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Closed Captioning of Internet Protocol-Delivered Video Programming.

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Released: January 13, 2012

Federal Communications Commission

FCC 12-9

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
)

REPORT AND ORDER

Adopted: January 12, 2012

Released: January 13, 2012

By the Commission: Commissioner McDowell concurring and issuing a statement;

Commissioner Clyburn issuing a statement.

TABLE OF CONTENTS

Heading
Paragraph #
I.
INTRODUCTION .................................................................................................................................. 1
II. BACKGROUND .................................................................................................................................... 4
III. SECTION 202 OF THE CVAA ............................................................................................................. 6
A. Entities Subject to Section 202(b) of the CVAA and Their Obligations ......................................... 6
1. Definition of Video Programming Owner, Distributor, and Provider....................................... 6
2. Responsibilities of Video Programming Owners, Distributors, and Providers ....................... 14
3. Quality of IP-Delivered Video Programming.......................................................................... 36
4. Video Programming Subject to Section 202(b)....................................................................... 40
B. Compliance Deadlines ................................................................................................................... 51
C. Exemption Process......................................................................................................................... 61
1. Case-by-Case Exemptions....................................................................................................... 61
2. Categorical Exemptions........................................................................................................... 67
D. De Minimis Failure to Comply and Alternate Means of Compliance............................................ 72
E. Complaint Procedures .................................................................................................................... 75
IV. SECTION 203 OF THE CVAA ........................................................................................................... 92
A. Apparatus Subject to Section 203 of the Act ................................................................................. 93
B. Achievability, Purpose-Based Waivers, and Display-Only Monitor Exemption......................... 102
C. Display of Captions...................................................................................................................... 109
D. Recording Devices ....................................................................................................................... 114
E. Interconnection Mechanisms ....................................................................................................... 115
F. Changes to Television Rules and Movement of Device Rules to Part 79.................................... 120
G. Alternate Means of Compliance .................................................................................................. 121
H. Deadlines for Compliance............................................................................................................ 122
I.
Complaints ................................................................................................................................... 123
V. TECHNICAL STANDARDS FOR IP-DELIVERED VIDEO PROGRAMMING........................... 124
VI. PROCEDURAL MATTERS.............................................................................................................. 127
A. Final Regulatory Flexibility Analysis .......................................................................................... 127
B. Final Paperwork Reduction Act of 1995 Analysis....................................................................... 128
C. Congressional Review Act........................................................................................................... 129
D. Additional Information ................................................................................................................ 130

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VII. ORDERING CLAUSES.................................................................................................................... 131
APPENDICES
APPENDIX A - List of Commenters
APPENDIX B - Final Rules
APPENDIX C - Final Regulatory Flexibility Analysis
APPENDIX D - Relevant Provisions of the CVAA

I.

INTRODUCTION

1.
Pursuant to our responsibilities under the Twenty-First Century Communications and
Video Accessibility Act of 2010 (“CVAA”),1 this Report and Order adopts rules governing the closed
captioning requirements for the owners, providers, and distributors of video programming delivered using
Internet protocol (“IP”).2 This Report and Order also adopts rules governing the closed captioning
capabilities of certain apparatus on which consumers view video programming. Closed captioning is the
visual display of the audio portion of video programming, which provides access to individuals who are
deaf or hard of hearing.3 Prior to the adoption of the CVAA, the Communications Act of 1934, as
amended (the “Act”), required the use of closed captioning on television,4 but not on IP-delivered video
programming that was not part of a broadcaster or multichannel video programming distributor
(“MVPD”) service.5 That changed with the enactment of the CVAA, which directed the Federal
Communications Commission (“Commission”) to revise its regulations to require closed captioning of IP-
delivered video programming that is published or exhibited on television with captions after the effective
date of the new regulations.6 Further, the CVAA directed the Commission to impose closed captioning
requirements on certain apparatus that receive or play back video programming, and on certain recording
devices.7 The rules we adopt here will better enable individuals who are deaf or hard of hearing to view
IP-delivered video programming, as Congress intended. Moreover, we believe these benefits of our rules
to deaf or hard of hearing consumers will outweigh the affected entities’ costs of compliance.
2.
As discussed in Section III below, we adopt the following closed captioning requirements
for the owners, providers, and distributors of IP-delivered video programming under Section 202(b)-(c) of
the CVAA. Specifically, we adopt rules that will:
·
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 providers along with program
files;


1 Pub. L. No. 111-260, 124 Stat. 2751 (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 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).
3 See infra App. B, § 79.4(a)(6) (defining “closed captioning” as “The visual display of the audio portion of video
programming pursuant to the technical specifications set forth in this part.”).
4 See 47 C.F.R. § 79.1 (setting forth the requirements for closed captioning of video programming on television); 47
U.S.C. § 613 (as originally enacted).
5 See infra Section III.A.1.
6 47 U.S.C. § 613(c)(2)(A).
7 47 U.S.C. §§ 303(u)(1), (z)(1).
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o Requiring video programming distributors and providers to enable the rendering or pass
through of all required captions to the end user, including through the hardware or
software that a distributor or provider makes available for this purpose;
o Requiring video programming owners and video programming distributors and providers
to agree upon a mechanism to make available to video programming distributors and
providers information on video programming that is subject to the IP closed captioning
requirements on an ongoing basis;8 and
o Requiring video programming owners to provide video programming distributors and
providers with captions of at least the same quality as the television captions for the same
programming, and requiring distributors and providers to maintain the quality of the
captions provided by the video programming owner.9
·
Create a schedule of deadlines under which:
o All prerecorded programming that is not edited for Internet distribution and is subject to
the new requirements must be captioned if it is shown on television with captions on or
after the date six months after publication of these rules in the Federal Register;
o All live and near-live programming subject to the new requirements must be captioned if
it is shown on television with captions on or after the date 12 months after publication of
these rules in the Federal Register;
o All prerecorded programming that is edited for Internet distribution and is subject to the
new requirements must be captioned if it is shown on television with captions on or after
the date 18 months after publication of these rules in the Federal Register;10 and
o Archival content must be captioned according to the following deadlines: Beginning two
years after publication of these rules in the Federal Register, all programming that is
subject to the new requirements and is already in the VPD’s library before it is shown on
television with captions must be captioned within 45 days after it is shown on television
with captions. Beginning three years after publication of these rules in the Federal
Register, such programming must be captioned within 30 days after it is shown on
television with captions. Beginning four years after publication of these rules in the
Federal Register, such programming must be captioned within 15 days after it is shown
on television with captions;11
·
Craft procedures by which video programming providers and owners may petition the
Commission for exemptions from the new requirements based on economic burden;12
·
Not treat a de minimis failure to comply with the new rules as a violation, and permit entities to
comply with the new requirements by alternate means, as provided in the CVAA;13 and


8 See infra Section III.A.2.
9 See infra Section III.A.3.
10 See infra Section III.B.
11 See infra Section III.A.2.
12 See infra Section III.C.
13 See infra Section III.D.
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·
Adopt procedures for complaints alleging a violation of the new requirements.14
3.
As discussed in Section IV below, we adopt the following closed captioning requirements
for the manufacturers of devices used to view video programming under Section 203 of the CVAA.
Specifically, we adopt rules that will:
·
Establish what apparatus are covered by Section 203: 15
o All physical devices designed to receive and play back video programming, including
smartphones, tablets, personal computers, and television set-top boxes;
o All “integrated software” in covered devices (that is, software installed in the device by
the manufacturer before sale or that the manufacturer requires the consumer to install
after sale); and
o All recording devices and removable media players;16
·
Exclude professional and commercial equipment from the scope of Section 203;
·
Exempt display-only monitors as set forth in Section 203, and establish procedures for finding a
lack of achievability or technical feasibility;17
·
Establish the requirements for devices covered by Section 203:
o Specify how covered apparatus must implement closed captioning by adopting functional
display standards;18
o Require apparatus to render or pass-through closed captioning on each of their video
outputs;19
o Decline to grant blanket waivers or exempt any device or class of devices from our rules
based on achievability or the waiver provisions set forth in Section 203;
·
Establish general complaint procedures and modify our existing television receiver closed
captioning decoder requirements to conform to screen size and achievability provisions;20 and
·
Establish a deadline for compliance of January 1, 2014 by which devices must comply with the
requirements of Section 203.21
Finally, we adopt a safe harbor for use of a particular interchange and delivery format.22

II.

BACKGROUND

4.
On October 8, 2010, President Obama signed the CVAA into law, requiring the


14 See infra Section III.E.
15 See infra Section IV.A.
16 See infra Sections IV.A, IV.D.
17 See infra Section IV.B.
18 See infra Section IV.C.
19 See infra Section IV.E
20 See infra Sections IV.I, IV.F.
21 See infra Section IV.H.
22 See infra Section V.
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Commission to establish closed captioning rules for the owners, providers, and distributors of IP-
delivered video programming, and for certain apparatus on which consumers view video programming.
The CVAA also required the Commission to establish an advisory committee known as the Video
Programming Accessibility Advisory Committee (“VPAAC”),23 which submitted its statutorily mandated
report on closed captioning of IP-delivered video programming to the Commission on July 12, 2011.24
The Commission initiated this proceeding in September 2011.25 In the NPRM, the Commission provided
extensive background information regarding the history of closed captioning, IP-delivered closed
captioning, the applicable provisions of the CVAA, and the VPAAC Report, which we need not repeat
here.26 The CVAA directs the Commission to revise its rules within six months of the submission of the
VPAAC Report to require closed captioning on IP-delivered video programming and include a schedule
of deadlines for the provision of such closed captioning.27 By the same date, Section 203 of the CVAA
directs the Commission to adopt requirements for the closed captioning capabilities of certain apparatus.28
To fulfill these statutory mandates, we adopt the rules discussed below.29
5.
As discussed in the NPRM, in 1997 the Commission first adopted rules and
implementation schedules for closed captioning of video programming on television.30 In recent years,
the Internet has become a powerful method of video programming distribution, and the amount of video
content available on the Internet is increasing significantly each year.31 IP-delivered video programming
today takes a number of forms, such as programming delivered to a personal computer, tablet device,


23 Pub. L. No. 111-260, § 201(a). Although the CVAA refers to this advisory committee as the “Video
Programming and Emergency Access Advisory Committee,” the Commission changed its working name to the
“Video Programming Accessibility Advisory Committee” to avoid confusion with the “Emergency Access Advisory
Committee” referenced in Section 106 of the CVAA.
24 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”).
25 Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First
Century Communications and Video Accessibility Act of 2010
, Notice of Proposed Rulemaking, 26 FCC Rcd 13734
(2011) (“NPRM”).
26 See id. at 13737-42, ¶¶ 5-14.
27 47 U.S.C. §§ 613(c)(2)(A), (B).
28 Pub. L. No. 111-260, § 203.
29 Given the tight statutory deadline, we decline to consider proposals that go beyond implementation of the specific
requirements of the CVAA. See, e.g., Comments of the National Court Reporters Association at 2-3 (“NCRA
Comments”) (suggesting that the Commission address television captioning quality); Comments of TVGuardian,
LLC (“TVGuardian Comments”) (suggesting that the Commission further the Child Safe Viewing Act by using IP
closed captioning to foster language filtering technology). As noted below, the Commission has an open proceeding
addressing the quality of closed captioning on television programming. See infra n. 174. The quality of captioning
delivered over the Internet necessarily will be linked to the quality of captioning delivered over television.
30 See NPRM, 26 FCC Rcd at 13738, ¶ 7; see also 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) (“1998 Closed Captioning Recon. Order”).
31 See, e.g., 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”).
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cellular telephone, game console, Blu-ray player, or set-top box. Through the CVAA, Congress sought to
“update the communications laws to help ensure that individuals with disabilities are able to fully utilize
communications services and equipment and better access video programming.”32 Video programming
owners sometimes make their video programming available via IP through their own websites, and
sometimes they enter into licensing agreements with third parties to distribute their video programming
using IP.33 Although closed captioning of IP-delivered video programming has not been required
previously, certain companies have chosen to make it available voluntarily.34 When a video programming
owner enters into a licensing agreement with a third party to enable the third party to distribute the
owner’s programming via IP, the video programming owner or other entity may provide a closed
captioning file to the third-party distributor, which may then make the closed captioning available to end
users. The rules adopted below will implement new responsibilities regarding the distribution of video
programming over IP, as well as new requirements for the apparatus consumers use to view video
programming.

III.

SECTION 202 OF THE CVAA

A.

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

1.

Definition of Video Programming Owner, Distributor, and Provider

6.
Provisions in Section 202(b) and (c) of the CVAA use the terms “video programming
owner” (“VPO”), “video programming distributor” (“VPD”), and “video programming provider” (“VPP”)
without defining these terms. Accordingly, the Commission must define these terms for purposes of our
implementing regulations.35
7.
Video Programming Owner. As explained below, we define a VPO as “any person or
entity that either (i) licenses the video programming to a video programming distributor or provider that
makes the video programming available directly to the end user through a distribution method that uses
Internet protocol; or (ii) acts as the video programming distributor or provider, and also possesses the
right to license the video programming to a video programming distributor or provider that makes the
video programming available directly to the end user through a distribution method that uses Internet
protocol.” In the NPRM, the Commission proposed to define a VPO as “any person or entity that owns
the copyright of the video programming delivered to the end user through a distribution method that uses


32 See S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010) (“Senate Committee Report”); H.R. Rep. No. 111-563,
111th Cong., 2d Sess. at 19 (2010) (“House Committee Report”).
33 See, e.g., Reply Comments of CBS Corporation at 3 (“CBS Reply”) (“CBS, for example, not only distributes its
broadcast and Showtime programming on line through its own outlets, but also licenses a variety of downstream
distributors to make it available to online users.”).
34 See, e.g., Comments of DIRECTV, Inc. at i (“DIRECTV Comments”) (“For its own part, DIRECTV has already
begun to pass through digital television closed captioning data with programming delivered via IP.”); Reply
Comments of the Association of Public Television Stations and the Public Broadcasting Service at 4 (“APTS/PBS
Reply”) (“PBS designed its online video distribution system to support closed captioning, and approximately a
quarter of all content that is posted online through this system, including some station-produced programming, is
captioned today.”); CBS Reply at 2 (“On a voluntary basis, the CBS Television Network already has begun
providing closed captions on CBS broadcast programming that is made available online.”). Closed captioning is
also available through Apple’s iTunes. See Finding Closed Caption Programming Available on iTunes, available at
http://www.apple.com/itunes/inside-itunes/2011/09/finding-closed-caption-programming-available-on-itunes.html
(last visited January 9, 2012).
35 The definitions we adopt for the terms VPO, VPD and VPP in this Report and Order apply only to those terms as
used with regard to Sections 202 and 203 of the CVAA, and not to those terms in other contexts, such as our
television closed captioning or video description rules. See NPRM, 26 FCC Rcd at 13742, n. 63.
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IP.”36 Several commenters support this proposal.37 DIRECTV, however, proposes that the Commission
“should define ‘owner’ as the single entity that licenses the copyrighted work for distribution,”38 and
Consumer Groups argue that the definition of VPO proposed in the NPRM should be “more robust.”39
We agree with DIRECTV that the definition proposed in the NPRM is problematic for present purposes
because multiple copyright owners may possess particular rights in a single piece of video
programming.40 In this context, we are interested in the person or entity that licenses the video
programming to a video programming distributor or provider that makes the video programming available
directly to the end user through a distribution method that uses IP. Defining a VPO in this manner will
ensure that a single entity is responsible for fulfilling the VPO’s responsibilities, which is beneficial from
an enforcement perspective given that an alternative definition may create problems in identifying the
responsible VPO. We expect that the VPO often, but not always, will be the copyright owner. Even in
instances in which the VPO does not itself create captions for the programming, we expect that the VPO
(as we define that term) will be better positioned than the VPD or VPP to obtain the captions, since by
definition the VPO is higher up the distribution chain than the VPD or VPP. Accordingly, we adopt
DIRECTV’s proposed definition of VPO. We recognize, however, that there may be situations where the
VPO is also the VPD or VPP (for example, if the VPO makes its video programming available through its
own website), and we believe that our definition also should cover VPOs in such situations, even though
there is no licensing agreement in such circumstances.41 Accordingly, we expand the definition of VPO
proposed by DIRECTV to include any person or entity that acts as the video programming distributor or
provider, and also possesses the right to license the video programming to a video programming
distributor or provider that makes the video programming available directly to the end user through a
distribution method that uses Internet protocol. Thus, the definition of VPO is intended to include entities
that have the right to license IP distribution of programming to others, but make the programming
available through their own websites, as well as entities that license others to distribute the video
programming to the end users.
8.
Video Programming Distributor and Provider. We adopt the definition of VPD and VPP
that the Commission proposed in the NPRM, with one modification. Specifically, we define a VPD or
VPP as any person or entity that makes video programming available directly to the end user through a
distribution method that uses IP.42 We have added the phrase “person or” to this proposed definition to


36 See id. at 13742, ¶ 15.
37 See, e.g., Comments of Digital Media Association at 5 (“DiMA Comments”); DIRECTV Comments at 6-7; Reply
Comments of DISH Network L.L.C. at 2 (“DISH Network Reply”); Comments of Microsoft Corporation at 4
(“Microsoft Comments”); Reply Comments of Time Warner Cable Inc. at 5 (“TWC Reply”).
38 Reply Comments of DIRECTV, Inc. at 5 (“DIRECTV Reply”).
39 See Comments of Telecommunications for the Deaf and Hard of Hearing, Inc. et al. at 5-6 (“Consumer Groups
Comments”).
40 See DIRECTV Reply at 5; see also Comments of the Motion Picture Association of America, Inc. at 6 (“MPAA
Comments”); CBS Reply at 7.
41 Where the VPO is also the VPD or VPP, it may not rely on a good faith use of the mechanism described in
Section III.A.2, infra, because as the VPO, it should know whether its programming is shown on television with
captions after the effective date of our new rules. See also 47 U.S.C. § 613(c)(2)(D)(vi) (providing that the
Commission’s regulations “shall consider that the video programming provider or distributor shall be deemed in
compliance if such entity enables the rendering or pass through of closed captions and makes a good faith effort to
identify video programming subject to the Act using the mechanism created in (v)”).
42 As stated above, we agree with those commenters who note that sometimes a VPO may also be a VPD/VPP, and
as noted in paragraph 7, above, our definition of VPOs is intended to cover this situation. See DIRECTV Comments
at 8; MPAA Comments at 6 n. 14; Comments of Verizon and Verizon Wireless at 2 (“Verizon Comments”); Reply
(continued….)
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parallel the VPO definition adopted herein, and to make explicit our coverage of an individual distributor
or provider, to the extent one exists.
9.
We affirm the NPRM’s tentative conclusion to define VPDs and VPPs as meaning the
same thing. Congress directed the Commission to “describe the responsibilities of video programming
providers or distributors,”43 leaving it to the Commission’s discretion to determine whether to define the
terms as interchangeable. Based on the existing record, we find that in the context of IP closed
captioning, VPDs and VPPs are both people or entities that make video programming available directly to
the end user through a distribution method that uses IP. We have no factual basis on which to distinguish
between VPDs and VPPs and the record does not support different definitions.44 Although we recognize
that certain provisions in the CVAA reference VPPs but not VPDs,45 we disagree with TWC that
Congress affirmatively decided that VPDs and VPPs are distinct categories with distinct responsibilities,46
and we do not see any support for that position in the legislative history. Thus, we find no legal or policy
basis for interpreting VPDs and VPPs differently. In this regard, we note that several commenters in the
record support our finding.47 And we also note that, although the Commission in the NPRM highlighted
the fact that certain statutory provisions reference VPPs, but not VPDs, and asked specifically about the
relevance of this,48 commenters did not provide any insight on this issue.
10.
We note that commenters that suggest that VPD and VPP should mean different things49
propose definitions that would reach entities that we do not believe Congress intended to cover through
the CVAA, such as an Internet service provider (“ISP”) from which end users receive Internet access.50
(Continued from previous page)


Comments of the American Cable Association at 7 (“ACA Reply”); Reply Comments of the National Association of
Broadcasters at 6 n. 14 (“NAB Reply”).
43 47 U.S.C. § 613(c)(2)(D)(iv) (emphasis added).
44 Since for the reasons stated in this paragraph, we define VPDs and VPPs as meaning the same thing, we will refer
to them as “VPDs” throughout the rest of this Report and Order.
45 47 U.S.C. §§ 613(c)(2)(C), (c)(2)(D)(vii), (d)(3).
46 See TWC Reply at 2.
47 See, e.g., Consumer Groups Comments at 2; Verizon Comments at 2; DISH Network Reply at 2; see also NPRM,
26 FCC Rcd at 13742, ¶ 15.
48 See NPRM, 26 FCC Rcd at 13742, ¶ 15 (“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?”).
49 See, e.g., Microsoft Comments at 5-7; APTS/PBS Reply at 5-6; TWC Reply at 1-2, 5-6. Eternal World Television
Network also proposes that the Commission adopt different definitions of VPD and VPP. See Comments of Eternal
World Television Network, Inc. at 3 (“EWTN Comments”) (“In the instance where the programmer is televising
acquired programming, it is not the VPO, but VPP. The MVPD is the VPD, but yet the programmer may be
exempt. The definitions should permit the exempt programmer to remain exempt in this scenario and all matters of
complying with the proposed rules remain with the MVPD.”). We find EWTN’s proposal to be unclear, whereas
our definitions will enable affected entities to clearly determine who is subject to which requirements.
50 See, e.g., Reply Comments of the National Cable & Telecommunications Association at 6-7 n. 21 (“NCTA
Reply”). See also Comments of the American Cable Association at 8 n. 22 (“ACA Comments”); Consumer Groups
Comments at 3; Comments of the Independent Telephone & Telecommunications Alliance at 3 (“ITTA
Comments”); Comments of the National Cable & Telecommunications Association at 10 n. 21 (“NCTA
Comments”); ACA Reply at 4, 19-20; Pub. L. No. 111-260, § 2(a); cf. Preserving the Open Internet, Report and
Order, 25 FCC Rcd 17905, 17982-83, ¶¶ 141-142 (2010) (“Unlike cable television operators, broadband providers
typically are best described not as ‘speakers,’ but rather as conduits for speech . . . . [W]hen defending themselves
against subpoenas in litigation involving alleged copyright violations, broadband providers typically take the
position that they are simply conduits of information provided by others.”) (footnote omitted).
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Congress specifically excluded such entities from obligations under the CVAA for advanced
communications services, and similarly we do not think that Congress intended to reach them here.51 We
agree with ACA, ITTA, and NCTA that VPDs and VPPs should not include entities that are acting as
ISPs, simply providing access to video programming distributed by another entity.52 We find that
regulating such entities as part of the IP closed captioning regime would be unworkable; for example,
Section 202(b) of the CVAA requires VPDs and VPPs to make “a good faith effort to identify video
programming subject to the” closed captioning requirements, a requirement that could not be met by an
entity that merely provides Internet access and is not aware of the video programming content that it
passes along the distribution chain.53
11.
For the reasons explained below, the IP closed captioning rules will not apply to a
broadcaster’s or MVPD’s provision of programming that is subject to the Commission’s television closed
captioning rules.54 Section 79.1 imposes television closed captioning requirements on video
programming distributors, which it defines as “[a]ny television broadcast station licensed by the
Commission and any [MVPD] as defined in § 76.1000(e) of this chapter, and any other distributor of
video programming for residential reception that delivers such programming directly to the home and is
subject to the jurisdiction of the Commission.”55 In the NPRM, the Commission proposed to define VPD
in the IP closed captioning context as “any entity that makes available directly to the end user video
programming through a distribution method that uses IP.”56 Some commenters support the proposed
definition.57 Others assert that rather than “IP” distribution, the Commission’s regulations should focus
more specifically on online or Internet distribution.58 These commenters express concern over the
confusion that would result from new rules that cover some of the same MVPD services, such as IPTV,59


51 See Pub. L. No. 111-260, § 2(a) (“Except as provided in subsection (b), no person shall be liable for a violation of
the requirements of this Act . . . with respect to video programming, online content, applications, services, advanced
communications services, or equipment used to provide or access advanced communications services to the extent
such person-- (1) transmits, routes, or stores in intermediate or transient storage the communications made available
through the provision of advanced communications services by a third party; or (2) provides an information location
tool, such as a directory, index, reference, pointer, menu, guide, user interface, or hypertext link, through which an
end user obtains access to such video programming, online content, applications, services, advanced
communications services, or equipment used to provide or access advanced communications services.”).
52 To the extent an ISP distributes video programming directly to end users, for example by making video
programming available on its own website, the ISP is not merely providing access to the video programming
distributed by another VPD, but rather, is acting as a VPD.
53 See 47 U.S.C. § 613(c)(2)(D)(vi).
54 For example, if a local television station also makes its programming available on the Internet, the television
broadcast remains subject to Section 79.1, and the programming available on the Internet will be subject to Section
79.4.
55 47 C.F.R. § 79.1(a)(2).
56 NPRM, 26 FCC Rcd at 13742, ¶ 15.
57 See, e.g., DiMA Comments at 5; DIRECTV Comments at 6-7; DISH Network Reply at 2.
58 See, e.g., ACA Comments at 8; ITTA Comments at 3; MPAA Comments at 1 n. 2; NCTA Comments at 10-11;
Reply Comments of AT&T at 7 (“AT&T Reply”); DIRECTV Reply at 7; Reply Comments of the Motion Picture
Association of America, Inc. at 11 n. 11 (“MPAA Reply”); TWC Reply at 2.
59 Internet Protocol Television (“IPTV”) is a technology used by some MVPDs to deliver television services. Video
content typically travels over a managed, two-way IP network and can be delivered to the subscriber using a
combination of fiber and Digital Subscriber Line (“xDSL”) over copper technology.
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that are covered by the Commission’s existing television closed captioning rules.60 We agree with ACA
that we must presume Congress knew that MVPDs are subject to existing closed captioning rules.61 The
television closed captioning rules are broader than the IP closed captioning rules adopted herein, insofar
as the television closed captioning rules require closed captioning for all new nonexempt English-and
Spanish-language video programming,62 whereas the CVAA only requires closed captioning of IP-
delivered video programming if the programming is “published or exhibited on television with captions
after the effective date” of the new rules.63 Congress did not give any indication that it intended the new
IP closed captioning rules to override the existing television closed captioning rules where an MVPD
provides its service via IP. Thus, we clarify that the new IP closed captioning rules do not apply to
traditional managed video services that MVPDs provide to their MVPD customers within their service
footprint, regardless of the transmission protocol used; rather, such services are already subject to Section
79.1 of the Commission’s rules.64
12.
All video programming that is available on the Internet is IP-delivered, but not all video
programming that is delivered via IP is Internet programming.65 We therefore decline to limit application
of the IP closed captioning requirements to programming that VPDs deliver over the Internet. While
some portions of the legislative history reference “Internet distribution,”66 we agree with Consumer
Groups that such references were not intended to limit the reach of Section 202(b) to Internet-delivered
video programming.67 To the contrary, consistent with the language of the statute itself, the legislative
history made repeated references to “Internet protocol.”68 We agree with Consumer Groups that if
Congress had intended the CVAA to apply more narrowly to a certain class of IP-delivered video
programming, it would have said so.69 We note that, as technology evolves, a decision to limit the
application of the new IP closed captioning rules to “Internet” or “online” video programming could have
unforeseen consequences.70 For the same reasons, we disagree with ACA’s proposal that an MVPD be
subject to the new IP closed captioning requirements only when it is “acting as an online video distributor
outside its MVPD footprint.”71 An MVPD that distributes video programming online within its MVPD


60 See, e.g., ACA Reply at 3, 9; AT&T Reply at 7; DIRECTV Reply at 7.
61 See ACA Comments at 10; see also ACA Comments at 11 (“[I]n the CVAA Congress was simply filling in a gap
that was not addressed in the prior law.”); ACA Reply at 2.
62 See 47 C.F.R. § 79.1(b).
63 See 47 U.S.C. § 613(c)(2)(A).
64 See, e.g., AT&T Reply at 7. By “traditional managed video service,” we mean a service through which an MVPD
offers multiple channels of video programming, including IP-based video offerings such as those provided by
AT&T.
65 For example, programming may be delivered via IP using an entity’s private network. Such programming would
be IP-delivered, but it would not be Internet programming.
66 See, e.g., Senate Committee Report at 13.
67 See Reply Comments of Telecommunications for the Deaf and Hard of Hearing, Inc. et al. at 19 (“Consumer
Groups Reply”).
68 See, e.g., Senate Committee Report at 13; House Committee Report at 30.
69 See Consumer Groups Reply at 19.
70 See, e.g., id. at 18.
71 See ACA Reply at 8-9. ACA proposes that the Commission incorporate into its definition of VPD the distinction
between an MVPD and an online video distributor, as that term is defined in the Comcast-NBCU Order, and that it
only apply its new IP closed captioning rules to online video distributors. See ACA Comments at 3, 7-13; ACA
Reply at 11-16. Specifically, ACA proposes that the Commission define VPD as “[a]ny entity that makes available
(continued….)
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footprint, but not as part of its MVPD service subject to Section 79.1, will be subject to new Section 79.4.
In general, an MVPD will be subject to the new IP closed captioning rules if it is distributing IP-delivered
video programming that is not part of the traditional managed video services that it provides its MVPD
customers within its service footprint. The distinction that ACA proposes, which would exclude from
coverage online video distribution within the MVPD’s footprint, is unsupported by the CVAA and its
legislative history.
13.
We are not persuaded by the concerns of Consumers Groups that the proposed definition
of VPD is both under-inclusive and over-inclusive. Specifically, Consumer Groups argue that the
proposed definition is under-inclusive, in that it includes the term “directly” and thus may not reach
certain entities, and over-inclusive, in that it “may lay captioning responsibility at the feet of network
providers and other entities that lack the ability to assist consumers in fixing videos with insufficient or
missing captions.”72 We do not believe that inclusion of the term “directly” in the definition of VPD is
under-inclusive; rather, use of the word “directly” avoids placing requirements on certain entities, such as
ISPs, that are not aware of the video programming content that they pass along the distribution chain.73
Our definition is also consistent with Section 202(b) of the CVAA, which requires the Commission’s
regulations to “clarify that . . . the terms ‘video programming distributors’ and ‘video programming
providers’ include an entity that makes available directly to the end user video programming through a
distribution method that uses Internet protocol.”74 As to the argument that the proposed definition is over-
inclusive, we find that VPDs, as we have defined them, will in fact include the entities that are best suited
to address consumer concerns in the first instance. We agree with Consumer Groups that an entity that
merely caches Internet videos hosted on another website or server is not a VPD.75
2.

Responsibilities of Video Programming Owners, Distributors, and Providers

14.
Section 202(b) of the CVAA requires the Commission’s regulations to “describe the
responsibilities of video programming providers or distributors and video programming owners.”76 It also
requires the Commission to “establish a mechanism to make available to video programming providers
and distributors information on video programming subject to the Act on an ongoing basis.”77 The
purpose of the required “mechanism” is to enable VPDs to determine whether the video programming
that they intend to make available via IP has been shown on television with captions after the effective
date of the new rules. Section 202(b) further provides that the Commission’s regulations for closed
captioning of IP-delivered video programming:
shall consider that the video programming provider or distributor shall be deemed in
compliance if such entity enables the rendering or pass through of closed captions and
makes a good faith effort to identify video programming subject to the Act using the
(Continued from previous page)


directly to the end user video programming using an IP distribution method over the Internet or other IP-based
distribution path provided by an entity other than the VPD. A VPD does not include an MVPD using IP distribution
inside its MVPD footprint or an MVPD to the extent it is offering online video programming as a component of an
MVPD subscription to customers whose homes are inside its MVPD footprint.” ACA Reply at 14 (footnote
omitted).
72 See Consumer Groups Comments at 3.
73 See supra ¶ 10.
74 47 U.S.C. § 613(c)(2)(D)(iii) (emphasis added).
75 See Consumer Groups Comments at 3.
76 47 U.S.C. § 613(c)(2)(D)(iv).
77 47 U.S.C. § 613(c)(2)(D)(v).
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mechanism [referenced above].78
15.
Video programming owner responsibilities. We adopt the NPRM’s proposal to require
VPOs to send program files to VPDs with all required captions.79 We find that placing such an obligation
on VPOs is consistent with the CVAA and the record in this proceeding.80 Although we acknowledge
that the Commission chose not to directly regulate video programming owners in the television context
and that there are similarities between the television and IP captioning statutory schemes, the record in
this proceeding reflects that “closed captioning over television and IP are fundamentally different and
merit different regulatory approaches.”81
16.
Our decision is consistent with the statutory language.82 Section 202(b) of the CVAA
requires the Commission to revise its regulations to require closed captioning83 of IP-delivered video
programming that was shown on broadcast or MVPD-delivered television with captions after the effective
date of the new regulations. While the CVAA does not direct the Commission to impose captioning
obligations on VPOs, it clearly authorizes the Commission to promulgate rules directly affecting VPOs as
well as VPDs.84 Direct regulation of VPOs closes a potential gap in the statutory scheme. Section 202(b)
of the CVAA provides that a VPD “shall be deemed in compliance if such entity enables the rendering or
pass through of closed captions and makes a good faith effort to identify video programming subject to
the [CVAA] using the mechanism created” herein for identifying such programming.85 Under this
provision, a VPD is responsible for rendering or pass through of closed captions and good faith efforts to


78 47 U.S.C. § 613(c)(2)(D)(vi).
79 See NPRM, 26 FCC Rcd at 13743, ¶¶ 16. We leave it to the parties to determine how or whether a VPO should
convey to a VPD that captions are not required for a particular program because it has not been shown on television
with captions, even though the VPO is providing a caption file. We strongly encourage VPDs to provide captioning
for programming delivered via IP in all instances in which the VPO makes an appropriate captioning file available.
80 Of course, a VPD that is also a VPO is subject to the requirements of VPDs and the requirements of VPOs, such
that it must produce the captions.
81 Reply Comments of Microsoft Corporation at 2-3 (“Microsoft Reply”) (footnote omitted).
82 See, e.g., ACA Reply at 19; AT&T Reply at 4-5; DIRECTV Reply at 3-4 and n. 9; Reply Comments of Verizon
and Verizon Wireless at 3 (“Verizon Reply”).
83 The rules we adopt here define “closed captioning” to mean, “The visual display of the audio portion of video
programming pursuant to the technical specifications set forth in this part.” See infra App. B, § 79.4(a)(6). The
NPRM defined the term to mean, “The visual display of the audio portion of video programming.” NPRM, 26 FCC
Rcd at 13768 (App. B, § 79.4(a)(6)). We have added the phrase “pursuant to the technical specifications set forth in
this part” to follow the approach used to define the term “closed captioning” for purposes of the Commission’s
television closed captioning requirements, 47 C.F.R. § 79.1(a)(4), and to clarify that the closed captioning
requirements we adopt herein are subject to the applicable technical specifications.
84 Specifically, under the “requirements for regulations,” the CVAA directs the Commission to “describe the
responsibilities of video programming providers or distributors and video programming owners.” See 47 U.S.C. §
613(c)(2)(D)(iv) (emphasis added). See also 47 U.S.C. § 613(c)(2)(D)(vii) (directing that the Commission’s
regulations “provide that de minimis failure to comply with such regulations by a video programming provider or
owner shall not be treated as a violation of the regulations.”) (emphasis added); 47 U.S.C. § 613(c)(2)(C)
(authorizing the Commission to delay or waive its IP closed captioning regulations to the extent it finds the
“regulations would be economically burdensome to providers of video programming or program owners”)
(emphasis added). The legislative history sheds no additional light on the issue of Congress’s intent with respect to
direct regulation of VPOs. See Senate Committee Report at 1-3, 13-14; House Committee Report at 1, 30.
85 See 47 U.S.C. § 613(c)(2)(D)(vi). The previous version of Section 713 of the Act, which addressed television
closed captioning, did not contain a comparable limitation on the imposition of VPD responsibilities. The
mechanism that the CVAA provides for is discussed later in this Section III.A.2.
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identify programming subject to the CVAA, and is protected from liability for distributing programming
without closed captions if those two requirements are met. We recognize that, in the absence of a
requirement that VPOs provide captioning, VPDs and VPOs may nonetheless enter into private contracts
placing such an obligation on VPOs. We find, however, that it is more efficient and less costly to place
appropriate obligations on VPOs and on VPDs, rather than to expect the parties to enter into contracts
mandating the same obligations. Thus, we believe that imposing responsibility on VPOs as well as VPDs
is both consistent with the Commission’s authority to identify the responsibilities of VPOs under the
statute and necessary to further the statutory purpose of helping to “ensure that individuals with
disabilities are able to fully utilize communications services and equipment and better access video
programming.”86
17.
Further, we find that imposing responsibility on VPOs is consistent with the statutory
directive to establish a “mechanism” to make available to VPDs information on video programming
subject to the Act on an ongoing basis because it will help to ensure that the mechanism the statute
provides for will function effectively. In contrast, leaving VPOs’ responsibilities to be defined entirely by
private contractual arrangements87 would be more costly and less efficient than appropriately allocating
certain responsibilities among both VPOs and VPDs by Commission rule.88
18.
We also find that placing obligations on VPOs will ensure that the Commission may hold
a responsible party accountable for violations of the CVAA. For example, if a VPO erroneously certifies
to a VPD that captions are not required for a particular program, and the VPD makes a good faith use of
the “mechanism” discussed below, there would be no entity to hold legally accountable (e.g., with respect
to a consumer complaint or enforcement action) in the absence of rules placing obligations on the VPO.89
We note that Consumer Groups state that, “to the extent that the Commission interprets the CVAA to
require a safe harbor for VPDs and VPPs who pass through or render caption files, . . . we would support
a decision by the Commission to make VPOs and their licensees and sublicensees responsible for
captioning IP-delivered video programming to the extent the CVAA does not permit placing that
responsibility with VPPs or VPDs.”90 Thus, Consumer Groups support the approach we adopt here. In
that regard, we note that Consumer Groups initially expressed concern about placing responsibilities on
both VPDs and VPOs on the ground that consumers and the Commission would be faced with the
potentially difficult task of identifying VPOs against whom to file a complaint or seek enforcement.91 To
address these concerns, as explained below, we make clear that consumers will be free to file their
complaints against VPDs, and the Commission will require VPDs to provide information on the VPO’s
identity if the VPD claims that the captioning problem was the fault of the VPO.92 Accordingly, we agree


86 Senate Committee Report at 1; House Committee Report at 19.
87 See, e.g., MPAA Comments at 6; NCTA Comments at 12.
88 See Reply Comments of Google, Inc. at 5 (“Google Reply”) (“Continued reliance on the types of negotiations
involving closed captioning for television programming would be inefficient, would not result in consistent caption
quality, and would fail to adequately address the needs of consumers.”).
89 See Senate Committee Report at 14 (“The Committee recognizes that online video distributors that are not
multichannel video programming distributors may not be able to readily ascertain whether programs were
distributed on television and thus subject to the closed captioning requirement. Accordingly, the Committee
encourages the Commission to recognize good faith efforts to identify video programming subject to the Act”).
90 Letter from Andrew S. Phillips, Policy Attorney, National Association of the Deaf, et al., to Marlene H. Dortch,
Secretary, FCC, at 2 (Dec. 2, 2011).
91 See Consumer Groups Comments at 7-8; Consumer Groups Reply at 16; Letter from Andrew S. Phillips, Policy
Attorney, National Association of the Deaf, to Marlene H. Dortch, Secretary, FCC, at 1 (Nov. 10, 2011) (“Consumer
Groups Nov. 10 Ex Parte Letter”); see also MPAA Comments at 2; MPAA Reply at 4-6.
92 See infra Section III.E.
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with Verizon that regulating VPOs as well as VPDs will not have a negative impact on consumers.93
19.
Our examination of the record in this proceeding likewise provides support for imposing
duties directly on VPOs. Numerous commenters support the NPRM’s proposal to impose captioning
obligations on content owners rather than assign such obligations exclusively to VPDs.94 Even one VPO
recognizes that the Commission should allocate responsibilities among the parties in the chain of IP
content delivery, with requirements placed on both VPOs and VPDs.95 Commenters argue that “VPOs
are in the best position to assess whether captions are required for a particular program since they have
knowledge of which content has been shown on television,” and “as the copyright holders, the VPOs
typically possess the necessary legal rights to modify the content and insert closed captions.”96 We agree,
and believe that these factors further justify placing the obligation to provide required captions on
VPOs.97 We also agree with Google that placing such obligations on VPDs would be unduly
burdensome, as their systems generally do not enable them to review video content, determine whether


93 See Verizon Reply at 3 (“Consumers will still be able to contact their video distributor or provider to inquire or
complain about an absence of closed captions, and the video distributors and providers will still have processes they
must follow to carry out their responsibilities and to address consumer complaints. But consumers will also have the
opportunity under the new statute to seek enforcement against a content owner that fails to properly caption its
programming, and the content owner will fall squarely within the Commission’s jurisdiction for these purposes.”).
As explained in Section III.E below, in addition to contacting VPDs about captioning concerns, consumers may also
file their complaints directly with the Commission. See infra Section III.E.
94 See, e.g., ACA Comments at 13-14; Comments of AT&T at 6-7 (“AT&T Comments”) (agreeing with the
Commission’s proposed division of captioning responsibility, “which recognizes the crucial roles of VPOs . . . in
ensuring the successful delivery of closed captions”; stating that VPOs are in the best position to know if a program
has appeared on TV with captions); DiMA Comments at 5 (a requirement to provide captions or a certification that
captioning is not required should be imposed on the VPO, which is in the best position to determine whether
captioning is required); DIRECTV Comments at 2 (“commend[ing] the Commission for recognizing that primary
responsibility for captioning must fall upon those who create video programming rather than those who distribute
it”), 9 (“the CVAA gives the Commission clear authority directly over VPOs as well as VPDs/VPPs” and thus “
VPOs can be held directly accountable for captioning IP-delivered programming as required”); Comments of
Google, Inc. at 7 (“Google Comments”); Microsoft Comments at 5; Verizon Comments at 1-3; ACA Reply at 16-19
(“Consistent with the CVAA, the proposed rules place the primary responsibility for compliance with IP closed
captioning mandates on VPOs to send program files to VPPs/VPDs with all required captions”); APTS/PBS Reply
at 5 (supporting the Commission’s proposal to require the entity that owns the copyright in the video programming
(the VPO) to send program files to the VPD that include captions or a certification explaining why captions are not
required); AT&T Reply at 3-5; DIRECTV Reply at 2-4 (assigning VPDs exclusive responsibility for captioning
would be inconsistent with the CVAA’s deemed in compliance provision for VPDs which pass through closed
captions and make a good faith effort to identify video programming subject to the Act); DISH Network Reply at 3;
Google Reply at 4-5; Microsoft Reply at 2-4; Reply Comments of Rovi Corporation at 2 (“Rovi Reply”); Verizon
Reply at 2-3.
95 See Comments of Starz Entertainment, LLC at 2-4 (“Starz Comments”).
96 Microsoft Comments at 5. See also Google Comments at 7-8 (in view of VPOs’ ability to readily make
determinations as to which programs are subject to captioning, requiring this undertaking of VPDs would be
“unduly burdensome”).
97 We recognize that some of the above arguments may be premised on VPO copyright ownership, consistent with
the VPO definition proposed in the NPRM, whereas we have decided to define a VPO based on its license to
distribute programming to a VPD. See supra ¶ 7. Even if a VPO does not own the copyright to programming,
however, we believe it will be in a better position than the VPD to determine whether the programming aired on
television with captions and to obtain the rights necessary to add captions because it will be closer to the copyright
owner than the VPD in the “potentially complicated chain of copyright ownership.” See MPAA Comments at 2;
infra ¶ 24.
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captions are required, and then insert captions.98 Further, for the reasons above, we agree with
commenters who suggest that imposing obligations on VPOs would be most consistent with the statute.99
20.
We agree with commenters who argue that key differences between the television and IP
contexts justify different regulatory treatment of VPOs.100 Similar to the CVAA, the closed captioning
statute governing broadcast television and MVPD services authorizes the Commission to regulate closed
captioning of programming by providers and owners of video programming.101 The Commission decided
in 1997 to place the responsibility for compliance with the closed captioning rules on video programming
distributors, defined as all entities who provide video programming directly to customers’ homes,
regardless of distribution technology used (i.e., broadcast or MVPD).102 The Commission reasoned in
1997 that placing compliance obligations on distributors would promote more efficient monitoring and
enforcement of the closed captioning rules, because there would typically be a single entity to which
complaints must be addressed, and there would be no need for tracking the entities responsible for
producing programs alleged to violate the rules.103 The Commission expressed an expectation that
distributors would privately negotiate with program owners regarding “an efficient allocation of
captioning responsibilities” and that program owners would “cooperate with distributors to ensure that
nonexempt programming is closed captioned in accordance with our rules.”104 Thus, the Commission
chose to limit regulatory oversight to distributors, notwithstanding that excluding program owners from
the rules would leave a liability gap in the television/MVPD captioning context. In that regard, the
Commission explained, “[d]istributors will not be held responsible for situations where a program source
falsely certifies that programming delivered to the distributor meets our captioning requirements if the
distributor is unaware that the certification is false.”105
21.
Notwithstanding the statutory and regulatory similarities between IP and television closed
captioning, we find that a different regulatory approach for the IP closed captioning regime than the
television closed captioning regime is justified by fundamental differences between television and IP
distribution.106 “[I]n the television context,” as Microsoft explains, “a single broadcaster, MVPD, or


98 See Google Comments at 7-8.
99 See supra n. 94. See also Starz Comments at 2-3; NAB Reply at 7 (“clearly, Congress intended for VPOs to bear
some direct responsibility under the law, and NAB recognizes this fact.”).
100 See, e.g., Microsoft Reply at 2-3.
101 See, e.g., 47 U.S.C. § 613(b)(2) (directing the Commission to prescribe regulations that “shall ensure” that “video
programming providers or owners maximize the accessibility of video programming first published or exhibited
prior to the effective date of such regulations through the provision of closed captions) (emphasis added); 47 U.S.C.
§ 613(d) (authorizing the Commission to exempt classes of programs where “the provision of closed captioning
would be economically burdensome to the provider or owner of such programming” and authorizing the “provider
of video programming or program owner” to petition the Commission for an exemption from the captioning
requirement) (emphasis added).
102 1997 Closed Captioning Order, 13 FCC Rcd at 3280, ¶ 18.
103 Id. at 3286, ¶ 27.
104 Id. at 3286, ¶ 28.
105 Id.
106 See, e.g., AT&T Comments at 3 (“The Commission should recognize that the IP video market as targeted by the
CVAA differs from the traditional television broadcast or [MVPD] models in several key ways that may necessitate
a different approach to achieving the goal of making closed captions available to the widest extent possible.”);
DiMA Comments at 11 (stating that there are “many differences between the television and IP ecosystems”);
DIRECTV Comments at 15 (“Unlike television programming, IP-delivered programming may be accessed at
different times and in different ways by consumers viewing it on different devices.”); Google Comments at 5 (“[I]t
(continued….)
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similar entity is responsible for the delivery of video programming,” whereas “video on the Internet often
will pass through the hands of numerous parties on its way to the consumer” and VPDs in a chain often
cannot identify one another, lack contractual relationships, and will not possess the rights necessary to
caption a work.107 Indeed, Congress mandated that the Commission establish a mechanism to make
available to VPDs information about whether programming has aired on television, a mechanism that is
unnecessary in the television context.108 We believe that this characteristic of the IP distribution chain
helps to justify imposing obligations directly on VPOs in the IP context, whereas the Commission
reasonably believed that in the television/MVPD context it could rely on video programming distributors
or providers working with program suppliers with whom they have close contractual relationships. Even
where a distribution chain is complex and the VPO itself does not create the closed captions, we expect
that the VPO will be better positioned than the VPD to obtain the captions, since by definition the VPO is
farther up the distribution chain than the VPD.
22.
We also believe that the differences between video programming distributors vis-à-vis
video programming owners in the television and IP closed captioning contexts help to justify different
regulatory approaches. Importantly, the IP closed captioning provisions of the CVAA reach a broader
class of VPDs than the video programming distributors subject to the Commissions’ television closed
captioning rules – i.e., broadcasters and MVPDs. This is significant because after the Commission placed
sole liability on distributors in the television closed captioning context, we understand that in practice
broadcasters and MVPDs typically placed certain obligations on content owners by contract.109 As
explained above, we find that it is more efficient and less costly to place appropriate obligations on VPOs
and on VPDs, rather than to expect the parties to enter into contracts placing certain obligations on VPOs.
The record indicates that captioning problems in the television context are sometimes the fault of the
content owner rather than the distributor,110 and so private contractual arrangements may indemnify
television distributors in such instances. We are not confident that all VPDs of IP-delivered video
programming (including online video distributors and other new media companies) have sufficient
leverage and ability to obtain similar contract clauses or even have privity of contract with the entity with
captioning rights. Thus, although the Commission concluded in the television context that holding
(Continued from previous page)


is apparent that policies adopted for a broadcast-centric industry will not guarantee the adoption of closed captioning
for IP-delivered video consistent with the CVAA.”); Comments of HDMI Licensing, LLC at 4 (“HDMI Licensing
Comments”) (“The digital world is not nearly as simple” as television); Comments of the National Association of
Broadcasters at 10 (“NAB Comments”) (noting “the implications of [IP] video delivery practices that vary so
substantially from traditional television captioning.”); Microsoft Reply at 2-3.
107 Microsoft Reply at 2-3.
108 See Senate Committee Report at 14 (The Committee recognizes that online video distributors that are not
multichannel video programming distributors may not be able to readily ascertain whether programs were
distributed on television and thus subject to the closed captioning requirement.”); infra ¶¶ 28-32.
109 See, e.g., MPAA Comments at 7; NAB Comments at 11; see also 1997 Closed Captioning Order, 13 FCC Rcd at
3286, ¶ 28 (“Although we are placing the ultimate responsibility on program distributors, we expect that distributors
will incorporate closed captioning requirements into their contracts with producers and owners, and that parties will
negotiate for an efficient allocation of captioning responsibilities.”).
110 See, e.g., Letter from Leora Hochstein, Executive Director, Federal Regulatory, Verizon, to Marlene H. Dortch,
Secretary, FCC, at 2 (Nov. 23, 2011) (“[T]he limited number of closed captioning complaints Verizon has
experienced in the delivery of its FiOS TV service, such as missing or garbled captioning, most often stemmed from
the content originators.”); Letter from William M. Wiltshire, Counsel for DIRECTV, to Marlene H. Dortch,
Secretary, FCC, at 1 (Dec. 1, 2011) (“Although they receive relatively few complaints related to captioning of
television programming, DIRECTV and DISH Network have found that many of those complaints arise due to a
failure of the programmer to provide complete and accurate captioning.”).
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distributors responsible for captioning would be the most efficient approach,111 in the IP closed captioning
context we find it would be most effective to regulate both VPOs and VPDs.
23.
We also note that distinctions between the two statutory schemes support adoptions of a
different regulatory approach in the IP context. In that regard, Verizon points out that, unlike the
statutory provisions governing television closed captioning, the CVAA “explicitly limits the video
distributors and providers’ responsibility to passing through the closed captions they receive from content
owners.”112 In other words, the provisions governing television closed captioning allow the Commission
to establish video programming distributor or provider responsibilities that encompass the actual
provision of closed captioning, whereas the CVAA precludes imposing that direct responsibility.
24.
We therefore disagree with commenters that argue that the Commission’s proposals
improperly allocate responsibility, and that the regulations should focus exclusively on the entity with the
direct-to-consumer relationship rather than on the VPO.113 As discussed above, VPOs are better suited
than VPDs to determine whether their programming has been shown on television with captions after the
effective date, and VPOs more likely possess the rights necessary to caption their own content.114 Even if
a VPO lacks the rights necessary to caption its content, by definition the VPO is higher up the distribution
chain than the VPD, and thus is better positioned than the VPD to obtain required captions. We also
disagree with MPAA and Time Warner that extending the existing television regime to the IP context is
justified because it would be simpler.115 We believe that any benefit from such consistency is outweighed
by the considerations set forth above, including the enforcement benefits of clearly defining the VPO as a
single responsible person or entity. Further, we find unpersuasive MPAA’s argument that a “potentially
complicated chain of copyright ownership” mandates against direct regulation of VPOs.116 On the
contrary, for the reasons above, we find that such complexity supports regulating VPOs directly in the IP
context. We recognize that because the copyright ownership chain may be complicated, under some
circumstances, the VPO as we have defined it may not possess captioning rights or be ideally positioned
to determine whether programming it licenses is subject to the Act. Under such circumstances, however,
we believe that the VPO is better positioned than the VPD to obtain required captions, and that it is
necessary to impose captioning responsibility on a person or entity, rather than leaving a regulatory
vacuum. As between the VPO and the VPD, we believe that the VPO—who owns the programming or is
closer in the chain of custody to the owner—will be better positioned than the VPD to obtain the
necessary rights and information and fulfill the responsibilities that we impose on VPOs, in particular
providing captions, pursuant to our regulations.
25.
Further, we reject commenters’ arguments that imposing closed captioning obligations on


111 See 1997 Closed Captioning Order, 13 FCC Rcd at 3286, ¶ 27.
112 Verizon Reply at 3.
113 See, e.g., Consumer Groups Comments at 5, 7-9; MPAA Comments at 2-7, 11-12; NAB Comments at 11; CBS
Reply at 3-7; Consumer Groups Reply at 15-17; Reply Comments of the Content Interests at 1-2 (“Content Interests
Reply”) (the “Content Interests” include News Corporation, Time Warner Inc., Viacom Inc., and The Walt Disney
Company); MPAA Reply at 4-8; NAB Reply at 6-7; Reply Comments of Time Warner Inc. at 2-4 (“Time Warner
Reply”); Letter from Linda Kinney, Motion Picture Association of America, Inc., to Marlene H. Dortch. Secretary,
FCC, at 1 (Nov. 4, 2011); Consumer Groups Nov. 10 Ex Parte Letter at 1.
114 See, e.g., Google Comments at 7-8; ACA Reply at 18-19; AT&T Reply at 4-5; Microsoft Reply at 3-4.
115 See MPAA Comments at 4-7; MPAA Reply at 8; Time Warner Reply at 2-4; see also NAB Comments at 11;
CBS Reply at 4; Content Interests Reply at 2; NAB Reply at 6-7.
116 MPAA Comments at 2.
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content owners would raise First Amendment concerns.117 MPAA argues that regulating VPOs directly
would represent a “major shift from the existing captioning regime,” impermissibly and unnecessarily
target a new category of speakers, and impose a greater burden on content owners’ speech than is
necessary to ensure the deaf community has online access to television content.118 As an initial matter,
closed captioning requirements implicate the First Amendment only marginally at best. The D.C. Circuit
has rejected the argument that captioning requirements regulate program content in violation of protected
rights under the First Amendment, finding that closed captioning “would not significantly interfere with
program content.”119 Indeed, because closed captioning involves a “precise repetition of the spoken
words” communicated by the speaker, any First Amendment burden is only incidental.120 The D.C.
Circuit’s explanation that closed captioning is a “precise repetition” is consistent with our definition of
closed captioning as the visual display of the audio portion of video programming. Here, the captioning
requirement is triggered only after the programming has been shown on television with closed captions.
In addition, the record does not reflect that the total burden on all speakers associated with imposing
responsibilities on VPOs would be any greater than the total burden on all speakers associated with
regulating only providers and distributors. VPOs have no greater First Amendment right than VPDs to be
free of captioning duties,121 and some VPDs are already subject to broadcast television captioning
requirements and have not objected to extension of such requirements to the IP context. The Commission
would simply be allocating similar captioning burdens differently among video programming owners,
distributors and providers in the IP context than in the traditional television context, in order to implement
the statutory directives and objectives as described above. This allocation does not impermissibly burden
VPOs’ First Amendment rights.
26.
Video programming distributor or provider responsibilities. We require VPDs to enable
“the rendering or pass through” of all required captions to the end user, as proposed in the NPRM.122 In
adopting this requirement, we note that it was generally unopposed in the record.123 When a VPD initially
receives a program with required captions for IP delivery, we will require the VPD to include those


117 See, e.g., MPAA Comments at 12; Time Warner Reply at 4; Letter from Clifford M. Sloan, Counsel to MPAA, to
Marlene H. Dortch, Secretary, FCC, at 2 (Nov. 21, 2011) (“MPAA Nov. 21 Ex Parte Letter”).
118 MPAA Nov. 21 Ex Parte Letter at 1-3.
119 Gottfried v. FCC, 655 F.2d 297, 311 n. 54 (1981), rev’d in part, 459 U.S. 498 (1983) (Supreme Court did not
disturb dictum of D.C. Circuit suggesting the constitutionality of closed captioning regulations). See also MPAA v.
FCC,
309 F.3d 796, 803 (D.C. Cir. 2002).
120 MPAA v. FCC, 309 F.3d 796, 803 (D.C. Cir. 2002) (noting a key difference for First Amendment purposes
between video description (which regulates video content) and closed captioning (which involves a precise
repetition of the spoken words)).
121 See Turner Broadcasting Systems, Inc. v. FCC, 512 U.S. 622, 636 (1994) (“There can be no disagreement on an
initial premise: Cable programmers and cable operators engage in and transmit speech, and they are entitled to the
protection of the speech and press provisions of the First Amendment. Through ‘original programming or by
exercising editorial discretion over which stations or programs to include in its repertoire,’ cable programmers and
operators ‘see[k] to communicate messages on a wide variety of topics and in a wide variety of formats’”). See also
DIRECTV Reply at 4 n. 15 (rejecting the argument that content owners have superior First Amendment rights and
claiming VPDs are First Amendment speakers in their own right).
122 See NPRM, 26 FCC Rcd at 13743, ¶ 16.
123 We note that, as discussed in Section III.A.1 above, we rejected the proposals of a few commenters that we
should impose separate responsibilities for VPDs and for VPPs, based on the different definitions of the terms that
they advocated. See, e.g., Microsoft Comments at 6-7; APTS/PBS Reply at 5-6; TWC Reply at 1-2.
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captions at the time it makes the program file available to end users.124 Other than requiring a good faith
use of the “mechanism” discussed below, we decline to impose specific obligations on VPDs to determine
whether captions are required and to ensure that video programming has the required captions.
Commenters express their objection to such additional obligations.125 We note, however, that the
existence of an agreed-upon mechanism, discussed below, is not a defense for failure to enable the
rendering or pass through of required captions to the end user if—at any time before or during the period
in which the VPD made the video programming at issue available to end users through IP delivery—
evidence shows that the VPD’s reliance on the mechanism was not in good faith.
27.
We find that as part of the VPDs’ responsibilities under the Section 202(b) “render or
pass through” obligation, they must ensure that any application, plug-in,126 or device that they provide to
the consumer is capable of rendering or passing through closed captions.127 In other words, if a VPD
chooses to deploy an application, device, or plug-in to deliver video to consumers, the VPD must ensure
that captions can actually be displayed on the screen – whether by causing the text to appear or by passing
the text through to another component on the device that will accept and display that text.128 This
includes making the captioning readily available to users, because if users cannot turn on the captioning
and otherwise control the captions, the rendering or passing through of captions will be meaningless. We
find that this is a reasonable and necessary interpretation of the requirement that a VPD must enable “the
rendering or pass through of closed captions,”129 because otherwise captions of video programming that
VPDs render or pass through via their associated applications or hardware may not be viewable by end
users. Our interpretation of the “render or pass through” obligation is consistent with how our existing
closed captioning rules operate.130 Thus, interpreting the “render or pass through” obligation in this way


124 See NPRM, 26 FCC Rcd at 13743, ¶ 16; Verizon Comments at 3; APTS/PBS Reply at 5 (with regard to VPPs);
AT&T Reply at 4. This time frame is different for archival programming, as discussed below.
125 See ACA Comments at 14; AT&T Comments at 7-8; DIRECTV Comments at 10-11; Google Comments at 7;
Microsoft Comments at 6-7; NCTA Comments at 14; Verizon Comments at 3; ACA Reply at 16-19; AT&T Reply
at 3; DISH Network Reply at 3; TWC Reply at 13. Commenters explain that there would be a number of problems
with such an obligation, including that it would be inconsistent with the CVAA, unnecessary and duplicative of
VPO responsibilities, unworkable, and may force VPDs to block certain IP-delivered video programming. See, e.g.,
AT&T Comments at 8; DIRECTV Comments at 10-11; Verizon Comments at 3; DISH Network Reply at 4.
126 A “plug-in” is defined as “[a] program of data that enhances, or adds to, the operation of a (usually larger) parent
program.” See H. Newton, Newton’s Telecom Dictionary 642 (20th ed. 2004).
127 See 47 U.S.C. § 613(c)(2)(D)(vi). See also VPAAC Report at 19-20 (discussing use cases involving delivery of
video programming to web browsers or managed applications or devices).
128 For example, if a VPD provides an application that consumers can download onto their smartphones to view the
VPD’s programming, then the application must be capable of rendering or passing through closed captions.
Likewise, if a VPD provides a device, such as a set-top box, to view the VPD’s programming, that device must be
capable of rendering or passing through closed captions. Additionally, if the VPD delivers its programming through
a website, it must design its website to permit the user to enable the display of closed captions. Where the VPD
passes the text through to another component on a physical device over which the VPD has no control, then the
manufacturer of that device will have separate obligations to ensure the capability to display such captions under
Section 203 of the CVAA. See infra Section IV. We note that if the VPD is reasonably relying on the captioning
display functionality in a device over which it has no control to display captions, the VPD has no liability to the
extent that the captioning functionality on the device fails or operates improperly. We also note that to the extent
that the VPD believes that it would be economically burdensome for it to comply with this requirement in a specific
instance, it may petition us accordingly.
129 See 47 U.S.C. § 613(c)(2)(D)(vi).
130 See, e.g., NCTA Comments at 25 (“Consequently, to the extent that a distributor enables access to Internet-
delivered video via a leased device, under the Commission’s proposal, the device would need to support the
(continued….)
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is consistent with Commission precedent. We note that this approach also is consistent with the
Commission’s approach in the ACS Order that, if a provider of advanced communications services makes
software available to provide covered services, the provision of that software is subject to the applicable
requirements.131 Importantly, just as the Commission found in the ACS Order that an advanced
communications service provider or equipment manufacturer is not responsible for third-party
applications and services,132 we find that a VPD is also not responsible for third-party services and
applications. This means that if a consumer downloads software from a third party entity not affiliated
with or used by the VPD in the delivery of its programming, and the consumer uses that software to
access content provided by the VPD, the VPD is not responsible for ensuring closed captioning support in
that application. We note, however, that where a VPD requires a consumer to download software or
software upgrades from a third party, and the consumer could not otherwise view closed captioning on
video programming for which the VPD bears a closed captioning obligation, the VPD is responsible for
ensuring the accessibility of such software or software upgrades. Finally, as part of its obligation to
enable the rendering or pass through of closed captions, a VPD providing an application, plug-in, or
device to consumers in order to deliver video programming must ensure that the application, plug-in, or
device complies with the requirements discussed below related to interconnection mechanisms (to the
extent the VPD supplies the consumer covered devices under Section 203) and display of captions.133
28.
Mechanism for information on video programming subject to the CVAA. Having set forth
the allocation of responsibilities between VPDs and VPOs, we turn to the “mechanism” that the
Commission must establish to make available to VPDs information on video programming that must be
captioned when delivered via IP.134 The CVAA requires that the Commission’s implementing regulations
“(v) shall establish a mechanism to make available to video programming providers and distributors
information on video programming subject to the Act on an ongoing basis,” and “(vi) shall consider that
the video programming provider or distributor shall be deemed in compliance if such entity . . . makes a
good faith effort to identify video programming subject to the Act using the mechanism created in (v).”135
Without the good faith use of such a “mechanism,” the Senate Committee Report explained that a VPD
that is not also an MVPD may face difficulty in determining whether a particular program was shown on
television with captions after the effective date of the new rules.136 As explained below, we will require
(Continued from previous page)


rendering or pass through of captions contained in such video.”); ACA Comments at 5 (stating that under the
television closed captioning rules, “MVPDs are required to deliver captions intact and in a manner that can be
displayed by captioning decoders. This includes the obligation to ensure that operator-supplied customer premises
equipment, such as set-top boxes, are capable of passing through captions to subscribers.”) (footnotes omitted).
131 See Implementation of Sections 716 and 717 of the Communications Act of 1934, as Enacted by the Twenty-First
Century Communications and Video Accessibility Act of 2010
, 26 FCC Rcd 14557, 14591 at ¶ 86 (2011) (“ACS
Order
”).
132 See id. at 14592, ¶ 88; see also Comments of the Consumer Electronics Association at 18 (“CEA Comments”);
Reply Comments of the Consumer Electronics Association at 8 (“CEA Reply”) (“Moreover, consistent with the ACS
Order
, manufacturers of covered apparatus should not be held responsible for whether third-party software
downloaded by end users complies with the captioning requirements.”) (footnote omitted).
133 See infra Sections IV.E and IV.C.
134 See NPRM, 26 FCC Rcd at 13752, ¶ 35.
135 47 U.S.C. §§ 613(c)(2)(D)(v), (vi).
136 See Senate Committee Report at 14 (“The Committee recognizes that online video distributors that are not
multichannel video programming distributors may not be able to readily ascertain whether programs were
distributed on television and thus subject to the closed captioning requirement. Accordingly, the Committee
encourages the Commission to recognize good faith efforts to identify video programming subject to the Act.
Additionally, the Commission may work to encourage the development of technology to accurately identify video
programming subject to this section.”).
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each VPO and each VPD to which the VPO has provided or will provide video programming for IP
delivery to agree upon a “mechanism” that will inform the VPD of which programming is subject to the
IP closed captioning requirements on an ongoing basis. The “mechanism” must provide adequate
information to enable the VPD to identify programming subject to the IP closed captioning requirements
on an ongoing basis.
29.
We interpret the word “mechanism” to mean any process, method or system agreed upon
between a VPO and a VPD that makes available to the VPD sufficient information to determine whether
captioning is required of programming that it receives from the VPO and makes available directly to end
users through a distribution method that uses IP. This interpretation is consistent with the statutory
language, history, and purpose, and will provide maximum flexibility to VPOs and VPDs to comply with
the CVAA’s requirements. The CVAA does not define the term “mechanism.” A common meaning of
the term, however, is “a process or technique for achieving a result.”137 Assigning the term its common
meaning in the CVAA is consistent with the legislative purpose and history. In that regard, the CVAA
requires a “mechanism” so that VPOs will make information available to VPDs regarding whether IP-
delivered programming is subject to the captioning requirements in recognition of the difficulties VPDs
otherwise might face in obtaining such information. In addition, the statute requires that VPDs be
“deemed in compliance” when they make a good faith effort to identify programming subject to the
captioning requirements using the mechanism.138 Although the statutory reference to “a” mechanism
might suggest that Congress contemplated a single method for making information available to VPDs, we
find no support in the legislative history for such an interpretation, and nothing in the statutory scheme
requires such a narrow interpretation. On the contrary, the broad interpretation we adopt will better serve
the statutory purpose of maximizing the accessibility of IP-delivered video programming by providing
flexibility for VPOs and VPDs to agree on processes or methods tailored to their needs, as well as by
“encourag[ing] the development of technology to accurately identify video programming subject to this
section.”139
30.
Our broad interpretation of the statutory term “mechanism” also is justified by our
examination of the record in this proceeding, which reflects sharply differing views as to whether a
particular “mechanism” would work best, supporting our conclusion that one size may not fit all. While
some commenters are amenable to the system of certifications proposed in the NPRM,140 others argue that
the proposed certification mechanism would be unworkable and unduly burdensome.141 Some
commenters favor allowing a VPD to monitor a third-party database,142 and still others support leaving


137 See Webster’s New Collegiate Dictionary 737 (9th Ed. 1989).
138 See supra n. 135-136 and accompanying text.
139 See Senate Committee Report at 14. Rather than limiting the definition of the statutorily-required mechanism to
a specific process or method, we believe that our approach will enhance economic incentives for the development of
technology, For example, under our rules, entities may choose to rely on a commercially available third-party
database (to the extent one is developed) that accurately identifies video programming subject to the CVAA.
140 See, e.g., AT&T Comments at 6-7; DiMA Comments at 4-5; Google Comments at 8; DISH Network Reply at 3;
Google Reply at 4; TWC Reply at 11.
141 See, e.g., ACA Comments at 16; Consumer Groups Comments at 28-29; MPAA Comments at 7-8; NAB
Comments at 26-28; NCTA Comments at 13, 19; CBS Reply at 6-7, 9-11; NAB Reply at 7, 9 n. 24; NCTA Reply at
2, 4 n. 10.
142 See, e.g., Comments of the National Center for Accessible Media at WGBH at 3 (“NCAM Comments”);
Comments of Rovi Corporation at 4 (“Rovi Comments”); Rovi Reply at 2-3. Other commenters argued that a third
party database might be expensive, incomplete or inaccurate, or difficult to manage. See, e.g., Consumer Groups
Comments at 30-31 n. 56; MPAA Comments at 9; NAB Comments at 28-29; CBS Reply at 7 n. 14; NAB Reply at
9-10.
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the choice for the parties to resolve by private contract.143 We believe that the broad interpretation we
adopt, by permitting the parties to select the “mechanism” that is most suitable for them, will provide
needed flexibility to VPOs and VPDs while ensuring that VPDs will be able to obtain the information
necessary to determine when a program must be provided with captions.
31.
We will require each VPO and each VPD to which the VPO has provided or will provide
video programming for IP delivery to agree upon a “mechanism” that will inform the VPD of which
programming is subject to the IP closed captioning requirements on an ongoing basis.144 This obligation
will apply to programming that VPOs newly provide VPDs for IP delivery, as well as to programming
that VPOs provided VPDs for IP delivery previously if it remains available to consumers, as explained
below.145 Any mechanism agreed upon by a VPO and VPD must provide adequate information to enable
the VPD to identify programming subject to the IP closed captioning requirements on an ongoing basis,
consistent with the definition of “mechanism” that we adopt here. A VPD cannot rely in “good faith” on
a mechanism that fails to provide adequate information for it to identify programming subject to the Act,
and a VPD that does rely on such a mechanism despite its inadequacy will not be “deemed in
compliance” within the meaning of Section 202(b) of the CVAA.146 If the parties agree upon a
mechanism that involves certifications, they have the flexibility to determine whether certifications
should apply to specific programming or whether to use a more general certification, for example, by
addressing in a certification all programming covered by a particular contract. That is, we impose no
requirement on the parties that the certifications apply on a program-by-program basis or include a
program-specific explanation as to whether captions are, or are not, required.
32.
In the NPRM, the Commission proposed “to require VPOs providing video programming
to VPDs for IP delivery to provide each program either with captions simultaneously, or with a dated
certification stating that captions are not required for a reason stated in the certification.”147 Because we
have decided to afford parties flexibility in choosing a mechanism, we decline to adopt a certification
requirement. In the interest of providing certainty to those VPDs that may choose to use certification as
the method of determining whether captioning is required, however, we declare that VPDs may rely in
good faith on certifications, as long as they meet certain requirements. First, to the extent that a VPD
relies on a certification by a VPO that the subject programming need not be captioned, such certification
must include a clear and concise explanation of why captioning is not required. We believe that such an
explanation is necessary to enable a VPD to rely on the certification in good faith, as it will enable the
VPD to review the VPO’s reasoning and evaluate whether the VPD may rely on the certification.
Second, in order to rely on a certification in the event of a complaint, VPDs must be able to produce it to
the Commission. Thus, VPDs should retain any certifications on which they may need to rely until one
year after they cease making the subject programming available to end users via IP delivery. If these
requirements are met, VPDs may rely in good faith on such certifications for purposes of the “deemed in
compliance” provision of the statute. In other words, when faced with a complaint, VPDs relying upon
certifications need not prove that the mechanism they chose was adequate. In addition, if VPDs wish to
obtain Commission determinations that other proposed mechanisms provide adequate information for
them to be able to rely on the mechanisms in good faith for purposes of the “deemed in compliance”


143 See, e.g., NAB Comments at 25, 29; NCTA Comments at 13; CBS Reply at 6-7; MPAA Reply at 6-7; NAB
Reply at 8; NCTA Reply at 3. Google expressed its opposition to a private contractual mechanism. See Google
Reply at 5.
144 Should a captioning problem occur where the VPD and VPO have failed to agree upon an adequate mechanism,
the Commission may hold both parties responsible.
145 See infra ¶¶ 33-35.
146 See 47 U.S.C. § 613(c)(2)(D)(vi).
147 See NPRM, 26 FCC Rcd at 13752, ¶ 35.
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provision, they may seek such a determination by filing an informal request, and providing sufficient
information for the Commission to determine whether the proposed mechanism would provide the VPD
with adequate information for it to identify programming subject to the Act.148
33.
We note that an uncaptioned, archival IP-delivered program that is not subject to the IP
closed captioning requirements as of the effective date of the new rules may later become subject to the
requirements, once it is shown on television with captions after the effective date.149 In the NPRM, the
Commission proposed that VPOs be required to provide VPDs with updated certifications as to the
captioning status of a previously delivered program (and a caption file, if not previously provided) within
seven days of the program becoming subject to the IP closed captioning requirements, and that VPDs be
required to make required captions available to end users within five days of the receipt of an updated
certification.150 We decline to adopt this proposal in light of our decision to provide flexibility for VPOs
and VPDs to agree to different mechanisms to enable VPDs to identify programming subject to the
CVAA. We emphasize, however, that VPOs must provide updated information to VPDs concerning
uncaptioned, archival IP-delivered programs pursuant to whatever “mechanism” they agree to use in order
for VPDs to be able to rely on that mechanism in good faith, subject to the deadlines discussed below.
For example, if the mechanism that a VPD and a VPO agree to use involves certifications, the VPO
would have to provide the VPD with an updated certification to inform the VPD that a program in the
VPD’s library has been shown on television with captions after the applicable compliance deadline.
34.
Based on examination of the record, we conclude that VPOs and VPDs must be provided
with a reasonable period of time to develop processes or methods of addressing uncaptioned, archival IP-
delivered content that is shown on television with captions after the effective date of the new rules. The
record reflects that no process or method presently exists to enable VPOs to accurately identify such
content, and that the task of developing one is likely to be complex.151 The record also reflects that the
“costs and complexities involved in taking down a program already online and adding captions to it”
would make compliance with our proposed seven- and five-day deadlines impossible at present.152
Accordingly, for a period of two years after this Report and Order is published in the Federal Register,


148 See 47 C.F.R. § 1.41. Parties filing any request pursuant to the rules we adopt here may seek confidential
treatment of information submitted with their request pursuant to the Commission’s confidentiality rules. See 47
C.F.R. § 0.459.
149 See 47 U.S.C. § 613(c)(2)(A).
150 See NPRM, 26 FCC Rcd at 13753, ¶ 36.
151 See, e.g., NCTA Comments at 19 (“Indeed, it would make no sense to interpret the Act to require this search and
replace mission. The Notice’s complex database suggestion is evidence of the enormous difficulties that such a
requirement would needlessly impose.”); CBS Reply at 10 (“VPOs will not necessarily know when uncaptioned,
archival programs, which may have been licensed for television distribution over the course of many years to
numerous entities, may be televised after the effective date with captions.”); Letter from Michael O’Leary, Senior
Executive Vice President, Government Relations, Motion Picture Association of America, Inc., to Marlene H.
Dortch, Secretary, FCC, at 4 (Dec. 14, 2011) (“The logistical difficulties posed by a government mandate to provide
captions for archival content to hundreds if not thousands of online distributors on an episode-by-episode basis
should not be underestimated. Moreover, the notion that there is any reasonable mechanism to track precisely when
any particular piece of this legacy content may appear on television going forward belies an appreciation of the
enormity of this universe of material.”).
152 See, e.g., NCTA Comments at 19 (“In any event, the Notice is mistaken in its view that a copyright owner could
simply send a caption file to the website now hosting the older version. There are numerous costs and complexities
involved in taking down a program already online and adding captions to it, which essentially require the recreation
of the entire archival content.”) (footnote omitted); CBS Reply at 10 (“Even assuming the VPO knows or learns of
such a television exhibition after the effective date, the task of locating each and every site on which an uncaptioned
version of the program may reside on the Internet would be difficult, if not impossible.”).
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we will not require captioning of uncaptioned, archival IP-delivered programming that is already in the
VPD’s library before it is shown on television with captions. We believe that two years will provide a
reasonable period of time for VPDs to develop and implement a process to address such content. For
such programming that is already in a VPD’s library and is shown on television with captions on or after
the date two years from Federal Register publication, the VPD must update its program file to enable the
rendering or pass through of closed captions within 45 days of the program being shown on television
with captions.153 We believe that 45 days will provide sufficient time for VPDs to update program files to
enable the rendering or pass through of closed captions, given that VPDs and VPOs will have two years
to develop methods of complying with the 45-day deadline.154 We further note that 45 days is
significantly longer than the objected-to NPRM proposal.155 We expect that, with the passage of time,
parties will have established a better functioning mechanism for the update of archival content. Given
this, we require that for programming that is already in a VPD’s library and is shown on television with
captions on or after the date three years from Federal Register publication, the VPD must update its
program file to enable the rendering or pass through of closed captions within 30 days of the program
being shown on television with captions. Further, we require that for programming that is already in a
VPD’s library and is shown on television with captions on or after the date four years from Federal
Register publication, the VPD must update its program file to enable the rendering or pass through of
closed captions within 15 days of the program being shown on television with captions. We expect that
by four years after Federal Register publication, 15 days will be sufficient for VPDs to caption any
archival content that remains uncaptioned.156
35.
We reject the arguments of some commenters that our IP closed captioning rules should
not apply to programming that is available from a VPD before it is shown on television with captions.157
Section 202(b) of the CVAA requires the Commission to “revise its regulations to require the provision of
closed captioning on video programming delivered using Internet protocol that was published or exhibited
on television with captions after the effective date of such regulations.”158 Some commenters maintain


153 Uncaptioned, archival programming will not be subject to the IP closed captioning requirements unless and until
it is shown on television with captions on or after the two-year deadline. For the reasons discussed above, VPOs
and VPDs will need two years to develop processes or methods of addressing such programming, and before such
processes or methods are in place we do not believe it is reasonable to require them to keep track of whether such
programming is shown on television with captions.
154 Although we give VPOs and VPDs two years to develop a process for captioning archival content that is subject
to the CVAA, we note that nothing in the statute precludes the VPO, during this period, from providing captions to
the VPD for the archival content posted in the VPD’s library. We note further the statement of Computer Prompting
& Captioning Co. “that technology currently exists to easily and quickly extract closed caption data from videos
produced and aired prior to 2006.” Letter from Giovanni Galvez, Technical Developer, CPC - Computer Prompting
& Captioning Co., to Marlene H. Dortch, Secretary, FCC, at 1 (Dec. 19, 2011).
155 The lengthy compliance deadline adopted herein for programming already in a VPD’s library is consistent with
NCTA’s request for a separate category in the schedule of deadlines for reruns. See NCTA Comments at 7, n. 12;
see also Letter from Susan L. Fox, Vice President, Government Relations, The Walt Disney Company, to Marlene
Dortch, Secretary, FCC, at 1 (Dec. 7, 2011) (“[A]t a very minimum . . . if the Commission were to adopt any such
requirement, significant additional time should be provided for the affected entities to comply.”).
156 The Commission may reconsider the time frames set forth in this paragraph upon a showing that VPOs and
VPDs are incapable of compliance within these time frames.
157 See, e.g., MPAA Comments at 9; Rovi Comments at 5 (proposing that the Commission grandfather content
which a VPD received previously without captions, where the VPD has made a good faith effort to notify the VPO
that it lacks captions or holds a certification that captions are not required); DISH Network Reply at 5; Rovi Reply at
4.
158 See 47 U.S.C. § 613(c)(2)(A).
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that the statute does not cover content delivered to the VPD and posted online prior to the effective date
of the regulations, seemingly reading the term “delivered” in Section 202(b) to refer to the time of the
VPO’s delivery of content to the VPD rather than the time of publication or exhibition on television with
captions. These commenters argue that requiring updates of such programming to include closed captions
would be inconsistent with Congress’s intent to apply the requirements prospectively only.159 We
disagree. We interpret Section 202(b) to cover any programming delivered to consumers using IP,
provided that the programming was published or exhibited on television with captions after the effective
date of the regulations. We believe that this interpretation is consistent with the language, history, and
purpose of the statute. The statutory phrase “after the effective date of such regulations” does not modify
“programming delivered using Internet protocol”; rather, it modifies the phrase “published or exhibited on
television with captions.” Thus, whether the VPO delivered the programming to the VPD before or after
the effective date of the regulations is irrelevant to whether the programming is covered by the statute.160
While the legislative history of the CVAA indicates Congress’s intent “to apply the captioning
requirement only prospectively,”161 we believe that our reading is consistent with that intent: under our
reading, captioning requirements do not apply to IP-delivered programming unless and until the
programming is published or exhibited on television with captions after the effective date of our
regulations. Our reading is also consistent with the statutory purpose of maximizing the availability of
closed captions, whereas the reading advocated by some commenters would remove a significant amount
of captioned television programming from the scope of the CVAA based upon whether a particular
program happened to be in a VPD’s archive before it was shown on television with captions.
Accordingly, we do not see any statutory basis for exempting the existing IP-delivered programming from
the IP closed captioning requirements as some commenters request.
3.

Quality of IP-Delivered Video Programming

36.
The CVAA authorizes the Commission to impose requirements on the quality of video
programming provided by VPOs for IP delivery, and on the quality of IP-delivered video programming
that VPDs make available directly to end users.162 The VPAAC recommended that the consumer
experience with captions of IP-delivered video programming should be “equal to, if not better than,” the
television experience, and it specifically proposed the consideration of such factors as completeness,


159 See, e.g., MPAA Comments at 8-9; NAB Comments at 27-28; NCTA Comments at 18-19; CBS Reply at 9-11;
DIRECTV Reply at 8; DISH Network Reply at 4-5; Letter from Diane B. Burstein, Vice President and Deputy
General Counsel, National Cable & Telecommunications Association, to Marlene H. Dortch. Secretary, FCC, at 1
(Nov. 4, 2011) (“NCTA et al. Nov. 4 Ex Parte Letter”); see also MPAA Reply at 10 (instead of requiring immediate
compliance for this type of content, “the Commission should establish an implementation timeline that provides
industry with sufficient flexibility to replace existing online content over time, in order to meet Congress’ goals
without undue burdens or consumer disruption.”).
160 Even if the time of delivery, as opposed to the time of publication or exhibition on television with captions, were
relevant to the scope of the CVAA’s coverage, we would agree with Consumer Groups that the delivery of a video
to a consumer after the effective date of the new rules subjects it to the captioning requirements of Section 202(b) if
it involves video programming that was shown on television with captions after the effective date. See Consumer
Groups Reply at 4-6; see also 47 U.S.C. § 613(c)(2)(A)(“[T]he Commission shall 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.”); Consumer Groups Nov. 10 Ex
Parte
Letter at 2.
161 See Senate Committee Report at 14; House Committee Report at 30.
162 See 47 U.S.C. § 613(c)(2)(D)(iv) (authorizing the Commission to “describe the responsibilities of video
programming providers or distributors and video programming owners”).
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placement, accuracy, and timing in making this determination.163 The NPRM proposed to require
captions to be of at least the same quality as the television captions for the programming, and that an
evaluation of “quality” includes the consideration of such factors as completeness, placement, accuracy,
and timing.164 While some commenters support the proposed quality standards,165 others express concern
that such a requirement could make VPOs or VPDs responsible for factors that affect caption quality but
are outside of their control, such as broadband connection speeds or the constraints of a particular
apparatus.166
37.
We will require VPOs to provide VPDs with captions of at least the same quality as the
television captions provided for that programming.167 We will also require VPDs to maintain (i.e., not
degrade) the quality of the captions provided by VPOs in enabling the rendering or pass through of
captions, and to transmit captions in a format reasonably designed to reach the end user in that quality. In
evaluating whether the captions are of at least the same quality, the Commission will consider such
factors as completeness, placement, accuracy, and timing.168 At the same time, recognizing the complex
chain of video programming delivery from the VPO to the consumer, we will not hold VPDs or VPOs
responsible for quality issues outside of their control such as broadband connection speeds or the
constraints of a particular apparatus. This slight modification of the quality requirements proposed in the


163 VPAAC Report at 13-14. These are the four factors that the VPAAC Report included in its overview of
performance objectives, in addition to its discussion of technical capabilities of apparatus.
164 See NPRM, 26 FCC Rcd at 13744, ¶ 18.
165 Consumer Groups Comments at 9-11; Google Comments at 8-9; Comments of TechAmerica at 2 (“TechAmerica
Comments”) (supporting the proposal “where it is technically feasible and ‘achievable’ to do so”) (footnote
omitted); Google Reply at 6-7; Consumer Groups Reply at 12-15; Consumer Groups Nov. 10 Ex Parte Letter at 2.
166 See, e.g., AT&T Comments at 10-11 (“In addition to the fact that IP transmissions over the World Wide Web are
subject to dropped packets, which inevitably degrade video quality, bitstream management techniques and the
inherent constraints of particular apparatus will affect the ability of IP-delivered closed captions to meet the
proposed standards.”); CEA Comments at 4 n. 11 (“For example, apparatus using screen displays of less than 13
inches may not be able to achieve the same caption display position as originally designated by the VPO.”);
Comments of CTIA-The Wireless Association at 20 (“CTIA Comments”) (“[W]ireless communications are only
beginning to offer services comparable to traditional video distribution. Users of these services accept that there
may be limitations because they understand that they are counterbalanced by the tremendous convenience and
freedom that users of wireless devices enjoy.”); Microsoft Comments at 14 (“Requiring exact conformity in quality
features between the television and the IP-delivered video experience may not be possible, for instance, with respect
to character size due to differences in resolution capability or the user-chosen size of the video display window.”);
NCTA Comments at 15-16 (“Adopting specific requirements at this stage will lead to unnecessary confusion and
could inhibit the ability of content suppliers to serve non-traditional, smaller devices that may not be able to display
the identical captioning as that seen on a larger television screen.”); APTS/PBS Reply at 9-10 (noting that “existing
online video players do not currently include all of the features available for broadcast television, such as dynamic
changes in caption placement,” and that “the timing of IP-delivered captions can be affected by variations in users’
broadband connection speeds”).
167 NAB suggests that, “[t]o the extent the Commission takes any action regarding performance objectives, it should
establish a safe harbor by which a covered entity that uses the same or substantially the same captioning used on
television will be deemed in compliance.” NAB Comments at 17. Further, NAB states that “live programming or
repeats of live programming originally transmitted live which have been appropriately captioned using the
‘electronic news room’ technique and which is placed online should be considered appropriately captioned for
purposes of IP captioning.” Id. at 25 (footnote omitted). Since the quality requirement is based on the television
quality, we believe we have addressed NAB’s concerns. If television captions were created using the “electronic
news room” captioning technique, which creates captions from a news script computer or teleprompter, then the
same text could be used online in compliance with the statute and our regulations.
168 As we gain experience with the application of these rules, we may revisit the issue.
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NPRM focuses on the quality of the captions that VPOs send, and on the quality of the captions that
VPDs render or pass through, and is designed to address the concern raised by commenters that VPDs
and VPOs may be held responsible for variations in quality caused by outside factors. It also mitigates
the concerns raised by certain commenters that quality requirements could be subjective and time-
consuming169 because the quality standard is based on the objective quality characteristics of the actual
closed captions used for the televised version of the programming, which are readily apparent. We reject
commenters’ argument that regulation of caption quality would raise First Amendment concerns.170 As
explained above, the quality standards we adopt here are based upon the quality of the television captions
provided for that programming. Thus, our quality standards impose no greater burden than our television
closed captioning requirements, which the D.C. Circuit has already suggested are constitutional.171 We
do not expect that this quality requirement will create disincentives to making video programming
available online,172 since it merely requires VPOs to provide captions comparable to those available for
television distribution. Although some commenters suggest that a decision to impose quality standards
here would be inconsistent with the lack of television closed captioning quality standards,173 in fact, the
Commission has a proceeding pending on the caption quality of television programming.174 Further, the
IP closed captioning regime differs from the television closed captioning regime since the television
closed captioning rules require that captions be created in the first instance, whereas in the IP context,
captions are only required for IP-delivered video programming that has already been published or
exhibited on television with captions. We believe that quality standards are appropriate in the IP context
to prevent VPOs or VPDs from degrading the quality of the captions that actually appeared on television
when the same programming is distributed with captions via IP. The record provides no basis for
concluding that it is unreasonable to expect VPOs and VPDs to at least maintain the same quality with
respect to programming distributed via IP, since we will not hold VPOs and VPDs responsible for quality
effects that result from outside factors. To the extent any VPO or VPD believes that the quality
requirement is economically burdensome, it may file an exemption petition.
38.
We are not persuaded that any of the alternate approaches to caption quality proposed by
commenters would be preferable to the approach adopted herein. Specifically, CEA proposes the
adoption of “specific minimum technical requirements . . . if achievable,” which proposal focuses
improperly on the “achievability” language of Section 203 of the CVAA rather than on regulations
specific to VPOs and VPDs pursuant to Section 202 of the CVAA.175 Other commenters also propose a
“functional equivalence” quality standard, which Microsoft describes as having a focus on “[e]ssential
equality in function rather than exact equality with respect to all the features and capabilities.”176 We find


169 See, e.g., MPAA Comments at 13; NAB Comments at 15-16; CBS Reply at 17.
170 See, e.g., MPAA Comments at 13; Time Warner Reply at 4-5.
171 See supra ¶ 25 (discussing First Amendment implications of IP closed captioning obligations).
172 See, e.g., NAB Comments at 14; CBS Reply at 17-18.
173 See, e.g., CBS Reply at 17.
174 See Closed Captioning of Video Programming, Telecommunications for the Deaf, Inc. Petition for Rulemaking,
Notice of Proposed Rulemaking, 20 FCC Rcd 13211 (2005) (issued in response to a Petition for Rulemaking filed
by the TDI Coalition on July 23, 2004). See also Consumer & Governmental Affairs Bureau Seeks to Refresh the
Record on Notices of Proposed Rulemaking Regarding Closed Captioning Rules
, Public Notice, 25 FCC Rcd 15056
(CGB, 2010).
175 CEA Comments at 5.
176 See, e.g., CEA Comments at 4-5; DiMA Comments at 10-11; Microsoft Comments at 14-15; APTS/PBS Reply at
9-10; Letter from Julie M. Kearney, Vice President, Regulatory Affairs, Consumer Electronics Association, to
Marlene H. Dortch, Secretary, FCC, Attachment at 3 (Nov. 4, 2011) (“CEA Nov. 4 Ex Parte Letter”).
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that such an approach is amorphous and does not offer any benefits not provided by the quality standard
adopted herein.
39.
We encourage VPDs to improve caption quality to enhance accessibility, if doing so is
not constrained or prohibited by copyright law or private agreement.177 AT&T expresses concern that
“[e]ncouraging VPPs/VPDs to edit captions could create inconsistencies in the quality of programming
from one medium to another,” which is not an issue when the VPO handles edits for all media
simultaneously.178 In the NPRM, the Commission explained that it did not intend to require VPDs to
improve caption quality, but rather, to allow them to do so if they had any necessary permission.179 Some
commenters express the view that copyright concerns should not prevent a VPD from improving caption
quality.180 Some commenters argue that improving caption quality for an IP-delivered video program
would be a non-infringing fair use of the video under copyright law.181 In contrast, other commenters
assert that copyright law generally would prevent a VPD from improving caption quality.182 We see no
need to determine in this proceeding whether a VPD may, consistent with copyright law, improve caption
quality without the consent of a VPO. We expect that VPOs and VPDs will typically agree through their
contractual negotiations about the appropriate extent, if any, of VPD improvement to a VPO’s caption
file.183
4.

Video Programming Subject to Section 202(b)

40.
In the paragraphs below, we define the types of programming that are subject to the IP
closed captioning rules. We generally adopt the definitions proposed in the NPRM but modify some of
them, as discussed below. As proposed in the NPRM, we also limit our rules to programming aired with
captions on television in the United States.
41.
Video programming. We adopt the NPRM’s proposal to codify the CVAA’s definition of


177 See Consumer Groups Comments at 11-12; see also NAB Comments at 17.
178 See AT&T Comments at 9.
179 See NPRM, 26 FCC Rcd at 13745, ¶ 19.
180 See, e.g., Consumer Groups Comments at 12-16; NCRA Comments at 2-3; Reply Comments of Public
Knowledge at 1-10 (“PK Reply”); Letter from Andrew S. Phillips, Policy Attorney, National Association of the
Deaf, to Marlene H. Dortch, Secretary, FCC, at 1-2 (Sept. 26, 2011) (“Consumer Groups Sept. 26 Ex Parte Letter”);
Consumer Groups Nov. 10 Ex Parte Letter at 2.
181 See, e.g., Consumer Groups Comments at 12-15; PK Reply at 2-9; see also 17 U.S.C. § 107.
182 See, e.g., AT&T Comments at 8-9; Microsoft Comments at 5 n. 8 (“The Copyright Act grants broad, exclusive
rights to owners of copyrights in audiovisual works. A VPP likely would be found to infringe upon many of those
exclusive rights, including infringement of reproduction rights, adaptation rights, distribution rights, and public
performance rights, if it acted without permission to insert closed captioning for a copyrighted video programming .
. . The addition of captioning also is likely to require the VPP to decrypt the digital rights management protections
that accompany many video files, leading to a separate violation of the Digital Millennium Copyright Act.”); NAB
Comments at 17; Starz Comments at 3-4; AT&T Reply at 5; NAB Reply at 19; TWC Reply at 13.
183 In the NPRM, the Commission contemplated that a requirement for captions of IP-delivered video programming
to be of at least the same quality as captions of television programming would require IP-delivered captions to
include the same user tools, such as the ability to change caption font and size. See NPRM, 26 FCC Rcd at 13744, ¶
18. We believe that the issue of user tools is better suited to our discussion of requirements for devices subject to
Section 203 of the CVAA than the present discussion of requirements for VPOs and VPDs pursuant to Section
202(b) of the CVAA. See also AT&T Comments at 10 (“[M]any of the quality considerations raised by the
Commission, such as the placement, color, opacity, size, and font of captions, are properly considered aspects of the
Internet-connected playback apparatus and outside the scope of the requirement for VPPs/VPDs to pass through or
render closed captions.”). Accordingly, user tool requirements are discussed in Section IV.C, below.
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“video programming” in our rules. Section 202(a) of the CVAA defines “video programming” as
“programming by, or generally considered comparable to programming provided by a television
broadcast station, but not including consumer-generated media (as defined in section 3).”184 The Senate
and House Committee Reports did not elaborate on the term “video programming,” and commenters
generally did not further explore the meaning of the term. We agree with the suggestion by Consumer
Groups that programming “that was published or exhibited on television” by definition constitutes “video
programming,”185 since anything that was published or exhibited on television must be provided by, or be
comparable to programming provided by, a television broadcast station.186
42.
Consumer-generated media. We also adopt the NPRM’s proposal to codify the CVAA’s
definition of “consumer-generated media” in our rules. Section 3 of the Act, as revised by the CVAA,
defines “consumer-generated media” as “content created and made available by consumers to online
websites and services on the Internet, including video, audio, and multimedia content.”187 The Senate and
House Committee Reports did not elaborate on the definition, but certain commenters made proposals
concerning the proper scope of “consumer-generated media” with regard to the new IP closed captioning
requirements. We agree with Consumer Groups that, when consumer-generated content is shown on
television as part of a captioned full-length program which a VPD then distributes over the Internet, the
Internet version of the captioned full-length program must include captions.188 We conclude that in such
a circumstance, the captioned full-length program does not constitute “consumer-generated media”
merely because it includes certain content that was originally consumer-generated; rather, pursuant to the
CVAA, captioning is required when the full-length program is delivered via IP because it is “video
programming delivered using Internet protocol that was published or exhibited on television with captions
after the effective date of such regulations.”189 For example, if a consumer creates a video and makes it
available on YouTube, and that video is then shown with captions as part of a news broadcast on
television, then that full-length news broadcast (which includes the consumer-generated video) must
include captions when a VPD distributes it via IP. We also agree with commenters who propose that
“consumer-generated media” for these purposes should include content that is made available online by
individual consumers without the consent of a VPO that has rights in the content,190 since in such
situations VPOs do not maintain control over the programming and caption file, and VPDs do not
maintain control over the distribution of the programming directly to the end user. Thus, it is not


184 47 U.S.C. § 613(h)(2). This definition of “video programming” is almost identical to the definition set forth in
Section 602(20) of the Act. See 47 U.S.C. § 522(20) (defining “video programming” as “programming provided by,
or generally considered comparable to programming provided by, a television broadcast station”).
185 See Consumer Groups Comments at 17.
186 The Act and our rules establish that programming aired by MVPDs is “video programming.” See, e.g., 47 U.S.C.
§ 522(13) (an MVPD “makes available for purchase . . . multiple channels of video programming”); 47 C.F.R. §
76.5(a) (cable television system is “designed to provide cable service which includes video programming”); id. §
76.1000(e) (defining MVPD as an entity that makes available for purchase multiple channels of video
programming).
187 47 U.S.C. § 153(14).
188 See Consumer Groups Comments at 17-18; Consumer Groups Sept. 26 Ex Parte Letter at 2.
189 47 U.S.C. § 613(c)(2)(A).
190 See EWTN Comments at 3; NAB Comments at 13-14; CBS Reply at 16; NAB Reply at 15; NCTA Reply at 6 n.
19; see also NPRM, 26 FCC Rcd at 13745, ¶ 20. We also agree with NAB that “no party in a legitimate distribution
chain should be held responsible for captioning content that has been pirated and is not authorized for online
distribution.” See NAB Comments at 14 n. 32; see also MPAA Reply at 13. NAB expresses its view that, “[i]n
such cases, the absence of captions on full-length programming distributed online without authorization may help to
drive viewers to legitimate content and away from pirated material.” See NAB Comments at 14 n. 32.
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reasonable to expect VPOs and VPDs to bear any obligations for captioning content made available
online by individual consumers without the necessary consent.
43.
Players embedded in a website present a different situation. When a VPD makes full-
length video programming available to consumers to redistribute through a player embedded in a website,
the player is controlled by the VPD, even though it appears as if it is playing video on the website through
which the consumer redistributes it, such as a blog or a social networking website. When a VPD makes
full-length video programming available to consumers to redistribute through such a player, the video
programming is not consumer-generated media and the VPD must ensure that the player displays required
captions pursuant to its “pass through or render” obligations discussed in paragraph 27 above.191
44.
Full-length programming. The NPRM proposed to define “full length programming” as
“video programming that is not video clips or outtakes.”192 Consistent with our proposal in the NPRM,
that the captioning requirements of Section 202(b) apply to full-length programming, and not to video
clips or outtakes, we adopt the proposed definition with a slight modification to make our rules more
clear.193 Specifically, we define “full-length video programming” as video programming that appears on
television and is distributed to end users, substantially in its entirety, via IP. This definition thereby
excludes video clips or outtakes of the video programming that appeared on television. We find that this
decision is supported by commenters.194 Through the inclusion of “substantially in its entirety,” we mean
to reference video programming that is distributed via IP as a complete video programming presentation,
such as an episode of a television show or a movie. At the same time, as explained below, when
substantially all of a full-length program is available via IP, we will not consider that program to be a
“clip,” but rather, a “full-length program” subject to the IP closed captioning requirements.
45.
We define “video clips” as excerpts of full-length video programming, consistent with
the proposals of some commenters.195 We believe that this definition is consistent with what consumers
commonly think of as “video clips.” When substantially all of a full-length program is available via IP,
we will not consider that program to be a “clip,” but rather, a “full-length program” subject to the IP
closed captioning requirements. For example, an entity covered by our new rules would not be permitted
simply to shave off a few minutes (or brief segments) from a full-length half hour program just to avoid
fulfilling its captioning obligations. Our decision that substantially all of a full-length program does not
constitute a “clip” is consistent with congressional intent to increase the accessibility of video
programming to individuals who are deaf or hard of hearing.196 We also agree with members of the


191 See also Consumer Groups Comments at 4 (“Some providers also permit their videos to be embedded on other
entities’ websites, such as blogs; consumers then view the videos in an embedded frame on the other entities’
websites, rather than directly on the providers’ websites. In those situations, the party responsible for captioning
should be the originating provider of the video, not the operator of the embedding website . . . .”) (footnote omitted).
192 NPRM, 26 FCC Rcd at 13768, § 79.4(a)(2) (App. - Proposed Rule Changes).
193 See NPRM, 26 FCC Rcd at 13745, ¶ 21. See also 47 U.S.C. § 613(h)(2) (“‘video programming’ means
programming by, or generally considered comparable to programming provided by a television broadcast station”).
194 See MPAA Comments at 10; NAB Comments at 12; NCTA Comments at 20; CBS Reply at 15; NAB Reply at
12; Reply Comments of the Named State Broadcast Associations at 5 (“State Associations Reply”). We note that,
while Microsoft has indicated that technical obstacles exist with respect to posting video clips online with captions,
others have disagreed. See Letter from Gerald J. Waldron, Counsel to Microsoft Corp., to Marlene Dortch,
Secretary, FCC, at 3-4 (Nov. 22, 2011); Letter from Dr. Christian Vogler, Ph.D., Director, Technology Access
Program, Gallaudet University, and Andrew S. Phillips, Law & Advocacy Center, National Association of the Deaf,
to Marlene H. Dortch. Secretary, FCC, at 1-2 (Dec. 9, 2011).
195 See NCTA Comments at 20; CBS Reply at 15; NCTA Reply at 4.
196 See Senate Committee Report at 1; House Committee Report at 19.
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industry and consumer groups that a full-length program posted online in multiple segments, to enable
consumers to more readily access a particular segment of the program, constitutes full-length
programming and will have to be captioned under our new rules.197 Thus, for example, a VPD that
divides a program into various segments for easy viewing and posts the segments on the Internet would
still have to ensure the pass through or rendering of the captions for each of these segments. Individuals
should not be denied access to captioned IP-delivered programming because it is available online only in
segmented format.
46.
We note that in the NPRM, the Commission had proposed to define “video clips” as
“small” sections of a larger video programming presentation, consistent with the Comcast-NBCU
Order
.198 We now reject that approach. The word “small” in the proposed definition of “video clips”
could inadvertently create a class of programming that is neither a “video clip” nor a “full-length
program,” because a particular clip may not be “small” but also may not be a full-length video program.
We believe that the definition of “video clips” adopted herein addresses that concern because it eliminates
any need to evaluate whether a particular video clip constitutes a small section of a larger video
programming presentation. Further, we encourage VPOs and VPDs to provide closed captions for IP-
delivered video clips where they are able to do so. We emphasize that, “if there is clear evidence that an
entity has developed a pattern of attempting to use video clips to evade its captioning obligations,” we
may find a violation of our rules.199
47.
We reject proposals that the Commission limit the definition of “video clips” to
promotional materials that do not exceed a certain duration or fraction of the program.200 There is no
evidence in the CVAA or its legislative history that Congress intended to exclude “video clips” only if
they are promotional in nature, and we do not see any evidence that Congress sought to exclude only clips
of a certain duration or percentage of the full-length program.201
48.
Finally, we emphasize that the legislative history states that Congress “intends, at this
time, for the regulations to apply to full-length programming and not to video clips or outtakes.”202 We


197 See Consumer Groups Comments at 20; NAB Comments at 12; NCTA Comments at 20; CBS Reply at 15; NAB
Reply at 13.
198 See NPRM, 26 FCC Rcd at 13746, ¶ 21; see also Comcast-NBCU Order, 26 FCC Rcd at 4358 (App. A:
Conditions) (explaining that “short programming segments” are “also known as clips”). Some commenters support
the proposed definition of video clips. See, e.g., Microsoft Comments at 4; Starz Comments at 9 n. 10.
199 See APTS/PBS Reply at 7.
200 See Consumer Groups Comments at 18 (“[W]e recommend that the definition of ‘video clips’ be limited to
videos no longer than thirty seconds in duration that contain only promotional materials and advertisements for other
programming.”); DIRECTV Comments at 9 (“[V]ideo clips should be defined to include promotional materials
composed of one or more sections of a larger work, but should not exceed one quarter of the overall length of the
video program.”); Consumer Groups Reply at 8 (“We further urge the Commission to reject other proposals, such as
DIRECTV’s percentage-based definition, that would permit the posting of lengthy caption-less excerpts from video
programming without any sound rationale for omitting the captions.”) (footnote omitted); Consumer Groups Nov.
10 Ex Parte Letter at 2. Other commenters found the proposals of Consumer Groups and DIRECTV objectionable
because such a definition would be impractical to apply and inconsistent with Congress’s intent as shown by the
CVAA and its legislative history. See NAB Comments at 12; CBS Reply at 15; NAB Reply at 11-12; NCTA Reply
at 4-5.
201 We also reject the proposal of Consumer Groups that “video clips” must be no longer than 30 seconds in
duration, and the proposal of DIRECTV that video clips must not exceed one quarter of the program’s overall
length, as Consumer Groups and DIRECTV fail to justify the strained readings of the terms “video clips” and “full-
length programming” on which their proposals rely. See supra n. 200.
202 See Senate Committee Report at 13-14 (emphasis added); House Committee Report at 30 (emphasis added).
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believe that this legislative language, which references the present time only, signals Congress’s intent to
leave open the extent to which such programming should be covered under this section at some point in
the future. Accordingly, we may determine, at a later time, that congressional intent “to help ensure that
individuals with disabilities are able to . . . better access video programming” may warrant applying these
captioning requirements beyond full-length programming, by for example including video clips within the
captioning requirements or defining the term more narrowly.203 It is particularly important that news
content, which plays the vital role of ensuring an informed citizenry, be made accessible to all citizens.
As Representative Markey and Senator Pryor recognize, “Americans increasingly are accessing online
news, information and entertainment in . . . segments . . . .”204 We therefore encourage the industry to
make captions available on all TV news programming that is made available online, even if it is made
available through the use of video clips as defined above. If we find that consumers who are deaf or hard
of hearing are not getting access to critical areas of programming, such as news, because of the way the
programming is posted (e.g., through selected segments rather than full-length programs), we may
reconsider this issue to ensure that our rules meet Congress’s intent to bring captioning access to
individuals viewing IP-delivered programming.205
49.
We adopt the definition of “outtakes” that the Commission proposed in the NPRM. The
Commission proposed to define “outtakes” as content that is not used in an edited version of video
programming shown on television.206 Of the few commenters that discuss this proposed definition, all
express their support.207 We agree with Consumer Groups that “bloopers” and other incidental material
shown on television with captions do not fall within the definition of “outtakes” prescribed herein, when
such content is, in fact, used in an edited version of video programming shown on television.208
50.
Foreign programming. We affirm the NPRM’s tentative conclusion that the CVAA
requires closed captioning of IP-delivered video programming that was published or exhibited on
television in the United States with captions after the effective date of the regulations. The Commission
stated in the NPRM that the best reading of the CVAA seemed to be that closed captioning is required on
IP-delivered video programming that was published or exhibited on television in this country with
captions after the effective date of the regulations.209 Industry commenters generally agree with the
Commission that programming that has been shown on television with captions only in another country
should not be subject to the new requirements for IP closed captioning.210 Consumer Groups argue,


203 See, e.g., Letter from Rep. Edward Markey and Sen. Mark Pryor to the Honorable Julius Genachowski,
Chairman, FCC (Jan. 10, 2012) (stating that the statement in the Senate and House Committee Reports excluding
video clips from coverage “was intended to mean that televised programs of short duration – such as advertisements
and interstitials, promotional announcements and public service announcements – are not required to be captioned
online. . . . In crafting this section, it was our intent that full-length programming that has been broadcast on
television with captions after the effective date of the Commission’s rule be shown with captions when the
programming is delivered using IP even if such programming is shown on the Internet in segments and even when
some but not all segments are posted online.”).
204 See id.
205 Any changes to the rules would be adopted through a rulemaking proceeding.
206 See NPRM, 26 FCC Rcd at 13745-46, ¶ 21.
207 See Consumer Groups Comments at 20; Microsoft Comments at 3-4; NCTA Comments at 20.
208 Consumer Groups Comments at 20-21.
209 See NPRM, 26 FCC Rcd at 13746, ¶ 22.
210 See DIRECTV Comments at 9 (noting that foreign countries “may have different captioning requirements”);
Microsoft Comments at 4 (“We support the Commission’s principled and pragmatic conclusion that a broader
approach would exceed the jurisdiction granted by the CVAA and would pose severe complications to parties
(continued….)
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however, that the IP closed captioning requirements should apply to programming that is shown on
television in another country with captions after the effective date of the new rules, because “the CVAA’s
captioning requirements contain no textual limitation on programming published or exhibited on
television in other countries,” and because “Consumer Groups see no tenable rationale for excluding the
broad range of foreign programming that is available via Internet distribution in the United States.”211 We
disagree. Although the text of the CVAA does not explicitly exclude from coverage programming shown
only in another country, we conclude that Congress did not intend to reach such programming through the
CVAA, which commenters have explained could create many difficulties, such as the need to reconcile
different captioning requirements applicable in different countries and monitor foreign television
broadcasts. Had Congress intended to create such a broad range of issues, such as those that would arise
with programming shown in a foreign country, it would have said so expressly.212 Moreover,
examination of the record reflects that there are sound reasons for excluding foreign television
programming from the scope of the CVAA.213

B.

Compliance Deadlines

51.
Section 202(b) of the CVAA requires the Commission’s regulations for closed captioning
of IP-delivered video programming to “include an appropriate schedule of deadlines for the provision of
closed captioning, taking into account whether such programming is prerecorded and edited for Internet
distribution, or whether such programming is live or near-live and not edited for Internet distribution.”214
We adopt the proposal from the NPRM to implement the schedule of compliance deadlines set forth by
the VPAAC, which is as follows: (1) for programming that is prerecorded and not edited for Internet
distribution, a compliance deadline of six months after the rules are published in the Federal Register; (2)
for programming that is live or near-live, a compliance deadline of 12 months after the rules are published
in the Federal Register; and (3) for programming that is prerecorded and edited for Internet distribution, a
compliance deadline of 18 months after the rules are published in the Federal Register.215 Having
(Continued from previous page)


subject to multiple national captioning standards.”); NAB Comments at 13 (“D]iffering captioning standards in
foreign countries would make it challenging to caption such programming for online distribution in the United
States.”); NCTA Comments at 21 (“As the Commission suggests, requiring the translation of a variety of different
captioning formats that may be used in programming published or exhibited on television in foreign countries would
result in significant complication and delay in providing the programming with captions online.”); APTS/PBS Reply
at 7 (“this approach helps alleviate many of the burdens associated with full-length, IP delivered foreign
programming”); CBS Reply at 16 n. 40; DISH Network Reply at 5-6 (“First, the CVAA’s grant of jurisdiction
appears to provide the Commission authority only over TV programming exhibited on TV in the United States.
Second, compliance burdens across all parties, including VPOs and VPPs/VPDs, would be too burdensome if IP
captioning obligations could be triggered by the programming lineups in countries anywhere in the world.”); Reply
Comments of the Information Technology Industry Council at 3 (“ITI Reply”); NAB Reply at 13-14; NCTA Reply
at 5-6.
211 See Consumer Groups Comments at 21.
212 See Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001) (Congress “does not …hide elephants in
mouseholes”).
213 See supra n. 210.
214 47 U.S.C. § 613(c)(2)(B).
215 See NPRM, 26 FCC Rcd at 13748-49, ¶ 28; see also VPAAC Report at 30. A number of commenters support the
proposed schedule of deadlines. See, e.g., Consumer Groups Comments at 24; NCTA Comments at 5; Consumer
Groups Reply at 21-23; TWC Reply at 14-15 (supporting the proposed schedule of deadlines if the Commission
does not impose technical standards); Consumer Groups Nov. 10 Ex Parte Letter at 2. We note the concern of some
commenters that the VPAAC’s proposed schedule of deadlines was based on the assumption that SMPTE-TT would
be adopted as an interchange mechanism. See MPAA Comments at 11; NCTA Comments at 6; Rovi Comments at
(continued….)
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reviewed the record, we conclude that adoption of the schedule of compliance deadlines proposed in the
NPRM will provide the industry with a sufficient time frame within which to develop processes or
methods for addressing such programming, and will provide consumers with access to accessible
programming in the near future. We reiterate that the schedule of deadlines proposed in the NPRM was
agreed on by the VPAAC, which includes representatives from industries that will be subject to our new
rules, as well as consumer groups that have a strong interest in ensuring that our rules are implemented as
quickly as possible.216 Based on our review of the record, we conclude that compliance deadlines of six,
12, and 18 months after Federal Register publication are reasonable in light of the varying degrees of
difficulty involved in closed captioning of IP-delivered prerecorded and unedited, live or near-live, and
prerecorded edited video programming.217 The compliance deadlines are applicable only to initial
compliance with the rules.218 Once a deadline has been reached for a particular category of programming,
that content must be captioned immediately when delivered via IP, with the exception of updates to
content already in a VPD’s library.219 Once the applicable deadline has been reached for a certain
program, VPOs and VPDs must fulfill their responsibilities220 to ensure that the program has captions
when delivered to end users via IP.
52.
Opponents of the compliance deadlines adopted herein have not demonstrated that the
deadlines would be problematic on an industry-wide basis. We find that the lengthier deadlines proposed
by some commenters221 are not justified because of support for the proposed deadlines in the record and
by the VPAAC, which demonstrates that the proposed deadlines appear to be achievable on an industry-
wide basis.222 Further, we note that entities that find it economically burdensome to meet the deadlines
may petition for an exemption.223 The CVAA directs us, in adopting a schedule of deadlines, to “tak[e]
(Continued from previous page)


5; CBS Reply at 14; Rovi Reply at 3; NCTA et al. Nov. 4 Ex Parte Letter at 1. Our decision to adopt SMPTE-TT as
a safe harbor interchange mechanism addresses these concerns. See infra Section V.
216 See NPRM, 26 FCC Rcd at 13748-49, ¶ 28.
217 See, e.g., NCTA Comments at 7-10 (explaining the difficulties associated with different categories of
programming).
218 Programming will not be subject to the IP closed captioning requirements unless and until it is shown on
television with captions on or after the deadlines established here. Our choice of compliance deadlines recognizes
that VPOs and VPDs will need to use the time between publication of our rules in the Federal Register and the
compliance deadlines to develop processes or methods of addressing such programming. Before such processes or
methods are in place we do not believe it is reasonable to require them to keep track of whether such programming
is shown on television with captions. This approach is consistent with the CVAA’s mandate that we include “an
appropriate schedule of deadlines for the provision of closed captioning.” 47 U.S.C. § 613(c)(2)(B).
219 See supra Section III.A.2. For such updated content, the captioning requirement will not be triggered for a
period of two years from the date of Federal Register publication, as discussed above, and at that point we will
impose a 45-day deadline from the date on which the programming is shown on television. Beginning three years
from the date of the Federal Register publication, this deadline will be reduced to 30 days, and beginning four years
from the date of the Federal Register publication, this deadline will be reduced to 15 days.
220 See id.
221 See AT&T Comments at 13; DiMA Comments at 4, 6-7; DIRECTV Comments at 2, 12-14; Microsoft Comments
at 18-19; NAB Comments at 18-20; NCTA Comments at 7 n. 12; Rovi Comments at 5; TechAmerica Comments at
2 n. 4; APTS/PBS Reply at 11-12; AT&T Reply at 12; DISH Network Reply at 8; NAB Reply at 36-38; Rovi Reply
at 3-4; State Associations Reply at 6-7; Verizon Reply at 8-9. We note that some of the commenters that now
propose lengthier deadlines in fact were members of the VPAAC, which recommended the proposed deadlines. See
also
Consumer Groups Reply at 23 (arguing against NAB’s proposed lengthier deadline for local broadcasters).
222 See supra n. 215.
223 See infra Section III.C.1.
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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.”224 Thus, by adopting
multiple deadlines for different types of programming, the schedule of deadlines adopted herein takes into
account the concerns that Congress directed the Commission to consider. We encourage VPOs and VPDs
to make captioned programming available in advance of the applicable deadlines, to the extent they are
able to do so.225
53.
As we discuss above, VPDs that provide applications, plug-ins, or devices to consumers
have an obligation under Section 202 to ensure that those applications, plug-ins, or devices render or pass
through closed captions to subscribers.226 In many cases, compliance with this obligation would require
the VPD to design consumer devices or software running on such devices to render or pass through closed
captions. If a VPD uses software to enable the rendering or pass through of captions, the VPD is
responsible only for software it deploys after the applicable compliance dates discussed in paragraph 51
above. We believe this limitation is warranted as we do not believe it is appropriate to require VPDs to
provide new versions of software if the VPD did not otherwise intend to do so.227 If a VPD relies on
hardware to enable the rendering or pass through of closed captions, the VPD must meet the compliance
deadline of January 1, 2014. We believe this time period is appropriate because it is consistent with our
analysis under Section 203.228 We note that, while the achievability standard of Section 203 of the CVAA
does not apply to Section 202, VPDs that find it economically burdensome to meet their obligations may
file an exemption petition, as discussed below.229
54.
The CVAA also requires the Commission’s regulations to “contain a definition of ‘near-
live programming’ and ‘edited for Internet distribution.’”230 In the NPRM the Commission sought
comment on definitions of “live programming,” “near-live programming,” “prerecorded programming,”
and “edited for Internet distribution.”231 We explain below how we have defined these terms. The
Commission proposed to apply these definitions solely to rules applicable to IP closed captioning
pursuant to the CVAA.232 We conclude that the definitions we adopt herein for the terms “live
programming,” “near-live programming,” “prerecorded programming,” and “edited for Internet
distribution” apply solely to our regulation of IP closed captioning, as explained further below.
55.
Live Programming. We adopt the definition of “live programming” proposed in the


224 See 47 U.S.C. § 613(c)(2)(B).
225 See, e.g., NAB Comments at 18-19.
226 See supra ¶ 27.
227 We will consider upgrades to VPD software to be new applications. If a VPD is unable to meet all of the
captioning requirements for such upgrades, it may request an exemption due to economic burden, as discussed in
Section III.C.1 below.
228 See infra Section IV.H (Deadlines for Compliance). The same rationale for the two-year apparatus deadline
applies to these VPD requirements.
229 See infra Section III.C.1. We clarify that when a VPD seeks an economic burden exemption from the
requirements discussed in this paragraph, we will consider the exemption petition with regard to the specific
feature(s) and device(s) for which implementing the captions purportedly would be economically burdensome, as
discussed in Section IV.B (Achievability, Purpose-Based Waivers, and Display-Only Monitor Exemption), below.
230 47 U.S.C. § 613(c)(2)(D)(i).
231 See NPRM, 26 FCC Rcd at 13746, ¶ 23.
232 Consumer Groups support this proposal. See Consumer Groups Comments at 21 (“[T]he Commission’s
definitions of the terms . . . must be limited to the context established by the CVAA: the scheduling of deadlines.”);
Consumer Groups Sept. 26 Ex Parte Letter at 2.
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NPRM. The Commission proposed to define “live programming” as video programming that is shown on
television substantially simultaneously with its performance.233 This definition is comparable to the
definition of “live programming” adopted in the recent Video Description Order, which was
“programming aired substantially simultaneously with its performance,”234 with a slight modification to
clarify that in the IP closed captioning context, the performance occurs substantially simultaneously to its
airing on television, not necessarily to the IP distribution. The Commission explained in the NPRM that
the phrase “substantially simultaneously” contemplates that live programming may include a slight delay
when it is shown on television.235 Some commenters express their support for the proposed definition of
“live programming.”236 Examples of programming that may fit within the definition of “live
programming” are news, sporting events, and awards shows.
56.
We decline to adopt rules specifically addressing simulcast programming, that is,
programming that is shown simultaneously on television and the Internet.237 Rather, live and near-live
television programming that is simulcast shall be subject to the live and near-live programming
compliance deadline, and prerecorded programming that is simulcast shall be subject to the prerecorded
programming compliance deadlines.238 As we explained in the NPRM, we do not believe that the
VPAAC, by mentioning simulcast programming in its definition of “live programming,” meant to
encompass a “simulcast” in which prerecorded programming is shown on television and the Internet
simultaneously.239 We do not believe that our decision to apply the “live” and “near-live” deadlines to the
simulcast of live and near-live programming will, as NAB claims, create a significant barrier to the
distribution of live or near-live programming over the Internet.240 Rather, we expect that the compliance
deadline of 12 months from the date of publication in the Federal Register for “live” and “near-live”
programming will provide a sufficient period of time within which VPOs and VPDs can develop
processes or methods to ensure the immediate closed captioning of simulcasts of live and near-live


233 See NPRM, 26 FCC Rcd 13747, ¶ 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 appears on television.”
VPAAC Report at 29.
234 Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of
2010
, Report and Order, 26 FCC Rcd 11847, 11866, ¶ 40 (2011) (“Video Description Order”).
235 See NPRM, 26 FCC Rcd at 13747, ¶ 24 (stating that the delay might be intended, “for example, to prevent certain
objectionable material from airing”).
236 See Consumer Groups Comments at 22; ITI Reply at 4 (also arguing “that live programming should not be
captioned. Live streaming over the Internet alone does not constitute ‘live programming’ in the context of the
CVAA and is not subject to the CVAA.”).
237 To the extent a party believes it would be economically burdensome to comply with the captioning requirements
for particular simulcast programming, it may file an exemption request. See infra Section III.C.1.
238 We note that all of the examples of simulcast programming provided by Consumer Groups (the Olympics,
electoral coverage, and presidential addresses) likely fit within the definition of “live” or “near-live” programming
adopted herein. See Consumer Groups Comments at 23. See also NAB Reply at 38-39 (responding to Consumer
Groups’ proposed prohibition of delays in captioning of simulcast programming by saying that the proposals “not
only ignore the explicit intent of the CVAA, but could also serve as significant barriers to making additional live and
near-live content available over the Internet, including programming with captions if a VPP/VPD were unsure of its
ability to prevent any delay of captioning in simulcast programming available on the Internet.”).
239 See NPRM, 26 FCC Rcd at 13746-47, ¶ 24; VPAAC Report at 29. We understand that a simulcast may involve
either live programming or prerecorded programming. It strains common understanding of the phrase “live
programming” to think that the VPAAC intended to extend the definition of that phrase to programming that is
shown on television and the Internet simultaneously.
240 See supra n. 238.
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programming. We note that programming aired on television substantially simultaneously with its
performance would not lose its status as “live programming” by being simulcast via IP. We disagree with
NCTA’s suggestion that simultaneous streaming of prerecorded programming on television and the
Internet should have the same compliance schedule as live programming.241 NCTA has not explained
why a longer deadline is necessary for the simulcast of pre-recorded programming, and the record
contains no evidence justifying a longer deadline.
57.
Near-Live Programming. We adopt the same definition of “near-live programming” that
the Commission adopted in the Video Description Order, with one modification discussed below.242 In
the NPRM, the Commission proposed to define “near-live programming” as “video programming that is
substantively recorded and produced within 12 hours of its distribution to television viewers.”243 Instead,
we will define “near-live programming” as “video programming that is performed and recorded less than
24 hours prior to the time it was first aired on television.”
58.
The Video Description Order defined “near-live programming” as “programming
performed and recorded less than 24 hours prior to the time it was first aired.”244 Industry and consumer
group commenters support using that definition in the current proceeding.245 The NPRM noted certain
differences between the video description and closed captioning contexts,246 but on further review, we
find that those differences do not justify the adoption of a different definition of “near-live programming”
in the IP closed captioning context as compared to the video description context. Thus, we conclude that
there is no need to adopt a significantly different definition of “near-live programming” in the IP closed
captioning context than in the video description context. We make one modification to the Video
Description Order
’s definition to clarify that “near-live programming,” in the context of IP closed
captioning, is video programming that is performed and recorded less than 24 hours prior to the time it
was first aired on television.247 We recognize that in the context of IP closed captioning, some “near-live”
programming, such as a late-night talk show that is performed and recorded earlier the same day, may
include some prerecorded elements, for example, a late-night talk show might include a segment that was
performed and recorded more than 24 hours prior to its distribution on television.248 The presence of such


241 See NCTA Comments at 8; see also Letter from Diane B. Burstein, Vice President and Deputy General Counsel,
NCTA, to Marlene H. Dortch, Secretary, FCC, at 1 (Dec. 12, 2011) (“the definition of ‘live’ programming should
include simulcasts”).
242 The VPAAC did not agree on a single definition of “near-live programming,” with consumer group members
supporting a definition of “near-live programming” as “any programming that was produced from start to finish
within 12 hours of being published or exhibited on television,” and industry members supporting a definition that
would reference programming that was “substantively produced” within the 12 hour limit. See VPAAC Report at
29, 34-35. Consumer Groups, in their comments to this proceeding, now express support for 24 hours as the
dividing time for this type of programming. See Consumer Groups Comments at 23.
243 See NPRM, 26 FCC Rcd at 13747, ¶ 26.
244 See Video Description Order, 26 FCC Rcd at 11866, ¶ 40.
245 See Consumer Groups Comments at 23; NAB Comments at 20; NAB Reply at 15-16, 37 n. 117.
246 See NPRM, 26 FCC Rcd at 13747, n. 92.
247 We recognize that NCTA expresses its support for the Commission’s proposed definition in the NPRM of “near-
live programming,” which was video programming that is substantively recorded and produced within 12 hours of
its distribution to television viewers. See NPRM, 26 FCC Rcd at 13747, ¶ 26; NCTA Comments at 9. We believe
that the definition from the Video Description Order is clearer, however, and would not lead to potentially
subjective determinations of what constitutes near-live programming.
248 See, e.g., NCTA Comments at 8-9; Letter from Blake Reid, Counsel for TDI, to Marlene H. Dortch, Secretary,
FCC, at 1 (Dec. 15, 2011) (“Consumer Groups Dec. 15 Ex Parte Letter”).
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prerecorded elements does not change the nature of the “near-live” programming.
59.
Prerecorded Programming. We adopt the proposal from the NPRM to define
“prerecorded programming” as video programming that is not “live” or “near live.”249 No commenter
provided any substantive evaluation of the proposed definition of “prerecorded programming.” By
defining “prerecorded programming” as video programming that is not “live” or “near live,” we will
ensure that video programming fits within one category or the other.
60.
Edited for Internet Distribution. We adopt the proposal from the NPRM to define video
programming that is “edited for Internet distribution” as video programming for which the television
version is substantially edited prior to its Internet distribution.250 We think this definition appropriately
captures that class of edited video programming that might require a lengthier compliance deadline to
facilitate the development of necessary procedures. No commenter proposed an alternate definition of
“edited for Internet distribution.” As stated in the NPRM, we agree with the VPAAC that examples of
“substantial edits” include the deletion of scenes or alterations to the televised version of musical scores,
and that changes to the number or duration of advertisements would not constitute “substantial edits.”251
We do not agree with NAB that distinguishing between “prerecorded programming” and “edited for
Internet distribution” would be unworkable252 because the VPAAC provided clear examples and
explanations of what constitutes substantial edits and what does not.253

C.

Exemption Process

1.

Case-by-Case Exemptions

61.
Section 713(d)(3) of the Act originally authorized the Commission to grant an individual
exemption from the television closed captioning rules upon a showing that providing closed captioning
“would result in an undue burden.”254 Congress provided guidance to the Commission on how it should
evaluate such captioning exemptions by setting forth, in Section 713(e) of the Act, four “factors to be
considered” in determining whether providing closed captioning “would result in an undue economic
burden:” (1) the nature and cost of the closed captions for the programming; (2) the impact on the
operation of the provider or program owner; (3) the financial resources of the provider or program owner;


249 See NPRM, 26 FCC Rcd at 13748, ¶ 27.
250 See NPRM, 26 FCC Rcd at 13748, ¶ 27. The VPAAC proposed defining programming that is “prerecorded and
edited for Internet distribution to the end user” as “any programming that is prerecorded and has been substantially
edited for Internet distribution to the end user.” VPAAC Report at 30.
251 See NPRM, 26 FCC Rcd at 13748, ¶ 27; see also VPAAC Report at 30.
252 See NAB Comments at 17-18. In making this argument, NAB claims that, since VPDs generally lack a right to
create derivative works when distributing a VPO’s television programming online, there is no need to distinguish
between “prerecorded programming” and “edited for Internet distribution.” See id. We understand that rights issues
may, for example, necessitate changes in music scores from the television version to the IP version of a television
program, which may also necessitate changes to the captioning from one version to the other. See VPAAC Report at
30. Regardless of whether the VPO itself makes these changes or the VPD is authorized to make the changes, we
find that the need for such changes justifies a longer compliance deadline for prerecorded edited video programming
than for prerecorded unedited video programming. See also NCTA Comments at 10 (prerecorded programming that
is edited for Internet distribution “requires not only the specialized equipment and software required for all
captioning, but also modifications to the underlying captions. A longer compliance timeframe is thus warranted.”).
253 In contrast, in paragraphs 57-58 above, we rejected the proposed definition that involved the use of the word
“substantively.” We note that the VPAAC and commenters did not provide a clear, workable means of determining
whether programming was “substantively” recorded and produced within a given time frame.
254 47 U.S.C. § 613(d)(3) (as originally enacted).
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and (4) the type of operations of the provider or program owner.255
62.
In the CVAA, Congress amended Section 713(d)(3) of the Act by replacing the term
“undue burden” with the term “economically burdensome,” and by adding certain guidance on the
exemption procedures.256 Amended Section 713(d)(3) provides as follows:
[A] provider of video programming or program owner may petition the Commission for
an exemption from the requirements of this section, and the Commission may grant such
petition upon a showing that the requirements contained in this section would be
economically burdensome. During the pendency of such a petition, such provider or
owner shall be exempt from the requirements of this section. The Commission shall act
to grant or deny any such petition, in whole or in part, within 6 months after the
Commission receives such petition, unless the Commission finds that an extension of the
6-month period is necessary to determine whether such requirements are economically
burdensome.257
The Senate Committee on Commerce, Science, and Transportation encouraged the Commission, in
determining whether the requirements enacted under Section 202(b) are “economically burdensome,” to
consider the factors listed in pre-existing Section 713(e) of the Act, listed above.258
63.
We adopt the proposal in the NPRM and create a process by which VPDs and VPOs may
petition the Commission on a case-by-case basis for a full or partial exemption of their IP closed
captioning obligations, which the Commission may grant upon a finding that the requirements would be
economically burdensome.259 This process is comparable to the Commission’s procedures for assessing
exemption requests from our television closed captioning rules prior to the amendment of Section
713(d)(3), and nearly identical to the procedures for exemptions based on economic burden that the
Commission recently adopted for video description.260 We will provide in our rules that the petitioner
must support a petition for exemption with sufficient evidence to demonstrate that compliance with the
requirements for closed captioning of video programming delivered via Internet protocol would be
economically burdensome. The term “economically burdensome” means imposing significant difficulty
or expense.261 In addition to the four statutory factors enumerated above, the petitioner must describe any
other factors it deems relevant to the Commission’s final determination and any available alternatives that
might constitute a reasonable substitute for the IP closed captioning requirements, for example, text or
graphic display of the content of the audio portion of the programming. The Commission will place


255 47 U.S.C. § 613(e); see also 47 C.F.R. §§ 79.1(f)(2)(i)-(iv).
256 See Pub. L. No. 111-260, § 202(c). In the text, Congress described its revision to Section 713(d)(3) as a
“conforming amendment” without explaining what it meant by that term.
257 47 U.S.C. § 613(d)(3). Because the statutory provision regarding exemptions due to economic burden references
only VPPs and VPOs, our rule implementing this provision also will reference VPPs and VPOs, but not VPDs. We
note, however, that the exclusion of VPDs has no practical effect as we have defined VPD and VPP as having the
same meaning.
258 See Senate Committee Report at 14.
259 See NPRM, 26 FCC Rcd at 13749-50, ¶ 30. Several commenters support the Commission’s proposed approach
to case-by-case exemptions. See, e.g., Google Comments at 8 n. 17; NAB Comments at 21-22; Consumer Groups
Reply at 10; NAB Reply at 20.
260 See 47 C.F.R. §§ 79.1(f), 79.3(d). See also Interpretation of Economically Burdensome Standard; Amendment of
Section 79.1(f) of the Commission’s Rules; Video Programming Accessibility
, Order and Notice of Proposed
Rulemaking, 26 FCC Rcd 14941, 14957-62, ¶¶ 30-39 (2011) (“Interim Standard Order and NPRM”).
261 See Video Description Order, 26 FCC Rcd at 11881 (App. A - Final Rules).
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exemption petitions on public notice, and any interested person may file comments or oppositions to the
petition within 30 days after release of the public notice of the petition. Within 20 days after the close of
the period for filing comments or oppositions, the petitioner may reply to any comments or oppositions
filed.262 Upon a finding of good cause, the Commission may lengthen or shorten any comment period and
waive or establish other procedural requirements. Those filing petitions and responsive pleadings must
include a detailed, full showing, supported by affidavit, of any facts or considerations relied on.
64.
We disagree with those commenters who contend that Congress expressly amended
Section 713(d) to lower the applicable burden, and that the “economically burdensome” standard is
broader than the previous “undue burden” standard.263 In the recent Interim Standard Order, the
Commission interpreted on a provisional basis the term “economically burdensome” as used in Section
202 of the CVAA to be synonymous with the term “undue burden” that was formerly used in Section
713(e) of the Act.264 The Commission stated “that Congress, when it enacted the CVAA, intended for the
Commission to continue using the undue burden factors contained in Section 713(e), as interpreted by the
Commission and reflected in Commission rules and precedent, for individual exemption petitions, rather
than to make a substantive change to this standard.”265 Among other things, in that proceeding the
Commission cited to the legislative history of the 1996 amendments to the Act, in which Congress clearly
distinguished between the more extensive factors that should be used to evaluate categorical exemptions
adopted by regulation under Section 713(d)(1) of the Act and the factors that should be used to evaluate
the individual exemption requests submitted under Section 713(d)(3) of the Act.266 Accordingly, we
disagree with any suggestion that the Commission should apply the broader standards applicable to
categorical exemption requests to our consideration of individual exemption requests in the IP closed
captioning context. Rather, we interpret the term “economically burdensome” in Section 713(d)(3) of the
Act, as amended by the CVAA, to be synonymous with the term “undue burden” as this section was
originally drafted.267
65.
Thus, consistent with the analyses in the Interim Standard Order and the Video
Description Order, we adopt the process proposed in the NPRM for case-by-case exemptions based on
economic burden with a few minor modifications.268 First, in the NPRM the Commission proposed the


262 See infra ¶ 66 (discussing the option of service via email).
263 See, e.g., NCTA Comments at 17; Verizon Comments at 5-6; NCTA Reply at 12; NAB Reply at 20 n. 64;
Verizon Reply at 8; but see NCRA Comments at 4; Consumer Groups Reply at 11.
264 In the Notice of Proposed Rulemaking that accompanied the Interim Standard Order, the Commission sought
comment on making permanent this provisional interpretation of “economically burdensome.” See Interim Standard
Order and NPRM
, 26 FCC Rcd at 14961-62, ¶¶ 38-39. The Commission has received one comment in response,
which supports this interpretation. See Telecommunications for the Deaf and Hard of Hearing, Inc., et al.,
Comments in CG Docket No. 11-175, Dec. 1, 2011, available at
http://fjallfoss.fcc.gov/ecfs/document/view?id=7021748970.
265 See Interim Standard Order and NPRM, 26 FCC Rcd at 14957, ¶ 30.
266 See id. at 14958-59, ¶ 34. See also id. at 14960, ¶ 36 (“Congress was well aware of the existence of the
additional categorical exemption criteria under section 713(d)(1) at the time that it enacted the CVAA, and that the
Commission had never applied these factors in the context of individual exemption determinations. Had it intended
for these additional factors to apply to individual captioning exemption determinations, it presumably would have
directed the Commission to do so.”).
267 See id. at 14960, ¶ 36; Video Description Order, 26 FCC Rcd at 11868-69, ¶ 44.
268 We note that Consumer Groups make additional proposals about case-by-case exemption petitions. See
Consumer Groups Comments at 24-26. Because we intend to address exemption petitions on a case-by-case basis,
we decline to adopt the categorical findings suggested by Consumer Groups. Further, neither the language nor the
(continued….)
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following language in what is now numbered new Section 79.4(d)(3) of our rules: “The Commission will
evaluate economic burden with regard to the individual outlet or programming.”269 In the context of the
IP closed captioning rules, the “individual outlet” references the VPO or VPD. To be consistent with
Section 79.1(f)(3) as it now exists in the Commission’s rules and as the Commission has proposed
amending it in the Interim Standard Order and NPRM and with Section 79.3(d)(3) as adopted in the
Video Description Order, we will omit the phrase “or programming.”270 As we explained in the 1997
Closed Captioning Order
, in evaluating economic burden, we “examine the overall budget and revenues
of the individual outlet and not simply the resources it chooses to devote to a particular program.”271
Consistent with that directive, when deciding whether to grant a petition for an exemption from the IP
closed captioning rules, we will consider the overall budget and revenues of the individual outlet and its
ability to provide closed captioning, and not simply the resources it chooses to devote to a particular
program.272 Second, in the NPRM the Commission proposed to codify the following language in our
rules governing exemption petitions based on economic burden: “The Commission shall act to deny or
approve any such petition, in whole or in part, within 6 months after the Commission receives such
petition, unless the Commission finds that an extension of the 6-month period is necessary to determine
whether such requirements are economically burdensome.”273 Consistent with the Interim Standard
Order and NPRM
and the adopted rules in the Video Description Order, we find it unnecessary to codify
in our rules the time limit for Commission action on exemption petitions, since the 6-month deadline for
Commission action is codified in the CVAA and thus it applies regardless of whether it is codified in our
rules.274 Third, in the NPRM the Commission proposed to include the following language in what is now
numbered new Section 79.4(d)(11): “During the pendency of an economic burden determination, the
Commission will consider the video programming provider or owner subject to the request for exemption
as exempt from the requirements of this section.”275 To be consistent with Section 79.1(f)(11) as
proposed in the Interim Standard Order and NPRM and with Section 79.3(d)(11) as adopted in the Video
Description Order
, we will omit the words “provider or owner” from Section 79.4(e)(11) as proposed in
(Continued from previous page)


history of the CVAA indicates that Congress intended to require a heightened prima facie showing for such
petitions, as suggested by Consumer Groups. See id.
269 See NPRM, 26 FCC Rcd at 13770 (App. A - Proposed Rule Changes) (emphasis added).
270 The Commission’s television closed captioning rules currently require consideration of the extent to which the
provision of closed captions will create an undue burden with regard to the individual outlet. See 47 C.F.R. §
79.1(f)(3). The Interim Standard Order and NPRM proposes to amend this section by replacing the term “undue
burden” with the term “economically burdensome,” in accordance with the changes made in the CVAA. See Interim
Standard Order and NPRM
, 26 FCC Rcd at 14989 (App. B - Proposed Rules); 47 C.F.R. § 79.3(d)(3).
271 1997 Closed Captioning Order, 13 FCC Rcd at 3365-66, ¶ 204 (rejecting an approach that would only consider
resources available for a specific program because it “could unnecessarily limit the availability of captioning and
would thus also frustrate Congressional intent.”). See also Outland Sports, Inc., 16 FCC Rcd 13605, 13607, ¶ 6
(CSB, 2001) (applying ¶ 204 of the 1997 Closed Captioning Order and citing “the overall budget and revenues of
the individual outlet, and not simply the resources [a petitioner] chooses to devote to a particular program” as
relevant to deciding an undue burden petition).
272 See 1997 Closed Captioning Order, 13 FCC Rcd at 3365, ¶ 204.
273 See NPRM, 26 FCC Rcd at 13770-71 (App. A - Proposed Rule Changes).
274 See Interim Standard Order and NPRM, 26 FCC Rcd at 14989 (App. B - Proposed Rules); 47 C.F.R. §
79.3(d)(10); see also 47 U.S.C. § 613(d)(3).
275 See NPRM, 26 FCC Rcd at 13771 (App. A - Proposed Rule Changes). Of course, the programming will still be
subject to the closed captioning requirements under 47 C.F.R. § 79.1 when provided on broadcast television or by an
MVPD, notwithstanding its exemption from the IP closed captioning requirements under 47 C.F.R. § 79.4.
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the NRPM.276 By revising the proposed language to omit those words, we intend to clarify that the outlet
seeking an exemption is relieved of its closed captioning obligations only for the specific programming
for which it requested an exemption.
66.
Finally, we will require electronic filing of individual closed captioning exemption
requests, and will require electronic filing of comments on and oppositions to such petitions. We hereby
delegate to the Chief, Consumer and Governmental Affairs Bureau, authority to establish by Public
Notice the electronic filing procedures for individual exemption requests. Such a requirement is
consistent with the 2011 Electronic Filing Report and Order, in which the Commission adopted a
requirement to use electronic filing whenever technically feasible.277 Although the NPRM proposed to
require paper filings,278 we find that an electronic filing requirement would be most consistent with the
Commission’s stated goals of efficiency and modernization279 and would streamline the petition process
for all parties. Persons who file comments or oppositions to the petition must serve the petitioner with
copies of those comments or oppositions and must include a certification that the petitioner was served
with a copy, and any petitioner filing a reply to comments or oppositions must serve the commenting or
opposing party with a copy of the reply and must include a certification that the party was served with a
copy. We clarify that pursuant to Section 79.4(d)(7), comments or oppositions and replies shall be served
upon a party, its attorney, or its other duly constituted agent by delivery or mailing a copy to the party’s
last known address, or by service via e-mail as provided in the final rules.280
2.

Categorical Exemptions

67.
In Section 202(b) of the CVAA, Congress provided that the Commission “may exempt
any service, class of service, program, class of program, equipment, or class of equipment for which the
Commission has determined that the application of such regulations would be economically burdensome
for the provider of such service, program, or equipment.”281 In the context of television closed
captioning, the Commission has recognized that the term “economically burdensome” is applied
differently to case-by-case exemptions than it is to rulemaking decisions to exempt categories of
programming.282 Existing rules for closed captioning of television programming contain a number of
categorical exemptions.283 In the NPRM, the Commission sought comment on whether any of the


276 See Interim Standard Order and NPRM, 26 FCC Rcd at 14990 (App. B - Proposed Rules); 47 C.F.R. §
79.3(d)(11).
277 Amendment of Certain of the Commission’s Part 1 Rules of Practice and Procedure and Part 0 Rules of
Commission Organization
, Report and Order, 26 FCC Rcd 1594, 1599-1600 at ¶ 15 (2011) (“2011 Electronic Filing
Report and Order
”).
278 See NPRM, 26 FCC Rcd at 13750, ¶ 31. NAB suggests that the Commission permit but not require electronic
filing of exemption requests. See NAB Comments at 23.
279 See 2011 Electronic Filing Report and Order, 26 FCC Rcd at 1599-1602, ¶¶ 14-21.
280 See infra App. B.
281 47 U.S.C. § 613(c)(2)(D)(ii).
282 See Interim Standard Order and NPRM, 26 FCC Rcd at 14958, ¶ 33; see also Reply Comments of CTIA-The
Wireless Association at 7 (“CTIA Reply”) (“When used to grant exemptions from the Act, the ‘economically
burdensome’ standard is a much broader inquiry than when considering whether to grant individual waivers under
the ‘economically burdensome’ standard.”).
283 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
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
(continued….)
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categorical exemptions found in the television closed captioning rules should apply to IP closed
captioning.284
68.
We decline at this time to apply any of the categorical exemptions found in the television
closed captioning rules to the IP closed captioning rules.285 Thus, programming that appears on television
with captions after the effective date of the IP closed captioning rules will be subject to the rules even if
the programming was exempt from the television closed captioning requirements but was nevertheless
captioned voluntarily. Programming that is exempt from the television closed captioning requirements
and that never appears on television with captions is not subject to the IP closed captioning requirements,
which by definition do not apply to programming that appears on television only without captions. The
record does not contain sufficient evidence to demonstrate that it would be economically burdensome to
require captioning of programming that would fit within one of the television exemptions, if that
programming was shown on television with captions after the effective date of our new rules. This
approach we adopt is consistent with the CVAA, which requires “closed captioning on video
programming delivered using Internet protocol that was published or exhibited on television with captions
after the effective date of such regulations.”286 If Congress intended to limit the IP closed captioning
rules to programming that “was required to be published or exhibited on television with captions,” it
would have said so.
69.
We emphasize an important difference between exemptions for closed captioning of IP-
delivered video programming and exemptions for closed captioning of television programming. In the
television context, programming that is exempt from the closed captioning requirements may never have
been associated with a closed captioning file. In contrast, the IP closed captioning rules only apply to
programming that was captioned on television,287 and thus, they do not require the creation of closed
captions where captions did not already exist. We acknowledge that a particular program may be shown
on television both without captions by an entity that is exempt under the television closed captioning
rules, and with captions by an entity that is not exempt. Once the program is shown on television with
captions after the effective date of our new rules, all VPDs must enable the rendering or pass through of
closed captions to the end user, except for any VPD that obtains an individual exemption due to economic
burden pursuant to the procedures adopted above.288
70.
We reject the categorical exemptions proposed by CTIA, NCTA, and Starz. CTIA
requests an exemption from the requirements of Section 202 of the CVAA for mobile service
providers.289 NCTA suggests that a new network that is exempt from the television closed captioning
(Continued from previous page)


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.
284 See NPRM, 26 FCC Rcd at 13750-51, ¶ 32.
285 Several commenters support this approach. See, e.g., Consumer Groups Comments at 27; Google Comments at 8
n. 17; NCRA Comments at 4; Consumer Groups Reply at 8-10. But see EWTN Comments at 1-3 (arguing that the
Commission should adopt categorical exemptions where the captioning expense exceeds two percent of gross
revenues, and where channels produce revenues of under $3,000,000); NAB Comments at 13, 23-25 (arguing that
the Commission should adopt categorical IP closed captioning exemptions comparable to the categorical television
closed captioning exemptions); NCTA Comments at 18 (same); CTIA Reply at 8; NAB Reply at 14, 22-23.
286 47 U.S.C. § 613(c)(2)(A).
287 See id.
288 See supra Section III.C.1.
289 CTIA Comments at 11-14; CTIA Reply at 2. See also infra ¶ 107 (declining CTIA’s request for an exemption
from the Section 203 requirements for mobile devices).
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requirements should also be exempt from the IP closed captioning requirements.290 Starz requests “that
the Commission clarify that VPOs need not caption other programming streamed through VPOs’
websites” besides linear and video-on-demand programming streamed to authenticated subscribers.291
We find that these requested categorical exemptions are overly broad and not sufficiently supported by
the record, the statute, or legislative history.292 None of these parties demonstrates that compliance with
the IP closed captioning requirements would be an economic burden for an entire category of entities.
Further, we will consider on a case-by-case basis petitions requesting an exemption based on economic
burden filed by a particular mobile service provider, new network, or other person or entity.
71.
We also adopt the NPRM proposal not to delay implementation of, or waive, the rules as
applied to live programming, except by adopting the VPAAC recommendation to provide a lengthier
compliance deadline for live programming than that provided for prerecorded programming that is not
edited for Internet distribution. Section 202(b) of the CVAA permits the Commission to delay or waive
the applicability of its IP closed captioning rules “to the extent the Commission finds that the application
of the regulation to live video programming delivered using Internet protocol with captions after the
effective date of such regulations would be economically burdensome to providers of video programming
or program owners.”293 The VPAAC considered the special nature of live programming by proposing a
longer compliance deadline for live programming than for prerecorded and unedited video programming,
which we adopt above.294 We do not see any justification for a further delay or waiver of the
Commission’s new IP closed captioning rules as applied to live programming at this time.295

D.

De Minimis

Failure to Comply and Alternate Means of Compliance

72.
De Minimis Failure to Comply. Section 202(b) of the CVAA requires the Commission’s
IP closed captioning regulations to “provide that de minimis failure to comply with such regulations by a
video programming provider or owner shall not be treated as a violation of the regulations.”296 The
statute and legislative history did not elaborate upon the meaning of “de minimis failure to comply.” In
the NPRM, the Commission proposed that, to determine whether a failure to comply is de minimis, it
would “consider the particular circumstances of the failure to comply, including the type of failure, the
reason for the failure, whether the failure was one-time or continuing, and the time frame within which
the failure was remedied.”297
73.
We adopt the proposed rule, which provides that a video programming provider or
owner’s de minimis failure to comply with Section 79.4 of our rules shall not be treated as a violation of


290 NCTA Comments at 17-18.
291 Starz Comments at 8-9.
292See Letter from Edward J, Markey, U.S. Representative, et al. to The Honorable Julius Genachowski, Chairman,
FCC, at 2 (Sept. 14, 2011) (“In response to requests for exemptions . . . the Commission should be guided by the
central purpose of the CVAA – to help ensure that individuals with disabilities are able to fully utilize
communications services and equipment and better access video programming.”).
293 47 U.S.C. § 613(c)(2)(C).
294 See supra Section III.B.
295 See NPRM, 26 FCC Rcd at 13751, ¶ 33. See also Consumer Groups Comments at 28.
296 47 U.S.C. § 613(c)(2)(D)(vii). Because the statutory provision regarding de minimis failures to comply
references only VPPs and VPOs, our rule implementing this provision also will reference VPPs and VPOs, but not
VPDs. We note, however, that the exclusion of VPDs has no practical effect as we have defined VPD and VPP as
having the same meaning.
297 See NPRM, 26 FCC Rcd at 13755-56, ¶ 41.
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the requirements.298 We intend to apply the de minimis standard in a flexible manner, consistent with our
approach in the television realm, rather than specifying particular criteria that we will apply to make a de
minimis
determination. In the television context, “[i]n considering whether an alleged violation has
occurred, [the Commission] will consider any evidence provided by the video programming distributor in
response to a complaint that demonstrates that the lack of captioning was de minimis and reasonable
under the circumstances.”299 This approach is also supported by the record.300 Thus, we decline to adopt
specific criteria that we will consider in evaluating whether a failure to comply is de minimis.301
74.
Alternate Means of Compliance. Section 202(b) of the CVAA provides that “[a]n entity
may meet the requirements of this section through alternate means than those prescribed by regulations
pursuant to subsection (b), as revised pursuant to paragraph (2)(A) of this subsection, if the requirements
of this section are met, as determined by the Commission.”302 Should an entity seek to use an “alternate
means” to comply with the IP closed captioning requirements, that entity may either (i) request a
Commission determination that the proposed alternate means satisfies the statutory requirements through
a request pursuant to Section 1.41 of our rules;303 or (ii) claim in defense to a complaint or enforcement
action that the Commission should determine that the party’s actions were permissible alternate means of
compliance. Rather than specify what may constitute a permissible “alternate means,” we conclude that
the best means of implementing this provision is to address any specific requests from parties subject to
the new IP closed captioning rules when they are presented to us.

E.

Complaint Procedures

75.
In the NPRM, the Commission proposed to adopt procedures for complaints alleging a


298 This language is intended to make clear that de minimis violations will not lead to enforcement actions. See
NAB Reply at 30.
299 1998 Closed Captioning Recon. Order, 13 FCC Rcd at 19979, ¶ 10. ACA supports the approach of relying on
the Commission’s established approach to de minimis failures to comply with television closed captioning
regulations. See ACA Comments at 18; see also CBS Reply at 19 n. 51; NCTA Reply at 10.
300 See, e.g., ACA Comments at 19 (“The Commission should therefore take a flexible approach and not attempt to
prospectively identify the criteria of a de minimis failure to provide or distribute video programming using IP
distribution on the Internet, but rather inquire on a case-by-case basis whether the lack of captioning was ‘de
minimis
and reasonable under the circumstances.’”).
301 See NPRM, 26 FCC Rcd at 13755, ¶ 41. Accordingly, we need not at this time further address commenters’
arguments regarding the appropriate scope of a de minimis failure to comply. See, e.g., Consumer Groups
Comments at 31-32 (arguing that the Commission should adopt the narrowest possible definition of de minimis
failure to comply); Microsoft Comments at 9 (urging the Commission to clarify that a one-time, unintentional
machine or software failure constitutes a de minimis violation); ITI Reply at 5 (“The Commission should clarify in
its Order that a one-time, unintentional machine or software failure constitutes a de minimis violation, and allow the
manufacturer the opportunity to remedy the violation rather than automatically trigger an enforcement action and/or
corresponding fine.”); NAB Reply at 30-31 (arguing that the Consumer Groups’ proposed approach to de minimis
violations “would entirely undercut the statute’s de minimis enforcement exemption and would constitute an
unwarranted limitation on the Commission’s discretion with respect to enforcement matters”). Rather than
specifying what may constitute a de minimis failure to comply, we will adopt the same approach that we have taken
in addressing de minimis violations of the television closed captioning requirements.
302 47 U.S.C. § 613(c)(3). As explained in the NPRM, the statute and legislative history did not elaborate upon the
meaning of “alternate means” in this provision, although the House Committee explained that in the context of
Section 203, alternate means was intended “to afford entities maximum flexibility in meeting the requirement that
video programming delivered using Internet protocol be captioned,” and that the Commission should “provide some
flexibility where technical constraints exist.” House Committee Report at 31.
303 47 C.F.R. § 1.41 (Informal requests for Commission action).
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violation of the IP closed captioning rules that are analogous to the procedures the Commission uses for
complaints alleging a violation of the television closed captioning rules, with certain modifications.304
Commenters generally support the Commission’s proposed approach of modeling the IP closed
captioning complaint process on the existing television closed captioning complaint process.305 As
explained below, we adopt these proposals with certain enhancements and changes.306
76.
Timing of Complaint. In the NPRM, the Commission asked whether to impose the same
60-day time frame for complaints involving IP-delivered video programming as for complaints involving
programming aired on television.307 We recognize that determining the date on which IP-delivered video
programming was noncompliant may be more difficult than determining the date on which television
programming was noncompliant, since television programming often airs at specified times whereas IP-
delivered video programming may be available continuously. If IP-delivered video programming is
available without required captioning, then it is noncompliant during the entire time that it is available. A
number of commenters support the adoption of a filing deadline for complaints alleging violations of the
IP closed captioning rules based on the date on which the consumer experienced the captioning problem,
explaining that it would provide VPDs and VPOs with some certainty as to previously distributed content,
and would ensure that the complaint process occurs when evidence is fresh.308 Some commenters support
a 60-day time frame, while others support a shorter or longer time frame.309
77.
We adopt the proposed 60-day time frame and require that complaints be filed within 60
days after the complainant experiences a problem with the captioning of IP-delivered video
programming.310 We recognize that problems with captions of IP-delivered video programming often
may be ongoing, in that a program may remain online without captions for a period of time. We will
require the consumer to file a complaint within 60 days of any date on which the consumer accessed the
programming and did not receive compliant captions. The Commission will accept a consumer’s
allegations as to the timeliness of a complaint as true, unless a VPO or VPD demonstrates otherwise.
Establishing a deadline based on the date the complainant accessed noncompliant programming will
provide certainty to VPOs and VPDs and ensure that the evidence available at the time of the complaint
remains fresh. The 60-day time frame, in particular, has worked well in the television context, and we


304 See NPRM, Section III.G. See also 47 C.F.R. § 79.1(g) (setting forth procedures for complaints involving
violations of the television closed captioning rules).
305 See, e.g., ACA Comments at 17; DIRECTV Comments at 14; NAB Comments at 31; CBS Reply at 18.
306 The complaint procedures discussed in this Report and Order address the process by which the Commission’s
Consumer and Governmental Affairs Bureau processes complaints. This process differs from that of the
Commission’s Enforcement Bureau, which investigates whether a violation has occurred and, if so, what penalty to
assess, regardless of whether a complaint has been filed.
307 See NPRM, 26 FCC Rcd at 13757, ¶ 44.
308 See, e.g., AT&T Comments at 14-15; DIRECTV Comments at 15; AT&T Reply at 9; NAB Reply at 31-32;
NCTA Reply at 8.
309 See, e.g., AT&T Comments at 14-15 (supporting a 60 day time frame); DIRECTV Comments at 15 (suggesting a
30-day time frame from the date the consumer first accessed the video programming at issue); NAB Comments at
32 n. 72 (suggesting a 75-day time frame, given the complexities of the Internet ecosystem); AT&T Reply at 9
(supporting a 60 day time frame); NCTA Reply at 8 (the Commission should “ensure that complaints are filed as
soon as possible after a problem is discovered.”) (footnote omitted). Consumer Groups argue that there should not
be a time limit for the filing of IP closed captioning complaints, but if one was adopted, it should be at least 60 days.
See Consumer Groups Comments at 33.
310 See also 47 C.F.R. § 79.1(g)(1). We note that the statute precludes private rights of action to enforce any
requirement of Section 713 of the Act, including the IP closed captioning requirements, and the Commission has
exclusive jurisdiction with respect to any complaint under Section 713 of the Act. See 47 U.S.C. § 613(j).
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therefore find it appropriate to use the same deadline here.
78.
We find that it is important to provide a limit on the time within which a complaint must
be filed, so that evidence is available to adjudicate the complaint properly. For example, even if a
particular program remains available via IP, technical problems with the consumer’s device or Internet
connection on a specific date might have been the cause of a particular captioning problem, and it might
be difficult to make that determination if too much time has elapsed. We disagree with Consumer Groups
that the time frame should begin at the last time the violating video was distributed to any consumer.311
Some video programming may be available online for years, and so it may be difficult to investigate a
complaint filed by a consumer years after the captioning problem occurred.
79.
Option to File Complaints with the Commission or with the VPD. Similar to the
television closed captioning rules, we will create a process for complainants to file their complaints either
with the Commission or with the VPD responsible for enabling the rendering or pass through of the
closed captions for the video programming.312 First, we adopt a process by which complainants may file
complaints with the Commission, and those complaints may be directed against a particular VPD or VPO.
Second, to encourage the prompt resolution of complaints in the marketplace, we also adopt a process by
which complainants may first file their complaints with the VPD, and if complainants are not satisfied by
that process, they may then file their complaints with the Commission. These procedures are discussed
further below. We do not create a process by which complainants may first file their complaints with the
VPO, because VPOs generally do not maintain direct relationships with consumers and may lack the
ability to provide consumers with means of access such as the contact information we require below of
VPDs.
80.
In the NPRM, the Commission asked whether we should permit those filing complaints
alleging a violation of the IP closed captioning rules to file the complaint directly with the VPD first, or
whether it is instead preferable to require all complaints to come directly to the Commission in the first
instance.313 Some commenters support a Commission procedure for filing complaints with the VPD
first.314 Permitting the filing of complaints directly with the VPD, and allowing the VPD to attempt to
resolve the complaint with the consumer before the Commission engages in enforcement proceedings,
would benefit VPDs by minimizing their involvement in complaint proceedings at the Commission and
may benefit consumers by fostering a prompt resolution of their complaints. Thus, we adopt procedures
to permit complainants to file their complaints either with the Commission or with the VPD responsible
for enabling the rendering or pass through of the closed captions for the video programming.315
81.
Consumers who file their complaints first with the Commission may name a VPD or
VPO in the complaint, since both entities are subject to the IP closed captioning rules. The Commission
will forward such complaints to the named VPD and/or VPO, as well as to any other VPD or VPO that
Commission staff determines may be involved, as discussed further below. If a complaint is filed first
with the VPD, our rules will require the VPD to respond in writing to the complainant within thirty (30)


311 See Consumer Groups Comments at 33.
312 See 47 C.F.R. § 79.1(g)(1).
313 See NPRM, 26 FCC Rcd 13757, ¶ 45.
314 See, e.g., Consumer Groups Comments at 34; NAB Comments at 33; NCRA Comments at 4-5; NAB Reply at
32.
315 The record does not support the creation of a process by which consumers file complaints directly with the VPO.
We find it unlikely in any event that a consumer would choose to file a complaint with a VPO, with which it has no
direct relationship, instead of with a VPD from which it receives IP-delivered video programming. Of course, any
consumer that wishes to contact a VPO to share a captioning concern may do so.
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days after receipt of a closed captioning complaint.316 If a VPD fails to respond to the complainant within
thirty (30) days, or the response does not satisfy the consumer, the complainant may file the complaint
with the Commission within thirty (30) days after the time allotted for the VPD to respond. If the
consumer then files the complaint with the Commission (after filing with the VPD), the Commission will
forward the complaint to the named VPD, as well as to any other VPD or VPO that Commission staff
determines may be involved.317 If the Commission is aware that a complaint has been filed
simultaneously with the Commission and the VPD, the Commission may allow the process involving the
VPD and the consumer to reach its conclusion before moving forward with its complaint procedures, in
the interest of efficiency.318
82.
The flexible complaint process adopted herein will benefit consumers because it enables
them to file their complaints with the Commission naming either the VPD or the VPO. We reiterate our
expectation that consumers generally will name the VPD in their complaints, since that is the entity that
distributes the programming to consumers.319 Nevertheless, if a consumer names a VPD in its complaint
but the Commission determines that its investigation should be directed against the VPO, the Commission
will forward the complaint to the VPO without any further involvement of the consumer.320 In addition, if
a VPD receives a complaint from the Commission that it believes the Commission should have directed
to the VPO, the VPD may say so in its response to the complaint. In such instances, however, the VPD’s
response must also indicate the identity and contact information of the VPO to which the VPD believes
the complaint should be directed. Since consumers may file any IP closed captioning complaint with the
VPD or name the VPD in any complaint filed with the Commission, we find that Consumer Groups’
concern that consumers may be unable to determine the entity against which they should file a complaint
is unfounded,321 because consumers are not required to name or otherwise identify the applicable VPO.
The complaint process will be aided further by the Commission’s ability to request additional information
from any relevant entities when, in the estimation of Commission staff, such information is needed to


316 If a VPD receives a complaint directly from a consumer but believes that the captioning problem was caused by
the VPO, the VPD may indicate in its response to the consumer that the consumer may choose to file a complaint
with the Commission against the VPO. To the extent a VPD believes that fault for the captioning problem lies
elsewhere, the VPD should make this clear, and provide any other relevant information, in its written response to the
consumer.
317 These procedures are consistent with procedures in our existing television closed captioning rules. See 47 C.F.R.
§ 79.1(g)(4).
318 We note Consumer Groups’ proposal that Commission enforcement proceedings and VPD attempts at
remediation should occur concurrently. See Consumer Groups Comments at 34. In response, AT&T explains that
the proposal of Consumer Groups would violate the Administrative Procedure Act and the Constitutional guarantee
of due process. See AT&T Reply at 10. The Commission may not be aware that a complaint has been filed
simultaneously with the Commission and with a VPD, but when so informed, the Commission will provide the VPD
with the 30-day period after the VPD received the complaint to resolve the complaint with the complainant first, in
the interest of efficiency.
319 See NPRM, 26 FCC Rcd at 13757, ¶ 45.
320 CBS and NAB express concern that initiating simultaneous investigations by sending the complaint to both the
VPD and VPO would create confusion and waste resources. See NAB Comments at 33; CBS Reply at 19. While
the complaint procedures proposed in the NPRM would provide the Commission with needed flexibility to reach the
responsible entity or entities, we do not intend to burden parties by engaging in simultaneous investigations, where a
complaint can best be resolved by focusing the Commission’s investigation on a single party or on one party
followed by another party.
321 See Consumer Groups Sept. 26 Ex Parte Letter at 1.
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investigate the complaint or adjudicate potential violation(s) of Commission rules.322
83.
Complaint Response Time. Upon receipt of a complaint from the Commission, we will
require the VPD and/or VPO to respond in writing to the Commission and the complainant within 30
days. We conclude that the record does not support deviating from the 30-day time frame contained in
the television closed captioning rules for responding to complaints.323 While Consumer Groups propose
that the Commission instead require VPDs to respond to complaints within 15 calendar days,324 we agree
with other commenters that such a short deadline would be unworkable.325 Although in the NPRM the
Commission proposed to provide explicitly in our rules that the Commission may specify response
periods longer than 30 days on a case-by-case basis,326 we find it unnecessary to do so because the
Commission may waive its rules for good cause, sua sponte or pursuant to a waiver request, and it can
grant motions for extension of time.327
84.
In response to a complaint, VPDs and VPOs must file with the Commission sufficient
records and documentation to prove that the responding entity was (and remains) in compliance with the
Commission’s rules. Conclusory or insufficiently supported assertions of compliance will not carry a
VPD’s or VPO’s burden of proof. If the responding entity admits that it was not or is not in compliance
with the Commission’s rules, it shall file with the Commission sufficient records and documentation to
explain the reasons for its noncompliance, show what remedial steps it has taken or will take, and show
why such steps have been or will be sufficient to remediate the problem.
85.
Resolution of Complaints. We decline at this time to specify a time frame within which
the Commission must act on IP closed captioning complaints. While we recognize the importance of
prompt actions on complaints, no such time frame exists for television closed captioning complaints, and
we agree with commenters who explain that it would be difficult at this juncture to predict the length of
time the Commission will need to resolve IP closed captioning complaints.328 In evaluating a complaint,
the Commission will review all relevant information provided by the complainant and the subject VPDs
or VPOs, as well as any additional information the Commission deems relevant from its files or public
sources. When the Commission requests additional information, parties to which such requests are
addressed must provide the requested information in the manner and within the time period the


322 See NPRM, 26 FCC Rcd at 13757, ¶ 45.
323 See 47 C.F.R. § 79.1(g)(2), (4).
324 Consumer Groups Comments at 36-37.
325 AT&T Reply at 9 (“A 15 day response window would not allow sufficient time to examine the technical nature
of complaints, ensure that they are addressed appropriately, and provide an informative response to the consumer.
Moreover, a 30 day, rather than a 15 day, response time is consistent with many other Commission complaint
procedures, including in the existing TV closed captioning rules.”) (footnote omitted); NAB Reply at 33-34 (arguing
that the 15-day proposal “appears likely to be unreasonable in any event due to the time that will be required for the
VPPs/VPDs to discuss the matter with the complainant and relevant VPOs and to investigate the transmission path
that the complainant relied upon to access the allegedly noncompliant video.”); NCTA Reply at 9 (“The record
contains no justification for shortening the response time or denying extensions, and more time rather than less may
be needed in light of the complicated chain of entities that could be involved in determining why any particular
program might appear online without captions.”).
326 See NPRM, 26 FCC Rcd at 13757, 13771, ¶ 45 and App. A.
327 See 47 C.F.R. §§ 1.3, 1.46; see also 47 U.S.C. § 154(j) (“The Commission may conduct its proceedings in such
manner as will best conduce to the proper dispatch of business and to the ends of justice.”). Motions for extension
of time, however, are not routinely granted, 47 C.F.R. § 1.46(a), and waivers are granted only for good cause, 47
C.F.R. § 1.3.
328 See, e.g., NCTA Comments at 22; NAB Reply at 34. But see Consumer Groups Comments at 37-38.
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Commission specifies.
86.
Sanctions or Remedies. We decline to create sanctions or remedies for IP closed
captioning enforcement proceedings that deviate from the Commission’s flexible, case-by-case approach
governed by Section 1.80 of our rules.329 We do not find warranted the proposal of Consumer Groups
that the Commission assess a new violation for each complaint, with a minimum forfeiture level of
$10,000 per violation.330 The record does not support either the $10,000 minimum forfeiture level
proposed by the Consumer Groups or establishing a base forfeiture level for IP closed captioning
complaints at this time. Further, since closed captioning requirements for IP-delivered video
programming are new, the Commission may benefit from conducting investigations before codifying a
base forfeiture for addressing violations. As stated in the NPRM, we will adjudicate complaints on the
merits and may employ the full range of sanctions and remedies available to the Commission under the
Act.331
87.
Content of Complaints. Given the variety of issues that could cause IP closed captioning
not to reach an end user (for example, a VPO’s failure to provide captions, a VPD’s failure to render or
pass through captions, captions of an inadequate quality, a problem with the device used to view the
captions, or the fact that captions were not required because the programming had not been shown on
television with captions after the effective date of the new rules), we think it is important that we receive
complaints containing as much information as possible that will enable their prompt and accurate
resolution. Accordingly, complaints should include the following information:332 (a) the name, postal
address, and other contact information of the complainant, such as telephone number or e-mail address;333
(b) the name and postal address, website, or e-mail address of the VPD and/or VPO against which the
complaint is alleged, and information sufficient to identify the video programming involved; (c)
information sufficient to identify the software or device used to view the program; (d) a statement of facts
sufficient to show that the VPD and/or VPO has violated or is violating the Commission’s rules, and the
date and time of the alleged violation;334 (e) the specific relief or satisfaction sought by the complainant;
and (f) the complainant’s preferred format or method of response to the complaint.335 Consumer Groups


329 See 47 C.F.R. § 1.80; see also Microsoft Reply at 7-8.
330 See Consumer Groups Comments at 36. See also ITI Reply at 8-9 (proposing that the Commission instead use its
discretion in each case, within a range going no higher than $10,000). Some commenters oppose the $10,000
minimum forfeiture proposed by Consumer Groups. See AT&T Reply at 10; Microsoft Reply at 7-8; NAB Reply at
33; NCTA Reply at 10 (objecting to the adoption of a base forfeiture); Letter from Julie M. Kearney, Vice President,
Regulatory Affairs, Consumer Electronics Association, to Marlene H. Dortch, Secretary, FCC, at 3 (Nov. 14, 2011)
(“CEA Nov. 14 Ex Parte Letter”) (objecting to a minimum forfeiture but not a base forfeiture).
331 See NPRM, 26 FCC Rcd at 13757, ¶ 45.
332 While we proposed in the NPRM to require complaints to include this information, we recognize that some of the
requested information may not be readily ascertained by consumers. For example, it may be difficult for consumers
to determine the identity of the VPO, the postal address of the VPD or VPO, and the type of software or device the
consumer used to view IP-delivered video programming. Accordingly, we provide that complaints should (but are
not required to) include the specified information. The Commission will best be in a position to investigate
complaints that include the maximum information requested.
333 We have enhanced this category of information from what was proposed in the NPRM, to facilitate contacting the
complainant by means other than postal mail.
334 We have modified this requirement from what was proposed in the NPRM, in recognition of the finding that the
date and time of the alleged violation should be included with all IP closed captioning complaints.
335 Some commenters agree that the Commission should impose comparable complaint requirements to those
proposed in the NPRM and adopted herein. See, e.g., Consumer Groups Comments at 37-39; DIRECTV Comments
at 15; CBS Reply at 19; NAB Reply at 35; NCTA Reply at 8.
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also suggest that the Commission should permit consumers to submit photographic or video evidence of
the captioning problem when filing a complaint.336 If a consumer wishes to submit such evidence,
Commission staff will consider the evidence as part of the complaint proceeding. If a complaint is filed
with the Commission, the Commission will forward complaints meeting the above-specified requirements
to the appropriate party or parties. If a complaint does not contain all of the information specified in this
paragraph and Commission staff determines that certain information is essential to resolving the
complaint, Commission staff may work with the complainant to ascertain the necessary information and
supplement the complaint. The Commission retains discretion not to investigate complaints that lack the
above-specified information and complaints for which the Commission is unable to ascertain such
information after further inquiries to the complainant.
88.
Written Complaints. We conclude that complaints filed either with the Commission or
with the VPD must be in writing. Consumer Groups propose that the Commission should permit the
filing of complaints by “any reasonable means,” and it also proposes that the Commission accommodate
evidence for closed captioning complaints submitted in American Sign Language.337 NAB disagrees,
proposing instead that the means of filing complaints should mirror the television closed captioning
rules.338 We find no reason to deviate from the requirement in the television closed captioning rules that a
complaint must be in writing,339 and we thus adopt that proposed requirement, which has worked well in
the television context. We clarify that, if a complainant calls the Commission for assistance in preparing
a complaint (by calling either 1-888-CALL-FCC or 1-888-TELL-FCC (TTY)), and Commission staff
documents the complaint in writing for the consumer, that constitutes a written complaint. A written
complaint filed with the Commission must be transmitted to the Consumer and Governmental Affairs
Bureau through the Commission’s online informal complaint filing system, U.S. Mail, overnight delivery,
or facsimile. After the rules become effective, the Consumer and Governmental Affairs Bureau will
release a consumer advisory with instructions on how to file complaints in various formats, including via
the Commission’s website.
89.
Revisions to Form 2000C. The Commission directs the Consumer and Governmental
Affairs Bureau to revise the existing complaint form for disability access complaints (Form 2000C) in
accordance with this Report and Order, to foster the filing of IP closed captioning complaints. In the
NPRM, the Commission asked if it should revise the existing complaint form for disability access
complaints (Form 2000C) to request information specific to complaints involving IP closed captioning,340
and industry and consumer groups support this proposal.341 Should the complaint filing rules adopted in
this Report and Order become effective before the revised Form 2000C is available to consumers, IP
closed captioning complaints may be filed in the interim by fax, mail, or e-mail.
90.
Contact Information. We will require VPDs to make contact information available to end
users for the receipt and handling of written IP closed captioning complaints.342 Given that we will
permit consumers to file their IP closed captioning complaints directly with a VPD, we think it is
important that consumers have the information necessary to contact the VPD. At this time, we decline to


336 See Consumer Groups Comments at 39.
337 See Consumer Groups Comments at 38-39.
338 See NAB Comments at 32; NAB Reply at 34-35.
339 See 47 C.F.R. § 79.1(g)(1).
340 See NPRM, 26 FCC Rcd at 13758, ¶ 46.
341 See, e.g., Consumer Groups Comments at 38; NAB Comments at 32; CBS Reply at 19.
342 See 47 C.F.R. § 79.1(i)(2) (requiring television video programming distributors to make contact information
available for the receipt and handling of written closed captioning complaints).
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specify how VPDs must provide contact information for the receipt and handling of written IP closed
captioning complaints, but we expect that VPDs will prominently display their contact information in a
way that it is accessible to all end users of their services. We agree with AT&T that “a general notice on
the VPP’s/VPD’s website with contact information for making inquiries/complaints regarding closed
captioning over IP video” would be sufficient,343 but we emphasize that such notice should be provided in
a location that is conspicuous to viewers. We also agree with Consumer Groups that creating a database
comparable to the television database of video programming distributor contact information may be
infeasible in the IP context,344 given the potentially large number of VPDs that may emerge over time.
Therefore, we decline at this time to create a database of IP video providers and their closed captioning
contacts; if we find that VPDs are not providing their contact information in a sufficient manner,
however, we may revisit this issue. Very few commenters provided their views on what contact
information we should require.345 Accordingly, we will parallel the requirements for television video
programming distributor contact information for the receipt and handling of written closed captioning
complaints.346 Thus, we will require VPDs of IP-delivered video programming to make the following
contact information accessible to end users: the name of a person with primary responsibility for IP
closed captioning issues and who can ensure compliance with our rules; and that person’s title or office,
telephone number, fax number, postal mailing address, and e-mail address. VPDs shall keep this
information current and update it within 10 business days of any change.
91.
We will not, however, require VPDs to make contact information available for the
immediate receipt and handling of closed captioning concerns of consumers. The television closed
captioning rules require video programming distributors to “make available contact information for the
receipt and handling of immediate closed captioning concerns raised by consumers while they are
watching a program,”347 so that distributors can work with consumers to resolve the program at that time.
We draw this distinction for these rules because we are concerned that websites and other sources of IP-
delivered video programming may not be well-positioned to respond to a consumer’s immediate closed
captioning concerns.348

IV.

SECTION 203 OF THE CVAA

92.
The CVAA amends Section 303(u) of the Act to “require that, if technically feasible,
apparatus designed to receive or play back video programming transmitted simultaneously with sound . . .
and us[ing] a picture screen of any size be equipped with built-in closed caption decoder circuitry or


343 See AT&T Comments at 15; see also DIRECTV Comments at 14-15; NAB Comments at 33 n. 75 (“It would be
reasonable for the Commission to adapt the existing requirements for television station contacts, 47 C.F.R. § 79.1(i),
to the online context. However, the Commission should refrain at this time from imposing any additional
requirements.”).
344 See Consumer Groups Comments at 39; see also 47 C.F.R. § 79.1(i)(3) (requiring television video programming
distributors to file contact information with the Commission).
345 See AT&T Comments at 15 (proposing that the Commission require “a general notice on the VPP’s/VPD’s
website” and “an online form for submitting questions/complaints”); Consumer Groups Comments at 40 (proposing
that the Commission require the provision of “all reasonable means of communication by which a user can file a
complaint, including e-mail addresses, fax numbers, and postal mail addresses.”).
346 See 47 C.F.R. § 79.1(i)(2).
347 47 C.F.R. § 79.1(i)(1).
348 See NCTA Comments at 22 n. 59 (“Websites and other online entities generally do not have customer service
operations designed to handle inquiries about regulatory compliance from members of the general public.”).
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capability designed to display closed-captioned video programming.”349 In the discussion that follows,
we first provide our interpretation of the statutory term “apparatus.”350 We then analyze additional
provisions of Section 203 of the statute, including the provisions that “apparatus” that use a screen of any
size are covered and that our requirements only apply to the extent they are technically feasible.351
Further, we address the statutory provisions for waivers of closed captioning obligations that are not
“achievable” or are not appropriate given the primary purpose of the device being used to view video
programming, as well as the statutory exemption for display-only monitors.352 We then address the
specific, functional requirements covered devices will be required to satisfy.353 Additionally, we
incorporate the statutory language regarding recording devices, including the obligations that they
receive, store, and play back closed captioning,354 address interconnection mechanisms,355 and make
minor changes to our existing closed captioning rules for analog and digital television receivers.356
Finally, we address how parties may meet these requirements through alternate means of compliance,357
specify the time frames by which manufacturers must meet their obligations under these rules,358 and
describe how consumers may file complaints for violations of these rules.359

A.

Apparatus Subject to Section 203 of the Act

93.
The CVAA does not define the term “apparatus,” requiring the Commission to interpret
the term to determine the exact meaning and extent of the statute’s reach. Taking into account the
statutory language and purpose, the record in this proceeding, and the conclusions the Commission
reached in the ACS Order,360 we interpret this language to apply to hardware (that is, physical devices


349 47 U.S.C. § 303(u)(1)(A). The statute continues that, notwithstanding this broad requirement, apparatus using a
screen less than 13 inches in size is required to display closed captioning only if such a requirement is achievable,
and that display only monitors with no playback capability are exempt from these requirements. 47 U.S.C. §§
303(u)(2)(A)-(B). Section 203 further provides that the Commission may waive the requirements for apparatus
primarily designed for activities other than receiving or playing back video programming and for equipment
designed for multiple purposes that is capable of playing video programming but derives its essential utility from
other purposes. 47 U.S.C. § 303(u)(2)(C).
350 See infra Section IV.A (Apparatus Subject to Section 203 of the Act).
351 Id.
352 See infra Section IV.B (Achievability, Purpose-Based Waivers, and Display-Only Monitor Exemption).
353 See infra Section IV.C (Display of Captions).
354 See infra Section IV.D (Recording Devices).
355 See infra Section IV.E (Interconnection Mechanisms).
356 See infra Section IV.F (Changes to Television Rules and Movement of Device Rules to Part 79).
357 See infra Section IV.G (Alternate Means of Compliance).
358 See infra Section IV.H (Deadlines for Compliance).
359 See infra Section IV.I (Complaints).
360 The ACS Order applies the accessibility requirements of Section 716 of the CVAA to non-interconnected VoIP
services, electronic messaging services, and interoperable video conferencing services. ACS Order, 26 FCC Rcd at
14564, ¶ 13, implementing Pub. L. No. 111-260 § 104; 47 U.S.C. §§ 617-619. In applying the provisions of the
CVAA to entities that make or produce end user equipment, including tablets, laptops, and smartphones responsible
for the accessibility of the hardware and manufacturer-provided software used for e-mail, SMS text messaging, and
other advanced communications services, the Commission addressed many issues of first impression related both to
the CVAA and to the regulation of high-tech devices not traditionally reached by the Commission’s accessibility
rules. We find the ACS Order a useful guide to interpreting similar provisions and issues in this proceeding.
Accordingly, we refer to the ACS Order at various points in the following discussion.
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such as set-top boxes, PCs, smartphones, and tablets) designed to receive or play back video
programming transmitted simultaneously with sound and any integrated software (that is, software
installed in the device by the manufacturer before sale or that the manufacturer requires the consumer to
install after sale). Commenters unanimously agree that physical devices capable of displaying video are
covered by the statutory term “apparatus.”361 Given the fact that the means by which a device actually
displays video—the “video player”—may be comprised of hardware, software, or a combination of both,
we do not believe that it would be appropriate to define “apparatus” solely in terms of hardware. Rather,
in order to effectuate the statutory goals, we define “apparatus” to include the physical device and the
video players that manufacturers install into the devices they manufacture (whether in the form of
hardware, software, or a combination of both) before sale, as well as any video players that manufacturers
direct consumers to install.362 Thus, “apparatus” includes integrated video players, i.e., video players that
manufacturers embed in their devices, video players designed by third parties but installed by
manufacturers in their devices before sale, and video players that manufacturers require consumers to add
to the device after sale in order to enable the device to play video.363 In addition, if a manufacturer offers
updates or upgrades to a video player component of a device, it also must ensure that those updates or
upgrades are capable of displaying closed captions.364 Further, if a manufacturer selects a third-party
operating system that includes a video player, that video player will also be considered part of the
“apparatus.”
94.
Our approach is consistent with the statute, which uses broad terminology, applying to
“apparatus designed to receive and play back video programming transmitted simultaneously with
sound.”365 In addition to the statute’s broad language, the legislative history suggests that the statute was
intended to have a broad scope. For example, the House and Senate Committee Reports describe the goal
of Section 203(a) as “ensur[ing] that devices consumers use to view video programming are able to


361 See CEA Comments at 10 (noting that apparatus will have “memory” and “processing power,” characteristics of
devices); CTIA Comments at 5 (asking that physical mobile devices be exempted from the rules); Comments of the
Entertainment Software Association at 1 (“ESA Comments”) (discussing physical video game consoles); DIRECTV
Comments at 4 (discussing the physical devices DIRECTV delivers services to); Microsoft Comments at 10; NCTA
Comments at 24; Reply Comments of Research in Motion Ltd. at 5 (“RIM Reply”) (discussing accommodations for
work done on mobile devices); Comments of Ronald H. Vickery at 2 (“Vickery Comments”); TechAmerica
Comments at 4; Comments of the Telecommunications Industry Association at 3 (“TIA Comments”); Consumer
Groups Comments at 41.
362 We note that manufacturers of covered apparatus pursuant to this section must also comply with the performance
and display requirements set forth below. See infra Section IV.C (Display of Captions).
363 As provided in the ACS Order, “[m]anufacturers are responsible for the software components of their [devices]
whether they pre-install the software, provide the software to the consumer on a physical medium such as a CD, or
require the consumer to download the software.” ACS Order, 26 FCC Rcd at 14582, ¶ 69.
364 We reject commenters’ arguments that Section 203 is limited to enabling the display of closed captioning solely
to video programming provided pursuant to Section 202 of the CVAA. See TIA Comments at 8; see also Microsoft
Comments at 11-12 (arguing our Section 203 rules should only apply to apparatus that “display[] video
programming delivered using Internet protocol that was published or exhibited on television with captions”).
Neither the statute nor the legislative history limits the application of Section 203 in this manner. Section 203
broadly requires covered devices to be equipped and capable of displaying closed captioned video programming. 47
U.S.C. § 303(u)(1)(A). The legislative history states that the CVAA was enacted to “ensure that devices consumers
use to view video programming are able to display closed captions.” See Senate Committee Report at 13. Moreover,
as a technical and practical matter, once a device implements the closed captioning capability for a particular format
of content, then the origin of that content is immaterial. Under current technology, there would be no way for the
device manufacturer to limit captioning only for a particular type of content.
365 47 U.S.C. § 303(u)(1)(A).
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display closed captions.”366 As explained above, applying our rules solely to hardware would not fulfill
this goal because the ability to display closed captions may be implemented through hardware, software
or a combination of both. 367 Thus, defining apparatus to include “integrated software” is necessary to
achieve Congress’s goal to ensure individuals with disabilities are able to fully access video
programming.368 We recognize that this places the burden on manufacturers to ensure that all the
software they choose to build into or preinstall in their devices complies with our closed captioning
rules.369 We conclude, however, that this is necessary to implement the statute and effectuate
congressional intent. The approach we adopt is also consistent with the approach the Commission
followed in the ACS Order. 370 We decline to include within the scope of our interpretation of the
statutory term “apparatus” third-party software that is downloaded or otherwise added to the device
independently by the consumer after sale and that is not required by the manufacturer to enable the device
to play video.371 Given our interpretation of the statute to cover integrated software, as well as our
decision under Section 202 (as discussed above) that VPDs must ensure that any video player they
provide to the consumer is capable of rendering or passing through closed captions, we believe that the
rules we adopt will cover the majority of situations in which consumers view video, and therefore do not
believe that it is necessary to hold manufacturers responsible for such “third-party software” or to regulate
software companies directly.372 In interpreting the scope of the statute in this manner, we have balanced


366 See House Committee Report at 30; Senate Committee Report at 14.
367 See Google Reply at 7-8 (“Google believes that to the extent a device requires software to direct the use and
operation to receive, play back, and record video programming, it is an apparatus ‘designed’ to do so, and should be
deemed apparatus for purposes of Section 203. Design necessarily includes software. Even where software is not
preloaded but is downloaded by a user, the fact that the device has the capability to operate the downloaded software
should be sufficient to make it an apparatus under the rules, particularly given that ‘[i]n very few, if any, situations
does hardware alone serve as the enabler of reception, unlike in traditional analog television.’ Consequently, not
including software in the definition of apparatus likely would ‘exclude virtually all modern video playback
technology [and] directly contradict the CVAA’s goal of encoding accessibility by design in video programming
hardware.’”) (footnotes omitted).
368 See Senate Committee Report at 1-2.
369 See, e.g., Letter from Julie M. Kearney, Consumer Electronics Association, to Marlene H. Dortch, Secretary,
FCC, at 1 (Dec. 21, 2011) (“To comply with Section 203, the manufacturer of a covered apparatus should only have
to ensure that the principal means of viewing video programming . . . displays closed captions when provided in a
standard format. In other words, device manufacturers are responsible only for software that is pre-loaded (by the
manufacturer) on devices and included in the device at the time of sale.”).
370 In the ACS Order, the Commission adopted rules holding “entities that make or produce end user equipment,
including tablets, laptops, and smartphones, responsible for the accessibility of the hardware and manufacturer-
provided software used for e-mail, SMS text messaging, and other ACS. We also hold these entities responsible for
software upgrades made available by such manufacturers for download by users.” See ACS Order, 26 FCC Rcd at
14588-89, ¶ 13.
371 See also, supra, Section III.A.2 (Responsibilities of Video Programming Owners, Distributors, and Providers).
This is also consistent with the ACS Order, which stated “[a]dditionally, we conclude that, except for third-party
accessibility solutions, there is no liability for a manufacturer of end user equipment for the accessibility of software
that is independently selected and installed by the user, or that the user chooses to use in the cloud.” See ACS Order,
26 FCC Rcd at 14588, ¶ 13. We expect, however, that to the extent that third-party software provides closed
captioning support, the manufacturer will ensure that the device does not block the transmission of captioning.
372 To the extent, in the future, there is evidence to suggest that our rule no longer ensures that the goals of the
statute are met – for example, if video programming is increasingly provided using third-party software unaffiliated
with both VPDs and device manufacturers – we may revisit this issue. See ACS Order, 26 FCC Rcd at 14586, ¶ 72
(“[T]he Commission will have an occasion to examine whether application of the CVAA’s requirements directly to
(continued….)
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the needs of consumers with the need to minimize burdens on the industry to ensure that our rules do not
impede innovation in the device and software markets.
95.
Designed to Receive or Play Back Video Programming. Our decision to cover
“integrated video players” is consistent with the statutory language of Section 203 of the CVAA which
covers those apparatus “designed to receive or play back video programming transmitted simultaneously
with sound.”373 Under our interpretation, if a device is sold with (or updated by the manufacturer to add)
an integrated video player capable of displaying video programming, that device is “designed to receive
or play back video programming” and subject to our rules adopted pursuant to Section 203. Some
commenters argue that we should evaluate whether a device is covered by focusing on the original design
or intent of the manufacturer of the apparatus and not the consumer’s ultimate use of that apparatus. 374
We disagree. We believe that to determine whether a device is designed to receive or play back video
programming, and therefore covered by the statute, we should look to the device’s functionality, i.e.
whether it is capable of receiving or playing back video programming.375 We are persuaded that adopting
this bright-line standard based on the device’s capability will provide more certainty for manufacturers.376
In any event, to the extent a device is built with a video player, it would be reasonable to conclude that
viewing video programming is one of the intended uses of the device. From a consumer perspective, it
would also be reasonable to expect that a device with a video player would be capable of displaying
captions.
96.
Picture Screen of Any Size. The statute applies to apparatus “if such apparatus . . . uses
a picture screen of any size.”377 We interpret the term “use” to mean that the apparatus works in
conjunction with a picture screen. We reject the argument that Section 203 applies only to devices that
include screens, 378 as neither the statute nor the legislative history compels such a narrow construction.
(Continued from previous page)


developers of consumer-installed software is warranted, and make any necessary adjustments to our rules to achieve
accessibility in accordance with the intent of the CVAA.”).
373 47 U.S.C. § 303(u)(1)(A). “Video programming” is defined by the CVAA as “programming by, or generally
considered comparable to programming provided by a television broadcast station, but not including consumer-
generated media.” 47 U.S.C. § 613(h)(2).
374 See, e.g., CEA Comments at 12; CTIA Comments at 13 (arguing that focusing on post-market uses, which may
be unforeseen by the manufacturer, would deprive manufacturers of the certainty they need to determine whether a
device will be subject to closed captioning requirements well in advance of introducing a product).
375 See Google Reply at 9-10 (“Clearly, any device that is capable of being used to receive, play back, and record
video programming from an external source has been designed to do so, and therefore is ‘apparatus.’”); see also
Consumer Groups Reply at 27 (“In other words, if an apparatus is capable of playing back video, it necessarily was
designed for that purpose.”).
376 See Google Comments at 8. As noted above, our rules cover manufacturer-provided updates and upgrades to
devices; thus, a device that originally included no video player but that the manufacturer requires the consumer to
update or upgrade to enable video reception or play-back will be covered by our rules (our rules, of course, equally
cover updates or upgrades to existing video players). Looking solely at the manufacturer’s original intent, therefore,
would be too narrow an approach. However, we would not hold manufacturers liable for failure to include closed
captioning capability in devices manipulated or modified by consumers in the aftermarket to provide services not
intended by the manufacturer. See, e.g., David Carnoy, Hack Turns Nook Color into Kindle, CNET News (2010),
available at http://news.cnet.com/8301-17938_105-20026799-1.html (discussing consumer modifications and
manipulations of the underlying software of an e-book reader to expose previously unavailable functionality and
consequently enable it to play video).
377 See 47 U.S.C. § 303(u).
378 See Microsoft Comments at 10 (“under the statute it is necessary for an ‘apparatus’ to ‘use[] a picture screen of
any size.’ Of course, only a physical device may possess a picture screen.”) (footnote omitted); see also TIA
Comments at 9 (mobile devices that do not include physical screens should be exempted from the rules).
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The original Television Decoder Circuitry Act’s captioning requirement covered an apparatus only if “its
television picture screen is 13 inches or greater in size.” 379 The Commission previously interpreted the
narrower phrase used in the Television Decoder Circuitry Act (“its television screen”) to permit coverage
of devices that are not connected to a picture screen. In the 2000 DTV Closed Captioning Order, the
Commission explained that separating the tuning and receive function from the display function of a
device is common, allows consumers to customize their systems, and should not eliminate the obligation
to provide closed captioning.380 Commenters have failed to persuade us that this reasoning should not
apply here as well.381 Moreover, we find that reading Section 203(a) to apply only to devices with built-
in screens would undermine the goals of the statute, as it would exclude one of the most common means
by which consumers view programming.382 Thus, we find that it is reasonable to conclude that
Congress’s intent in Section 203(a) of the CVAA was to eliminate the screen-size limitation, not to
narrow the classes of apparatus covered. Therefore, devices designed to work in conjunction with a
screen, though not including a screen themselves, such as set-top boxes, personal computers, and other
receiving devices separated from a screen must be equipped with closed caption decoder circuitry or
capability designed to display closed-captioned video programming, unless that device is otherwise
exempted pursuant to the limitations and exceptions described below.
97.
Technically Feasible. Under the CVAA, the requirements of Section 203 only apply to
the extent they are “technically feasible.”383 Because neither the statute nor the legislative history
provides guidance as to the meaning of “technically feasible,”384 the Commission is obligated to interpret
the term to best effectuate the purpose of the statute. To assist us in our analysis, we look to how the
Commission in the past has interpreted this and other, similar terms in the context of accessibility for
people with disabilities. For example, in the context of Section 255 of the Act, the Commission defined
“readily achievable” to mean, in part, “technically feasible,” and then defined that term by rulemaking to
encompass a product’s technological and physical limitations. 385 The Commission further found that a


379 Pub. L. No. 101-431, 104 Stat. 960 (1990). Previously codified at 47 U.S.C. §§ 303(u), 330(b).
380 In the Matter of Closed Captioning Requirements for Digital Television Receivers, Closed Captioning and Video
Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Video
Programming Accessibility,
Report and Order, 15 FCC Rcd 16788 at 16805, ¶ 46-47 (2000) (“2000 DTV Closed
Captioning Order
”) (implementing the previous version of 47 U.S.C. § 303(u)).
381 We note that a separate provision of the CVAA provides that apparatus “that use a picture screen that is less than
13 inches in size” be subject to closed captioning requirements only if such requirements are “achievable,” 47
U.S.C. § 303(u)(2)(a), but we interpret the reference to “a picture screen that is less than 13 inches in size” in that
provision to express Congress’s intent to recognize the potential difficulties of achieving compliance with respect to
devices that use small screens, and do not find it to be inconsistent with the reasoning set forth above.
382 MVPDs deploy approximately 1.5 set-top boxes per subscribing household, or nearly 100 million set-top boxes
in the United States. See FCC Form 325, 2010 available at http://www.fcc.gov/coals. Regarding content delivered
via IP, numerous set-top boxes exist to allow consumers to retain their existing televisions, including IP-specific
devices from companies such as Roku and Western Digital, video game consoles, and physical-media players.
383 47 U.S.C. § 303(u).
384 See House Committee Report at 30-31 (addressing Section 203); Senate Committee Report at 14 (addressing
Section 203).
385 See Implementation of Section 255 and 251(a)(2) of the Communications Act of 1934, as enacted by the
Telecommunications Act of
1996, Report and Order and Further Notice of Inquiry, 16 FCC Rcd 6417, at 6444-6445,
¶ 63 (1999) (“Section 255 Report and Order”) (“[W]hile technical infeasibility is a consideration, we agree with
commenters that it does not exist merely because a particular feature has not yet been implemented by any other
manufacturer or service provider. We also caution that technical infeasibility should not be confused with cost
factors. In other words, a particular feature cannot be characterized as technically infeasible simply because it
would be costly to implement. . . . We also agree with several commenters that technical infeasibility encompasses
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requirement should not be considered technically infeasible simply because it would be costly to
implement, or that it involved physical modifications or alterations to the design of a product.386
98.
We find that for the “technically feasible” qualifier to be triggered, it must be more than
merely difficult to implement captioning capability on the apparatus;387 rather, manufacturers must show
that changes to the design of the apparatus to incorporate closed captioning capability are not physically
or technically possible.388 We believe that, as a general matter, if it is technically feasible for a
manufacturer to include a video player in an apparatus, it is technically feasible for that manufacturer to
include closed captioning functionality as well. That is, if an apparatus includes the complex
functionality of a video player, which requires a relatively significant amount of processing power, it is
technically feasible to include a significantly less computationally demanding functionality such as closed
captioning, which requires significantly less processing power.389 We recognize that at least some models
of apparatus of all classes that provide video in the market today -- for example, televisions, set-top
boxes, computers, smartphones, and tablets -- also enable the rendering or pass through of closed
captioning.390 On the strength of this marketplace evidence, we reject CTIA’s argument that there is
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not only a product’s technological limitations, but also its physical limitations. We note, however, that
manufacturers and service providers should not make conclusions about technical infeasibility within the “four
corners” of a product’s current design. Section 255 requires a manufacturer or service provider to consider physical
modifications or alterations to the existing design of a product. Finally, we agree with commenters that
manufacturers and service providers cannot make bald assertions of technical infeasibility. Any engineering or legal
conclusions that implementation of a feature is technically infeasible should be substantiated by empirical evidence
or documentation.”).
386 Id.
387 We therefore reject CEA’s proposal that insufficient processor or memory, or lack of appropriate standards such
as for 3D video, may make implementing captioning or a particular feature of captioning on a particular apparatus
technically infeasible. See CEA Comments at 10-11. Under the interpretation of technically feasible established by
the Commission in the Section 255 Report and Order, expanding the processor or memory or developing standards
for a new product such as 3D video would be technically feasible absent additional evidence demonstrating the
technical barriers to doing so.
388 Our approach to technical feasibility is also consistent with uses of that term in the direct broadcast satellite and
common carrier context. See Implementation of the Satellite Home Viewer Improvement Act of 1999: Broadcast
Signal Carriage Issues; Retransmission Consent Issues,
Report and Order, 16 FCC Rcd 1918 at 1966-67 (2000)
(implementing 47 C.F.R. § 76.66 and noting that while there would be significant costs and challenges in designing,
constructing, and launching new satellites, it was nevertheless technically feasible to carry program-related material,
including closed captioning, as required by statute); 47 C.F.R. § 54.5 (“‘Technically feasible’ [in universal service
context] means capable of accomplishment as evidenced by prior success under similar circumstances. . . . A
determination of technical feasibility does not consider economic, accounting, billing, space or site except that space
and site may be considered if there is no possibility of expanding available space.”); 47 C.F.R. § 51.5
(“Interconnection, access to unbundled network elements, collocation, and other methods of achieving
interconnection or access to unbundled network elements at a point in the network shall be deemed technically
feasible absent technical or operational concerns that prevent the fulfillment of a request by a telecommunications
carrier for such interconnection, access, or methods.”). We disagree with CTIA’s statement that these definitions
can be synthesized here to mean “demonstrably capable of accomplishment without technical or operational
concerns” because the definitions cited herein for technical feasibility all call for overcoming technical and
operational concerns when it is possible to do so. See CTIA Comments at 14-15.
389 See supra ¶ 93 (discussing video players).
390 See, e.g., WGBH’s National Center for Accessible Media and Research in Motion Enable Close-Captioning
Support for BlackBerry Smartphones
(press release March 23, 2010) (available at
http://ncam.wgbh.org/about/news/ncam-and-research-in-motion-en); Apple iPhone Accessibility,
http://www.apple.com/accessibility/iphone/hearing.html (last visited Nov. 14, 2011) (“iPhone supports the playback
of open captions, closed captions, and subtitling. Captions appear onscreen just like the closed captions you see on
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insufficient evidence that closed captioning capabilities are “technically feasible for all mobile devices
capable of video playback across a diverse IP-delivered video programming ecosystem.”391 CTIA did not
substantiate its claims with any specific evidence to support its claim of technical infeasibility. Thus, we
find no justification in the record to exempt all mobile devices capable of video playback from the closed
captioning requirements. If new apparatus or classes of apparatus for viewing video programming
emerge on which it would not be technically feasible to include closed captioning, parties may raise that
argument as a defense to a complaint or, alternatively, file a request for a ruling under Section 1.41 of the
Commission’s rules before manufacturing or importing the product.392
99.
Removable media players. We decline to exclude removable media play back
apparatus,393 such as DVD and Blu-ray players, from the scope of the rule. Section 203 covers “apparatus
designed to receive or play back video programming transmitted simultaneously with sound.”394 Section
203 of the CVAA amends Section 303(u) of the Act, which previously limited the decoder capability
mandate only to those “apparatus designed to receive television pictures broadcast simultaneously with
sound.”395 The phrase “or play back” in Section 203 makes clear that Congress no longer intended to
only cover devices that receive programming. Section 203 expands the prior statutory mandate to include
not only apparatus that “receive” programming, but also apparatus designed to “play back” programming,
whether or not such apparatus is also capable of receiving the programming. Some commenters argue
that the word “transmitted” indicates content that is streamed, downloaded, or broadcast via “wire or
radio,” thus excluding such removable media devices.396 We are not persuaded by this argument. The
reading these commenters advocate ignores Congress’s use of the word “or,” and instead would require
devices to both “receive and play back” video programming in order to be covered under the statute. We
think the better interpretation of the word “transmitted” in context is that Congress’s substitution of the
words “television pictures broadcast…” with the corresponding words “video programming
transmitted…,” while retaining the phrase “simultaneously with sound,” was intended to expand the
scope of the statute beyond devices that receive broadcast television without narrowing the statute’s prior
coverage. For these reasons, we believe the better reading of the phrase “transmitted simultaneously with
sound” in this context is to describe how the video programming is conveyed from the device (e.g., DVD
player) to the end user (simultaneously with sound), rather than describe how the video programming
arrived at the device (e.g., DVD player). Accordingly, we agree with the Consumer Groups and Ronald
H. Vickery that the better interpretation of Section 203 is that it covers removable media play back
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TV.”); Setting on your Videos App, Watching on Your Android Tablet,
http://support.google.com/androidmarket/bin/answer.py?hl=en&answer=1266211 (last visited Dec. 12, 2011)
(“From here, you can manage your downloading and streaming settings, enable and disable warning messages, and
adjust the size of closed captioning text.”); Show Closed Captions or Subtitles in Windows Media Center,
http://windows.microsoft.com/en-US/windows-vista/Show-closed-captions-or-subtitles-in-Windows-Media-Center
(last visited Nov. 14, 2011).
391 CTIA Comments at 14.
392 See 47 C.F.R. § 1.41 (permitting parties to file informal requests for Commission action, based on a clear and
concise showing of the facts relied on and relief sought, among other requirements).
393 “Removable” media describes a form of media storage, such as DVDs and flash drives, which can be removed
from a computer or other equipment while the system is running.
394 47 U.S.C. § 303(u)(1) (emphasis added).
395 47 U.S.C. § 303(u).
396 See, e.g., CEA Comments at 13 (“In the case of playback-only fixed-media players, no video programming is
‘transmitted’ within the meaning of the statute. . . . Such devices . . . cannot tune, decode, or display television
signals, or IP-delivered video programming of any kind.”); ITI Reply at 3.
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apparatus, such as DVD players, which are commonly used by consumers to view video programming. 397
In this regard, we note that even though not required by law,398 many video programs on DVDs contain
closed captions, and our interpretation will ensure that those captions can be viewed.
100.
Although we recognize that DVDs and other removable media often contain subtitles, we
do not believe that subtitles generally meet the functional requirements necessary to accomplish the goals
of the statute. Specifically, we recognize that some removable media include either subtitles or “subtitles
for the deaf and hard of hearing” (“SDH”) in place of closed captions.399 Subtitles are similar to closed
captions in that they display the dialogue of a program as printed words on the screen, but often do not
also identify speakers and background noises, such as sound effects, or the existence of music and
laughter, information that is often critically important to understanding a program’s content. 400 SDH are
a version of subtitles that sometimes includes visual text to convey more than just the program’s dialogue,
for example, speaker identification. However, when these subtitles are viewed on removable media
devices, such devices do not typically offer consumers the user controls available when closed captions
are provided in accordance with the EIA-708 technical standard used for digital television
programming.401 We agree that these user control features for manipulating closed captions must be
supported in all devices, including those that use removable media, and accordingly require built-in
closed caption capability designed to display closed-captioned video programming in these devices in
accordance with our rules.402
101.
Professional and commercial equipment. We agree with CEA that we should exclude
commercial video equipment, including professional movie theater projectors, and similar types of
professional equipment, from our Section 203 rules.403 The legislative history of the CVAA explains that
Section 203(a) was intended to “ensure[] that devices consumers use to view video programming are able


397 Consumer Groups and Ronald H. Vickery strongly disagree with arguments to exclude removable media from
coverage of the statute. Consumer Groups Reply at 28; Reply Comments of Ronald H. Vickery at 1-2.
398 Multimedia, including video programming, which is made available for sale or rent on removable media, is not
required to be accessible to individuals with disabilities, such as through the provision of closed captioning. See 28
C.F.R. § 36.307 (the Americans with Disabilities Act of 1990 (“ADA”), as amended, does not require public
accommodations to alter their inventory to include accessible goods that are designed for or facilitate use by
individuals with disabilities, such as closed captioned video tapes). Nonetheless, when such multimedia is used for
the provision of covered services, such as educational services, the covered entity must ensure that those services are
accessible. See, generally, 42 U.S.C. §§ 12181-12189 (Title III of the ADA). See also http://www.dcmp.org (under
a grant from the U.S. Department of Education, the Described and Captioned Media Program describes and captions
multimedia for use by K-12 students).
399 Subtitles may be provided in one or more languages, including English.
400 See 1997 Closed Captioning Order, 13 FCC Rcd at 3273, ¶ 2; 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).
401 Section 15.122 of the Commission’s rules incorporates by reference EIA-708-B, “Digital Television Closed
Captioning,” Electronics Industries Alliance (Dec. 1999) (“EIA-708-B”), which provides comprehensive
instructions for the encoding, delivery, and display of closed captioning information for digital television systems.
The standard provides for a larger set of captioning user options than the analog captioning standard, EIA-608,
permitting users to control the size, font, color and other caption features. 47 C.F.R. § 15.122. See also, 2000 DTV
Closed Captioning Order
, 15 FCC Rcd 16788. As discussed below and indicated in Appendix B, we are relocating
Section 15.122 to Section 79.102.
402 See infra Section IV.C (Display of Captions).
403 See CEA Comments at 19-20.
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to display closed captions . . . .”404 We believe that based on the legislative history, Congress intended the
Commission’s regulations to cover apparatus that are used by consumers. Accordingly, we find that
because professional or commercial equipment is not typically used by the public, it is beyond the scope
of this directive. Significantly, no commenters argued that the Commission’s rules should cover this
equipment. We note, however, that other federal laws may impose accessibility obligations to ensure that
professional or commercial equipment is accessible to employees with disabilities,405 or enables the
delivery of accessible services.406

B.

Achievability, Purpose-Based Waivers, and Display-Only Monitor Exemption

102.
As noted above, except for an exemption for display-only monitors, we decline to grant
blanket waivers or exempt any device or class of devices from our rules as requested by several industry
coalitions.407 Other than making broad assertions, no commenters that urge us to make such exceptions
provide any technical basis or other evidence to support their contentions that certain classes of devices
warranted an exemption.408 We believe Congress intended the rules implementing Section 203 to cover a
broad range of consumer devices,409 and we agree with the Consumer Groups that it would be
inappropriate to waive the rules for broad classes of devices, many of which have already demonstrated
the ability both to receive video programming and display closed captioning.410 In fact, the very purpose


404 See House Committee Report at 30; Senate Committee Report at 14.
405 Title I of the Americans with Disabilities Act (ADA) requires employers with more than fifteen employees to
provide reasonable accommodations to applicants and employees with disabilities. See 42 U.S.C. §§ 12111-12117.
406 For example, the U.S. Department of Justice has an open proceeding to determine the extent to which Title III of
the ADA requires movie theaters to make their services accessible through the provision of captions. See
Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description
, RIN 1190-AA63, DOJ-
CRT-2010-0007, 75 FR 43467 (July 26, 2010). See also 42 U.S.C. §§ 12181-12189.
407 See supra Section IV.A (Apparatus Subject to Section 203 of the Act).
408 See, e.g., TechAmerica Comments at 5-6 (suggesting that the Commission grant categorical waivers to
smartphones and demonstrate flexibility when considering whether a device, such as a tablet computer, is subject to
the closed captioning rules, especially considering the nascent stages of the tablet marketplace); TIA Comments at
9-10 (stating that the Commission should grant waivers to devices, such as cellular telephones and tablets, in order
to provide manufacturers and industry participants with much-needed certainty that will spur innovation as
“application of closed captioning requirements to multi-purpose devices that are not used primarily for the viewing
of video would result in an unacceptable viewing experience, and may degrade the overall experience of the
device”). Granting such blanket waivers would defeat the purpose of the CVAA to expand the ability of people
who are deaf or hard of hearing to access video programming on modern devices used in the twenty-first century.
409 See House Committee Report at 30; Senate Committee Report at 14 (“The Committee recognizes that many
devices consumers use to view video programming are smaller and often portable.”).
410 See, e.g., Reply Comments of dotSUB at 6 (“dotSUB Reply”), quoting Mobile Internet Content Coalition
Comments in WT Docket No. 08-7, March 9, 2011, available at
http://fjallfoss.fcc.gov/ecfs/document/view?id=7021033944 (strongly opposing TechAmerica’s proposal that a
blanket waiver be granted for smartphones and similar devices, as mobile devices are becoming a primary means of
consuming media); Consumer Groups Comments at 42 (opposing “any blanket waiver, whether temporary or
permanent, for a device” and noting that the “CVAA does not obligate the Commission to grant waivers, temporary
or otherwise”); Apple iPhone Accessibility, http://www.apple.com/accessibility/iphone/hearing.html (last visited
Nov. 14, 2011) (“iPhone supports the playback of open captions, closed captions, and subtitling. Captions appear
onscreen just like the closed captions you see on TV. You can buy or rent captioned movies on the iTunes Store and
sync them to iPhone to watch on the go. You can also create your own using a variety of tools and applications,
including Compressor, one of the products in the Final Cut Studio 2 production suite (sold separately).”); WGBH’s
National Center for Accessible Media and Research in Motion Enable Close-Captioning Support for BlackBerry
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of Section 203 was to expand coverage of the original Television Decoder Circuitry Act’s captioning
requirement covering television sets with screens greater than 13 inches, to include consumer devices of
various sizes and types (both wired and wireless), whose usage is rapidly expanding. 411 Moreover, we
lack a record on which to grant a blanket waiver or exemption for any particular model of device or class
of equipment.
103.
Congress, however, included two limitations in Section 203. First, for devices using
screens less than 13 inches in size, only those features that are “achievable” must be implemented.412
Second, the statute provides that manufacturers may seek waivers based on the primary purpose or
essential utility of the device. We will follow the model established in the ACS Order and take a flexible,
case-by-case approach in addressing any waiver requests.413 As discussed below, we also implement the
statute’s categorical exemption for display-only monitors.
104.
Achievability. Section 203 amends Section 303(u) of the Communications Act to require
that, “notwithstanding [the provisions of Section 303(u)(1)], apparatus described [in Section 303(u)(1)]
that use a picture screen that is less than 13 inches in size [must] meet the requirements of [these
regulations] only if the requirements of such subparagraphs are achievable (as defined in section 716).”414
Section 716 of the CVAA defines achievability as, “with reasonable effort or expense, as determined by
the Commission” based on four factors: (1) the nature and cost of the steps needed to meet the
requirements of this section with respect to the specific equipment or service in question; (2) the technical
and economic impact on the operation of the manufacturer or provider and on the operation of the specific
equipment or service in question, including on the development and deployment of new communications
technologies; (3) the type of operations of the manufacturer or provider; and (4) the extent to which the
service provider or manufacturer in question offers accessible services or equipment containing varying
degrees of functionality and features, and [those services or equipment are] offered at differing price
points.415
105.
In the ACS Order, the Commission applied the Section 716 achievability standard to
advanced communications services and equipment and discussed each of the four factors.416 There, the
Commission concluded that it is appropriate to weigh each of the four factors equally, and that
achievability should be evaluated on a case-by-case basis. We agree with CEA that we should adopt the
same approach for closed captioning as it will provide the greatest possible flexibility for
manufacturers.417 When faced with a complaint for violation of our rules under Section 203, a
manufacturer may raise as a defense that a particular apparatus does not comply with the rules because
compliance was not achievable under the statutory factors. Alternatively, a manufacturer may seek a
determination from the Commission before manufacturing or importing the apparatus as to its claims that
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Smartphones (press release March 23, 2010) (available at http://ncam.wgbh.org/about/news/ncam-and-research-in-
motion-en).
411 Pub. L. No. 101-431, 104 Stat. 960 (1990).
412 See 47 U.S.C. § 303(u)(2)(A).
413 See ACS Order, 26 FCC Rcd at 14608, ¶ 123.
414 47 U.S.C. § 303(u)(2)(A).
415 47 U.S.C. § 617(g).
416 See ACS Order, 26 FCC Rcd at 14610-14619, ¶¶ 127-148.
417 Commenters broadly support the Commission exercising such flexibility. See, e.g., CEA Comments at 14; TIA
Comments at 11. See also DiMA Comments at 9 (discussing the need to couple the achievable exemption with a
flexible implementation); DISH Network Reply at 7 (requesting a broad interpretation of the exceptions).
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compliance with all of our rules is not achievable.418 In evaluating evidence offered to prove that
compliance was not achievable, the Commission will be informed by the analysis in the ACS Order.419
To the extent that implementation of particular aspects of closed captioning functionality is not achievable
on a particular apparatus for a particular manufacturer, it does not necessarily follow that no part of our
closed captioning rules is achievable for that manufacturer on that apparatus. Rather, seeking to bring as
much of the captioning experience to the greatest number of consumers possible, we will treat the
functional captioning requirements we discuss below as severable, and require manufacturers to seek
exemptions based on the achievability of individual features.420 We remind parties that the achievability
limitation is applicable only with regard to apparatus using screens less than 13 inches in size. For
apparatus that use a screen size that is 13 inches or larger, a manufacturer may seek relief from the
Commission based on a showing of technical infeasibility, which applies to apparatus of any size.421
106.
Purpose-Based Waivers. Section 203 grants the Commission the discretion to waive the
requirements of Section 203 for any apparatus or class of apparatus that are “primarily designed for
activities other than receiving or playing back video programming transmitted simultaneously with
sound” or “for equipment designed for multiple purposes, capable of receiving or playing video
programming transmitted simultaneously with sound but whose essential utility is derived from other
purposes.”422 The statute does not define “primarily designed,” nor does it define “essential utility”
except to state that it may be derived from more than one purpose.423 Both the House and Senate
Committee Reports state that waiver under these provisions is available “where, for instance, a consumer
typically purchases a product for a primary purpose other than viewing video programming, and access to
such programming is provided on an incidental basis.”424 We expect that such waiver requests will be
highly fact specific and unique to each device presented. Accordingly, we will address any waivers under
these sections on a case-by-case basis. We expect that, over time, the Commission will develop a body of
precedent that will prove instructive to manufacturers and consumers alike.
107.
Based on our analysis above, we reject the broad, unspecific requests made by several
commenters. CTIA, for example, requests that all mobile devices be exempted from these regulations
until such time as the market for video to mobile devices “becomes stable,” and in order to promote the
growth of the mobile video market.425 We decline to do so here, as the mobile marketplace is incredibly
diverse, and while the above assertion may be true for a particular device, it is unsupported with regard to
the entire mobile industry. TechAmerica requests that the Commission “exercise its waiver authority
freely,” and grant blanket waivers to smartphones “as their essential utility is to function as a


418 Any such requests should follow the procedures for an informal request for Commission action pursuant to
Section 1.41 of our rules and the requirements of Section 79.103(b)(3). 47 C.F.R. § 1.41, App. B § 79.103(b)(3).
419 See ACS Order, 26 FCC Rcd at 14607-14619, ¶¶ 119-148.
420 See infra Section IV.C (Display of Captions). For example, we can envision that in certain circumstances it may
not be achievable to implement variable opacity for captions or the caption background on specific devices, but it
would nevertheless be achievable to implement the ability to change the caption color and the font size over an
opaque or transparent background, depending on the specific capabilities and characteristics of a device’s screen and
processing power.
421 See 47 C.F.R. § 1.41 (Informal requests for Commission action); See supra ¶¶ 97-98.
422 47 U.S.C. § 303(u)(2)(C) (emphasis added).
423 See id.
424 House Committee Report at 30-31; Senate Committee Report at 14.
425 See CTIA Comments at 5-14.
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communications device,” and to consider similar treatment for tablets.426 We disagree, as TechAmerica’s
request conflates the primary purpose waiver standard for single-purpose devices with incidental video
capability and the essential utility standard, under which both communications and viewing video
programming may be purposes which comprise a device’s essential utility. Further, TechAmerica makes
a sweeping request, asking the Commission to view all smartphones equivalently, which as we discuss
above, does not comport with the fact-based, case-by-case approach we adopt. In addition,
TechAmerica’s request is in opposition to notable marketplace evidence that many mobile devices
already support captioning.427 TIA comments that the Commission should grant broad, categorical
waivers, in an effort to give manufacturers certainty, to “gaming consoles, cellular telephones, and
tablets.”428 Based on our reasoning above, we find that this request too is overbroad and lacks the facts
and circumstances necessary to grant a waiver. Nevertheless, we reiterate that these waivers are available
prospectively, for manufacturers seeking certainty prior to the sale of a device.429
108.
Display-Only Monitor Exemption. Section 203(a)(2)(B) states that “any apparatus or
class of apparatus that are display-only video monitors with no playback capability are exempt from the
requirements” to implement closed captioning. 430 We conclude this requirement is self-explanatory and
that in most instances the operation of this provision will be clear. Accordingly, we incorporate the
language of the statutory provision directly into our rules. Consumer Groups proposed that we define
display-only monitors as monitors that are dependent on another device subject to our closed captioning
rules.431 This proposed definition is too narrow, however, because it fails to account for display-only
monitors that work in conjunction with devices not subject to our closed captioning rules, such as
commercial video equipment.432 CEA suggested that devices that can accept “only a baseband or
uncompressed video stream,”433 such as many computer monitors, are appropriately classified as display-
only monitors.434 This definition is also too narrow, because a monitor could conceivably accept a
compressed video stream and still be considered a display-only monitor. We therefore decline to adopt
these qualifications. To the extent a manufacturer would like a Commission determination as to whether
its device qualifies for this exemption it may make such a request.435

C.

Display of Captions

109.
Section 203 of the CVAA requires that the Commission’s rules “provide performance
and display standards for such built-in decoder circuitry or capability designed to display closed captioned


426 TechAmerica Comments at 5-6.
427 See supra n. 410.
428 TIA Comments at 10.
429 See 47 C.F.R. § 1.41 (Informal requests for Commission action).
430 47 U.S.C. § 303(u)(2)(B).
431 Consumer Groups Comments at 46-47.
432 See supra Section IV.A (Apparatus Subject to Section 203 of the Act).
433 A “baseband signal” is defined as “transmission of a digital or analog signal at its original frequencies, i.e., a
signal in its original form, not changed by modulation.” See H. Newton, Newton’s Telecom Dictionary 101 (20th
ed. 2004). An “uncompressed signal” is a signal that has not been compressed. “Compression” is defined as “the
art and science of squeezing out unneeded information in a picture, or a stream of pictures (a movie) or sound before
sending or storing it.” See H. Newton, Newton’s Telecom Dictionary 199 (20th ed. 2004).
434 CEA Comments at 15-16.
435 A manufacturer may seek a Commission declaration that a monitor is exempt under this provision pursuant to
Section 1.41 of the Commission’s rules. See 47 C.F.R. § 1.41.
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video programming . . . .”436 We adopt functional requirements that will ensure that consumers’ online
captioning experience is equivalent to their television captioning experience.437 When the Commission
adopted the digital closed captioning standards, it noted the “substantial benefits for consumers” that are
provided when video programming apparatus support user options that enable closed caption displays to
be customized to suit the needs of individual viewers.438 For example, the Commission explained that
“the ability to alter colors, fonts, and sizes . . . can benefit a person with both a hearing disability and a
visual disability in a way not possible with the current analog captions.”439 After also noting the benefits
that adjustable caption sizes can afford younger children learning how to read,440 the Commission
concluded that “[o]nly by requiring decoders to respond to these various features can we ensure that
closed captioning will be accessible for the greatest number of persons who are deaf and hard of hearing,
and thereby achieve Congress’s vision that to the fullest extent made possible by technology, people who
are deaf and hard of hearing have equal access to the television medium.”441 More than a decade ago,
consumers urged the Commission to “ensure that the promised benefits of [DTV] actually accrue to
persons who are deaf, late deafened, hard of hearing or deaf-blind” and to create a “level viewing field”
through the adoption of the EIA-708 captioning standard.442 Most recently, the Consumer Groups
reiterated that the Commission should consider ways to ensure that caption users are able to benefit from
advanced technologies in designing our rules for apparatus to have captioning capability under Section
203.443
110.
To assist the Commission in interpreting this provision, Congress directed the VPAAC to
identify “performance requirement[s] for protocols, technical capabilities, and technical procedures
needed to permit content providers, content distributors, Internet service providers, software developers,
and device manufacturers to reliably encode, transport, receive, and render closed captions of video
programming . . . delivered using Internet protocol.”444 The VPAAC Report identifies the rules,
technologies, and procedures necessary to provide consumers with a captioning experience equivalent to
the experience provided when the content was aired on television using the CEA-608/708 standard.445
Specifically, the VPAAC identified four components that make up the television “caption experience,”
seven technical requirements necessary to implement that experience, and a list of optional best practices
that may be implemented to deliver the highest possible captioning experience.446


436 47 U.S.C. § 330(b)(2). We therefore disagree with CBS’s contention that there is no statutory basis for adopting
“quality” standards for online captioning.” CBS Reply at 16-17.
437 See VPAAC Report at App. B.
438 2000 DTV Closed Captioning Order, 15 FCC Rcd at 16793, ¶ 7.
439 Id. at 16794, ¶ 11. For example, the ability to change the font and both background and foreground colors can
make a difference in whether a person who is partially deaf and blind can access a video program. See also
Consumer Groups Dec. 15 Ex Parte Letter at 3-4.
440 2000 DTV Closed Captioning Order, 15 FCC Rcd at 16794, ¶ 12.
441 Id. at 16794, ¶ 13.
442 Reply Comments of Telecommunications for the Deaf, Inc., Closed Captioning Requirements for Digital
Television Receivers
, ET Docket No. 99-254 at 2-3 (filed Nov. 15, 1999).
443 See Consumer Groups Dec. 15 Ex Parte Letter at 4.
444 Pub. L. No. 111-260 § 201(e)(1)(B).
445 See VPAAC Report at 13. CEA-608 is the technical standard used for analog closed captioning, and CEA-708 is
technical standard for digital closed captioning. See App. B 47 C.F.R. §§ 79.101 (previously 47 C.F.R. § 15.119,
CEA-608), 79.102 (previously § 15.122, CEA-708) for the current captioning requirements, respectively.
446 See VPAAC Report at 13, 16, App. B.
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111.
The VPAAC identified the four components of the captioning “experience” as:
·
The presentation format of the captioning; e.g., within or on separate caption “windows,”
text that appears all at once (pop-on), text that scrolls up as new text appears (roll-up), or the
display of each new letter or word as it arrives (paint-on);
·
Semantically significant formatting, such as italics, colors, and underlining;
·
The timing of the presentation of caption text with respect to the video; and
·
The consumer’s ability to control the caption display, including the ability to turn it on and
off, and to select font sizes, styles, and colors, and background color and opacity.447
The VPAAC further identified specific technical requirements as necessary to implement the captioning
experience detailed in the VPAAC Report:
·
Support for displaying fonts in the full CEA-708 64-color palette and allowing users to
override the default font color with one of the eight standard caption colors.448
·
Support for users to vary character opacity between at least three settings, including opaque
(100% opacity) and semi-transparent (at 75% or 25% opacity);
·
Support for the various font types contained in CEA-708 as well as the ability for users to
assign fonts from the selection included with their device to each of these default fonts;
·
Support for displaying the caption background in the full CEA-708 64-color palette and
allowing users to override the default caption background color with one of the eight standard
colors, and support for users to vary the caption background opacity between at least four
settings, opaque (100% opacity), semi-transparent (at 75% or 25% opacity), and transparent
(0% opacity);
·
Support for character edge attributes including: none, raised, depressed, uniform, or drop
shadowed;
·
Support for displaying the caption window in the full CEA-708 64-color palette and allowing
users to override the default caption background window with one of the eight standard
colors, and support for users to vary the caption window opacity between at least four
settings, opaque (100% opacity), semi-transparent (at 75% or 25% opacity), and transparent
(0% opacity);
·
Support for selecting among multiple language tracks, where available, and a requirement
that simplified or reduced caption text be identified as such or as “easy reader” captions.
Additionally, the VPAAC Report states that video player tools must permit the user to preview setting
changes, remember settings between viewing sessions, and provide the ability to turn captions on and off
as easily as muting the audio or adjusting the volume.449
112.
The VPAAC Report represents the consensus view of a wide, diverse cross-section of the
industry and consumer interests.450 Therefore, their consensus approach to these issues provides a
compelling guide for our actions here. Specifically, based on the consensus view that online captioning


447 See VPAAC Report at 13.
448 The eight standard caption colors are: white, black, red, green, blue, yellow, magenta, and cyan. VPAAC Report
at 15.
449 See VPAAC Report at 16.
450 See VPAAC Members at http://vpaac.wikispaces.com/Members.
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must, at minimum, replicate the television experience, and absent any guidance in the statute or legislative
history,451 and absent any comment on the record indicating that some other goal should be used, we
adopt that goal as the Commission’s goal here.452 However, we find that we need not specifically
incorporate into our rules all four components of the captioning experience detailed in the VPAAC
Report. Instead, we find that all but one of the components is subsumed in the specific technical
requirements also set forth in the VPAAC Report. First, we find that the second and fourth components,
support for semantically significant formatting and control of caption appearance, are encompassed by
and expanded on by the seven technical requirements. Therefore, to avoid redundancy, we do not include
them in our rules. We find that it is inappropriate to include the third component of the experience,
addressing the timing of captions with video, here. We conclude that ensuring that timing data is properly
encoded and maintained through the captioning interchange and delivery system is an obligation of
Section 202 VPDs, and not of device manufacturers.453 Therefore, we incorporate into our rules the first
component of the caption experience, the presentation of captions on the screen, as a discrete rule in
addition to the seven technical requirements.454
113.
We believe that by incorporating the precise language of the VPAAC Report, we will
ensure that manufacturers will clearly understand their obligations regarding the features they are required
to implement and support. The NPRM proposed to incorporate into our rules these functionality
requirements in a slightly simplified form and without specifying the exact nature of the support for each
requirement.455 Some commenters advocate that we adopt rules that merely state that captioning should
be “functionally equivalent” to that on television.456 AT&T contends that the NPRM’s proposed rules
were too specific and should be more flexible.457 CEA, however, argues that a mandate of “at least the
same quality” as television would be ambiguous, preferring instead that the Commission adopt minimum
technical requirements that will help ensure functional equivalency, preserve flexibility, and provide
certainty to manufacturers.458 In the context of Section 203 of the CVAA, we are persuaded by CEA’s
argument and find that it is necessary to adopt a set of specific minimum functional requirements rather
than the simplified language of the NPRM. By doing so, we believe that we will make it easier for


451 See 47 U.S.C. § 330(b)(2).
452 See VPAAC Report at 13.
453 See supra Section III.A.3 (Quality of IP-Delivered Video Programming). The VPAAC Report expands on the
timing requirements, explaining, “all processing through the distribution chain, including transcoding, must provide
a timing experience that is equal to or an improvement to the timing of captions provided in the captioning shown on
television.” VPAAC Report at 14. We find that this direction from the VPAAC Report places no responsibility on
device manufacturers, and so we do not include any such requirement in our rules for devices.
454 We find it necessary to make a small change to the text regarding presentation of captions. As the VPAAC
Report describes the experience as requiring the use of one of the presentation styles, where no more than one style
is in use at a time, it delimits the list with an “or.” VPAAC Report at 13. However, manufacturers must support all
three styles in order to enable such choice, and therefore our rule delimits the list with an “and.” App. B 47 C.F.R. §
79.103(c)(1). See also AT&T Comments at 18.
455 See NPRM, 26 FCC Rcd at 13762-13763, ¶ 56.
456 See, e.g., APTS/PBS Reply at 9; Microsoft Comments at 13-16; AT&T Comments at 10-11; DiMA Comments at
10-11. APTS and PBS also list the challenges of replicating television captioning in online programming,
explaining that not all online video players currently include all features available for broadcast television, television
captions are more simple to implement than IP captions, it is substantially more challenging to bring uniform
functionality to the IP environment, and the timing of captions can be affected by variations in user’s broadband
speeds. See APTS/PBS Reply at 9-10.
457 See AT&T Comments at 18.
458 See CEA Comments at 4.
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manufacturers to determine how to comply with our rules as well as facilitate the ability of the
Commission to evaluate compliance in the event of a complaint. We agree with Consumer Groups that
the record contains no evidence that specifying what functions devices must implement will negatively
impact the ability of captions to be delivered to those devices.459 CTIA expresses concern that some
features will not be supportable on devices with limited screen sizes, low resolutions, or limited
processing.460 However, as discussed above, parties can seek relief for any features that they believe can
not be implemented.461

D.

Recording Devices

114.
In addition to devices that consumers use to directly view video programming, those that
record video programming must also have closed-captioning capability. Specifically, Section 203(b) of
the CVAA directs the Commission to “require that, if achievable . . ., apparatus designed to record video
programming transmitted simultaneously with sound, . . . [must] enable the rendering or the pass through
of closed captions . . . .”462 Commenters largely did not address recording devices, except to caution the
Commission against regulating the subcomponents of recording devices, rather than the devices
themselves.463 Therefore, we adopt the proposal in the NPRM to incorporate the statutory language of
Section 203(b) directly into our rules.464 Consistent with our discussion above, we expect identifying
apparatus designed to record to be straightforward.465 We note that when devices such as DVD, Blu-ray,
and other removable media recording devices are capable of recording video programming, they also
qualify as recording devices under Section 203(b) and therefore must enable viewers to activate and de-
activate the closed captions as video programming is played back.

E.

Interconnection Mechanisms

115.
Section 203(b) of the CVAA directs the Commission to require that “interconnection
mechanisms and standards for digital video source devices are available to carry from the source device to
the consumer equipment the information necessary to permit or render the display of closed captions and
to make encoded video description and emergency information audible.”466 The NPRM sought comment
on how to implement this provision.467 Based on the record at this time, we conclude that current
interconnection mechanisms satisfy the requirements of the CVAA, and clarify that the statute requires


459 See Consumer Groups Reply at 14; see also NCAM Comments at 2 (noting that, “baseline [performance
objectives] are essential for common user experiences and interoperability”).
460 See CTIA Comments at 19-20.
461 Section 203 requires manufacturers only to implement captioning to the extent that it is technically feasible.
Moreover, for small-screen devices, manufacturers need only include those features that are achievable. Finally,
pursuant to Section 202, VPDs may seek exemptions if complying with any of these requirements would be
economically burdensome. See supra Section III.C (Exemption Process).
462 47 U.S.C. § 303(z)(1).
463 See ITI Reply Comments at 7 (noting that DLNA should not be covered, though a PC which uses DLNA to
record content should be); CEA Reply Comments at 7 (suggesting the Commission adopt the statutory language
without modification into its rules).
464 See NPRM, 26 FCC Rcd at 13761-13762, ¶ 54.
465 See supra Section IV.A (Apparatus Subject to Section 203 of the Act).
466 47 U.S.C. § 303(z)(2). The portions of 303(z)(2) which deal with video description and emergency information
will be implemented separately by the Commission, 18 months after the submission of a separate VPAAC Report.
See Pub. Law No. 111-260, § 203(d)(2).
467 See NPRM, 26 FCC Rcd at 13761-13762, ¶ 54.
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manufacturers to implement closed captioning on every video output of a covered device.468 Thus, we
adopt a rule requiring that all video outputs of covered apparatus shall be capable of conveying from the
source device to the consumer equipment the information necessary to permit or render the display of
closed captions. As discussed below, we find that it is sufficient, for purposes of this provision, if the
video output of a digital source device renders the closed captioning in the source device. Accordingly,
we find that the manner in which the HDMI connection carries captions satisfies the statutory requirement
for interconnection mechanisms. At the same time, however, we note that other interconnection
mechanisms, such as MoCA and DLNA, currently support the pass-through of closed captions to
consumer display devices and we encourage this practice. Although we do not impose any additional
regulations on interconnection mechanisms at this time, we note that we are interpreting an ambiguous
statutory provision and, although we believe our interpretation is reasonable based on the record before
us, we may revisit the issue if we find that our decision, in practice, does not provide the benefits to
consumers that were intended by Congress.
116.
As the statute states, “interconnection mechanisms” carry information from source
devices to consumer equipment. Interconnection mechanisms consist of an output, a transmission path,
and an input. We generally refer to these mechanisms by their output standard or the cable or cord they
utilize, such as “coaxial cable,” “Ethernet,” or “HDMI.” In discussing how to implement this statutory
mandate, commenters predominantly focus on one particular digital output, the HDMI connector. HDMI
is the preeminent audio-video interconnection standard used by manufacturers to enable uncompressed
video signals to be carried from a source device (such as an MVPD set-top box) to consumer equipment
(such as a television).469 Industry commenters explain that with respect to the HDMI connector, “the
captions and video are decoded in the source device and carried as opened captions to the display, which
acts only as a monitor.”470 When captions are transmitted in an “open” manner, such as is the case with
HDMI, they are “rendered” by the source device, embedded (decoded and mixed) into the video stream,
then carried by the HDMI connector to the receiving device in a manner that does not allow the consumer
to access or utilize the captioning decoding and rendering functionality of the receiving device.471 When
captions are “closed,” they are transmitted as data alongside the video stream, and permit consumers to
access and utilize the captioning functionality of the receiving device. Set-top boxes with standard
definition analog outputs are generally capable of passing closed captions to consumer equipment for
decoding and display by that device. However, high-definition analog outputs and HDMI were not
developed with this capability, and as consumers increasingly transition to high-definition video sources
and digital interconnection, standard definition analog outputs are declining in use. As a result, if an
HDMI or high definition analog connection is being used, consumers must use their set-top box’s closed
captioning functionality rather than the functionality contained in their television or continue to watch
video programming in standard definition.
117.
The question is thus whether the manner in which the HDMI connector carries captions


468 See Letter from Julie M. Kearney, Consumer Electronics Association, to Marlene H. Dortch, Secretary, Federal
Communications Commission at 1-2 (Nov. 16, 2011) (requesting that the Commission clarify that interconnection
requirements apply to video-capable interconnections (including analog video, compressed digital video, and
uncompressed digital video interconnections), devices subject to Section 203 of the CVAA, and when the
interconnection is delivering video programming, and that the requirements apply to every output).
469 HDMI stands for “High Definition Multimedia Interface.” Over 2 billion HDMI equipped devices have been
deployed worldwide. See HDMI Licensing Reply at 2 see also http://www.hdmi.org/index.aspx.
470 See CEA Comments at 21 (emphasis added); HDMI Licensing Comments at 5 (explaining that the source device
renders the captions into open captions, which HDMI carries, to permit the display-only video monitor to display
captions).
471 Id.
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satisfies the statutory requirement. For the reasons stated below, we conclude that it does. We find the
CVAA’s requirement that interconnection mechanisms be “available to carry from the source device to
the consumer equipment the information necessary to permit or render the display of closed captions”472
to be ambiguous. The statute does not expressly address what is meant by information necessary to
“permit” the display of closed captions or information necessary to “render” the display of closed
captions.” In context, we interpret the language requiring carriage of information to “render” the display
of closed captions to require that the interconnection mechanism carry the requisite data to allow caption
functionality in the receiving device. In other words, the source device transmits captions in a closed
manner to the receiving equipment (e.g., a television set), which is capable of performing the rendering of
the captions for display.473 The use of the phrase “or permit” indicates an alternative means by which an
interconnection device may satisfy the statute. Read in context, we believe Congress intended to give the
term “permit” a different meaning than the term “render.” We thus interpret the alternative requirement
to “permit” the display of closed captions to mean that the interconnection mechanism may carry the
information necessary for the rendered captions to be displayed on the receiving device, without regard to
the receiving device’s caption functionality. We believe that our interpretation is reasonable because we
give effect to Congress’s use of the disjunctive “or,” and because our interpretation achieves the statutory
purpose of ensuring consumer access to closed captions. Based on this interpretation, we find that
rendering captions in the source device, then transmitting the captions in an open manner to the receiving
device, such as in the case of HDMI, satisfies the statute because caption text is viewable on the video
programming.474 Further, we conclude that the availability of closed captioning should not be limited to
particular outputs, as consumers should not be limited in their viewing of content due to the lack of closed
captioning support on a particular output.
118.
Although many consumers may prefer to use the closed captioning features of their
display devices, we believe there are other considerations, raised in the record, that support our reading of
the statute. The record shows that it may be impractical to require all interconnection mechanisms,
including HDMI, to pass-through the closed captions to receiving equipment given commenters’ concerns
about the time and expense associated with such a requirement.475 Our interpretation provides flexibility
for manufacturers and avoids unnecessary burdens, while at the same time we believe it fulfills the
statutory purpose of ensuring access to closed captions. Moreover, although we recognize that some
consumers have had frustrations with using the caption functionality in the source device, 476 as HDMI
Licensing notes, this is not an issue related to the HDMI interface, but rather caused by poor


472 47 U.S.C. § 303(z)(2) (emphasis added).
473 For example, MoCA and DLNA, two standards gaining increasing prominence in home networking, both support
the transmission of captioning in a closed manner today if manufacturers choose to implement those features.
MoCA permits the transmission of bidirectional communications over a home’s existing coaxial cables. See
Multimedia over Coax Alliance, http://www.mocalliance.org/. DLNA is a protocol suite providing a wide array of
functionality for networked consumer electronics devices. See Digital Living Network Alliance,
http://www.dlna.org/home. See also ITI Reply at 7-8; NCTA Comments at 27.
474 See, e.g., CEA Nov. 14 Ex Parte Letter at 3.
475 See HDMI Licensing Nov. 17 Ex Parte Letter; Letter from Julie M. Kearney, Consumer Electronics Association,
to Marlene H. Dortch, Secretary, FCC, Jan. 5, 2012.
476 Commenters argue that allowing the receiving device to act only as a monitor – as in the case of HDMI – is
problematic because television captioning functionality is oftentimes higher quality than set-top box functionality.
Additionally, some set-top boxes make the process for turning closed captioning on and off complex and unintuitive.
Further, allowing the receiving device to act only as a monitor, rather than rendering the closed captions in the
receiving devices, requires consumers to learn the menus and change the closed captioning settings on each device
providing video programming, rather than only in the receiving device. See, e.g., Letter of Dana Mulvaney to
Marlene H. Dortch, FCC (Dec. 20, 2011) at 2-3; Consumer Groups Comments at 48; Vickery Comments at 2.
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implementation in some set-top boxes.477 In this regard, we note that all apparatus, including set-top
boxes, are subject to the performance rules we adopt today.478 We also note that the CVAA contains
provisions to address the difficulty consumers face in enabling closed captioning on source devices.479
Together, technologies like HDMI Consumer Electronics Control (or CEC)480 and Commission
implementation of the statutory provision requiring that “built in access to . . . closed captioning [be
available through] a mechanism that is reasonably comparable to a button, key, or icon” may result in the
resolution of at least one source of consumer complaints.481 The record also shows that there are at least
two interconnection mechanisms currently available in the market that already support caption
functionality in receiving devices.482
119.
In reaching our conclusion, we also note that the problems some consumers discussed in
the record relating to HDMI may be ameliorated by the fact that all cable operator-provisioned HD set-top
boxes are currently required to include a connection capable of delivering recordable HD video and
closed captioning data in a closed manner.483 In addition, although we refrain from requiring pass-
through of closed captioning on HDMI, we recognize the widespread consumer reliance on HDMI and
therefore we encourage HDMI Licensing, the HDMI specification licensing agent, to include closed
captioning provisions in future versions.484


477 HDMI Licensing Reply at 3.
478 See supra Section IV.C (Display of Captions).
479 See Pub. L. No. 111-260, §§ 204 (User interfaces on digital apparatus), 205 (Access to video programming
guides and menus provided on navigation devices).
480 HDMI Licensing Nov. 17 Ex Parte Letter at 4.
481 See 47 U.S.C. § 303(aa)(3).
482 See supra n. 473 (describing MoCA and DLNA).
483 In 2010, the Commission adopted a rule that replaced the requirement that cable set-top boxes include an IEEE
1394, or Firewire, connector with a requirement that they include an Ethernet connector in order to make the tuning
functionality of the set-top box controllable by another device, and to make the outputted video programming
recordable. 47 C.F.R. § 76.604(b)(4)(ii)(B), which became effective August 8, 2011. In addition, by December 1,
2012, cable operators must include “a connection capable of delivering recordable high definition video and closed
captioning data in an industry standard format on all high definition set-top boxes, except unidirectional set-top
boxes without recording functionality, acquired by a cable operator for distribution to customers.” 47 C.F.R. §
76.604(b)(4)(iii)(B); see also Implementation of Section 304 of the Telecommunications Act of 1996; Commercial
Availability of Navigation Devices; Compatibility Between Cable Systems and Consumer Electronics Equipment;
Oceanic Time Warner Cable, A subsidiary of Time Warner Cable, Inc.; Oceanic Time Warner Cable, a division of
Time Warner Cable, Inc. Oceanic Kauai Cable System; Oceanic Time Warner Cable, a division of Time Warner
Cable, Inc. Oceanic Oahu Central Cable System; Cox Communications, Inc. Fairfax County, Virginia Cable
System; Cable One, Inc.’s Request for Waiver of Section 76.1204(a)(1) of the Commission’s Rules
, Third Report and
Order on Reconsideration, 25 FCC Rcd 14657 at 14680, ¶ 44 (2010).
484 See Letter of Natalie G. Roisman, HDMI Licensing, LLC, to Marlene H. Dortch, FCC at 2 (Dec. 1, 2011)
(“HDMI Licensing Dec. 1 Ex Parte Letter”). We recognize that HDMI was designed for a purpose other than
carrying encoded information. We also note, however, that HDMI has already been modified to provide a data
connection capable of transmitting encoded data between devices. See Frequently Asked Questions for HDMI 1.4,
http://www.hdmi.org/manufacturer/hdmi_1_4/hdmi_1_4_faq.aspx. In addition, HDMI Licensing acknowledges that
the HDMI standard could be updated to include this functionality within about three years. See HDMI Licensing
Dec. 1 Ex Parte Letter.
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F.

Changes to Television Rules and Movement of Device Rules to Part 79

120.
Section 203 of the CVAA replaces Section 303(u) of the Act,485 which originally gave the
Commission authority to require closed captioning on television receivers with a screen size 13 inches or
greater. Under the revised provision, our television closed captioning rules are no longer limited to
apparatus with screen sizes 13 inches or greater, though those with smaller screen sizes are required to
comply only if compliance is achievable.486 As proposed in the NPRM, we will revise our television
captioning rules accordingly.487 Additionally, as proposed in the NPRM, 488 we will relocate the closed
captioning device rules, Sections 15.119 and 15.122, and their associated incorporations by reference, into
Part 79 of the Commission’s rules, which will also list the obligations of owners, providers, and
distributors of video programming adopted pursuant to Section 202 of the CVAA.489

G.

Alternate Means of Compliance

121.
Section 203(e) of the CVAA provides that “an entity may meet the requirements of
Sections 303(u), 303(z), and 330(b) of the [Act] through alternate means than those prescribed by
regulations . . . if the requirements of those sections are met, as determined by the Commission.”490
Therefore, parties may meet all of the requirements we discuss in sections IV and V of this Report and
Order
, as well as our existing rules regarding television receivers and converter boxes, via alternate
means.491 Should an entity seek to use an “alternate means” to comply with the applicable requirements,
that entity may either (i) request a Commission determination that the proposed alternate means satisfies
the statutory requirements through a request pursuant to Section 1.41 of our rules;492 or (ii) claim in


485 47 U.S.C. § 303(u). Section 203(b) of the CVAA also adds a new Section 303(z) to address recording devices
and interconnection mechanisms. 47 U.S.C. § 303(z). Further, Section 203(c) of the CVAA revises Section 330(b)
to address Sections 303(u) and (z), to provide authority for performance and display standards, and to address video
description. 47 U.S.C. § 330(b).
486 The prior version of 47 U.S.C. § 303(u) read, “Require that apparatus designed to receive television pictures
broadcast simultaneously with sound be equipped with built-in decoder circuitry designed to display closed-
captioned television transmissions when such apparatus is manufactured in the United States or imported for use in
the United States, and its television picture screen is 13 inches or greater in size.” The “technical feasibility”
threshold requirement also now applies to all apparatus covered by the rule. See 47 U.S.C. § 303(u)(1).
487 See NPRM, 26 FCC Rcd at 13760, ¶ 52; see also 47 C.F.R. §§ 15.119, 15.122.
488 See NPRM, 26 FCC Rcd at 13764, ¶ 59.
489 Part 15 of the Commission’s rules requires devices to be authorized prior to the initiation of marketing, either
through the Verification process or through a Declaration of Conformity or Certification. See 47 C.F.R. §§ 15.101,
et seq. However, those rules are concerned only with the device’s performance as an unintentional radiator into the
radio-frequency spectrum. Since closed-captioning functionality exists separately from the RF receiving and tuning
functionality of a device, and new IP-based devices may not include receivers of the type Part 15 regulates, we find
it unnecessary to require a Declaration of Conformity or Certification regarding the closed-captioning functionality
of the devices we cover here, or to trigger certification or verification for a device solely because it includes closed-
captioning functionality. We therefore find it inappropriate to continue to house these rules in Part 15. Of course, to
the extent that a Section 203 device is otherwise covered by Part 15, that device must continue to comply with the
Commission's rules in Part 15.
490 Pub. L. No. 111-260 § 203(e).
491 See supra Section IV (Section 203 of the CVAA); infra Section V (Technical Standards for IP-Delivered Video
Programming). Video programming providers, distributors, and owners may comply with the requirements of
Section 202 of the CVAA via alternate means as pursuant to separate statutory authority as discussed in Section
III.D (De Minimis Failure to Comply and Alternate Means of Compliance), supra.
492 47 C.F.R. § 1.41 (Informal requests for Commission action).
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defense to a complaint or enforcement action that the Commission should determine that the party’s
actions were permissible alternate means of compliance. Rather than specify what may constitute a
permissible “alternate means,” we conclude that the best means of implementing this provision is to
address any specific requests from parties when they are presented to us.

H.

Deadlines for Compliance

122.
We conclude that two years is the appropriate amount of time to design and implement
the functionality required by Section 203 of the CVAA, as discussed in Section IV of this Report and
Order,
and to bring that functionality to market. The CVAA does not specify the time frame by which
the Section 203 requirements must become effective,493 but nearly all commenters who addressed the
issue support a two-year implementation period.494 As the Commission has repeatedly determined,
manufacturers generally require approximately two years to design, develop, test, manufacture, and make
available for sale new products.495 Accordingly, we establish a compliance date for covered devices of
January 1, 2014. We agree with Consumer Groups that incorporating captioning functionality later in the
design cycle of a feature-rich device may prove more difficult than implementing such functionality at the
commencement of design.496 Although the compliance deadline is two years away, consistent with the
ACS Order,497 beginning on the effective date of these regulations, i.e., 30 days after the date this Report
and Order
and rules are published in the Federal Register, we expect manufacturers to take accessibility
into consideration as early as possible during the design process for new and existing equipment and to
begin taking steps to bring closed captioning to consumers as required by our rules.

I.

Complaints

123.
Consistent with prior Commission practice and the Commission’s television and IP
closed captioning complaint rules,498 we adopt the following procedures for the filing of written
complaints alleging violations of the Commission’s rules requiring apparatus designed to receive, play
back, or record video programming to be equipped with built-in closed caption decoder circuitry or
capability designed to display closed-captions.499 Such complaints should include the following
information:500 (a) the name, postal address, and other contact information of the complainant, such as


493 Pub. L. No. 111-260 § 203(d).
494 See, e.g., AT&T Reply at 12; CEA Comments at 22-23; CEA Reply at 2; DIRECTV Comments at 12-14; DISH
Network Reply at 8; ESA Comments at 2; Microsoft Comments at 19; Verizon Comments at 6; Verizon Reply at 8-
9. DiMA requested six to twelve months from the latest deadline imposed on VPOs to attain compliance. See DiMA
Comments at 4.
495 In the order adopting closed captioning requirements for DTV receivers, the Commission made its rules effective
slightly less than 2 years after the order was adopted. 2000 DTV Closed Captioning Order, 15 FCC Rcd at 16808.
(The order was adopted on July 21, 2000, and released on July 31, 2000, and published in the Federal Register on
September 29, 2000. The rules became effective on July 1, 2002.) See also Television Decoder Circuitry Act of
1990
, Pub. L. No. 101-431, 104 Stat. 960 (1990) (codified at 47 U.S.C. §§ 303(u), 330(b)); 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), recon. granted in part, Memorandum Opinion and Order, 7 FCC Rcd 2279 (1992),
codified at 47 C.F.R. § 15.119 (The Decoder Act established deadlines for implementation requiring rules within
180 days (by April 1991) and implementation by July 1, 1993).
496 See Consumer Groups Comments at 40.
497 See ACS Order, 26 FCC Rcd at 14602, ¶ 108.
498 See 47 C.F.R. §§ 79.1(g) and App. B 79.4(e).
499 See infra App. B 47 C.F.R. §§ 79.101 – 79.104.
500 We recognize that some of the requested information may not be readily ascertained by consumers, such as the
contact information of the apparatus manufacturer. Accordingly, we provide that complaints should (but are not
(continued….)
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telephone number or e-mail address; (b) the name and contact information, such as postal address, of the
apparatus manufacturer or provider; (c) information sufficient to identify the software or device used to
view or to attempt to view video programming with closed captions; (d) the date or dates on which the
complainant purchased, acquired, or used, or tried to purchase, acquire, or use the apparatus to view
closed captioned video programming; (e) a statement of facts sufficient to show that the manufacturer or
provider has violated or is violating the Commission’s rules; (f) the specific relief or satisfaction sought
by the complainant; and (g) the complainant’s preferred format or method of response to the complaint.501
A written complaint filed with the Commission must be transmitted to the Consumer and Governmental
Affairs Bureau through the Commission’s online informal complaint filing system, U.S. Mail, overnight
delivery, or facsimile.502 The Commission may forward such complaints to the named manufacturer or
provider, as well as to any other entity that Commission staff determines may be involved, and may
request additional information from any relevant parties when, in the estimation of Commission staff,
such information is needed to investigate the complaint or adjudicate potential violations of Commission
rules. After the closed caption decoder rules adopted in this Report and Order become effective, the
Consumer and Governmental Affairs Bureau will release a consumer advisory with instructions on how to
file complaints in various formats, including via the Commission’s web site.503

V.

TECHNICAL STANDARDS FOR IP-DELIVERED VIDEO PROGRAMMING

124.
For the reasons set forth below, we adopt the Society of Motion Picture and Television
Engineers (“SMPTE”) Timed Text format (SMPTE ST 2052-1:2010: “Timed Text Format (SMPTE-TT)”
2010) (“SMPTE-TT”) as a safe harbor interchange and delivery format. Section 202 of the CVAA
requires that the Commission describe the responsibilities of video programming providers or distributors
and video programming owners.504 Section 203 of the CVAA requires that the Commission’s rules
“provide performance and display standards for such built-in decoder circuitry or capability designed to
display closed captioned video programming . . . .”505 We believe to best implement these statutory
provisions, it is necessary to establish a safe harbor standard. IP-delivered video programming currently
uses multiple closed captioning formats.506 In contrast, the Commission requires CEA-608 as the
technical standard for analog television closed captioning, and CEA-708 as the technical standard for
digital television closed captioning.507 As no such Commission requirement exists for IP closed
(Continued from previous page)


required to) include the specified information. The Commission will best be in a position to investigate complaints
that include the maximum information requested.
501 The complainant’s preferred format or method of response may be by letter, facsimile transmission, telephone
(voice/TRS/TTY), e-mail, or some other method that would best accommodate the complainant.
502 We clarify that, if a complainant calls the Commission for assistance in preparing a complaint (by calling either
1-888-CALL-FCC or 1-888-TELL-FCC (TTY)), and Commission staff documents the complaint in writing for the
consumer, that constitutes a written complaint.
503 The Commission further directs the Consumer and Governmental Affairs Bureau to revise the existing complaint
form for disability access complaints (Form 2000C) in accordance with this Report and Order, to facilitate the filing
of closed caption decoder complaints. Should the closed caption decoder rules adopted in this Report and Order
become effective before the revised Form 2000C is available to consumers, closed caption decoder complaints may
be filed in the interim by fax, mail, or e-mail.
504 See 47 U.S.C. § 613(c)(2)(D)(iv). See also supra Section III.A.2.
505 See 47 U.S.C. § 330(b)(2).
506 See VPAAC Report at 11-12.
507 See id. at 8-9. According to the VPAAC, 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.” See
id
. at 9. CEA-608 captions remain relevant because millions of households continue to use analog television
receivers that cannot decode CEA-708 captions. See id.
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captioning, parties must agree on both an interchange format, in which the VPO sends a caption file to the
VPD, and a delivery format, in which the VPD sends captions to an apparatus on which the end user
views video programming if captions are to be usable by the receiving party.
125.
The VPAAC proposed that the Commission require a single standard interchange format
so that video programming does not need to be re-captioned to comply with different standards.508 The
VPAAC proposed SMPTE-TT as the standard interchange format.509 For the delivery format, if a VPD is
not affiliated with the manufacturer of the device on which the consumer views video programming, the
VPAAC also recommended the use of SMPTE-TT.510 The VPAAC recommended using the SMPTE-TT
standard in each case because it “best meets all the requirements” established by the participants on the
VPAAC and because it “is already being employed in production environments to repurpose television
content for Internet use.”511 In the NPRM, contrary to the VPAAC’s proposal, the Commission proposed
not to adopt a specific interchange format, in an effort to foster technological innovation.512 The NPRM
additionally sought comment on whether the Commission should require a particular delivery format.513
In response, a number of commenters argue that the Commission should specify SMPTE-TT as the
mandatory interchange format.514 For both the interchange and delivery format, several commenters
propose various safe harbor approaches, under which use of SMPTE-TT as the interchange and/or
delivery format would be deemed compliant.515 Among the asserted benefits of adopting SMPTE-TT as a
safe harbor interchange format is that it would minimize the need for VPOs to author multiple standards
and potentially re-caption programming.516 Similarly, CEA argues that “where IP-delivered video content
is rendered by a consumer device using a standardized video player . . . a single minimum delivery format


508 See VPAAC Report at 17.
509 Id.
510 See id. at 27. The VPAAC Report separates delivery of content where parties are affiliated and unaffiliated.
Where parties are affiliated by contract or ownership, the VPAAC report determined that no standard-setting by the
Commission was advisable. Where delivery is between unaffiliated parties, creation of a relationship may be more
burdensome than adopting the recommendations of the Commission for exchanging captioning data.
511 Id. at 26.
512 See NPRM, 26 FCC Rcd at 13755, ¶ 40.
513 See id. at 13763, ¶ 57.
514 See, e.g., NAB Comments at 30-31; NCAM Comments at 3; NCTA Comments at 6; Rovi Comments at 6-8
(supporting the adoption of SMPTE-TT as the interchange format, but against the adoption of SMPTE-TT as the
delivery format); Starz Comments at 5; APTS/PBS Reply at 11; CBS Reply at 11-14; Reply Comments of Harris
Corporation at 1-6 (“Harris Reply”); NAB Reply at 24-29; State Associations Reply at 3-5. But see Google
Comments at 4-6 (opposing the mandatory use of SMPTE-TT); DIRECTV Reply at 8-9 (expressing concerns about
the lack of a recommended practice for converting CEA-708 captions for IP delivery using SMPTE-TT).
515 See, e.g., CEA Comments at i, 5-7; MPAA Comments at 2-3, 10-11 (proposing that the Commission adopt
SMPTE-TT as a baseline interchange format); NCAM Comments at 3 (supporting SMPTE-TT as a baseline
technical standard); AT&T Reply at 11-12; CEA Reply at 3-4; DIRECTV Reply at 8; DISH Network Reply at 6-7;
MPAA Reply at 8-9; CEA Nov. 4 Ex Parte Letter at 2-3; see also MPAA Comments at 10-11 (“While parties may
mutually agree to use other formats, if negotiations reach an impasse, the parties should be permitted to fall back on
SMPTE-TT as the default.”); CEA Nov. 14 Ex Parte Letter at 2. But see Google Reply at 2 (disagreeing with the
safe harbor approach, and arguing that web standards and consumer requirements are evolving rapidly). Some
commenters also indicate their support for a safe harbor for use of SMPTE-TT as the interchange format if the
Commission does not adopt it as the approved interchange standard. See, e.g., NAB Comments at 31; NCTA
Comments at 12; APTS/PBS Reply at 10-11; CBS Reply at 11, 13-14; Harris Reply at 5-6; State Associations Reply
at 5.
516 See, e.g., CEA Comments at 7-8.
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ensures that a manufacturer of such apparatus can readily support and render IP captions.”517 Further,
unlike adopting SMPTE-TT as the mandatory interchange or delivery format, commenters explain that a
safe harbor approach would balance goals of efficiency, certainty, and consumer access with needed
flexibility to continue to innovate.518
126.
Although some commenters advocate that we not specify an interchange or delivery
format,519 a large number of commenters from all segments of the industry argue that the complete
absence of a standard would hinder the deployment of IP closed captioning because parties would lack
certainty as to what is expected. In addition to the VPAAC’s endorsement of the SMPTE-TT standard,
many commenters confirm the benefits of SMPTE-TT, and the industry does not seem to have coalesced
around any other standard in such a manner.520 We find that the safe harbor approach for use of SMPTE-
TT as the interchange and delivery standard, as numerous commenters propose, would provide certainty
while enabling the industry to continue to innovate and permitting parties to agree to use an alternative
standard. To use a different standard, parties would not need to first request Commission approval. We
note, however, where use of an alternate standard results in noncompliant captions, both parties may be
held responsible for violation of our rules. The flexibility in such a safe harbor approach will address
many of the concerns expressed by parties against the adoption of a particular standard, because the
parties will retain the option of using an alternative standard if that standard better meets their needs and
achieves the required result. For all of the above reasons, we adopt SMPTE-TT as a safe harbor
interchange and delivery format. Thus, we will provide in our rules that if a VPO provides captions to a
VPD using the SMPTE-TT format, then the VPO has fulfilled its obligation to deliver captions to the
VPD in an acceptable format. We will also provide in our rules that devices that implement SMPTE-TT
will be deemed in compliance with our rules, while simultaneously allowing devices to achieve the same
functionality without implementing that standard.521 We intend to monitor the marketplace and, to the
extent that additional open standards from recognized industry standard-setting organizations appear


517 Id. at 8 (footnote omitted).
518 See, e.g., CEA Comments at 7-9; CEA Reply at 4; DIRECTV Reply at 9; DISH Network Reply at 7. We note
that some commenters propose a variation on the safe harbor approach, under which the Commission would deem
compliant the use of a standard adopted in an open process by a recognized industry standard-setting organization,
without specifying the format. See, e.g., DiMA Comments at 7-8, 11; Google Comments at 3; Microsoft Comments
at 16-17; TIA Comments at 14; Verizon Comments at 7-8; ITI Reply at 4; Microsoft Reply at 4-5; RIM Reply at 7;
TWC Reply at 3, 15 (supporting “a safe harbor for entities that rely on SMPTE-TT or a comparable industry
standard”). TWC proposes another alternate approach to the interchange format, by which the Commission would
specify functions that captions must support rather than specifying standards. See TWC Reply at 14. At this time,
we decline to adopt any of the proposed alternative approaches, as we find that the adoption of SMPTE-TT as a safe
harbor interchange and delivery format best provides the industry with both clarity and flexibility.
519 See, e.g., Consumer Groups Comments at 31; Google Comments at 4-6; Reply Comments of the Coalition of
Organizations for Accessible Technology at 2 (“COAT Reply”); Google Reply at 1-3; Reply Comments of the
World Wide Web Consortium at 3 (“W3C Reply”). But see Harris Reply at 5 (“First, interested parties always have
the opportunity to engage in the SMPTE standards process to modify the SMPTE-TT standard as needed. Second, if
video content and video distribution providers agree they would like to use an interchange format other than
SMPTE-TT they can either [p]etition the Commission to amend the existing rules, or request a [w]aiver of the
Commission’s rules.”).
520 See supra n. 515.
521 When implementing SMPTE-TT as a means of being deemed in compliance with the requirements for captioning
functionality, we expect manufacturers will look to the practices of the industry, especially when standardized or
adopted by an industry body, such as the recommended practice for conversion of CEA-608 data to SMPTE-TT to
determine the reasonable extent to which features must be supported. See Society of Motion Picture Television
Engineers recommended practice “Conversion from CEA-608 Data to SMPTE-TT,” RP 2052-10-2010 (2010). We
expect a similar recommended practice regarding the conversion of CEA-708 data to SMPTE-TT to be developed.
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appropriate, we will consider incorporating those standards into our rules as additional safe harbors.

VI.

PROCEDURAL MATTERS

A.

Final Regulatory Flexibility Analysis

127.
As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”),522 the
Commission has prepared a Final Regulatory Flexibility Analysis (“FRFA”) relating to this Report and
Order
in MB Docket No. 11-154. The FRFA is set forth in Appendix C.

B.

Final Paperwork Reduction Act of 1995 Analysis

128.
We analyzed this Report and Order with respect to the Paperwork Reduction Act of 1995
(“PRA”)523 and it contains modified information collection requirements.524 It will be submitted to the
Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA.525 The
Commission, as part of its continuing effort to reduce paperwork burdens, invites OMB, the general
public, and other interested parties to comment on the information collection requirements contained in
this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of
2002,526 we previously sought specific comment on how the Commission might further reduce the
information collection burden for small business concerns with fewer than 25 employees.527

C.

Congressional Review Act

129.
The Commission will send a copy of this Report and Order in MB Docket No. 11-154 in
a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional
Review Act, see 5 U.S.C. § 801(a)(1)(A).

D.

Additional Information

130.
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

131.
Accordingly,

IT IS ORDERED

that, pursuant to the Twenty-First Century
Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751, and the
authority found in Sections 4(i), 4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as


522 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”).
523 The Paperwork Reduction Act of 1995 (“PRA”), Pub. L. No. 104-13, 109 Stat. 163 (1995) (codified in Chapter
35 of title 44 U.S.C.).
524 Information collections include the mechanism used to keep VPDs informed about video programming that must
be captioned when delivered using IP; making VPD contact information available for the receipt and handling of
written closed captioning complaints; petitions for exemption based on economic burden; requests for Commission
determinations of technical feasibility and achievability; requests for purpose-based waivers; and the filing and
processing of written complaints alleging violations of the Commission’s rules.
525 44 U.S.C. § 3507(d).
526 The Small Business Paperwork Relief Act of 2002 (“SBPRA”), Pub. L. No. 107-198, 116 Stat. 729 (2002)
(codified in Chapter 35 of title 44 U.S.C.); see 44 U.S.C. § 3506(c)(4).
527 NPRM, 26 FCC Rcd at 13765, ¶ 63.
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amended, 47 U.S.C. §§ 154(i), 154(j), 303, 330(b), 613, and 617, this Report and Order

IS ADOPTED

,
effective thirty (30) days after the date of publication in the Federal Register, except for Sections
79.4(c)(1)(ii), 79.4(c)(2)(ii)-(iii), 79.4(d)(1)-(4) and (6)-(9), 79.4(e)(1)-(6), and 79.103(b)(3)-(4), which
shall become effective upon announcement in the Federal Register of OMB approval and an effective
date of the rule(s).
132.

IT IS ORDERED

that, pursuant to the Twenty-First Century Communications and
Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751, and the authority found in Sections
4(i), 4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. §§
154(i), 154(j), 303, 330(b), 613, and 617, the Commission’s rules

ARE HEREBY AMENDED

as set
forth in Appendix B.
133.

IT IS FURTHER ORDERED

that we delegate authority to the Media Bureau and the
Consumer and Governmental Affairs Bureau to consider all requests for declaratory rulings pursuant to
Section 1.2 of the Commission’s rules. 47 C.F.R. § 1.2, all waiver requests, and all informal requests for
Commission action pursuant to Section 1.41 of the Commission’s rules, 47 C.F.R. § 1.41, filed under
these rules and pursuant to Sections 202(b) and 203 of the CVAA.
134.

IT IS FURTHER ORDERED

that the Commission’s Consumer and Governmental
Affairs Bureau, Reference Information Center,

SHALL SEND

a copy of this Report and Order in MB
Docket No. 11-154, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
135.

IT IS FURTHER ORDERED

that the Commission

SHALL SEND

a copy of this
Report and Order in MB Docket No. 11-154 in a report to be sent to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. § 801(a)(1)(A).
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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APPENDIX A

List of Commenters

Comments filed in MB Docket No. 11-154

American Cable Association (“ACA”)
AT&T
Collaborative for Communication Access via Captioning (“CCAC”)
Consumer Electronics Association (“CEA”)
Consumer Groups (Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI); National
Association of the Deaf (NAD); Deaf and Hard of Hearing Consumer Advocacy Network
(DHHCAN); Association of Late-Deafened Adults (ALDA); Hearing Loss Association of
America (HLAA); Communication Services for the Deaf (CSD); Cerebral Palsy and Deaf
Organization (CPADO); Technology Access Program at Gallaudet University (TAP); and IT-
RERC at Trace Center, University of Wisconsin-Madison)
CTIA-The Wireless Association (“CTIA”)
Digital Media Association (“DiMA”)
DIRECTV, Inc.
Entertainment Software Association (“ESA”)
Eternal World Television Network, Inc. (“EWTN”)
Google Inc.
HDMI Licensing, LLC
Independent Telephone & Telecommunications Alliance (“ITTA”)
Media Access Australia (“MAA”)
Microsoft Corporation
Motion Picture Association of America, Inc. (“MPAA”)
National Association of Broadcasters (“NAB”)
National Cable & Telecommunications Association (“NCTA”)
National Center for Accessible Media at WGBH (“NCAM”)
National Court Reporters Association (“NCRA”)
Rovi Corporation
Starz Entertainment, LLC
TechAmerica
Telecommunications Industry Association (“TIA”)
TVGuardian, LLC
Verizon and Verizon Wireless (“Verizon”)
Ronald H. Vickery (“Vickery”)

Reply Comments filed in MB Docket No. 11-154

American Cable Association (“ACA”)
Association of Public Television Stations and the Public Broadcasting Service (“APTS/PBS”)
AT&T
CBS Corporation
Coalition of Organizations for Accessible Technology (“COAT”)
Consumer Electronics Association (“CEA”)
Consumer Groups (Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI); National
Association of the Deaf (NAD); Deaf and Hard of Hearing Consumer Advocacy Network
(DHHCAN); Association of Late-Deafened Adults (ALDA); Hearing Loss Association of
America (HLAA); Communication Services for the Deaf (CSD); Cerebral Palsy and Deaf
Organization (CPADO); American Association of People with Disabilities (AAPD); Technology
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Access Program at Gallaudet University (TAP); and IT-RERC at Trace Center, University of
Wisconsin-Madison)
Content Interests
CTIA-The Wireless Association (“CTIA”)
DIRECTV, Inc.
DISH Network L.L.C.
dotSUB
Google Inc.
Harris Corporation
HDMI Licensing, LLC
Information Technology Industry Council (“ITI”)
Microsoft Corporation
Motion Picture Association of America, Inc. (“MPAA”)
Named State Broadcasters Associations (“State Associations”)
National Association of Broadcasters (“NAB”)
National Cable & Telecommunications Association (“NCTA”)
Public Knowledge (“PK”)
Research in Motion Ltd. (“RIM”)
Rovi Corporation
Time Warner Cable Inc. (“TWC”)
Time Warner Inc. (“Time Warner”)
TVGuardian, LLC
Verizon and Verizon Wireless (“Verizon”)
Ronald H. Vickery (“Vickery”)
World Wide Web Consortium (“W3C”)
In addition, individual consumers filed comments in this proceeding.
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APPENDIX B

Final Rules

The Federal Communications Commission amends Parts 15 and 79 of Title 47 of the Code of Federal
Regulations (CFR) as follows:
PART 15 – Radio Frequency Devices
1.
Amend § 15.38 to remove and reserve § 15.38(b)(10).
§ 15.38 Incorporation by reference
* * * * *
(b) * * *
(10) [reserved]
* * * * *
2.
Redesignate and amend §15.119 as § 79.101.
§ 15.119 [Reserved] This section now located at § 79.101.
3.
Redesignate and amend § 15.122 as § 79.102.
§ 15.122 [Reserved] This section now located at § 79.102.
PART 79 – Closed Captioning and Video Description of Video Programming.
4.
Amend the authority citation for Part 79 to read as follows:
AUTHORITY: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 330, 544a, 613, 617.
5.
Amend § 79.1 as follows:
§ 79.1 Closed captioning of video programming.
(a) * * *
(4) Closed captioning. The visual display of the audio portion of video programming pursuant to the
technical specifications set forth in this part.
* * * * *
(c) Obligation to pass through captions of already captioned programs. All video programming
distributors shall deliver all programming received from the video programming owner or other
origination source containing closed captioning to receiving television households with the original
closed captioning data intact in a format that can be recovered and displayed by decoders meeting the
standards of this part unless such programming is recaptioned or the captions are reformatted by the
programming distributor.
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* * * * *
6.
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 appears on television and is distributed to
end users, substantially in its entirety, via Internet protocol, excluding video clips or outtakes.
(3) Video programming distributor or video programming provider. Any person or entity that makes
available directly to the end user video programming through a distribution method that uses Internet
protocol.
(4) Video programming owner. Any person or entity that either:
(i) licenses the video programming to a video programming distributor or provider that makes the video
programming available directly to the end user through a distribution method that uses Internet protocol;
or
(ii) acts as the video programming distributor or provider, and also possesses the right to license the video
programming to a video programming distributor or provider that makes the video programming available
directly to the end user through a distribution method that uses Internet protocol.
(5) Internet protocol. Includes Transmission Control Protocol and a successor protocol or technology to
Internet protocol.
(6) Closed captioning. The visual display of the audio portion of video programming pursuant to the
technical specifications set forth in this part.
(7) Live programming. Video programming that is shown on television substantially simultaneously with
its performance.
(8) Near-live programming. Video programming that is performed and recorded less than 24 hours prior
to the time it was first aired on television.
(9) Prerecorded programming. Video programming that is not “live” or “near-live.”
(10) Edited for Internet distribution. Video programming for which the television version is substantially
edited prior to its Internet distribution.
(11) Consumer-generated media. Content created and made available by consumers to online websites
and services on the Internet, including video, audio, and multimedia content.
(12) Video clips. Excerpts of full-length video programming.
(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 (d) of this
section and, accordingly, is subject to closed captioning requirements set forth in this section.
(b) Requirements for closed captioning of Internet protocol-delivered video programming. All
nonexempt full-length video programming delivered using Internet protocol must be provided with closed
captions if the programming is published or exhibited on television in the United States with captions on
or after the following dates:
(1) [insert date six months after Federal Register publication], for all prerecorded programming that is not
edited for Internet distribution, unless it is subject to paragraph (b)(4) below.
(2) [insert date 12 months after Federal Register publication], for all live and near-live programming,
unless it is subject to paragraph (b)(4) below.
(3) [insert date 18 months after Federal Register publication], for all prerecorded programming that is
edited for Internet distribution, unless it is subject to paragraph (b)(4) below.
(4) All programming that is already in the video programming distributor’s or provider’s library before it
is shown on television with captions must be captioned within 45 days after the date it is shown on
television with captions on or after [insert date two years after Federal Register publication] and before
[insert date three years after Federal Register publication]. Such programming must be captioned within
30 days after the date it is shown on television with captions on or after [insert date three years after
Federal Register publication] and before [insert date four years after Federal Register publication]. Such
programming must be captioned within 15 days after the date it is shown on television with captions on or
after [insert date four years after Federal Register publication].
(c) Obligations of video programming owners, distributors and providers.
(1) Obligations of video programming owners. Each video programming owner must:
(i) Send program files to video programming distributors and providers with captions as required by this
section, with at least the same quality as the television captions provided for the same programming. If a
video programming owner provides captions to a video programming distributor or provider using the
Society of Motion Picture and Television Engineers Timed Text format (SMPTE ST 2052-1:2010:
“Timed Text Format (SMPTE-TT)” 2010) (incorporated by reference, see § 79.100), then the VPO has
fulfilled its obligation to deliver captions to the video programming distributor or provider in an
acceptable format. A video programming owner and a video programming distributor or provider may
agree upon an alternative technical format for the delivery of captions to the video programming
distributor or provider.
(ii) With each video programming distributor and provider that such owner licenses to distribute video
programming directly to the end user through a distribution method that uses Internet protocol, agree
upon a mechanism to inform such distributors and providers on an ongoing basis whether video
programming is subject to the requirements of this section.
(2) Obligations of video programming distributors and providers. Each video programming distributor
and provider must:
(i) Enable the rendering or pass through of all required captions to the end user, maintaining the quality of
the captions provided by the video programming owner and transmitting captions in a format reasonably
designed to reach the end user in that quality. A video programming distributor or provider that provides
applications, plug-ins, or devices in order to deliver video programming must comply with the
requirements of Section 79.103(c)-(d).
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(ii) With each video programming owner from which such distributor or provider licenses video
programming for distribution directly to the end user through a distribution method that uses Internet
protocol, agree upon a mechanism to inform such distributor or provider on an ongoing basis whether
video programming is subject to the requirements of this section, and make a good faith effort to identify
video programming subject to the requirements of this section using the agreed upon mechanism. A
video programming distributor or provider may rely in good faith on a certification by a video
programming owner that the video programming need not be captioned if:
(A) The certification includes a clear and concise explanation of why captioning is not required; and
(B) The video programming distributor or provider is able to produce the certification to the Commission
in the event of a complaint.
(iii) Make contact information available to end users for the receipt and handling of written closed
captioning complaints alleging violations of this section. The contact information required for written
complaints shall include the name of a person with primary responsibility for Internet protocol captioning
issues and who can ensure compliance with these rules. In addition, this contact information shall include
the person’s title or office, telephone number, fax number, postal mailing address, and e-mail address.
Video programming distributors and providers shall keep this information current and update it within 10
business days of any change.
(3) A video programming provider’s or owner’s de minimis failure to comply with this section shall not
be treated as a violation of the requirements.
(d) Procedures for exemptions based on economic burden.
(1) A video programming provider or owner may petition the Commission for a full or partial exemption
from the closed captioning requirements of this section, which the Commission may grant upon a finding
that the requirements would be economically burdensome.
(2) The petitioner must support a petition for exemption with sufficient evidence to demonstrate that
compliance with the requirements for closed captioning of video programming delivered via Internet
protocol would be economically burdensome. The term “economically burdensome” means imposing
significant difficulty or expense. The Commission will consider the following factors when determining
whether the requirements for closed captioning of Internet 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.
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(4) The petitioner must electronically file its petition for exemption, and all subsequent pleadings related
to the petition, in accordance with § 0.401(a)(1)(iii) of this chapter.
(5) The Commission will place the petition on public notice.
(6) Any interested person may electronically file comments or oppositions to the petition within 30 days
after release of the public notice of the petition. Within 20 days after the close of the period for filing
comments or oppositions, the petitioner may reply to any comments or oppositions filed.
(7) Persons who file comments or oppositions to the petition must serve the petitioner with copies of
those comments or oppositions and must include a certification that the petitioner was served with a copy.
Any petitioner filing a reply to comments or oppositions must serve the commenting or opposing party
with a copy of the reply and shall include a certification that the party was served with a copy. Comments
or oppositions and replies shall be served upon a party, its attorney, or its other duly constituted agent by
delivering or mailing a copy to the party’s last known address in accordance with § 1.47 of this chapter or
by sending a copy to the e-mail address last provided by the party, its attorney, or other duly constituted
agent.
(8) Upon a finding of good cause, the Commission may lengthen or shorten any comment period and
waive or establish other procedural requirements.
(9) Persons filing petitions and responsive pleadings must include a detailed, full showing, supported by
affidavit, of any facts or considerations relied on.
(10) The Commission may deny or approve, in whole or in part, a petition for an economic burden
exemption from the closed captioning requirements of this section.
(11) During the pendency of an economic burden determination, the Commission will consider the video
programming subject to the request for exemption as exempt from the requirements of this section.
(e) Complaint procedures.
(1) Complaints concerning an alleged violation of the closed captioning requirements of this section shall
be filed in writing with the Commission or with the video programming distributor or provider
responsible for enabling the rendering or pass through of the closed captions for the video programming
within sixty (60) days after the date the complainant experienced a problem with captioning. A complaint
filed with the Commission must be directed to the Consumer and Governmental Affairs Bureau and
submitted through the Commission’s online informal complaint filing system, U.S. Mail, overnight
delivery, or facsimile.
(2) A complaint should include the following information:
(i) The name, postal address, and other contact information of the complainant, such as telephone number
or e-mail address;
(ii) The name and postal address, website, or e-mail address of the video programming distributor,
provider, and/or owner against which the complaint is alleged, and information sufficient to identify the
video programming involved;
(iii) Information sufficient to identify the software or device used to view the program;
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(iv) A statement of facts sufficient to show that the video programming distributor, provider, and/or
owner has violated or is violating the Commission’s rules, and the date and time of the alleged violation;
(v) The specific relief or satisfaction sought by the complainant; and
(vi) The complainant’s preferred format or method of response to the complaint (such as letter, facsimile
transmission, telephone (voice/TRS/TTY), e-mail, or some other method that would best accommodate
the complainant).
(3) If a complaint is filed first with the Commission, the Commission will forward complaints satisfying
the above requirements to the named video programming distributor, provider, and/or owner, as well as to
any other video programming distributor, provider, and/or owner that Commission staff determines may
be involved. The video programming distributor, provider, and/or owner must respond in writing to the
Commission and the complainant within 30 days after receipt of the complaint from the Commission.
(4) If a complaint is filed first with the video programming distributor or provider, the video
programming distributor or provider must respond in writing to the complainant within thirty (30) days
after receipt of a closed captioning complaint. If a video programming distributor or provider fails to
respond to the complainant within thirty (30) days, or the response does not satisfy the consumer, the
complainant may file the complaint with the Commission within thirty (30) days after the time allotted for
the video programming distributor or provider to respond. If a consumer re-files the complaint with the
Commission (after filing with the distributor or provider) and the complaint satisfies the above
requirements, the Commission will forward the complaint to the named video programming distributor or
provider, as well as to any other video programming distributor, provider, and/or owner that Commission
staff determines may be involved. The video programming distributor, provider, and/or owner must then
respond in writing to the Commission and the complainant within 30 days after receipt of the complaint
from the Commission.
(5) In response to a complaint, video programming distributors, providers, and/or owners shall file with
the Commission sufficient records and documentation to prove that the responding entity was (and
remains) in compliance with the Commission’s rules. Conclusory or insufficiently supported assertions
of compliance will not carry a video programming distributor’s, provider’s, or owner’s burden of proof.
If the responding entity admits that it was not or is not in compliance with the Commission’s rules, it shall
file with the Commission sufficient records and documentation to explain the reasons for its
noncompliance, show what remedial steps it has taken or will take, and show why such steps have been or
will be sufficient to remediate the problem.
(6) The Commission will review all relevant information provided by the complainant and the subject
video programming distributors, providers, and/or owners, as well as any additional information the
Commission deems relevant from its files or public sources. The Commission may request additional
information from any relevant entities when, in the estimation of Commission staff, such information is
needed to investigate the complaint or adjudicate potential violation(s) of Commission rules. When the
Commission requests additional information, parties to which such requests are addressed must provide
the requested information in the manner and within the time period the Commission specifies.
(7) If the Commission finds that a video programming distributor, provider, or owner has violated the
closed captioning requirements of this section, it may employ the full range of sanctions and remedies
available under the Communications Act of 1934, as amended, against any or all of the violators.
(f) Private rights of action prohibited. Nothing in this section shall be construed to authorize any private
right of action to enforce any requirement of this section. The Commission shall have exclusive
jurisdiction with respect to any complaint under this section.
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7.
Add § 79.100 to read as follows:
§ 79.100 Incorporation by reference.
(a) The materials listed in this section are incorporated by reference in this part. These incorporations by
reference were approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. These materials are incorporated as they exist on the date of the approval, and notice of any
change in these materials will be published in the Federal Register. The materials are available for
purchase at the corresponding addresses as noted, and all are available for inspection at the Federal
Communications Commission, 445 12th St., SW., Reference Information Center, Room CY–A257,
Washington, DC 20554, (202) 418–0270, and at the National Archives and Records Administration
(NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
(b) The following materials are available for purchase from Global Engineering Documents, 15 Inverness
Way East, Englewood, CO 80112, (800) 854–7179, or at http://global.ihs.com: EIA–708–B: “Digital
Television (DTV) Closed Captioning,” 1999, IBR approved for §79.102.
(c) The following materials are available from the Society of Motion Picture & Television Engineers
(SMPTE), 3 Barker Ave., 5th Floor, White Plains, NY 10601, or at the SMPTE website:
http://www.smpte.org/standards/: SMPTE ST 2052-1:2010: “Timed Text Format (SMPTE-TT)” 2010,
IBR approved for §§ 79.4 and 79.103.
8.
Redesignate and amend § 15.119 as follows:
§ 79.101 Closed caption decoder requirements for analog television receivers.
(a)(1) Effective July 1, 1993, all television broadcast receivers with picture screens 33 cm (13 in) or larger
in diameter shipped in interstate commerce, manufactured, assembled, or imported from any foreign
country into the United States shall comply with the provisions of this section.
Note: This paragraph places no restriction on the shipping or sale of television receivers that were
manufactured before July 1, 1993.
(2) Effective January 1, 2014, all television broadcast receivers shipped in interstate commerce,
manufactured, assembled, or imported from any foreign country into the United States shall comply with
the provisions of this section, if technically feasible, except that television broadcast receivers that use a
picture screen less than 13 inches in size must comply with the provisions of this section only if doing so
is achievable pursuant to § 79.103(b)(3).
* * * * *
(m) Labeling and consumer information requirements. The box or other package in which the individual
television receiver is to be marketed shall carry a statement in a prominent location, visible to the buyer
before purchase, which reads as follows:
This television receiver provides display of television closed captioning in accordance with FCC rules.
* * * * *
9.
Redesignate and amend § 15.122 as follows:
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§ 79.102 Closed caption decoder requirements for digital television receivers and converter boxes.
(a)(1) * * *
(3) Effective January 1, 2014, all digital television receivers and all separately sold DTV tuners shipped in
interstate commerce or manufactured in the United States shall comply with the provisions of this section,
if technically feasible, except that digital television receivers that use a picture screens less than 13 inches
in size must comply with the provisions of this section only if doing so is achievable pursuant to §
79.103(b)(3).
(b) Digital television receivers and tuners must be capable of decoding closed captioning information that
is delivered pursuant to EIA–708–B: “Digital Television (DTV) Closed Captioning” (incorporated by
reference, see §79.100).
* * * * *
10.
Add § 79.103 to read as follows:
§ 79.103 Closed caption decoder requirements for all apparatus.
(a) Effective January 1, 2014, all digital apparatus designed to receive or play back video programming
transmitted simultaneously with sound, if such apparatus is manufactured in the United States or imported
for use in the United States and uses a picture screen of any size must be equipped with built-in closed
caption decoder circuitry or capability designed to display closed-captioned video programming pursuant
to the provisions of this section, if technically feasible, except that apparatus that use a picture screen less
than 13 inches in size must comply with the provisions of this section only if doing so is achievable as
defined in this section.
Note to paragraph (a): Apparatus includes the physical device and the video players that manufacturers
install into the devices they manufacture before sale, whether in the form of hardware, software, or a
combination of both, as well as any video players that manufacturers direct consumers to install after sale.
(b) Exempt apparatus. (1) Display-only monitors. Apparatus or class of apparatus that are display-only
video monitors with no playback capability are not required to comply with the provisions of this section.
(2) Professional or commercial equipment. Apparatus or class of apparatus that are professional or
commercial equipment not typically used by the public are not required to comply with the provisions of
this section.
(3)(i) Achievable. Manufacturers of apparatus that use a picture screen of less than 13 inches in size may
petition the Commission for a full or partial exemption from the closed captioning requirements of this
section pursuant to § 1.41, which the Commission may grant upon a finding that the requirements of this
section are not achievable, or may assert that such apparatus is fully or partially exempt as a response to a
complaint, which the Commission may dismiss upon a finding that the requirements of this section are
not achievable.
(ii) The petitioner or respondent must support a petition for exemption or a response to a complaint with
sufficient evidence to demonstrate that compliance with the requirements of this section is not
“achievable” where “achievable” means with reasonable effort or expense. The Commission will
consider the following factors when determining whether the requirements of this section are not
“achievable:”
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(A) The nature and cost of the steps needed to meet the requirements of this section with respect to the
specific equipment or service in question;
(B) The technical and economic impact on the operation of the manufacturer or provider and on the
operation of the specific equipment or service in question, including on the development and deployment
of new communications technologies;
(C) The type of operations of the manufacturer or provider; and
(D) The extent to which the service provider or manufacturer in question offers accessible services or
equipment containing varying degrees of functionality and features, and offered at differing price points.
(4) Waiver. Manufacturers of apparatus may petition the Commission for a full or partial waiver of the
closed captioning requirements of this section, which the Commission may grant, upon a finding that the
apparatus meets one of the following provisions:
(i) The apparatus is primarily designed for activities other than receiving or playing back video
programming transmitted simultaneously with sound; or
(ii) The apparatus is designed for multiple purposes, capable of receiving or playing back video
programming transmitted simultaneously with sound but whose essential utility is derived from other
purposes.
(c) Specific technical capabilities. All apparatus subject to this section shall implement the following
captioning functionality:
(1) Presentation. All apparatus shall implement captioning such that the caption text may be displayed
within one or separate caption windows and supporting the following modes: text that appears all at once
(pop-on), text that scrolls up as new text appears (roll-up), and text where each new letter or word is
displayed as it arrives (paint-on).
(2) Character color. All apparatus shall implement captioning such that characters may be displayed in
the 64 colors defined in CEA-708 and such that users are provided with the ability to override the
authored color for characters and select from a palette of at least 8 colors including: white, black, red,
green, blue, yellow, magenta, and cyan.
(3) Character opacity. All apparatus shall implement captioning such that users are provided with the
ability to vary the opacity of captioned text and select between opaque and semi-transparent opacities.
(4) Character size. All apparatus shall implement captioning such that users are provided with the ability
to vary the size of captioned text and shall provide a range of such sizes from 50% of the default character
size to 200% of the default character size.
(5) Fonts. All apparatus shall implement captioning such that fonts are available to implement the eight
fonts required by CEA-708 and § 79.102(k). Users must be provided with the ability to assign the fonts
included on their apparatus as the default font for each of the eight styles contained in § 79.102(k).
(6) Caption background color and opacity. All apparatus shall implement captioning such that the
caption background may be displayed in the 64 colors defined in CEA-708 and such that users are
provided with the ability to override the authored color for the caption background and select from a
palette of at least 8 colors including: white, black, red, green, blue, yellow, magenta, and cyan. All
apparatus shall implement captioning such that users are provided with the ability to vary the opacity of
the caption background and select between opaque, semi-transparent, and transparent background
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opacities.
(7) Character edge attributes. All apparatus shall implement captioning such that character edge
attributes may be displayed and users are provided the ability to select character edge attributes including:
no edge attribute, raised edges, depressed edges, uniform edges, and drop shadowed edges.
(8) Caption window color. All apparatus shall implement captioning such that the caption window color
may be displayed in the 64 colors defined in CEA-708 and such that users are provided with the ability to
override the authored color for the caption window and select from a palette of at least 8 colors including:
white, black, red, green, blue, yellow, magenta, and cyan. All apparatus shall implement captioning such
that users are provided with the ability to vary the opacity of the caption window and select between
opaque, semi-transparent, and transparent background opacities.
(9) Language. All apparatus must implement the ability to select between caption tracks in additional
languages when such tracks are present and provide the ability for the user to select simplified or reduced
captions when such captions are available and identify such a caption track as “easy reader.”
(10) Preview and setting retention. All apparatus must provide the ability for the user to preview default
and user selection of the caption features required by this section, and must retain such settings as the
default caption configuration until changed by the user.
(11) Safe Harbor. Apparatus which implement Society of Motion Picture and Television Engineers
Timed Text format (SMPTE ST 2052-1:2010: “Timed Text Format (SMPTE-TT)” 2010) (incorporated
by reference, see § 79.100) with respect to the functionality in subparts (1) through (10) of this paragraph
shall be deemed in compliance with subpart (c) of this section.
Note to paragraph (c): Where video programming providers or distributors subject to § 79.4 of this part
display or render captions, they shall implement the functional requirements contained in subsections (1)
through (10) unless doing so is economically burdensome as defined in § 79.4(d).
(d) Interconnection. All video outputs of covered apparatus shall be capable of conveying from the
source device to the consumer equipment the information necessary to permit or render the display of
closed captions.
11.
Add § 79.104 to read as follows:
§ 79.104 Closed caption decoder requirements for recording devices.
(a) Effective January 1, 2014, all apparatus designed to record video programming transmitted
simultaneously with sound, if such apparatus is manufactured in the United States or imported for use in
the United States, must comply with the provisions of this section except that apparatus must only do so if
it is achievable as defined in § 79.103(b)(3).
(b) All apparatus subject to this section must enable the rendering or the pass through of closed captions
such that viewers are able to activate and de-activate the closed captions as the video programming is
played back as described in § 79.103(c).
(c) All apparatus subject to this section must comply with the interconnection mechanism requirements in
§ 79.103(d).
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APPENDIX C

Final Regulatory Flexibility Analysis

1.
As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”),1 an Initial
Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Notice of Proposed Rulemaking in this
proceeding.2 The Federal Communications Commission (“Commission”) sought written public comment
on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments
on the IRFA, although some commenters discussed the effect of the proposals on smaller entities, as
discussed below. This present Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA.3

A.

Need for, and Objectives of, the Report and Order

2.
Pursuant to our responsibilities under the Twenty-First Century Communications and
Video Accessibility Act of 2010 (“CVAA”),4 this Report and Order adopts rules governing the closed
captioning requirements for the owners, providers, and distributors of video programming delivered using
Internet protocol (“IP”).5 This Report and Order also adopts rules governing the closed captioning
capabilities of certain apparatus on which consumers view video programming. Closed captioning is the
visual display of the audio portion of video programming, which provides access to individuals who are
deaf or hard of hearing.6 Prior to the adoption of the CVAA, the Communications Act of 1934, as
amended (the “Act”), required the use of closed captioning on television,7 but not on IP-delivered video
programming that was not part of a broadcaster or multichannel video programming distributor
(“MVPD”) service. That changed with the enactment of the CVAA, which directed the Federal
Communications Commission (“Commission”) to revise its regulations to require closed captioning of IP-
delivered video programming that is published or exhibited on television with captions after the effective
date of the new regulations.8 Further, the CVAA directed the Commission to impose closed captioning
requirements on certain apparatus that receive or play back video programming, and on certain recording
devices.9 The rules we adopt herein will better enable individuals who are deaf or hard of hearing to view


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). The SBREFA
was enacted as Title II of the Contract With America Advancement Act of 1996 (“CWAAA”).
2 See Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First
Century Communications and Video Accessibility Act of 2010
, Notice of Proposed Rulemaking, 26 FCC Rcd 13734
(2011) (“NPRM”).
3 See 5 U.S.C. § 604.
4 Pub. L. No. 111-260, 124 Stat. 2751 (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 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).
6 See supra App. B, § 79.4(a)(6) (defining “closed captioning” as “The visual display of the audio portion of video
programming pursuant to the technical specifications set forth in this part.”).
7 See 47 C.F.R. § 79.1 (setting forth the requirements for closed captioning of video programming on television); 47
U.S.C. § 613 (as originally enacted).
8 47 U.S.C. § 613(c)(2)(A).
9 47 U.S.C. § 303(u)(1), (z)(1).
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IP-delivered video programming, as Congress intended. Moreover, we believe these benefits of our rules
to deaf or hard of hearing consumers will outweigh the affected entities’ costs of compliance.
3.
As discussed in Section III of the Report and Order, we adopt the following closed
captioning requirements for the owners, providers, and distributors of IP-delivered video programming
under Section 202(b)-(c) of the CVAA. Specifically, we adopt rules that will:
·
Specify the obligations of entities subject to Section 202(b) by:
o Requiring video programming owners (“VPOs”) to send required caption files for IP-
delivered video programming to video programming distributors and providers (“VPDs”)
along with program files;
o Requiring VPDs to enable the rendering or pass through of all required captions to the
end user, including through the hardware of software that a VPD makes available for this
purpose;
o Requiring VPOs and VPDs to agree upon a mechanism to make available to VPDs
information on video programming that is subject to the IP closed captioning
requirements on an ongoing basis;10 and
o Requiring VPOs to provide VPDs with captions of at least the same quality as the
television captions for the same programming, and requiring VPDs to maintain the
quality of the captions provided by the VPO.11
·
Create a schedule of deadlines under which:
o All prerecorded programming that is not edited for Internet distribution and is subject to
the new requirements must be captioned if it is shown on television with captions on or
after the date six months after publication of these rules in the Federal Register;
o All live and near-live programming subject to the new requirements must be captioned if
it is shown on television with captions on or after the date 12 months after publication of
these rules in the Federal Register;
o All prerecorded programming that is edited for Internet distribution and is subject to the
new requirements must be captioned if it is shown on television with captions on or after
the date 18 months after publication of the rules in the Federal Register;12 and
o Archival content must be captioned according to the following deadlines: Beginning two
years after publication of these rules in the Federal Register, all programming that is
subject to the new requirements and is already in the VPD’s library before it is shown on
television with captions must be captioned within 45 days after it is shown on television
with captions. Beginning three years after publication of these rules in the Federal
Register, such programming must be captioned within 30 days after it is shown on
television with captions. Beginning four years after publication of these rules in the
Federal Register, such programming must be captioned within 15 days after it is shown
on television with captions.13
·
Craft procedures by which VPDs and VPOs may petition the Commission for exemptions from


10 See Report and Order Section III.A.2.
11 See id. Section III.A.3.
12 See id. Section III.B.
13 See id. Section III.A.2.
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the new requirements based on economic burden;14
·
Not treat a de minimis failure to comply with the new rules as a violation, and permit entities to
comply with the new requirements by alternate means, as provided in the CVAA;15 and
·
Adopt procedures for complaints alleging a violation of the new requirements.16
4.
In addition, we adopt the following closed captioning requirements for the manufacturers
of devices used to view video programming under Section 203 of the CVAA. Specifically, we adopt
rules that will:
·
Establish what apparatus are covered by Section 203:17
o All physical devices designed to receive and play back video programming, including
smartphones, tablets, personal computers, and television set-top boxes;
o All “integrated software” in covered devices (that is, software installed in the device by
the manufacturer before sale or that the manufacturer requires the consumer to install
after sale); and
o All recording devices and removable media players;18
·
Exclude professional and commercial equipment from the scope of Section 203;
·
Exempt display-only monitors as set forth in Section 203, and establish procedures for finding a
lack of achievability or technical feasibility;19
·
Establish the requirements for devices covered by Section 203:
o Specify how covered apparatus must implement closed captioning by adopting functional
display standards;20
o Require apparatus to render or pass-through closed captioning on each of their video
outputs;21
o Decline to grant blanket waivers or exempt any device or class of devices from our rules
based on achievability or the waiver provisions set forth in Section 203;
·
Establish general complaint procedures and modify our existing television receiver closed
captioning decoder requirements to conform to screen size and achievability provisions;22 and
·
Establish a deadline for compliance of January 1, 2014 by which devices must comply with the


14 See id. Section III.C.
15 See id. Section III.D.
16 See id. Section III.E.
17 See id. Section IV.A.
18 See id. Sections IV.A, IV.D.
19 See id. Section IV.B.
20 See id. Section IV.C.
21 See id. Section IV.E.
22 See id. Sections IV.I, IV.F.
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requirements of Section 203.23
Finally, we adopt a safe harbor for use of a particular interchange and delivery format.24

B.

Legal Basis

5.
The authority for the action taken in this rulemaking is contained in the Twenty-First
Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751, and
Sections 4(i), 4(j), 303, 330(b), 713, and 716 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), 303, 330(b), 613, and 617.

C.

Summary of Significant Issues Raised by Public Comments in Response to
the IRFA

6.
No comments were filed in response to the IRFA. In response to the NPRM, commenters
express their approval of proposals that gave appropriate consideration to smaller entities.25
7.
The American Cable Association (“ACA”) and the National Association of Broadcasters
(“NAB”) also express concerns about the burdens of the mechanism proposed in the NPRM on smaller
entities.26 As explained in the Report and Order, instead of adopting the proposed mechanism, we will
permit VPOs and VPDs to agree upon a mechanism.27 This flexibility will alleviate the concerns of ACA
and NAB.
8.
Further, ACA argues that MVPDs, especially smaller operators, should not have to
comply with multiple sets of rules aimed at achieving the same purpose.28 In response, the Report and
Order
clarifies that the IP closed captioning rules will not apply to a broadcaster’s or MVPD’s provision
of programming that is subject to the Commission’s television closed captioning rules.29

D.

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

9.
The RFA directs the Commission to provide a description of and, where feasible, an
estimate of the number of small entities that will be affected by the proposed rules if adopted.30 The RFA
generally defines the term “small entity” as having the same meaning as the terms “small business,”
“small organization,” and “small governmental jurisdiction.”31 In addition, the term “small business” has
the same meaning as the term “small business concern” under the Small Business Act.32 A “small


23 See id. Section IV.H.
24 See id. Section V.
25 See, e.g., Comments of the American Cable Association at 14, 17 (“ACA Comments”) (supporting the proposed
responsibilities of video programming providers and distributors, and the proposed complaint procedures);
Comments of the National Association of Broadcasters at 22 (“NAB Comments”) (supporting the proposed factors
to consider in evaluating an exemption petition); Reply Comments of the American Cable Association at 18-19
(“ACA Reply”) (supporting the proposed allocation of responsibilities).
26 ACA Comments at 16; NAB Comments at 27.
27 See Report and Order, Section III.A.2.
28 ACA Reply at 1, 4-5.
29 See Report and Order, ¶ 11.
30 5 U.S.C. § 603(b)(3).
31 5 U.S.C. § 601(6).
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business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field
of operation; and (3) satisfies any additional criteria established by the Small Business Administration
(“SBA”).33
10.
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.34 First,
nationwide, there are a total of approximately 27.5 million small businesses, according to the SBA.35 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.”36 Nationwide, as of 2007, there were approximately
1,621,315 small organizations.37 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.”38 Census Bureau data for 2011 indicate that there were 89,476
local governmental jurisdictions in the United States.39 We estimate that, of this total, a substantial
majority may qualify as “small governmental jurisdictions.”40 Thus, we estimate that most governmental
jurisdictions are small.
11.
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.
(Continued from previous page)


32 5 U.S.C. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business
Act, 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.”
33 15 U.S.C. § 632.
34 See 5 U.S.C. §§ 601(3)-(6).
35 See SBA, Office of Advocacy, “Frequently Asked Questions,” http://web.sba.gov/faqs (last visited May 6, 2011;
figures are from 2009).
36 5 U.S.C. § 601(4).
37 INDEPENDENT SECTOR, THE NEW NONPROFIT ALMANAC & DESK REFERENCE (2010).
38 5 U.S.C. § 601(5).
39 U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2011, Table 427 (2007).
40 The 2007 U.S Census data for small governmental organizations indicate that there were 89,476 local
governments in 2007. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 2011,
Table 428. The criterion by which the size of such local governments is determined to be small is a population of
50,000 or less. See supra n. 38. However, since the Census Bureau, in compiling the cited data, does not state that
it applies that criterion, it cannot be determined with precision how many of such local governmental organizations
is small. Nonetheless, the inference seems reasonable that a substantial number of these governmental organizations
has a population of less than 50,000. To look at Table 428 in conjunction with a related set of data in Table 429 in
the Census’s Statistical Abstract of the U.S., that inference is further supported by the fact that in both Tables, many
sub-entities that may well be small are included in the 89,476 local governmental organizations, e.g. county,
municipal, township and town, school district and special district entities. Measured by a criterion of a population of
50,000, many of the cited sub-entities in this category seem more likely than larger county-level governmental
organizations to have small populations. Accordingly, of the 89,746 small governmental organizations identified in
the 2007 Census, the Commission estimates that a substantial majority is small.
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Transmission facilities may be based on a single technology or a combination of technologies.”41 The
SBA has developed a small business size standard for this category, which is: all such firms having 1,500
or fewer employees. Census data for 2007, which supersede data contained in the 2002 Census, show that
there were 1,383 firms that operated that year.42 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.
12.
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.43 Industry data indicate that, of
1,076 cable operators nationwide, all but eleven are small under this size standard.44 In addition, under
the Commission’s rules, a “small system” is a cable system serving 15,000 or fewer subscribers.45
Industry data indicate that, of 6,635 systems nationwide, 5,802 systems have fewer than 10,000
subscribers, and an additional 302 systems have 10,000-19,999 subscribers.46 Thus, under this second
size standard, most cable systems are small.
13.
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.”47 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.48 Industry data indicate that, of
1,076 cable operators nationwide, all but ten are small under this size standard.49 We note that the
Commission neither requests nor collects information on whether cable system operators are affiliated


41 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).
42 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.
43 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).
44 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.
45 47 C.F.R. § 76.901(c).
46 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.
47 47 U.S.C. § 543(m)(2); see 47 C.F.R. § 76.901(f) & nn. 1-3.
48 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).
49 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.
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with entities whose gross annual revenues exceed $250 million,50 and therefore we are unable to estimate
more accurately the number of cable system operators that would qualify as small under this size
standard.
14.
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,”51 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.52
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.53 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).54 Each currently offers subscription services.
DIRECTV55 and EchoStar56 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.
15.
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.57 The second has a size standard of $25 million or less in annual
receipts.58
16.
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


50 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).
51 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 11, above.
52 13 C.F.R. § 121.201, NAICS code 517110 (2007).
53 See http://www.factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&;-
_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
54 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).
55 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.
56 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.
57 13 C.F.R. § 121.201, NAICS code 517410.
58 13 C.F.R. § 121.201, NAICS code 517919.
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reselling satellite telecommunications.”59 Census Bureau data for 2007 show that 512 Satellite
Telecommunications firms operated for that entire year.60 Of this total, 464 firms had annual receipts of
under $10 million, and 18 firms had receipts of $10 million to $24,999,999.61 Consequently, the
Commission estimates that the majority of Satellite Telecommunications firms are small entities that
might be affected by our action.
17.
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.”62 For this category, Census Bureau data for 2007 show that there were a total of 2,383
firms that operated for the entire year.63 Of this total, 2,346 firms had annual receipts of under $25
million and 37 firms had annual receipts of $25 million to $49,999,999.64 Consequently, the Commission
estimates that the majority of All Other Telecommunications firms are small entities that might be
affected by our action.
18.
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.65 Business concerns included
in this industry are those “primarily engaged in broadcasting images together with sound.”66 The
Commission has estimated the number of licensed commercial television stations to be 1,390.67
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
stations68 in the United States have revenues of $14 million or less and, thus, qualify as small entities


59 U.S. Census Bureau, 2007 NAICS Definitions, “517410 Satellite Telecommunications.”
60 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&;-
_lang=en.
61 See id.
62 http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2007%20NAICS%20Search.
63 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&ds_name=EC0751SSSZ4&;-
_lang=en.
64 See id.
65 See 13 C.F.R. § 121.201, NAICS Code 515120 (2007).
66 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.
67 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.
68 We recognize that this total differs slightly from that contained in Broadcast Station Totals, supra n. 67; however,
we are using BIA’s estimate for purposes of this revenue comparison.
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under the SBA definition. The Commission has estimated the number of licensed noncommercial
educational (“NCE”) television stations to be 391.69 We note, however, that, in assessing whether a
business concern qualifies as small under the above definition, business (control) affiliations70 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.
19.
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.
20.
Open Video Services. Open Video Service (OVS) systems provide subscription
services.71 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.72 The OVS framework provides opportunities for the distribution of video programming other
than through cable systems. Because OVS operators provide subscription services,73 OVS falls within the
SBA small business size standard covering cable services, which is “Wired Telecommunications
Carriers.”74 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.75 In addition, we note that the
Commission has certified some OVS operators, with some now providing service.76 Broadband service
providers (“BSPs”) are currently the only significant holders of OVS certifications or local OVS
franchises.77 The Commission does not have financial or employment information regarding the entities


69 See Broadcast Station Totals, supra n. 67.
70 “[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).
71 See 47 U.S.C. § 573.
72 47 U.S.C. § 571(a)(3)-(4). See 13th Annual Report, 24 FCC Rcd at 606, ¶ 135.
73 See 47 U.S.C. § 573.
74 U.S. Census Bureau, 2007 NAICS Definitions, “517110 Wired Telecommunications Carriers”;
http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
75 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&;-
ds_name=EC0751SSSZ5&-_lang=en.
76 A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html.
77 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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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.78 Affiliates of
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.
21.
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.”79 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.80
22.
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.”81 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.82 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.83 Thus, under this category and associated small business size standard, the majority of firms
can be considered small.


78 See http://www.fcc.gov/mb/ovs/csovscer.html (current as of February 2007).
79 U.S. Census Bureau, 2007 NAICS Definitions, “515210 Cable and Other Subscription Programming”;
http://www.census.gov/naics/2007/def/ND515210.HTM#N515210.
80 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&;-
ds_name=EC0751SSSZ5&-_lang=en.
81 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.
82 13 C.F.R § 121.201, NAICS Code 512110.
83 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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23.
Motion Picture and Video Distribution. The Census Bureau defines this category as
follows: “This industry comprises establishments primarily engaged in acquiring distribution rights and
distributing film and video productions to motion picture theaters, television networks and stations, and
exhibitors.”84 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,85 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.86
24.
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.”87 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.88 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.
25.
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.89 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.90 Of these 1,307 carriers, an estimated 1,006 have
1,500 or fewer employees and 301 have more than 1,500 employees.91 Consequently, the Commission


84 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.
8513 C.F.R 121.201, NAICS Code 512110.
86 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=200&;-
ds_name=EC0751SSSZ5&-_lang=en.
87 15 U.S.C. § 632.
88 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).
89 13 C.F.R. § 121.201, NAICS code 517110.
90 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”).
91 See id.
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estimates that most providers of local exchange service are small entities that may be affected by the rules
and policies adopted. Thus under this category and the associated small business size standard, the
majority of these incumbent local exchange service providers can be considered small providers.92
26.
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.93 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.94 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.95 Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer
employees and 186 have more than 1,500 employees.96 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.97 In
addition, 72 carriers have reported that they are Other Local Service Providers.98 Of the 72, seventy have
1,500 or fewer employees and two have more than 1,500 employees.99 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.
27.
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.”100 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


92 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&;-
ds_name=EC0751SSSZ5&-_lang=en.
93 13 C.F.R. § 121.201, NAICS code 517110.
94 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&;-
ds_name=EC0751SSSZ5&-_lang=en.
95 See Trends in Telephone Service at Table 5.3.
96 See id.
97 See id.
98 See id.
99 See id.
100 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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919 firms in this category that operated for the entire year. Of this total, 771 had less than 100 employees
and 148 had more than 100 employees.101 Thus, under that size standard, the majority of firms can be
considered small.
28.
Audio and Video Equipment Manufacturing. The SBA has classified the manufacturing
of audio and video equipment under the NAICS Codes classification scheme as an industry in which a
manufacturer is small if it has less than 750 employees.102 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.103 Thus, under the applicable size standard, a majority of manufacturers of audio
and video equipment may be considered small.
29.
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.”
30.
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.104 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. 105 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.106 Accordingly, the majority of establishments in this category can be
considered small under that standard.
31.
Closed Captioning Services. These entities would be indirectly affected by our action.
The SBA has developed two small business size standards that may be used for closed captioning
services. The two size standards track the economic census categories, “Teleproduction and Other
Postproduction Services” and “Court Reporting and Stenotype Services.”
32.
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


101 See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=4500&;-
ds_name=EC0731SG3&-_lang=en.
102 13 CFR § 121.201, NAICS Code 334310.
103 http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=300&-ds_name=EC0731I1&;-
_lang=en.
104 13 C.F.R. § 121.201, NAICS Code 519130.
105 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.
106 Id.
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less than $29.5 million.107 For this category, Census Bureau Data for 2007 indicate that there were 1,605
firms that operated in this category for the entire year. Of that number, 1,597 had receipts totaling less
than $29,500,000.108 Consequently we estimate that the majority of Teleproduction and Other
Postproduction Services firms are small entities that might be affected by our action.
33.
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.109 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 $9,999,999.110 Consequently, we
estimate that the majority of Court Reporting and Stenotype Services firms are small entities that might
be affected by our action.

E.

Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities

34.
The rules adopted in the Report and Order generally require VPOs to send required
caption files for IP-delivered video programming to VPDs along with program files. The rules also
require VPDs to enable the rendering or pass through of all required captions to the end user. Further, the
rules impose closed captioning requirements on certain apparatus that receive or play back video
programming, and on certain recording devices.
35.
The rules will require VPOs and VPDs to agree upon a “mechanism” that will make
available to the VPD information on video programming subject to the IP closed captioning requirements
on an ongoing basis. The “mechanism” may involve a system of certifications that are kept up-to-date, or
it may involve the use of a third-party database, private contractual arrangements, or another
“mechanism” agreed upon by the parties.
36.
The Report and Order creates a process by which VPDs and VPOs may petition the
Commission for a full or partial exemption of the requirements for closed captioning of IP-delivered
video programming, which the Commission may grant upon a finding that the requirements would be
economically burdensome. Further, the Report and Order creates a process by which manufacturers of
apparatus may petition the Commission for a full or partial exemption of the requirements to implement
closed captioning in their apparatus, which the Commission may grant upon a finding that
implementation would not be achievable, technically feasible, that the apparatus is a display only monitor,
or that purpose of the apparatus is such that the rules are inapplicable. The Report and Order also adopts
procedures for complaints alleging a violation of the IP closed captioning rules, and it requires VPDs to
make contact information available to end users for the receipt and handling of written IP closed
captioning complaints.

F.

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



107 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.
108 http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=300&-ds_name=EC0751SSSZ5&;-
_lang=en.
109 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.
110 http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=400&;-
ds_name=EC0756SSSZ4&-_lang=en.
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37.
The RFA requires an agency to describe any significant alternatives that it has considered
in reaching its proposed approach, which may include the following four alternatives (among others): (1)
the establishment of differing compliance or reporting requirements or timetables that take into account
the resources available to small entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather
than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small
entities.111
38.
These rules may have a significant economic impact in some cases, and that impact may
affect a substantial number of small entities. Although alternatives to minimize economic impact have
been considered, we note that our action is governed by the congressional mandate contained in Sections
202(b), (c), and 203 of the CVAA. The Report and Order adopts procedures enabling the Commission to
grant exemptions to the rules governing closed captioning of IP-delivered video programming pursuant to
Section 202 of the CVAA, where a petitioner has shown that compliance would present an economic
burden (i.e., a significant difficulty or expense), and pursuant to Section 203 of the CVAA, where a
petitioner has shown that compliance is not achievable (i.e., cannot be accomplished with reasonable
effort or expense) or not technically feasible. This exemption process will allow the Commission to
address the impact of the rules on individual entities, including smaller entities, and to modify the
application of the rules to accommodate individual circumstances. Further, the Report and Order
provides that a de minimis failure to comply with the requirements adopted pursuant to Section 202 of the
CVAA shall not be treated as a violation, and it provides that parties may use alternate means of
compliance to the rules adopted pursuant to either Section 202 or Section 203 of the CVAA. Individual
entities, including smaller entities, may benefit from these provisions.
39.
To fulfill the statutory mandate that the Commission “establish a mechanism to make
available to video programming providers and distributors information on video programming subject to
the Act on an ongoing basis,”112 the NPRM proposed a system of certifications and updated certifications.
Due to concerns that such a system may be burdensome for entities that must comply, including smaller
entities, in the Report and Order the Commission instead adopted a flexible process by which VPOs and
VPDs must agree upon a “mechanism” to make available to the VPD information on video programming
subject to the IP closed captioning requirements on an ongoing basis.

G.

Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules

40.
None.

H.

Report to Congress

41.
The Commission will send a copy of the Report and Order, including this FRFA, in a
report to be sent to Congress pursuant to the Congressional Review Act.113 In addition, the Commission
will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the
SBA. The Report and Order and FRFA (or summaries thereof) will also be published in the Federal
Register.114


111 5 U.S.C. § 603(c)(1)-(c)(4).
112 47 U.S.C. § 613(c)(2)(D)(v).
113 See 5 U.S.C. § 801(a)(1)(A).
114 See 5 U.S.C. § 604(b).
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APPENDIX D

Relevant Provisions of the CVAA

SEC. 202. VIDEO DESCRIPTION AND CLOSED CAPTIONING.

*
*
*
(b) Closed Captioning on Video Programming Delivered Using Internet Protocol- Section 713 of
such Act is further amended by striking subsection (c) and inserting the following:
`(c) Deadlines for Captioning-
`(1) IN GENERAL- The regulations prescribed pursuant to subsection (b) shall include
an appropriate schedule of deadlines for the provision of closed captioning of video
programming once published or exhibited on television.
`(2) DEADLINES FOR PROGRAMMING DELIVERED USING INTERNET
PROTOCOL-
`(A) REGULATIONS ON CLOSED CAPTIONING ON VIDEO
PROGRAMMING DELIVERED USING INTERNET PROTOCOL- Not later
than 6 months after the submission of the report to the Commission required by
subsection (e)(1) of the Twenty-First Century Communications and Video
Accessibility Act of 2010, the Commission shall 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.
`(B) SCHEDULE- The regulations prescribed under this paragraph shall 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.
`(C) COST- The Commission may delay or waive the regulation promulgated
under subparagraph (A) 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.
`(D) REQUIREMENTS FOR REGULATIONS- The regulations prescribed
under this paragraph--
`(i) shall contain a definition of `near-live programming' and `edited for
Internet distribution';
`(ii) may exempt any service, class of service, program, class of program,
equipment, or class of equipment for which the Commission has
determined that the application of such regulations would be
economically burdensome for the provider of such service, program, or
equipment;
`(iii) shall clarify that, for the purposes of implementation, 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;
`(iv) and describe the responsibilities of video programming providers or
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distributors and video programming owners;
`(v) shall establish a mechanism to make available to video programming
providers and distributors information on video programming subject to
the Act on an ongoing basis;
`(vi) shall consider that the video programming provider or distributor
shall be deemed in compliance if such entity enables the rendering or
pass through of closed captions and makes a good faith effort to identify
video programming subject to the Act using the mechanism created in
(v); and
`(vii) shall 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.
`(3) Alternate means of compliance- An entity may meet the requirements of this section
through alternate means than those prescribed by regulations pursuant to subsection (b),
as revised pursuant to paragraph (2)(A) of this subsection, if the requirements of this
section are met, as determined by the Commission.'.
(c) Conforming Amendment- Section 713(d) of such Act is amended by striking paragraph (3)
and inserting the following:
`(3) 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.'.

SEC. 203. CLOSED CAPTIONING DECODER AND VIDEO DESCRIPTION CAPABILITY.

(a) Authority to Regulate- Section 303(u) of the Communications Act of 1934 (47 U.S.C. 303(u))
is amended to read as follows:
`(u) Require that, if technically feasible--
`(1) apparatus designed to receive or play back video programming transmitted
simultaneously with sound, if such apparatus is manufactured in the United
States or imported for use in the United States and uses a picture screen of any
size--
`(A) be equipped with built-in closed caption decoder circuitry or
capability designed to display closed-captioned video programming;
`(B) have the capability to decode and make available the transmission
and delivery of video description services as required by regulations
reinstated and modified pursuant to section 713(f); and
`(C) have the capability to decode and make available emergency
information (as that term is defined in section 79.2 of the Commission's
regulations (47 CFR 79.2)) in a manner that is accessible to individuals
who are blind or visually impaired; and
`(2) notwithstanding paragraph (1) of this subsection--
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`(A) apparatus described in such paragraph that use a picture screen that
is less than 13 inches in size meet the requirements of subparagraph (A),
(B), or (C) of such paragraph only if the requirements of such
subparagraphs are achievable (as defined in section 716);
`(B) any apparatus or class of apparatus that are display-only video
monitors with no playback capability are exempt from the requirements
of such paragraph; and
`(C) the Commission shall have the authority, on its own motion or in
response to a petition by a manufacturer, to waive the requirements of
this subsection for any apparatus or 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.'.
(b) Other Devices- Section 303 of the Communications Act of 1934 (47 U.S.C. 303) is further
amended by adding at the end the following new subsection:
`(z) Require that--
`(1) if achievable (as defined in section 716), apparatus designed to record video
programming transmitted simultaneously with sound, if such apparatus is
manufactured in the United States or imported for use in the United States,
enable the rendering or the pass through of closed captions, video description
signals, and emergency information (as that term is defined in section 79.2 of
title 47, Code of Federal Regulations) such that viewers are able to activate and
de-activate the closed captions and video description as the video programming
is played back on a picture screen of any size; and
`(2) interconnection mechanisms and standards for digital video source devices
are available to carry from the source device to the consumer equipment the
information necessary to permit or render the display of closed captions and to
make encoded video description and emergency information audible.'.
(c) Shipment in Commerce- Section 330(b) of the Communications Act of 1934 (47 U.S.C.
330(b)) is amended--
(1) by striking `303(u)' in the first sentence and inserting `303(u) and (z)';
(2) by striking the second sentence and inserting the following: `Such rules shall provide
performance and display standards for such built-in decoder circuitry or capability
designed to display closed captioned video programming, the transmission and delivery
of video description services, and the conveyance of emergency information as required
by section 303 of this Act.'; and
(3) in the fourth sentence, by striking `closed-captioning service continues' and inserting
`closed-captioning service and video description service continue'.
(d) Implementing Regulations- The Federal Communications Commission shall prescribe such
regulations as are necessary to implement the requirements of sections 303(u), 303(z), and 330(b)
of the Communications Act of 1934, as amended by this section, including any technical
standards, protocols, and procedures needed for the transmission of--
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(1) closed captioning within 6 months after the submission to the Commission of the
Advisory Committee report required by section 201(e)(1); and
(2) video description and emergency information within 18 months after the submission
to the Commission of the Advisory Committee report required by section 201(e)(2).
(e) Alternate Means of Compliance- An entity may meet the requirements of sections 303(u), 303(z), and
330(b) of the Communications Act of 1934 through alternate means than those prescribed by regulations
pursuant to subsection (d) if the requirements of those sections are met, as determined by the
Commission.
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CONCURRING STATEMENT OF

COMMISSIONER ROBERT M. McDOWELL

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

In the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA),
Congress mandated that we adopt close captioning requirements for previously-televised content
delivered using Internet protocol (IP) and for certain devices that display video programming. I have
been a steadfast proponent of ensuring the accessibility of communications services for disabled
Americans and am supportive of promoting a better Internet video programming experience for the deaf
and hard of hearing. In light of the growth and popularity of online content, I recognize the importance of
our action today to ensure full access to the Internet for the disabled community. Such rules, however,
have to be carefully crafted to weigh these benefits against the costs they may place on programming
owners and distributors. Although I will do as Congress has directed, I am concerned that, in
implementing this statute, we may not have achieved this desired balance. For this reason, I vote to
concur.
Today, we adopt rules requiring, under tight timeframes, a new IP captioning scheme that
includes captioning for new content and programming already contained on the Internet, quality
standards, and the creation of a mechanism for video owners to inform distributors about programming
subject to these requirements, amongst others. Although I wholeheartedly share the desire to help
disabled Americans empower themselves, I fear that these regulations could infringe upon the First
Amendment rights of content creators. Pragmatically, although our intentions are good, I am also
concerned that our actions today may result in the withholding of content from the Internet, either
temporarily or permanently, and the removal of programming that is currently available to all consumers
to avoid enforcement action. I am pleased that Congress specifically mandated that a de minimis failure
to comply with the regulations will not be considered a violation. I urge the Commission to remain
mindful of this when investigating potential infringements.
Further, I am concerned that the caption performance and display standards, which will be
complicated due to the diversity of devices and screen sizes covered, may be unworkable in many
instances and burdensome to manufacturers. I also wonder whether we may be raising undue
expectations regarding the availability of IP closed captioning. Although we require new content to be
captioned on a rolling basis over the next year and a half, devices are not required to be compliant until
January 1, 2014.
Thankfully, Congress provided the Commission with generous authority to grant case-by-case
exemptions from these captioning rules. I hope that such waivers will be reasonably provided to alleviate
burdens on video programming owners, providers and device manufacturers in the event that our rules
cause unintended consequences. I also suspect that, as we do not have experience with the delivery of
programming in the Internet space, this matter may come before us again. At such time, we will be able
to gain useful insight from the deaf and hard of hearing community regarding their experiences with and
ability to obtain captioned online content. I also hope that we will learn from owners and distributors
about any difficulties in implementing IP closed captioning and reconsider the actions we take today if
they prove to be unworkable or overly burdensome. In short, this order may end up being a “beta”
version that will require numerous revisions in the future.
I am grateful for the Chairman’s willingness to incorporate many of my suggested edits. I also
thank the committed staff of the Media Bureau for their thoughtful efforts in confronting a difficult task.
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STATEMENT OF

COMMISSIONER MIGNON L. CLYBURN

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

As we continue to implement the Twenty-First Century Communications and Video Accessibility
Act of 2010 (CVAA), I am becoming more and more aware of the importance of this legislation.
To our family members, neighbors, and co-workers living with disabilities, every day presents
challenges that the majority of us rarely think about. One of those obstacles is the inability to enjoy wide-
ranging video content online with the benefit of captions. The Report and Order we approve today goes a
long way toward eliminating that disparity.
Captioned programming on television is currently viewed by people regardless of their hearing
abilities. We see, take advantage of, and have grown accustomed to captions on televisions in airports, in
fitness centers, restaurants, and other gathering places. But it may surprise many that the ubiquity of
captions on the television screen has not resulted in a similar outgrowth for video watched online. It is
now time for that to change by using these incredible 21st century technologies. When captioning
becomes a part of universal design, everyone wins. For instance, when videos are captioned, deaf and
hard of hearing students can learn alongside hearing students. Hearing students see how words are
spelled, and the visual text reinforces the message that they hear. All of this helps them learn how to read
and write. Out in the community, the information flows much more freely and everyone benefits at home,
at school, in the workplace and anywhere that people meet.
The CVAA, from which this rulemaking flows, is one of the most important pieces of legislation
for the deaf and hard of hearing community since the passage of the ADA more than two decades ago. In
that time, we have seen an explosion of revolutionary Internet-based telecommunications and video
programming technologies. Yet, the tremendous promise of these technologies has remained largely
inaccessible to Americans who are deaf or hard of hearing. The CVAA intends to bridge this divide.
With the abundance of video content on the Internet, knowing that I can sit in front of my
computer and enjoy an online experience, while a deaf or hard of hearing neighbor cannot, is a problem
that I am pleased we are finally taking steps to address. But the promise of this rulemaking is much more
than closed captioning for Internet-delivered content. Its true aim is equal access for all Americans to the
video programming that forms the lifeblood of our civil discourse and the marketplace of ideas embodied
in the First Amendment. Its expectation is that the cultural, political, employment, and participatory
opportunities of the 21st century will be available to all. And its promise is that accessibility will no
longer be an afterthought, and that America will leverage its national ingenuity and technological
prowess, to ensure that accessibility is a cornerstone of Internet video programming, now and into the
future.
In this rulemaking, we have fought to ensure that these expectations are fulfilled. While our work
is not yet finished, we believe the results of the rule making are a promising first step toward bringing
video programming into the 21st century for all Americans.
111

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