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Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C 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 ) ) Closed Captioning of Internet Protocol-Delivered ) Video Clips ) To: The Commission REPLY COMMENTS OF THE DIGITAL MEDIA ASSOCIATION The Digital Media Association (“DiMA”) hereby submits these Reply Comments in response to the Commission’s Second Further Notice of Proposed Rulemaking (“FNPRM”) concerning closed captioning of video clips delivered using Internet Protocol (“IP”).1 DiMA agrees with commenters in the above-captioned proceeding that the Commission should not extend its IP closed captioning rules to video clips located on the websites or apps of third-party video programming distributors and providers. In addition, DiMA urges the Commission not to adopt closed captioning requirements for mashups and advance clips, as those categories are defined in the FNPRM, and to maintain the grace periods it has established for IP-delivered video clips of live and near-live television programming. 1 Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010; Closed Captioning of Internet Protocol-Delivered Video Clips, Second Order on Reconsideration and Second Further Notice of Proposed Rulemaking, 29 FCC Rcd 8687 (2014) (“Video Clips Order”). I. The Commission Should Not Require Closed Captioning for Video Clips Distributed or Provided by Third Parties. DiMA agrees with the National Association of Broadcasters (“NAB”) and the National Cable & Telecommunications Association (“NCTA”) that the Commission should not extend its IP closed captioning rules to video clips on third-party websites or apps.2 The Commission has correctly determined that it does “not have an adequate record for purposes of applying the IP closed captioning rules to the provision of video clips by . third party distributors,”3 and the comments filed on this issue provide no basis to change that determination. To the contrary, NAB and NCTA have highlighted the serious problems associated with such a proposal, including the significant difficulty of identifying which of a multitude of video clips that may be available on a third-party website or app have appeared on television in the United States with captions. DiMA agrees with NAB’s assertion that “no system exists that identifies whether a clip was previously shown on television before it was posted as an online video clip.”4 DiMA also shares the view that any such systems developed in the future “will likely be proprietary, expensive and not easily scaled across industry due to each [video programming owner’s] individual clip creation process.”5 NAB and NCTA have also demonstrated why it is appropriate for the Commission to exclude third-party websites and apps from the IP closed captioning rules for video clips. For example, NCTA cites several ways in which the ecosystem surrounding the distribution of video clips online is even more complex than for online distribution of long-form television 2 See NAB Comments at 10–15; NCTA Comments at 2–6. 3 Video Clips Order ¶ 37 (internal quotation marks omitted). 4 NAB Comments at 11. 5 Id. 2 programming, principally because clips can come from a variety of sources and are found on a range of sites.6 NCTA also enumerates the ways in which “the practices for licensing full-length programming and clips to third party sites differ in scale, timing, and technology.”7 By contrast, the consumer groups’ entirely unsupported assertion that “requiring third-party distributors to deliver video clips with captions is fundamentally simple using the model adopted in the IP captioning rules”8 ignores these key differences and provides no basis for the Commission to extend the IP closed captioning rules to video clips on third-party websites or apps.9 II. The Commission Should Not Require Closed Captioning for Mashups. DiMA urges the Commission not to apply IP closed captioning requirements to mashups, a term that the Commission has defined as “files that contain a combination of one or more video clips that have been shown on television with captions, and other content (such as online-only content) that has not been shown on television with captions.”10 The FNPRM asks whether the fact that “an online program itself was not shown on television with captions, but rather only 6 See, e.g., NCTA Comments at 3 (“Unlike long-form television programming, typically available online through a defined number of distribution outlets, IP-delivered video clips can be found all over the web. They can be seen on sites ranging from the originating programmer’s website to individual users’ Facebook postings, and myriad different places in between.”). 7 Id. at 4. 8 Comments of Telecommunications for the Deaf and Hard of Hearing, Inc. et al. at 6. 9 However, in the event the Commission does extend the closed captioning obligations to third- party clips, it should utilize the same allocation of responsibility vis-à-vis video programming owners and video programming providers used for full-length video programming. Although there would be significant difficulties in applying that regime to clips for the reasons discussed by NAB and NCTA, no alternative mechanism is viable either. As the Commission has recognized, video programming owners are better able to assess whether captions are required for a particular program than video programming distributors and are more likely to possess the rights necessary to caption that content. Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Report and Order, 27 FCC Rcd 787 ¶¶ 19, 24 (2012). 10 Video Clips Order ¶ 44. See also id. (“We recognize that any part of the video clip that was not shown on television with captions, such as online-only content, would not be subject to the IP closed captioning requirements.”). 3 isolated clips embedded in the program were . render[s] the program in its entirety (including integrated clips of televised captioned programming) outside the scope of the CVAA.”11 DiMA strongly agrees with NAB and NCTA that a mashup is in fact a “new work,” as the FNPRM suggests, and therefore “does not constitute ‘video programming . that was published or exhibited on television with captions’ subject to the statutory obligations.”12 NAB and NCTA also correctly point out that a captioning requirement for mashups would pose a number of practical and policy concerns and so extending the captioning rule to that content would not be in the public interest.13 III. The Commission Should Not Require Closed Captioning for Advance Clips. DiMA agrees with NAB and NCTA that the Commission should not apply IP closed captioning requirements to advance clips. As a preliminary matter, both NAB and NCTA raised significant questions regarding the Commission’s authority to regulate advance clips both before—and after—the associated programming is displayed on television.14 Moreover, NAB and NCTA have outlined several practical concerns that counsel against a closed captioning requirement for advance clips, including the fact that there is currently no way to track and 11 Id. ¶ 45. 12 NCTA Comments at 10. See also NAB Comments at 16 (“A mashup is a completely new video program that was never televised with captions and is not comparable to that programming televised by broadcast stations.”). 13 NAB Comments at 16–17; NCTA Comments at 10–11. 14 See NAB Comments at 7 (“Because advance clips, by definition, have not been ‘published or exhibited on television,’ the Commission lacks authority to require their captioning unless and until they have been aired.”); NCTA Comments at 7 (“The legal status of [advance] clips does not change once the associated video programming is shown on television with captions. Because advance clips are published online before programming is published or exhibited on television with captions, such clips are not covered.”). 4 replace the enormous number of advance clips distributed online once the associated programming has been shown on television with captions.15 IV. The Commission Should Not Shorten or Eliminate the Grace Periods Applicable to IP-Delivered Video Clips of Live and Near-Live Television Programming. In its Order establishing IP closed captioning requirements for video clips, the Commission established grace periods applicable to clips of live and near-live television programming, finding that “[i]f distributors were prohibited from posting video clips of live and near-live programming online until captions are available, then all consumers would be denied access to potentially time-sensitive information during that time.”16 In the FNPRM, the Commission sought comment on whether to decrease or eliminate these grace periods in the future.17 DiMA shares the view of both NAB and NCTA that since the Commission’s Order was adopted, “nothing has changed to make an accelerated timeframe more reasonable or achievable.”18 The Commission therefore should maintain the existing grace periods and avoid speculation regarding the speed with which automated solutions justifying shorter grace periods will be available. Conclusion For the foregoing reasons, the Commission should refrain from applying the IP closed captioning rules for video clips
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