-83, paras. 240-43. If a consumer mistakenly sends a complaint to the wrong distributor (e.g., to a cable

company instead of a local 1V station that the cable company carries), or ifthe programming about which the

(continued ... )

16680

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FCC08-2SS

respond to a complaint, or a dispute remains after the initial attempt at resolution by the video

progrannning distributor and the complainant, the complaint may then be filed with the Connnission

within 30 days after the time allotted for the video progrannning distributor to respond."

18.

The TD/ Petition argued that, under the current rules, four months could pass before a

video programming provider is legally required to respond to a complaint, and that, in the interim, the

consumer may suffer from lack of access to the television video programming.52 As a result, TDI sought

to revise the complaint process to differentiate between complaints regarding the number of hours

captioned and complaints regarding other captioning issues, such as technical problems resulting in

missing or garbled captions.53 TOI also asked the Commission to develop and make available on its

website an optional standard captioning complaint form for consumers to use to file written complaints

with the relevant video programming distributor/programm

mplaints regarding the number of hours

captioned and complaints regarding other captioning issues, such as technical problems resulting in

missing or garbled captions.53 TOI also asked the Commission to develop and make available on its

website an optional standard captioning complaint form for consumers to use to file written complaints

with the relevant video programming distributor/programmer.54

19.

In the 2005 Closed Captioning NPRM, the Connnission sought comment on whether the

current complaint procedures should be amended to allow complainants to file directly with the

Commission, without first complaining to the video programming distributor. ss The Commission also

sought comment on whether to amend the current rules to allow for shorter complaint and response times

and, if so, what those timeframes should be.56 Finally, the Commission sought conunent on whether it

should adopt a standardized complaint form. s7

20.

Discussion. To simplify the complaint process for consumers, we will permit closed

captioning complaints to be filed with either the video programming distributor or the Connnission.58

Most conunenters support this approach, asserting that consumers often have difficulty determining

where to file complaints, and the average consumer generally cannot identify the party responsible for

captioning compliance.59 Although NAB advocates having the Commission first receive the complaints

(Continued from previous page) _________ _

consumer complains is exempt from the closed captioning rules pursuant to Section 79.l(e)(9), the distnbutor is

required to either forward the complaint to the programmer within seven days, or return the complaint within seven

days to the consumer, providing the name and address of the correct provider to whom the complaint should be sent.

See 47 C.F .R. § 79. l (g)(l )

vious page) _________ _

consumer complains is exempt from the closed captioning rules pursuant to Section 79.l(e)(9), the distnbutor is

required to either forward the complaint to the programmer within seven days, or return the complaint within seven

days to the consumer, providing the name and address of the correct provider to whom the complaint should be sent.

See 47 C.F .R. § 79. l (g)(l ). In order to avoid confusion, the Commission also determined that all complaints of

whatever nature (including complaints alleging failure to pass through) would be handled in the same fashion.

Closed Captioning Reconsideration Order, 13 FCC Red at 20025, para. 116; see also Closed Captioning Report and

Order, 13 FCC Red at 3383, para. 244.

51 Closed Captioning Report and Order, 13 FCC Red at 3382-83, para. 243; see also 41 C.F.R. § 79. l(gX4). The

rule specifies the information that the complainant and the distributor nmst provide to each other and to the

Commission, and specifies bow, if the Commission determines that a violation has occurred, appropriate penalties

may be imposed.

52 TD/ Petition at 21.

53 Id. at 22.

54 Id. at 15-16.

ss 2005 Closed Captioning NPRM, 20 FCC Red at 13222, para. 31.

56 Id.

57 Id.

58 See, e.g., 1DI Reply Comments at 15; New Jersey Division on Civil Rights Comments at 5.

59 See, e.g., Toi Reply Comments at 14; Northern Virginia Resource Center for Deaf and Hard of Hearing Persons

(NVRC) Reply Comments at 4.

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lties

may be imposed.

52 TD/ Petition at 21.

53 Id. at 22.

54 Id. at 15-16.

ss 2005 Closed Captioning NPRM, 20 FCC Red at 13222, para. 31.

56 Id.

57 Id.

58 See, e.g., 1DI Reply Comments at 15; New Jersey Division on Civil Rights Comments at 5.

59 See, e.g., Toi Reply Comments at 14; Northern Virginia Resource Center for Deaf and Hard of Hearing Persons

(NVRC) Reply Comments at 4.

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Federal Communications Commission

FCC08-2SS

and then forward them to the broadcast station or MVPD,60 the dual approach adopted here would

appropriately enhance the complaint process.

21.

In addition, commenters generally support shortening the current complaint timeframes,

although other commenters assert that programmers and distributors must have sufficient time to identify

and remedy the problem.63 We agree that captioning issues should be resolved as quickly as possible and

therefore we adopt new timelines associated with captioning complaints,~ discussed below.

22.

The Conunission also sought comment on whether consumers should be allowed to

complain to video programming distributors via e-mail, phone, or fax. 64 Some commenters supported

allowing consumers to complain to distributors in these ways.6s We conclude that given the importance

of these issues, the need to ensure that complaints accurately reflect the concerns of the complainant, and

to provide distnoutors with adequate notice of the nature of the complaint, complaints must be in

writing.66 Therefore, we will continue to require closed captioning complaints to be in writing, and filed

by e-mail, fax, or letter. Consumers may also use the Form 2000-C, attached as Appendix B, when

complaining to the Commission.67 Among other things, the Form 2000-C requests the name, address, and

60 National Association of Broadcasters (NAB) Comments at 5; but see EchoStar Reply Comments at 5 (asserting

that NAB's suggestion whereby a complaint is first filed with the Commission and then forwarded to the distributor

will likely result in .

e the Form 2000-C, attached as Appendix B, when

complaining to the Commission.67 Among other things, the Form 2000-C requests the name, address, and

60 National Association of Broadcasters (NAB) Comments at 5; but see EchoStar Reply Comments at 5 (asserting

that NAB's suggestion whereby a complaint is first filed with the Commission and then forwarded to the distributor

will likely result in .. protracted, rather than reduced, response times," and noting that its process for complaints

regarding technical aspects of captioning, in which the subscriber contacts EchoStar directly, allows EchoStar to

investigate its equipment and often address a problem in a matter of a few hours or days).

61 National Cable and Telecommunications Association (NCT A) Connnents at 9, 25-26; see also Media Captioning

Services (MCS) Comments at 10-11. For example, NCT A states that complaints should still be filed first with the

cable operators because they, along with prognunmers, are better able to deal with captioning issues. NCTA

Comments at 9, 25-26. This would not streamline the complaint process for all consumers since not everyone

subscnbes to cable. Those who do not would most likely still experience confusion regarding with whom to file a

complaint MCS suggests that complaints be filed with the distributor and the Commission simultaneously. MCS

Comments at 10-11. Simultaneous filing, however, would likely result in confusion and duplicative work. A

written closed captioning complaint should be first filed with either the distributor or the Commission, and a

consumer who complains to a distnl>utor first should wait until the required time has elapsed before complaining to

the Commission.

62 See e.g., WGBH/NCAM Comments at 19.

63 See HBO Comments at 10-11; see also EchoStar Comments at 11 and Reply Comments at 6; Caption Colorado

Comments at 6; AZN Connnents at 25-26 (AZN jointly filed comments with the parties reflected in Appendix D

ssion, and a

consumer who complains to a distnl>utor first should wait until the required time has elapsed before complaining to

the Commission.

62 See e.g., WGBH/NCAM Comments at 19.

63 See HBO Comments at 10-11; see also EchoStar Comments at 11 and Reply Comments at 6; Caption Colorado

Comments at 6; AZN Connnents at 25-26 (AZN jointly filed comments with the parties reflected in Appendix D.

For convenience, they are collectively referred to herein as AZN); The United States Telecom Association (UST A)

Comments at 9; American Cable Association (ACA) Comments at 4; Florida Association of Broadcasters (FAB)

Comments at 6.

64 See 2005 Closed Captioning NPRM, 20 FCC Red at 13222, para. 32.

65 See, e.g., Verizon Reply Connnents at 5-6; NAB Comments at 5-6; WGBH Comments at 20.

66 See 47 U.S.C. § 716. We note that this is also consistent with the Commission's rules for filing informal

complaints against common carriers under section 208 of the Communications Act. 4 7 C.F.R. § 1. 716.

67 In its Petition, TDI asked the Commission to develop an optional standard captioning complaint form. TD/

Petition at 15-16. We note that our request for comments on the complaint process occurred prior to the

Commission's adoption of the Fonn 2000-C. The Office of Management and Budget (OMB) recently approved

Form 2000-C Disability Access Complaint, for the filing of complaints pertaining to telecommunications relay

service, closed captioning, and lack of access to emergency information on television (OMB control number 3060-

0874, current version dated September 2007). While the Form 2000-C is intended for use when filing complaints

with the FCC, the form requests information necessary for processing an informal closed captioning complaint; for

this reason, consumers may wish to review the form and include the same information requested in the Form 2000-C

in a complaint they file with a distributor.

16682

r 3060-

0874, current version dated September 2007). While the Form 2000-C is intended for use when filing complaints

with the FCC, the form requests information necessary for processing an informal closed captioning complaint; for

this reason, consumers may wish to review the form and include the same information requested in the Form 2000-C

in a complaint they file with a distributor.

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Federal Communications Commission

FCC08-2SS

telephone number (if known) of the company(s) involved in the complaint. We will amend the form to

delete the requirement that closed captioning complaints must first be filed with the distributor, and to add

questions eliciting infonnation about the name and type of MVPD, if any, to whom a complainant

subscribes. Specifically, we will amend the Form 2000-C to request the name of the broadcast station

and, if applicable, the name and type of MVPD against whom the complaint is directed. These changes

will be submitted to OMB.68 Because this form is relatively new, we will closely monitor the

effectiveness of the use of the Form 2000-C for captioning complaints over the next six months.

23.

Regardless of whether the consumer files a complaint with the Commission or a video

programming distributor, the consumer must file the complaint within sixty (60) days of the captioning

problem. If the complaint is first filed with the Commission, the Commission shall promptly forward

complaints that satisfy the complaint criteria, as described herein, to the appropriate video programming

distributor.69 For a complaint forwarded by the Commission, video programming distributors must

respond to the complainant in writing within thirty (30) days of receipt of the complaint from the

Commission

complaint is first filed with the Commission, the Commission shall promptly forward

complaints that satisfy the complaint criteria, as described herein, to the appropriate video programming

distributor.69 For a complaint forwarded by the Commission, video programming distributors must

respond to the complainant in writing within thirty (30) days of receipt of the complaint from the

Commission. We believe this change in filing time periods reasonably accommodates concerns by

viewers that the current complaint process allows too much time to pass before a complaint must be

addressed and concerns by distributors that they be allowed sufficient time to address captioning

problems. The distributor must send a copy of its response to the Commission.

24.

For a complaint first filed with the video progrannning distributor, the video

programming distributor must respond in writing to the complainant within thirty (30) days after receipt

of a closed captioning complaint. 70 If a video progrannning distributor fails to respond to the complainant

within thirty (30) days, or the response does not satisfy the consumer, the complainant may file the

complaint with the Commission within thirty (30) days after the time allotted for the video programming

distributor to respond. We believe 30 days provides distributors with sufficient time to review their

records and respond to a complaint. Fwther, given that a distributor's response may require reviewing

tapes of aired programming, a shorter time frame should benefit distributors because the programming at

issue may be more readily accessible and not archived or otherwise not immediately available. If a

consumer re-files his or her complaint with the Commission (after filing with the distributor), the

Commission will forward the complaint to the distributor, and the distributOr shall respond to the

Commission and the complainant within thirty (30) days of receipt of the complaint from the

Commission.

be more readily accessible and not archived or otherwise not immediately available. If a

consumer re-files his or her complaint with the Commission (after filing with the distributor), the

Commission will forward the complaint to the distributor, and the distributOr shall respond to the

Commission and the complainant within thirty (30) days of receipt of the complaint from the

Commission.

25.

A video programming distributor receiving a complaint regarding progrannning of a

broadcast television licensee, or programming over which the video programming distributor does not

exercise editorial control, 71 must forward the complaint within seven (7) days to the appropriate party and

inform the complainant that it has forwarded the complaint. 72 The video programming distributor also

must notify the Commission that it forwarded the complaint. Similar to the time period established for

responding to complaints sent to the correct video programming distributor, the entity receiving the

forwarded complaint shall respond to the complainant within 30 days of the forwarding date of the

68 While OMB approval is pending, the FCC Form 2000-C may be used in its current form and complainants should

disregard the note contained in the current Form 2000-C indicating that they must first contact the station or video

programming distnbutor.

69 See WGBHINCAM Conunents at 19-20; see also MCS Comments at I 0-11.

70 American Society for Deaf Children (ASDC) Comments at 2; see also Vermont Association of the Deaf

Comments and MCS Comments at 11; NAB Comments at 5 and Reply Comments at 5.

71 Under the rules, there are certain circumstances in which video programming distnbutors are not required to

provide closed captioning because the video programming is by law not subject to their editorial control See 41

C.F.R. § 79.l(eX9).

72 See 41 C.F.R. § 79.l(gXI), which currently has the same 7-dayrequirement; Closed Captioning Report and

Order, 13 FCC Red at 3382, para. 242.

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71 Under the rules, there are certain circumstances in which video programming distnbutors are not required to

provide closed captioning because the video programming is by law not subject to their editorial control See 41

C.F.R. § 79.l(eX9).

72 See 41 C.F.R. § 79.l(gXI), which currently has the same 7-dayrequirement; Closed Captioning Report and

Order, 13 FCC Red at 3382, para. 242.

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Federal Communications Commission

FCC08-2SS

complaint. We note that this reflects a change to the current rule's requirement that the distributor either

retwn the complaint to the consumer or forward it to the appropriate programmer. This change is

intended to shorten and simplify the complaint process by avoiding possible consumer confusion if their

complaint is retwned to them by the distributor with no guidance as to next steps. Furthermore, because

the video programming distributor is more likely to be in a better position than the complainant to know

to whom the complaint should be directed, we believe this change will help to ensure that complainant's

concerns are more quickly addressed.

26.

Jn order to assist consumers in filing closed captioning complaints, and to expedite

further the handling of complaints, we encourage consumers to include the following information in their

filing: (1) the complainant's contact information, including name, mailing address, daytime phone

number, and e-mail address if available; (2) the name of the broadcast station and, if applicable, the name

and type ofMVPD against whom the complaint is directed; (3) the name of the television program; (4)

the date and time the closed captioning problem occurred; and (5) a description of the closed captioning

problem. We note that this requested information will mirror the information requested in the FCC Form

2000-C, referenced in paragraph 22 above, as amended. 73

nd, if applicable, the name

and type ofMVPD against whom the complaint is directed; (3) the name of the television program; (4)

the date and time the closed captioning problem occurred; and (5) a description of the closed captioning

problem. We note that this requested information will mirror the information requested in the FCC Form

2000-C, referenced in paragraph 22 above, as amended. 73

27.

Consistent with existing Commission rules, in its response to a complaint before the

Commission, a video programming distributor shall provide the Commission with sufficient records and

documentation to demonstrate compliance with the Commission's rules. 74 The Commission has

previously found that the broadcast station or MVPD has the burden of proof that it has complied with the

closed captioning rules.75 Where it appears from the video programming distributor's response to a

complaint, or from other communications with the parties, that an informal complaint has been satisfied,

the Conunission may, in its discretion, consider the matter resolved, and will so notify the complainant.

Jn all other cases, the Commission shall inform the parties of its review and disposition of the informal

complaint.76 We also note that a complaint may be referred to the Enforcement Bureau for action,

regardless of where the complaint was filed first or its initial resolution. 77

Contact Information

28.

We adopt new rules requiring video programming distributors to make their contact

information available to consumers. We find these new requirements necessary to ensure that consumers

can more easily and promptly contact the appropriate video programming distributor to report closed

captioning problems or to file complaints. Therefore, we amend the Commission's rules to require video

program distributors to make available contact information, as discussed below.

29.

Background

rmation available to consumers. We find these new requirements necessary to ensure that consumers

can more easily and promptly contact the appropriate video programming distributor to report closed

captioning problems or to file complaints. Therefore, we amend the Commission's rules to require video

program distributors to make available contact information, as discussed below.

29.

Background. The TD/ Petition requested that the Commission require video

programming distributors to post complete contact information on their websites, include it in billing

inserts and directories, update this information within seven days of any change, and provide the

73 See para. 22, supra (explaining that comumers submitting a closed captioning complaint may use the FCC Form

2000-C, and noting that we will amend the form to request information regarding the name and type ofMVPD, if

any, to whom a complainant subscribes).

74 Closed Captioning Report and Order, 13 FCC Red at 3383, para. 243; see also 41 C.F.R. § 79.l(gXS). The

Commission has noted that "good business practices will necessitate that video programming distributors maintain

records in order to ensure compliance with our rules, as well as to defend against possible consumer complaints."

Closed Captioning Report and Order, 13 FCC Red at 3383, para. 244.

15 Closed Captioning Report and Order, 13 FCC Red at 3381, para. 240.

76 See41 C.F.R. §§ 1.717 & 64.604(v)(B)(l).

77 The new or modified information requirements for section 79. l (g), as described above, are subject to the

Paperwork Reduction Act and therefore require the approval by the Office of Management and Budget.

Accordingly, these requirements will be effective upon publication in the Federal Register of a notice announcing

OMB's approval of this collection.

16684

R. §§ 1.717 & 64.604(v)(B)(l).

77 The new or modified information requirements for section 79. l (g), as described above, are subject to the

Paperwork Reduction Act and therefore require the approval by the Office of Management and Budget.

Accordingly, these requirements will be effective upon publication in the Federal Register of a notice announcing

OMB's approval of this collection.

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Federal Communications Commission

FCC08-2S5

information to the Connnission for posting on its website.78 In the 2005 Closed Captioning NPRM, the

Commission sought comment on whether distributors should be required to provide names and telephone

numbers for customer services on their websites, as welJ as in bills and telephone directories.79

Comrnenters generally support requiring video programming distributors and broadcast services to make

contact information readily available for captioning problems. 80 Individual consumers report confusion

about whom to contact and dissatisfaction with the responsiveness of the video programming

distributors.11

30.

Discussion. Given the record in this proceeding, we find that additional contact

information requirements are warranted. Specifically, we require video programming distnbutors to

make available two different kinds of contact infonnation - contact information for the receipt and

handling of immediate closed captioning concerns by consumers, and contact infonnation for written

closed captioning complaints.

31.

First, we require video programming distributors to make available, as described herein,

contact infonnation for the receipt and handling of immediate closed captioning concerns raised by

consumers (e.g., the captions suddenly disappear or become garbled). Consumers must be able to

promptly determine whom to contact if a captioning problem arises while they are watching a program

plaints.

31.

First, we require video programming distributors to make available, as described herein,

contact infonnation for the receipt and handling of immediate closed captioning concerns raised by

consumers (e.g., the captions suddenly disappear or become garbled). Consumers must be able to

promptly determine whom to contact if a captioning problem arises while they are watching a program.

To this end, programming distributors must designate a telephone number, fax number, and e-mail

address for purposes of receiving and responding immediately to any closed captioning concerns. To the

extent that a distributor has persoimel available, either on site or remotely, to address any technical

problems that may arise, consumers using this dedicated contact information must be able to reach

78 TD! Petition at 12-16.

79 2005 Closed Captioning NPRM, 20 FCC Red at 13222, para. 32.

80 See, e.g., New Jersey Division on Civil Rights Comments at 5; NVRC Reply Comments at 4; the National

Disability Rights Network (NDRN) Comments at 3; IDI Reply Comments at 15; MCS Comments at 12; Verizon

Reply Comments at 5-6; EchoStar Reply Conunents at 6; see also NAB Comments at 5~6; NAB Reply Comments

at 4-5 (it should be made "clear to consumers to which phone number and/or email address captioning complaints

should be directed" and a requirement to post specific contact information should be limited to ''those stations that

have already established Internet websites"); Ronald Vickery (Nov. 10, 2005); Jimmy Beldon (Nov. 2, 2005); C.M.

Boryslawskyj (Nov. 3, 2005); Margaret Bishop (Nov. 2, 2005); Ed Bosson (Nov. 7, 2005); George Breden (Nov. 2,

2005); Jack Cassell (Nov. 7, 2005); Marie Desrosiers (Nov. 8, 2005); Sarah Dixon (Nov. 3, 2005); Brenda Estes

(Nov. 9, 2005); Joshua Finkle (Nov. 7, 2005); Anatoliy Feygin (Nov. 8, 2005); Claudia Foy (Nov. 4, 2005); Malisa

Janes (Nov. 7, 2005); Marshall Lawrence (Nov. 17, 2005); Mary Lou Mayfield (Nov. 7, 2005); Dana Mulvany

(Nov. 10, 2005); Pauline Newton (Nov

7, 2005); George Breden (Nov. 2,

2005); Jack Cassell (Nov. 7, 2005); Marie Desrosiers (Nov. 8, 2005); Sarah Dixon (Nov. 3, 2005); Brenda Estes

(Nov. 9, 2005); Joshua Finkle (Nov. 7, 2005); Anatoliy Feygin (Nov. 8, 2005); Claudia Foy (Nov. 4, 2005); Malisa

Janes (Nov. 7, 2005); Marshall Lawrence (Nov. 17, 2005); Mary Lou Mayfield (Nov. 7, 2005); Dana Mulvany

(Nov. 10, 2005); Pauline Newton (Nov. 9, 2005); Reyes Preciado (Nov. 2, 2005); Ricky Schoenberg (Nov. 2, 2005);

Louis Schwarz (Nov. 2, 2005); and Rebecca Sneidman (Nov. 3, 2005); but see HBO Conunents at 13 (there is no

reason why "extra" contact infonnation is necessary, "since all video programming distributors maintain customer

service contact points as part of their standard operations ... [and] this information on a central FCC website would

require an enormous effort to gather and to update infonnation."); USTA Comments at 9 ("requiring video

programming distn'butors to designate specific individuals to immediately handle captioning complaints" and to

inform consumers and the Commission about personnel changes "is simply impractical and unnecessary").

81 See generally Comments of Dave Branfield (Oct. 31, 2005); Ron and Joyanne Burdett (Oct. 31, 2005); Tawny

Holmes (Nov. 29, 2005); Andrea Panella (Oct. 27, 2005); Philip Moos (Nov. 10, 2005); Wayne Scott (Aug. 3,

2005); Judith Viera (Dec 1, 2005); Dave Volz (Nov. 2, 2005); Ed Bosson (Nov. 7, 2005); KimMihan (Dec. 1,

2005); David Nelson (Nov. 10, 2005); C.M. Boryslawskyj (Nov. 3, 2005); Anatoliy Feygin (Nov. 8, 2005); Charley

Tiggs (Nov. 30, 2005); and Peggy Hlibok (Oct

urdett (Oct. 31, 2005); Tawny

Holmes (Nov. 29, 2005); Andrea Panella (Oct. 27, 2005); Philip Moos (Nov. 10, 2005); Wayne Scott (Aug. 3,

2005); Judith Viera (Dec 1, 2005); Dave Volz (Nov. 2, 2005); Ed Bosson (Nov. 7, 2005); KimMihan (Dec. 1,

2005); David Nelson (Nov. 10, 2005); C.M. Boryslawskyj (Nov. 3, 2005); Anatoliy Feygin (Nov. 8, 2005); Charley

Tiggs (Nov. 30, 2005); and Peggy Hlibok (Oct. 4, 2005); see also NVRC Reply Comments at 4 (citing consumers'

reports to them that repeated calls to stations are not answered); MCS Comments at 11 (citing consumers' reports to

them expressing frustration with resolving captioning problems and receiving no explanations as to why captions

were not present though MCS verified that they transmitted the captions); and TD! Petition Exhibit B (copies of

complaint letters and e-mails).

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Federal Communications Commission

FCC08-2SS

someone, either directly or indirectly, who can address the consumer's captioning concerns.82 We are not

requiring that distributors alter their hours of operation or the hours during which they have staffing

available; at the same time, however, where staff is available to address technical issues that may arise

during the course of transmitting programming, they also must be knowledgeable about and able to

address closed captioning concerns. As the Commission previously has stated, it is important that video

programming distributors make their organizations accessible to persons with hearing disabilities seeking

information about the entity's closed captioning or other matters, and we expect all video programming

distributors to take measmes to readily accommodate incoming calls placed through a

Telecommtmications Relay Service (TRS) operator.83 Jn situations where a distributor is not immediately

available, any calls or inquiries received, using this dedicated contact information, should be returned or

otherwise addressed within 24 hours.

oning or other matters, and we expect all video programming

distributors to take measmes to readily accommodate incoming calls placed through a

Telecommtmications Relay Service (TRS) operator.83 Jn situations where a distributor is not immediately

available, any calls or inquiries received, using this dedicated contact information, should be returned or

otherwise addressed within 24 hours.

32.

Second, we require video programming distributors to make contact information

available for the receipt and handling of written closed captioning complaints filed pursuant to section

79.l(g) of the Commission's rules that do not raise the type of immediate issues that are addressed above.

This contact information shall include the name of a person with primary responsibility for captioning

issues and who can ensure compliance with our rules, as well as the person's title or office, telephone

number, fax number, postal mailing address, and e-mail address. 84

33.

Distributors shall include the contact information required in paragraphs 31 and 32 above

on their websites,15 in telephone directories, and in billing statements (to the extent billing statements are

issued). We recognize that broadcast services are not subscription services with corresponding bills; for

this reason, distributors shall, at a minimum, place such contact information in telephone directories and

on their websites, if they have a website. 86 Distributors shall keep their contact information current, and

when there are changes they must update this information as promptly as possible, and in any event

within I 0 business days for websites, by the next billing cycle for billing statements, and by the next

publication of directories. 87

contact information in telephone directories and

on their websites, if they have a website. 86 Distributors shall keep their contact information current, and

when there are changes they must update this information as promptly as possible, and in any event

within I 0 business days for websites, by the next billing cycle for billing statements, and by the next

publication of directories. 87

34.

Jn addition, to assist consumers in locating contact information, the Commission shall

provide a list of video programming distributors' contact information (i.e., the name of the appropriate

12 If the issue is merely a matter of turning on the closed captions or making other such similar adjustments, the staff

person responding to the inquiry should take the necessary corrective actions to restore the captions immediately;

there may be occasions, however, where a captioning concern does not lend itself to immediate resolution - such as

in instances where the issue does not reside with the distributor. In such an event, the staff should refer the matter

appropriately for resolution.

83 Closed Captioning Reconsideration Order, 13 FCC Red at 20025, para. 116 and n.394. We expect staff reached

through the designated closed captioning contact information will be familiar with TRS. We will monitor the

accessibility of reaching video programming distributors through their provided contact information and will take

further action to ensure accessibility if necessary.

84 The information requirements in paragraphs 31 and 32 above are subject to the Paperwork Reduction Act and

therefore require the approval by the Office of Management and Budget. Accordingly, these requirements will be

effective upon publication in the Federal Register of a notice announcing OMB 's approval of this collection, and we

require distnl>utors to have fully complied with these requirements within 30 days thereafter.

85 This assumes the distributor has an established website

uction Act and

therefore require the approval by the Office of Management and Budget. Accordingly, these requirements will be

effective upon publication in the Federal Register of a notice announcing OMB 's approval of this collection, and we

require distnl>utors to have fully complied with these requirements within 30 days thereafter.

85 This assumes the distributor has an established website. If the distributor does not have a website, it is not

required to establish one in order to satisfy this contact information requirement.

86 These requirements are also effective 30 days after our publication in the Federal Register of a notice announcing

OMB approval of the collection requirements. See note 84, supra.

87 For example, in the event the designated contact person is no longer responsible for closed captioning issues, the

distributor must promptly update its contact information to list the contact information required above for the new

person.

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person and/or office to contact, telephone numbers, e·mail addresses) on its website.BB To establish this

listing, we will require video programming distributors and broadcast services to file the required contact

information, as outlined above, for both immediate concerns and written captioning complaints, with the

Chief of the Disability Rights Office, Consumer and Governmental Affairs Bureau, or by sending the

information to CLOSEDCAPTIONING_POC@fcc.gov, within 30 days of our publication in the Federal

posting the list on the FCC's website, Commission staff shall prepare a Public Notice advising consumers

and other interested parties how to obtain access to the contact information

, or by sending the

information to CLOSEDCAPTIONING_POC@fcc.gov, within 30 days of our publication in the Federal

posting the list on the FCC's website, Commission staff shall prepare a Public Notice advising consumers

and other interested parties how to obtain access to the contact information. This information shall also

be available by telephone inquiry to the Commission's Consumer Center.89 Distributors shall promptly

notify the Commission each time there is a change in any of this required information, and in any event

within 10 business days.90

NOTICE OF PROPOSED RULEMAKING

35.

As the nation transitions from analog to digital broadcasting, the video programming and

broadcasting landscape will change substantially. Digital broadcasting not only affords consumers the

potential for better picture and sound quality, it also allows for the more efficient use of spectrum.91 With

analog broadcasting, broadcasters use their spectrum allocation to provide programming on a single

channel. With digital broadcasting, broadcasters may use their digital allotment to multicast several

streams of programming, known as "multicasting." Because section 79.l(d)(12) of our rules exempts

from the closed captioning requirements certain programming "channels," in this Notice of Proposed

Rulemaking we seek comment on the application of that exemption to digital broadcasting.

36.

Section 79. l(d)(l2) exempts video programming channels that produced annual gross

revenues of less than $3 million during the previous calendar year from the Commission's closed

captioning obligations

from the closed captioning requirements certain programming "channels," in this Notice of Proposed

Rulemaking we seek comment on the application of that exemption to digital broadcasting.

36.

Section 79. l(d)(l2) exempts video programming channels that produced annual gross

revenues of less than $3 million during the previous calendar year from the Commission's closed

captioning obligations.

92 In 1997, when the Commission adopted the exemption for channels producing

less than $3 million in revenues, it specified that "[a]nnual gross revenues shall be calculated for each

channel individually based on revenues received in the preceding calendar year from all sources related to

the programming on that channel."93 The Commission did not determine, however, what constitutes a

.. channel" for purposes of satisfying this self-implementing exemption. As noted above, at that time

broadcasters used their spectrum allocation to provide analog programming on a single channel; with

digital broadcasting, broadcasters can multicast several streams of programming. We therefore seek

comment on whether, for purposes of section 79.l(d)(12), each programming stream on a multicast signal

BB See TOI Reply Comments at 15 (stating that in order for consumers to know where to file closed captioning

complaints, video programming distnl>utors should provide appropriate contact information on their bills and

websites, and that this infonnation should be posted on the Commission's Web site).

B9 Those phone numbers are 1-888-225-5322 (voice) and 1-888-835-5322 (ITV).

90 We note that this Commission requires telecommunications manufacturers and service providers and TRS

providers to have contact information posted on the Commission's Web site. See 47 C.F.R

riate contact information on their bills and

websites, and that this infonnation should be posted on the Commission's Web site).

B9 Those phone numbers are 1-888-225-5322 (voice) and 1-888-835-5322 (ITV).

90 We note that this Commission requires telecommunications manufacturers and service providers and TRS

providers to have contact information posted on the Commission's Web site. See 47 C.F.R. §§ 7.17(b), 64.604(c)(2)

& (c)(6)(v)(A)(3); see also Implementation of Sections 255 and 25/(A.)(2) of the Communications Act of 1934, as

enacted by the Telecommunications Act of 1996; Access to Telecommunications Service, Telecommunications

Equipment and Customer Premises Equipment by Persons with Disabilities, WT Docket No. 96-198, Report and

Order and Further Notice of Inquiry, 16 FCC Red 6417, 6469, paras. 127-28 (Sept 29, 1999).

91 See generally FCC Consumer Publication "DTV Is Coming (And Sooner Than You Think!)"

http://www.fcc.gov/cgb/consumertacts/digitaltv.html.

92 47 C.F.R. § 79.l(d)(l2) ("Channels producing revenues of under $3,000,000. No video programming provider

shall be required to expend any money to caption any channel of video programming producing annual gross

revenues of less than $3,000,000 during the previous calendar year other than the obligation to pass through video

programming already captioned when received pursuant to paragraph (c) of this section").

93 Closed Captioning Report and Order, 13 FCC Red at 3350, para. 165 (emphasis added).

16687

be required to expend any money to caption any channel of video programming producing annual gross

revenues of less than $3,000,000 during the previous calendar year other than the obligation to pass through video

programming already captioned when received pursuant to paragraph (c) of this section").

93 Closed Captioning Report and Order, 13 FCC Red at 3350, para. 165 (emphasis added).

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Federal Communications Commission

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constitutes a separate channel, or whether the broadcaster's entire operations attributable to its digital

allotment should be considered one channel.94

3 7.

The determination of whether multicast channels constitute separate channels for

pui-poses of the exemption in section 79 .1 ( d)(l2) has important consequences. If each multicast stream is

a separate channel,95 under the current rule such a channel would be exempt from the closed captioning

rules until its revenues reach the $3 million mark.96 As a result, if we were to determine that each

multicast stream is a separate channel, it is likely that there will be less captioned programming available.

We seek comment on this assumption. At the same time, however, ifthe majority of programming aired

on secondary multicast streams is already captioned, it is possible that the percentage of available

captioning will not be greatly affected, given that programming that is already captioned and delivered to

a broadcaster for airing must be aired with the captions intact

ed programming available.

We seek comment on this assumption. At the same time, however, ifthe majority of programming aired

on secondary multicast streams is already captioned, it is possible that the percentage of available

captioning will not be greatly affected, given that programming that is already captioned and delivered to

a broadcaster for airing must be aired with the captions intact. We note that, under our rules,

programming that is already captioned and delivered to a broadcaster for airing must be aired with the

captions intact, regardless of the multicast stream on which the programming airs, pursuant to the pass

through rule.97 Further, as noted in the Declaratory Ruling, the pass through rule applies regardless of

whether a distributor is exempt from the captioning rules.98 Therefore, given the pass through rule, it is

likely that much of the programming delivered to broadcasters for airing on multicast streams will already

be captioned, especially if it is programming provided by a network progrannner, even if section

79.l(d)(12) applies to each multicast channel.99 We seek comment on what percentage of programming

that airs on multicast streams, other than the main stream, is network programming, and how much of that

programming is already captioned. 100

94 At the time the Commission adopted the closed captioning rules, it declined to adopt additional or different

captioning requirements specific to DTV technology that rely on the extended capacities and potential inherent in

the digital transmission process. See id. at 3384-85, paras. 247-49.

95 We note that when the closed captioning rules were adopted, the Commission determined that compliance with

the requirements would be measmed on a channel-by-channel basis, and rejected the suggestion of those

commenters who advocated a system-wide approach, stating that such an approach would prove administratively

burdensome for video programming distnbutors. Id. at 3309, para. 79

247-49.

95 We note that when the closed captioning rules were adopted, the Commission determined that compliance with

the requirements would be measmed on a channel-by-channel basis, and rejected the suggestion of those

commenters who advocated a system-wide approach, stating that such an approach would prove administratively

burdensome for video programming distnbutors. Id. at 3309, para. 79. The Commission also determined that each

channel of a nmltiplexed signal will be obligated to meet the minimum requirements of the rules. Id. at 3309, para.

80.

96 47 C.F.R. § 79.l(d)(l2). Calculating whether the $3 million gross revenues threshold in section 79.l(d)(l2) has

been met requires a review of advertising revenues from station-controlled inventory, including network

compensation and barter transactions. See Closed Captioning Report and Order, 13 FCC Red at 3350, para. 165;

see also Closed Captioning Reconsideration Order, 13 FCC Red at 20002, paras. 66-67. The $3 million revenue

exemption was "intended to address the problems of small providers that are not in a position to devote significant

resources towards captioning (i.e., those who would find it economically burdensome)." Closed Captioning Report

and Order, 13 FCC Red at 3350, para. 164.

97 See 47 C.F.R. § 79. l(c).

98 See para. 11, supra.

99 See Closed Captioning Report and Order, 13 FCC Red at 3308, para. 79 (Commission determined that measuring

compliance with the rules on a channel-by-channel basis adequately addressed commenters' concerns regarding

captioning responsibility for broadcast stations retransmitted by MVPDs, in that broadcast stations would be

responsible for captioning in their role as video programming distributors, and MVPDs would be required to pass

through those captions intact).

100 We note that, as a practical matter, it is likely that only non-network portions of programming aired on multicast

streams would not be captioned pursuant to the $3 million threshold exemption

ansmitted by MVPDs, in that broadcast stations would be

responsible for captioning in their role as video programming distributors, and MVPDs would be required to pass

through those captions intact).

100 We note that, as a practical matter, it is likely that only non-network portions of programming aired on multicast

streams would not be captioned pursuant to the $3 million threshold exemption. Network programming must be

captioned unless otherwise exempt; for this reason, it is likely that network programming that is sent to a distributor

will already contain captions. These captions must be passed through to the consumer.

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38.

We also seek comment on whether we should conclude that individual programming

streams are not separate channels for purposes of calculating revenues for purposes of section 79 .1 ( d)(l 2).

In such circumstances, digital broadcasters would be exempt from the Commission's captioning

requirements under section 79 .1 ( d)(l2) only if their overall operations, taking into account all activities

on all "streams," received less than $3 million in revenues. We seek comment on the relative merits of

this approach and its practical effects, including how this determination might affect program diversity,

the airing of locally-originated programming, or the airing of other kinds of programming that may afford

little or no economic return. We also seek connnent on whether this approach may result in an increase in

the number of petitions for exemption from the closed captioning requirements under the "undue burden"

standard set forth in section 79.l(f).101

39.

Finally, we seek comment on whether we should revise the exemption as it applies to

multicast streams to, for example, change the $3 million threshold for the multicast progrannning streams

other than the "main" stream or adopt a new non-revenue approach

er of petitions for exemption from the closed captioning requirements under the "undue burden"

standard set forth in section 79.l(f).101

39.

Finally, we seek comment on whether we should revise the exemption as it applies to

multicast streams to, for example, change the $3 million threshold for the multicast progrannning streams

other than the "main" stream or adopt a new non-revenue approach. Specifically, we seek comment on

whether the $3 million revenue amount is a reasonable threshold for determining if secondary multicast

streams should be exempt from the closed captioning requirements, or whether, given the general natme

of the programming on such channels, a smaller figure is appropriate and, if so, what that amount should

be.

40.

We also seek comment on whether it is appropriate to adopt something other than a fixed

revenue threshold for determining whether secondary multicast streams must be captioned. For example,

we seek comment on whether captioning requirements should be tied to a formula that considers the

number of programming streams being offered (or some other variable). Such an approach might be

similar to that used for determining a broadcaster's children's television programming requirements. In

the context of children's television programming, the Commission sought comment on the continued

application of our children's television requirements in light of the transition to digital television and the

increased programming opportunities that are now available to broadcasters.102 The Commission

ultimately adopted rules requiring that a multicast broadcaster's core programming obligation increases in

proportion to the amount of free programming being offered.103 We seek comment on similar alternatives

for applying captioning requirements to multicast program streams.

VI.

CONCLUSION

the

increased programming opportunities that are now available to broadcasters.102 The Commission

ultimately adopted rules requiring that a multicast broadcaster's core programming obligation increases in

proportion to the amount of free programming being offered.103 We seek comment on similar alternatives

for applying captioning requirements to multicast program streams.

VI.

CONCLUSION

41.

As we prepare for the completion of the full-power broadcast digital television transition

on February 17, 2009, it is critical that video programming continue to be accessible to individuals who

IOI

See 41 C.F.R. § 7 .l(t).

102 See Children's Television Obligations of Digital Television Broadcasters, MM Docket 00-167, Notice of

Proposed Rulemaking, 15 FCC Red 22946 (Oct. 5, 2000) (Children's Digital Television NPRM); see also Children's

Television Obligations of Digital Broadcasters, MM Docket 00-167, Report and Order and Further Notice of

Proposed Rulemaking, 19 FCC Red 22943 (Nov. 23, 2004) (Children's Digital Television Report and Order).

103 Pursuant to the Commission's rules pertaining to children's programming on digital stations, in addition to the

existing three hours per week core programming on their "main program stream," DTV broadcasters that choose to

multicast must increase their core children's programming in proportion to the additional hours of free programming

offered on multicast channels - up to an additional three hours per week for each 24-hour free multicast program

stream. The guidelines adopted in 2004 also permit digital broadcasters to choose to air some or all of the additional

core programming on either the main stream or a multicast stream, as long as the multicast stream receives MVPD

carriage comparable to the stream that generated the additional core programming obligation. See Children's Digital

Television Report and Order

ree multicast program

stream. The guidelines adopted in 2004 also permit digital broadcasters to choose to air some or all of the additional

core programming on either the main stream or a multicast stream, as long as the multicast stream receives MVPD

carriage comparable to the stream that generated the additional core programming obligation. See Children's Digital

Television Report and Order. On reconsideration, the Commission declined to alter the new children's core

programming "multicasting" rule adopted in the Children's Digital Television Report and Order, but clarified the

way in which repeats of core programs will be counted under the rule adopted in 2004. See Children's Television

Obligations Of Digital Television Broadcasters, MM Docket 00-167, Second Order on Reconsideration and Second

Report and Order, 21 FCC Red 11065 (Sept. 29, 2006) (Children's Digital Television Second Reconsideration

Order).

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Federal Communications Commission

FCC08-2SS

are deaf or hard of hearing. To this end, in the Declaratory Ruling we clarify that transitioning from

analog to digital does not, in itself, qualify an entity for the new network exemption from the closed

captioning requirements. We also clarify that, wlless otherwise exempt from the closed captioning rules,

digital programming must be captioned pursuant to the applicable benchmarks for that type of

programming. Specifically, 100 percent of new, non-exempt digital English language video

programming must be captioned. We also remind distributors that, in order for captioned programming to

count toward the distributors' captioning benchmarks, they must transmit captions that can be decoded by

analog television sets. We remind MVPDs that provide customer premises equipment (CPE), such as set-

top boxes, to their subscribers, that they are responsible for ensuring that this equipment transmits all

available captions to the television set, for both analog and digital fonnatted programs.

oward the distributors' captioning benchmarks, they must transmit captions that can be decoded by

analog television sets. We remind MVPDs that provide customer premises equipment (CPE), such as set-

top boxes, to their subscribers, that they are responsible for ensuring that this equipment transmits all

available captions to the television set, for both analog and digital fonnatted programs.

42.

In addition, in the Order we amend our rules to provide for more efficient complaint

processes and methods for consumers to contact distributors with concerns about closed captioning.

Together, these actions should further ensure that all Americans have access to video services and

programs, consistent with Congress's mandate in Section 713 of the Act. In the Notice of Proposed

Rulemaldng, we seek comment on the application of the exemption set forth in section 79 .1 ( d)(l 2) of our

rules to digital multicast channels, in a manner that will serve the public interest by promoting both the

availability of captioning and greater diversity in programming.

VD.

PROCEDURAL MAITERS

43.

Comments and Reply Comments. Pursuant to sections 1.415 and 1.419 of the

Commission's rules,104 interested parties may file comments and reply comments on or before the dates

indicated on the first page of this document. When filing comments, please reference CG Docket No. 05-

231. Comments may be filed using: (I) the Commission's Electronic Comment Filing System (ECFS),

ROCEDURAL MAITERS

43.

Comments and Reply Comments. Pursuant to sections 1.415 and 1.419 of the

Commission's rules,104 interested parties may file comments and reply comments on or before the dates

indicated on the first page of this document. When filing comments, please reference CG Docket No. 05-

231. Comments may be filed using: (I) the Commission's Electronic Comment Filing System (ECFS),

(2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.105 For additional

information on this proceeding, please contact Amelia Brown in the Consumer and Governmental Affairs

Bureau, at (202) 418-2799.

104

•

Electronic Filers: Comments may be filed electronically using the Internet by accessing the

ECFS: http://www.fcc.gov/cgb/ecfs/, or the Federal eRulemaking Portal:

http://www.regulations.gov. Filers should follow the instructions provided on the relevant

Web site for submitting comments.

•

For ECFS filers, in completing the transmittal screen, filers should include their full

name, U.S. Postal Service mailing address, and the applicable docket number, CG

Docket No. 05-231. Parties also may submit an electronic comment by Internet e-mail.

To get filing instructions, filers should send an e-mail to ecfs@fcc.gov, and include the

following words in the body of the message, "get form." A sample form and instructions

will be sent in response.

•

Paper Filers: Parties who choose to file by paper must file an original and four copies of each

filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier,

or by first-class or overnight U.S. Postal Service mail (although we continue to experience

delays in receiving U.S. Postal Service mail). All filings must be addressed to the

Commission's Secretary, Office of the Secretary, Federal Communications Commission.

•

The Commission's contractor will receive hand-delivered or messenger-delivered paper

filings for the Commission's Secretary at 236 Massachusetts Avenue, NE, Suite 110,

Washington, DC 20002

(although we continue to experience

delays in receiving U.S. Postal Service mail). All filings must be addressed to the

Commission's Secretary, Office of the Secretary, Federal Communications Commission.

•

The Commission's contractor will receive hand-delivered or messenger-delivered paper

filings for the Commission's Secretary at 236 Massachusetts Avenue, NE, Suite 110,

Washington, DC 20002. The filing hours at this location are 8:00 a.m. to 7:00 p.m. All

47 C.F.R. §§ 1.415, 1.419.

105 See Electronic Filing of Documents in Rulemalcing Proceedings, GC Docket No. 97-113, Report and Order, 13

FCC Red 11322, 11326, para. 8 (Apr. 6, 1998).

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Federal Communications Commission

FCC08-2SS

hand deliveries must be held together with rubber bands or fasteners. Any envelopes

must be disposed of before entering the building.

•

Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority

Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

•

U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th

Street, SW, Washington, DC 20554.

44.

Persons with Disabilities: To request materials in accessible formats for people with

disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call

the Conswner and Governmental Affairs Bureau at 202-418-0530 (voice) or 202-418-0432 (ITY). This

Declaratory Ruling, Order, and Notice of Proposed Rulemaki.ng also can be downloaded in Word and

Portable Document Formats (PDF) at http://www.fcc.gov/cgb/dro/caption.html.

45.

We encourage all parties filing comments and reply comments to include the name of the

filing party and the date of the filing on each page of their comments and reply comments. We further

encourage that parties in their comments track the organi7.ation set forth in this NPRM in order to

facilitate our internal review process

ument Formats (PDF) at http://www.fcc.gov/cgb/dro/caption.html.

45.

We encourage all parties filing comments and reply comments to include the name of the

filing party and the date of the filing on each page of their comments and reply comments. We further

encourage that parties in their comments track the organi7.ation set forth in this NPRM in order to

facilitate our internal review process. Comments and reply comments otherwise must comply with

section 1.49 and all other applicable sections of the Commission's rules.106

46.

Ex Parte Rules. This matter shall be treated as a "permit-but-disclose" proceeding in

accordance with the Commission's ex parte ru)es.107 Persons making oral ex parte presentations are

reminded that memoranda summarizing the presentations must contain summaries of the substance of the

presentations and not merely a listing of the subjects discussed. More than a one or two sentence

description of the views and arguments presented is generally required.108 Other requirements pertaining

to oral and written presentations are set forth in section l. l 206(b) of the Commission's rules.

4 7.

Regulatory Flexibility Certifications. As required by the Regulatory Flexibility Act of

1980 (RF A), 109 the Commission has prepared a Final Regulatory Flexibility Certification in which it

concludes that, wider the terms of the RF A, there is no significant economic impact on small entities of

the policies and rules addressed in this document. The certification is set forth in Appendix C.

48.

As required by the RF A,

110 the Commission also has prepared an Initial Regulatory

Flexibility Certification of the possible significant economic impact on smaU entities of the policies and

rules addressed in this document. The certification is set forth in Appendix D.

49.

Paperwork Reduction Act

olicies and rules addressed in this document. The certification is set forth in Appendix C.

48.

As required by the RF A,

110 the Commission also has prepared an Initial Regulatory

Flexibility Certification of the possible significant economic impact on smaU entities of the policies and

rules addressed in this document. The certification is set forth in Appendix D.

49.

Paperwork Reduction Act. The Order adopts new or modified information collection

requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13.111 It will be submitted

to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB,

the general public, and other Federal agencies are invited to comment on the new or modified information

collection requirements contained in this proceeding. In addition, we note that, pursuant to the Small

Business Paperwork Relief Act of 2002, Public Law I 07-198, 112 we previously sought comment on how

the Commission might "further reduce the information collection burden for small business concerns with

fewer than 25 employees." In this document, we have assessed the effects ofrequiring that video

106 See 47 C.F.R. § 1.49.

107 47 C.F.R. §§ 1.200 et seq.

108 See 47 C.F.R. § 1.1206(b)(2).

109 ... .,ee S U.S.C. § 604.

nos ee 5 U.S.C. § 603.

111

44 .s.c. §§ 3501-3520.

112

44 .S.C. § 3506(c)(4).

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Federal Communications Commission

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programming distributors provide contact infonnation on their websites (if they have a website) and in

bills and phone directories so that consumers can more easily complain about closed captioning concerns.

We have also assessed the effects of providing this information to the FCC for posting on the FCC's

website. We have also considered the impact of requiring that distributors forward complaints to the

appropriate entity for response, where applicable, and notifying the FCC and the complainant that the

complaint has been forwarded

umers can more easily complain about closed captioning concerns.

We have also assessed the effects of providing this information to the FCC for posting on the FCC's

website. We have also considered the impact of requiring that distributors forward complaints to the

appropriate entity for response, where applicable, and notifying the FCC and the complainant that the

complaint has been forwarded. We find that none of these requirements will pose a substantial burden for

businesses with fewer than 25 employees.

50.

Congressional Review Act. The Commission will send a copy of this Declaratory

Ruling, Order, and Notice of Proposed Rulemaking in a report to be sent to Congress and the Government

Accountability Office pursuant to the Congressional Review Act. 113

VIIl.

ORDERING CLAUSES

51.

Accordingly, IT IS ORDERED that, pursuant to sections 4(i), 303(r) and 713 of the

Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r) and 613, this Declaratory Ruling,

Order, and Notice of Proposed Rulemaking IS ADOPTED and the Commission's Rules ARE HEREBY

AMENDED as set forth in Appendix A.

52.

IT IS FURTHER ORDERED that the Declaratory Ruling and Order SHALL BE

EFFECTIVE 30 days after publication in the Federal Register, except with regard to the information

collection requirements contained in new rule section 79 .1 (i) and section 79 .1 (g), which will become

effective upon publication in the Federal Register of notice of approval by the Office of Management and

Budget of the information collections, and, with respect to section 79. l(i), with which distributors must

comply within 30 days thereafter.

53.

IT IS FURTHER ORDERED that the Commission's Consumer and Governmental

Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Declaratory Ruling, Order,

and Notice of Proposed Rulemaking, including the Final and Initial Regulatory Flexibility Analyses

(found in Appendices C and D hereto), to the Chief Counsel for Advocacy of the Small Business

Administration.

reafter.

53.

IT IS FURTHER ORDERED that the Commission's Consumer and Governmental

Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Declaratory Ruling, Order,

and Notice of Proposed Rulemaking, including the Final and Initial Regulatory Flexibility Analyses

(found in Appendices C and D hereto), to the Chief Counsel for Advocacy of the Small Business

Administration.

54.

To request materials in accessible formats (such as braille, large print, electronic files, or

audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau

at (202) 418-0530 (voice) or (202) 418-0432 (TTY). This Declaratory Ruling, Order, and Notice of

Proposed Rulemaking can also be downloaded in Word and Portable Document Formats (PDF) at

ht1p://www.fcc.gov/cgb/dro/caption.html.

113 See 5 U.S.C. § 80l(a)(l)(A).

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

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APPENDIX A

Revised Rules

Part 79 of Title 47 of the Code of Federal Regulations is amended as follows:

PART 79-CLOSED CAPTIONING OF VIDEO PROGRAMMING

The authority citation for Part 79 continues to read as follows:

Authority: 47 U.S.C. 613.

Section 79. l(a) is amended by revising paragraphs (5), (6Xi), and (6)(ii) to read as follows:

(5) New programming.

(i) Analog video programming that is first published or exhibited on or after January l, 1998.

(ii) Digital video programming that is first published or exhibited on or after July 1, 2002.

( 6) Pre-rule programming.

(i) Analog video programming that was first published or exhibited before January I, 1998.

(ii) Digital video programming that was first published or exhibited before July I, 2002.

Section 79. l (g) is amended to read as follows:

exhibited on or after January l, 1998.

(ii) Digital video programming that is first published or exhibited on or after July 1, 2002.

( 6) Pre-rule programming.

(i) Analog video programming that was first published or exhibited before January I, 1998.

(ii) Digital video programming that was first published or exhibited before July I, 2002.

Section 79. l (g) is amended to read as follows:

(g) Complaint procedures.

(1) Complaints concerning an alleged violation of the closed captioning requirements of this section shall

be filed with the Commission or with the video programming distributor responsible for delivery and

exhibition of the video programming within sixty (60) days of the problem with captioning. A complaint

must be in writing, must state with specificity the alleged Commission rule violated and must include

some evidence of the alleged rule violation.

(2) Complaints filed first with the Commission will be forwarded to the appropriate video programming

distributor. The video programming distributor must respond in writing to the Commission and the

complainant within 30 days of the receipt of the complaint from the Commission.

(3) Complaints sent to a video programming distributor regarding programming by a television broadcast

station or other programming for which the video programming distributor is exempt from closed

captioning responsibility pursuant to paragraph ( e )(9) of this section, shall be forwarded by the video

programming distributor within seven (7) days of receipt to the entity responsible for closed captioning of

the programming at issue. The video programming distributor must also notify the complainant and the

Commission that it has forwarded the complaint. Entities receiving forwarded complaints must respond

in writing to the complainant within 30 days of the forwarding date of the complaint

programming distributor within seven (7) days of receipt to the entity responsible for closed captioning of

the programming at issue. The video programming distributor must also notify the complainant and the

Commission that it has forwarded the complaint. Entities receiving forwarded complaints must respond

in writing to the complainant within 30 days of the forwarding date of the complaint.

( 4) If a complaint is first filed with the video programming distributor, the video programming distributor

must respond in writing to the complainant within thirty (30) days after receipt of a closed captioning

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complaint. If a video programming distributor fails to respond to the complainant within thirty (30) days,

or the response does not satisfy the consumer, the complainant may file the complaint with the

Commission within thirty (30) days after the time allotted for the video programming distributor to

respond. If a consumer re-files the complaint with the Commission (after filing with the distributor), the

Commission will forward the complaint to the distributor, and the distributor shall respond to the

Commission and the complainant within thirty (30) days of receipt of the complaint from the

Commission.

(5) In response to a complaint, a video programming distributor is obligated to provide the Commission

with sufficient records and documentation to demonstrate that it is in compliance with the Commission's

rules.

(6) ***

(7) ***

(8) ***

Section 79. l(i) is added to read as follows:

Commission and the complainant within thirty (30) days of receipt of the complaint from the

Commission.

(5) In response to a complaint, a video programming distributor is obligated to provide the Commission

with sufficient records and documentation to demonstrate that it is in compliance with the Commission's

rules.

(6) ***

(7) ***

(8) ***

Section 79. l(i) is added to read as follows:

(i) Contact information.

(1) Video programming distributors shall make available contact information for the receipt and

handling of immediate closed captioning concerns raised by consumers while they are watching a

program. Programming distributors must designate a telephone number, fax number, and e-mail address

for purposes of receiving and responding immediately to any closed captioning concerns. Video

programming distributors should ensure that any staff reachable through this contact information has the

capability to immediately respond to and address consumers' concerns. To the extent that a distributor

has personnel available, either on site or remotely, to address any technical problems that may arise,

consumers using this dedicated contact information must be able to reach someone, either directly or

indirectly, who can address the consumer's captioning concerns. This provision does not require that

distributors alter their hours of operation or the hours during which they have staffing available; at the

same time, however, where staff is available to address technical issues that may arise during the course

of transmitting programming, they also must be knowledgeable about and be able to address closed

captioning concerns. In situations where a distributor is not immediately available, any calls or inquiries

received, using this dedicated contact information, should be returned or otherwise addressed within 24

hours

e staff is available to address technical issues that may arise during the course

of transmitting programming, they also must be knowledgeable about and be able to address closed

captioning concerns. In situations where a distributor is not immediately available, any calls or inquiries

received, using this dedicated contact information, should be returned or otherwise addressed within 24

hours. In those situations where the captioning problem does not reside with the distributor, the staff

person receiving the inquiry should refer the matter appropriately for resolution.

(2) Video programming distributors shall make contact information available for the receipt and handling

of written closed captioning complaints that do not raise the type of immediate issues that are addressed

in subsection (1) of this section. The contact information required for written complaints shall include the

name of a person with primary responsibility for captioning issues and who can ensure compliance with

our rules. In addition, this contact information shall include the person's title or office, telephone number,

fax number, postal mailing address, and e-mail address. Distributors shall include this information on

their websites (if they have a website), in telephone directories, and in billing statements (to the extent the

distributor issues billing statements). Distributors shall keep this information current and update it within

IO business days for websites, by the next billing cycle for billing statements, and by the next publication

of directories.

. Distributors shall include this information on

their websites (if they have a website), in telephone directories, and in billing statements (to the extent the

distributor issues billing statements). Distributors shall keep this information current and update it within

IO business days for websites, by the next billing cycle for billing statements, and by the next publication

of directories.

(3) Video programming distributors shall file the contact information described in this section with the

Chief of the Disability Rights Office, Consumer and Governmental Affairs Bureau, or by sending the

information to CLOSEDCAPTIONING_POC@fcc.gov. After compiling and posting the list on the

FCC' s website, Commission staff shall prepare a Public Notice advising consumers and other interested

parties how to obtain access to the contact information. This information shall also be available by

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FCC 08-255

telephone inquiry to the Commission's Consumer Center. Distributors shall notify the Commission each

time there is a change in any of this required information within I 0 business days.

*****

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Federal Communications Commission

APPENDIXB

Form 2000C - Informal Complaint Form

Approved by OMB

3060-0874

Estimated time per response: 30 minutes

September 2007

Form 2000C - Disability Access Complaint

Consumer's lnfonnation:

First Name:

Last Name: -----------~

FCC08-2SS

Company Name: ____________________________ _

(Complete only if you are filing this complaint on behalf of a company or an organization.)

Street Address or Post Office Box Number: -----------------

City:

State:_ Zip Code: __ _

Telephone Number (Residential or Business): L__) __ -

Ext:

E-mail Address: _________________________ _

Are you filing information on behalf of another party, such as client, parent, spouse or roommate?

_Yes _No If yes, complete items a through g.

a. Your relationship with the party:----------------

b. The party's first name:---------------

er: -----------------

City:

State:_ Zip Code: __ _

Telephone Number (Residential or Business): L__) __ -

Ext:

E-mail Address: _________________________ _

Are you filing information on behalf of another party, such as client, parent, spouse or roommate?

_Yes _No If yes, complete items a through g.

a. Your relationship with the party:----------------

b. The party's first name:---------------

c. The party's last name:---------------

d. The party's daytime phone number: L_) __ -

Ext: ___ _

e. The party's street address or post office box number: --------------

f. City

State:_ Zip Code:-------

g. E-mail address:--------------

h. Fax number: ______________ _

IMPORTANT: Please indicate the preferred format or method of response to the complaint by the

Commission and defendant: _Letter_ Facsimile (fax)_ Telephone Voice_ TRS (designate

fonn ofTRS and appropriate contact information)

TIY

Internet E-mail_ ASCil Text_ Audio-Cassette Recording_ Braille

* * ANSWER EACH QUESTION THAT APPLIES TO YOUR SPECIFIC COMPLAINT * •

1. Check one box for your type of complaint:

_Telecommunications Relay Service (TRS)

(i.e., TTY-based, IP Relay, CapTel, IP CapTel, Speech-to-Speech, Video Relay Service (YRS))

Accessibility of emergency information on television

_Closed Captioning (absence, quality or pass through High Definition (HD) programs)

NOTE: If your complaint is about closed captioning only, you must first contact the station or video

programming distributor. For additional information, see

http://www.fcc.gov/cgb/consumerfacts/closedcaption.html.

_Wireless telephone equipment or service {includes hearing aid compatibility and other

accessibility issues)

Wireline telephone equipment or service (includes hearing aid compatibility and other

accessibility issues)

16696

ng only, you must first contact the station or video

programming distributor. For additional information, see

http://www.fcc.gov/cgb/consumerfacts/closedcaption.html.

_Wireless telephone equipment or service {includes hearing aid compatibility and other

accessibility issues)

Wireline telephone equipment or service (includes hearing aid compatibility and other

accessibility issues)

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2. Provide the name, address and telephone number (if known) of the company(s) involved in your

complaint:

Name: ----------------------------

City:

State: __ Zip Code:--------

Telephone number: L._) __ -__ _

3. If your complaint is about accessibility of telecommunications services or equipment, provide the make

and model number of the equipment or device that this complaint is about:

4. If your complaint is about closed captioning or emergency information on television,

provide the date (mm/dd/yyyy) _/_I

I and time

and any details of when the event or action you are complaining about occurred:

5. If your complaint is about access to emergency infonnation on television, provide the following

information:

a. Television station call sign (e.g., "WZUE-TV''): -------

b. Station channel (e.g., "13"): _____ _

c. Station location: City

State:

d. Date(s) and time(s) of emergency:_/_/

I and time

e. Detailed description of the emergency (i.e., flood, hurricane, tornado, etc., as well as the areas in which

the emergency occurred): _____________________ _

6. If your complaint is about closed captioning, provide the following:

a. Station call sign (e.g., "KDID," "WZUF," "KDilJ-FM," "WZUE-TV"): ______ _

b. Station frequency (e.g., "1020" or "88.5''):

or channel (e.g., "13''): ------

c. Station location: City

State:

d. Name ofprogram(s) involved: ---------------------

Note: If your complaint is about closed captioning only, you must first contact the station or video

programming distributor

g, provide the following:

a. Station call sign (e.g., "KDID," "WZUF," "KDilJ-FM," "WZUE-TV"): ______ _

b. Station frequency (e.g., "1020" or "88.5''):

or channel (e.g., "13''): ------

c. Station location: City

State:

d. Name ofprogram(s) involved: ---------------------

Note: If your complaint is about closed captioning only, you must first contact the station or video

programming distributor. For additional information, see

http://www.fcc.gov/cgb/consumerfacts/closedcaption.html .

7. Briefly describe your complaint and include the resolution you are seeking. If applicable, provide a full

description of the telecommunications equipment or customer premises equipment (CPE) and/or the

telecommunications service about which the complaint is made, and the date or dates on which the

complainant either purchased, acquired or used, or attempted to purchase, acquire or use the

telecommunications equipment, CPE or telecommunications service about which the complaint is being

made.

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FCC08-lSS

You may submit this form over the futemet at http://www.fcc.gov/cgb/complaints.html, by e-mail to

fccinfo@fcc.gov, by fax to 1-866-418-0232, or by postal mail to:

Federal Communications Commission

Consumer & Governmental Affairs Bureau

Consumer Complaints

445 12th Street, SW

Washington, D.C. 20554

fu addition, you may submit your complaint over the telephone by calling 1-888-CALL-FCC or 1-888-

TELL-FCC (ITY). If\ you choose to submit your complaint over the telephone, an FCC customer service

representative will fill out an electronic version of the form for you during your conversation. If you have

any questions, feel free to contact the FCC at 1-888-CALL-FCC or 1-888-TELL-FCC (TIY).

FCC NOTICE REQUIRED BY THE PAPERWORK REDUCTION ACT AND THE PRIVACY ACT

The Federal Communications Commission iB authorized under the Communfcations Ad of 1934, as amended, to collect the personal information that

request in ttis fonn

ctronic version of the form for you during your conversation. If you have

any questions, feel free to contact the FCC at 1-888-CALL-FCC or 1-888-TELL-FCC (TIY).

FCC NOTICE REQUIRED BY THE PAPERWORK REDUCTION ACT AND THE PRIVACY ACT

The Federal Communications Commission iB authorized under the Communfcations Ad of 1934, as amended, to collect the personal information that

request in ttis fonn. This form is used for axnplaints that inwlve disablHty access. The public reporting for this collection of information is estimafad

to average 30 minutes per response, Including the time for reviewing inslrudlons, searching existing data sources, gathering and maintaining the

required data, and completing and l9Yiewing the collaction of infonnation. if you have any commenlB on this burden astimata, Of how -

can impnwe

the collection and reduce the burden ii causes you, please write to the Federal Communications Commission, OMO-PERM, PaperM>lk Reduction

Project (3060-0874), Waehington, DC 20554. We wil also aa:ept your commants nigarding the Paperwork Raduclion Ad aspaclB of ttis collection via

the Internet if you sand them to PRA@fec.gov. PLEASE DO NOT SEND YOUR COMPLETED FORMS TO THIS ADDRESS. Ramamber - You are not

required to respond to a collection of Information sponsored by the Federal govanvnent, and the government may not conduct Of sponsor

this collection, unless It displays a ammtly valid OMB control number or if- faH to provide you with this notice. This c:ollacllon has bean assigned an

OMB control number of 3060 - 0874. In addition, the information that consumers provide when filling out FCC Form 2000 is COll8Ald by the system of

l8CDltls nolk:e, FCCICGB-1, Informal Complaints and inquiries Fila (Broadcast, Common Carrier, and Wireless Telecommunlc:ations Bureau Radio

SeMces). The Commilllion is authorized to request this Information from consumers under 47 U.S.C. 206, 208, 301, 303, 309(a), 312, 382. 384, 388,

507, and 51; and 47 CFR 1.711 et seq

umers provide when filling out FCC Form 2000 is COll8Ald by the system of

l8CDltls nolk:e, FCCICGB-1, Informal Complaints and inquiries Fila (Broadcast, Common Carrier, and Wireless Telecommunlc:ations Bureau Radio

SeMces). The Commilllion is authorized to request this Information from consumers under 47 U.S.C. 206, 208, 301, 303, 309(a), 312, 382. 384, 388,

507, and 51; and 47 CFR 1.711 et seq. Under this system of records notice, FCCICGB-1, the FCC maydlsclola information thatconsumens provide

as follows: when a record in this system involves a complaint against a company, the complaint is forwarded to the defendant who must. within a

piesalbed time frame, either satisfy the axnplaint or explain to the Commission and the complainant its failure to do so; where there is an indication of

a violation or potential violation of a statute. regulation, rule, or order, records from this system may be referred to the appropriate Federal, state, or

local agency responsible for investigating or prosecuting a violation or for enforcing or implementing the statute. rule, regulation, or order; a record from

this system may be <lsclosad to a Federal agency, In response to its request, in connection with the hiring or retention of an employee. Iha issuance of

a security deawlce, the reporting of an Investigation of an em~. the letting of a conlracl. or the Issuance of a license, grant or other benefit; a

record on an individual in this Bystam of records may be disclosed, where pertinent, in any legal proceeding to which the CommiaaiOn is a party before

a court or administrative body; a record from ttis system of records may be disclosed to Iha Department of Justice or in a proceading before a court or

adjudicative body when: (a) the United States. the Commission, a component of the Commission. or, when represented by the government

m of records may be disclosed, where pertinent, in any legal proceeding to which the CommiaaiOn is a party before

a court or administrative body; a record from ttis system of records may be disclosed to Iha Department of Justice or in a proceading before a court or

adjudicative body when: (a) the United States. the Commission, a component of the Commission. or, when represented by the government. an

employee of the Commission is a party to litigation or anticipated litigation or has an interest in such litigation, and (b) the Commission determines

that the discloaure is relevant or necessaiy to the litigation; a record on an individual in this system of records may be disclosed to a Congressional

ollice in response lo an inquiry the individual has made to the Congressional olllce; a record from this system of records may be discloud to GSA and

NARA for the purpose of records management inspections condueled under authority of 44 U.S.C. 2904 and 2906. Such disclosure shall not be used

to make a determination about individuals. In each of these cases. the FCC wiH delennine whether disclosure of the infonnatlon in this system of

records notlca Is compatible with the purpose for which the records -re coliected. Furlhermol'8, information In this system of records notlca is

available for public Inspection after redaction of information that could identify the complainant or correspondent, i.e .• name, address and/or telephone

number. THE FOREGOING NOTICE IS REQUIRED BY THE PAPERWORK REDUCTION ACT OF 1995, PUBLIC LAW 10.-13, OCTOBER 1, 1995,

'4 U.S.C. SECTION 3507 AND THE PRIVACY ACT OF 1974, PUBLIC LAW 93-579, DECEMBER 31, 1974, 5 U.S.C. SECTION 552a(eK3).

16698

available for public Inspection after redaction of information that could identify the complainant or correspondent, i.e .• name, address and/or telephone

number. THE FOREGOING NOTICE IS REQUIRED BY THE PAPERWORK REDUCTION ACT OF 1995, PUBLIC LAW 10.-13, OCTOBER 1, 1995,

'4 U.S.C. SECTION 3507 AND THE PRIVACY ACT OF 1974, PUBLIC LAW 93-579, DECEMBER 31, 1974, 5 U.S.C. SECTION 552a(eK3).

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APPENDIXC

Final Regulatory Flexibility Analysis

As required by the Regulatory Flexibility Act of 1980, as amended (RF A),

1 an Initial

Regulatory Flexibility Analysis (lRF A) was incorporated in the Notice of Proposed Rule Making (2005

NPRM) in this proceeding.2 The Commission sought written public comment on the proposals in the

2005 NPRM, including comment on the 1RF A. The Commission received one comment on the 1RF A,

and it is discussed below. This present Final Regulatory Flexibility Analysis (FRF A) conforms to the

RFA.3

Need for, and Objectives of, the Order

The purpose of this proceeding was to consider the current status of the Commission's

closed captioning rules. The rulemak.ing that was initiated in 2005 followed up on the Commission's

prior assurances, made at the time the closed captioning rules were adopted in 1997, that certain

captioning provisions would be reviewed and evaluated at a future date. The 2005 rulemak:ing sought to

determine whether any revisions should be made to enhance the effectiveness of the closed captioning

rules.

ng rules. The rulemak.ing that was initiated in 2005 followed up on the Commission's

prior assurances, made at the time the closed captioning rules were adopted in 1997, that certain

captioning provisions would be reviewed and evaluated at a future date. The 2005 rulemak:ing sought to

determine whether any revisions should be made to enhance the effectiveness of the closed captioning

rules.

The closed captioning rules that were adopted in 1997 require that all video programming

distributors, including over-the-air broadcast television services and all rnultichamlel video programming

distributors ("MVPDs") (including cable television, direct-to-home satellite services, wireless cable

systems, satellite master antenna television, and open video systems )4 increase gradually the amount of

captioned programming offered and, generally require that 100 percent of new English language

programming be closed captioned as of January l, 2006, subject to certain exceptions.5 New analog

programming is defined as analog programs first published or exhibited on or after January 1, 1998. 6

New digital programming is defined as digital programming first aired after June 30, 2002.7 Additionally,

these rules established a transition period for captioning of pre-rule programming, and required that 75

percent of all pre-rule nonexempt English languafe programming delivered to consumers during the first

quarter of 2008 and thereafter must be captioned. Pre-rule analog programming is defined as programs

first published or exhibited before January 1, 1998.9 Pre-rule digital programming is defined as digital

1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 - 612, has been amended by the Small Business Regulatory

Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title Il, 110 Stat. 857 (1996).

2 2005 Closed Captioning NPRM, 20 FCC Red at 13234, Appendix B - Initial Regulatory Flexibility Analysis.

3 See 5 U.S.C. § 604.

4 "Video programming distributor'' is defined in 47 C.F.R

igital

1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 - 612, has been amended by the Small Business Regulatory

Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title Il, 110 Stat. 857 (1996).

2 2005 Closed Captioning NPRM, 20 FCC Red at 13234, Appendix B - Initial Regulatory Flexibility Analysis.

3 See 5 U.S.C. § 604.

4 "Video programming distributor'' is defined in 47 C.F.R. § 79.l(a)(2) as any television broadcast station licensed

by the Commission and any multichannel video programming distnbutor as defined in section 76.lOOO(e) of this

chapter, and any other distributor of video programming for residential reception that delivers such progranuning

directly to the home and is subject to the jurisdiction of the Commission.

5 See 47 C.F.R. §§ 79.l(b)(l), (b)(3), (d), (e), (f); see also Closed Captioning Report and Order, 13 FCC Red at

3292-95, paras. 41-47; Closed Captioning Reconsideration Order, 13 FCC Red at 19978-82, paras. 9-16.

6 47 C.F.R. § 79.l(a)(5).

7 Closed Caption Decoder Requirements for Digital Television Receivers and Converter Boxes, Closed Captioning

and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of

1996, Video Programming Accessibility, ET Docket No. 99-254, MM Docket No. 95-176, Report and Order, 15

FCC Red 16788, 16790-91, para. 5 (July 31, 2000) (DTV Closed Captioning Order).

8 47 C.F.R. § 79.l(b)(2)(ii).

9 47 C.F.R. § 79.l(a)(6).

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s and Converter Boxes, Closed Captioning

and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of

1996, Video Programming Accessibility, ET Docket No. 99-254, MM Docket No. 95-176, Report and Order, 15

FCC Red 16788, 16790-91, para. 5 (July 31, 2000) (DTV Closed Captioning Order).

8 47 C.F.R. § 79.l(b)(2)(ii).

9 47 C.F.R. § 79.l(a)(6).

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FCC08-2SS

programming first aired before July 1, 2002.

10 The rules also require that, pursuant to an established

phase-in schedule, as of January l, 2010, 100 percent of nonexempt new Spanish language programming

be closed captioned,11 and, as of January I, 2012, and thereafter, 75 percent of nonexempt Spanish

language pre-rule programming be closed captioned.12 The existing rules contain several exemptions,

pursuant to which entities or programming that meet the prescribed criteria are exempt from the rules

without having to seek Commission approval. 13 In addition, the existing rules provide a process whereby

video progrannning providers may petition the Commission for an exemption from the rules where it

would be an undue burden to require captioning. 14

The 2005 Closed Captioning NPRM sought comment on several aspects of the rules. It

also sought comment on a Petition for Rulemaking that was filed by Telecommunications for the Deaf,

Inc. and several other consumer advocacy groups. It sought comment on, inter alia, the possibility that

the existing rule would allow for shorter complaint filing and response times, what those time frames

should be, and on the possibility that complainants should be permitted to complain directly to the

Commission without complaining to the video programming distributor first

ns for the Deaf,

Inc. and several other consumer advocacy groups. It sought comment on, inter alia, the possibility that

the existing rule would allow for shorter complaint filing and response times, what those time frames

should be, and on the possibility that complainants should be permitted to complain directly to the

Commission without complaining to the video programming distributor first. Further, the 2005 Closed

Captioning NPRM sought comment on the possibility that video programming distributors would be

required to provide contact information to viewers and to give this information to the Commission for

posting on the Commission's website, in order to assist consumers in having their closed captioning

concerns addressed more quickly.

The Order responds to the proposals made in the 2005 Closed Captioning NPRM and the

Comments submitted thereto. Specifically, the Order amends the existing closed captioning rules to

shorten the complaint processing times and allows complaints to be filed directly with the FCC. The

Order also adopts a new requirement that video programming distributors make information available on

their websites (if they have a website) in bills and in directories to make it easier for closed captioning

consumers to contact them with closed captioning concerns and complaints. The Order also adds a

requirement to the rules to ensure that any staff reachable through the above-noted contact

information has the capability to immediately respond to and address consumers' concerns.

Summary of Significant Issues Raised by Public Comments In Response to the IRF A

Media Captioning Services (MCS) filed the only comment in this proceeding responding

to the IRF A. 15

MCS commented on many issues raised in the 2005 Closed Captioning NPRM, as well

le through the above-noted contact

information has the capability to immediately respond to and address consumers' concerns.

Summary of Significant Issues Raised by Public Comments In Response to the IRF A

Media Captioning Services (MCS) filed the only comment in this proceeding responding

to the IRF A. 15

MCS commented on many issues raised in the 2005 Closed Captioning NPRM, as well.

Specifically, with regard to the issues raised in the 2005 Closed Captioning NPRM, MCS commented

that, in order to encourage high quality captioning, the FCC should promote tax incentives for video

programmers who use very small captioning concerns to meet captioning requirements; should utilize the

antitrust laws (presumably to penalize entities that engage in anti competitive behavior resulting in higher

10 See note 7, supra.

11 47 C.F.R. § 79.l(bX3)(iv).

12 47 C.F.R. § 79.l(bX4)(ii).

47 C.F.R. § 79.l(d).

14 47 C.F.R. § 79.l{t).

15 See Comments of Media Captioning Services (MCS) to Marlene H. Dortch, Secretary, FCC, November 9, 2005.

As stated, MCS' comments were the only comments we received regarding the regulatory flexibility analysis.

Several other commenters raised concerns regarding the impact of the proposals on small entities, but not in the

regulatory flexibility context. Some of these commenters would be considered small businesses. In general, these

conunenters stated that the proposals set forth in the 2005 Closed Captioning NPRM could result in increased costs

and decreased local programming. For example, Hubbard Broadcasting commented that real-time captioning

services are "disproportionately burdensome" to smaller broadcasters, and that the suggestions proposed in the 2005

Closed Captioning NPRM would "vastly increase the costs of local news production." Reply Comments of Hubbard

Broadcasting, Inc. at4-5.

16700

RM could result in increased costs

and decreased local programming. For example, Hubbard Broadcasting commented that real-time captioning

services are "disproportionately burdensome" to smaller broadcasters, and that the suggestions proposed in the 2005

Closed Captioning NPRM would "vastly increase the costs of local news production." Reply Comments of Hubbard

Broadcasting, Inc. at4-5.

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Federal Communications Commission

FCC08-2SS

captioning prices); should use the Telecommunications Relay Service fund to compensate very small

captioning companies; and should establish a fund from the sale of analog spectrum to compensate very

small captioning companies that provide captioning services to video programmers in the DMAs between

26 and 100. MCS also suggested that the Commission require a functional equivalence guideline for real-

time captioning and for pre-produced programming. MCS offered specific suggestions for these

standards, and MCS also suggested that complaints regarding closed captioning should be directed to the

video programming distributor and the FCC, simultaneously.

In its comments pertaining to the regulatory flexibility analysis, MCS noted that the

IRF A does not include any discussion of the impact that proposed regulations would have on closed

captioning companies.16 MCS noted that SBA considers companies providing real-time captioning

services with annual gross receipts of $6 million or less to be small entities, and considers companies

earning $25 million or less from pre-production business to be small entities.17 MCS asserted that

virtually all companies in the closed captioning industry would be classified as small businesses

captioning companies.16 MCS noted that SBA considers companies providing real-time captioning

services with annual gross receipts of $6 million or less to be small entities, and considers companies

earning $25 million or less from pre-production business to be small entities.17 MCS asserted that

virtually all companies in the closed captioning industry would be classified as small businesses. 18 MCS

stated that the definitions are deficient since an "element of the definition of 'small business' is that the

entity would not be dominant in its field of operations."19 However, according to MCS, three dominant

companies in the industry would be classified as small entities based on the annual gross receipts

standards noted above.20

The Commission appreciates the comments filed by MCS in this regard We note that

video programming distributors (VPDs) are the entities directly responsible for compliance with closed

captioning rules, and may only air programming that is not captioned if the programming is not subject to

a captioning benchmark or is exempt from the rules pursuant to section 79.l(d) or 79.l(t). Even with

regard to programming that is not produced by a video programming distributor, the VPD is responsible

for ensuring that the program owner has certified that it or its programming is exempt from the closed

captioning rules. Although closed captioning companies play a vital role in the closed captioning regime,

they are not the entities that are directly affected by the Commission's requirements that video

programming be captioned, because they are not the entities ultimately responsible for compliance with

the dosed captioning rules. The 2005 IRF A included all multi-channel video programming distributors

and broadcasters -- these are the entities that are ultimately responsible for closed captioning

they are not the entities that are directly affected by the Commission's requirements that video

programming be captioned, because they are not the entities ultimately responsible for compliance with

the dosed captioning rules. The 2005 IRF A included all multi-channel video programming distributors

and broadcasters -- these are the entities that are ultimately responsible for closed captioning. In addition

to captioners, program owners and producers that are not the video programming distributors were also

omitted from the 2005 IRF A, for the same reason - they are merely indirectly affected by the rules and

are not ultimately responsible for compliance with the rules. However, in order to better inform the

public about our actions and to create a more complete record in this FRF A, we are including captioners

as entities affected by the modifications adopted in the Order (see paras. 28-30, infra).

Description and Estimate of the Number of Small Entities Impacted

The RF A directs the Commission to provide a description of and, where feasible, an

estimate of the number of small entities that wiU be affected by the rules. 21 The RF A generally defmes

the term "small entity" as having the same meaning as the tenns "small business," "small organization,"

16 MCS Comments at 19-20 (November 9, 2005).

11 ld.

18 Id. In its connnents, MCS referred to Standard Industry Classification (SIC) codes. However, SIC codes were

replaced on August 26, 2008, by North American Industry Classification System (NAICS) codes; accordingly, the

FCC must use the NAICS codes.

19 Id.

20 Id.

21 s u.s.c § 604(aX3).

16701

enns "small business," "small organization,"

16 MCS Comments at 19-20 (November 9, 2005).

11 ld.

18 Id. In its connnents, MCS referred to Standard Industry Classification (SIC) codes. However, SIC codes were

replaced on August 26, 2008, by North American Industry Classification System (NAICS) codes; accordingly, the

FCC must use the NAICS codes.

19 Id.

20 Id.

21 s u.s.c § 604(aX3).

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and "small business concern" under section 3 of the Small Business Act.

22 Under the Small Business Act,

a small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its

field of operation; and (3) satisfies any additional criteria established by the SBA. 23

10.

Nationwide, there are a total of approximately 22.4 million small businesses, according to

SBA data.24 A "small organiz.ation" is generally "any not-for-profit enterprise which is independently

owned and operated and is not dominant in its field.'.is Nationwide, as of 2002, there were approximately

1.6 million small organiz.ations.26 The tenn "small governmental jurisdiction" is defined generally as

"governments of cities, towns, townships, villages, school districts, or special districts, with a population

ofless than fifty thousand.'.i7 Census Bureau data for 2002 indicate that there were 87,525 local

governmental jurisdictions in the United States.28 We estimate that, of this total, 84,377 entities were

"small governmental jurisdictions. ,,i9 Thus, we estimate that most governmental jurisdictions are small.

11.

Wired Telecommunications Carriers. The Census Bureau defines this category as

follows: "This industry comprises establishments primarily engaged as third-party distribution systems

for broadcast programming

in the United States.28 We estimate that, of this total, 84,377 entities were

"small governmental jurisdictions. ,,i9 Thus, we estimate that most governmental jurisdictions are small.

11.

Wired Telecommunications Carriers. The Census Bureau defines this category as

follows: "This industry comprises establishments primarily engaged as third-party distribution systems

for broadcast programming. The establishments of this industry deliver visual, aural, or textual

programming received from cable networks, local television stations, or radio networks to consumers via

cable or direct-to-home satellite systems on a subscription or fee basis. These establishments do not

generally originate programming material.''3° The SBA has developed a small business size standard for

wireline firms within the broad economic census category, "Wired Telecommunications Carriers."31

Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.

Census Bureau data for 2002 show that there were 2,432 finns in this category that operated for the entire

year.32 Of this total, 2,395 finns had employment of 999 or fewer employees, and 37 firms had

employment of 1,000 employees or more.33 Thus, under this category and associated small business size

standard, the majority of finns can be considered small.

12.

Cable Television Distribution Services. Since 2007, these services have been defined

within the broad economic census category of Wired Telecommunications Carriers; that category is

defined as follows: "This industry comprises establishments primarily engaged in operating and/or

22 5 u.s.c § 601(6).

23 5 u.s.c. § 632

24 See SBA, Programs and Services, SBA Pamphlet No. CQ-0028, at page 40 (July 2002).

25 5 U.S.C. § 601(4).

26 Independent Sector, The New Nonprofit Almanac & Desk Reference (2002).

27 5 u.s.c. § 601(5).

28 U.S. Census Bureau, Statistical Abstract of the United States: 2006, Section 8, page 272, Table415

ablishments primarily engaged in operating and/or

22 5 u.s.c § 601(6).

23 5 u.s.c. § 632

24 See SBA, Programs and Services, SBA Pamphlet No. CQ-0028, at page 40 (July 2002).

25 5 U.S.C. § 601(4).

26 Independent Sector, The New Nonprofit Almanac & Desk Reference (2002).

27 5 u.s.c. § 601(5).

28 U.S. Census Bureau, Statistical Abstract of the United States: 2006, Section 8, page 272, Table415.

29 We assume that the villages, school districts, and special districts are small, and total 48,558. See U.S. Census

Bureau, Statistical Abstract of the United States: 2006, section 8, page 273, Table 417. For 2002, Census Bmeau

data indicate that the total number of county, nnmicipal, and township governments nationwide was 38,967, of

which 35,819 were small. Id.

30 U.S. Census Bureau, 2002 NAICS Definitions, "517110 Wired Telecommunications Carriers";

http://www.census.gov/epcd/naics02/def/NDEF517.HTM.

31 13 C.F.R. § 121.201, NAICS code 517110.

32 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, "Establishment and Firm Size: 2002

(Including Legal Form of Organization)," Table 5, NAICS code 517110 (issued Nov. 2005).

33 Id. The census data do not provide a more precise estimate of the number of finns that have employment of

1,500 or fewer employees; the largest category provided is for firms with "l 000 employees or more."

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providing access to transmission facilities and infrastructure that they own and/or lease for the

transmission of voice, data, text, sound, and video using wired telecomnnmications networks.

Transmission facilities may be based on a single technology or a combination oftechnologies."

34 The

SBA has developed a small business siu standard for this category, which is: all such firms having 1,500

or fewer employees

transmission facilities and infrastructure that they own and/or lease for the

transmission of voice, data, text, sound, and video using wired telecomnnmications networks.

Transmission facilities may be based on a single technology or a combination oftechnologies."

34 The

SBA has developed a small business siu standard for this category, which is: all such firms having 1,500

or fewer employees. 35 To gauge small business prevalence for these cable services we must, however,

use current census data that are based on the previous category of Cable and Other Program Distribution

and its associated siu standard; that si7.C standard was: all such firms having $13.5 million or less in

annual receipts. 36 According to Census Bureau data for 2002, there were a total of 1, 191 firms in this

previous category that operated for the entire year.37 Of this total, 1,087 firms had annual receipts of

under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million.

38 Thus, the

majority of these finns can be considered small.

13.

Cable Companies and Systems. The Commission has also developed its own small

business siu standards, for the purpose of cable rate regulation. Under the Commission's rules, a "small

cable company" is one serving 400,000 or fewer subscribers, nationwide.39 Industry data indicate that, of

1,076 cable operators nationwide, all but eleven are small wider this si7.C stanclard.40 In addition, under

the Commission's rules, a "small system" is a cable system serving 15,000 or fewer subscribers.41

Industry data indicate that, of 7 ,208 systems nationwide, 6, 139 systems have fewer than 10,000

subscribers, and an additional 379 systems have 10,000-19,999 subscribers.

42 Thus, wider this second

si7.C standard, most cable systems are small. Wired Telecommunications Carriers with fewer than 1500

employees are considered to be small.43

14.

Cable System Operators

000 or fewer subscribers.41

Industry data indicate that, of 7 ,208 systems nationwide, 6, 139 systems have fewer than 10,000

subscribers, and an additional 379 systems have 10,000-19,999 subscribers.

42 Thus, wider this second

si7.C standard, most cable systems are small. Wired Telecommunications Carriers with fewer than 1500

employees are considered to be small.43

14.

Cable System Operators. The Communications Act of 1934, as amended, also contains a

siu standard for small cable system operators, which is "a cable operator that, directly or through an

affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not

affiliated with any entity or entities whose gross annual revenues in the aggregate exceed

$250,000,000.''44 The Commission has determined that an operator serving fewer than 677,000

subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual

34 U.S. Census Bureau, 2007 NAICS Definitions, "517110 Wired Telecommunications Carriers" (partial

definition); http://www.census.gov/naics/2007/det7ND51711O.HTM#N5l7 l l 0.

35 The NAICS Code associated with this size standard is 517110.

36 13 C.F.R. § 121.201, NAICS code 517110.

37 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, Table 4, Receipts Size of Firms for the

United States: 2002, NAICS code 517510 (issued November 2005).

38 Id. An additional 61 firms had annual receipts of $25 million or more.

39 47 C.F.R. § 76.90l(e). The Commission determined that this siz.e standard equates approximately to a size

standard of$100 million or less in annual revenues. Implementation of Sections of the 1992 Cable Act: Rate

Regulation, Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Red 7393, 7408 (1995).

40 These data are derived from: R.R

annual receipts of $25 million or more.

39 47 C.F.R. § 76.90l(e). The Commission determined that this siz.e standard equates approximately to a size

standard of$100 million or less in annual revenues. Implementation of Sections of the 1992 Cable Act: Rate

Regulation, Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Red 7393, 7408 (1995).

40 These data are derived from: R.R. Bowker, Broadcasting & Cable Yearbook 2006, "Top 25 Cable/Satellite

Operators," pages A-8 & C-2 (data current as of June 30, 2005); Warren Communications News, Television &

Cable Factbook 2006, "Ownership of Cable Systems in the United States," pages D-1805 to D-1857.

41 47 C.F.R. § 76.90l(c).

42 Warren Communications News, Television & Cable Factbook 2006, "U.S. Cable Systems by Subscriber Size,"

page F-2 (data current as of Oct. 2005). The data do not include 718 systems for which classifying data were not

available.

43 See 13 C.F.R. 121.201, NAICS code 517110.

44 47 U.S.C. § 543(m)(2); see 41 C.F.R. § 76.90l(f) & nn. 1-3.

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Federal Communications Commission

FCC08-2SS

revenues of all its affiliates, do not exceed $250 million in the aggregate.45 Industry data indicate that, of

1,076 cable operators nationwide, all but ten are smalJ under this size standard.

46 We note that the

Commission neither requests nor collects information on whether cable system operators are affiliated

with entities whose gross annual revenues exceed $250 million,47 and therefore we are unable to estimate

more accurately the number of cable system operators that would qualify as small under this size

standard.

15.

Cable Television Relay Service. This service includes transmitters generally used to relay

cable programming within cable television system distribution systems. As noted, Wired

TelecommWlications Carriers with fewer than 1500 employees are considered to be small, under the

currently applicable SBA classification

able system operators that would qualify as small under this size

standard.

15.

Cable Television Relay Service. This service includes transmitters generally used to relay

cable programming within cable television system distribution systems. As noted, Wired

TelecommWlications Carriers with fewer than 1500 employees are considered to be small, under the

currently applicable SBA classification. 48 The data presented were acquired when the applicable SBA

small business size standard was called Cable and Other Program Distn"bution, and which referred to all

such firms having $13.5 million or less in annual receipts.49 According to Census Bureau data for 2002,

there were a total of 1,191 firms in this category that operated for the entire year.so Of this total, 1,087

firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less

than $25 million. 51 Thus, under this size standard, the majority of firms can be considered small.

16.

Direct Broadcast Satellite ("DBS") Service. DBS service is a nationally distributed

subscription service that delivers video and audio programming via satellite to a small parabolic "dish"

antenna at the subscriber's location. DBS falls \Dlder the SBA definition of"Wireless

Telecommunications Carriers (except satellite)", which establishes as a small DBS company any DBS

company which has less then 1500 employees.s2 The data presented were acquired when the applicable

SBA small business size standard was called Cable and Other Program Distribution, and which referred to

all such firms having $13.5 million or less in annual receipts.sJ According to Census Bureau data for

2002, there were a total of 1, 191 firms in this category that operated for the entire year. 54 Of this total,

1,087 firms had annual receipts of under $10 mi1lion, and 43 firms had receipts of $10 million or more

but less than $25 million

and Other Program Distribution, and which referred to

all such firms having $13.5 million or less in annual receipts.sJ According to Census Bureau data for

2002, there were a total of 1, 191 firms in this category that operated for the entire year. 54 Of this total,

1,087 firms had annual receipts of under $10 mi1lion, and 43 firms had receipts of $10 million or more

but less than $25 million. Currently, only four operators hold licenses to provide DBS service, which

requires a great investment of capital for operation. All four currently offer subscription services. Two of

these four DBS operators, DirecTVss and Echostar Communications Corporation ("EchoStar"),s6 report

45 47 C.F .R. § 76.90 I (f); see Public Notice, FCC Announces New Subscriber Count for the Definition of Small

Cable Operator, DA 01-158 (Cable Services Bureau, Jan. 24, 2001).

46 These data are derived from: R.R. Bowker, Broadcasting d: Cable Yearbook 2006, .. Top 25 Cable/Satellite

Operators," pages A-8 & C-2 (data current as of June 30, 2005); Warren Communications News, Television d:

Cable Factbook 2006, "Ownership of Cable Systems in the United States," pages D-1805 to D-1857.

47 The Commission does receive such infonnation on a case-by-case basis if a cable operator appeals a local

franchise authority's finding that the operator does not qualify as a small cable operator pursuant to§ 76.90I(t) of

the Commission's rules. See 41 C.F.R. § 76.909(b).

48 NAICS Code 517110.

49 13 C.F.R. § 121.201, NAICS code 517110.

so U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, Table 4, Receipts Size of Firms for the

United States: 2002, NAICS code 517510 (issued November 2005).

51 Id. An additional 61 firms had annual receipts of$25 million or more.

52 13 C.F.R. § 121.201, NAICS Code 517210.

SJ 13 C.F.R. § 121.201, NAICS code 517110.

54 U.S. Census Bureau,'2002 Economic Census, Subject Series: Infonnation, Table 4, Receipts Size of Firms for the

United States: 2002, NAICS code 517510 (issued November 2005)

ited States: 2002, NAICS code 517510 (issued November 2005).

51 Id. An additional 61 firms had annual receipts of$25 million or more.

52 13 C.F.R. § 121.201, NAICS Code 517210.

SJ 13 C.F.R. § 121.201, NAICS code 517110.

54 U.S. Census Bureau,'2002 Economic Census, Subject Series: Infonnation, Table 4, Receipts Size of Firms for the

United States: 2002, NAICS code 517510 (issued November 2005).

ss DirecTV is the largest DBS operator and the second largest MVPD, serving an estimated 13.04 million

subscn"bers nationwide; see Annual Assessment of Status of Competition in the Market for the Delivery of Video

(continued ... )

16704

Federal Communications Commission

FCCOS-255

annual revenues that are in excess of the threshold for a small business. A third operator, Rainbow DBS,

is a subsidiary of Cablevision's Rainbow Network, which also reports annual revenues in excess of $13.5

million, and thus does not qualify as a small business.S7 The fourth DBS operator, Dominion Video

Satellite, Inc. ("Dominion"), offers religious (Christian) programming and does not report its annual

receipts.58 The Commission does not know of any source which provides this information and, thus, the

Commission has no way of confirming whether Dominion qualifies as a small business. Because DBS

service requires significant capital, the Commission believes it is lDllikely that a small entity as defined by

the SBA would have the financial wherewithal to become a DBS licensee. Nevertheless, given the

absence of specific data on this point, the Commission acknowledges the possibility that there are entrants

in this field that may not yet have generated $13.5 million in annual receipts, and therefore may be

categorized as a small business, if independently owned and operated.

17.

Television Broadcasting. This Economic Census category "comprises establishments

primarily engaged in broadcasting images together with sound

his point, the Commission acknowledges the possibility that there are entrants

in this field that may not yet have generated $13.5 million in annual receipts, and therefore may be

categorized as a small business, if independently owned and operated.

17.

Television Broadcasting. This Economic Census category "comprises establishments

primarily engaged in broadcasting images together with sound. These establishments operate television

broadcasting studios and facilities for the programming and transmission of programs to the public.',s9

The SBA has created the following small business size standard for Television Broadcasting firms: those

having $14 million or less in annual receipts. 60 The Commission has estimated the number of licensed

commercial television stations to be 1,379.

61 Jn addition, according to Commission staff review of the

BIA Publications, Inc., Master Access Television Analyzer Database (BIA) on March 30, 2007, about

986 of an estimated 1,3 7 4 commercial television stations (or approximately 72 percent) had revenues of

$13 million or less. 62 We therefore estimate that the majority of cormnercial television broadcasters are

small entities.

18.

We note, however, that in assessin§ whether a business concern qualifies as small \Dlder

the above definition, business (control) affiliations6 must be included. Our estimate, therefore, likely

overstates the number of small entities that might be affected by our action, because the revenue figure on

which it is based does not include or aggregate revenues from affiliated companies. Jn addition, an

element of the definition of"small business" is that the entity not be dominant in its field of operation.

We are unable at this time to define or quantify the criteria that would establish whether a specific

television station is dominant in its field of operation

because the revenue figure on

which it is based does not include or aggregate revenues from affiliated companies. Jn addition, an

element of the definition of"small business" is that the entity not be dominant in its field of operation.

We are unable at this time to define or quantify the criteria that would establish whether a specific

television station is dominant in its field of operation. Accordingly, the estimate of small businesses to

which rules may apply does n()t exclude any television station from the definition of a small business on

this basis and is therefore possibly over-inclusive to that extent.

(Continued from previous page) _________ _

Programming, Eleventh Annual Report, FCC 05-13, para. 55 (rel. Feb. 4, 2005) ("2005 Cable Competition

Report").

56 EchoStar, which provides service under the brand name Dish Network, is the second largest DBS operator and the

fourth largest MVPD, serving an estimated 10.12 million subscribers nationwide. Id.

51 Rainbow DBS, which provides service under the brand name VOOM, reported an estimated 25,000 subscn"bers.

Id.

58 Dominion, which provides service under the brand name Sky Angel, does not publicly disclose its subscribership

numbers on an annualized basis. Id.

59 U.S. Census Bureau, 2007 NAICS Definitions, "515120 Television Broadcasting" (partial definition);

http://www.census.gov/naics/2007/def/ND515120.HTM#N515120.

60 13 C.F.R. § 121.201, NAICS code 515120 (updated for inflation in 2008).

61 See FCC News Release, "Broadcast Station Totals as of December 31, 2007," dated March 18, 2008;

http:/iwww .fcc.gov/Dailx Releases/Daily Business/2008/db0318/DOC-280836Al.pdf.

62 We recognize that BIA's estimate differs slightly from the FCC total given supra.

63 "[Business concerns] are affiliates of each other when o

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