Last month, the FCC adopted rules that will require closed captioning for video programming shown on television with closed captions and distributed using IP (Internet protocol) technology.  The FCC adopted these rules in response to Congress’s directive in the 21^st Century Video Accessibility Act.  

Under the new rules, video programming owners (“VPOs”) must send program files to video programming distributors (“VPDs”) with captions for programming previously displayed with captions on TV.  VPDs, in turn, must render or pass-through captions to end users, “including through the hardware or software that a distributor…makes available for this purpose.” 

Below, we briefly summarize the key IP closed captioning requirements. 

VPDs.  Under the new rules, VPDs make available to end users video programming using IP distribution.  That is, distribution over the Internet or “online.”  In general, an MVPD distributing video programming online that is not part of its traditional MVPD service will be subject to the rules.  This will apply to over-the-top video programming services offered outside the MVPD’s service footprint. 

Excluded Entities.  MPVDs (i) using IP to distribute video programming under the television closed captioning rules; or (ii) who are also Internet service providers and provide access to video programming distributed by another entity (ex:  Amazon, Hulu, Netflix), are not subject to captioning requirements as VPDs.  

VPDs Must Render or Pass Through Captions.  VPDs are responsible only for enabling the rendering or pass-through of captions included in IP distributed programming.  This includes an obligation to ensure that plug-ins, applications, and devices are capable of rendering or passing through the closed captioning. 

Good Faith Compliance.  The FCC will deem VPDs in compliance if the VPD makes a good faith effort to identify whether video programming received must be captioned, and will not treat de minimis failures to comply as violations of the rules.  

Complaint Procedures.  The FCC adopted a complaint process similar to that for television closed captioning complaints.  Under the new rules: 

• Consumers must file a complaint within 60 days of experiencing a problem (with the FCC or VPD). 
• If the consumer files the complaint directly with the VPD, the VPD will have 30 days to respond showing compliance, good faith reliance, or resolution of the problem. 
• If a VPD fails to respond or resolve the problem, the complainant can re-file the complaint with the FCC.  The VPD again will have 30 days to respond.   

Contact Information.  VPDs must make contact information available to consumers for receipt and handling of complaints.  The FCC declined to specify how VPDs must provide this contact information, but expects that VPDs will “prominently display their contact information in a way that it is accessible to all end users of their services.”  A general notice on the VPDs website would be sufficient.  

This contact information must be updated within 10 business days of any change, and include (i) the name of a person with primary responsibility for Internet protocol captioning issues and who can ensure compliance; and (ii) the person’s title or office, telephone number, fax number, mailing address, and e-mail address. 

General Compliance Deadlines.  Six months after publication of the rules in the “Federal Register” for programming that is not edited for Internet distribution; 12 months for live and near-live programming; and 18 months for prerecorded programming that is edited for Internet distribution. 

Compliance Deadlines for Archival Content.  Starting two years after publication of the rules, archival content already in the distributor’s library before it is aired on television with captions must be captioned within 45 days.  After three years, such content must be captioned within 30 days, and after four years, such content must be captioned within 15 days. 

Compliance Deadlines for Devices.  The Order sets Jan. 1, 2014, as the deadline for captioning pass-through for devices used for viewing IP-based programming, such as smartphones, tablets, personal computers, and TV set-top boxes, as well as for integrated viewing software on such devices and for recording devices and removable media players. 

For more information about IP closed captioning, please contact Scott Friedman at (312) 372-3930 or via email at sfriedman@cm-chi.com.