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Closed Captioning of Video Programming

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Released: December 11, 2009

Federal Communications Commission

FCC 09-71

Before the

Federal Communications Commission

Washington, D.C. 20554

)
In the Matter of
)
)

Closed Captioning of Video Programming
)
CG Docket No. 05-231
)

ORDER SUSPENDING EFFECTIVE DATE

Adopted: September 8, 2009

Released: December 11, 2009

By the Commission:

I.

INTRODUCTION

1. In this Order, we temporarily stay the effective date of 47 C.F.R. § 79.1(g)(3), relating to
complaints about closed captioning of television programs. That amended rule, adopted in November
2008,1 requires video programming distributors in certain circumstances to forward closed captioning
complaints to third parties. Such a requirement, however, appears to conflict with certain provisions of
the Communications Act (Act) that prohibit disclosure of personally identifiable information to third
parties. To avoid placing video programming distributors in the untenable position of having to choose
whether to comply with the closed captioning rule or with a conflicting statutory provision, we are
temporarily suspending the effective date of the rule while we consider how to revise it.2

II.

DISCUSSION

2. Amended section 79.1(g)(3), adopted in November 2008, but not yet effective, requires that:
Complaints sent to a video programming distributor regarding programming by a
television broadcast station or other programming for which the video programming
distributor is exempt from closed captioning responsibility pursuant to paragraph (e)(9)
of this section, shall be forwarded by the video programming distributor within seven (7)
days of receipt to the entity responsible for closed captioning of the programming at
issue. The video programming distributor must also notify the complainant and the
Commission that it has forwarded the complaint.3


1 Closed Captioning of Video Programming, Closed Captioning Requirements for Digital Television Receivers, CG
Docket 05-231 and ET Docket 99-254, Declaratory Ruling, Order, and Notice of Proposed Rulemaking, 23 FCC
Rcd 16674 (Nov. 7, 2008) (November 2008 Order). In the November 2008 Order, the Commission revised its rules
governing closed captioning complaint procedures by substantially amending section 79.1(g)
2 This rule is scheduled to become effective upon publication in the Federal Register of a notice that the Office of
Management and Budget has approved under the Paperwork Reduction Act the information collection implemented
by the rule. Id. at 16692, para. 52. Because such Federal Register publication has not yet occurred, the rule has not
yet taken effect.
3 Id. at 16693.

Federal Communications Commission

FCC 09-71

3. Section 631(c)(1) of the Act, however, appears to prohibit compliance with the rule.4 Section
631(c)(1) provides that “a cable operator shall not disclose personally identifiable information concerning
any subscriber without the prior written or electronic consent of the subscriber concerned.”5 Similarly,
section 338(i)(4) of the Act, which applies to satellite carriers, provides that “a satellite carrier shall not
disclose personally identifiable information concerning any subscriber without the prior written or
electronic consent of the subscriber concerned.”6
4. Amended section 79.1(g)(3) appears to conflict with the prohibitions contained in sections
631(c) and 338(i) of the Act. In particular, cable or satellite operators would violate these provisions if
they complied with section 79.1(g)(3) by forwarding complaints containing a subscriber’s personal
information without first obtaining the subscriber’s consent to disclose personally identifiable
information. Given this apparent conflict, we find good cause to suspend the effective date of section
79.1(g)(3) temporarily without prior notice and comment. Because allowing this rule to take effect would
subject companies to conflicting legal obligations, we find that seeking comment on whether to suspend
the rule would be impractical, unnecessary, and contrary to the public interest. 7
5. The Commission intends to issue a notice of proposed rulemaking in the near future to seek
comment on a revised rule for handling closed captioning complaints, to replace section 79.1(g)(3) as
adopted in the November 2008 Order. In the interim, the other rules adopted in the November 2008
Order
are not affected, and will take effect as scheduled.8

III.

CONCLUSION

6. We find good cause to suspend temporarily the effective date of section 79.1(g)(3), without
prior notice and comment. Therefore, that rule will not take effect, pending completion of further
rulemaking proceedings to determine how the closed captioning complaints at issue should be handled.

IV.

PROCEDURAL MATTERS

7. Persons with Disabilities. To request materials in accessible formats for people with
disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call
the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice) or 202-418-0432 (TTY). This
Order Suspending Effective Date also can be downloaded in Word and Portable Document Formats
(PDF) at https://www.fcc.gov/cgb/dro/caption.html.


4 On June 10, 2009, Time Warner Cable filed an ex parte letter in which it raised this issue and suggested that the
Commission should provide further guidance on how to comply with the rule. See Letter from Christina Pauzé,
Vice President, Federal Regulatory Affairs, Time Warner Cable, to Amelia Brown, FCC, dated June 10, 2009.
5 47 U.S.C. § 551(c)(1). There are some listed exceptions to this prohibition, none of which appears to apply to the
situation at hand.
6 47 U.S.C. § 338(i)(4)(A). As with section 631, there are some listed exceptions, but they do not appear to apply.
7 5 U.S.C. § 553(b)(3)(B)(notice and comment not required when an agency for good cause finds “that notice and
public procedure thereon are impracticable, unnecessary or contrary to the public interest").
8 This includes other subsections of amended 47 C.F.R. § 79.1(g). We further clarify that although we are
suspending temporarily the effective date of amended section 79.1(g)(3), the previous version of section 79.1(g)(3)
will not remain in effect. When the other rules adopted in the November 2008 Order take effect, the iteration of
section 79.1(g)(3) in existence since prior to the November 2008 Order will be eliminated.
2

Federal Communications Commission

FCC 09-71

8. Congressional Review Act. The Commission will send a copy of this Order Suspending
Effective Date in a report to be sent to Congress and the Government Accountability Office pursuant to
the Congressional Review Act.9

V.

ORDERING CLAUSE

9. Accordingly, IT IS ORDERED that, pursuant to sections 4(i), 303(r) and 713 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r) and 613, this Order Suspending
Effective Date
IS ADOPTED. IT IS FURTHER ORDERED that this Order Suspending Effective Date
SHALL BE EFFECTIVE UPON PUBLICATION IN THE FEDERAL REGISTER.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary


9 See 5 U.S.C. § 801(a)(1)(A).
3

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