APPROVING IN PART AND CONCURRING IN PART
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-
Voltaire's La Bguele
opens with an observation invaluable for Commission officials involved in
the collaborative arts: "[L
]e mieux est l'ennemi du bien
," or "The best [or perfect] is the enemy of the
good." It's in this spirit that I am voting to approve in part and concur in part in this Order on
Reconsideration and Further Notice of Proposed Rulemaking. Although not "the best," today's item
improves upon the earlier IP Closed Captioning Order
Let's start with the many areas where I agree with my colleagues. To begin with, I support the
Commission's decision to deny TVGuardian's petition for reconsideration. I also agree with our decision
to leave in place the Commission's determination that video clips shouldn't be covered by our IP closed
captioning rules. Furthermore, I too believe we should clarify that the Commission's January 1, 2014
compliance deadline applies to the date of an apparatus's manufacture. Finally, I endorse seeking further
comment on whether any synchronization requirements should be placed on apparatus manufacturers.
However, I concur in part because I would interpret the text of the Twenty-First Century
Communications and Video Accessibility Act of 2010 (CVAA) differently with respect to two issues.
, I would use a different test to evaluate whether an apparatus is covered by our IP closed
captioning rules. The statute only covers devices "designed to
receive or play back video programming."2
This, in my view, requires more than looking just to an apparatus's capabilities, the standard adopted in
the prior order and reaffirmed today.3 The word "designed" indicates manifested intent,4 and interpreting
the statute as not requiring any
measure of intent essentially reads the phrase "designed to" out of the
To be sure, today's item claims that the Commission looks to "the device's functionality . . . to
determine what the device was designed to accomplish."6 But functionality is not always aligned with
intent. Take, for example, the drug commonly known as Propecia. Although it certainly is capable of
reversing male pattern baldness, Propecia was not designed for this purpose. Rather, it was developed to
1 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, Report and Order, 27 FCC
Rcd 787 (2012) (IP Closed Captioning Order
2 47 U.S.C. 303(u)(1) (emphasis added).
3 IP Closed Captioning Order
, 27 FCC Rcd at 842, para. 95; Order on Reconsideration and Further Notice of
Proposed Rulemaking at para. 5 (Recon. Order
Webster's New International Dictionary 707 (2d ed. 1940) (defining "design" as "to conceive or execute a
scheme or plan for the making of anything" or "to plan; to intend").
5 Under the Commission's interpretation, the result would be the same whether the statute read "apparatus that
receives or plays back video programming" or (as it does) "apparatus designed to receive or play back video
47 U.S.C. 303(u)(1).
6 Recon. Order
at para. 7.
treat enlarged prostates.7 Similarly, while a credit card can sometimes open locked doors,8 I don't think
anyone would say that it was designed to do so.
I share my colleagues' concern that a subjective intent test would grant manufacturers too much
leeway by allowing them to "evade our requirements by claiming that they did not intend such use."9
This is one reason why I favor using an objective intent test to determine whether an apparatus is covered
by the statute and our IP closed captioning rules. In particular, we should ask whether a reasonable
person would conclude that a device was intended to receive or play back video programming.10 While a
device's functionality would certainly be highly probative evidence in such an inquiry, it would not
always be outcome determinative. For example, I do not believe that a reasonable person would conclude
that the devices that are the subject of the waivers granted in today's item, such as digital still cameras
and baby monitors, were intended to receive or play back video programming.
That said, the Commission today reaches a similar result by taking a different path. In particular,
the Commission's application of the "primarily designed" test to grant waivers,11 in which it assesses
whether an apparatus's video capability is only incidental, will generally arrive at the same outcome as an
objective intent test. So while my preferred approach would give meaning to the phrase "designed to" in
the statute and lighten the workload of the Commission and stakeholders in addressing future waiver
requests, I think the real-world outcome of today's item is generally acceptable in the context of closed
captioning (and definitely an improvement over the status quo).
, I would not interpret the CVAA to impose a closed-captioning requirement on removable
media players. The statute applies such requirements on "apparatus designed to receive or play back video programming transmitted simultaneously with sound
."12 The word "transmitted" is most logically
read to refer to the transmission of programming to the device (e
., from a cable head-end to a set-top
box) rather than from the device to the end user (e
., from a television to a viewer). That's certainly the
usual meaning of the word "transmit" in communications law.13 Moreover, absent a clear indication to
the contrary, we should hesitate to extend our jurisdiction beyond its traditional bounds. Congress, after
Susan Scutti, "Schizophrenic Drugs That Can Kill Antibiotic-Resistant Bacteria," Medical Daily, May 17,
2013 ("Propecia, for instance, was originally marketed as Proscar and was intended to treat the benign enlargement
of the prostate. After five years on the market, it became known that one of the side effects of Proscar was hair
growth on bald men; now it is used to treat male-pattern baldness."), available at
8 See, e.g.
, The French Connection
(20th Century Fox 1971).
10 Similar intent tests are used in other contexts. See, e.g.
, Sigma-Tau Pharmaceuticals, Inc. v. Schwetz
, 288 F.3d
141, 146 (4th Cir. 2002) (explaining FDA's objective intent test in assessing drugs, which involves examining both
direct expressions by manufacturers and "the circumstances surrounding the distribution of the article").
11 See Recon. Order
at para. 12.
12 47 U.S.C. 303(u)(1) (emphasis added).
13 See, e.g.
, 47 U.S.C. 152(a); Am. Library Ass'n v. FCC
, 406 F.3d 689, 705 (D.C. Cir. 2005) (invalidating certain
regulations affecting how DTV devices share content with recording devices because such sharing occurs "after a
transmission is complete"); see also, e.g.
, Webster's New International Dictionary 269293 (2d ed. 1940) (defining
"transmit" as "to send or transfer from one person or place to another; to forward by rail, post, wire, etc.").
all, does not "hide elephants in mouseholes."14 Several other statutory considerations also counsel a more
restrained approach with respect to removable media players.15
Looking at the bigger picture, I also believe that the structure of the CVAA (as well as the
Communications Act) suggests that Congress did not intend to impose closed-captioning requirements on
DVD and Blu-ray players. Given that distributors of DVDs and Blu-ray discs are under no legal
obligation to include closed captioning along with their video programming,16 it doesn't seem to me that
Congress meant to require DVD and Blu-ray players to display closed captions. Indeed, Blu-ray discs do
not even have a standard format for closed captioning.17
Nevertheless, I appreciate the Commission's decision today to delay application of the closed-
captioning requirements to DVD and Blu-ray players pending resolution of the Further Notice of
Proposed Rulemaking on this issue. If we ultimately levy these requirements on removable media
players, I hope we do so in a minimally intrusive manner.
Finally, I would like to thank my colleagues for their willingness to incorporate my suggestions
and commend Chairwoman Clyburn for her leadership in implementing the CVAA. Less than a month
into her tenure as the head of our agency, we have already adopted two items that bring us closer to
realizing the statute's promise. This is a significant accomplishment.
14 Whitman v. American Trucking Association
, 531 U.S. 457, 468 (2001).
15 For one, the statute uses the past participle "transmitted," which suggests completed action--i.e.
programming that has already been transmitted simultaneously with sound, not video programming that is being or
will be transmitted simultaneously with sound.
For another, before the CVAA amended section 303(u), that section discussed "video programming broadcast
simultaneously with sound"--a clear reference to how the device received the programming, not how it was
displayed. In amending that statutory term, Congress broadened the provision to encompass non-broadcast
transmissions; it seems unlikely that Congress meant not to broaden the provision but to change its fundamental
scope. This is especially so in light of the fact that Congress adopted the CVAA to adapt the Communications Act
to the "fundamental transformation, driven by growth in broadband," of the communications marketplace since
1996, House Report 111-563, at 19 (Committee on Energy and Commerce July 26, 2010); Congress was certainly
aware of the development of the Sony Betamax, the VCR, the computer diskette, the DVD player, the Zip drive, the
USB card, the Blu-Ray player, and other removable media players, but adapting the law to them was not the purpose
of the CVAA.
For yet another, this interpretation of "transmitted" cannot be applied coherently to other statutory provisions that
use the same term. Section 203 of the CVAA also includes section 303(z) of the Communications Act, and uses
parallel language about recording devices--but if a recording device doesn't play back any video programming (and
thus does not itself "transmit" the programming simultaneously with sound to the user), does the question become
whether video programming might eventually be transmitted (or is intended to be transmitted) simultaneously with
sound? Similarly, section 201(e)(2)(F) of the CVAA requires "a recommendation for the standards, protocols, and
procedures used to enable the functions of apparatus designed to receive or display video programming transmitted
simultaneously with sound (including apparatus designed to receive or display video programming transmitted
means of services using Internet protocol) to be accessible to and usable by individuals with disabilities" (emphases
added). Under the Commission's interpretation, how could video programming be "transmitted" to the user "by
means of services using Internet protocol"?
16 See IP Closed Captioning Order
, 27 FCC Rcd at 846, para. 99 & n.398.
17 See Recon Order
at para. 21 & n.78; see also
Reply Comments of CEA at 7 n.32.