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Public Notice PUBLIC NOTICE Federal Communications Commission News Media Information 202 / 418-0500 445 12th St., S.W. Internet: http://www.fcc.gov Washington, D.C. 20554 TTY: 1-888-835-5322 DA 12-514 Released: April 2, 2012 NOTICE OF NEED TO FILE UPDATED INFORMATION WITH RESPECT TO PENDING PETITIONS FOR EXEMPTION FROM COMMISSION’S CLOSED CAPTIONING RULES WHICH WERE FILED PRIOR TO OCTOBER 2010 CG Docket No. 06-181 This Public Notice alerts certain entities that filed petitions for exemption from the Federal Communications Commission’s (FCC’s or Commission’s) closed captioning rules before October 8, 2010, of the need to either (1) affirm that the information provided in their previously submitted petition is still accurate and up-to-date, (2) update previously submitted petitions with the information indicated below, or (3) withdraw their previously submitted petitions. Previously submitted petitions will be dismissed on July 5, 2012, without prejudice to filing a new petition for exemption, if not affirmed, updated, or withdrawn as set forth in this Public Notice. Background In 1996, Congress added section 713 to the Communications Act (Act), setting forth requirements for closed captioning of video programming to ensure access by persons with hearing disabilities to television programming,1 and directing the Commission to prescribe rules to carry out this mandate.2 In 1997, the Commission adopted such rules, establishing implementation schedules for closed captioning that became effective on January 1, 1998.3 These rules allowed video programming providers, producers or owners to obtain an exemption from the closed captioning requirements if they could prove that providing captions would result in an undue burden.4 In determining whether an entity would experience an undue burden, the Commission considered four factors: (1) the nature and cost of the closed captions for the programming; (2) the impact on the operation of the provider or program owner; (3) the financial resources of the provider or program owner; and (4) the type of operations of the provider or program owner. On October 8, 2010, Congress enacted the Twenty-First Century Communications and Video Accessibility Act (CVAA), which replaced the “undue burden” terminology with the term “economically 1 Section 305 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 (codified at 47 U.S.C. § 613). 2 47 U.S.C. §§ 613(b),(c). 3 47 C.F.R. § 79.1; see Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Video Programming Accessibility, MM Docket No. 95-176, Report and Order, 13 FCC Rcd 3272 (1997), Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Video Programming Accessibility, MM Docket No. 95-176, Order on Reconsideration, 13 FCC Rcd 19973 (1998). 4 47 C.F.R. §79.1(f). DA 12-514 burdensome.”5 In October 2011, the Commission adopted an Interim Order directing the continued use of the original undue burden factors in evaluating petitions for individual captioning waivers under the new economically burdensome standard, based on guidance contained in the CVAA’s legislative history.6 Under section 713(d)(3) of the Act and the Commission’s rules, therefore, providers, owners, or producers of video programming may obtain an exemption from the closed captioning rules when they can show that these requirements would be economically burdensome.7 From October 2005 through August 2006, the Commission received approximately 600 petitions for individual closed captioning exemptions under section 713(d)(3). In 2006, the Commission’s Consumer and Governmental Affairs Bureau (Bureau) granted two of these petitions in the Anglers Order8 and during the weeks that followed, granted an additional 303 petitions in reliance on the reasoning of that Order. In 2006, the FCC received an Application for Review that challenged the exemptions granted in and those that relied on the Anglers Order.9 On October 20, 2011, the FCC granted the Application for Review, and in the Anglers Reversal MO&O reversed these exemptions.10 That MO&O also set forth guidance on the information and documentation that closed captioning petitions should contain, along with standards that the Bureau should use to determine when a closed captioning exemption is warranted. At issue in this Public Notice are the unresolved petitions for exemption that are not subject to the Anglers Reversal MO&O,11 and that were filed before passage of the CVAA on October 8, 2010.12 Although some of these petitions were previously placed on public notice,13 no decision to grant or to 5 CVAA, Pub. L. No. 111-260, § 202(c) (2010), amending 47 U.S.C. § 613(d). 6 See Anglers for Christ Ministries, Inc., Memorandum Opinion and Order, Order, and Notice of Proposed Rulemaking, CG Docket Nos. 06-181 and 11-175, 26 FCC Rcd 14941 at 14960, ¶¶30-37 (2011) (Anglers Reversal MO&O), which can be found at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-11-159A1.doc. 7 47 U.S.C. § 613(d)(3); 47 C.F.R. § 79.1(f)(1). 8 Anglers for Christ Ministries, Inc., New Beginning Ministries, Video Programming Accessibility, Petitions for Exemption from Closed Captioning Requirements, CGB-CC-0005 and CGB-CC-0007, Memorandum Opinion and Order, 21 FCC Rcd 10094 (Anglers Order) (CGB 2006). 9 Application for Review of the Bureau Order, CG Docket No. 06-181, CGB-CC-0005 and CGB-CC-0007, filed by Telecommunications for the Deaf and Hard of Hearing (“TDI”), the National Association of the Deaf (“NAD”), Deaf and Hard of Hearing Consumer Advocacy Network (“DHHCAN”), Hearing Loss Association of America (“HLAA”), the Association of Late Deafened Adults, the American Association of People with Disabilities, and the California Coalition of Agencies Serving the Deaf and Hard of Hearing (collectively “Consumer Organizations”), filed Oct. 12, 2006 (Application for Review). 10 Anglers Reversal MO&O, supra n. 8. 11 For a full listing of the petitions subject to the Anglers Reversal MO&O, see Anglers Reversal MO&O, Appendix A, 21 FCC Rcd at 14966-14988. 12 The programming that is the subject of these petitions has remained exempt from the FCC’s closed captioning rules while these petitions have been pending. 47 C.F.R. § 79.1(f)(11). Note that any petition filed after passage of the CVAA (i.e., after October 8, 2010) is not subject to this Public Notice and will be addressed individually. Under the CVAA, all petitions received by the Commission after passage of the CVAA must be resolved within six months after the Commission receives the petition, unless the Commission finds that an extension of this time is necessary to determine whether such requirements are economically burdensome. Pub. L. No. 111-260 § 202(c), amending 47 U.S.C. §713(d)(3). 13 See, e.g., Consumer & Governmental Affairs Bureau Action, Requests for Exemption from Commission’s Closed Captioning Rules, Public Notice, CG Docket No. 06-181, DA 07-276 (2007) (placing numerous petitions on public notice). 2 DA 12-514 deny was ever made regarding these petitions. The Bureau is now ready to apply the standards contained in the Anglers Reversal MO&O to resolve the claims for an exemption by these petitioners. However, we realize that considerable time has passed since many of these petitions were first filed, and that various circumstances including, but not limited to, the financial status of the petitioners and the cost of captioning, may have changed. Accordingly, in order to ensure that information provided in each petition is current and accurate, we require each petitioner whose petition is listed in this Public Notice, to do one of the following by July 5, 2012: (1) file an affirmation with the FCC that its previously submitted petition and supporting information is accurate and up-to-date; (2) file updated information in accordance with the factors listed below to support its claim that captioning its program(s) would be economically burdensome; or (3) withdraw its previously submitted petition. Any petitioner listed in this Public Notice that does not take one of the steps listed above by July 5, 2012 will have its pending petition dismissed without prejudice on July 5, 2012. A petitioner that wishes to request a closed captioning exemption in the future may file a new petition in accordance with the factors listed below to support its claim that captioning its program would be economically burdensome. In order to ensure that all petitioners subject to this Public Notice are aware of this Public Notice, we will send a copy of this Public Notice,14 along with instructions on filing updated information, by certified mail, return receipt requested to each petitioner at its last known address within 10 business days of release of this Public Notice. Updating Previously Submitted Petitions A petitioner that is interested in continuing to request a closed captioning exemption for its programming must include up-to-date evidence, supported by affidavit (i.e., a written sworn statement made under oath), demonstrating that it would be economically burdensome to provide closed captioning on the specific programming for which an exemption is sought. Specifically, each petition should contain current and detailed documentation, in accordance with the original factors outlined in section 713(e) of the Act and 79.1(f) of Commission’s rules, to support a claim that providing closed captions would be economically burdensome (would result in a “significant difficulty or expense”) as defined by the following criteria: (1) the nature and cost of the closed captions for the programming; (2) the impact on the operation of the provider or program owner; (3) the financial resources of the provider or program owner; and (4) the type of operations of the provider or program owner.
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