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Closed Captioning of Internet Protocol-Delivered Video Programming

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Released: September 19, 2011

Federal Communications Commission

FCC 11-138

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Closed Captioning of Internet Protocol-Delivered
)
MB Docket No. 11-154
Video Programming: Implementation of the
)
Twenty-First Century Communications and Video )
Accessibility Act of 2010
)

NOTICE OF PROPOSED RULEMAKING

Adopted: September 19, 2011

Released: September 19, 2011

Comment Date:

[20 days after date of publication in the Federal Register]

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

By the Commission:

TABLE OF CONTENTS

Heading
Paragraph #
I.
INTRODUCTION .................................................................................................................................. 1
II. BACKGROUND .................................................................................................................................... 5
A. History of Closed Captioning .......................................................................................................... 5
B. IP-Delivered Closed Captioning and Sections 202(b) and (c) of the CVAA................................... 8
C. Section 203 of the CVAA .............................................................................................................. 11
D. VPAAC Working Group 1 and Its Report ..................................................................................... 13
III. SECTION 202(b) OF THE CVAA ...................................................................................................... 15
A. Entities Subject to Section 202(b) of the CVAA and Their Obligations ....................................... 15
B. Schedule of Deadlines.................................................................................................................... 23
C. Exemption Process Where Economically Burdensome ................................................................. 29
D. Mechanism for Information on Video Programming Subject to the CVAA ................................. 34
E. Technical Standards for IP-Delivered Video Programming .......................................................... 39
F. De Minimis Failure to Comply and Alternate Means of Compliance............................................ 41
G. Complaint Procedures .................................................................................................................... 43
IV. SECTION 203 OF THE CVAA ........................................................................................................... 48
A. Scope of Section 203 of the CVAA and Exempted Apparatus...................................................... 48
B. Obligations under Section 203 of the CVAA ................................................................................ 56
C. Schedule of Deadlines.................................................................................................................... 60
V. CONCLUSION .................................................................................................................................... 61
VI. PROCEDURAL MATTERS................................................................................................................ 62
A. Initial Regulatory Flexibility Act Analysis .................................................................................... 62
B. Paperwork Reduction Act .............................................................................................................. 63
C. Ex Parte Rules................................................................................................................................ 64
D. Filing Requirements....................................................................................................................... 65
VII.ORDERING CLAUSES....................................................................................................................... 69
APPENDICES
APPENDIX A - Proposed Rule Changes
APPENDIX B - Initial Regulatory Flexibility Act Analysis

Federal Communications Commission

FCC 11-138

I.

INTRODUCTION

1.
The Twenty-First Century Communications and Video Accessibility Act of 2010
("CVAA") requires the Federal Communications Commission ("Commission") to revise its regulations to
mandate closed captioning on certain video programming delivered using Internet protocol ("IP").1 In
this Notice of Proposed Rulemaking ("NPRM"), we initiate a proceeding that will fulfill this requirement.
We seek comment on proposals that would better enable individuals who are deaf or hard of hearing to
view IP-delivered video programming, by requiring that programming be provided with closed captions if
it was shown on television with captions after the effective date of the rules adopted pursuant to this
proceeding. We also seek comment on requirements for the devices that are subject to the CVAA's new
closed captioning requirements.2 Our goal is to require the provision of closed captions with IP-delivered
video programming in the manner most helpful to consumers, while ensuring that our regulations do not
create undue economic burdens for the distributors, providers, and owners of online video programming.
2.
Closed captioning is an assistive technology that provides individuals who are deaf or
hard of hearing with access to television programming. Closed captioning displays the audio portion of a
television signal as printed words on the television screen. Existing regulations require the use of closed
captioning on television.3 Until now, however, closed captioning has not been required for IP-delivered
video programming. That changed with the enactment of the CVAA. Specifically, Section 202(b) of the
CVAA revised Section 713 of the Communications Act of 1934, as amended (the "Act"), to require the
Commission to "revise its regulations to require the provision of closed captioning on video programming
delivered using Internet protocol that was published or exhibited on television with captions after the
effective date of such regulations."4
3.
The CVAA also required the Chairman of the Commission to establish an advisory
committee known as the Video Programming Accessibility Advisory Committee ("VPAAC").5 Section
201(e)(1) of the CVAA required the VPAAC to submit a report on closed captioning to the Commission
six months after its first meeting, or by July 13, 2011.6 The VPAAC submitted this report on July 12,


1 Pub. L. No. 111-260, 124 Stat. 2751, 202(b) (2010). See also Amendment of Twenty-First Century
Communications and Video Accessibility Act of 2010, Pub. L. No. 111-265, 124 Stat. 2795 (2010) (making
technical corrections to the CVAA).
2 See Pub. L. No. 111-260, 203.
3 See 47 C.F.R. 79.1 (setting forth the requirements for closed captioning of video programming on television).
4 47 U.S.C. 613(c)(2)(A).
5 Pub. L. No. 111-260, 201(a) (providing that, within 60 days of the CVAA's enactment, the Chairman must
establish an advisory committee). The CVAA was enacted on October 8, 2010, and the Commission announced the
establishment of the VPAAC on December 7, 2010. See Public Notice, Video Programming and Emergency Access
Advisory Committee Announcement of Members
, 25 FCC Rcd 17094 (rel. Dec. 7, 2010); see also Public Notice,
Erratum, Video Programming and Emergency Access Advisory Committee Announcement of Members (rel. Jan. 7,
2011). Although in the CVAA, this advisory committee is formally known as the "Video Programming and
Emergency Access Advisory Committee," its working name was shortened to the "Video Programming
Accessibility Advisory Committee" in order to avoid confusion with a second advisory committee required by the
CVAA that is addressing 9-1-1 emergency access issues. See Pub. L. No. 111-260, 106 (directing the Commission
to establish an "Emergency Access Advisory Committee").
6 Section 201(e)(1) of the CVAA required the VPAAC's report to include:
(A) A recommended schedule of deadlines for the provision of closed captioning service.
(B) An identification of the performance objectives for protocols, technical capabilities, and
technical procedures needed to permit content providers, content distributors, Internet service
(continued....)
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FCC 11-138

2011.7 By statute, within six months of the submission of the VPAAC Report, the Commission must
issue final regulations to require the provision of closed captioning on IP-delivered video programming.8
Accordingly, the Commission must revise its regulations by January 12, 2012.9 By the same date,
pursuant to Section 203 of the CVAA, the Commission must revise its regulations to include any
technical standards, protocols, and procedures needed for the transmission of closed captioning delivered
using IP, to ensure that certain apparatus are capable of rendering, passing through, or otherwise
permitting the display of closed captions for end users.10
4.
We consider below revisions to our rules that would implement the requirements of
Sections 202(b) and 203 of the CVAA, as well as the conforming amendment set forth in Section 202(c)
of the CVAA. These proposals could fulfill Congress' goal of enabling consumers who are deaf or hard
of hearing to have access to IP-delivered video programming. As discussed below, we seek comment on
rule changes that would:

Specify the obligations of entities subject to Section 202(b) by:
o Requiring video programming owners to send required caption files for IP-delivered
video programming to video programming distributors and video programming
providers along with program files;
o Requiring video programming distributors and video programming providers to
enable the rendering or pass through of all required captions to the end user; and


(...continued from previous page)
providers, software developers, and device manufacturers to reliably encode, transport, receive,
and render closed captions of video programming, except for consumer generated media, delivered
using Internet protocol.
(C) An identification of additional protocols, technical capabilities, and technical procedures
beyond those available as of the date of enactment of the [CVAA] for the delivery of closed
captions of video programming, except for consumer generated media, delivered using Internet
protocol that are necessary to meet the performance objectives identified under subparagraph (B).
(D) A recommendation for technical standards to address the performance objectives identified in
subparagraph (B).
(E) A recommendation for any regulations that may be necessary to ensure compatibility between
video programming, except for consumer generated media, delivered using Internet protocol and
devices capable of receiving and displaying such programming in order to facilitate access to
closed captions.
Pub. L. No. 111-260, 201(e)(1).
7 See First Report of the Video Programming Accessibility Advisory Committee on the Twenty-First Century
Communications and Video Accessibility Act of 2010: Closed Captioning of Video Programming Delivered Using
Internet Protocol, July 12, 2011, available at
http://transition.fcc.gov/cgb/dro/VPAAC/First_VPAAC_Report_to_the_FCC_7-11-11_FINAL.pdf ("VPAAC
Report").
8 47 U.S.C. 613(c)(2)(A).
9 See id.
10 Pub L. No. 111-260, 203(a)-(b), (d).
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o Requiring the quality of all required captioning of IP-delivered video programming to
be of at least the same quality as the captioning of the same programming when
shown on television;11

Create a schedule of deadlines by which:
o All prerecorded and unedited programming subject to the new requirements must be
captioned within six months of publication of the rules in the Federal Register;
o All live and near-live programming subject to the new requirements must be
captioned within 12 months of publication of the rules in the Federal Register; and
o All prerecorded and edited programming subject to the new requirements must be
captioned within 18 months of publication of the rules in the Federal Register;12

Craft procedures by which video programming providers and video programming owners
may petition the Commission for exemptions from the new requirements based on economic
burden;13

Establish a mechanism to make information about video programming subject to the CVAA
available to video programming providers and distributors, by requiring video programming
owners to provide programming for IP delivery either with captions, or with a certification
that captions are not required for a stated reason;14

Decline to adopt particular technical standards for IP-delivered video programming;15

Decline to treat a de minimis failure to comply with the new rules as a violation, and permit
entities to comply with the new requirements by alternate means;16 and

Adopt procedures for complaints alleging a violation of the new requirements.17
Additionally, we seek comment on the appropriate requirements for devices subject to the closed
captioning requirements of Section 203.18

II.

BACKGROUND

A.

History of Closed Captioning

5.
Captions first appeared on television in the early 1970s in an "open captioning format" by
which the text was transmitted with the video in a manner that was visible to all viewers.19 In 1977, the


11 See Section III.A., infra. As discussed below, a covered entity may be permitted to improve upon the quality of
the captioning of IP-delivered video programming.
12 See Section III.B., infra.
13 See Section III.C., infra.
14 See Section III.D., infra.
15 See Section III.E., infra.
16 See Section III.F., infra.
17 See Section III.G., infra.
18 See Section IV., infra.
19 See Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the
Telecommunications Act of 1996, Video Programming Accessibility
, Report, 11 FCC Rcd 19214, 19223, 25
(1996).
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Commission adopted rules providing that line 21 of the vertical blanking interval ("VBI") would be used
primarily for the transmission of closed captioning to analog receivers.20 For analog television, closed
captioning is transmitted through encoded data within the television signal's VBI "which, when decoded,
provides a visual depiction of information simultaneously being presented on the aural channel
(captions)."21 Since closed captioning is hidden as encoded data transmitted within the television signal,
receivers can be (and are) designed to allow consumers to turn the captioning on and off.22 In addition to
displaying the audio portion of a television signal as printed words, captions may identify speakers, sound
effects, music, and laughter.23
6.
The Television Decoder Circuitry Act of 1990 ("TDCA")24 required all television
receivers with screen sizes of 13 inches or larger, manufactured or sold in the United States, to possess
closed captioning capability.25 In the years that followed, the use of closed captioning increased
somewhat, through the voluntary efforts of the video programming industry.26 As the number of channels
of video programming increased, Congress remained concerned that "video programming through all
delivery systems should be accessible" to individuals who are deaf or hard of hearing.27
7.
In the Telecommunications Act of 1996, Congress added a new section entitled "Video
Programming Accessibility" to the Act.28 To ensure access for individuals with hearing disabilities,
Section 713 of the Act requires the closed captioning of video programming.29 In 1997, the Commission
adopted rules and implementation schedules for closed captioning of video programming, as required by
Section 713.30 The schedules varied based on whether programming is analog or digital, Spanish or
English, and whether it is pre-rule (i.e., older) or new programming. Today, all new English and Spanish
language television programming that is subject to the rule must be provided with closed captions,31 and
75 percent of pre-rule English language television programming that is subject to the rule must be


20 See TV Captioning for the Deaf, Report and Order, 63 FCC 2d 378 (1977). See also Permissible Uses of the
Vertical Blanking Interval
, Report and Order, 8 FCC Rcd 3613 (1993) (permitting enhanced closed captioning and
other broadcast-related information services on line 21, field 2 of the VBI).
21 47 C.F.R. 73.682(a)(22)(i).
22 See Closed Captioning of Video Programming, Closed Captioning Requirements for Digital Television Receivers,
Declaratory Ruling, Order, and Notice of Proposed Rulemaking, 23 FCC Rcd 16674, 16675, 2 (2008) ("2008
Closed Captioning Order
").
23 See id.
24 Pub. L. No. 101-431, 104 Stat. 960 (1990) (codified at 47 U.S.C. 303(u), 330(b)).
25 See 2008 Closed Captioning Order, 23 FCC Rcd at 16675, 2; see also Amendment of Part 15 of the
Commission's Rules to Implement the Provisions of the Television Decoder Circuitry Act of 1990
, Report and Order,
6 FCC Rcd 2419 (1991) ("TDCA Order").
26 See Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the
Telecommunications Act of 1996, Video Programming Accessibility
, Report and Order, 13 FCC Rcd 3272, 3276, 7
(1997) ("1997 Closed Captioning Order"), recon. granted in part, Order on Reconsideration, 13 FCC Rcd 19973
(1998).
27 H.R. Rep. No. 104-204, 104th Cong., 1st Sess. at 113-14 (1995).
28 See Section 305 of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C.
613).
29 47 U.S.C. 613.
30 See generally 1997 Closed Captioning Order.
31 47 C.F.R. 79.1(b)(1)(iv), 79.1(b)(3)(iv).
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provided with closed captions.32 In 2000, the Commission adopted rules governing the display of
captions on digital receivers, and the Commission's rules now specify technical standards for the
reception and display of captioning on both analog and digital receivers.33

B.

IP-Delivered Closed Captioning and Sections 202(b) and (c) of the CVAA

8.
Today, IP-delivered video programming takes a number of forms, such as programming
delivered to a personal computer, tablet device, cellular telephone, game console, Blu-ray player, or set
top box. The Commission previously recognized that the Internet has become a powerful method of
video programming distribution, and that the amount of video content available on the Internet is
continuing to increase significantly each year, as consumers increasingly utilize the Internet for this
purpose.34 The Internet's role in video programming delivery "has progressed from negligible just a few
years ago to an increasingly mainstream role today."35 Although much IP-delivered video programming
remains inaccessible to individuals who are deaf or hard of hearing, certain entities have taken voluntarily
measures to begin including captions on some of their programming.36
9.
Through the CVAA, Congress sought to "update the communications laws to help ensure
that individuals with disabilities are able to fully utilize communications services and equipment and
better access video programming."37 The Committee reports state that, while modern technology such as
the Internet has everyday benefits, those benefits are not always accessible to people with disabilities.38
Section 202(b) of the CVAA requires the Commission to revise its regulations to require closed
captioning of IP-delivered video programming that was shown on television with captions after the
effective date of the new regulations.39
10.
The CVAA applies broadly to the distributors, providers, and owners of IP-delivered
video programming. Specifically, Section 202(b) of the CVAA amends Section 713 of the Act to require
the Commission's regulations to "include an appropriate schedule of deadlines for the provision of closed
captioning, taking into account whether such programming is prerecorded and edited for Internet
distribution, or whether such programming is live or near-live and not edited for Internet distribution."40
The Commission may delay or waive the requirements if application to live IP-delivered video
programming is "economically burdensome to providers of video programming or program owners,"41


32 47 C.F.R. 79.1(b)(2)(ii). As of January 1, 2012, 75 percent of pre-rule Spanish language television
programming that is subject to the rule will be required to be provided with closed captions. See 47 C.F.R.
79.1(b)(4)(ii).
33 47 C.F.R. 15.119, 15.122.
34 Applications of Comcast Corp., General Electric Co. and NBC Universal, Inc. For Consent to Assign Licenses
and Transfer Control of Licenses
, Memorandum Opinion and Order, 26 FCC Rcd 4238, 4256, 41 (2011)
("Comcast-NBCU Order").
35 Id. at 4262, 60.
36 For example, we are aware that Apple, CBS, Comcast, DISH, Disney/ABC, Fox, Hulu, NBC, Netflix, Time
Warner Cable, and YouTube/Google currently provide captions for certain IP-delivered video programming.
37 See S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010); H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19
(2010).
38 See S. Rep. No. 111-386 at 1-2; H.R. Rep. No. 111-563 at 19.
39 The CVAA defines "Internet protocol" as including "Transmission Control Protocol and a successor protocol or
technology to Internet protocol." Pub. L. No. 111-260, 206(5).
40 47 U.S.C. 613(c)(2)(B).
41 47 U.S.C. 613(c)(2)(C).
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and it may exempt a "service, class of service, program, class of program, equipment, or class of
equipment for which the Commission has determined that the application of such regulations would be
economically burdensome for the provider of such service, program, or equipment."42 Section 202(b) of
the CVAA also requires the Commission to "establish a mechanism to make available to video
programming providers and distributors information on video programming subject to the [CVAA] on an
ongoing basis."43 Section 202(b) further directs the Commission not to find that a de minimis failure is a
violation,44 and to permit entities to meet the new requirements by alternate means.45 Finally, Section
202(c) of the CVAA consists of a "conforming amendment" to Section 713(d) of the Act, regarding the
process for petitioning for an exemption.46

C.

Section 203 of the CVAA

11.
Congress also determined that the objectives of the CVAA could not be met unless the
devices that consumers use to view video programming, including those devices that may be small and
portable, are able to display closed captions. Therefore, it enacted Section 203(a), requiring "that [the]
devices consumers use to view video programming are able to display closed captions."47 To do this,
Congress directed the Commission to enact provisions that require all "apparatus designed to receive or
play back video programming transmitted simultaneously with sound . . . be equipped with built-in closed
caption decoder circuitry or capability"48 and contain exceptions only for those devices which are
"display-only video monitors with no playback capability"49 and devices with picture screens less than 13
inches for which meeting the regulation is not "achievable."50 Additionally, the Commission must require
that all devices "designed to record video programming . . . [must] enable the rendering or the pass-
through of closed captions"51 and that the "interconnection mechanisms and standards for digital video
source devices are available to . . . permit or render the display of closed captions."52
12.
Taken together, these statutory provisions seek to encompass many devices on which
consumers view video, such as portable media players, personal computers, televisions, and the devices
consumers connect to their televisions to access programming via the Internet and other sources. As in


42 47 U.S.C. 613(c)(2)(D)(ii).
43 47 U.S.C. 613(c)(2)(D)(v).
44 47 U.S.C. 613(c)(2)(D)(vii).
45 47 U.S.C. 613(c)(3).
46 47 U.S.C. 613(d). Neither the statute nor the legislative history explains what Congress meant by characterizing
the amendment as "conforming."
47 S. Rep. No. 111-386 at 14; H. R. Rep. No. 111-563 at 30
48 47 U.S.C. 303(u)(1).
49 47 U.S.C. 303(u)(2)(B).
50 47 U.S.C. 303(u)(2)(A). In determining whether the requirements of a provision are achievable, the
Commission shall consider the following factors: (1) the nature and cost of the steps needed to meet the
requirements of this section with respect to the specific equipment or service in question; (2) the technical and
economic impact on the operation of the manufacturer or provider and on the operation of the specific equipment or
service in question, including on the development and deployment of new communications technologies; (3) the
type of operations of the manufacturer or provider; and (4) the extent to which the service provider or manufacturer
in question offers accessible services or equipment containing varying degrees of functionality and features, and
offered at differing price points. 47 U.S.C. 617(g)(1)-(4).
51 47 U.S.C. 303(z)(1).
52 47 U.S.C. 303(z)(2).
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Section 202(b), the Commission is required to prescribe regulations within six months of the VPAAC
Report and to provide that entities may meet the requirements of these provisions through "alternate
means."53

D.

VPAAC Working Group 1 and Its Report

13.
The VPAAC's first meeting was held at the Commission on January 13, 2011, and a
second meeting was held on May 5, 2011. During the first meeting, the VPAAC was divided into four
working groups; Working Group 1 took on the task of examining "issues involved in transferring closed
captions provided on television programs to the online environment."54 In addition to work conducted at
the January and May meetings, Working Group 1 conferred and collaborated on these issues through
weekly conference calls, regular e-mail correspondence, and the group's workshare website (or "wiki").55
The Media Bureau also conducted informal meetings with online video programming distributors,
broadcast networks, multichannel video programming distributors ("MVPDs"), consumer advocacy
groups, and others that were interested in discussing Section 202 of the CVAA in anticipation of the
Media Bureau's receipt of the VPAAC Report and its preparation of this NPRM.
14.
As noted above, the VPAAC submitted its report on July 12, 2011. The VPAAC Report
provided suggestions for how the Commission's regulations on IP closed captioning should address
caption completeness, placement, accuracy, and timing, as well as specific technical requirements that a
user's Internet-connected media players should support.56 The VPAAC Report went on to describe
technical requirements for the delivery of closed captioning of IP-delivered television programming,
suggesting that the Commission require a single interchange format but not a single delivery format for IP
closed captioning.57 Next, the VPAAC Report described "the technical capabilities and procedures
needed for entities to reliably encode, transport, receive and render broadcast-television closed captions
over the Internet."58 The VPAAC Report discussed three interfaces that may require standardization (i)
interchange formats (i.e., between video programming owners and video programming
distributors/providers), (ii) delivery file formats (i.e., between video programming distributors/providers
and user devices), and (iii) linkages to users' captioning display controls (i.e., between devices or between
software and firmware running on one device).59 The VPAAC Report also briefly discussed potential
developments in IP-delivered closed captioning60 and proposed a schedule of deadlines for the provision


53 Pub. L. No. 111-260, 203(d)(1), (e).
54 See VPAAC Report at 4.
55 See id. at 5.
56 See id. at 13-16.
57 See id. at 16-20. The VPAAC Report proposed defining "interchange format" as "[t]he encoded caption data that
preserves all of the original semantic information and text . . . and allows easy conversion to other formats." See id.
at 18. See also id. at 22 ("By `interchange format' we mean the format of closed-captioning data carried within
television content as it is distributed from the content provider to programming distributors."). The VPAAC Report
proposed defining "delivery format" as "[t]he encoded caption data contained within a download or stream of
content to a consumer device in either the standard interchange format or a different network-specific or video-
player-specific format . . . ." See id. at 18.
58 See id. at 21-28.
59 See id. at 22-23, 26-28. We discuss interchange and delivery formats in Sections III.E. and IV.B., infra.
60 See id. at 28-29.
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of closed captioning over IP.61 We describe the VPAAC recommendations more specifically in the
context of our discussion of Sections 202 and 203 below.62

III.

SECTION 202(b) OF THE CVAA

A.

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

15.
Various provisions of Section 202(b) of the CVAA reference "video programming
distributors" ("VPDs"), "video programming providers" ("VPPs"), and "video programming owners"
("VPOs"). We seek comment on how the Commission should define these terms.63 The CVAA provides
some guidance on the definition of the first two terms, requiring the Commission to "clarify that, for the
purposes of implementation, [sic] of this subsection, the terms `video programming distributors' and
`video programming providers' include an entity that makes available directly to the end user video
programming through a distribution method that uses Internet protocol."64 We propose to define VPD
and VPP as having the same meaning, because there does not seem to be a practical benefit in
distinguishing between the two for purposes of Section 202(b) of the CVAA. We seek comment on this
proposal. In addition, in recognition of the broad reach that Congress intended for Section 202(b), we
propose to define both a VPD and a VPP as any entity that makes available directly to the end user video
programming through a distribution method that uses IP. Further, we propose to define a VPO as any
person or entity that owns the copyright of the video programming delivered to the end user through a
distribution method that uses IP. We seek comment on these proposed definitions. Should the
Commission instead define VPDs and VPPs separately, and if so, how should those definitions differ
from one another?65 If we were to define VPDs and VPPs differently from one another, what would be
the effect on provisions of the CVAA that apply to VPPs and VPOs but not VPDs? Will a significant
number of small entities be covered by the proposed definition of VPD/VPP? If multiple video
programming distributors/providers are involved in making video programming available to the end user,
but only one distributor/provider directly makes the video programming available to the end user, where
do the distributors/providers in the middle of the chain fit within our proposed definitions? Should the
definition of VPO include anything in addition to the person or entity that owns the copyright of the IP-
delivered video programming, for example, any person or entity to which the copyright owner licenses


61 See id. at 29-30. The VPAAC Report also contains three appendices. Appendix A contains a summary of
recommended DTV receiver requirements. See id. at 31-32. Appendix B lists "best practices" for closed captioning
of IP-delivered video programming. See id. at 33 (noting that "there is not consensus about whether these practices
should be mandated or only offered as suggestions"); see also id. at 13 n. 29. Lastly, Appendix C details unresolved
issues that the VPAAC recommended the Commission consider in this NPRM. See id. at 34-35.
62 See Sections III. and IV., infra.
63 Our use of the terms VPD and VPP in this NPRM is meant to reference our proposed definitions of those terms in
this context, and not to invoke any use of those terms in other contexts, including in our television closed captioning
or video description rules. This NPRM does not propose any modifications to our television closed captioning rules.
64 47 U.S.C. 613(c)(2)(D)(iii). The Commission's rules currently define VPDs and VPPs but these definitions
apply only to the closed captioning of video programming that is being distributed and exhibited on television.
Specifically, our rules define a "video programming distributor" as "[a]ny television broadcast station licensed by
the Commission and any [MVPD] . . . and any other distributor of video programming for residential reception that
delivers such programming directly to the home and is subject to the jurisdiction of the Commission." 47 C.F.R.
79.1(a)(2). In addition, our rules define a "video programming provider" as "[a]ny video programming distributor
and any other entity that provides video programming that is intended for distribution to residential households
including, but not limited to broadcast or nonbroadcast television network and the owners of such programming."
47 C.F.R. 79.1(a)(3).
65 The definition of VPD and VPP may be particularly relevant insofar as certain provisions of Sections 202(b) and
(c) refer to VPPs and VPOs, but not VPDs. See, e.g., 47 U.S.C. 613(c)(2)(C), (c)(2)(D)(vii), (d)(3).
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IP-delivered video programming?
16.
The CVAA requires the Commission to "describe the responsibilities of video
programming providers or distributors and video programming owners."66 We propose to require VPOs
to send program files to VPDs/VPPs with all required captions, and, as contemplated by Section 202(b),
to require VPDs/VPPs to enable "the rendering or pass through" of all required captions to the end user.67
When a VPD/VPP receives a program file with required captions, it would be required to include those
captions at the time it makes the program file available to end users.68 We seek comment on these
proposals as well as other appropriate responsibilities of VPDs/VPPs and VPOs under Section 202(b) of
the CVAA.69 For example, should we require the VPD/VPP to provide a mechanism, such as a button or
icon, on its website which would allow consumers to easily access closed captioning? If a VPO licenses
its content to a third party for Internet distribution, what are the obligations of that third party licensee? If
a VPD/VPP knows or reasonably should have known that a program is required to include captions, but
the VPO failed to provide such captions, what obligations should the VPD/VPP have to obtain such
captions before providing the programming to the end user? In an enforcement proceeding, what types of
evidence could be considered to establish the VPD/VPP's knowledge, and should the VPD/VPP bear the
burden of proof on that issue? Should the VPD/VPP have an obligation to determine whether the
programming is subject to captioning requirements before providing it to the end user? In addition, what
liability should the VPD/VPP face should it decide to provide the program to end users without the
required captions?70 In such a situation, should both the VPD/VPP and VPO be held responsible for the
violation? We seek comment generally on the responsibilities that VPDs/VPPs should have to ensure that
video programming has the required captions before they pass it through to viewers. Should we require
VPDs/VPPs to include on their websites program listings that indicate whether a particular program is
captioned? If multiple video programming distributors/providers are involved in making video
programming available to the end user, what are the obligations of the distributors/providers in the middle
of the chain? For example, would the distributors/providers in the middle of the chain be required to
enable the rendering or pass through of all required captions?
17.
In addition to requiring the presence of captions, we seek comment on whether our rules
for closed captioning of IP-delivered video programming should include any required performance
objectives. It is important that, in considering this issue, the Commission balances the interests of users


66 47 U.S.C. 613(c)(2)(D)(iv).
67 See also Section III.D., infra (discussing a proposed mechanism that would require VPOs providing a video
program to VPDs/VPPs for IP delivery to provide the program either with captions, or with a certification that
captions are not required for a reason stated in the certification). Congress did not explain what it meant by enabling
"the rendering or pass through" but we presume that Congress meant that VPDs/VPPs must ensure that closed
captions are transmitted appropriately.
68 We propose in Section III.D., infra, that when a program previously provided to a VPD/VPP without captions
becomes subject to the captioning requirement, the VPO must send a certification to that effect to VPDs/VPPs
within seven days, and the VPD/VPP must make captions available within five days of receipt of the revised
certification.
69 The VPAAC indicated that it did not have sufficient time to determine the responsibilities of various stakeholders.
See VPAAC Report at 34.
70 Section 713(h) of the Act previously provided, "Nothing in this section shall be construed to authorize any private
right of action to enforce any requirement of this section or any regulation thereunder. The Commission shall have
exclusive jurisdiction with respect to any complaint under this section." Section 202(a) of the CVAA redesignated
former Section 713(h) as Section 713(j). See Pub. L. No. 111-260, 202(a). This provision applies to the
Commission's IP closed captioning regulations promulgated in accordance with the CVAA's revisions to Section
713 of the Act, in addition to the Commission's existing closed captioning regulations.
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of closed captioning against the concern that overly burdensome standards may cause VPDs/VPPs to
refrain from posting videos online. The VPAAC Report made a number of proposals regarding the
quality of captions of IP-delivered video programming:
(1) that the Commission require IP-delivered captions to be complete, such that
"[n]othing must be lost in transcoding when converting captions between conventional
broadcast captioning formats and Internet;"71
(2) that "[f]or Internet-delivered caption content, the positioning information as originally
authored shall be made available to the consumer device;"72
(3) that the accuracy of IP-delivered video programming must be "equal to or greater than
the accuracy of captions shown on television;"73
(4) that the Commission require IP-delivered captions to possess sufficient timing, such
that "[a]ll processing through the distribution chain, including transcoding, must provide
a timing experience that is equal to or an improvement to the timing of captions provided
in the captioning shown on television;"74 and
(5) that a user's Internet-connected media players should support the ability to change
character color, opacity, size, font, background color and opacity, character edge
attributes, window color, and language.75
We note that Part 15 of the Commission's rules currently contains certain required user controls for
television closed captions, including the ability to change text color, opacity, size, font, background color
and opacity, character edge attributes, and window color.76
18.
It appears that Congress intended, at a minimum, that captions of IP-delivered video
programming should be of at least the same quality as captions shown on television. Accordingly, we
propose to adopt a rule requiring the captioning of IP-delivered video programming to be of at least the
same quality as the television captions for that programming. An evaluation of "quality" could include
the consideration of such factors as completeness, placement, accuracy, and timing, all of which the
VPAAC suggested that we consider. We seek comment as to whether the inclusion of any of these
factors would lead to unintended consequences such as requiring a large amount of resources to be
expended to comply. We contemplate that a requirement for captions of IP-delivered video programming
to be of at least the same quality as captions of television programming would require IP-delivered
captions to include the same user tools, such as the ability to change caption font and size. These
proposals are consistent with the VPAAC's recommendation that captions of IP-delivered video
programming should provide consumers with an experience that is equal to or better than the comparable
television experience.77 We seek comment on these proposals, which could help benefit consumers, while
ensuring that compliance with our new rules is as similar as possible to compliance with existing rules for
television closed captioning.


71 See VPAAC Report at 13.
72 See id. at 13-14.
73 See id. at 14.
74 See id.
75 See id. at 15-16.
76 See 47 C.F.R. 15.122.
77 See, e.g., VPAAC Report at 13 ("the consumer must be given an experience that is equal to, if not better than, the
experience provided as the content was originally aired on television using the CEA-608/708 system").
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19.
In meetings with Commission staff, certain VPDs/VPPs expressed concern that they
would be unable to provide captions that are "better than" those available on television because
improving the captions would violate the VPO's copyright. Under our proposal, however, VPDs/VPPs
would not be required to improve caption quality; rather, they would be required to ensure that the quality
of captions does not decline when delivered via IP as compared to when shown on television. To the
extent that VPDs/VPPs have permission to alter captions on the programming so that they improve the
viewing experience, we propose that they be permitted to do so.78 We seek comment on any copyright
concerns implicated by our proposals, including how we should balance any desire for certain user
controls against a VPO's copyright protections.
20.
Section 202(a) of the CVAA defines "video programming" as "programming by, or
generally considered comparable to programming provided by a television broadcast station, but not
including consumer-generated media (as defined in section 3)."79 Section 3 of the Act, as revised by the
CVAA, defines "consumer generated media" as "content created and made available by consumers to
online websites and services on the Internet, including video, audio, and multimedia content."80 The
Senate and House Committee reports do not shed further light on the terms "video programming" and
"consumer-generated media."81 We seek comment on the scope of these definitions. We seek specific
examples of IP-delivered video programming that is not comparable to programming provided by a
television broadcast station, and examples of consumer-generated IP-delivered video programming, both
of which would be exempt from the CVAA's captioning requirements. We also seek specific examples
of IP-delivered video programming that is comparable to programming provided by a television broadcast
station. Does "consumer-generated media" include content that has been published or exhibited on
television with captions, which is made available online by individual consumers without the consent of
the VPO?
21.
We propose to apply the captioning requirements of Section 202(b) to full-length
programming, and not to video clips or outtakes.82 We seek comment on what Congress meant by the
phrase "full-length programming." We propose to define "outtakes" as content that is not used in an


78 For example, if programming was shown live on television and then re-shown over the Internet, a VPD/VPP with
permission may want to fix mistakes that occurred as a result of real-time captioning. While we do not propose
requiring the correction of such errors, we encourage VPDs/VPPs to make corrections where permitted and feasible,
given that the subject programming will be available on an ongoing basis to viewers on the VPD/VPP's website.
We believe that such improvements could significantly enhance the viewing experience of people who are deaf or
hard of hearing.
79 47 U.S.C. 613(h)(2). We note that this definition of "video programming" is almost identical to the definition
set forth in Section 602(20) of the Act. See 47 U.S.C. 522(20) (defining "video programming" as "programming
provided by, or generally considered comparable to programming provided by, a television broadcast station"). See
also Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or
Audio Programming
, Notice of Inquiry, 24 FCC Rcd 3342, 3345-46, 8 (2009) (seeking comment on whether the
definition of the term "video programming" from Section 602(20) of the Act is the definition that the Commission
should use for purposes of the Child Safe Viewing Act, and asking whether that term includes videos provided on
Internet video hosting sites such as YouTube).
80 47 U.S.C. 153(54).
81 The Senate Committee report echoed the Section 3 definition of "consumer generated media," stating that that
term "encompasses content created and made available by consumers to Internet websites and venues, including
audio, video, and multimedia content." See S. Rep. No. 111-386 at 5-6.
82 See 47 U.S.C. 613(h)(2) ("The term `video programming' means programming by, or generally considered
comparable to programming provided by a television broadcast station . . ."); see also S. Rep. No. 111-386 at 13-14
("The Committee intends, at this time, for the regulations to apply to full-length programming and not to video clips
or outtakes."); H.R. Rep. No. 111-563 at 30 (same).
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edited version of video programming shown on television, and we invite comment on this proposal. We
propose to define "video clips" as small sections of a larger video programming presentation, and we
invite comment on this proposal.83 Should we specify the definition of "video clips" by providing a
maximum duration of the video programming that constitutes a "clip," or by providing that the length of a
"video clip" may not exceed a certain percentage of the overall length of the video program? When a
full-length program is posted online in multiple segments, to enable consumers to access a particular
segment of the program, does each segment constitute a video clip?
22.
We seek comment on whether IP-delivered content that has aired on television only in
another country, and not in this country, is exempt from the CVAA's captioning requirements. Although
not explicitly stated in the CVAA, it appears that the best reading of the statute requires closed captioning
on IP-delivered video programming that was published or exhibited on television in this country with
captions after the effective date of the regulations, and we seek comment on this determination. It
appears that the differing caption standards in foreign countries could hinder the process of transferring
those captions to a suitable format for U.S. consumers and seek comment on this understanding.

B.

Schedule of Deadlines

23.
Pursuant to the CVAA, the Commission must, by January 12, 2012, "revise its
regulations to require the provision of closed captioning on video programming delivered using Internet
protocol that was published or exhibited on television with captions after the effective date of such
regulations."84 The regulations must "include an appropriate schedule of deadlines for the provision of
closed captioning, taking into account whether such programming is prerecorded and edited for Internet
distribution, or whether such programming is live or near-live and not edited for Internet distribution."85
Further, the regulations must define the phrases "near-live programming" and "edited for Internet
distribution."86 Below, we seek comment on the definitions of "live programming," "near-live
programming," "prerecorded programming," and "edited for Internet distribution." We propose to apply
these definitions solely to regulations of IP closed captioning pursuant to the CVAA, and we seek
comment on that proposal. Further, below we seek comment on the appropriate schedule of deadlines for
the provision of closed captioning.
24.
The VPAAC proposed to define "live programming" as "programming created and
presented on television and simulcast for Internet distribution to the end user as it airs on television."87
Based on conversations with members of the VPAAC, we understand that the definition of "live
programming" was meant to encompass programming such as news, sports, and awards shows, for which
captioning cannot be done in advance, rather than a "simulcast" in which potentially prerecorded
programming is shown on television and the Internet simultaneously.88 We note that, in the recent Video
Description Order
, the Commission defined "live programming" in that context as "programming aired
substantially simultaneously with its performance."89 The definition of "live programming" in the Video


83 This is consistent with the Comcast-NBCU Order, which explained that "short programming segments" are "also
known as clips." See 26 FCC Rcd at 4358 (Appendix A: Conditions).
84 47 U.S.C. 613(c)(2)(A).
85 47 U.S.C. 613(c)(2)(B).
86 47 U.S.C. 613(c)(2)(D)(i).
87 See VPAAC Report at 29.
88 We understand that a simulcast may either involve live programming or prerecorded programming.
89 See Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act
of 2010
, MB Docket No. 11-43, Report and Order, FCC 11-126, 40 (2011) ("Video Description Order").
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Description Order could achieve the same objective as the definition of "live programming" proposed by
the VPAAC. In the context of our IP closed captioning rules, however, we believe it is important to
clarify that programming is "live" if it is shown live on television. Accordingly, we propose defining
"live programming" as video programming that is shown on television substantially simultaneously with
its performance. The phrase "substantially simultaneously" contemplates that live programming may
include a slight delay, for example, to prevent certain objectionable material from airing. We seek
comment on this proposal. We understand that additional processes may need to be put in place to
facilitate the captioning of live programming when it is delivered using IP, and we seek comment on what
those processes entail and who would be responsible for them.
25.
In addition, given the VPAAC's use of the word "simulcast" in its proposed definition of
"live programming," we also seek comment on whether there are additional difficulties in providing
captioning of IP-delivered video programming, when the programming is shown on television and the
Internet simultaneously. If so, should we provide a lengthier deadline by which simulcast programming
must comply with Section 202(b)?
26.
The VPAAC proposed to define "near-live programming" as "any programming that was
produced from start to finish within 12 hours of being published or exhibited on television."90 As
referenced in Appendix C to the VPAAC Report, we understand that members of the industry and
consumer groups expressed differing views as to whether the definition of "near-live programming"
should reference programming that was "substantively produced" within 12 hours of being shown on
television. We understand based on conversations with members of the VPAAC that "substantively
produced" means programming that is largely, but not entirely, produced within 12 hours of being shown
on television. For example, a news magazine may include a number of live segments, but it may also
include some segments that were recorded and produced weeks or months earlier. It appears that
VPDs/VPPs and/or VPOs may need to put additional processes in place to handle captioning of certain
video programming that is predominantly, but not entirely, recorded and produced within 12 hours of its
distribution, such as some news magazines, because the audio may be captioned as the program is shown
on television. Accordingly, we propose to modify the VPAAC's proposed definition, and instead to
define "near-live programming" as video programming that is substantively recorded and produced within
12 hours of its distribution to television viewers.91 We invite comment on this proposal. How should we
define "substantively recorded and produced"? Should we require a certain percentage of a program to be
recorded and produced within 12 hours of the program being shown on television, for the program to be
considered "substantively produced" within that timeframe? What are examples of programming that we
should consider "near-live"? What additional processes would need to be put in place to facilitate the
captioning of such near-live programming when it is delivered using IP, and who would be responsible
for those processes?92 In lieu of our proposed definition of "near-live programming," should we instead


90 See VPAAC Report at 29. The VPAAC indicated that industry and consumer groups were not in agreement as to
the proposed definition of "near-live programming." See id. at 34-35. Further, the VPAAC indicated its
understanding "that this definition of near-live programming is only to be used for determining the schedule of
deadlines for the provision of closed captioning." See id. at 35.
91 If a program is not live, and is not substantively recorded and produced within 12 hours of its distribution to
television viewers, then we propose that it would be considered prerecorded, as explained below.
92 We note that, in the Video Description Order, the Commission adopted its proposal to define "near-live
programming" as "programming performed and recorded less than 24 hours prior to the time it was first aired." See
Video Description Order
at 40. We note that there are differences between video description and closed
captioning which may necessitate different definitions. First, the definitions of "live programming" and "near-live
programming" in the video description context had the "primary purpose [of] determin[ing] which nonbroadcast
networks are excluded from the top five . . . ." See id. at 42. In contrast, the purpose of these definitions in the IP
closed captioning context is to determine the date by which live and near-live programming must comply with our
new requirements. Second, a shorter timeframe within which the performance and recording must occur for a
(continued....)
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define that phrase as it is defined in the Video Description Order, which is "programming performed and
recorded less than 24 hours prior to the time it was first aired,"93 or would that definition be too narrow in
the IP-delivered video programming context, insofar as it excludes programming that consists of both live
segments and prerecorded programming?
27.
The VPAAC proposed definitions for programming that is "prerecorded and edited for
Internet distribution to the end user,"94 and for programming that is "prerecorded and unedited for Internet
distribution to the end user"95 Rather than adopt these two definitions, however, we think it would be
clearer to define the terms "prerecorded programming" and "edited for Internet distribution."96 We
propose to define "prerecorded programming" as video programming that is not "live" or "near-live."
Also, based on the VPAAC's recommendation, we propose to define video programming that is "edited
for Internet distribution" as video programming whose television version is substantially edited prior to
its Internet distribution. We tentatively agree with the VPAAC that examples of "substantial edits"
include when scenes are deleted or scores are changed from the television version,97 and that changes to
the number or duration of advertisements from the television version do not constitute "substantial edits."
We seek comment on these definitions. How should we distinguish "substantial edits" from
"insubstantial edits"? To what extent do VPDs/VPPs edit content for Internet distribution, and what is the
nature of such editing? We assume that any editing that is subject to these definitions does not run afoul
of copyright law. Is most prerecorded programming unedited for Internet distribution, as we have
proposed defining that phrase?
28.
The VPAAC proposed the following schedule of deadlines for compliance with the new
requirements for closed captioning of IP-delivered video programming that is published or exhibited on
television with captions after the effective date of the new rules: (1) for programming that is prerecorded
and not edited for Internet distribution, a compliance deadline of six months after the rules are published
in the Federal Register; (2) for programming that is live or near-live, a compliance deadline of 12 months
after the rules are published in the Federal Register; and (3) for programming that is prerecorded and
edited for Internet distribution, a compliance deadline of 18 months after the rules are published in the
Federal Register.98 We seek comment on the VPAAC's suggested schedule of deadlines. We believe that
these compliance deadlines are reasonable, given that they have been agreed upon by the VPAAC, which
includes industry representatives that will have to comply with our new rules as well as consumer groups


(...continued from previous page)
program to be considered "near-live" in the closed captioning context may be appropriate since closed captioning
can, in fact, be done live, whereas video description of television programming generally is not.
93 See id. at 40.
94 The VPAAC's proposed definition is "any programming that is prerecorded and has been substantially edited for
Internet distribution to the end user." See VPAAC Report at 30. The VPAAC suggested that substantial edits may
include deleting scenes or substituting music scores due to rights restrictions. See id.
95 The VPAAC's proposed definition is "any programming that is prerecorded and has not been substantially edited
for Internet distribution to the end user." See id. The VPAAC suggested that insubstantial edits may include
changes to the number or duration of advertisements. See id.
96 This is also consistent with the CVAA's requirement that we define "edited for Internet distribution." See 47
U.S.C. 613(c)(2)(D)(i).
97 According to the VPAAC, rights restrictions necessitating such edits would prevent broadcasters from
repurposing the television captions on such programming for Internet distribution to the end user. See VPAAC
Report at 30. We note that any adopted definition should not permit VPDs or VPPs to edit programming in a
manner that copyright law would otherwise prohibit.
98 See id.
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that have a strong interest in ensuring that our rules are implemented as quickly as possible. If
commenters do not believe that these compliance deadlines are reasonable, we invite them to propose
alternative compliance deadlines, with explanations as to why those deadlines would be more appropriate,
along with a discussion of the burden to comply with the proposed deadlines. We seek comment also on
why a lengthier compliance deadline is justified or necessary for programming that is live or near-live,
and for programming that is prerecorded and edited for Internet distribution.

C.

Exemption Process Where Economically Burdensome

29.
In the CVAA, Congress amended Section 713(d)(3) of the Act by replacing the term
"undue burden" with the term "economically burdensome." Specifically, Section 202(c) of the CVAA
contains a conforming amendment providing details on an exemption process by which:
a provider of video programming or program owner may petition the Commission for an
exemption from the requirements of this section, and the Commission may grant such
petition upon a showing that the requirements contained in this section would be
economically burdensome. During the pendency of such a petition, such provider or
owner shall be exempt from the requirements of this section. The Commission shall act
to grant or deny any such petition, in whole or in part, within 6 months after the
Commission receives such petition, unless the Commission finds that an extension of the
6-month period is necessary to determine whether such requirements are economically
burdensome.99
The Senate Committee on Commerce, Science, and Transportation encouraged the Commission, in
determining whether the requirements enacted under Section 202(b) are "economically burdensome," to
consider the factors listed in pre-existing Section 713(e) of the Act.100 Section 713(e) provides that the
following factors should be considered in determining whether closed captioning requirements for
television programming would result in an undue economic burden: "(1) the nature and cost of the closed
captions for the programming; (2) the impact on the operation of the provider or program owner; (3) the
financial resources of the provider or program owner; and (4) the type of operations of the provider or
program owner."101
30.
We propose to create a process by which VPPs and VPOs may petition the Commission
for a full or partial exemption of their captioning obligations based on economic burden, comparable to
the Commission's procedures for exemptions based on undue burden applicable to our television closed
captioning rules.102 Since the factors that Congress encouraged the Commission to consider here in
determining whether application of our new rules are "economically burdensome" are identical to the
factors used to determine whether the television closed captioning rules impose an "undue burden," it
appears that Congress intended that "economic burden" in this context would have the same meaning as
"undue burden" in the television closed captioning context. Accordingly, we propose to define the term
"economically burdensome" as imposing significant difficulty or expense.103 We further propose, in


99 47 U.S.C. 613(d)(3).
100 See S. Rep. No. 111-386 at 14.
101 47 U.S.C. 613(e).
102 See 47 C.F.R. 79.1(f). The process we propose to adopt herein is consistent with the Video Description Order,
in which we adopted our proposal "to reinstate the previously adopted process for requesting an individual
exemption from our rules, replacing the term `undue burden' with `economically burdensome,' while using the same
range of factors previously applied under the undue burden standard." See Video Description Order at 43
(footnote omitted).
103 In the Video Description Order, we also defined "economically burdensome" as "imposing significant difficulty
or expense." See id. at 44 and Appendix A.
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accordance with our television closed captioning rules,104 that petitioners be required to support a petition
for exemption with sufficient evidence to demonstrate that compliance with the new requirements would
be economically burdensome. In determining whether the requirements for closed captioning of IP-
delivered video programming would be economically burdensome, we propose that the Commission
consider the four factors listed above. In addition, as under the Commission's current rules in the
television context, we propose that the petitioner be required to describe any other factors that it deems
relevant to the Commission's final determination, and any available alternatives that might constitute a
reasonable substitute for the closed captioning requirements.105 Finally, we propose that the Commission
evaluate the extent to which a petitioner has successfully proven an economic burden on a case-by-case
basis, with regard to the individual outlet or programming in question, and that the Commission could
deny or approve a petition in whole or in part. We seek comment on these proposals.
31.
Regarding the exemption process, we propose to require the petitioner to file with the
Commission an original and two copies of a petition requesting an exemption based on the economically
burdensome standard, and all subsequent pleadings. Should we instead require electronic filing? We
further propose that the Commission place the petition on public notice, with comments or oppositions
due within 30 days of the public notice, and the petitioner's reply to any comments or oppositions due
within 20 days of the close of the comment period. Next, we propose that parties filing comments or
oppositions serve the petitioner with a copy and include a certification that the petitioner was served with
a copy, and that parties filing replies to comments or oppositions serve the commenting or opposing party
with a copy and include a certification that the party was served with a copy. We propose that parties
filing petitions and responsive pleadings include a detailed, full showing, supported by affidavit, of any
facts or considerations relied on. We propose codifying the statutory requirement that the Commission
consider the VPP or VPO subject to an exemption request to be exempt from the IP closed captioning
requirements while the exemption petition is pending.106 We seek comment on these proposals. We note
that the CVAA permits VPPs and VPOs to petition the Commission for an exemption. Although we have
proposed defining VPP and VPD to mean the same thing,107 if we ultimately define them differently,
should we conclude that Congress intended both VPPs and VPDs to benefit from the economic exemption
process?108
32.
In addition to case-by-case exemptions discussed above, the CVAA permits the
Commission to "exempt any service, class of service, program, class of program, equipment, or class of
equipment for which the Commission has determined that the application of such regulations would be
economically burdensome for the provider of such service, program, or equipment."109 We note that the
existing rules for closed captioning of television programming contain a number of categorical
exemptions.110 Since the new requirements for closed captioning of IP-delivered video programming will


104 47 C.F.R. 79.1(f)(2).
105 See 47 C.F.R. 79.1(f)(3) (containing the comparable rule in the television closed captioning context).
106 47 U.S.C. 613(d)(3). Section 202(c) of the CVAA requires the Commission to resolve such exemption
petitions within six months of their receipt, unless the Commission finds that an extension of the six month period is
necessary to determine whether the requirements are economically burdensome. 47 U.S.C. 613(d)(3).
107 See Section III.A., supra.
108 See 47 U.S.C. 613(c)(2)(D)(iii) (clarifying that VPDs and VPPs both include entities that make IP-delivered
video programming available directly to the end user).
109 47 U.S.C. 613(c)(2)(D)(ii). The VPAAC did not address "the determination of economically burdensome
relative to services, programs and equipment." See VPAAC Report at 35.
110 See 47 C.F.R. 79.1(d). The Commission created exemptions for the following categories of programs and
providers: programming subject to contractual captioning restrictions; video programming or a video programming
(continued....)
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not be triggered unless the programming is shown on television with captions after the effective date of
the new rules, it seems that the inclusion of the previous categorical exemptions in our new rules would
generally be duplicative. In other words, if a program is not captioned on television because it is subject
to one of the existing categorical exemptions, then it will not be required to be captioned when delivered
via IP. For this reason, it does not appear that the categorical exemptions found in the television closed
captioning rules are applicable here, and we seek comment on adopting this approach. Further, the
CVAA makes no distinction as to whether the television programming must be captioned under the
Commission's television captioning rules or whether the captioning was included voluntarily.
Accordingly, we believe that once programming is captioned on television, it must be captioned when
delivered via IP even if it otherwise would have been subject to one of our television closed captioning
exemptions. We seek comment on this proposal as well. If a program with audio in a language other than
English or Spanish is captioned on television, even though such captioning is not required,111 should we
require the program to include captions when delivered via IP?
33.
The CVAA also permits the Commission to delay or waive the applicability of its IP
closed captioning rules to live programming "to the extent the Commission finds that the application of
the regulation to live video programming delivered using Internet protocol with captions after the
effective date of such regulations would be economically burdensome to providers of video programming
or program owners."112 The VPAAC considered the special nature of live programming by proposing a
longer compliance deadline for live programming than for prerecorded and unedited video programming.
Given that the VPAAC recommendation reflects a consensus achieved by representatives of both
consumers and the affected industries, we propose not to institute any further delay or waiver of the
applicability of the Commission's new IP closed captioning rules to live programming at this time, and
we seek comment on this proposal.

D.

Mechanism for Information on Video Programming Subject to the CVAA

34.
The CVAA requires the Commission to "establish a mechanism to make available to
video programming providers and distributors information on video programming subject to the [CVAA]
on an ongoing basis."113 The purpose of the mechanism would be to ensure that VPDs/VPPs have a way
of finding out whether the video programming they intend to make available via IP has been shown on
television with captions after the effective date of the new rules. The CVAA further explains that the new
regulations of IP closed captioning:
shall consider that the video programming provider or distributor shall be deemed in
compliance if such entity enables the rendering or pass through of closed captions and
makes a good faith effort to identify video programming subject to the [CVAA] using the


(...continued from previous page)
provider for which the captioning requirement has been waived; programming other than English or Spanish
language; primarily textual programming; programming distributed in the late night hours; interstitials, promotional
announcements and public service announcements; Educational Broadband Service programming; locally produced
and distributed non-news programming with no repeat value; programming on new networks; primarily non-vocal
music programming; captioning expense in excess of two percent of gross revenues; channels producing revenues of
under $3,000,000; and locally produced educational programming.
111 See 47 C.F.R. 79.1(d)(3) (exempting from the television closed captioning requirements "[a]ll programming for
which the audio is in a language other than English or Spanish, except that scripted programming that can be
captioned using the `electronic news room' technique is not exempt"). The "electronic news room" television
captioning technique creates captions from a news script computer or teleprompter, and it is commonly used for live
newscasts.
112 47 U.S.C. 613(c)(2)(C).
113 47 U.S.C. 613(c)(2)(D)(v).
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mechanism [referenced above].114
35.
Accordingly, we seek comment on the "mechanism" that should be used to make
available to VPDs/VPPs information on video programming that must be captioned when delivered via
IP. We presume that VPOs are in the best position to know if captions are required for a particular
program (i.e., whether the program has been shown on television with captions after the effective date of
the new rules). We seek comment on this presumption. We propose to require VPOs providing video
programming to VPDs/VPPs for IP delivery to provide each program either with captions simultaneously,
or with a dated certification stating that captions are not required for a reason stated in the certification.
Suitable reasons for a VPO to provide a program without captions might include, for example, that the
program is not a full-length program,115 has not been "published or exhibited on television with captions
after the effective date of" the new rules,116 or has been exempted from the requirements.117 Are VPOs
aware of the identity of all VPDs/VPPs that are authorized to make the VPO's video programming
available directly to the end user through a distribution method that uses IP? Would VPDs/VPPs and
VPOs need to revise their contractual agreements to reflect their new obligations? Do VPOs have
contracts with all VPDs/VPPs that are authorized to make the VPO's programming available to end users
via IP, and if not, would the proposed certifications be workable?
36.
We also propose to require VPDs/VPPs to retain all such VPO certifications for as long
as they make the certified programming available to end users through a distribution method that uses IP
and at least one calendar year thereafter. Because the CVAA provides that the Commission shall consider
a VPD/VPP "in compliance if such entity enables the rendering or pass through of closed captions and
makes a good faith effort to identify video programming subject to the [CVAA] using the mechanism," it
seems that generally a VPD/VPP would not be subject to an enforcement action if it relied in good faith
on a VPO's erroneous certification that captioning was not required for a particular program and did not
know or have reason to know (at any time) that the certification was erroneous. If a VPP/VPD knew or
should have known that a certification was erroneous,118 the Commission could take action against the
VPP/VPD as well as (or instead of) against the VPO that submitted the erroneous certification.
Otherwise, however, the Commission's recourse in the case of a faulty certification would be enforcement
action against the VPO only. We seek comment on how we should approach closed captioning
compliance certifications, including comments on whether and how the inclusion of indemnification
clauses in contracts between VPDs/VPPs and VPOs may affect the effectiveness of our proposed
approach. We seek comment also on the situation where a VPO may pass along captions for a program
but, as a legal matter, the captions are not required for that program because the program has not been
shown on television with captions after the effective date of the new rules. Would the Commission have
the authority to require the VPD/VPP to enable the rendering or pass through of such captions, when they
are provided by the VPO? Or instead, should the VPO make known to the VPDs/VPPs that captioning is
not required under Commission rules for that IP-delivered program even though the VPO is sending
captions to the VPD/VPP? We recognize that, while a program may not be subject to the captioning


114 47 U.S.C. 613(c)(2)(D)(vi). The VPAAC did not address the definition of a "good faith effort to identify video
programming" subject to the CVAA. See VPAAC Report at 35.
115 See Section III.A., supra.
116 See 47 U.S.C. 613(c)(2)(A). Thus, the CVAA's requirements for captioning of IP-delivered video
programming are not triggered unless the programming is published or exhibited on television with captions after
the effective date of the new rules.
117 See Section III.C., supra.
118 Paragraph 16, above, includes questions regarding what types of evidence could be considered in an enforcement
proceeding to determine a VPD/VPP's knowledge and who should bear the burden of proof on that issue.
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requirements as of the effective date of the new rules, it might later become subject to the requirements,
once the program is re-run on television with captions after the effective date. Accordingly, we propose
to require VPOs to keep their certifications current, and to provide VPDs/VPPs with any revised
information as to the captioning status of previously delivered programming within seven days of the
underlying change (i.e., within seven days of a program being shown on television with captions for the
first time after the effective date of the new rules). If the underlying change of status requires that the
programming at issue be captioned pursuant to the CVAA, we propose to require the VPO also to deliver
within seven days the caption file, if not previously delivered, to the VPDs/VPPs. We also propose to
require VPDs/VPPs to make required captions available online within five days of the receipt of an
updated certification.119 We seek comment on the five day timeframe, which would provide VPDs/VPPs
with time to update their existing program files.120 Are seven and five days, respectively, appropriate
timeframes within which to require VPOs to provide updated certifications, and to require VPDs/VPPs to
provide newly required captions?
37.
In the alternative to the certification proposal discussed above, we seek comment on other
types of "mechanisms" the Commission could adopt to ensure that VPDs/VPPs know which
programming is required to be captioned. For example, should we simply permit the relevant parties to
effectuate a mechanism through private contracts?121 Or, should we instead require VPOs to send, along
with the program and caption files, encoded information informing the VPDs/VPPs as to whether the
program has been captioned on television (to the extent it is technically possible to do so)? Or, rather
than place requirements on the relationship between the VPO and the VPD/VPP, we could require
VPDs/VPPs to provide certain information to consumers, demonstrating that the VPDs/VPPs have
complied with our regulations. Do we have authority to require VPDs/VPPs to provide certain
information to consumers? If so, should we require the VPD/VPP to provide information to consumers
such as: the name of the program, and information sufficient to identify the episode; the identity of the
VPD/VPP responsible for delivering the program; the device or software on which the consumer is
watching the program (to the extent known);122 and whether the program is required to include
captioning, and, if not, an explanation. This information could be provided to consumers along with the
IP-delivered video programming, for example, as a link from or a pop-up window adjacent to the
programming. Overall, this approach would equip consumers with useful information and might lead to
fewer and better supported complaints. While requiring VPDs/VPPs to provide this information with
IP-delivered video programming would necessitate a certain level of coordination with VPOs, thus
investing VPDs/VPPs and VPOs in the process, we recognize that this approach could pose technical
challenges that may have to be overcome and could impose costs on the relevant parties. Accordingly,
we seek comment on the costs and benefits of such an approach.
38.
Still another approach would be for the Commission to rely on independent third parties


119 This five day timeframe would not apply to programming for which the schedule of deadlines was not yet
triggered. See Section III.B., supra.
120 In contrast, when a VPD/VPP receives a program initially with required captions, we see no need to provide for a
delay between receipt of the captions and the date by which captions must be made available with the program,
since there is no existing file to update.
121 A private contractual mechanism might, for example, obligate the contracting VPO to provide all required
captions for IP delivery, while requiring the contracting VPD/VPP to enable the rendering or pass through of all
such captions to the end user.
122 The device or software is an important consideration because if the consumer is viewing IP-delivered video
programming through a device or software that is not required to support captions, that would explain why a
consumer is unable to view required captions. We understand that it is possible for a device itself to fill in the
information on the device's identity, without direct involvement of the VPD/VPP.
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to provide databases containing information on all video programming that is shown on television with
captions after the effective date of the new rules. For example, we know that there are companies today
that already collect this information and it is available for purchase by the Commission and other
parties.123 An advantage of this approach is that, potentially, it could allow any VPD/VPP to go to an
independent source to verify whether the programming it wishes to exhibit must be shown with captions
when delivered via IP. Consumers, too, might be able to access this database to learn whether programs
they wish to watch are required to contain captions.124 What technical and administrative difficulties
would the use and maintenance of such a database create? Who would fund such a database? To what
extent could such a database be automated? What other type of "mechanisms" could the Commission
establish to ensure that VPDs/VPPs have up-to-date information about the captioning status of the
programming they intend to show?

E.

Technical Standards for IP-Delivered Video Programming

39.
CEA-608 is the technical standard used for analog closed captioning, and CEA-708 is the
technical standard used for digital closed captioning.125 The VPAAC stated that CEA-708 "provides for a
rich set of features and capabilities above and beyond those supported by CEA-608 captions. In addition,
CEA-608 captions can be transported within 708."126 Because millions of households today still use
analog television receivers that cannot decode CEA-708 captions, CEA-608 captions remain relevant.127
On the Internet, there are currently multiple closed captioning formats.128 In light of the decades of video
programming that has been captioned using the CEA-608/708 standards, the VPAAC concluded that "a
standard format must be specified for these captions to be delivered via Internet protocols in such a way
that the consumer's experience is in no way degraded."129 Specifically, the VPAAC suggested "that there
be a single standard interchange format for content providers to encode closed captions into programming
before they distribute it," such that video programming would not need to be re-captioned to comply with
different standards.130 Regarding delivery format, the VPAAC suggested that there should not be a single
standard, so as to provide the Internet with sufficient flexibility to evolve.131 The VPAAC stated that
"distributors of programming services and applications must be required to (a) receive the captioned
content from the content provider encoded in the standard interchange format, and then (b) ensure that
any reformatting performed before delivery to end users (consumers) is supported by the applications and


123 Rovi and Tribune Media Services are examples of two such companies. Through their databases, they currently
maintain information on when programs are shown on television with captions. This information could be used to
determine when the CVAA's captioning requirements are triggered.
124 Consumers then may be less likely to file complaints about programs that are not covered by the CVAA, thereby
conserving resources for the Commission and covered entities.
125 See, e.g., VPAAC Report at 8-9.
126 See id. at 9.
127 See id.
128 See id. at 11-12.
129 See id. at 17.
130 See id. See also n. 57, supra (setting forth the VPAAC's proposed definition of "interchange format").
131 See VPAAC Report at 17. See also n. 57, supra (setting forth the VPAAC's proposed definition of "delivery
format").
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devices . . . used for playback . . . ."132
40.
We seek comment on whether to specify a particular standard for the interchange format
or delivery format of IP-delivered video programming subject to Section 202(b) of the CVAA. We note
that closed captions are included on certain IP-delivered video programming today, even in the absence of
a single standard for the interchange format or the delivery format. Accordingly, we propose to refrain
from specifying any particular standard for the interchange format or delivery format of IP-delivered
video programming at this time, in order to foster the maximum amount of technological innovation. We
seek comment on this proposal. How necessary is it for the Commission to select an interchange and
delivery format standard? If we decide to deem a particular standard compliant, what should that
standard be? After considering several standards, the VPAAC recommended the Society of Motion
Picture and Television Engineers ("SMPTE") Timed Text ("SMPTE-TT") standard for the interchange
format because it "best meets all the requirements" and because it "is already being employed in
production environments to repurpose television content for Internet use."133 At this juncture, however,
we do not propose adopting a specific interchange format because it is our understanding that the
interchange format involves negotiations between the VPO and the VPD/VPP, which typically require the
entities involved to reach a mutually agreeable solution. It makes sense that, if SMPTE-TT is the best
interchange format, the industry will settle on that format without Commission intervention and, if it is
not, they will come to a different agreed-upon format. Further, the proposal to mandate particular
features that must be supported134 will, in effect, ensure a robust interchange format. If ultimately we do
decide to deem a particular standard compliant, should we permit the parties to petition the Commission
to use "alternate means" rather than the standard we adopt?135 Should we require accommodation of both
in-band and out-of-band delivery of closed captions?136 What are the benefits and harms of specifying a
particular "interchange format" or "delivery format" for IP-delivered video programming subject to
Section 202(b) of the CVAA?

F.

De Minimis Failure to Comply and Alternate Means of Compliance

41.
Section 202(b) of the CVAA requires the Commission's regulations to "provide that de
minimis failure to comply with such regulations by a video programming provider or owner shall not be
treated as a violation of the regulations."137 The statute and legislative history do not elaborate upon the
meaning of "de minimis failure to comply." We seek comment on what constitutes a "de minimis failure
to comply." In determining whether a failure to comply is de minimis, we propose to consider the
particular circumstances of the failure to comply, including the type of failure, the reason for the failure,
whether the failure was one-time or continuing, and the timeframe within which the failure was remedied.
We seek comment on this proposal and any other factors that should be considered in determining what


132 See VPAAC Report at 17. In other words, "For interchange purposes, captions may be encoded in the single,
defined interchange format; for delivery purposes, captions may be encoded either in interchange or delivery
formats as long as captions are always available to all video users." See id. at 18.
133 See id. at 26.
134 See Section III.A., supra (proposing a requirement that the same user tools, such as the ability to change caption
font and size, which are available on television, should be made available for IP-delivered video programming).
135 See Section III.F., infra.
136 See VPAAC Report at 24 (". . . VPAAC recommends that platforms and applications accommodate in-band
and/or out-of-band delivery techniques as appropriate."). When closed captions are delivered "in-band," they are
"embedded in the video data stream or file," which is likely "the most optimal delivery method for live simulating
[sic] of a television channel." See id. at 23-24. When closed captions are delivered "out-of-band," they are "a
separate data stream or file from the video," which is "more flexible." See id.
137 47 U.S.C. 613(c)(2)(D)(vii).
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constitutes a "de minimis failure to comply."
42.
Congress determined in the CVAA that an entity may meet the requirements of Section
202(b) of the CVAA "through alternate means than those prescribed by regulations . . . if the
requirements of this section are met, as determined by the Commission."138 The statute and legislative
history do not elaborate upon the meaning of "alternate means" in Section 202 of the CVAA, although the
House Committee explained that in the context of Section 203, alternate means was intended "to afford
entities maximum flexibility in meeting the requirement that video programming delivered using Internet
protocol be captioned," and that the Commission should "provide some flexibility where technical
constraints exist."139 We seek comment on how to define this term to best effectuate Congressional
intent. For example, did Congress mean that the Commission should permit those subject to the IP closed
captioning requirements to use alternate technical standards for the transmission and exhibition of IP
closed captioning?140 We seek comment on the "alternate means" that we should consider permissible,
with a goal of fostering technological advancement through some flexibility, and in recognition of the fact
that a single standard may not be feasible for all VPDs/VPPs and VPOs in all circumstances. Should we
require any "alternate means" to provide a viewing experience that is equal or superior to that otherwise
available to the general public? If we decline to specify a particular standard for the interchange format
or delivery format of IP-delivered video programming, is it still necessary for us to consider permissible
"alternate means"?

G.

Complaint Procedures

43.
We propose to adopt procedures for complaints alleging a violation of the IP closed
captioning rules that are analogous to the procedures the Commission uses for complaints alleging a
violation of the television closed captioning rules.141 With some modification, it appears that these
proposed complaint procedures generally would work in the IP-delivered video closed captioning context.
The procedures for complaints alleging a violation of the television closed captioning rules require a
complaint to be filed with the Commission or the video programming distributor responsible for
delivering the program within 60 days of the problem with captioning, and they provide that "[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."142 When the Commission receives complaints
alleging a violation of the television closed captioning rules, it forwards the complaint to the appropriate
video programming distributor (as that term is defined in the television closed captioning context), which
must respond in writing to the Commission and the complainant within 30 days of receiving the
complaint from the Commission.143 The television video programming distributor is required "to provide
the Commission with sufficient records and documentation to demonstrate that it is in compliance with
the Commission's rules."144 The Commission then reviews the complaint, including all supporting
evidence, and determines if a violation has occurred.145 The Commission may request additional


138 47 U.S.C. 613(c)(3).
139 H.R. Rep. No. 111-563 at 31.
140 See Section III.E., supra (discussing technical standards for IP-delivered video programming).
141 See 47 C.F.R. 79.1(g).
142 See 47 C.F.R. 79.1(g)(1).
143 See 47 C.F.R. 79.1(g)(2).
144 See 47 C.F.R. 79.1(g)(5).
145 See 47 C.F.R. 79.1(g)(7).
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information from the television video programming provider, if needed.146
44.
We seek comment on whether to apply comparable procedures to complaints alleging a
violation of the closed captioning rules for IP-delivered video programming. Is 60 days the appropriate
timeframe within which to require a complaint about a captioning problem? Unlike television, where
programs are exhibited at specific times, Internet programming is available continuously to any viewer.
Given this, we seek comment on when this 60-day period should begin to run. Should it begin to run
from the latest date on which the program was available on the Internet to consumers without required
captions? How should we handle intermittent problems where closed captioning may not be transmitted
continuously or with every streaming session? Would the best course be to eliminate the 60-day filing
window altogether as unenforceable in the IP-delivered video programming market?
45.
In addressing complaints alleging a violation of the IP closed captioning rules, we
propose that the Commission will forward complaints to the named VPD/VPP and/or VPO, as well as to
any other VPD/VPP and/or VPO that Commission staff determines may be involved. Upon receipt of a
consumer complaint, should we require the VPD/VPP or VPO to attempt to resolve the dispute with the
complainant, before proceeding with the Commission's complaint process? We further propose to
permit the Commission to request additional information from any relevant parties when, in the
estimation of Commission staff, such information is needed to investigate the complaint or adjudicate
potential violation(s) of Commission rules.147 Generally, we expect that consumers will direct their
complaints to the VPD/VPP, since that is the entity from which the consumer views the programming, but
the Commission could instead, or in addition, direct any resulting investigation and subsequent
enforcement action against the VPO to the extent necessary and appropriate. The bureau handling the
complaint would be expected to act in an expeditious fashion to determine which entity(ies) is/are
responsible and dismiss claims against any others. In that vein, we seek comment as to whether a
shotclock should be imposed. In recognition of the breadth of the IP-delivered video programming
market, we propose to state explicitly in the rules that, although the Commission will generally require
VPDs/VPPs and VPOs to respond to complaints within 30 days, the Commission may lengthen the
required response period on a case-by-case basis (for example, when it is difficult to determine which
entity is responsible for the alleged violation). We seek comment on these proposed complaint
procedures. As in the television context, should we permit those filing complaints alleging a violation of
the closed captioning requirements for IP-delivered video programming to file the complaint directly with
the VPD/VPP first,148 or is it preferable to require that all complaints come directly to the Commission in
the first instance? If the Commission finds that a VPD/VPP or VPO has violated the requirements for
closed captioning of IP-delivered video programming, what sanctions or remedies should it impose?149
We propose to adjudicate each complaint on its merits and employ the full range of sanctions and
remedies available to the Commission under the Act.
46.
Complaints alleging a violation of the television closed captioning requirements can be
filed online,150 or by fax or postal mail. We seek comment on whether the same options should be


146 See id.
147 This flexibility would enable the Commission to determine which of the entities involved the VPD/VPP or
VPO is responsible.
148 See 47 C.F.R. 79.1(g)(1).
149 We note that in 2004, a petition filed by consumer groups proposed a base forfeiture of $8,000 for violations of
the Commission's closed captioning rules. See Telecommunications for the Deaf, Inc. et al. Petition for
Rulemaking, RM-11065 (July 23, 2004). Petitioners included Telecommunications for the Deaf, Inc., the National
Association of the Deaf, Self Help for Hard of Hearing People, the Association for Late Deafened Adults, Inc., and
the Deaf and Hard of Hearing Consumer Advocacy Network (DHHCAN).
150 See http://www.fcc.gov/complaints.
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available for complaints alleging a violation of the closed captioning requirements for IP-delivered video
programming. As in the Video Description Order, should we instead permit viewers to file complaints
about a failure to comply with the closed captioning rules for IP-delivered video programming by "any
reasonable means," including any method that would best accommodate the complainant?151 Should the
Commission revise the existing complaint form for disability access complaints (Form 2000C) to request
information specific to complaints involving IP closed captioning? To foster the Commission's efficient
review of complaints, should the Commission decline to consider complaints that do not include certain
information, and if so, what information should be required? Such information might include, for
example: (i) the name and address of the complainant; (ii) the name and postal address, website, or email
address of the VPD/VPP and/or VPO against whom the complaint is alleged, and information sufficient
to identify the video programming involved; (iii) information sufficient to identify the software or device
used to view the program; (iv) a statement of facts sufficient to show that the VPD/VPP and/or VPO has
violated or is violating the Commission's rules, and, if applicable, the date and time of the alleged
violation; (v) the specific relief or satisfaction sought by the complainant; and (vi) the complainant's
preferred format or method of response to the complaint.
47.
Section 79.1(i) of our television closed captioning rules requires video programming
distributors, as that term is defined in the context of television closed captioning, to provide certain
contact information. Specifically, television video programming distributors must provide contact
information by which consumers may contact them immediately, at the time that a captioning problem is
discovered.152 Television video programming distributors must also provide contact information for the
receipt and handling of written closed captioning complaints.153 Television video programming
distributors must file this contact information with the Commission, which then makes it available on a
database of television video programming distributors.154 We seek comment on whether we should
impose comparable contact information requirements on VPDs/VPPs as part of our rules governing
closed captioning of IP-delivered video programming, to assist consumers wishing to reach out to
VPDs/VPPs about their concerns or complaints, and to assist the Commission in resolving complaints.
Instead of providing VPD/VPP contact information through a database, should we require VPDs/VPPs to
provide this information directly to viewers of IP-delivered video programming, for example, through the
VPD/VPP's website? What contact information should we require VPDs/VPPs to provide consumers?155
We also ask whether we should apply any other existing provisions of the television closed captioning
rules to the rules governing captioning of IP-delivered video programming.

IV.

SECTION 203 OF THE CVAA

A.

Scope of Section 203 of the CVAA and Exempted Apparatus

48.
Section 203 of the CVAA seeks to extend closed captioning requirements to the devices


151 See Video Description Order at 55.
152 See 47 C.F.R. 79.1(i)(1) (requiring television video programming distributors to "designate a telephone
number, fax number, and e-mail address for purposes of receiving and responding immediately to any closed
captioning concerns," and requiring distributors to "include this information on their Web sites (if they have a Web
site), in telephone directories, and in billing statements").
153 See 47 C.F.R. 79.1(i)(2).
154 See 47 C.F.R. 79.1(i)(3); http://esupport.fcc.gov/vpd-search/search.action#scrollThere.
155 See Closed Captioning of Video Programming, Order, 24 FCC Rcd 14837, 14838, 4 (2009) (describing the
webform by which television video programming distributors may submit their contact information). Television
video programming distributors may enter their contact information at https://esupport.fcc.gov/vpd-
data/login!input.action.
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consumers use to access video programming.156 Specifically, Section 203(a) of the CVAA directs the
Commission to require that the devices consumers use to receive or play back video programming are
equipped to decode and display closed captioning,157 while Section 203(b) extends requirements to
devices that record video and to the interconnection mechanisms that carry signals from these source
devices to consumer equipment.158 In this section, we seek to address the specific classes of devices
subject to these provisions, as well as those that fall into various statutory exemptions. Additionally, we
address the issues of what functionality must be supported by these devices and whether that functionality
may vary based on specific devices. However, while Section 203(a) of the CVAA significantly expands
the requirement to implement closed captioning capabilities to essentially all apparatus, Section 203 also
provides substantial limitations on this expanded definition. These limitations (1) that implementation
of closed captioning capability be achievable for apparatus with pictures screens less than 13 inches in
size and for apparatus designed to record video programming transmitted simultaneously with sound;159
(2) that the requirements do not apply to display-only monitors;160 and (3) that the Commission may
waive the requirements for devices which derive their essential utility from uses other than video
playback161 demand varying degrees of interpretation and clarification.
49.
All Apparatus. Section 203(a) of the CVAA requires that "if technically feasible" each
"apparatus designed to receive or play back video programming transmitted simultaneously with sound . .
. be equipped with built-in closed caption decoder circuitry or capability designed to display closed-
captioned video programming."162 We seek comment on the issue of what constitutes an "apparatus."
How should the Commission determine whether it is "technically feasible" for apparatus to meet the
requirements of Section 203? We note that neither the statute nor legislative history gives us guidance on
a definition of apparatus. Nevertheless, we begin with the assumption that the term includes all hardware
that is used in receiving or playing back video programming. At the same time, we note that the CVAA
gives the Commission authority to waive the requirements of its rules requiring the display, render or pass
through of closed captioning for apparatus or any class of apparatus "(i) primarily designed for activities
other than receiving or playing back video programming transmitted simultaneously with sound; or (ii)
for equipment designed for multiple purposes, capable of receiving or playing video programming
transmitted simultaneously with sound but whose essential utility is derived from other purposes."163
50.
Therefore, we seek comment on how to determine whether hardware is primarily
designed for receiving or playing back video programming transmitted simultaneously with sound, and
how to determine whether hardware derives its essential utility from receiving and playing back video.
The legislative history expanded on the availability of waivers by stating that the Commission may waive
the Section 203 closed captioning requirements "where, for instance, a consumer typically purchases a
product for a primary purpose other than viewing video programming, and access to such programming is
provided on an incidental basis."164 In making waiver decisions, the Commission generally considers


156 See S. Rep. No. 111-386 at 14; H.R. Rep. No. 111-563 at 30-31.
157 Pub. L. No. 111-260, 203(a).
158 Pub. L. No. 111-260, 203(b).
159 47 U.S.C. 303(u)(2)(A), 303(z)(1).
160 47 U.S.C. 303(u)(2)(B).
161 47 U.S.C. 303(u)(2)(C).
162 47 U.S.C. 303(u)(1)(A).
163 47 U.S.C. 303(u)(2)(C).
164 See S. Rep. No. 111-386 at 14; H.R. Rep. No. 111-563 at 30.
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whether special circumstances exist that warrant deviation from the general rule, and whether the waiver
will serve the public interest.165 Accordingly, we seek comment on the factors that the Commission
should evaluate in determining whether an apparatus is eligible for a waiver. Should we consider how the
apparatus is designed and marketed? How should we consider the fact that different people may consider
the same device as having a different "essential utility"? In recognition of the fact that, as technology
evolves, the "essential utility" of apparatus may change, should waivers be temporary, and if so, what
should their duration be and what process should be used for renewing waivers? We invite examples of
apparatus that are or are not primarily designed for receiving or playing back video programming
transmitted simultaneously with sound, and examples of apparatus that do or do not derive their essential
utility from receiving and playing back video. Where do devices such as video gaming consoles, cellular
telephones, and tablet devices fit within these criteria? Are there are any specific classes of apparatus that
warrant the establishment of a categorical or blanket waiver, or should all waivers be addressed case-by-
case? We note that personal computers and video gaming consoles are used by a large percentage of
viewers of VPDs/VPPs.166 Should we make any special considerations for these devices? If the
Commission considers waivers for a particular "class" of apparatus, what factors should we consider, and
how should we determine what apparatus constitute a "class"? Should the Commission adopt a process
for determining whether to waive the closed captioning requirements of Section 203 of the CVAA, or
should we handle waivers pursuant to Section 1.3 of our rules?167
51.
We also seek comment on whether apparatus also includes software. To what extent is
hardware that is designed to receive or play back video programming dependent on software for its
functionality? For example, consumers view programming intended to be covered by Section 202 on
personal computers and cellular telephones. Both a computer and a cellular phone can be viewed as a
single apparatus or several working together, such as the processor, memory, and storage, the display and
other peripheral components, and the operating system and applications. If software is considered an
apparatus, we seek comment on how the Commission can ensure compliance, particularly when software
is provided over the Internet directly to the end user. 168
52.
Screen Size and Display-Only Monitors. The closed captioning requirement of the
CVAA is no longer restricted to television receivers or to those devices with screens larger than 13
inches, exceptions that were put into place by the Television Decoder Circuitry Act.169 As Congress
noted, consumers now view video programming on smaller and portable devices, and to the extent
"achievable," closed captioning must be made available on these devices.170 However, apparatus that use
a picture screen that is less than 13 inches in size and that are designed to receive or play back video must
be equipped with built-in closed caption decoder circuitry or the capability to display closed captions only
if this is "achievable."171 Therefore, while we propose to remove the screen-size limitation entirely from


165 Northeast Cellular Telephone Co., L.P. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (citing WAIT Radio v.
FCC
, 418 F.2d 1153, 1159 (D.C. Cir. 1969)); see also 47 C.F.R. 1.3.
166 Nielsenwire, "What Netflix Viewers Are Watching... And How," July 27, 2011 at
http://blog.nielsen.com/nielsenwire/online_mobile/what-netflix-and-hulu-users-are-watching-and-how/ (visited
August 30, 2011).
167 See 47 C.F.R. 1.3 ("Any provision of the [Commission's rules] may be waived by the Commission on its own
motion or on petition if good cause therefor is shown.").
168 Section 330(b) of the Act as modified by the CVAA prohibits the shipment in interstate commerce, manufacture,
assembly or import from a foreign country of apparatus violating the rules we adopt in this proceeding.
169 Pub. L. No. 101-431, 104 Stat. 960 (1990). Previously codified at 47 U.S.C. 303(u), 330(b).
170 S. Rep. No. 111-386 at 14.
171 47 U.S.C. 303(u)(2)(A).
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Section 15.119 and Section 15.122 of the Commission's rules, and to not include any screen size
limitation in our new rules,172 we address the issue of achievability below. Additionally, the CVAA
provides that "any apparatus or class of apparatus that are display-only video monitors with no playback
capability are exempt from the requirements" to display or render captions and we subsequently propose
adopting this exception as written.173 How should the Commission define devices that qualify for
inclusion in this exempted category of apparatus? It would seem that Congress intended to exempt
computer monitors with this language, because the monitor itself lacks playback capability. We seek
comment on what other devices, if any, Congress intended to exempt by this language.
53.
Achievability. The CVAA contains a definition for achievability, directing that for the
purposes of the CVAA, determining whether a requirement is achievable consists of evaluating the
following factors: (1) the nature and cost of the steps needed to meet the requirements of this section with
respect to the specific equipment or service in question; (2) the technical and economic impact on the
operation of the manufacturer or provider and on the operation of the specific equipment or service in
question, including on the development and deployment of new communications technologies; (3) the
type of operations of the manufacturer or provider; and (4) the extent to which the service provider or
manufacturer in question offers accessible services or equipment containing varying degrees of
functionality and features, and offered at differing price points.174 We seek comment on how to apply this
definition to apparatus subject to Section 203 of the CVAA. Under this definition, what classes of
devices that are otherwise designed to display or record video are nevertheless incapable of supporting
closed captioning? Is there a screen size or resolution at which it would become so difficult to read
captions that there would be no benefit to justify the cost of including this capability? Are there devices
which simultaneously contain the processing power to display video yet are incapable of processing the
additional data necessary to display closed captions? Finally, what characteristics of a manufacturer's
operations should the Commission consider in determining whether it is achievable for that manufacturer
to include closed caption capability in a device with a screen size less than 13 inches? For example,
should the Commission consider whether the manufacturer is a small business, and if so, is there an
existing definition of "small business" that the Commission should apply? How should an evaluation of
what is "achievable" differ from an evaluation of what is "technically feasible"?175
54.
Recording Devices. In addition to devices that consumers use to directly view video,
those that record video must also have closed-captioning capability. Specifically, the CVAA added
Section 303(z) to the Act, which requires that, "if achievable . . . apparatus designed to record video
programming . . . [must] enable the rendering or the pass-through of closed captions."176 Thus, we seek
comment on codifying this requirement verbatim in our rules and interpreting "apparatus" that are
designed to "record video programming" to also include hardware-only products. We seek comment on
whether we should also interpret "apparatus" that are designed to "record video programming" to include
software-only products, such as software designed to enable a PC to function as a video recording
platform. While some devices, such as digital video recorders, plainly appear to be covered by this
section, other devices, such as network-connected hard drives, also can be used to record video. For
example, home-networking protocol suites, such as DLNA,177 permit networked devices, such as


172 47 C.F.R. 15.119 (closed captioning requirements for analog television receivers), 47 C.F.R. 15.122 (closed
captioning requirements for digital television receivers).
173 47 U.S.C. 303(u)(2)(B).
174 47 U.S.C. 617(g).
175 See 49, supra.
176 47 U.S.C. 303(z)(1).
177 See Digital Living Network Alliance, www.dlna.org.
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computers and hard-drives, to be used for video storage while control of those devices is accomplished by
a combination of software running on the device itself and on devices accessing or manipulating the video
stream. We seek comment on the proper scope of the definition of "apparatus designed to record video
programming." Additionally, to the extent the definition of "achievable" differs from that discussed
above, we seek comment on determining the capabilities of recording devices relative to display devices.
55.
Interconnection Mechanisms. Finally, the CVAA directs the Commission to regulate
interconnection mechanisms. Specifically, the CVAA requires that "interconnection mechanisms and
standards for digital video source devices [be] available to carry from the source device to the consumer
equipment the information necessary to permit or render the display of closed captions."178 We seek input
on how this objective can best be achieved. Is it sufficient to require that intermediate devices, such as
set-top boxes and digital video recorders, be capable of conveying closed captions to display devices and
to assume that standards for interconnection will be developed as necessary? Does the Commission need
to extend its regulations to manufacturers or standards bodies that develop and deploy these
interconnection mechanisms to ensure that they are capable of conveying closed captioning information?
Should the Commission take a more active role in requiring a particular standard? We additionally seek
comment on what specific connections Congress intended to be covered by this provision. For example,
component video connections and HDMI, used to transmit high definition video signals from a set-top
box or computer to a television or monitor, do not carry closed captions.179 However, based on our
requirements, those devices connected to the television or monitor via HDMI or component video would
be required to render the captions prior to transmitting the video signal. Did Congress intend to cover
home networking connections, such as WiFi or Multimedia Over Coax (MoCA), and if so, should we
instead direct our attention to the protocol suites which use these interconnection technologies, such as
DLNA? We seek comment on what it means to carry the necessary information to "permit or render the
display of closed captions" and what existing technologies satisfy this requirement.

B.

Obligations under Section 203 of the CVAA

56. In this NPRM, we also seek comment on the features and specifications that must be
supported by the devices covered by Section 203. Section 203(c) requires that the Commission prescribe
performance and display standards for built-in decoder circuitry or capability designed to display closed
captioned video programming.180 The VPAAC Report addresses this issue, recommending a feature set
which mirrors that available on television receivers and we propose rules requiring these same features.
These capabilities include the presentation of captions, via roll-up, pop-on, or paint-on techniques, and the
setting of semantically significant character formatting, as well as capabilities regarding character color,
character opacity, character size, fonts, caption background, character edge attributes, caption window
color, and language selection.181 We further propose, pursuant to the VPAAC recommendation, that these
settings be user configurable and that the user's selection be retained between viewing sessions, though
where the user has not made a selection, the settings provided by the content owner are displayed.182
While the VPAAC states that the functionality in an IP world should not be less than what is provided to
consumers through digital television, there are other features the VPAAC Report identifies as components


178 47 U.S.C. 303(z)(2).
179 See Does HDMI Support Closed Captioning? High Definition Multimedia Interface, Frequently Asked Questions
at http://www.hdmi.org/learningcenter/faq.aspx#117. Captions are rendered by the host device, such as a set-top
box and transmitted in an open matter, rendered into the video stream. While this makes captioning available, it
does not utilize the functionality built into the end device, which some consumers may prefer.
180 Pub. L. No. 111-260, 203(c).
181 VPAAC Report at 13-16.
182 Id. at 15.
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of the "experience" that must be provided to users, but that are not included in the VPAAC Report's
discussion of specific capabilities, such as the user-controlled placement of captions.183 We seek
comment on the list of features included in the VPAAC Report, especially whether the requirements must
be modified for specific classes of devices, such as those with very small screens or those with limited
processing power. To what extent beyond what is currently available should users be able to control the
appearance of their captions through user tools on video apparatus? Which aspects must, and which may,
be user-controllable? Is there a need to require such functionality to ensure compliance? We also seek
comment on the inherent differences, technical and otherwise, in the rendering of captions on Internet-
connected devices (e.g., on a web browser or a smartphone app) versus television receivers? What are the
inherent differences, technical and otherwise, in the rendering of captions on mobile devices versus fixed-
use television and video receivers?
57.
We seek comment on what standards, if any, the Commission should mandate to
implement the goals of Section 203 of the CVAA. In particular, we seek comment on whether we should
adopt a particular delivery file format that devices must support. The VPAAC Report discusses three use
cases of how content can be distributed via the Internet to consumer devices: Use Case 1, where content
is delivered to an unaffiliated device; Use Case 2, where content is delivered to a web browser; and Use
Case 3, where content is delivered to a managed device or application.184 The VPAAC Report concludes
that Use Cases 2 and 3 "require a specific standard distribution format based on standards developed
within an open process by recognized industry standard-setting organizations;" however it does not
identify what that standard should be.185 When the Commission initially adopted rules for closed
captioning, it adopted certain standards for delivery and decoding of captions and made those standards
mandatory for all devices capable of receiving television content.186 In those cases, however, a clear
industry standard and consensus on the format already existed, and the standard was applied with respect
to one television delivery standard. Furthermore, television programmers rarely maintain any relationship
with the devices displaying the content they provide. In the Internet-delivery context, however,
VPDs/VPPs deliver content in many different formats, each continually evolving, and a Commission-
mandated standard could restrict industry innovation. Conversely, Congress clearly envisioned
consumers being able to access closed captions contained in any programming on any device that is
capable of displaying the associated video, and a lack of standards could make this goal more difficult and
costly to achieve.187 Furthermore, the relationship between the content provider and the device or
software provider may be such that the VPP/VPD could contract with device manufacturers to support
captions in the format the VPP/VPD chooses. With respect to Use Case 1, the VPAAC Report concludes
that a common file format is required, and suggests SMPTE-TT as that format.188 We seek comment on
whether we should require a particular delivery standard or standards to be supported on devices pursuant
to Section 203 of the CVAA. As an alternative, would a more general rule requiring that devices capable
of receiving unaffiliated content from VPPs/VPDs be capable of decoding and rendering captions
transmitted by VPPs/VPDs be preferable to achieve the goals of the CVAA?
58.
Alternate Means of Compliance. The CVAA permits that "an entity may meet the
requirements of sections 303(u), 303(z), and 330(b) of the [Act] through alternate means than those


183 Id. at 34, Appendix C.
184 Id. at 18-20.
185 Id. at 27.
186 See Closed Captioning Requirements for Digital Television Receivers, Report and Order, 15 FCC Rcd 16788,
16792 (2000) ("DTV Receiver Closed Captioning Order"); TDCA Order.
187 See S. Rep. No. 111-386 at 14; H.R. Rep. No. 111-563 at 30.
188 VPAAC Report at 27.
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prescribed by regulations . . . as determined by the Commission."189 We seek comment on a process by
which the Commission may determine that the alternate means selected by a party nevertheless meet the
requirements of the preceding sections. Additionally, are there some requirements above that cannot be
met via alternate means, such as the use of a standardized interconnection or the functional requirements
prescribed above?190
59.
Location of Rules within the Code of Federal Regulations and Miscellaneous Issues.
Finally, we seek comment on any other issues that need to be addressed by the Commission to meet the
CVAA's objective of ensuring that consumers can receive closed captions on video apparatus covered by
the Act. For example, while we currently propose to create and modify requirements in Part 15 of the
Commission's rules, we seek comment on whether a more appropriate location for these rules would be
proximate to the existing closed captioning and video description rules in Part 79, or as a new, video-
device specific section created to consolidate the device rules other than those relating to reception of
radio frequency signals that the Commission currently maintains. Part 15 of the Commission's rules
contains numerous ancillary obligations (such as certification or verification) and attendant definitions
which may or may not be beneficial to the overall goals of the rules. By creating a new section, we could
consolidate various rule parts related to video devices, including other video device rules contained in
Title 47 of the C.F.R. that are not directly related to the reception of radio frequency signals. In this case,
for example, Section 15.122, the closed captioning rules for digital television, could be moved, and
Section 15.119 could be moved if it is still necessary, or else deleted. Are there additional benefits or
implications to separating device rules for closed captioning from the general Part 15 requirements?

C.

Schedule of Deadlines

60.
While the CVAA specifies that the Commission must promulgate rules within six months
of the submission of the VPAAC Report, it does not specify the timeframe by which those regulations
must become effective.191 Additionally, while the VPAAC Report recommends timeframes by which
closed captioning must be made available, it does not address the timeframe on which devices must
become compliant.192 It notes that one group suggested that a minimum of 24 months would be required
to implement the features discussed above, but that others thought this time period was too long.193 We
seek comment on the appropriate timeframe to implement closed captioning technical requirements
pursuant to Section 203 of the CVAA. Should features or device classes be phased in, accelerating the
deployment of devices for which the addition of closed captioning is easy, while allowing more time for
those parties that need it? We note that the Commission allowed slightly less than 24 months for device
manufacturers to design and build DTV closed captioning display functionality into their products.194 Is
this timeframe appropriate in light of the current electronics manufacturing process? Would it be an
appropriate timeframe if we define "apparatus" to include software? If we adopt the compliance schedule
for VPPs/VPDs discussed above (varying from six to 18 months, depending on the nature of the
programming),195 should we also ensure that some or all devices that will be used to access those services


189 Pub L. No. 111-260, 203(e).
190 See 55, supra.
191 Pub L. No. 111-260, 203(d).
192 VPAAC Report at 34.
193 Id.
194 See DTV Receiver Closed Captioning Order, 15 FCC Rcd at 16808. (The order was adopted on July 21, 2000,
released on July 31, 2000, and published in the Federal Register on September 29, 2000. The rules became effective
on July 1, 2002.)
195 See Section III.B., supra.
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will be capable of decoding closed captions when they are available?

V.

CONCLUSION

61.
In conclusion, in this NPRM, we seek comment on proposed rules that would require IP-
delivered video programming to include closed captions if that programming is shown on television with
captions after the effective date of our new rules. We further seek comment on proposed rules that would
require this capability for nearly all devices that consumers use to access IP-delivered video
programming. These proposals seek to further the intent of Congress to give individuals who are deaf or
hard of hearing better access to IP-delivered video programming.

VI.

PROCEDURAL MATTERS

A.

Initial Regulatory Flexibility Act Analysis

62.
As required by the Regulatory Flexibility Act of 1980 ("RFA"),196 the Commission has
prepared an Initial Regulatory Flexibility Analysis ("IRFA") relating to this NPRM. The IRFA is
attached to this NPRM as Appendix B.

B.

Paperwork Reduction Act

63.
This document contains proposed new information collection requirements. The
Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and
the Office of Management and Budget (OMB) to comment on the information collection requirements
contained in this document, as required by the Paperwork Reduction Act of 1995.197 In addition, pursuant
to the Small Business Paperwork Relief Act of 2002,198 we seek specific comment on how we might
"further reduce the information collection burden for small business concerns with fewer than 25
employees."199

C.

Ex Parte Rules

64.
Permit-But-Disclose. The proceeding this NPRM initiates shall be treated as a "permit-
but-disclose" proceeding in accordance with the Commission's ex parte rules.200 Persons making ex parte
presentations must file a copy of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a different deadline applicable to the
Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda
summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting
at which the ex parte presentation was made, and (2) summarize all data presented and arguments made
during the presentation. If the presentation consisted in whole or in part of the presentation of data or
arguments already reflected in the presenter's written comments, memoranda or other filings in the
proceeding, the presenter may provide citations to such data or arguments in his or her prior comments,
memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or
arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given
to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the


196 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. seq., has been amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 ("SBREFA"), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996). The SBREFA
was enacted as Title II of the Contract With America Advancement Act of 1996 ("CWAAA").
197 Pub. L. No. 104-13.
198 Pub. L. No. 107-198.
199 44 U.S.C. 3506(c)(4).
200 47 C.F.R. 1.1200 et seq.
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Commission has made available a method of electronic filing, written ex parte presentations and
memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through
the electronic comment filing system available for that proceeding, and must be filed in their native
format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize
themselves with the Commission's ex parte rules.

D.

Filing Requirements

65.
Comments and Replies. Pursuant to Sections 1.415 and 1.419 of the Commission's
rules,201 interested parties may file comments and reply comments on or before the dates indicated on the
first page of this document. Comments may be filed using: (1) the Commission's Electronic Comment
Filing System ("ECFS"), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper
copies.202

We strongly encourage commenters to indicate which portions of their comments and
reply comments pertain to Section 202 of the CVAA, and which portions of their comments and
reply comments pertain to Section 203 of the CVAA.


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.

Paper Filers: Parties who choose to file by paper must file an original and one copy of each
filing. If more than one docket or rulemaking number appears in the caption of this
proceeding, filers must submit two additional copies for each additional docket or rulemaking
number.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail. All filings must be addressed to the
Commission's Secretary, Office of the Secretary, Federal Communications Commission.
o All hand-delivered or messenger-delivered paper filings for the Commission's
Secretary must be delivered to FCC Headquarters at 445 12th St., SW, Room TW-
A325, Washington, DC 20554. All hand deliveries must be held together with rubber
bands or fasteners. Any envelopes must be disposed of before entering the building.
The filing hours are 8:00 a.m. to 7:00 p.m.
o 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.
o U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445
12th Street, SW, Washington DC 20554.
66.
Availability of Documents. Comments, reply comments, and ex parte submissions will
be available for public inspection during regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street, S.W., CY-A257, Washington, D.C., 20554. These
documents will also be available via ECFS. Documents will be available electronically in ASCII,
Microsoft Word, and/or Adobe Acrobat.
67.
Accessibility Information. To request information in accessible formats (Braille, large
print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the FCC's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document can also
be downloaded in Word and Portable Document Format (PDF) at: http://www.fcc.gov.


201 See id. 1.415, 1.419.
202 See Electronic Filing of Documents in Rulemaking Proceedings, GC Docket No. 97-113, Report and Order, 13
FCC Rcd 11322 (1998).
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68.
Additional Information. For additional information on this proceeding pertaining to
Section 202 of the CVAA, contact Diana Sokolow, Diana.Sokolow@fcc.gov, of the Policy Division,
Media Bureau, (202) 418-2120. For additional information on this proceeding pertaining to Section 203
of the CVAA, contact Jeffrey Neumann, Jeffrey.Neumann@fcc.gov, of the Engineering Division, Media
Bureau, (202) 418-7000.

VII.

ORDERING CLAUSES

69.
Accordingly, IT IS ORDERED that pursuant to the authority contained in Sections 4(i),
4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
154(j), 303, 330(b), 613, and 617, this Notice of Proposed Rulemaking IS ADOPTED.
70.
IT IS FURTHER ORDERED that the Commission's Consumer and Governmental
Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed
Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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APPENDIX A

Proposed Rule Changes

The Federal Communications Commission proposes to amend Part 79 and Part 15 of Title 47 of the Code
of Federal Regulations (CFR) as set forth below:
PART 79 Closed Captioning and Video Description of Video Programming.
1.
The authority citation for Part 79 continues to read as follows:
AUTHORITY: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 613.
2.
Add 79.4 to read as follows:
79.4 Closed captioning of video programming delivered using Internet protocol.
(a) Definitions. For purposes of this section the following definitions shall apply:
(1) Video programming. Programming provided by, or generally considered comparable to programming
provided by, a television broadcast station, but not including consumer-generated media.
(2) Full-length video programming. Video programming that is not video clips or outtakes.
(3) Video programming distributor or video programming provider. Any entity that makes available
directly to the end user video programming through a distribution method that uses Internet protocol.
(4) Video programming owner. Any person or entity that owns the copyright of the video programming
delivered to the end user through a distribution method that uses Internet protocol.
(5) Internet protocol. Includes Transmission Control Protocol and any successor protocol or technology
to Internet protocol.
(6) Closed captioning. The visual display of the audio portion of video programming.
(7) Live programming. Video programming that is shown on television substantially simultaneously with
its performance.
(8) Near-live programming. Video programming that is substantively recorded and produced within 12
hours of its distribution to television viewers.
(9) Prerecorded programming. Video programming that is not "live" or "near-live."
(10) Edited for Internet distribution. Video programming whose television version is substantially edited
prior to its Internet distribution.
(11) Consumer-generated media. Content created and made available by consumers to online websites
and services on the Internet, including video, audio, and multimedia content.
(12) Video clips. Small sections of a larger video programming presentation.
(13) Outtakes. Content that is not used in an edited version of video programming shown on television.
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(14) Nonexempt programming. Video programming that is not exempted under paragraph (e) of this
section and, accordingly, is subject to closed captioning requirements set forth in this section.
(b) Requirements for closed captioning of Internet protocol-delivered video programming. All
nonexempt full-length video programming delivered using Internet protocol must be provided with closed
captions if the programming was published or exhibited on television in the United States with captions
after [insert effective date of the rule], in accordance with the following schedule:
(1) As of [insert date six months after the rule is published in the Federal Register], all prerecorded
programming that is not edited for Internet distribution must be provided with captions.
(2) As of [insert date 12 months after the rule is published in the Federal Register], all live and near-live
programming must be provided with captions.
(3) As of [insert date 18 months after the rule is published in the Federal Register], all prerecorded
programming that is edited for Internet distribution must be provided with captions.
(c) Obligations of video programming owners, distributors and providers.
(1) Obligations of video programming owners. Video programming owners must:
(i) Send program files to video programming distributors and providers either with captions as required
by this section, or with a dated certification that captions are not required for a specified reason.
(ii) Provide video programming distributors and providers with any revised certifications and newly
required captions (if captions were not previously delivered) within seven days of the underlying change.
(2) Obligations of video programming distributors and providers. Video programming distributors and
providers must:
(i) Enable the rendering or pass through of all required captions to the end user.
(ii) Retain all certifications received from video programming owners pursuant to Section 79.4(c)(1)(i)-
(ii) for so long as the video programming distributor or provider makes the certified programming
available to end users through a distribution method that uses Internet protocol and thereafter for at least
one calendar year.
(iii) Make required captions available within five days of the receipt of an updated certification pursuant
to Section 79.4(c)(1)(ii).
(3) A video programming provider or owner's de minimis failure to comply with this section shall not be
treated as a violation of the requirements.
(4) A video programming distributor, provider, or owner may meet the requirements of this section
through alternate means if the requirements of this section are met, as determined by the Commission.
(d) Determination of compliance. To be considered captioned, the quality of the captioning of IP-
delivered video programming must be at least equal to the quality of the captioning of that programming
when shown on television. In evaluating quality, the Commission may consider such factors as
completeness, placement, accuracy, and timing.
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(e) Procedures for exemptions based on economic burden.
(1) A video programming provider or owner may petition the Commission for a full or partial exemption
from the closed captioning requirements of this section, which the Commission may grant upon a finding
that the requirements would be economically burdensome.
(2) The petitioner must support a petition for exemption with sufficient evidence to demonstrate that
compliance with the requirements for closed captioning of video programming delivered via Internet
protocol would be economically burdensome. The term "economically burdensome" means imposing
significant difficulty or expense. The Commission will consider the following factors when determining
whether the requirements for closed captioning of Internet protocol-delivered video programming would
be economically burdensome:
(i) The nature and cost of the closed captions for the programming;
(ii) The impact on the operation of the video programming provider or owner;
(iii) The financial resources of the video programming provider or owner; and
(iv) The type of operations of the video programming provider or owner.
(3) In addition to these factors, the petitioner must describe any other factors it deems relevant to the
Commission's final determination and any available alternatives that might constitute a reasonable
substitute for the closed captioning requirements of this section including, but not limited to, text or
graphic display of the content of the audio portion of the programming. The Commission will evaluate
economic burden with regard to the individual outlet or programming.
(4) The petitioner must file an original and two (2) copies of a petition requesting an exemption based on
the economically burdensome standard in this paragraph, and all subsequent pleadings, in accordance
with 0.401(a) of this chapter.
(5) The Commission will place the petition on public notice.
(6) Any interested person may file comments or oppositions to the petition within 30 days of the public
notice of the petition. Within 20 days of the close of the comment period, the petitioner may reply to any
comments or oppositions filed.
(7) Persons that file comments or oppositions to the petition must serve the petitioner with copies of those
comments or oppositions and must include a certification that the petitioner was served with a copy.
Parties filing replies to comments or oppositions must serve the commenting or opposing party with
copies of such replies and shall include a certification that the party was served with a copy.
(8) Upon a finding of good cause, the Commission may lengthen or shorten any comment period and
waive or establish other procedural requirements.
(9) Persons filing petitions and responsive pleadings must include a detailed, full showing, supported by
affidavit, of any facts or considerations relied on.
(10) The Commission may deny or approve, in whole or in part, a petition for an economic burden
exemption from the closed captioning requirements of this section. The Commission shall act to deny or
approve any such petition, in whole or in part, within 6 months after the Commission receives such
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petition, unless the Commission finds that an extension of the 6-month period is necessary to determine
whether such requirements are economically burdensome.
(11) During the pendency of an economic burden determination, the Commission will consider the video
programming provider or owner subject to the request for exemption as exempt from the requirements of
this section.
(f) Complaint procedures.
(1) Complaints concerning an alleged violation of the closed captioning requirements of this section shall
be filed with the Commission. A complaint must be in writing and must include:
(i) The name and address of the complainant;
(ii) The name and postal address, website, or email address of the video programming distributor,
provider, and/or owner against whom the complaint is alleged, and information sufficient to identify the
video programming involved;
(iii) Information sufficient to identify the software or device used to view the program;
(iv) A statement of facts sufficient to show that the video programming distributor, provider, and/or
owner has violated or is violating the Commission's rules, and, if applicable, the date and time of the
alleged violation;
(v) The specific relief or satisfaction sought by the complainant; and
(vi) The complainant's preferred format or method of response to the complaint (such as letter, facsimile
transmission, telephone (voice/TRS/TTY), e-mail, or some other method that would best accommodate
the complainant).
(2) The Commission will forward complaints to the named video programming distributor, provider,
and/or owner, as well as to any other video programming distributor, provider, and/or owner that
Commission staff determines may be involved. The video programming distributor, provider, and/or
owner must respond to the complaint in writing, to the Commission and the complainant, within the time
that the Commission specifies when forwarding the complaint, generally within thirty (30) days. The
Commission may specify response periods longer than 30 days on a case-by-case basis.
(3) In response to a complaint, video programming distributors, providers, and/or owners shall file with
the Commission sufficient records and documentation to prove that the responding entity was (and
remains) in compliance with the Commission's rules. Conclusory or insufficiently supported assertions
of compliance will not carry a video programming distributor's, provider's, or owner's burden of proof.
(4) The Commission will review all relevant information provided by the complainant and the subject
video programming distributors, providers, and/or owners, as well as any additional information the
Commission deems relevant from its files or public sources. The Commission may request additional
information from any relevant parties when, in the estimation of Commission staff, such information is
needed to investigate the complaint or adjudicate potential violation(s) of Commission rules. When the
Commission requests additional information, parties to whom such requests are addressed must provide
the requested information within the time period the Commission specifies.
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(5) To demonstrate closed captioning compliance, video programming distributors or providers may rely
on certifications from video programming owners, as provided for in Section 79.4(c)(1)(i)-(ii), unless, at
any time, the video programming distributor or provider seeking to rely upon the certification knew or
should have known that the certification was false or erroneous. The Commission may take enforcement
action against video programming distributors, providers, or owners with respect to false or erroneous
certifications.
(6) If the Commission finds that a video programming distributor, provider, or owner has violated the
closed captioning requirements of this section, it may employ the full range of sanctions and remedies
available under the Act against any or all of the violators.
(g) Private rights of action prohibited. Nothing in this section shall be construed to authorize any private
right of action to enforce any requirement of this section. The Commission shall have exclusive
jurisdiction with respect to any complaint under this section.
PART 15 Radio Frequency Devices
1.
Revise the authority citation for Part 15 to read as follows:
AUTHORITY: 47 U.S.C. 154, 302(a), 303, 304, 307, 330, 336, 544a, 549, and 617.
2.
Renumber 15.119(a) to 15.119(a)(1).
3.
Add 15.119(a)(2) to read as follows:
(a) * * *
(2) Effective [insert effective date of the rule], all television receivers shipped in interstate commerce,
manufactured, assembled, or imported from any foreign country into the United States shall comply with
the provisions of this section, except for television receivers with picture screens measuring less than 13
inches diagonally for which this is not achievable.
* * * * *
4.
Revise 15.122(a)(1) to read as follows:
(a)(1) Effective [insert effective date of the rule], all digital television receivers and all separately sold
DTV tuners shipped in interstate commerce, manufactured or imported for use in the United States shall
comply with the provisions of this section, except for digital television receivers with picture screens
measuring less than 13 inches diagonally for which this is not achievable.
* * * * *
5.
Add 15.125 and 15.126 to read as follows:
15.125 Closed caption decoder requirements for video devices
(a) Effective [insert effective date of the rule], all apparatus designed to receive or play back video
programming transmitted simultaneously with sound manufactured or imported for use in the United
States and not subject to Section 15.119 or Section 15.122 of these rules, or is not a display-only video
monitor with no playback capability shall comply with the provisions of this section.
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(b) Specific Technical Capabilities. All apparatus subject to subsection (a), except exempt apparatus and
apparatus with picture screens measuring less than 13 inches for which these requirements are not
achievable, shall have the following technical capabilities:
(1) All apparatus shall implement "pop-on," "roll-up," and "paint-on" presentation of captions.
(2) All apparatus shall make available semantically significant formatting, such as italics, text color and
underlining.
(3) All apparatus shall implement consumer selectability of caption availability, including turning
captions on and off, selecting font size, selecting style, selecting color, and selecting background color
and background opacity.
(4) All apparatus shall provide for the user selection of language, where available multiple languages or
caption versions are available.
(5) All apparatus shall preserve original caption information regarding position, font, formatting, color,
style, background, opacity, and presentation mode and display captions with such attributes where
consumer selection of alternative attributes has not occurred or where consumer selection of default
attributes has occurred.
(6) All apparatus shall maintain user selection among video viewing session and provide the ability to
preview selection of options in this section.
15.126 Closed caption requirements for video recording devices
(a) Effective [insert effective date of the rule], all apparatus designed to record video programming
transmitted simultaneously with sound manufactured or imported for use in the United States and not
subject to Section 15.119 or Section 15.122 of these rules shall comply with the provisions of this section,
if achievable.
(b) All devices must enable the rendering of captions consistent with Section 15.125 or enable the pass-
through of closed-captioning data utilizing closed-captioning standards for transmission or closed-
captioning capable interconnection mechanisms.
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APPENDIX B

Initial Regulatory Flexibility Act Analysis

1. As required by the Regulatory Flexibility Act of 1980, as amended ("RFA"),1 the
Commission has prepared this present Initial Regulatory Flexibility Analysis ("IRFA") concerning the
possible significant economic impact on small entities by the policies and rules proposed in this Notice of
Proposed Rulemaking ("NPRM"). Written public comments are requested on this IRFA. Comments
must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on
the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration ("SBA").2 In addition, the NPRM and
IRFA (or summaries thereof) will be published in the Federal Register.3

A.

Need for, and Objectives of, the Proposed Rule Changes

2.
The Twenty-First Century Communications and Video Accessibility Act of 2010
("CVAA") requires the Federal Communications Commission ("Commission") to revise its regulations to
mandate closed captioning on certain video programming delivered using Internet protocol ("IP").4 In the
NPRM, we initiate a proceeding that will fulfill this requirement. We seek comment on proposals that
would better enable individuals who are deaf or hard of hearing to view IP-delivered video programming,
by requiring that programming be provided with closed captions if it was shown on television with
captions after the effective date of the rules adopted pursuant to this proceeding. We also seek comment
on requirements for the devices that are subject to the CVAA's new closed captioning requirements.5 Our
goal is to require the provision of closed captions with IP-delivered video programming in the manner
most helpful to consumers, while ensuring that our regulations do not create undue economic burdens for
the distributors, providers, and owners of online video programming.
3.
Closed captioning is an assistive technology that provides individuals who are deaf or
hard of hearing with access to television programming. Closed captioning displays the audio portion of a
television signal as printed words on the television screen. Existing regulations require the use of closed
captioning on television.6 Until now, however, closed captioning has not been required for IP-delivered
video programming. That changed with the enactment of the CVAA. Specifically, Section 202(b) of the
CVAA revised Section 713 of the Communications Act of 1934, as amended, to require the Commission
to "revise its regulations to require the provision of closed captioning on video programming delivered
using Internet protocol that was published or exhibited on television with captions after the effective date
of such regulations."7


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 II, 110 Stat. 857 (1996).
2 See 5 U.S.C. 603(a).
3 See id.
4 Pub. L. No. 111-260, 124 Stat. 2751, 202(b) (2010). See also Amendment of Twenty-First Century
Communications and Video Accessibility Act of 2010, Pub. L. No. 111-265, 124 Stat. 2795 (2010) (making
technical corrections to the CVAA).
5 See Pub. L. No. 111-260, 203.
6 See 47 C.F.R. 79.1 (setting forth the requirements for closed captioning of video programming on television).
7 47 U.S.C. 613(c)(2)(A).
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4.
The CVAA also required the Chairman of the Commission to establish an advisory
committee known as the Video Programming Accessibility Advisory Committee ("VPAAC").8 Section
201(e)(1) of the CVAA required the VPAAC to submit a report on closed captioning to the Commission
six months after its first meeting, or by July 13, 2011.9 The VPAAC submitted this report on July 12,
2011.10 By statute, within six months of the submission of the VPAAC Report, the Commission must
issue final regulations to require the provision of closed captioning on IP-delivered video programming.11
Accordingly, the Commission must revise its regulations by January 12, 2012.12 By the same date,
pursuant to Section 203 of the CVAA, the Commission must revise its regulations to include any
technical standards, protocols, and procedures needed for the transmission of closed captioning delivered
using IP, to ensure that certain apparatus are capable of rendering, passing through, or otherwise
permitting the display of closed captions for end users.13
5.
The NPRM considers revisions to our rules that would implement the requirements of
Sections 202(b) and 203 of the CVAA, as well as the conforming amendment set forth in Section 202(c)
of the CVAA. These proposals could fulfill Congress' goal of enabling consumers who are deaf or hard
of hearing to access IP-delivered video programming. The NPRM seeks comment on rule changes that
would:

Specify the obligations of entities subject to Section 202(b) by:
o Requiring video programming owners to send required caption files for IP-delivered
video programming to video programming distributors and video programming
providers along with program files;
o Requiring video programming distributors and video programming providers to
enable the rendering or pass through of all required captions to the end user; and
o Requiring the quality of all required captioning of IP-delivered video programming to
be of at least the same quality as the captioning of the same programming when
shown on television;14

Create a schedule of deadlines by which:
o All prerecorded and unedited programming subject to the new requirements must be
captioned within six months of publication of the rules in the Federal Register;
o All live and near-live programming subject to the new requirements must be
captioned within 12 months of publication of the rules in the Federal Register; and


8 Pub. L. No. 111-260, 201(a).
9 Id., 201(e)(1).
10 See First Report of the Video Programming Accessibility Advisory Committee on the Twenty-First Century
Communications and Video Accessibility Act of 2010: Closed Captioning of Video Programming Delivered Using
Internet Protocol, July 12, 2011, available at
http://transition.fcc.gov/cgb/dro/VPAAC/First_VPAAC_Report_to_the_FCC_7-11-11_FINAL.pdf ("VPAAC
Report").
11 47 U.S.C. 613(c)(2)(A).
12 See id.
13 Pub L. No. 111-260, 203(a)-(b), (d).
14 See NPRM, Section III.A.
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o All prerecorded and edited programming subject to the new requirements must be
captioned within 18 months of publication of the rules in the Federal Register;15

Craft procedures by which video programming providers and video programming owners
may petition the Commission for exemptions from the new requirements based on economic
burden;16

Establish a mechanism to make information about video programming subject to the CVAA
available to video programming providers and distributors, by requiring video programming
owners to provide programming for IP delivery either with captions, or with a certification
that captions are not required for a stated reason;17

Decline to adopt particular technical standards for IP-delivered video programming;18

Decline to treat a de minimis failure to comply with the new rules as a violation, and permit
entities to comply with the new requirements by alternate means;19 and

Adopt procedures for complaints alleging a violation of the new requirements.20
Additionally, we seek comment on the appropriate requirements for devices subject to the closed
captioning requirements of Section 203.21

B.

Legal Basis

6.
The proposed action is authorized pursuant to Sections 4(i), 4(j), 303, 330(b), 713, and
716 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303, 330(b), 613, and
617.

C.

Description and Estimate of the Number of Small Entities to Which the Proposed
Rules Will Apply

7.
The RFA directs agencies to provide a description of and, where feasible, an estimate of
the number of small entities that may be affected by the proposed rules, if adopted.22 The RFA generally
defines the term "small entity" as having the same meaning as the terms "small business," "small
organization," and "small governmental jurisdiction."23 In addition, the term "small business" has the
same meaning as the term "small business concern" under the Small Business Act.24 A small business


15 See id., Section III.B.
16 See id., Section III.C.
17 See id., Section III.D.
18 See id., Section III.E.
19 See id., Section III.F.
20 See id., Section III.G.
21 See id., Section IV.
22 5 U.S.C. 603(b)(3).
23 5 U.S.C. 601(6).
24 5 U.S.C. 601(3) (incorporating by reference the definition of "small business concern" in 15 U.S.C. 632).
Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies "unless an agency, after
consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public
comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register." 5 U.S.C. 601(3).
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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.25 Below, we provide a
description of such small entities, as well as an estimate of the number of such small entities, where
feasible.
8.
Small Businesses, Small Organizations, and Small Governmental Jurisdictions. Our
action may, over time, affect small entities that are not easily categorized at present. We therefore
describe here, at the outset, three comprehensive, statutory small entity size standards.26 First,
nationwide, there are a total of approximately 27.5 million small businesses, according to the SBA.27 In
addition, a "small organization" is generally "any not-for-profit enterprise which is independently owned
and operated and is not dominant in its field."28 Nationwide, as of 2007, there were approximately
1,621,315 small organizations.29 Finally, the term "small governmental jurisdiction" is defined generally
as "governments of cities, towns, townships, villages, school districts, or special districts, with a
population of less than fifty thousand."30 Census Bureau data for 2011 indicate that there were 89,476
local governmental jurisdictions in the United States.31 We estimate that, of this total, as many as 88,506
entities may qualify as "small governmental jurisdictions."32 Thus, we estimate that most governmental
jurisdictions are small.
9.
Cable Television Distribution Services. Since 2007, these services have been defined
within the broad economic census category of Wired Telecommunications Carriers; that category is
defined as follows: "This industry comprises establishments primarily engaged in operating and/or
providing access to transmission facilities and infrastructure that they own and/or lease for the
transmission of voice, data, text, sound, and video using wired telecommunications networks.
Transmission facilities may be based on a single technology or a combination of technologies."33 The
SBA has developed a small business size standard for this category, which is: all such firms having 1,500
or fewer employees. Census data for 2007, which supersede data contained in the 2002 Census, show that


25 15 U.S.C. 632. Application of the statutory criteria of dominance in its field of operation and independence are
sometimes difficult to apply in the context of broadcast television. Accordingly, the Commission's statistical
account of television stations may be over-inclusive.
26 See 5 U.S.C. 601(3)(6).
27 See SBA, Office of Advocacy, "Frequently Asked Questions," http://web.sba.gov/faqs (last visited May 6, 2011;
figures are from 2009).
28 5 U.S.C. 601(4).
29 INDEPENDENT SECTOR, THE NEW NONPROFIT ALMANAC & DESK REFERENCE (2010).
30 5 U.S.C. 601(5).
31 U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2011, Table 427 (2007).
32 The 2007 U.S Census data for small governmental organizations are not presented based on the size of the
population in each such organization. There were 89,476 small governmental organizations in 2007. If we assume
that county, municipal, township and school district organizations are more likely than larger governmental
organizations to have populations of 50,000 or less, the total of these organizations is 52,125. If we make the same
assumption about special districts, and also assume that special districts are different from county, municipal,
township, and school districts, in 2007 there were 37,381 special districts. Therefore, of the 89,476 small
governmental organizations documented in 2007, as many as 89,506 may be considered small under the applicable
standard. This data may overestimate the number of such organizations that has a population of 50,000 or less. U.S.
CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 2011, Tables 427, 426 (Data cited
therein are from 2007).
33 U.S. Census Bureau, 2007 NAICS Definitions, "517110 Wired Telecommunications Carriers," (partial
definition), http://www.census.gov/naics/2007/def/ND517110.HTM#N517110 (last visited Oct. 21, 2009).
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there were 1,383 firms that operated that year.34 Of those 1,383, 1,368 had fewer than 100 employees,
and 15 firms had more than 100 employees. Thus under this category and the associated small business
size standard, the majority of such firms can be considered small.
10.
Cable Companies and Systems. The Commission has also developed its own small
business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a "small
cable company" is one serving 400,000 or fewer subscribers, nationwide.35 Industry data indicate that, of
1,076 cable operators nationwide, all but eleven are small under this size standard.36 In addition, under
the Commission's rules, a "small system" is a cable system serving 15,000 or fewer subscribers.37
Industry data indicate that, of 6,635 systems nationwide, 5,802 systems have under 10,000 subscribers,
and an additional 302 systems have 10,000-19,999 subscribers.38 Thus, under this second size standard,
most cable systems are small.
11.
Cable System Operators. The Communications Act of 1934, as amended, also contains a
size standard for small cable system operators, which is "a cable operator that, directly or through an
affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not
affiliated with any entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000."39 The Commission has determined that an operator serving fewer than 677,000
subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual
revenues of all its affiliates, do not exceed $250 million in the aggregate.40 Industry data indicate that, of
1,076 cable operators nationwide, all but ten are small under this size standard.41 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,42 and therefore we are unable to estimate
more accurately the number of cable system operators that would qualify as small under this size
standard.


34 U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007 NAICS code 517210 (rel. Oct. 20, 2009),
http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=700&;-
ds_name=EC0751SSSZ5&-_lang=en.
35 47 C.F.R. 76.901(e). The Commission determined that this size 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 Rcd 7393, 7408 (1995).
36 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.
37 47 C.F.R. 76.901(c).
38 Warren Communications News, Television & Cable Factbook 2008, "U.S. Cable Systems by Subscriber Size,"
page F-2 (data current as of Oct. 2007). The data do not include 851 systems for which classifying data were not
available.
39 47 U.S.C. 543(m)(2); see 47 C.F.R. 76.901(f) & nn. 1-3.
40 47 C.F.R. 76.901(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).
41 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.
42 The Commission does receive such information 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 76.901(f) of
the Commission's rules. See 47 C.F.R. 76.909(b).
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12.
Direct Broadcast Satellite ("DBS") Service. DBS service is a nationally distributed
subscription service that delivers video and audio programming via satellite to a small parabolic "dish"
antenna at the subscriber's location. DBS, by exception, is now included in the SBA's broad economic
census category, "Wired Telecommunications Carriers,"43 which was developed for small wireline firms.
Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees.44
To gauge small business prevalence for the DBS service, the Commission relies on data currently
available from the U.S. Census for the year 2007. According to that source, there were 3,188 firms that in
2007 were Wired Telecommunications Carriers. Of these, 3,144 operated with less than 1,000
employees, and 44 operated with more than 1,000 employees. However, as to the latter 44 there is no
data available that shows how many operated with more than 1,500 employees. Based on this data, the
majority of these firms can be considered small.45 Currently, only two entities provide DBS service,
which requires a great investment of capital for operation: DIRECTV and EchoStar Communications
Corporation ("EchoStar") (marketed as the DISH Network).46 Each currently offers subscription services.
DIRECTV47 and EchoStar48 each report annual revenues that are in excess of the threshold for a small
business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as
defined by the SBA would have the financial wherewithal to become a DBS service provider.
13.
Satellite Telecommunications Providers. Two economic census categories address the
satellite industry. The first category has a small business size standard of $15 million or less in average
annual receipts, under SBA rules.49 The second has a size standard of $25 million or less in annual
receipts.50
14.
The category of Satellite Telecommunications "comprises establishments primarily
engaged in providing telecommunications services to other establishments in the telecommunications and
broadcasting industries by forwarding and receiving communications signals via a system of satellites or
reselling satellite telecommunications."51 Census Bureau data for 2007 show that 512 Satellite
Telecommunications firms operated for that entire year.52 Of this total, 464 firms had annual receipts of


43 See 13 C.F.R. 121.201, NAICS code 517110 (2007). The 2007 NAICS definition of the category of "Wired
Telecommunications Carriers" is in paragraph 9, above.
44 13 C.F.R. 121.201, NAICS code 517110 (2007).
45 See http://www.factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&;-
_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
46 See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming,
Thirteenth Annual Report, 24 FCC Rcd 542, 580, 74 (2009) ("13th Annual Report"). We note that, in 2007,
EchoStar purchased the licenses of Dominion Video Satellite, Inc. ("Dominion") (marketed as Sky Angel). See
Public Notice, "Policy Branch Information; Actions Taken," Report No. SAT-00474, 22 FCC Rcd 17776 (IB 2007).
47 As of June 2006, DIRECTV is the largest DBS operator and the second largest MVPD, serving an estimated
16.20% of MVPD subscribers nationwide. See 13th Annual Report, 24 FCC Rcd at 687, Table B-3.
48 As of June 2006, DISH Network is the second largest DBS operator and the third largest MVPD, serving an
estimated 13.01% of MVPD subscribers nationwide. Id. As of June 2006, Dominion served fewer than 500,000
subscribers, which may now be receiving "Sky Angel" service from DISH Network. See id. at 581, 76.
49 13 C.F.R. 121.201, NAICS code 517410.
50 13 C.F.R. 121.201, NAICS code 517919.
51 U.S. Census Bureau, 2007 NAICS Definitions, "517410 Satellite Telecommunications."
52 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&;-
_lang=en.
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under $10 million, and 18 firms had receipts of $10 million to $24,999,999.53 Consequently, the
Commission estimates that the majority of Satellite Telecommunications firms are small entities that
might be affected by our proposed action.
15.
The second category, i.e. "All Other Telecommunications" comprises "establishments
primarily engaged in providing specialized telecommunications services, such as satellite tracking,
communications telemetry, and radar station operation. This industry also includes establishments
primarily engaged in providing satellite terminal stations and associated facilities connected with one or
more terrestrial systems and capable of transmitting telecommunications to, and receiving
telecommunications from, satellite systems. Establishments providing Internet services or voice over
Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in
this industry."54 For this category, Census Bureau data for 2007 show that there were a total of 2,383
firms that operated for the entire year.55 Of this total, 2,346 firms had annual receipts of under $25
million and 37 firms had annual receipts of $25 million to $49,999,999.56 Consequently, the Commission
estimates that the majority of All Other Telecommunications firms are small entities that might be
affected by our action.
16.
Television Broadcasting. The SBA defines a television broadcasting station as a small
business if such station has no more than $14.0 million in annual receipts.57 Business concerns included
in this industry are those "primarily engaged in broadcasting images together with sound."58 The
Commission has estimated the number of licensed commercial television stations to be 1,390.59
According to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database
(BIA) as of January 31, 2011, 1,006 (or about 78 percent) of an estimated 1,298 commercial television
stations60 in the United States have revenues of $14 million or less and, thus, qualify as small entities
under the SBA definition. The Commission has estimated the number of licensed noncommercial
educational ("NCE") television stations to be 391.61 We note, however, that, in assessing whether a


53 See id.
54 http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2007%20NAICS%20Search.
55 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&ds_name=EC0751SSSZ4&;-
_lang=en.
56 See id.
57 See 13 C.F.R. 121.201, NAICS Code 515120 (2007).
58 Id. This category description continues, "These establishments operate television broadcasting studios and
facilities for the programming and transmission of programs to the public. These establishments also produce or
transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the
public on a predetermined schedule. Programming may originate in their own studios, from an affiliated network, or
from external sources." Separate census categories pertain to businesses primarily engaged in producing
programming. See Motion Picture and Video Production, NAICS code 512110; Motion Picture and Video
Distribution, NAICS Code 512120; Teleproduction and Other Post-Production Services, NAICS Code 512191; and
Other Motion Picture and Video Industries, NAICS Code 512199.
59 See News Release, "Broadcast Station Totals as of December 31, 2010," 2011 WL 484756 (F.C.C.) (dated Feb.
11, 2011) ("Broadcast Station Totals"); also available at
http://www.fcc.gov/Daily_Releases/Daily_Business/2011/db0211/DOC-304594A1.pdf.
60 We recognize that this total differs slightly from that contained in Broadcast Station Totals, supra, note 59;
however, we are using BIA's estimate for purposes of this revenue comparison.
61 See Broadcast Station Totals, supra, note 59.
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business concern qualifies as small under the above definition, business (control) affiliations62 must be
included. Our estimate, therefore, likely overstates the number of small entities that might be affected by
our action, because the revenue figure on which it is based does not include or aggregate revenues from
affiliated companies. The Commission does not compile and otherwise does not have access to
information on the revenue of NCE stations that would permit it to determine how many such stations
would qualify as small entities.
17.
In addition, an element of the definition of "small business" is that the entity not be
dominant in its field of operation. We are unable at this time to define or quantify the criteria that would
establish whether a specific television station is dominant in its field of operation. Accordingly, the
estimate of small businesses to which rules may apply do not exclude any television station from the
definition of a small business on this basis and are therefore over-inclusive to that extent. Also, as noted,
an additional element of the definition of "small business" is that the entity must be independently owned
and operated. We note that it is difficult at times to assess these criteria in the context of media entities
and our estimates of small businesses to which they apply may be over-inclusive to this extent.
18.
Open Video Services. Open Video Service (OVS) systems provide subscription
services.63 The open video system ("OVS") framework was established in 1996, and is one of four
statutorily recognized options for the provision of video programming services by local exchange
carriers.64 The OVS framework provides opportunities for the distribution of video programming other
than through cable systems. Because OVS operators provide subscription services,65 OVS falls within the
SBA small business size standard covering cable services, which is "Wired Telecommunications
Carriers."66 The SBA has developed a small business size standard for this category, which is: all such
firms having 1,500 or fewer employees. To gauge small business prevalence for the OVS service, the
Commission relies on data currently available from the U.S. Census for the year 2007. According to that
source, there were 3,188 firms that in 2007 were Wired Telecommunications Carriers. Of these, 3,144
operated with less than 1,000 employees, and 44 operated with more than 1,000 employees. However, as
to the latter 44 there is no data available that shows how many operated with more than 1,500 employees.
Based on this data, the majority of these firms can be considered small.67 In addition, we note that the
Commission has certified some OVS operators, with some now providing service.68 Broadband service
providers ("BSPs") are currently the only significant holders of OVS certifications or local OVS
franchises.69 The Commission does not have financial or employment information regarding the entities
authorized to provide OVS, some of which may not yet be operational. Thus, at least some of the OVS
operators may qualify as small entities. The Commission further notes that it has certified approximately
45 OVS operators to serve 75 areas, and some of these are currently providing service.70 Affiliates of


62 "[Business concerns] are affiliates of each other when one concern controls or has the power to control the other
or a third party or parties controls or has to power to control both." 13 C.F.R. 121.103(a)(1).
63 See 47 U.S.C. 573.
64 47 U.S.C. 571(a)(3)-(4). See 13th Annual Report, 24 FCC Rcd at 606, 135.
65 See 47 U.S.C. 573.
66 U.S. Census Bureau, 2007 NAICS Definitions, "517110 Wired Telecommunications Carriers";
http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
67 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&;-
ds_name=EC0751SSSZ5&-_lang=en.
68 A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html.
69 See 13th Annual Report, 24 FCC Rcd at 606-07, 135. BSPs are newer firms that are building state-of-the-art,
facilities-based networks to provide video, voice, and data services over a single network.
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Residential Communications Network, Inc. ("RCN") received approval to operate OVS systems in New
York City, Boston, Washington, D.C., and other areas. RCN has sufficient revenues to assure that they
do not qualify as a small business entity. Little financial information is available for the other entities that
are authorized to provide OVS and are not yet operational. Given that some entities authorized to provide
OVS service have not yet begun to generate revenues, the Commission concludes that up to 44 OVS
operators (those remaining) might qualify as small businesses that may be affected by the rules and
policies adopted herein.
19.
Cable and Other Subscription Programming. The Census Bureau defines this category
as follows: "This industry comprises establishments primarily engaged in operating studios and facilities
for the broadcasting of programs on a subscription or fee basis . . . . These establishments produce
programming in their own facilities or acquire programming from external sources. The programming
material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for
transmission to viewers."71 To gauge small business prevalence in the Cable and Other Subscription
Programming industries, the Commission relies on data currently available from the U.S. Census for the
year 2007. According to that source, which supersedes data from the 2002 Census, there were 396 firms
that in 2007 were engaged in production of Cable and Other Subscription Programming. Of these, 386
operated with less than 1,000 employees, and 10 operated with more than 1,000 employees. However, as
to the latter 10 there is no data available that shows how many operated with more than 1,500 employees.
Thus, under this category and associated small business size standard, the majority of firms can be
considered small.72
20.
Motion Picture and Video Production. The Census Bureau defines this category as
follows: "This industry comprises establishments primarily engaged in producing, or producing and
distributing motion pictures, videos, television programs, or television commercials."73 We note that
firms in this category may be engaged in various industries, including cable programming. Specific
figures are not available regarding how many of these firms produce and/or distribute programming for
cable television. To gauge small business prevalence in the Motion Picture and Video Production
industries, the Commission relies on data currently available from the U.S. Census for the year 2007. The
size standard established by the SBA for this business category is that annual receipts of $29.5 million or
less determine that a business is small.74 According to the 2007 Census, there were 9,095 firms that in
2007 were engaged in Motion Picture and Video Production. Of these, 8,995 had annual receipts of
$24,999,999 or less, and 100 had annual receipts ranging from not less that $25,000,000 to $100,000,000
or more.75 Thus, under this category and associated small business size standard, the majority of firms
can be considered small.
21.
Motion Picture and Video Distribution. The Census Bureau defines this category as
follows: "This industry comprises establishments primarily engaged in acquiring distribution rights and


(...continued from previous page)
70 See http://www.fcc.gov/mb/ovs/csovscer.html (current as of February 2007).
71 U.S. Census Bureau, 2007 NAICS Definitions, "515210 Cable and Other Subscription Programming";
http://www.census.gov/naics/2007/def/ND515210.HTM#N515210.
72 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&;-
ds_name=EC0751SSSZ5&-_lang=en.
73 U.S. Census Bureau, 2007 NAICS Definitions, NAICS Code 512110, http://www.census.gov/cgi-
bin/sssd/naics/naicsrch?code=512110&search=2007%20NAICS%20Search.
74 13 C.F.R 121.201, NAICS Code 512110.
75 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=200&;-
ds_name=EC0751SSSZ5&-_lang=en.
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distributing film and video productions to motion picture theaters, television networks and stations, and
exhibitors."76 We note that firms in this category may be engaged in various industries, including cable
programming. Specific figures are not available regarding how many of these firms produce and/or
distribute programming for cable television. To gauge small business prevalence in the Motion Picture
and Video Distribution industries, the Commission relies on data currently available from the U.S. Census
for the year 2007. Based on the SBA size standard of annual receipts of 29.5 million dollars,77 and
according to that 2007 Census source, which supersedes data from the 2002 Census, there were 450 firms
that in 2007 were engaged in Motion Picture and Video Distribution. Of that number, 434 received annual
receipts of $24,999,999 or less, and 16 received annual receipts ranging from $25,000,000 to
$100,000,000 or more. Thus, under this category and associated small business size standard, the
majority of firms can be considered small.78
22.
Small Incumbent Local Exchange Carriers (LECs). We have included small incumbent
local exchange carriers in this present RFA analysis. As noted above, a "small business" under the RFA
is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications
business having 1,500 or fewer employees), and "is not dominant in its field of operation."79 The SBA's
Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not
dominant in their field of operation because any such dominance is not "national" in scope.80 We have
therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize
that this RFA action has no effect on Commission analyses and determinations in other, non-RFA
contexts.
23.
Incumbent Local Exchange Carriers (Incumbent LECs). Neither the Commission nor the
SBA has developed a small business size standard specifically for incumbent local exchange services.
The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers.
Under that size standard, such a business is small if it has 1,500 or fewer employees.81 Census Bureau
data for 2007, which now supersede data from the 2002 Census, show that there were 3,188 firms in this
category that operated for the entire year. Of this total, 3,144 had employment of 999 or fewer, and 44
firms had had employment of 1,000 or more. According to Commission data, 1,307 carriers reported that
they were incumbent local exchange service providers.82 Of these 1,307 carriers, an estimated 1,006 have
1,500 or fewer employees and 301 have more than 1,500 employees.83 Consequently, the Commission
estimates that most providers of local exchange service are small entities that may be affected by the rules
and policies proposed in the NPRM. Thus under this category and the associated small business size


76 See U.S. Census Bureau, 2007 NAICS Definitions, NAICS Code 512110, http://www.census.gov/cgi-
bin/sssd/naics/naicsrch?code=512110&search=2007%20NAICS%20Search.
7713 C.F.R 121.201, NAICS Code 512110.
78 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=200&;-
ds_name=EC0751SSSZ5&-_lang=en.
79 15 U.S.C. 632.
80 Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, FCC (May 27,
1999). The Small Business Act contains a definition of "small-business concern," which the RFA incorporates into
its own definition of "small business." See 15 U.S.C. 632(a) ("Small Business Act"); 5 U.S.C. 601(3) ("RFA").
SBA regulations interpret "small business concern" to include the concept of dominance on a national basis. See 13
C.F.R. 121.102(b).
81 13 C.F.R. 121.201, NAICS code 517110.
82 See Trends in Telephone Service, Federal Communications Commission, Wireline Competition Bureau, Industry
Analysis and Technology Division at Table 5.3 (Sept. 2010) ("Trends in Telephone Service").
83 See id.
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standard, the majority of these incumbent local exchange service providers can be considered small
providers.84
24.
Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers
(CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission
nor the SBA has developed a small business size standard specifically for these service providers. The
appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under
that size standard, such a business is small if it has 1,500 or fewer employees.85 Census Bureau data for
2007, which now supersede data from the 2002 Census, show that there were 3,188 firms in this category
that operated for the entire year. Of this total, 3,144 had employment of 999 or fewer, and 44 firms had
had employment of 1,000 employees or more. Thus under this category and the associated small business
size standard, the majority of these Competitive LECs, CAPs, Shared-Tenant Service Providers, and
Other Local Service Providers can be considered small entities.86 According to Commission data, 1,442
carriers reported that they were engaged in the provision of either competitive local exchange services or
competitive access provider services.87 Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer
employees and 186 have more than 1,500 employees.88 In addition, 17 carriers have reported that they
are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees.89 In
addition, 72 carriers have reported that they are Other Local Service Providers.90 Of the 72, seventy have
1,500 or fewer employees and two have more than 1,500 employees.91 Consequently, the Commission
estimates that most providers of competitive local exchange service, competitive access providers,
Shared-Tenant Service Providers, and Other Local Service Providers are small entities that may be
affected by rules adopted pursuant to the NPRM.
25.
Radio and Television Broadcasting and Wireless Communications Equipment
Manufacturing. The Census Bureau defines this category as follows: "This industry comprises
establishments primarily engaged in manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these establishments are: transmitting and
receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and broadcasting equipment."92 The SBA has
developed a small business size standard for Radio and Television Broadcasting and Wireless
Communications Equipment Manufacturing, which is: all such firms having 750 or fewer employees.
According to Census Bureau data for 2007, there were a total of 939 establishments in this category that
operated for part or all of the entire year. According to Census bureau data for 2007, there were a total of
919 firms in this category that operated for the entire year. Of this total, 771 had less than 100 employees


84 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&;-
ds_name=EC0751SSSZ5&-_lang=en.
85 13 C.F.R. 121.201, NAICS code 517110.
86 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&;-
ds_name=EC0751SSSZ5&-_lang=en.
87 See Trends in Telephone Service at Table 5.3.
88 See id.
89 See id.
90 See id.
91 See id.
92 The NAICS Code for this service 334220. See 13 C.F.R 121.201. See also
http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=300&;-
ds_name=EC0731SG2&-_lang=en .
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and 148 had more than 100 employees.93 Thus, under that size standard, the majority of firms can be
considered small.
26.
Audio and Video Equipment Manufacturing. The SBA has classified the manufacturing
of audio and video equipment under in NAICS Codes classification scheme as an industry in which a
manufacturer is small if it has less than 750 employees.94 Data contained in the 2007 U.S. Census
indicate that 491 establishments operated in that industry for all or part of that year. In that year, 376
establishments had between 1 and 19 employees; 80 had between 20 and 99 employees; and 35 had more
than 100 employees.95 Thus, under the applicable size standard, a majority of manufacturers of audio and
video equipment may be considered small.
27.
Internet Publishing and Broadcasting and Web Search Portals. The Census Bureau
defines this category to include ". . .establishments primarily engaged in 1) publishing and/or
broadcasting content on the Internet exclusively or 2) operating Web sites that use a search engine to
generate and maintain extensive databases of Internet addresses and content in an easily searchable format
(and known as Web search portals). The publishing and broadcasting establishments in this industry do
not provide traditional (non-Internet) versions of the content that they publish or broadcast. They provide
textual, audio, and/or video content of general or specific interest on the Internet exclusively.
Establishments known as Web search portals often provide additional Internet services, such as e-mail,
connections to other web sites, auctions, news, and other limited content, and serve as a home base for
Internet users."
28.
In this category, the SBA has deemed an Internet publisher or Internet broadcaster or the
provider of a web search portal on the Internet to be small if it has fewer than 500 employees.96 For this
category of manufacturers, Census data for 2007, which supersede similar data from the 2002 Census,
show that there were 2,705 such firms that operated that year. 97 Of those 2,705 firms, 2,682
(approximately 99%) had fewer than 500 employees and, thus, would be deemed small under the
applicable SBA size standard.98 Accordingly, the majority of establishments in this category can be
considered small under that standard.
29.
Closed Captioning Services. These entities would be indirectly affected by our proposed
action. The SBA has developed two small business size standards that may be used for closed captioning
services. The two size standards track the economic census categories, "Teleproduction and Other
Postproduction Services" and "Court Reporting and Stenotype Services."
30.
The first category of Teleproduction and Other Postproduction Services "comprises
establishments primarily engaged in providing specialized motion picture or video postproduction
services, such as editing, film/tape transfers, subtitling, credits, closed captioning, and animation and
special effects." The relevant size standard for small businesses in these services is an annual revenue of
less than $29.5 million.99 For this category, Census Bureau Data for 2007 indicate that there were 1,605


93 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=4500&;-
ds_name=EC0731SG3&-_lang=en.
94 13 CFR 121.201, NAICS Code 334310.
95 http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=300&-ds_name=EC0731I1&-_lang=en.
96 13 C.F.R. 121.201, NAICS Code 519130.
97 U.S. Census Bureau, American FactFinder, 2007 Economic Census, Industry Series, Industry Statistics by
Employment Size, NAICS code 519130 (rel. Nov. 19, 2010); http://factfinder.census.gov.
98 Id.
99 U.S. Census Bureau, 2002 NAICS Definitions, "512191 Teleproduction and Other Postproduction Services";
http://www.census.gov/epcd/naics02/def/NDEF512.HTM. The size standard is $29.5 million.
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firms that operated in this category for the entire year. Of that number, 1,597 had receipts totaling less
than $29,500,000.100 Consequently we estimate that the majority of Teleproduction and Other
Postproduction Services firms are small entities that might be affected by our proposed actions.
31.
The second category of Court Reporting and Stenotype Services "comprises
establishments primarily engaged in providing verbatim reporting and stenotype recording of live legal
proceedings and transcribing subsequent recorded materials." The size standard for small businesses in
these services is an annual revenue of less than $7 million.101 For this category, Census Bureau data for
2007 show that there were 2,706 firms that operated for the entire year. Of this total, 2,590 had annual
receipts of under $5 million, and 19 firms had receipts of $5 million to $9,999,999.102 Consequently, we
estimate that the majority of Court Reporting and Stenotype Services firms are small entities that might
be affected by our proposed action.

D.

Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements

32.
The NPRM proposes requiring video programming owners ("VPOs") to send program
files to video programming distributors ("VPDs") and video programming providers ("VPPs") either with
captions, or with a dated certification that captions are not required for a reason stated in the
certification.103 When a program newly becomes subject to the captioning requirements, the NPRM
proposes requiring VPOs to provide VPDs/VPPs with any revised certifications and newly required
captions (if captions were not previously delivered) within seven days of the underlying change.104
VPDs/VPPs would be required to retain all such VPO certifications for so long as they make the certified
programming available to end users through a distribution method that uses IP, and for at least one
calendar year thereafter.105
33.
The NPRM proposes creating a process by which VPPs and VPOs may petition the
Commission for a full or partial exemption of the requirements for closed captioning of IP-delivered
video programming, which the Commission may grant upon a finding that the requirements would be
economically burdensome.106 The NPRM also proposes adopting procedures for complaints alleging a
violation of the IP closed captioning rules.107

E.

Steps Taken to Minimize Significant Economic Impact on Small Entities, and
Significant Alternatives Considered

34.
The RFA requires an agency to describe any significant alternatives that it has considered
in reaching its proposed approach, which may include the following four alternatives (among others): (1)
the establishment of differing compliance or reporting requirements or timetables that take into account


100 http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=300&-ds_name=EC0751SSSZ5&;-
_lang=en.
101 U.S. Census Bureau, 2002 NAICS Definitions, "561492 Court Reporting and Stenotype Services";
http://www.census.gov/epcd/naics02/def/NDEF561.HTM. The size standard is $7 million.
102 http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=400&;-
ds_name=EC0756SSSZ4&-_lang=en.
103 See NPRM, Section III.D.
104 See id.
105 See id.
106 See NPRM, Section III.C.
107 See id., Section III.G.
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the resources available to small entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather
than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small
entities.108
35.
We note that our discussion of alternatives is circumscribed because of the specificity of
Sections 202(b), (c) and 203 of the CVAA. The CVAA does, however, recognize the special concerns of
small entities by creating an exemption process where compliance with the rules would be economically
burdensome. In furtherance of this statutory requirement, the NPRM proposes procedures enabling the
Commission to grant exemptions to the rules governing closed captioning of IP-delivered video
programming, where a petitioner has shown it would be an economic burden (i.e., a significant difficulty
or expense).109 This exemption process would allow the Commission to address the impact of the rules
on individual entities, including smaller entities, and modify the rules to accommodate individual
circumstances. The exemption procedures proposed in the NPRM were specifically designed to
ameliorate the impact of the rules for closed captioning of IP-delivered video programming in a manner
consistent with the objective of increasing the availability of captioned programming.
36.
Overall, in proposing rules governing the closed captioning of IP-delivered video
programming, we believe that we have appropriately balanced the interests of individuals who are deaf or
hard of hearing against the interests of the entities who will be subject to the rules, including those that are
smaller entities. Our efforts are consistent with Congress' goal of "updat[ing] the communications laws
to help ensure that individuals with disabilities are able to fully utilize communications services and
equipment and better access video programming."110

F.

Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rule

37.
None.


108 5 U.S.C. 603(c)(1)-(c)(4).
109 See NPRM, Section III.C.
110 See S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010); H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19
(2010).
54

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