On December 15, 2014, the FCC released a 2nd Further Notice of Proposed Rulemaking in CG Docket No. 05-231, Closed Captioning of Video Programming (“2nd Notice”). The document is available at https://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db1215/FCC-14-206A1.pdf.
One of the motivating factors for the FCC’s decision to seek additional comments from the public on closed captioning compliance issues was an argument previously raised by the National Cable & Telecommunications Association (“NCTA”). The trade association stated: “The creation and delivery of good quality captions is not solely within the control of any one entity and often requires coordination and execution among many connected parties in the video delivery chain.” It believes program producers are as critical to the delivery of quality closed captioning for programs as are broadcasters and TV stations and, as such, also should be subject to more FCC regulation.
In light of this argument, The 2nd Notice seeks public comments on a number of issues. The major questions posed by the 2nd Notice include:
- Whether the FCC should require video programmers to provide the public with correct contact information for such programmer to enable consumers to resolve closed captioning complaints;
- In the event the Commission decides to extend greater closed captioning requirements to video programmers (and not just video program distributors or “VPDs”), should programmers be subject to annual certification filing requirements, rather than continue to require programmers to provide such certifications only to VPDs;
- Should VPDs continue to have an independent certification obligation in the event programmers are required to make regulatory fillings directly to the FCC;
- Should VPDs be obligated to alert programmers to the obligation to file certifications; and
- What should be the VPD’s responsibility, if any, in the event a programmer fails to fulfill its certification obligations to the FCC?
Comment dates are due at the FCC 20 days after publication of the 2nd Notice in the Federal Register, with reply comments due 10 days later. As of December 24, 2014, the 2nd Notice has not yet been published in the Federal Register.
The FCC continues to push for stricter compliance on closed captioning and other disability access requirements against criticism the Agency has lagged in enforcing the law. It also continues to cast a wide net that may well “capture” companies for direct compliance obligations that have not previously considered themselves to be “regulated entities.” Traditionally, Commission regulation has applied chiefly to the “distribution side” of video programming, rather than to the “creative side.” However, should the FCC adopt rules as recommended by the NCTA, many program producers and owners will find themselves with direct FCC regulatory obligations and experience increased “visibility” to consumer and disability groups. Small and independent programming producers could face increased costs, depending on the decisions made by the Commission. In sum, this is not an inconsequential rulemaking docket.
In the event you have questions about the FCC’s request for public comment or about closed captioning matters generally, please contact Robert H Jackson at 703-714-1316 or firstname.lastname@example.org
 A” Video programmer” is defined as “[a]ny entity that provides video programming that is intended for distribution to residential households including, but not limited to, broadcast and nonbroadcast television networks and the owners of such programming.” 47 C.F.R. §79.1(a)(9).
 Covered parties must certify they comply with the FCC’s closed captioning rules.