Federal Register / Vol. 79, No. 61 / Monday, March 31, 2014 / Rules and Regulations 17911

FEDERAL COMMUNICATIONS Broadcasters (NAB); and takes various to comment on the information COMMISSION other actions to clarify and improve the collection requirements contained in Commission’s closed captioning rules. document FCC 14–12 as required by the 47 CFR Part 27 DATES: Effective April 30, 2014, except Paperwork Reduction Act (PRA) of for 47 CFR 79.1(e)(11)(i) and (ii), which 1995, Public Law 104–13, in a separate Miscellaneous Wireless shall be effective June 30, 2014, and 47 notice that will be published in the Communications Services CFR 79.1(c)(3), (e)(11)(iii), (iv) and (v), Federal Register. CFR Correction (j), and (k) of the Commission’s rules, Synopsis which contain new information In Title 47 of the Code of Federal collection requirements that have not 1. Closed captioning is a technology Regulations, Parts 20 to 39, revised as of been approved by the Office of that provides visual access to the audio October 1, 2013, on page 351, in § 27.50, Management and Budget (OMB). The content of video programs by displaying the stars following paragraph (d)(1) are Commission will publish a separate this content as printed words on the removed and paragraphs (d)(1)(A) and document in the Federal Register television screen. In addition to displaying text of verbal dialogue, (B) and (d)(2)(A) and (B) are reinstated announcing the effective date. to read as follows: captions generally identify speakers, FOR FURTHER INFORMATION CONTACT: Eliot sound effects, music, and audience § 27.50 Power limits and duty cycle. Greenwald, Consumer and reaction. Because closed captioning is * * * * * Governmental Affairs Bureau, Disability hidden as encoded data transmitted (d) * * * Rights Office, at (202) 418–2235 or within the television signal, consumers (1) * * * email [email protected]. can turn the captions on or off. (A) an equivalent isotropically SUPPLEMENTARY INFORMATION: This is a 2. In 1996, Congress added § 713 to radiated power (EIRP) of 3280 watts summary of the Commission’s Closed the Communications Act (the Act), when transmitting with an emission Captioning of Video Programming; directing the Commission to prescribe bandwidth of 1 MHz or less; Telecommunications for the Deaf and rules for the closed captioning of (B) an EIRP of 3280 watts/MHz when Hard of Hearing; Petition for televised video programming. 47 U.S.C. transmitting with an emission Rulemaking Report and Order (Order), 613. Section 713(b) of the Act directs bandwidth greater than 1 MHz. document FCC 14–12, adopted on the Commission to prescribe regulations (2) * * * February 20, 2014 and released on to ensure that ‘‘video programming first (A) an equivalent isotropically February 24, 2014, in CG Docket No. published or exhibited after the effective radiated power (EIRP) of 1640 watts 05–231. In document FCC 14–12, the date of such regulations is fully when transmitting with an emission Commission also seeks comment in an accessible through the provision of bandwidth of 1 MHz or less; accompanying Further Notice of closed captions’’ and that ‘‘video (B) an EIRP of 1640 watts/MHz when Proposed Rulemaking (FNPRM), which programming providers or owners transmitting with an emission is summarized in a separate Federal maximize the accessibility of video bandwidth greater than 1 MHz. Register Publication. The full text of programming first published or * * * * * document FCC 14–12 will be available exhibited prior to the effective date of [FR Doc. 2014–07200 Filed 3–28–14; 8:45 am] for public inspection and copying via such regulations through the provision BILLING CODE 1505–01–D ECFS, and during regular business of closed captions. . . .’’ In 1997, the hours at the FCC Reference Information Commission adopted rules that now Center, Portals II, 445 12th Street SW., require captioning on all new English FEDERAL COMMUNICATIONS Room CY–A257, Washington, DC 20554. and Spanish language programming, COMMISSION It also may be purchased from the both analog and digital, which is not Commission’s duplicating contractor, specifically exempt from the 47 CFR Part 79 Best Copy and Printing, Inc., Portals II, Commission’s rules. In addition, 75% of all nonexempt pre-rule English and [CG Docket No. 05–231; FCC 14–12] 445 12th Street SW., Room CY–B402, Washington, DC 20554, telephone: (800) Spanish language programming must be Closed Captioning of Video 378–3160, fax: (202) 488–5563, or closed captioned. Closed Captioning Programming; Telecommunications for Internet: www.bcpiweb.com. and Video Description of Video the Deaf and Hard of Hearing; Petition Document FCC 14–12 can also be Programming; Implementation of for Rulemaking downloaded in Word or Portable Section 305 of the Telecommunications Document Format (PDF) at: http:// Act of 1996, Video Programming AGENCY: Federal Communications www.fcc.gov/encyclopedia/disability- Accessibility, MM Docket No. 95–176, Commission. rights-office-headlines. To request Report and Order, (1997 Closed ACTION: Final rule. materials in accessible formats for Captioning Report and Order); people with disabilities (Braille, large published at 62 FR 48487, September SUMMARY: In this document, the print, electronic files, audio format), 16, 1997. Commission adopts non-quantitative send an email to [email protected] or call 3. On July 23, 2004, advocacy groups quality standards for the closed the Consumer and Governmental Affairs representing individuals who are deaf captioning of pre-recorded, live, and Bureau at 202–418–0530 (voice), 202– and hard of hearing (Petitioners or near-live programming to ensure that 418–0432 (TTY). Consumer Groups) filed a joint petition caption viewers have full access to for rulemaking (2004 Petition) seeking television programming; establishes best Final Paperwork Reduction Act of 1995 amendments to the Commission’s practices for the provision of good Analysis captioning rules pertaining to matters of quality captions; imposes new Document FCC 14–12 contains new captioning quality, scope, and requirements on broadcasters using information collection requirements. enforcement. On September 2, 2004, the Electronic Newsroom Technique (ENT) The Commission, as part of its Commission placed the 2004 Petition on based on a best practices proposal continuing effort to reduce paperwork public notice. Consumer and offered by the National Association of burdens, will invite the general public Governmental Affairs Bureau Reference

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Information Center Petition for Captioning Rules, CG Docket No. 05– as when such programs are shown on Rulemaking Filed, Public Notice, Report 231, ET Docket No. 99–254, Public television. Closed Captioning of Internet No. 2670, RM–11065, September 2, Notice, (2010 Refresh Public Notice); Protocol-Delivered Video Programming: 2004. On July 21, 2005, the Commission published at 75 FR 70168, November 17, Implementation of the Twenty-First released the 2005 Closed Captioning 2010. Century Communications and Video NPRM granting the 2004 Petition and 7. Need for Standards. Although the Accessibility Act of 2010, MB Docket initiating a proceeding to examine the record in this proceeding shows that No. 11–154, Report and Order, (IP Commission’s closed captioning rules. some effective quality control Captioning Report and Order); Closed Captioning of Video mechanisms for captions have been put published at 77 FR 19480, March 30, Programming; Telecommunications for into place during this period, hundreds 2012. The expanded availability of the Deaf, Inc., Petition for Rulemaking, of commenters remain dissatisfied with television programming on the Internet CG Docket No. 05–231, Notice of captioning quality that they claim that will result from implementation of Proposed Rulemaking, (2005 Closed impairs the accessibility of television this section of the CVAA makes Captioning NPRM); published at 70 FR programming by viewers who are deaf ensuring the quality of captioning on 56150, November 25, 2005. and hard of hearing. Specifically, shows aired on television in the first 4. On November 7, 2008, the commenters report captions that are instance all the more important. Commission released the 2008 Closed inaccurate, garbled, incomplete, 10. Accuracy, Synchronicity, Captioning Decision that responded in misspelled and/or misunderstood, Completeness and Placement. part to the 2004 Petition by amending incomprehensible, obscure the speaker, Document FCC 14–12 amends the the captioning complaint process to or significantly lag behind the spoken Commission’s rules, as described below, allow consumers to file complaints words they are intended to convey. This to require that captions (1) accurately directly with the Commission and by confirms inconsistencies in the quality reflect what is in the program’s audio specifying new timelines by which such of closed captioning throughout the track by matching the dialogue, music, complaints must be addressed. Closed industry and supports the Consumer and sounds, and identify the speakers; Captioning and Video Programming, Groups’ contention that the marketplace (2) are delivered synchronously with the Closed Captioning Requirements for alone has not provided effective corresponding dialogue and other Digital Television Receivers, CG Docket incentives for all providers to maintain sounds at a speed that can be read by No. 05–231, ET Docket No. 99–254, good quality captioning. viewers; (3) are complete for the entire Declaratory Ruling, Order and Notice of 8. Accordingly, based on the instant program; and (4) do not obscure Proposed Rulemaking, (2008 Closed record, the Commission identifies, in important on-screen information and are Captioning Decision); published at 74 document FCC 14–12, quality standards not obscured by other information on FR 1594, January 13, 2009. The that are necessary to achieve the Act’s the screen. Each of these four Commission also adopted rules requirement for new video programming components is essential to ensure that requiring VPDs to make available to be ‘‘fully accessible through the video programming is fully accessible to contact information for the receipt and provision of closed captions,’’ and for people who are deaf and hard of hearing handling of immediate closed ‘‘video programming providers or through the provision of closed captioning concerns by consumers, and owners [to] maximize the accessibility captions. contact information for written closed of video programming first published or 11. Accuracy. In order to be accurate, captioning complaints. The Commission exhibited prior to the effective date of captions must match the spoken words has since developed a database to such regulations through the provision in the dialogue, in their original collect VPD contact information, Closed of closed captions. . . .’’ 47 U.S.C. language (English or Spanish), to the Captioning of Video Programming, CG 613(b). These standards will help ensure fullest extent possible and include full Docket No. 05–231, Order, (Captioning the uniform provision of good quality lyrics when provided on the audio Contact Webform Order); published at captions as intended by Congress and track. To accurately convey the dialogue 75 FR 7368, February 19, 2010, and will provide a mechanism for in a program, closed captions need to issued public notices to inform VPDs of addressing consumer complaints about contain all words in the order spoken, their obligation to file such contact captioning problems. The Commission without paraphrasing or substituting information. In the 2008 Closed expects that the quality standards the words for proper names and places, Captioning Decision, the Commission Commission now adopts will have little contain proper spelling (including also clarified that all nonexempt digital impact on the operations of entities that appropriate homophones, such as programming must be captioned already have quality control systems ‘‘their,’’ not ‘‘there’’), and provide, as pursuant to the applicable benchmark that provide high quality captioning. needed to understand the program, for that type of programming. The 9. Section 202 of the Twenty-First appropriate punctuation and Commission also sought comment on Century Communications and Video capitalization to reflect natural the extent to which the self- Accessibility Act of 2010 (CVAA), linguistic breaks and the flow of the implementing exemption in Public Law 111–260, 124 Stat. 2751 dialogue, the proper tense, and the § 79.1(d)(12) of the Commission’s rules (October 8, 2010), technical accurate representation of numbers for video programming channels that amendments, Public Law 111–265, 124 (including currency figures with produce annual gross revenues of less Stat. 2795 (October 8, 2010), requires appropriate symbols or words). than $3 million during the previous the Commission to mandate closed Paraphrasing generally should not be calendar year should apply to digital captioning on video programming used where the entirety of the dialogue broadcasters that multicast. delivered using Internet protocol (‘‘IP’’) can be conveyed through captions. 5. On October 25, 2010, the Consumer when such programming is shown on Nevertheless, in certain circumstances, and Governmental Affairs Bureau (CGB) television with captions after the paraphrasing may be necessary to issued a Public Notice seeking to refresh effective date of the Commission rules. ensure that the intended audience can the record in this proceeding. Consumer In January 2012, the Commission capture the content of the program. For and Governmental Affairs Bureau Seeks adopted rules to implement section 202, example, at times, paraphrasing may be to Refresh the Record on Notices of requiring that captioning of IP-delivered needed if time does not permit Proposed Rulemaking Regarding Closed programs be of at least the same quality providing verbatim captions, such as

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when the time lag between when the displayed on the screen at a speed that will be considered to comply with the dialogue occurs and the captions appear can be read by viewers. While the Commission’s captioning quality on live programming would prevent Commission recognizes that everyone standards if it contains no other errors complete captioning of the program’s reads at a different speed, captions than those we consider de minimis. audio content unless summarization should not blink on and off at a speed Rather than specifying particular criteria occurs. that is too quick to read or otherwise be that it will apply for a de minimis 12. Accurate captions do not rewrite paced at a speed that is difficult to read. determination, in determining whether dialogue, or use synonyms to replace 15. Program Completeness. In order a failure to comply with the captioning actual dialogue. Where necessary to for a program’s captions to be complete, quality standards is de minimis, the understand a program’s content, captions must run from the beginning to Commission will consider the particular accurate captions also convey the the end of the program, to the fullest circumstances presented, including the manner and tone of the speaker’s voice. extent possible. type of failure, the reason for the failure, Similarly, where slang or grammatical 16. Placement. To be appropriately whether the failure was one-time or errors are intentionally used in a placed, captions should not block other continuing, the degree to which the program’s dialogue, accuracy dictates important visual content on the screen program was understandable despite the that captions mirror such slang and including, but not limited to, character errors, and the time frame within which errors. Accuracy also requires that faces, featured text (e.g., weather or corrective action was taken to prevent utterances (e.g., ‘‘um’’) and false starts other news updates, graphics and such failures from reoccurring. credits), and other information that is be captioned if needed for the viewer to 18. Use of real-time captioning understand the program. In addition, essential to understanding a program’s techniques for pre-recorded except as prohibited by 47 CFR 73.3999 content when the closed captioning programming. Although offline of the Commission’s rules, which feature is activated. Appropriate caption captioning techniques are generally restricts the broadcast of obscene and placement also dictates that the caption used for pre-recorded programming, at indecent material pursuant to 18 U.S.C. font be sized appropriately for legibility, times programming providers use real- 1464, in which case both aural and and that captions be adequately time captioning techniques, which closed captioned programming must be positioned so they do not run off the generate and add captions to their pre- treated equivalently, aural words and edge of the video screen. Application of recorded programming as it airs to the phrases that may appear objectionable Standards to Types of Programming. For public. Although industry indicates that to the program owner, provider or VPD purposes of assessing compliance with or to the captioning agency when put in respect to each of these components, the real-time captioning for pre-recorded writing must nevertheless be captioned Commission will consider the type of programming is sometimes necessary, verbatim if made audible to the general programming at issue, i.e., pre-recorded, the record reflects that real-time public in a program’s dialogue. live, or near live programming, and captioning methods can result in a 13. In order to be accurate, captions thereby take into account, among other greater number of errors, greater must also provide nonverbal things, the time available to review and omissions than captions carefully information that is not observable, such edit captions on the particular type of prepared and reviewed in advance, and as who is speaking, the existence of programming prior to its distribution greater lag time between when the music (even when there are no lyrics to and display to viewers. Although, for words are spoken and captions appear, be captioned), sound effects, and purposes of addressing captioning making it difficult to follow who is audience reaction, to the greatest extent complaints with respect to live and speaking during a program. The possible, given the nature of the near-live programming, the Commission National Cable and program. If there is more than one will take into consideration the lack of Telecommunications Association speaker, the proper placement of an opportunity to review and edit (NCTA) has proposed Best Practices that captions dictates that each speaker be captions on these types of programming, state that a programmer will ensure that identified, through caption captions must make all types of pre-recorded programs generally are identification or caption placement, so programming understandable to the captioned offline before airing except that viewers can understand who is fullest extent possible, so that viewers when, ‘‘in the exercise of a speaking at any given time. When a who rely on captions have a comparable programmer’s commercially reasonable speaker is not on the screen, viewing experience to those who can judgment,’’ circumstances require real- identification of that individual in the hear the audio portion of the time or live display techniques for pre- caption text must also be provided if programming. recorded programming. Accordingly, viewers not using captions are able, 17. Pre-recorded programming. Pre- the Commission expects that as a from the program’s audio content, to recorded programming is programming general matter, the use of real-time discern the speaker’s identity. Finally, that is produced, recorded, and edited captioning methods for pre-recorded in order to be considered accurate, in advance of its first airing on programming will be limited to only captions must also be legible, with television. Generally, captioning done those situations when it is necessary to appropriate spacing between words to for pre-recorded programming is do so. After the captioning quality allow for readability. referred to as offline captioning, which standards have been in effect for one 14. Synchronicity. In order to be is the process of adding captions to a year, the Commission will review the synchronous, captions must coincide program after it has been produced, and extent to which the circumstances with their corresponding spoken words combining these captions with the permitting the continued use of real- and sounds to the greatest extent program before it airs. Because the time captioning techniques for pre- possible, given the type of the period between the time that a recorded programming have been programming. This means that captions captioning agency receives the program successful in improving captioning should begin to appear at the time that and the airing date is sufficient to allow quality on this type of programming as the corresponding speech or sounds the careful review and editing of part of an overall review of the Best begin and end approximately when the captions to ensure accuracy, Practices (discussed below). Depending speech or sounds end. In addition, synchronicity, program completeness, on the outcome of this review, the synchronicity requires that captions be and appropriate placement, captioning Commission will consider additional

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action to further limit the use of real- from programmers that the programmer scene to add a few seconds for the time techniques on pre-recorded is either in compliance with the transition to the next program content, programming, if necessary. Commission’s non-technical quality (2) advance delivery of the audio to 19. Live Programming. Document FCC standards or with the Best Practices captioners by a few seconds, and (3) 14–12 defines live programming as adopted herein, or is exempt from the allowing captions remaining at the end video programming that is shown on captioning obligations. of a program’s audio to be placed in a television substantially simultaneously 22. Synchronicity. The Commission location on the screen during captions with its performance. Captioning for recognizes that a slight delay in the on that advertisement or program. live programming, referred to as ‘‘real- delivery of live captions is inevitable 24. Placement. Entities certifying to time’’ captioning, is generated and due to the time it takes for the captioner their compliance with the captioning combined with programming while it is to hear the program, provide the quality standards will be considered to being aired, and there is little or no captions, and have the captions comply with the Commission’s opportunity to edit the captioning for transmitted to the viewer and will placement standards if they ensure the accuracy, synchronicity, program consider such technical limitations proper placement of captions on the completeness, and placement prior to when reviewing consumer allegations of screen to avoid obscuring on-screen airing. non-compliance regarding the lack of information and graphics to the extent 20. Accuracy. The Commission synchronicity between a live program’s possible. However, the Commission recognizes the greater hurdles involved audio track and its captions. At the recognizes that placement errors may be with captioning live programming, same time, in an effort to eliminate more frequent with certain types of live given the simultaneous production of delays that prevent caption viewers programming than with pre-recorded captions as the programming is aired, from understanding a program’s programming. The Commission will and the lack of time for the review and content, there are measures a take into consideration the type and correction of captions. The Captioning programmer can take to keep the delay nature of the programming when Vendors Best Practices suggest a number in their presentation of live captions to considering complaints regarding of measures that VPDs can specify in a minimum, consistent with an accurate violations of the placement standard. their contracts with programmers to be presentation of what is said, so that the 25. Near-Live Programming. The taken to reduce errors and to produce time between when words are spoken or Commission defines near-live more complete and timely captions, sounds occur and captions appear does programming as video programming including providing captioners advance not interfere with the ability of viewers performed and recorded less than 24 notice of vocabulary that the program is to follow the program. For example, hours prior to the time it was first aired likely to use; ensuring that captioners VPDs can specify in their contracts with on television. The production schedules are equipped with reliable, high speed programmers that the programmers will for near-live programming often do not Internet, multiple telephone lines and provide captioners with advance afford an opportunity for reviewing and backup plans to minimize caption materials that help them to generate editing captions equivalent to offline interruption due to malfunctions; caption text as they hear a program’s captioning processes. Rather, because of providing captioning agencies with high audio, provide high quality audio the short turnaround time between quality audio program signals; and program signals to reduce caption lag taping and airing, programmers requiring appropriate captioner training times, and enter into contracts with typically use real time-captioning and skills. The Commission encourages captioning agencies that require techniques for this type of the continued use of these measures and appropriate captioner training and skills programming. For purposes of the other measures that are technically to reduce captioning delays while a caption quality standards discussed feasible, to provide live captions program is being aired. above, the Commission will treat near- provide an accurate presentation of 23. Program Completeness. The live programming as if it were live aural content. Commission recognizes that the delays programming. The Commission agrees 21. Nonetheless, the Commission inherent in sending caption with Petitioners that editing and recognizes that it may be impossible, transmissions on live programs to synchronization of captions on near-live using today’s technologies, to always viewers pose particular challenges with programming should be performed achieve fully accurate captioning on live respect to ensuring that the entire during the hours between taping and programming. In considering program is captioned up to its very last airing to the extent there is sufficient complaints on captioning quality of live second. The preceding paragraphs have time for such activities. programming, the Commission will take noted various measures that 26. Document FCC 14–12 also into consideration the nature of this programmers and captioners can take to encourages the adoption of either of two programming and the challenges minimize the lag time between a industry practices to improve the associated with accurately captioning program’s audio content and its quality of near-live programming. First, such programming. The overall captions; shortening the lag time for in advance of a program’s airing, objective is to ensure that closed real-time captions will help provide a programmers may be able to deliver a captions convey a program’s content so more complete program. In addition, to complete program script or a near- that the program is fully accessible to the extent technically feasible, the completed program to a captioning viewers. The Commission will address Commission encourages entities that agency, which the agency can then use complaints by considering, on a case-by- send the audio feed to the live captioner to create a caption file that is later case basis, the overall accuracy or to alert the captioner that a program’s combined simultaneously with the understandability of the programming, end is imminent, so that the captioner program when it is aired. The process of the ability of the captions to convey the can paraphrase or abbreviate the synchronizing captions that were aural content of the program in a remaining text before the program cuts originally produced in real-time is manner equivalent to the aural track, the off. Finally, to the extent available, the known as ‘‘live display,’’ and it can extent to which the captioning errors Commission encourages use of the serve to reduce errors and long lag times prevented viewers from having access to following measures to capture as much that can occur with real-time the programming, and whether the VPD of a live program as possible through captioning. Alternatively, programmers made best efforts to receive certification captions: (1) A fade out after the last may be able to provide a captioning

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agency with access to a live feed of the multichannel video programming efforts to obtain one of these taping of near-live programming, distributor (MVPD) as defined in certifications from each of its enabling a captioner to generate § 76.1000(e) of the Commission’s rules; programmers, and it reports to the captions while the program is being and (3) any other distributor of video Commission the identity of any taped. The captioner can then improve programming for residential reception programmer whose programming the the captions for accuracy, synchronicity, that delivers such programming directly VPD carries who has refused to provide program completeness and placement to the home and is subject to the the requested certification, no sanctions prior to its airing. During these jurisdiction of the Commission. A will be imposed on the VPD as a result intervening hours, the programming different definition of VPD is used for of any captioning violations that are provider also could inform the purposes of programming distributed on outside the control of the VPD. MVPDs captioning agency about any edits made the Internet under § 79.4 of the will not need to obtain the above to the show prior to airing. Commission’s rules. 47 CFR 79.4(a)(3). certifications from broadcast television 27. Program Re-feeds of Live and 30. In acknowledgment of the critical stations that are carried on the MVPDs’ Near-Live Programming. Captioning role that video programmers play in the systems because broadcast television vendors have submitted best practices delivery of captions, each VPD must stations themselves are VPDs, and the proposals encouraging the use of offline exercise best efforts to obtain a Commission is exercising direct captioning for live and near-live certification from each of its video authority over all VPDs with regard to programs that initially have been programmers, by requesting, in writing, the captioning quality rules adopted captioned using real-time captioning that each programmer that supplies it herein. techniques, but that are later re-aired on with programming provide a 32. These requirements will become television. The Commission believes certification attesting that the effective upon the latter of January 15, that such practice will more effectively programmer either (1) complies with the 2015 or a date announced in a public match the program’s audio content and captioning quality standards adopted notice published in the Federal Register thereby ensure the full television access herein; (2) adheres to the Best Practices following approval by the Office of through captioning. While offline for video programmers set forth below, Management and Budget of the captioning may not always be possible, or (3) is exempt from the closed modified information collection the Commission encourages it and other captioning rules under one or more requirements under the Paperwork steps to be taken that are necessary to properly attained exemptions, in which Reduction Act of 1995. achieve improved accuracy, case such certification must identify the 33. Best Practices. A number of synchronicity, completeness and specific exemption claimed. In addition, parties to this proceeding, including placement of captions on such programs the VPD must request, in writing, that VPDs, video programmers, captioning prior to their being re-aired. For the programmer make such certification vendors, and consumers, have proposed example, to the extent feasible, the widely available within 30 days after Best Practices to ensure caption quality. Commission encourages efforts to receiving a written request from the Adherence to the Best Practices will correct errors inadvertently made and VPD. VPDs will further have the provide the captioning industry with timing lags that occurred when the obligation to check Web sites or other concrete steps it can take to achieve program first aired with real-time widely available locations used for the quality captions and ensure that caption captions. purpose of posting widely available quality problems that do arise are 28. VPD Obligations. In the Closed certifications, to determine which of quickly resolved. One year after Captioning Report and Order, the their programmers have certified their implementation of the rules adopted Commission chose to place exclusive compliance. VPDs that locate a herein, the Commission will assess the responsibility for compliance with the programmer’s certification on the extent to which its prediction about the closed captioning requirements on VPDs programmer’s Web site or other widely effectiveness of these Best Practices has because they are ultimately responsible available location used for the purpose been accurate. If the Commission finds for ensuring the delivery of of posting certifications as of the that this approach is not effective in programming to consumers. Because effective date of these rules will be ensuring the production and VPDs are the entities that provide video deemed in compliance with this best distribution of good quality captions, programming directly to consumers’ efforts obligation even if the VPD did the Commission will revisit these rules homes, keeping them in the chain of not previously notify such programmer, to the extent necessary. responsibility will provide consumers in writing, of the need for this 34. Video Programmer Best Practices. an entity to which they can address certification directly to such To satisfy its obligation to exercise its their complaints, and VPDs can assist in programmer. VPDs that fail to exercise best efforts to obtain certification from identifying other entities responsible for best efforts to obtain the certification its programmers regarding closed the captioning quality errors. noted above may be subject to caption quality, a VPD may seek Accordingly, document FCC 14–12 enforcement action. certification from its video programmers imposes obligations on VPDs to ensure 31. If a video programmer does not that they will adhere to the following compliance with the captioning quality provide the certification noted above, practices. standards. and if the VPD nevertheless carries the • Agreements with captioning 29. For the purposes of document FCC programmer’s programming, it must services. Video programmers complying 14–12, all references to VPDs are as report the non-certifying programmer to with the Best Practices will take the defined in § 79.1 of the Commission’s the Commission. The Consumer and following actions to promote the rules, unless otherwise noted. To avoid Governmental Affairs Bureau will issue provision of high quality television possible ambiguity, the Commission a Public Notice announcing the proper closed captions through new or renewed changes the heading for § 79.1 of its procedure for submitting such reports to agreements with captioning vendors: rules to now read ‘‘Closed captioning of the Commission. The Commission will Æ Performance requirements. Include televised programming.’’ Section 79.1(a) compile a list of such programmers that performance requirements designed to of the Commission’s rules defines VPD will become available in a public promote the creation of high quality as (1) any television broadcast station database maintained by the closed captions for video programming licensed by the Commission; (2) any Commission. If a VPD uses its best substantially comparable to the

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Captioning Vendors Best Practices set time (e.g., news content, reality shows, and work to promptly resolve forth below. Some programmers may (2) a program is delivered late, (3) there captioning issues, if possible. contract with captioning agencies that are technical problems with the caption Æ Accuracy spot checks. Within 30 employ practices that vary somewhat file, (4) last minute changes must be days following notification of a pattern from the Captioning Vendor Best made to later network feeds (e.g., when or trend of complaints from the Practices but nonetheless generate high shown in a later time zone) due to Commission, conduct spot checks of quality closed captions for video unforeseen circumstances, (5) there are television program captions to assess programming. To provide the captioning proprietary or confidentiality caption quality and address any ongoing industry with flexibility, compliance considerations, or (6) video concerns. • with these Best Practices will include programming networks or channels with Certification procedures for video compliance with performance a high proportion of live or topical time- programmers. Video programmers requirements that are comparable to sensitive programming, but also some complying with the Best Practices will these practices. Such requirements pre-recorded programs, use real-time certify to video programming should adhere to the basic tenets of the captioning for all content (including distributors that they comply with the requirements set forth in document FCC pre-recorded programs) to allow for quality captioning standards or adhere 14–12, and will qualify only if they are immediate captioning of events or to Best Practices for video programmers designed to achieve captions that are breaking news stories that interrupt and will make such certifications accurate, synchronous, complete and scheduled programming. widely available to VPDs, for example, appropriately placed, as required by D Make reasonable efforts to employ by posting on affiliate Web sites. these new standards. live display captioning instead of real- 35. Captioning Vendor Best Practices. Æ Verification. Include a means of time captioning for pre-recorded As noted above, as part of their Best verifying compliance with the above programs if the complete program can Practices, certifying video programmers performance requirements such as be delivered to the caption service must have agreements with captioning through periodic spot checks of provider in sufficient time prior to vendors that include performance captioned programming. airing. requirements that are comparable to the Æ Captioning Vendor Best Practices set Training. Include provisions • Monitoring and remedial best designed to ensure that captioning forth below. These practices are practices. Video programmers vendors’ employees and contractors intended to result in high quality complying with the Best Practices will who provide caption services have captions and ensure that captioners take the following actions aimed at received appropriate training and that have adequate training and oversight. improving prompt identification and there is oversight of individual The Commission defines ‘‘captioning remediation of captioning errors as they captioners’ performance. vendor’’ (also sometimes referred to in occur: • Operational best practices. Video document FCC 14–12 as a ‘‘captioning Æ Pre-air monitoring of offline programmers complying with the Best service provider’’) to mean any entity captions. As part of the overall pre-air Practices will take the following actions that is responsible for providing quality control process for television to promote delivery of high quality captioning services to a video programs, conduct periodic checks of television captions through improved programmer. Consistent with the offline captions on pre-recorded operations: Captioning Vendors’ proposal, the programs to determine the presence of Æ Preparation materials. To the Commission divides these Best Practices captions. extent available, provide captioning into three sets of practices—first, for Æ Real-time monitoring of captions. vendors with advance access to captioning vendors, second, for Monitor television program streams at preparation materials such as show individual captioners who generate real- point of origination (e.g., monitors scripts, lists of proper names (people time captions, and third, for the located at the network master control and places), and song lyrics used in the generation of offline captioning. program, as well as to any dress point or electronic monitoring) to 36. Best Practices for Real-time (Live) rehearsal or rundown that is available determine presence of captions. Æ Captioning Vendors. and relevant. Programmer and captioning vendor • Create and use metrics to assess Æ Quality audio. Make commercially contacts. Provide to captioning vendors accuracy, synchronicity, completeness, reasonable efforts to provide captioning appropriate staff contacts who can assist and placement of real-time captions; vendors with access to a high quality in resolving captioning issues. Make • Establish minimum acceptable program audio signal to promote captioning vendor contact information standards based upon those metrics accurate transcription and minimize readily available in master control or while striving to regularly exceed those latency. other centralized location, and contact minimum standards; Æ Captioning for pre-recorded captioning vendor promptly if there is a • Perform frequent and regular programming. caption loss or obvious compromise of evaluations and sample audits to ensure D The presumption is that pre- captions. those standards are maintained; recorded programs, excluding programs Æ Recording of captioning issues. • Consider ‘‘accuracy’’ of captions to that initially aired with real-time Maintain a log of reported captioning be a measurement of the percentage of captions, will be captioned offline issues, including date, time of day, correct words out of total words in the before air except when, in the exercise program title, and description of the program, calculated by subtracting of a programmer’s commercially issue. Beginning one year after the number of errors from total number of reasonable judgment, circumstances effective date of the captioning quality words in the program, dividing that require real-time or live display standards, such log shall reflect reported number by total number of words in the captioning. Examples of commercially captioning issues from the prior year. program and converting that number to reasonable exceptions may include Æ Troubleshooting protocol. Develop a percentage. For example, 7,000 total instances when (1) a programmer’s procedures for troubleshooting words in the program minus 70 errors production is completed too close to consumer captioning complaints within equals 6,930 correct words captioned, initial air time be captioned offline or the distribution chain, including divided by 7,000 total words in the may require editorial changes up to air identifying relevant points of contact, program equals 0.99 or 99% accuracy;

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• Consider at a minimum and keep abreast of issues and • Employ frequent and regular mistranslated words, incorrect words, developments in those sectors; and evaluations to ensure standards are misspelled words, missing words, and • Ensure that all contracted maintained; incorrect punctuation that impedes captioners adhere to real-time captioner • Inform video programmers of comprehension, and misinformation as Best Practices. appropriate uses of real-time and offline errors; 37. Best Practices for Real-Time (Live) captioning, and strive to provide offline Æ Captions are written in a near-as- Captioners. captioning for pre-recorded verbatim style as possible, minimizing • Caption as accurately, programming; paraphrasing; synchronously, completely, and Æ Encourage use of offline captioning Æ The intended message of the appropriately placed as possible; for live and near-live programming that spoken dialogue is conveyed in the • Ensure they are equipped with a originally aired on television and feeds associated captions in a clear and failover plan to minimize caption at a later time; comprehensive manner; interruption due to captioner or Æ Encourage use of offline captioning Æ Music lyrics should accompany equipment malfunction; for all original and library pre-recorded artist performances; • Be equipped with reliable, high programming completed well in • Consider synchronicity of captions speed Internet; advance of its distribution on television; to be a measurement of lag between the • Be equipped with multiple and spoken word supplied by the program telephone lines; • For better coordination for ensuring origination point and when captions are • Prepare as thoroughly as possible high quality captions and for addressing received at the same program for each program; problems as they arise, understand the origination point; • File thorough discrepancy reports roles and responsibilities of other • Ensure placement of captions on with the captioning vendor in a timely stakeholders in the closed-captioning screen to avoid obscuring on-screen manner; process, including VPDs, video information and graphics (e.g., sports • To the extent possible given the programmers producers, equipment coverage); circumstances of the program, ensure manufacturers, regulators, and viewers, • Ensure proper screening, training, that real-time captions are complete and keep abreast of issues and supervision, and evaluation of when the program ends; developments in those sectors. captioners by experienced and qualified • Engage the command that allows 39. In addition to following the Best real-time captioning experts; captions to pass at commercials and Practices listed above, the Commission • Ensure there is an infrastructure conclusion of broadcasts; agrees that an ongoing dialogue among that provides technical and other • Monitor captions to allow for interested parties can help assess the support to video programmers and immediate correction of errors and industry’s progress in implementing captioners at all times; prevention of similar errors appearing or these practices and their impact on • Ensure that captioners are qualified repeating in captions; caption quality for television programs, for the type and difficulty level of the • Perform frequent and regular self- as well as promote a better programs to which they are assigned; evaluations; understanding of issues relevant to • Utilize a system that verifies • Perform regular dictionary caption quality. The Commission captioners are prepared and in position maintenance; supports commenters’ proposal that prior to a scheduled assignment; • Keep captioning equipment in good trade associations sponsor an annual • Ensure that technical systems are working order and update software and conference with VPDs, programmers, functional and allow for fastest possible equipment as needed; captioning vendors, representatives of delivery of caption data and that • Possess the technical skills to the deaf and hard of hearing failover systems are in place to prevent troubleshoot technical issues; and communities, the Commission, and service interruptions; • Keep abreast of current events and other interested parties to review the • Regularly review discrepancy topics that they caption. state of caption quality on television, reports in order to correct issues and 38. Best Practices for Offline (Pre- and to discuss developments in avoid future issues; recorded) Captioning Vendors and captioning technology and other issues • Respond in a timely manner to Captioners. of concern. The Commission also concerns raised by video programmers • Ensure offline captions are encourages industry and consumers to or viewers; verbatim; engage in frequent discussions so that • Alert video programmers • Ensure offline captions are error- the myriad of issues associated with immediately if a technical issue needs free; captioning can be resolved to the to be addressed on their end; • Ensure offline captions are mutual satisfaction of industry and • Inform video programmers of punctuated correctly and in a manner consumers on an ongoing basis. appropriate use of real-time captioning that facilitates comprehension; 40. Consumer Complaints. The (i.e., for live and near-live programming, • Ensure offline captions are Commission will rely on consumers to and not for pre-recorded programming) synchronized with the audio of the bring any potential noncompliance with and what is necessary to produce program; its captioning quality standards to the quality captions, including technical • Ensure offline captions are Commission’s attention. The requirements and the need for displayed with enough time to be read Commission disagrees with NCTA’s preparatory materials; completely and that they do not obscure argument that informal complaints • For better coordination for ensuring the visual content; regarding caption quality should be high quality captions and for addressing • Ensure offline captioning is a treated as informational filings only, problems as they arise, understand the complete textual representation of the with no requirement for the covered roles and responsibilities of other audio, including speaker identification entity to investigate or respond to stakeholders in the closed-captioning and non-speech information; complaints brought to a company’s process, including VPDs, video • Create or designate a manual of attention. Commission experience with programmers, producers, equipment style to be applied in an effort to closed captioning informal complaints manufacturers, regulators, and viewers, achieve uniformity in presentation; filed pursuant to § 79.1(g) of the

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Commission’s rules has been that they to caption live programming. 47 CFR following procedures in the ordinary have been useful in bringing to its 79.1(e)(3). course of business if they continue to attention and to the attention of 42. The Commission remains use ENT for live programming: programming entities technical and concerned about the inability of ENT, as • In-studio produced programming other problems that these entities it is currently used, to provide full and will be scripted. These scripted generally correct after investigating the equal access to news programming for elements will include in-studio news, problems raised in the informal all Americans, no matter where they sports, weather, and entertainment complaints. However, CGB will forward live. However, while the costs for real- programming. • informal complaints only if they contain time captioning have dropped For weather interstitials where the following information: (1) the significantly and steps have been taken there may be multiple segments within channel number, channel name, call to increase the number of real-time a news program, weather information sign, or network; (2) the name of the captioners since the Commission’s rules explaining the visual information on the MVPD, if applicable; (3) the date and was adopted in the 1997 Closed screen and conveying forecast time when the captioning problem Captioning Report and Order, the information will be scripted, although occurred; (4) the name of the program Commission recognizes that many the scripts may not precisely track the stations continue to have significant words used on air. with the captioning problem; and (5) a • detailed description of the captioning concerns about their ability to provide Pre-produced programming will be problem, including specifics about the local news if they are denied the scripted (to the extent technically frequency and type of problem (e.g., opportunity to provide captions through feasible). • If live interviews, live on-the scene garbling, captions cut off at certain ENT, and agrees that the public interest and/or breaking news segments are not times or on certain days, and accuracy would not be served were television scripted, stations shall supplement them problems). CGB will undertake efforts to stations required to cut back on local with crawls, textual information, or work with consumers to obtain news programming. other means (to the extent technically additional information, as needed, to 43. In document 14–12, the feasible). ensure complete information on Commission amends § 79.1(e)(3) of its rules to describe the manner in which • These provisions do not relieve deficient complaints prior to forwarding stations of their obligations to comply these to VPDs in order to ease the broadcast stations not subject to the prohibition on ENT will be deemed in with requirements regarding the burdens on both consumers and accessibility of programming providing industry. compliance with the captioning rules if they continue to use ENT to provide emergency information under § 79.2 of 41. Use of Electronic Newsroom captioning on their live programming. the Commission’s rules. 47 CFR 79.2. Technique (ENT) for Live Programming. The record indicates that these • Stations will provide training to all Background. Electronic Newsroom enhanced ENT procedures, listed below, news staff on scripting for improving Technique (ENT) is a technique that can offer stations a means to continue using ENT. • convert the dialogue included on a ENT, and a means to improve caption Stations will appoint an ‘‘ENT teleprompter script into captions. In the quality for consumers, without requiring Coordinator’’ accountable for 1997 Closed Captioning Report and all stations to assume the cost of real- compliance. Order, the Commission allowed the use time captioning of all news 46. One-year ENT Report. Because the of ENT for the captioning of newscasts programming. The Commission record is not fully developed on how and other live programming—for anticipates that these procedures will the new ENT procedures will be applied purposes of meeting the captioning ensure that most in-studio by news programmers across the benchmarks—to permit flexibility in the programming, such as weather, sports, country, and the extent to which methods used to create closed captions news and entertainment, as well as compliance with these procedures will and to address the record’s conflicting breaking news and on-the-scene fulfill the Act’s requirement for full accounts at that time as to the number programming will be made more access to news programming, the of available real-time captioners. On accessible to viewers who are deaf and Commission will reevaluate the reconsideration, because of the inability hard of hearing. effectiveness of these ENT of ENT to capture interviews, field 44. Effective Date. The Commission enhancements in providing people who reports, and late breaking weather and will make these requirements effective are deaf and hard of hearing with full sports reports, the Commission 90 days after publication in the Federal access to television news programming narrowed the circumstances under Register. To the extent it is not one year after the effective date of the which captions created with this technically feasible for a particular rules pertaining to ENT. To begin this technique would be permitted. Closed station to comply with its new process, no later than one year after the Captioning and Video Description of requirements by this time, the station implementation of these ENT Video Programming; Implementation of may request additional time by seeking procedures, document FCC 14–12 Section 305 of the Telecommunications a limited waiver of the effective date, requires broadcast stations that have Act of 1996 Video Programming supported by an appropriate good cause relied on these procedures to prepare Accessibility, MM Docket No. 95–196, showing. Any station may, in lieu of and submit to the Commission a report Order on Reconsideration, (1998 Closed following the enhanced ENT on their experiences with following Captioning Reconsideration Order); 63 procedures, provide real-time these new measures, and the extent to FR 55959, October 20, 1998. The ENT captioning on their live programming. which they have been successful in rule now prohibits the four major 45. ENT Best Practices. Accordingly, providing full and equal access to news national broadcast networks, their based on the proposals submitted by programming. Such report shall be affiliates in the 25 largest DMAs as NAB, the Commission requires that to prepared in consultation with Consumer defined by the Nielsen ratings, and be deemed in compliance with the Groups and may be prepared by the national non-broadcast networks serving Commission rules requiring captioning NAB on behalf of the affected at least 50 percent of all homes of live programming, broadcast stations broadcasters. The Commission subscribing to multichannel video that are not subject to the current encourages, as recommended by programming services from using ENT prohibition on ENT must adhere to the Consumer Groups, that such report

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include data to demonstrate the extent notification, an action plan describing 51. The record shows that technical to which ENT captioning meets the specific measures it will take to bring problems, which can occur in the principles of accuracy, completeness, the station’s ENT performance into delivery of captions from the point of synchronicity, and placement, the compliance with the Commission’s origination to the end user, have been percentage and quantity of uncaptioned regulations for ENT. Action plans could preventing some viewers from being programming by stations using ENT, the include, for example, training of station able to fully access video programming impact of ENT usage on the ability of personnel, more prominent reminders of as required by the Act and the consumers who are deaf and hard of the need for accessibility, and, if Commission’s captioning rules. Each hearing to access programming, appropriate, the use of improved time the program stream is transcoded complaints filed about ENT, the state of equipment. In addition, the station shall or manipulated the captions can become the market for real-time captioners, the be required to conduct spot checks of its garbled or disappear, or otherwise have economic need for stations to continue ENT performance and report to the their quality impaired. The Commission using ENT in lieu of real-time Commission on the results of such finds that VPDs could eliminate most captioning, and technological progress action plan and spot checks 180 days technical captioning glitches if they toward achieving improvements with after submission of such action plan. have mechanisms in place to monitor ENT. Such data can assist the • If, after the date for submission of and check their engineering equipment Commission in evaluating whether a such report on the results of an action and procedures. In addition, complaints further proceeding that may include the plan, the Commission finds continued would be reduced if these entities phase out of ENT for certain DMAs is evidence of a pattern or trend of actively monitor and maintain their necessary to ensure full access to noncompliance, the Commission will equipment to eliminate the occurrence televised news programming by people then consider, through its Enforcement of technical problems in the first who are deaf and hard of hearing. Bureau, appropriate enforcement action instance, and to quickly and efficiently 47. Complaints. The Commission will including admonishments, forfeitures, repair such problems that do occur. entertain informal complaints of and other corrective actions as 52. To ensure full technical noncompliance with the Commission’s necessary that may include a compliance with the pass-through rule, closed captioning rules by those stations requirement to cease using ENT, and the Commission reaffirms and codifies using the above procedures for ENT, but instead use real-time captioning for live in its rules, its 1997 requirements for will forward a complaint to a station programming. VPDs to take ‘‘any steps needed to 49. In determining whether to require only if it contains the following relevant monitor and maintain their equipment information, which the Commission a station to implement real-time and signal transmissions as part of their deems necessary to effectively respond captioning, the Commission will take obligation to ensure that the captioning to such complaint: The television into consideration all relevant included with video programming channel number, network and/or call information regarding the nature of the reaches consumers,’’ and to take any sign, the name of the subscription problem and the station’s efforts to corrective measures necessary to ensure service, if relevant, the date and time of correct the problem. that such equipment is in proper the alleged captioning problems, the 50. Video Programming Distributor working order. The Commission also name of the program with the alleged Technical Rules. Equipment Monitoring. adopts a new rule requiring technical captioning problem, a detailed and Even when captions delivered to VPDs equipment checks to take place in a specific description of the captioning are complete, accurate, synchronous, problem, including the frequency and and appropriately located on the screen manner that is sufficient to ensure that type of problem. in compliance with the Commission’s captions are passed through to viewers 48. Compliance Ladder. The captioning quality standards, there still intact. The Commission expects that Commission further adopts the remains the possibility that technical VPDs that already perform equipment following compliance ladder in the problems may prevent these captions checks and maintain adequate records event that complaints gathered by the from reaching viewers. In the 1997 to ensure that captions are passed Commission indicate a pattern or trend Closed Captioning Report and Order, through to their viewers should not of noncompliance with the new ENT the Commission adopted a ‘‘pass- have to change their practices as a result rules. through requirement’’ for VPDs to of these new rules. Others who have • If the Commission notifies a ‘‘ensure that captioned programming is failed to perform technical equipment broadcast station that the Commission always delivered to viewers complete checks or do not currently maintain has identified a pattern or trend of and intact.’’ The Commission stated that records will have to revise their possible noncompliance by the station, VPDs would ‘‘be responsible for any practices to comply with the obligation the station shall respond to the steps needed to monitor and maintain to monitor their equipment for its Commission within 30 days regarding their equipment and signal proper maintenance. such possible noncompliance, transmissions to ensure that the 53. As part of their pass-through describing corrective measures taken, captioning included with the video requirement, the Commission reminds including those measures the station programming reaches consumers,’’ and MVPDs that they must also ensure that may have undertaken in response to cautioned that VPDs were to ‘‘take the customer premises equipment (e.g., informal complaints and inquiries from corrective measures necessary to ensure set-top boxes) that they provide to viewers. that the captioning is consistently consumers transmit all captions • If, after the date for a broadcast included with the video programming pursuant to the standards adopted station to respond to the above delivered to viewers.’’ The Commission under the CVAA. Additionally, the notification, the Commission further clarified that it is the ‘‘video Commission encourages MVPDs to subsequently notifies the broadcast programming distributor’s responsibility provide their installers and other station that there is further evidence . . . to ensure that the equipment used employees who interact with consumers indicating a pattern or trend of to transmit these channels to viewers is with information necessary to help noncompliance, the broadcast station capable of passing the captioning those consumers effectively access shall submit to the Commission, within through along with the programming closed captions through their MVPD- 30 days of receiving such subsequent [and] is in proper working order.’’ installed devices.

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54. Reporting and Recordkeeping. At Commission may revisit whether to television broadcasters, however, that this time, the Commission declines to impose reporting requirements. once the annual revenues for a impose a requirement for VPDs to report 55. The recordkeeping requirements multicasting stream reach $3 million, on their compliance with the captioning will become effective upon the latter of the captioning exemption will not apply rules. However, as explained below, January 15, 2015 or a date announced in to that stream and, at that point, all document FCC 14–12 adopts a a public notice published in the Federal applicable captioning requirements will requirement for VPDs to keep records of Register following approval by the apply to that stream. The Commission their activities related to the Office of Management and Budget of the will revisit the multicasting issue at a maintenance, monitoring and technical modified information collection later time to determine whether the checks of their captioning equipment. requirements under the Paperwork approach adopted in document FCC 14– The Commission believes that the new Reduction Act of 1995. 12 is still needed to assure the viability complaint process, which allows 56. Treatment of Multicast Streams. of multicasting, as well as the extent to consumers to skip the step of first Background. In 1997, the Commission which any change of policy is needed to contacting a VPD about a complaint and adopted a closed captioning exemption ensure the availability of closed allows the initial filing of such for video programming channels that captioning on multicast programming complaints with the Commission, has produced annual gross revenues of less for people who are deaf and hard of than $3 million during the previous made it easier for consumers to bring to hearing. calendar year. At that time, the the Commission’s attention alleged 58. Other Matters. Penalties for Commission specified that ‘‘[a]nnual violations of the captioning Violation of the Closed Captioning gross revenues shall be calculated for Rules. Petitioners have requested that requirements, and thus reduces the need each channel individually based on the Commission use its existing for a reporting requirement. However, revenues received in the preceding forfeiture guidelines to establish a base the Commission continues to believe calendar year from all sources related to forfeiture amount of $8,000 for each that each VPD should be required to the programming on that channel.’’ The captioning violation, with each hour of maintain sufficient data to respond to Commission did not determine, programming below the applicable consumer complaints and provide the however, what constituted a ‘‘channel’’ benchmark counted as a separate Commission with information needed to for purposes of satisfying this self- violation. They also have asked the make a determination as to the VPD’s implementing exemption. In 1997, Commission to clarify that to the extent compliance with the closed captioning broadcasters used their spectrum technical problems result in a portion of requirements. Although such allocation to provide analog a program’s captioning to be garbled or requirement already exists, document programming on a single channel; with missing, such program not be counted FCC 14–12 now specifies that such data the advent of digital broadcasting, toward the applicable captioning must include (though it need not be broadcasters may use their digital benchmark. In the 2005 Closed limited to) information about the VPD’s allotment to provide simultaneously Captioning NPRM, the Commission efforts to monitor, maintain, and several streams of programming on the sought comment on whether the conduct technical checks of its same 6 MHz of spectrum. This is known Commission should establish specific captioning equipment and other related as ‘‘multicasting.’’ In the 2008 Closed per-violation forfeiture amounts for non- equipment to ensure the pass through of Captioning Decision, the Commission compliance with the captioning rules, captions to viewers. The Commission sought comment on whether, for and if so, what those amounts should further requires each VPD to retain such purposes of the $3 million exemption, be. records and documentation for a period each programming stream on a multicast 59. The Commission declines to of at least two years, in order to signal constitutes a separate channel for create sanctions or remedies for closed effectively respond to a consumer purposes of the captioning captioning enforcement proceedings complaint or Commission inquiry requirements, or whether the that deviate from the Commission’s addressing compliance with the broadcaster’s entire operations flexible case-by-case approach governed Commission’s captioning rules. Because attributable to its digital allotment by § 1.80 of its rules. The Commission the statute of limitations to impose a should be considered one channel for already has sufficient authority to issue penalty for captioning violations is one captioning purposes. appropriate penalties, and it will year for some VPDs, and additional time 57. The Commission concludes that, adjudicate complaints on the merits and is needed to obtain the records once the for purposes of § 79.1(d)(12) of the employ the full range of sanctions and proceeding has commenced, the Commission’s rules, each programming remedies available to the Commission Commission finds that this two-year stream on a multicast broadcast signal under the Act. In order to encourage document retention rule is reasonable. will be considered separately for compliance with its rules, the Finally, the Commission directs that purposes of determining whether the $3 Commission will consider a wide VPDs be prepared to submit such data million annual gross revenue limit has variety of factors to determine whether to the Commission upon request, if been satisfied. The Commission agrees enforcement is warranted, such as needed to resolve an enforcement that applying § 79.1(d)(12) of its rules to history of monitoring and maintenance, proceeding. A VPD’s efforts to dispute each multicast stream separately is complaints received from consumers, noncompliance alleged in a complaint consistent with our ruling in 1997, frequency of captioning errors, and or a Commission inquiry with which calculated gross revenues for impact of captioning errors on the conclusory or insufficiently supported each channel individually, and in the viewers’ understandability of the assertions of compliance will not carry way it is applied to MVPDs. program. In addition, as provided in the VPD’s burden of proof to show that Accordingly, the Commission amends § 79.1(g)(8) of the Commission’s rules, a it is in compliance with the § 79.1(d)(12) of its rules to ensure forfeiture penalty may be in addition to Commission’s rules. In the event that application of the $3 million exemption any other penalty that the Commission the Commission finds that these to a channel or stream of programming may impose. recordkeeping obligations are when multiple streams of programming 60. Electronic Filing of Exemption insufficient to achieve compliance with are offered by a broadcaster. The Requests Section 713(d)(3) of the Act the closed captioning obligations, the Commission reminds multicasting permits video programming providers or

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owners to petition the Commission for must be closed captioned in their programming on all television stations, an exemption from the closed respective languages at this time. including LPTV stations, the captioning requirements where it can be 64. Other Language Programming. Commission reminds LPTV stations that shown that such requirements would be Section 79.1(d)(3) of the Commission’s they must comply with Part 79 of its ‘‘economically burdensome.’’ The rules exempts from the closed rules. Commission has required parties captioning requirements ‘‘. . . Final Regulatory Flexibility Analysis seeking such exemption to file their programming for which the audio is in petitions in paper form. In the 2005 a language other than English or 68. Initial Regulatory Flexibility Closed Captioning NPRM, the Spanish, except that scripted Analyses (IRFAs) were incorporated in Commission sought comment on programming that can be captioned the Notices of Proposed Rulemaking whether to require or allow the using the ‘electronic news room’ (NPRMs) in the 2005 Closed Captioning electronic filing of exemption petitions, technique is not exempt.’’ The NPRM and the 2008 Closed Captioning and asked about the impact electronic Commission confirms that programs Decision in this proceeding. 5 U.S.C. filing would have on entities filing such that are in neither English nor Spanish 603. The Commission sought written petitions and parties filing comments or but contain small amounts or public comment on the proposals in the oppositions to such petitions. ‘‘snippets’’ of English or Spanish words two NPRMs, including comment on the 61. In the 2011 Electronic Filing that account for only a small percentage two IRFAs. The Commission received Report and Order, the Commission of these programs, are also governed by one comment on the IRFA incorporated amended certain of its procedural rules § 79.1(d)(3) of its rules and need not to in the 2005 Closed Captioning NPRM, as to increase the efficiency of Commission be captioned. The Commission reminds discussed below. No comments were decision-making and modernize programmers and distributors, however, received on the IRFA incorporated in Commission procedures in the digital that § 79.1(d)(3) of its rules requires the the 2008 Closed Captioning Decision. age, including adoption of a use of ENT for closed captioning in This Final Regulatory Flexibility requirement to use electronic filing instances where scripted programming Analysis (FRFA) conforms to the RFA. whenever technically feasible. would make this possible. This Report and Order makes certain Document FCC 14–12 now amends 65. Providing VPD Contact modifications to the closed captioning Commission rules to require the Information Where VPD Is Exempt from rules after consideration of the electronic filing of individual closed Certain Requirements. The Commission comments and reply comments received captioning exemption requests in clarifies that § 79.1(i) of its rules require in response 2005 Closed Captioning machine readable format, and further all VPDs, even if they are exempt from NPRM, the 2008 Closed Captioning revises Commission rules to require that certain closed captioning rules, to make Decision, and the 2010 Refresh Public comments on and oppositions to such contact information available to Notice. petitions also be filed electronically in consumers and the Commission for the 69. In document FCC 14–12, the machine readable format. Pursuant to handling of immediate concerns and Commission adopts rules governing § 79.1(f)(7) of the Commission’s rules, written complaints about closed non-technical quality standards for however, any comment on or opposition captioning. Because all VPDs, including closed captioning; Best Practices for to the petition, and any reply, must also those that are exempt from certain video programmers, captioning vendors be served on the other party and must captioning rules, are nevertheless and captioners designed to ensure high include a certification that the filing was required to provide captioning pursuant quality closed captioning; certifications served on the other party. to the pass-through rule, all VPDs are that VPDs must obtain from video 62. Correction to 47 CFR 79.1(i)(3) of subject to the obligation to receive and programmers attesting to video the Commission’s rules. The email respond to complaints. programmers’ compliance with the address in § 79.1(i)(3) of the 66. Obligation to Caption ‘‘On captioning quality standards or video Commission’s rules that is provided for Demand’’ Video Programming. The programmer Best Practices or that the VPDs to submit contact information for Commission confirms that all ‘‘on video programmer is exempt from the closed captioning concerns and demand’’ programming not subject to an closed captioning rules; enhanced complaints is inaccurate. The correct exemption must comply with the requirements for the use of ENT and a address is CLOSEDCAPTIONING_POC@ relevant captioning requirements for compliance ladder process for fcc.gov. The Code of Federal Regulations new and pre-rule programming. More broadcasters that follow these practices; (CFR) will be amended accordingly. specifically, to the extent that ‘‘on VPD monitoring and maintenance of demand’’ programming that airs today is equipment and signal transmissions and Declaratory Ruling ‘‘new programming,’’ it must be technical equipment checks to ensure 63. Mixed Language Programming— captioned unless it otherwise qualifies greater technical compliance; Bilingual English-Spanish Language for an exemption under its rules. To the maintenance of records of such Programming. The Commission extent it is pre-rule programming, it monitoring, maintenance, and technical confirms that bilingual English-Spanish must comply with the Commission’s equipment checks; applicability of the programs are subject to the same pre-rule 75 percent benchmark. $3 million exemption to multicast obligations with respect to the amount 67. Application of Closed Captioning program streams; and electronic filing of of required captioned programming as Requirements to LPTV Stations. In the economically burdensome exemption programming that is entirely in English 1997 Closed Captioning Report and requests. These modifications to the or entirely in Spanish. (The Commission Order, the Commission declined to closed captioning rules will serve the notes, however, that it would not adopt a specific exemption for low public interest by improving the consider a program to be bilingual if it power television (LPTV) stations, and availability and quality of closed has just a few lines of dialogue in the included within the definition of VPD, captioning and making it easier for the program’s less predominant language.) ‘‘[a]ny broadcast station licensed by the public to learn whether a petition for Specifically, all new bilingual English- Commission.’’ Because the 1997 Closed exemption from the closed captioning Spanish programming must be closed Captioning Report and Order makes rules has been filed. captioned, and 75 percent of pre-rule clear the Commission’s intent to require 70. The Commission notes that VPDs bilingual English-Spanish programming closed captioning of non-exempt are the entities directly responsible for

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compliance with closed captioning governmental jurisdiction’’ is defined 77. Wireless Cable Systems— rules, and may air programming that is generally as ‘‘governments of cities, Broadband Radio Service and not captioned only if the programming counties, towns, townships, villages, Educational Broadband Service. is not subject to a captioning benchmark school districts, or special districts, with Wireless cable systems use the or is exempt from the rules pursuant to a population of less than fifty Broadband Radio Service (BRS) and § 79.1(d) or § 79.1(f) of the thousand.’’ Census Bureau data for 2007 Educational Broadband Service (EBS) to Commission’s rules. Even with regard to indicate that there were 89,527 transmit video programming to programming that is not produced by a governmental jurisdictions in the subscribers. In connection with the 1996 VPD, the VPD is responsible for United States. The Commission BRS auction, the Commission ensuring that the program owner has estimates that, of this total, as many as established a small business size certified that it or its programming is 88,761 entities may qualify as ‘‘small standard as an entity that had annual exempt from the closed captioning governmental jurisdictions.’’ average gross revenues of no more than rules. Although closed captioning 73. Cable Television Distribution $40 million in the previous three companies play a vital role in the closed Services. These services have been calendar years. Of the 67 auction captioning regime, they are not the included within the broad economic winners, 61 met the definition of a small entities that are directly affected by the census category of Wired business, and of these 61 winners, 48 Commission’s requirements that video Telecommunications Carriers. The SBA remain small business licensees. In programming be captioned, because has developed a small business size addition, there are approximately 392 they are not the entities ultimately standard for this category, which is all incumbent BRS licensees that are responsible for compliance with the such firms having 1,500 or fewer considered small entities. Accordingly, closed captioning rules. The IRFA employees. According to data from the there are currently approximately 440 included all multichannel video U.S. Census Bureau for the year 2007, BRS licensees that are defined as small programming distributors (MVPDs) and there were 3,188 Wired businesses under either the SBA or the broadcasters; these are the entities that Telecommunications Carrier firms that Commission’s rules. In 2009, the are ultimately responsible for closed operated for the entire year in 2007. Of Commission conducted Auction 86 for captioning. In addition to captioners, these, 3,144 operated with less than the sale of 78 BRS licenses, and program owners and producers that are 1,000 employees, and 44 operated with established three categories of small not the video programming distributors 1,000 or more employees. businesses: (i) A bidder with attributed were also omitted from the IRFA, for the 74. Cable Companies and Systems. average annual gross revenues that same reason—they are merely indirectly Under the Commission’s rules, a ‘‘small exceed $15 million and do not exceed affected by the rules and are not cable company’’ is one serving 400,000 $40 million for the preceding three ultimately responsible for compliance or fewer subscribers, nationwide. 47 years is a small business; (ii) a bidder CFR 76.901(e) of the Commission’s with the rules. However, in order to with attributed average annual gross rules. Industry data shows that there are better inform the public about its revenues that exceed $3 million and do 1,100 cable companies. Of this total, all actions and to create a more complete not exceed $15 million for the preceding but 10 incumbent cable companies are record, the Commission is including three years is a very small business; and small. In addition, under the captioners and video programming (iii) a bidder with attributed average Commission’s rules, a ‘‘small system’’ is producers in this FRFA. annual gross revenues that do not a cable system serving 15,000 or fewer 71. The RFA directs the Commission exceed $3 million for the preceding to provide a description of and, where subscribers. Current Commission three years is an entrepreneur Of the 10 feasible, an estimate of the number of records show 4,945 cable systems winning bidders, two bidders that small entities that will be affected by the nationwide. Of this total, 4,380 cable claimed small business status won four rules. The RFA generally defines the systems have less than 20,000 licenses; one bidder that claimed very term ‘‘small entity’’ as having the same subscribers, and 565 systems have small business status won three meaning as the terms ‘‘small business,’’ 20,000 subscribers or more. licenses; and two bidders that claimed ‘‘small organization,’’ and ‘‘small 75. Cable System Operators (Telecom entrepreneur status won six licenses. governmental jurisdiction.’’ In addition, Act Standard). The Communications the term ‘‘small business’’ has the same Act of 1934, as amended, contains a size 78. In addition, the SBA’s placement meaning as the term ‘‘small business standard for small cable system of Cable Television Distribution concern’’ under the Small Business Act. operators, which is ‘‘a cable operator Services in the category of Wired A small business concern is one which: that, directly or through an affiliate, Telecommunications Carriers is (1) Is independently owned and serves in the aggregate fewer than 1 applicable to cable-based Educational operated; (2) is not dominant in its field percent of all subscribers in the United Broadcasting Services. The SBA has of operation; and (3) satisfies any States and is not affiliated with any developed a small business size additional criteria established by the entity or entities whose gross annual standard for Wired Telecommunication SBA. revenues in the aggregate exceed Carriers, which is all such businesses 72. Small Businesses, Small $250,000,000.’’ Based on available data, having 1,500 or fewer employees. Organizations, and Small Governmental all but 10 incumbent cable operators are According to Census Bureau data for Jurisdictions. As of 2009, small small under this size standard. 2007, there were 3,188 Wired businesses represented 99.9% of the 76. Direct Broadcast Satellite (DBS) Telecommunications Carrier firms that 27.5 million businesses in the United Service. DBS service is a nationally operated for the entire year in 2007. Of States, according to the SBA. distributed subscription service that these, 3,144 operated with less than Additionally, a ‘‘small organization’’ is delivers video and audio programming 1,000 employees, and 44 operated with generally ‘‘any not-for-profit enterprise via satellite to a small parabolic ‘‘dish’’ 1,000 or more employees. In addition to which is independently owned and antenna at the subscriber’s location. Census Bureau data, the Commission’s operated and is not dominant in its Currently, only two entities, DIRECTV internal records indicate that as of field.’’ Nationwide, as of 2007, there and DISH Network provide DBS service, September 2012, there are 2,239 active were approximately 1,621,315 small and neither company is a small EBS licenses. The Commission organizations. Finally, the term ‘‘small business. estimates that of these 2,239 licenses,

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the majority are held by non-profit this time to define or quantify the 2007, there were 3,188 firms in this educational institutions and school criteria that would establish whether a category that operated for the entire districts, which are by statute defined as specific television station is dominant year. Of this total, 3,144 had small businesses. in its field of operation. Accordingly, employment of less than 1000 79. Open Video Services. Because the estimate of small businesses to employees, and 44 firms had had OVS operators provide subscription which rules may apply do not exclude employment of 1,000 employees or services, OVS falls within the SBA any television station from the more. According to Commission data, small business size standard covering definition of a small business on this 1,442 carriers reported that they were cable services, which is Wired basis and is therefore over-inclusive to engaged in the provision of either CLEC Telecommunications Carriers. The SBA that extent. Also as noted, an additional services or CAP services. Of these 1,442 has developed a small business size element of the definition of ‘‘small carriers, an estimated 1,256 have 1,500 standard for this category, which is all business’’ is that the entity must be or fewer employees and 186 have more such firms having 1,500 or fewer independently owned and operated. than 1,500 employees. In addition, 17 employees. According to U.S. Census The Commission notes that it is difficult carriers have reported that they are data for 2007, there were 3,188 firms at times to assess these criteria in the Shared-Tenant Service Providers, and that in 2007 were Wired context of media entities, and its all 17 are estimated to have 1,500 or Telecommunications Carriers. Of these, estimates of small businesses to which fewer employees. Seventy-two carriers 3,144 operated with less than 1,000 they apply may be over-inclusive to this have reported that they are Other Local employees, and 44 operated with 1,000 extent. Service Providers, and of the 72, 70 or more employees. However, as to the 83. Incumbent Local Exchange have 1,500 or fewer employees and 2 latter 44 there is no data available that Carriers (ILECs). Neither the have more than 1,500 employees. shows how many operated with more Commission nor the SBA has developed 86. Electric Power Distribution than 1,500 employees. a small business size standard Companies. These entities can provide 80. Television Broadcasting. The SBA specifically for ILECs. The appropriate video services over power lines (BPL). defines a television broadcasting station size standard under SBA rules is for the The SBA has developed a small as a small business if such station has category Wired Telecommunications business size standard for this category, no more than $35.5 million in annual Carriers. Under that size standard, such which is all such firms having 1,000 or receipts. The Commission has estimated a business is small if it has 1,500 or fewer employees. Census Bureau data the number of licensed full power fewer employees and ‘‘is not dominant for 2007 show that there were 1,174 commercial television stations to be in its field of operation.’’ The SBA’s firms that operated for the entire year in 1,388. According to U.S. Census Bureau Office of Advocacy contends that, for this category. Of these firms, 50 had data for 2007, there were 2,076 RFA purposes, small ILECs are not 1,000 employees or more, and 1,124 had television broadcasting establishments dominant in their field of operation fewer than 1,000 employees. in 2007. Of these, 1,515 establishments because any such dominance is not 87. Cable and Other Subscription had receipts under $10 million, and 561 ‘‘national’’ in scope. The Commission Programming. These entities may be had receipts of $10 million or more. The has therefore included small ILECs in indirectly affected by the Commission’s Commission notes, however, that, in this RFA analysis, although the action. The size standard established by assessing whether a business concern Commission emphasizes that this RFA the SBA for this business category is qualifies as small under the above action has no effect on Commission that annual receipts of $35.5 million or definition, business control affiliations analyses and determinations in other, less determine that a business is small. must be included. Because many of non-RFA contexts. According to 2007 Census Bureau data these stations may be held by large 84. According to Census Bureau data there were 396 firms that were engaged group owners, and the revenue figures for 2007, there were 3,188 firms in this in production of Cable and Other on which the Commission’s estimate is category that operated for the entire Subscription Programming. Of these, based does not include or aggregate year. Of this total, 3,144 had 349 had annual receipts below $25 revenues from control affiliates, its employment of less than 1000 million, 12 had annual receipts ranging estimate likely overstates the number of employees, and 44 firms had had from $25 million to $49,999,999, and 35 small entities that might be affected by employment of 1,000 or more. had annual receipts of $50 million or its action. According to Commission data, 1,307 more. 81. The Commission has estimated carriers have reported that they are 88. Motion Picture and Video the number of licensed noncommercial engaged in the provision of ILEC Production. These entities may be educational (NCE) full power television services. Of these 1,307 carriers, an indirectly affected by its action. The size stations to be 396. The Commission estimated 1,006 have 1,500 or fewer standard established by the SBA for this does not compile and otherwise does employees and 301 have more than business category is that annual receipts not have access to information on the 1,500 employees. of $30 million or less determine that a revenue of NCE stations that would 85. Competitive Local Exchange business is small. According to 2007 permit it to determine how many such Carriers (CLECs), Competitive Access Census Bureau data, there were 9,095 stations would qualify as small entities. Providers (CAPs), Shared-Tenant firms that were engaged in Motion There are also 428 Class A television Service Providers, and Other Local Picture and Video Production. Of these, stations and 1,986 low power television Service Providers. Neither the 8,995 had annual receipts of less than stations (LPTV). Given the nature of Commission nor the SBA has developed $25 million, 43 had annual receipts these services, the Commission will a small business size standard ranging from $25 million to presume that all Class A television and specifically for these service providers. $49,999,999, and 57 had annual receipts LPTV licensees qualify as small entities The appropriate size standard under of $50 million or more. under the SBA definition. SBA rules is for the category Wired 89. Internet Publishing and 82. In addition, an element of the Telecommunications Carriers. Under Broadcasting and Web Search Portals. definition of ‘‘small business’’ is that the that size standard, such a business is These entities may be directly or entity not be dominant in its field of small if it has 1,500 or fewer employees. indirectly affected by the Commission’s operation. The Commission is unable at According to Census Bureau data for action. The SBA has deemed an Internet

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publisher or Internet broadcaster or the Æ Captioning vendors and captioners (6) Requires broadcasters to create a provider of a web search portal on the following the Best Practices or report on their experiences using these Internet to be small if it has fewer than performance requirements comparable ENT practices within one year of the 500 employees. Census Bureau data for to the Best Practices must take actions implementation of these practices. 2007 show that there were 2,705 such to improve the quality of closed Æ Such report shall be prepared in firms that operated that year. Of those captions, including but not limited to consultation with Consumer Groups and 2,705 firms, 2,682 (approximately 99%) actions regarding evaluation of may be prepared by the National had fewer than 500 employees, and 23 captioning accuracy, captioner Association of Broadcasters (NAB) on had 500 or more employees. screening, training, and supervision, behalf of the affected broadcasters. 90. Closed Captioning Services. These and technical systems and expertise. (7) Specifies that each multicast Æ entities may be directly or indirectly There are no reporting program stream of a digital television affected by the Commission’s action. requirements associated with the Best station be considered separately for the The SBA has developed two small Practices adopted in document FCC 14– purpose of the captioning exemption for business size standards that may be 12. channels producing revenues of less used for closed captioning services, (3) Requires VPDs to make best efforts than $3 million, but does not adopt any which track the economic census obtain certifications from the video reporting requirements along these categories, ‘‘Teleproduction and Other programmers from which they receive lines. Postproduction Services’’ and ‘‘Court programming attesting that the video (8) Requires VPDs to monitor and Reporting and Stenotype Services.’’ programmers (1) comply with the maintain their equipment and data 91. The relevant size standard for captioning quality standards, (2) adhere streams and perform technical small businesses in Teleproduction and to the video programmer Best Practices, equipment checks to ensure greater or (3) are exempt from the closed Other Postproduction Services is annual technical compliance, and to maintain revenue of less than $29.5 million. captioning rules under one or more records of such monitoring, Census Bureau data for 2007 indicate properly attained and specified maintenance, and technical equipment that there were 1,605 firms that operated exemptions. checks for at least two years, but does in this category for the entire year. Of Æ VPDs are not required to report to not adopt any reporting requirements in that number, 1,587 had annual receipts the Commission regarding their efforts this regard. totaling less than $25 million, 9 had to obtain certifications from video (9) Requires that petitions for annual receipts ranging from $25 programmers. exemption from the closed captioning million to $49,999,999, and 9 had Æ However, if a video programmer rules, as well as comments or annual receipts of $50 million or more. does not provide either of the 92. The size standard for small certifications noted above, the VPD oppositions to such petitions, be filed businesses in Court Reporting and must report the non-certifying electronically rather than on paper. Stenotype Services is annual revenue of programmer to the Commission. 94. The RFA requires an agency to less than $14 million. Census Bureau (4) Requires broadcasters that use describe any significant, specifically data for 2007 show that there were 2,706 ENT to follow certain practices in order small business, alternatives that it has firms that operated for the entire year. to be deemed in compliance with the considered in reaching its proposed Of this total, 2,687 had annual receipts Commission’s rules requiring captioning approach, which may include the of under $10 million, 11 firms had of live programming. following four alternatives (among annual receipts of $10 million to (5) Adopts a compliance ladder that others): ‘‘(1) The establishment of $24,999,999, and 8 had annual receipts broadcasters following these ENT differing compliance or reporting of $25 million or more. practices may use in the event of a requirements or timetables that take into 93. In document FCC 14–12, the Commission inquiry or investigation. account the resources available to small Æ Commission takes the following actions The compliance ladder calls for entities; (2) the clarification, to improve the quality of closed broadcasters to respond to notifications consolidation, or simplification of captions: of noncompliance within 30 days by compliance and reporting requirements (1) Establishes non-technical describing corrective measures. If a under the rule for such small entities; captioning quality standards (e.g., pattern or trend of noncompliance (3) the use of performance rather than accuracy, synchronicity, program continues, the compliance ladder calls design standards; and (4) an exemption completeness and placement) to for broadcasters to respond to a from coverage of the rule, or any part improve the quality of closed subsequent notification of thereof, for such small entities.’’ captioning, but does not adopt any noncompliance within 30 days by 95. In amending its closed captioning reporting requirements along these setting forth an action plan describing rules, the Commission believes that it lines. specific measures it will take to bring has minimized the effect on small (2) Adopts Best Practices for video the station’s ENT performance into entities while making video programmers, captioning vendors and compliance with the Commission’s programming more accessible to persons captioners. regulations regarding ENT. In addition, who are deaf and hard of hearing. These Æ Video programmers that choose to the station shall be required to conduct efforts are consistent with the follow the Best Practices must include spot checks of its ENT performance and Congressional goal of increasing the certain provisions in their agreements report to the Commission on the results availability of captioned programming with captioning vendors, including of such action plan and spot checks 180 while preserving the diversity of performance requirements comparable days after submission of such action available programming. Consistent with to the captioning vendor Best Practices plan. If, after the date for submission of its conclusions in 1997, when the closed adopted in document FCC 14–12; follow such report on the results of an action captioning rules were first adopted, the certain operational, monitoring, and plan, the pattern or trend of Commission has limited the exemptions remedial best practices; and make noncompliance continues, the to the closed captioning rules because it certifications to VPDs that they comply Commission will then consider, through has determined that all VPDs are with the video programmer Best its Enforcement Bureau, appropriate technically capable of delivering Practices widely available. enforcement action. captioning.

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96. However, consistent with the programmers whose programming the that real-time captioning would impose RFA, several steps were taken to VPD carries who do not provide the on broadcast stations in markets beyond minimize the impact on small entities. certification noted above, this the top 25, including small businesses. The captioning quality standards requirement is less burdensome to VPDs However, document FCC 14–12 does adopted in the document FCC 14–12 are than alternatives such as having VPDs require broadcast stations that use ENT performance-orientated and avoid bear the risk of substandard caption to follow certain Best Practices designed mandating the use of particular quality of programming from video to improve the quality of captions technologies. In addition, because the programmers who refuse to provide the created using ENT. The ENT Best captioning quality standards are certification. Practices will impose minimal burdens qualitative rather than quantitative, they 98. The certification approach and on broadcasters because they are afford the industry, including small Best Practices adopted by document generally achievable without additional entities, flexibility when complying and FCC 14–12 may also impose additional cost and, for those stations with older do not requiring monitoring of every compliance obligations on video equipment, software upgrades necessary program on every channel at all times. programmers, including small entities, for compliance with the ENT Best The captioning quality standards also that elect to certify to compliance with Practices are available for relatively take into consideration the extent to either the standards or the Best Practices nominal cost. In addition, document which compliance with the standards because they may be required to FCC 14–12 adopts a compliance ladder can be achieved for various types of implement practices and incur some for determining compliance with the programming, further enhancing the additional costs to ensure that the ENT Best Practices, offering broadcast flexibility provided to the industry, captioning they provide meets the stations additional flexibility in including small entities, when Commission’s caption quality standards complying with the Commission’s ENT complying with the standards. or Best Practices. The Best Practices requirements. Document FCC 14–12 Moreover, the record in this proceeding may also impose additional compliance does require broadcast stations that rely shows that many entities already have obligations on captioning vendors and on the ENT Best Practices to prepare undertaken practices to ensure caption captioners, including small entities. and submit to the Commission, within quality, thereby minimizing any Nevertheless, the Commission believes one year after the effective date of the additional costs imposed by the new the overall burden on video rules pertaining to ENT, a report on captioning quality standards. programmers that choose to certify and their experiences and the extent to on captioning vendors and captioners which they have been successful in 97. Additionally, although document will be minimal for several reasons. FCC 14–12 places the obligation to providing full and equal access to news First, the Best Practices are voluntary. programming. To minimize the burden ensure compliance with the captioning Document FCC 14–12 allows video quality standards on VPDs, VPDs can do on small entities, document FCC 14–12 programmers the choice between specifies that the report may be so by making best efforts to obtain certifying to compliance with the certifications from the video prepared by the NAB jointly on behalf caption quality standards or Best of the affected broadcasters. programmers from which they receive Practices. Video programmers that do programming attesting that the video not want to follow the video 100. Document FCC 14–12 reduces programmer (1) complies with the programmer Best Practices can instead the captioning requirements for captioning quality standards, (2) certify that they comply with the television stations that multicast by adheres to the video programmer Best captioning quality standards. Second, extending the provision in § 79.1(d)(12) Practices, or (3) is exempt from the the Best Practices provide video of the Commission’s rules, which closed captioning rules under one or programmers, captioning vendors, and exempts video programming providers more properly attained and specified captioners with flexibility in from closed captioning where the exemptions. The certification approach establishing performance requirements distributor’s annual gross revenues from adopted by Document FCC 14–12 designed to promote the creation of high the channel did not exceed $3 million imposes only a minimal burden on quality closed captions for video for the previous calendar year, to each VPDs, including small entities. The programming by requiring practices programming stream of a multicast Commission permits the use of widely comparable, but not necessarily digital television channel. Document available certifications for this purpose, identical, to the captioning vendor Best FCC 14–12 does not disturb the existing to obviate the need for individual Practices. Third, the overall cost burden exemption in § 79.1(d)(11) of the contractual certifications, thus greatly on video programmers that choose to Commission’s rules, which excuses a reducing the burden on VPDs. Use of certify will be relatively minimal, as video programming provider from widely available certifications generally demonstrated by the record, which spending more than 2 percent of its reduces the burden on small VPDs, who reflects that caption prices have ‘‘fallen annual gross revenues received from a will generally rely upon widely dramatically’’ since the Commission channel on closed captioning. Sections available certifications arranged by the first implemented its 1997 captioning 79.1(f), 79.1(d)(11) and 79.1(d)(12) of the larger VPDs for programming that is rules. Fourth, as noted above, document Commission’s rules are all intended to nationwide or regional. In addition, FCC 14–12 permits video programmers address the problems of small video VPDs that located a programmer’s to provide widely available programming providers that are not in a certification on the programmer’s Web certifications, rather than having to position to devote significant resources site or other widely available location provide individual certifications to each toward closed captioning by relieving used for the purpose of posting requesting VPD, which will small entities of any burdensome certification will be deemed in substantially minimize the burden on obligation to provide closed captioning. compliance with the best efforts video programmers choosing to certify. The § 79.1(f) mechanism in particular obligation even if the VPD did not 99. Document FCC 14–12 declines to allows the Commission to address the supply prior notification of the need for extend the prohibition on ENT to impact of these rules on individual this certification to such programmer. markets beyond the top 25. In declining entities and grant exemptions to the While the Order requires VPDs to report to extend the prohibition on ENT, the rules to accommodate individual to the Commission those video Commission has considered the burden circumstances.

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101. Document FCC 14–12 declines to Document FCC 14–12 shall be § 79.1 Closed captioning of televised video adopt any requirements for VPDs to effective April 30, 2014, pursuant to 5 programming. annually file reports or certifications U.S.C. 553(d) and § 1.427(a) of the (a) Definitions. For purposes of this with the Commission. By declining to Commission’s rules, 47 CFR 1.427(a), section the following definitions shall adopt reporting requirements, the unless otherwise noted. apply: Commission has taken into The final rules contained in 47 CFR (1) Captioning vendor. Any entity that consideration the burdens that reporting 79.1(c)(3), (j), and (k) shall be effective is responsible for providing captioning requirements would impose on VPDs, upon publication in the Federal services to a video programmer. including small businesses. Register of a notice announcing the (2) Closed captioning, or captioning. 102. However, document FCC 14–12 approval by the Office of Management The visual display of the audio portion does require VPDs to maintain records and Budget of the modified information of video programming pursuant to the of equipment monitoring and collection requirements under the technical specifications set forth in this maintenance and technical equipment Paperwork Reduction Act of 1995 and part. checks. These recordkeeping an effective date of the rule amendment, (3) Live programming. Video requirements will impose minimal and such effective date shall be no programming that is shown on burdens on VPDs because it is likely sooner than January 15, 2015. television substantially simultaneously that many covered entities already keep The final rules contained in 47 CFR with its performance. such records, and document FCC 14–12 79.1(e)(11)(i) and (ii) shall be effective (4) Near-live programming. Video does not mandate any specific format June 30, 2014. programming that is performed and for keeping records, providing covered The final rules contained in 47 CFR recorded less than 24 hours prior to the entities with flexibility to establish their 79.1(e)(11)(iii), (iv) and (v) shall be time it is first aired on television. own recordkeeping procedures. effective upon publication in the (5) New programming. Video Furthermore, the monitoring, Federal Register of a notice announcing programming that is first published or maintenance, and technical equipment the approval by the Office of exhibited on or after January 1, 1998. (i) Analog video programming that is checks adopted in the Order are Management and Budget of the first published or exhibited on or after performance-orientated and avoid modified information collection January 1, 1998. mandating the use of particular requirements under the Paperwork (ii) Digital video programming that is technologies or processes. Reduction Act of 1995 and an effective first published or exhibited on or after 103. Document FCC 14–12 does date of the rule amendment. The Declaratory Ruling adopted July 1, 2002. modify the procedures for filing (6) Non-exempt programming. Video herein became effective on February 24, exemption petitions with the programming that is not exempt under 2014. Commission pursuant to § 79.1(f) of its paragraph (d) of this section and, The Commission’s Consumer and rules by requiring that such petitions accordingly, is subject to closed Governmental Affairs Bureau, Reference and responsive pleadings be filed captioning requirements set forth in this Information Center, shall send a copy of electronically rather than on paper. This section. document FCC 14–12, including the procedure will make it easier for VPDs (7) Prerecorded programming. Video Final Regulatory Flexibility to file such petitions and consumers to programming that is not ‘‘live’’ or ‘‘near- Certification, to the Chief Counsel for respond to such petitions. Moreover, in live’’. the event any VPD or consumer finds it advocacy of the Small Business (8) Pre-rule programming. (i) Analog burdensome to file electronically, such Administration. video programming that was first VPD or consumer may ask the List of Subjects in 47 CFR Part 79 published or exhibited before January 1, Commission for authorization to file on 1998. Individuals with disabilities, paper at the time it makes the filing. (ii) Digital video programming that Reporting and recordkeeping 104. Federal Rules Which Duplicate, was first published or exhibited before requirements, Telecommunications. Overlap, or Conflict With, the July 1, 2002. Commission’s Proposals—None. Federal Communications Commission. (9) Video programmer. Any entity that 105. The Commission will send a Marlene H. Dortch, provides video programming that is copy of document FCC 14–12, including Secretary. intended for distribution to residential a copy of the Final Regulatory households including, but not limited For the reasons discussed in the Flexibility Certification, to the Chief to, broadcast or nonbroadcast television preamble, the Federal Communications Counsel for Advocacy of the SBA. networks and the owners of such Commission amends 47 CFR part 79 as programming. Congressional Review Act follows: (10) Video programming. 106. The Commission will send a PART 79—CLOSED CAPTIONING AND Programming provided by, or generally copy of document FCC 14–12 in a report VIDEO DESCRIPTION OF VIDEO considered comparable to programming to be sent to Congress and the PROGRAMMING provided by, a television broadcast Governmental Accountability Office station that is distributed and exhibited pursuant to the Congressional Review ■ 1. The authority citation for part 79 for residential use. Video programming Act, 5 U.S.C. 801(a)(1)(A). continues to read as follows: includes advertisements of more than five minutes in duration but does not Ordering Clauses Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 330, 544a, 613, 617. include advertisements of five minutes’ Pursuant to the authority contained in duration or less. sections 4(i), 303(r) and 713 of the ■ 2. Amend § 79.1 by revising the (11) Video programming distributor. Communications Act of 1934, as section heading and paragraphs (a), (c), Any television broadcast station amended, 47 U.S.C. 154(i), 303(r) and (d)(12), (e)(3), and adding paragraph licensed by the Commission and any 613, document FCC 14–12 is adopted (e)(11), revising paragraphs (f)(4), (f)(7), multichannel video programming and the Commission’s rules are and (i)(3), and adding paragraphs (j) and distributor as defined in § 76.1000(e) of amended. (k), to read as follows: this chapter, and any other distributor of

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video programming for residential programming distributor’s monitoring (B) For weather interstitials where reception that delivers such and maintenance of equipment and there may be multiple segments within programming directly to the home and signal transmissions to ensure the pass a news program, weather information is subject to the jurisdiction of the through and delivery of closed explaining the visual information on the Commission. An entity contracting for captioning to viewers, and technical screen and conveying forecast program distribution over a video equipment checks and other activities to information will be scripted, although programming distributor that is itself ensure that captioning equipment and the scripts may not precisely track the exempt from captioning that other related equipment are maintained words used on air. programming pursuant to paragraph in good working order. Each video (C) Pre-produced programming will (e)(9) of this section shall itself be programming distributor shall maintain be scripted (to the extent technically treated as a video programming such records for a minimum of two feasible). distributor for purposes of this section years and shall submit such records to (D) If live interviews or live on-the To the extent such video programming the Commission upon request. scene or breaking news segments are not is not otherwise exempt from (d) * * * scripted, stations will supplement them with crawls, textual information, or captioning, the entity that contracts for (12) Channels/Streams producing its distribution shall be required to other means (to the extent technically revenues of under $3,000,000. No video feasible). comply with the closed captioning programming provider shall be required requirements of this section. (E) The station will provide training to expend any money to caption any to all news staff on scripting for (12) Video programming provider. channel or stream of video programming Any video programming distributor and improving ENT. producing annual gross revenues of less (F) The station will appoint an ‘‘ENT any other entity that provides video than $3,000,000 during the previous Coordinator’’ accountable for programming that is intended for calendar year other than the obligation compliance. distribution to residential households to pass through video programming (ii) Nothing in this paragraph (e)(11) including, but not limited to broadcast closed captioned when received shall relieve a broadcast station of its or nonbroadcast television network and pursuant to paragraph (c) of this section. obligations under § 79.2 of this chapter the owners of such programming. For the purposes of this paragraph, each regarding the accessibility of * * * * * programming stream on a multicast programming providing emergency (c) Obligation to pass through digital television channel shall be information. captions of already captioned programs; considered separately for purposes of (iii) Informal complaints. The obligation to maintain equipment and the $3,000,000 revenue limit. Commission will forward an informal monitor for captions. (1) All video * * * * * complaint regarding captioning to a programming distributors shall deliver (e) * * * broadcast station that utilizes ENT to all programming received from the (3) The major national broadcast provide captioning pursuant to the video programming owner or other television networks (i.e., ABC, CBS, Fox procedures set forth in paragraph origination source containing closed and NBC), affiliates of these networks in (e)(11)(i) of this section only if the captioning to receiving television the top 25 television markets as defined informal complaint contains the households with the original closed by Nielsen’s Designated Market Areas television channel number, network, or captioning data intact in a format that (DMAs) and national nonbroadcast call sign, the name of the subscription can be recovered and displayed by networks serving at least 50% of all service, if relevant, the date and time of decoders meeting the standards of this homes subscribing to multichannel the captioning problems, the name of part unless such programming is video programming services shall not the affected program, and a detailed and recaptioned or the captions are count electronic newsroom captioned specific description of the captioning reformatted by the programming programming towards compliance with problems, including the frequency and distributor. these rules. The live portions of type of problem. (2) Video programming distributors (iv) Compliance. (A) Initial response noncommercial broadcasters’ shall take any steps needed to monitor to pattern or trend of noncompliance. If fundraising activities that use and maintain their equipment and the Commission notifies a broadcast automated software to create a signal transmissions associated with the station that the Commission has continuous captioned message will be transmission and distribution of closed identified a pattern or trend of possible considered captioned; captioning to ensure that the captioning noncompliance by the station with this included with video programming * * * * * paragraph (e)(11), the station shall reaches the consumer intact. In any (11) Use of ‘‘Electronic Newsroom respond to the Commission within 30 enforcement proceeding involving Technique’’ (ENT). (i) A broadcast days regarding such possible equipment failure, the Commission will station that uses ENT to provide closed noncompliance, describing corrective require video programming distributors captioning for live programming or measures taken, including those to demonstrate that they have monitored programming originally transmitted live measures the station may have their equipment and signal and that is not subject to the current undertaken in response to informal transmissions, have performed technical prohibition on the use of ENT in complaints and inquiries from viewers. equipment checks, and have promptly paragraph (e)(3) of this section shall be (B) Corrective action plan. If, after the undertaken repairs as needed to ensure deemed in compliance with the date for a broadcast station to respond that equipment is operational and in Commission’s rules requiring captioning to a notification under paragraph good working order. of live programming or programming (e)(11)(iv)(A) of this section, the (3) Each video programming originally transmitted live if it adheres Commission subsequently notifies the distributor shall maintain records of the to the following procedures in the broadcast station that there is further video programming distributor’s ordinary course of business: evidence indicating a pattern or trend of monitoring and maintenance activities, (A) In-studio produced news, sports, noncompliance with this paragraph which shall include, without limitation, weather, and entertainment (e)(11), the broadcast station shall information about the video programming will be scripted. submit to the Commission, within 30

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days of receiving such subsequent party, its attorney, or other duly Commission identifying such non- notification, an action plan describing constituted agent. certifying video programmer for the specific measures it will take to bring * * * * * purpose of being placed in a publicly the station’s ENT performance into (i) * * * available database. A video compliance with this paragraph (e)(11). (3) Providing contact information to programming distributor that meets In addition, the station shall be required the Commission. Video programming each of the requirements of this to conduct spot checks of its ENT distributors shall file the contact paragraph shall not be liable for performance and report to the information described in this section violations of paragraphs (j)(2) and (3) of Commission on the results of such with the Commission in one of the this section to the extent that any such action plan and spot checks 180 days following ways: Through a web form violations are outside the control of the after the submission of such action plan. located on the FCC Web site; with the video programming distributor. (C) Continued evidence of a pattern or Chief of the Disability Rights Office, (2) Captioning quality standards. trend of noncompliance. If, after the Consumer and Governmental Affairs Closed captioning shall convey the aural date for submission of a report on the Bureau; or by sending an email to content of video programming in the results of an action plan and spot checks [email protected]. original language (i.e. English or pursuant to paragraph (e)(11)(iv)(B) of Contact information shall be available to Spanish) to individuals who are deaf this section, the Commission finds consumers on the FCC Web site or by and hard of hearing to the same extent that the audio track conveys such continued evidence of a pattern or trend telephone inquiry to the Commission’s content to individuals who are able to of noncompliance, additional Consumer Center. Distributors shall hear. Captioning shall be accurate, enforcement actions may be taken, notify the Commission each time there synchronous, complete, and which may include admonishments, is a change in any of this required appropriately placed as those terms are forfeitures, and other corrective actions, information within 10 business days. defined herein. including, but not limited to, requiring (j) Captioning quality obligation; (i) Accuracy. Captioning shall match the station to cease using ENT and to standards. (1) A video programming the spoken words (or song lyrics when use real-time captioning for live distributor shall exercise best efforts to provided on the audio track) in their programming. obtain a certification from each video original language (English or Spanish), (v) Progress report. No later than one programmer from which the distributor in the order spoken, without year after the effective date of this obtains programming stating: substituting words for proper names and paragraph (e)(11), broadcast stations that (i) That the video programmer’s places, and without paraphrasing, adhere to the procedures set forth in programming satisfies the caption except to the extent that paraphrasing is paragraph (e)(11)(i) shall jointly prepare quality standards of paragraph (j)(2) of necessary to resolve any time and submit to the Commission, in this section; constraints. Captions shall contain consultation with individuals who rely (ii) That in the ordinary course of proper spelling (including appropriate on captions to watch television and business, the video programmer has homophones), appropriate punctuation organizations representing such adopted and follows the Best Practices and capitalization, correct tense and use individuals, a report on their set forth in paragraph (k)(1) of this of singular or plural forms, and accurate experiences with following such section; or representation of numbers with procedures, and the extent to which (iii) That the video programmer is appropriate symbols or words. If slang they have been successful in providing exempt from the closed captioning rules or grammatical errors are intentionally full and equal access to live under one or more properly attained used in a program’s dialogue, they shall programming. exemptions. For programmers certifying be mirrored in the captions. Captioning (f) * * * exemption from the closed captioning shall provide nonverbal information rules, the video programming that is not observable, such as the (4) A petition requesting an distributor must obtain a certification exemption based on the economically identity of speakers, the existence of from the programmer that specifies the music (whether or not there are also burdensome standard, and all exact exemption that the programmer is subsequent pleadings, shall be filed lyrics to be captioned), sound effects, claiming. Video programming and audience reaction, to the greatest electronically in accordance with distributors may satisfy their best efforts § 0.401(a)(1)(iii) of this chapter. extent possible, given the nature of the obligation by locating a programmer’s program. Captions shall be legible, with * * * * * certification on the programmer’s Web appropriate spacing between words for (7) Comments or oppositions to the site or other widely available locations readability. petition shall be filed electronically and used for the purpose of posting widely (ii) Synchronicity. Captioning shall served on the petitioner and shall available certifications. If a video coincide with the corresponding spoken include a certification that the petitioner programming distributor is unable to words and sounds to the greatest extent was served with a copy. Replies to locate such certification on the possible, given the type of the comments or oppositions shall be filed programmer’s Web site or other widely programming. Captions shall begin to electronically and served on the available location used for the purpose appear at the time that the commenting or opposing party and shall of posting such certification, the video corresponding speech or sounds begin include a certification that the programming distributor must inform and end approximately when the speech commenting or opposing party was the video programmer in writing that it or sounds end. Captions shall be served with a copy. Comments or must make widely available such displayed on the screen at a speed that oppositions and replies may be served certification within 30 days after permits them to be read by viewers. upon a party, its attorney, or other duly receiving the written request. If a video (iii) Completeness. Captioning shall constituted agent by delivering or programmer does not make such run from the beginning to the end of the mailing a copy to the last known certification widely available within 30 program, to the fullest extent possible. address in accordance with § 1.47 of this days after receiving a written request, (iv) Placement. Captioning shall be chapter or by sending a copy to the the video programming distributor shall viewable and shall not block other email address last provided by the promptly submit a report to the important visual content on the screen,

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including, but not limited to, character channel number, channel name, of a programmer’s commercially faces, featured text (e.g., weather or network, or call sign; the name of the reasonable judgment, circumstances other news updates, graphics and multichannel video program distributor, require real-time or live display credits), and other information that is if applicable; the date and time when captioning. Examples of commercially essential to understanding a program’s the captioning problem occurred; the reasonable exceptions may include content when the closed captioning name of the program with the instances when: feature is activated. Caption font shall captioning problem; and a detailed (i) A programmer’s production is be sized appropriately for legibility. description of the captioning problem, completed too close to initial air time be Lines of caption shall not overlap one including specifics about the frequency captioned offline or may require another and captions shall be and type of problem (e.g., garbling, editorial changes up to air time (e.g., adequately positioned so that they do captions cut off at certain times or on news content, reality shows), not run off the edge of the video screen. certain days, and accuracy problems). (ii) A program is delivered late, (3) Application of captioning quality (k) Captioning Best Practices. (1) (iii) There are technical problems with standards. Captioning shall meet the Video Programmer Best Practices. Video the caption file, standards of paragraph (j)(2) of this programmers adopting Best Practices (iv) Last minute changes must be section for accuracy, synchronicity, will adhere to the following practices. made to later network feeds (e.g., when completeness and placement, except for (i) Agreements with captioning shown in a later time zone) due to de minimis captioning errors. In services. Video programmers adopting unforeseen circumstances, determining whether a captioning error Best Practices will take the following (v) There are proprietary or is de minimis, the Commission will actions to promote the provision of high confidentiality considerations, or consider the particular circumstances quality television closed captions (vi) Video programming networks or presented, including the type of failure, through new or renewed agreements channels with a high proportion of live the reason for the failure, whether the with captioning vendors. or topical time-sensitive programming, failure was one-time or continuing, the (A) Performance requirements. but also some pre-recorded programs, degree to which the program was Include performance requirements use real-time captioning for all content understandable despite the errors, and designed to promote the creation of high (including pre-recorded programs) to the time frame within which corrective quality closed captions for video allow for immediate captioning of action was taken to prevent such programming, comparable to those events or breaking news stories that failures from recurring. When applying described in paragraphs (k)(2), (k)(3) interrupt scheduled programming. such standards to live and near-live and (k)(4) of this section. (2) The video programmer will make programming, the Commission will also (B) Verification. Include a means of reasonable efforts to employ live display take into account, on a case-by-case verifying compliance with such captioning instead of real-time basis, the following factors: performance requirements, such as captioning for prerecorded programs if (i) Accuracy. The overall accuracy or through periodic spot checks of the complete program can be delivered understandability of the programming, captioned programming. to the caption service provider in the ability of the captions to convey the (C) Training. Include provisions sufficient time prior to airing. aural content of the program in a designed to ensure that captioning (iii) Monitoring and Remedial Best manner equivalent to the aural track, vendors’ employees and contractors Practices. Video programmers adopting and the extent to which the captioning who provide caption services have Best Practices will take the following errors prevented viewers from having received appropriate training and that actions aimed at improving prompt access to the programming. there is oversight of individual identification and remediation of (ii) Synchronicity. The extent to captioners’ performance. captioning errors when they occur. which measures have been taken, to the (ii) Operational Best Practices. Video (A) Pre-air monitoring of offline extent technically feasible, to keep any programmers adopting Best Practices captions. As part of the overall pre-air delay in the presentation of captions to will take the following actions to quality control process for television a minimum, consistent with an accurate promote delivery of high quality programs, conduct periodic checks of presentation of what is being said, so television captions through improved offline captions on prerecorded that the time between when words are operations. programs to determine the presence of spoken or sounds occur and captions (A) Preparation materials. To the captions. appear does not interfere with the extent available, provide captioning (B) Real-time monitoring of captions. ability of viewers to follow the program. vendors with advance access to Monitor television program streams at (iii) Completeness. The delays preparation materials such as show point of origination (e.g., monitors inherent in sending captioning scripts, lists of proper names (people located at the network master control transmissions on live programs, and and places), and song lyrics used in the point or electronic monitoring) to whether steps have been taken, to the program, as well as to any dress determine presence of captions. extent technically feasible, to minimize rehearsal or rundown that is available (C) Programmer and captioning the lag between the time a program’s and relevant. vendor contacts. Provide to captioning audio is heard and the time that (B) Quality audio. Make commercially vendors appropriate staff contacts who captions appear, so that captions are not reasonable efforts to provide captioning can assist in resolving captioning issues. cut off when the program transitions to vendors with access to a high quality Make captioning vendor contact a commercial or a subsequent program. program audio signal to promote information readily available in master (iv) Placement. The type and nature of accurate transcription and minimize control or other centralized location, the programming and its susceptibility latency. and contact captioning vendor promptly to unintentional blocking by captions. (C) Captioning for prerecorded if there is a caption loss or obvious (4) Complaints. The Commission will programming. (1) The presumption is compromise of captions. forward an informal complaint that pre-recorded programs, excluding (D) Recording of captioning issues. regarding captioning quality to a video programs that initially aired with real- Maintain a log of reported captioning programming distributor only if the time captions, will be captioned offline issues, including date, time of day, informal complaint contains the before air except when, in the exercise program title, and description of the

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issue. Beginning one year after the (vi) Consider synchronicity of interruption due to captioner or effective date of the captioning quality captions to be a measurement of lag equipment malfunction. standards, such log should reflect between the spoken word supplied by (iii) Be equipped with reliable, high reported captioning issues from the the program origination point and when speed Internet. prior year. captions are received at the same (iv) Be equipped with multiple (E) Troubleshooting protocol. Develop program origination point. telephone lines. procedures for troubleshooting (vii) Ensure placement of captions on (v) Prepare as thoroughly as possible consumer captioning complaints within screen to avoid obscuring on-screen for each program. the distribution chain, including information and graphics (e.g., sports (vi) File thorough discrepancy reports identifying relevant points of contact, coverage). with the captioning vendor in a timely and work to promptly resolve (viii) Ensure proper screening, manner. captioning issues, if possible. training, supervision, and evaluation of (vii) To the extent possible given the (F) Accuracy spot checks. Within 30 captioners by experienced and qualified circumstances of the program, ensure days following notification of a pattern real-time captioning experts. that real-time captions are complete or trend of complaints from the (ix) Ensure there is an infrastructure when the program ends. Commission, conduct spot checks of that provides technical and other (viii) Engage the command that allows television program captions to assess support to video programmers and captions to pass at commercials and caption quality and address any ongoing captioners at all times. conclusion of broadcasts. concerns. (x) Ensure that captioners are (ix) Monitor captions to allow for (iv) Certification procedures for video qualified for the type and difficulty immediate correction of errors and programmers. Video programmers level of the programs to which they are prevention of similar errors appearing or adopting Best Practices will certify to assigned. repeating in captions. video programming distributors that (xi) Utilize a system that verifies (x) Perform frequent and regular self- they adhere to Best Practices for video captioners are prepared and in position evaluations. (xi) Perform regular dictionary programmers and will make such prior to a scheduled assignment. maintenance. certifications widely available to video (xii) Ensure that technical systems are (xii) Keep captioning equipment in programming distributors, for example, functional and allow for fastest possible good working order and update software by posting on affiliate Web sites. delivery of caption data and that and equipment as needed. (2) Real-Time (Live) Captioning failover systems are in place to prevent (xiii) Possess the technical skills to Vendors Best Practices. (i) Create and service interruptions. troubleshoot technical issues. use metrics to assess accuracy, (xiii) Regularly review discrepancy (xiv) Keep abreast of current events synchronicity, completeness, and reports in order to correct issues and and topics that they caption. placement of real-time captions. avoid future issues. (4) Offline (Prerecorded) Captioning (ii) Establish minimum acceptable (xiv) Respond in a timely manner to Vendors Best Practices. (i) Ensure standards based upon those metrics concerns raised by video programmers offline captions are verbatim. while striving to regularly exceed those or viewers. (ii) Ensure offline captions are error- minimum standards. (xv) Alert video programmers free. (iii) Perform frequent and regular immediately if a technical issue needs (iii) Ensure offline captions are evaluations and sample audits to ensure to be addressed on their end. punctuated correctly and in a manner those standards are maintained. (xvi) Inform video programmers of that facilitates comprehension. (iv) Consider ‘‘accuracy’’ of captions appropriate use of real-time captioning (iv) Ensure offline captions are to be a measurement of the percentage (i.e., for live and near-live programming, synchronized with the audio of the of correct words out of total words in and not for prerecorded programming) program. the program, calculated by subtracting and what is necessary to produce (v) Ensure offline captions are number of errors from total number of quality captions, including technical displayed with enough time to be read words in the program, dividing that requirements and the need for completely and that they do not obscure number by total number of words in the preparatory materials. the visual content. program and converting that number to (xvii) For better coordination for (vii) Ensure offline captioning is a a percentage. For example, 7,000 total ensuring high quality captions and for complete textual representation of the words in the program minus 70 errors addressing problems as they arise, audio, including speaker identification equals 6,930 correct words captioned, understand the roles and and non-speech information. divided by 7,000 total words in the responsibilities of other stakeholders in (viii) Create or designate a manual of program equals 0.99 or 99% accuracy. the closed-captioning process, including style to be applied in an effort to (v) Consider, at a minimum, broadcasters, producers, equipment achieve uniformity in presentation. mistranslated words, incorrect words, manufacturers, regulators, and viewers, (ix) Employ frequent and regular misspelled words, missing words, and and keep abreast of issues and evaluations to ensure standards are incorrect punctuation that impedes developments in those sectors. maintained. comprehension and misinformation as (xviii) Ensure that all contracted (x) Inform video programmers of errors. captioners adhere to the Real-Time appropriate uses of real-time and offline (A) Captions are written in a near-as- Captioners Best Practices contained in captioning and strive to provide offline verbatim style as possible, minimizing paragraph (k)(4) of this section. captioning for prerecorded paraphrasing. (3) Real-Time Captioners Best programming. (B) The intended message of the Practices. (i) Caption as accurately, (A) Encourage use of offline spoken dialogue is conveyed in the synchronously, completely, and captioning for live and near-live associated captions in a clear and appropriately placed as possible, given programming that originally aired on comprehensive manner. the nature of the programming. television and re-feeds at a later time. (C) Music lyrics should accompany (ii) Ensure they are equipped with a (B) Encourage use of offline artist performances. failover plan to minimize caption captioning for all original and library

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prerecorded programming completed DEPARTMENT OF DEFENSE to require contracting officers to well in advance of its distribution on consider the adequacy of an offeror’s or television. Defense Acquisition Regulations contractor’s accounting system prior to System (xi) For better coordination for agreeing to use performance-based payments. ensuring high quality captions and for 48 CFR Parts 232 and 252 addressing problems as they arise, B. Administratively Burdensome and understand the roles and RIN 0750–AH54 Costly responsibilities of other stakeholders in Defense Federal Acquisition Comment: One respondent stated that the closed-captioning process, including Regulation Supplement; Performance- the proposed rule is administratively video program distributors, video Based Payments (DFARS Case 2011– burdensome, and that implementation programmers, producers, equipment D045) will surpass the one hour average manufacturers, regulators, and viewers, burden per response. and keep abreast of issues and AGENCY: Defense Acquisition DoD Response: Performance-based developments in those sectors. Regulations System, Department of payments will be paid for completed [FR Doc. 2014–06754 Filed 3–28–14; 8:45 am] Defense (DoD). events, but not more frequently than ACTION: Final rule. monthly. Each request for a PBP will BILLING CODE 6712–01–P require the contractor to provide two SUMMARY: DoD is issuing a final rule dollar values: Cumulative value of PBP amending the Defense Federal events completed to date and total cost incurred to date. The rule is, therefore, DEPARTMENT OF DEFENSE Acquisition Regulation Supplement (DFARS) to provide detailed guidance not administratively burdensome since it requires the contractor to provide Defense Acquisition Regulations and instructions on the use of the information that should be readily System performance-based payments analysis tool. available in the contractor’s accounting system in the ordinary course of DATES: 48 CFR Part 219 Effective March 31, 2014. business. Accordingly, DoD estimates, FOR FURTHER INFORMATION CONTACT: Mr. on average, it will not take more than Small Business Programs Mark Gomersall, 571–372–6099. one hour per response. CFR Correction SUPPLEMENTARY INFORMATION: Comment: One respondent requested clarification regarding in what manner I. Background ■ In Title 48 of the Code of Federal contractors will be required to verify, or Regulations, Chapter 2 (Parts 201 to DoD published a proposed rule at 77 otherwise state, total costs incurred. 299), revised as of October 1, 2013, on FR 4638 on January 30, 2012, to provide DoD Response: Each request for a PBP page 136, before subpart 219.12, subpart requirements for the use of the will require the contractor to provide 219.11 is reinstated to read as follows: performance-based payments (PBP) two dollar values: Cumulative value of analysis tool. The PBP analysis tool is PBPs completed to date and total cost Subpart 219.11—Price Evaluation a cash-flow model for evaluating incurred to date. For DoD verification Adjustment for Small Disadvantaged alternative financing arrangements, and purposes, the final rule includes the Business Concerns is required to be used by all contracting requirement for the contractor to officers contemplating the use of provide access, upon request of the 219.1101 General. performance-based payments on new contracting officer, to the contractor’s fixed-price type contract awards. books and records, as necessary, for the The determination to use or suspend administration of the clause. the price evaluation adjustment for DoD II. Discussion and Analysis Comment: One respondent expressed acquisitions can be found at http:// DoD reviewed the public comments in concern that since the proposed rule www.acq.osd.mil/dpap/dars/classdev/ the development of the final rule. A forces contractors to disclose extensive index.htm. discussion of the comments and the cost information and report incurred changes made to the rule as a result of costs per milestone, the costs associated [72 FR 20763, Apr. 26, 2007] those comments is provided as follows: with this reporting obligation will 219.1102 Applicability. increase the cost to the Government. A. Adequate Accounting System DoD Response: The cost information (b) The price evaluation adjustment Comment: One respondent requested to be provided by the contractor takes also shall not be used in acquisitions clarification on whether the proposed two forms: A projected expenditure that are for commissary or exchange rule requires an accounting system profile of total cost per month which is resale. deemed adequate by the Government. required once when PBPs are initially (c) Also, do not use the price DoD Response: FAR 32.1007(c) proposed (i.e., as part of the contractor’s evaluation adjustment in acquisitions requires the contracting officer to proposed performance-based payments that use tiered evaluation of offers, until determine the adequacy of controls schedule that includes all performance- a tier is reached that considers offers established by the contractor for the based payments events, completion from other than small business administration of performance-based criteria, event values, etc.) and payments. Since the contractor will be cumulative value of PBPs completed to concerns. required to report total cost incurred to date and total cost incurred to date, [63 FR 41974, Aug. 6, 1998, as amended date based on its existing accounting which are required during the at 71 FR 53043, Sept. 8, 2006] system, the contracting officer must performance of the contract. The consider the adequacy of the expenditure profile is a key element in [FR Doc. 2014–07201 Filed 3–28–14; 8:45 am] contractor’s accounting system for determining the expected financing BILLING CODE 1505–01–P providing reliable cost data. DFARS needs over time and is needed by both 232.1003–70, Criteria for use, is added parties in order to establish appropriate

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