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Federal Communications Commission DA 10-253

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Closed Captioning of Video Programming
)
CGB Docket No. 05-231
)

ORDER

Adopted: February 16, 2010

Released: February 16, 2010
By the Chief, Consumer and Governmental Affairs Bureau:

I.

INTRODUCTION

1. In this Order, the Consumer and Governmental Affairs Bureau (Bureau) waives in part the
requirement in amended section 79.1 of the Commission’s rules that video programming distributors
place certain contact information in telephone directories.1 Specifically, we waive amended section 79.1
to the extent that it requires video programming distributors to place contact information for the pursuit of
immediate closed captioning concerns and the filing of closed captioning complaints in local telephone
directories in which the distributor does not itself directly advertise or otherwise place commercial
listings, so long as the distributor makes the contact information available on its website or on billing
statements. We take this action in response to a Petition for Clarification or, in the Alternative, Waiver,
filed on April 23, 2009, by DISH Network L.L.C. (DISH Network) 2

II.

BACKGROUND

2. In the November 2008 Closed Captioning Order, the Commission required that video
programming distributors make available two types of contact information – information for the receipt
and handling of immediate closed captioning concerns by consumers, and information for written closed
captioning complaints. The Commission directed distributors to include this information on their
websites, in telephone directories, and in billing statements.3 As to websites, the Commission expressly
stated that if a distributor did not already have a website, it was not required to establish one for this
purpose.4 And as to billing statements, the Commission recognized that broadcasters do not issue billing


1 47 C.F.R. § 79.1. See Closed Captioning of Video Programming, Closed Captioning Requirements for Digital
Television Receivers, CG Docket No. 05-231, ET Docket No. 99-254, Declaratory Ruling, Order, and Notice of
Proposed Rulemaking, 23 FCC Rcd 16674 (Nov. 7, 2008) (November 2008 Closed Captioning Order). See also
Closed Captioning of Video Programming, Closed Captioning Requirements for Digital Television Receivers, CG
Docket No. 05-231, ET Docket No. 99-254, Erratum, DA 09-1373 (June 19, 2009). The provisions regarding
telephone directories, which the Commission adopted as a means for consumers to more easily reach distributor
personnel with concerns and complaints about closed captioning, will not become effective until the Commission
publishes a notice in the Federal Register announcing that the rules containing them have been approved by the
Office of Management and Budget (OMB). The provisions regarding telephone directories will be located in 47
C.F.R. § 79.1(i)(1) and (i)(2).
2 DISH Network L.L.C. Petition for Clarification, or, in the Alternative, Waiver (filed Apr. 23, 2009) (DISH
Network Petition). We note that the DISH Network Petition was filed several months after the deadline for filing
petitions for reconsideration of the November 2008 Closed Captioning Order.
3 November 2008 Closed Captioning Order, 23 FCC Rcd at 16686, para. 33.
4 Id.

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Federal Communications Commission DA 10-253
statements and therefore limited the requirement to apply only to the extent that billing statements are
issued.5
3. In its petition, DISH Network asks the Bureau to clarify that a video programming distributor is
not required to place advertisements or listings in telephone directories in order to provide closed
captioning information if the distributor does not otherwise use telephone directories as a direct means of
communication with viewers.6 In the alternative, DISH Network asks that the Bureau grant a permanent
waiver of the telephone directory rule “to the extent the Bureau deems necessary.”7

III. DISCUSSION

4. DISH Network, a national provider of direct broadcast satellite service, states that it does not
currently directly advertise or otherwise place commercial listings in local telephone directories, and does
not have direct relationships with publishers of local telephone directories. DISH Network instead
maintains a national toll-free telephone number and a comprehensive website for customer support.8
5. DISH Network asserts that there is a lack of clarity about whether amended section 79.1 requires
video programming distributors to provide closed captioning information in telephone directories if they
do not already utilize directories as a direct means of communicating with viewers.9 DISH Network
argues that if it must do so, the company would have to create new relationships with publishers of local
telephone directories in virtually every community in the United States, and that such a requirement
would be unduly burdensome.10 DISH Network notes that the Commission imposed the website and
billing statement requirements only on entities that currently have websites or use billing statements.11
On that basis, DISH Network states that it believes that the Commission did not intend to require the
creation of new relationships with telephone directory publishers in every community across the country
solely for the purpose of listing contact information for closed captioning complaints, and asks the Bureau
to clarify the rule as applying only when a distributor is already using telephone directories.12

6. As DISH Network itself points out, “the Commission did not similarly qualify the telephone
directory requirement,” as it did the website and billing statement requirements.13 Because the
“clarification” that DISH Networks seeks does not appear to be supported by the language of the
Commission’s order, we do not believe that it would be appropriate for the Bureau to clarify the
Commission’s order in the manner requested by DISH Network. We do, however, find good cause to
grant a limited waiver of the telephone directories provisions of amended section 79.1.14 While section
79.1(i) is designed to ensure that consumers are readily able to locate contact information for the pursuit
of immediate closed captioning concerns or the filing of closed captioning complaints, on balance we also


5 Id.
6 DISH Network Petition at 2.
7 Id.
8 Id. at 4-5.
9 Id. at 2.
10 Id. at 5.
11 Id. at 3.
12 Id. at 2.
13 Id. at 3.
14 The Commission may waive its regulations for good cause shown. 47 C.F.R. § 1.3. In general, the waiver request
must demonstrate special circumstances warranting a deviation from the general rule and that such a deviation will
serve the public interest. See Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990)
(citing WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969)).
2

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Federal Communications Commission DA 10-253
are persuaded that compliance with the telephone directories provisions could be unduly burdensome
where a company does not already use telephone directories, particularly for a nationwide company such
as DISH Network.15 We therefore waive amended section 79.1 to the extent that it requires video
programming distributors to place contact information for the pursuit of immediate closed captioning
concerns and the filing of closed captioning complaints in local telephone directories in which the
distributor does not itself directly advertise or otherwise place commercial listings, so long as the
distributor makes the contact information available on its website or in billing statements.16 For purposes
of this waiver, we define commercial listing to include any paid advertisement or other paid listing. This
might include, for example, a paid expanded listing that contains more than merely name, location, and
telephone number, or a listing in a larger, bolded, or highlighted font as compared to the standard listing,
or the listing of a toll free (rather than local) number. In instances where a distributor has already
contracted for a paid advertisement or other paid listing, DISH Network’s concern that it would have to
establish new relationships with directory publishers is inapplicable, and there is therefore no reason to
waive the telephone directory requirement.

III.

ORDERING CLAUSE

7. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 713 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 154(i) and 613, section 1.3 of the Commission’s rules, 47 C.F.R.
§ 1.3, and the authority delegated pursuant to sections 0.141 and 0.361 of the Commission’s rules (47
C.F.R. §§ 0.141 and 0.361), 47 C.F.R. § 79.1(i)(1) and (i)(2) IS WAIVED to the extent described
herein.17
FEDERAL COMMUNICATIONS COMMISSION
Joel Gurin
Chief
Consumer and Governmental Affairs Bureau


15 See, e.g., DISH Network Petition at 5 (noting that because of DISH Network’s nationwide footprint, amended
section 79.1 would require it to “create new relationships with the local telephone directory provider in virtually
every community in the U.S., big and small,” and that such a requirement would impose unreasonable financial and
personnel burdens).
16 In accordance with paragraph 33 of the November 2008 Closed Captioning Order, distributors must make the
contact information available both on their websites and in billing statements, if they have a website and issue
billing statements. See November 2008 Closed Captioning Order, 23 FCC Rcd at 16686. We note that consumers
will also have access to closed captioning contact information on the Commission’s website. Id. at 16686-87, para.
34; see also Closed Captioning of Video Programming, CG Docket No. 05-231, Order, 24 FCC Rcd 14837 (Dec.
11, 2009).
17 This waiver is effective immediately upon publication of notice in the Federal Register that OMB has approved
section 79.1(i)(1). See supra note 1.
3

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