FCC Fields Your Toughest Questions about Closed Captioning Rules

March 23, 2016 BY EMILY GRIFFIN
Updated: June 3, 2019

Recently the FCC clarified its rules regarding the responsibility of video programmers and distributors to ensure quality closed captioning.

We brought in the Deputy Chief of the Disability Rights Office at the FCC, Eliot Greenwald, to present an overview of the FCC closed captioning rules for broadcasters in light of the new order.

After the presentation, webinar attendees posed their captioning questions to Eliot. Here’s an edited excerpt of that Q&A session:

What’s the difference between video program distributors (VPDs) and video programmers?

ELIOT GREENWALD: Video distributors would be TV broadcast stations, cable networks, satellite networks, FiOS, U-verse, etc.

Broadcast programmers would be the people who produce the programming. So for example, TV broadcast networks like ABC, CBS, NBC, and Fox are programmers. Now, those programmers have some group-owned stations, and they also have a lot of affiliates. But the programming that they produce makes them programmers.

Similarly, a lot of the non-broadcast networks (cable and satellite channels) are also programmers.

There are also independent programmers, such as religious programs that are put on broadcast stations. They would be programmers, too.

If a video programmer observes captions on their own programs being garbled by a VPD, what’s the best process to correct this?

ELIOT GREENWALD: They should check to make sure that they transmitted the content to the VPD with the captions intact and in good working order.

Assuming that that check pans out and the problem is with the distributor, they should immediately contact the distributor and have them fix it right away.

That’s the best process, because with distributors, you have technical people at the broadcast stations or cable networks who should be able to troubleshoot and fix it right away.

Do the requirements for accuracy, synchronicity, completeness, and placement apply to live programming? Or is live programming merely considered to be best effort? How accurate does live programming have to be?

ELIOT GREENWALD: Basically, the rules do apply to live programming. But they’re interpreted a little differently.

There is an understanding that live programming can’t be perfect, because it’s being done on the spot by a human. And so there will be errors, and we recognize that.

There is an understanding that live programming can’t be perfect, because it’s being done on the spot by a human. And so there will be errors, and we recognize that. We take that into account.

The basic guidance on that is rule 79.1(j). Essentially, captions need to reflect the spoken words and somebody has to be able to follow the program. It has to be understandable.

So there’s a little bit of leeway provided, given the nature of live programming.

Can live captioning be done by automatic speech recognition?

ELIOT GREENWALD: The problem is that speech recognition as we know it today would not meet FCC closed captioning accuracy requirements. There are just too many errors in it.

There’s no prohibition of speech recognition, because I think everybody is hoping that speech recognition will improve to the point that it can be used for live captioning someday.

Hopefully people are developing it and will produce ASR that can meet our accuracy standards. We have seen demos from companies that are working on it. So there is promise, but right now, the technology isn’t there yet.

What are the repercussions if captions aren’t compliant with the FCC’s quality requirements?

ELIOT GREENWALD: If we receive a consumer complaint, we serve that complaint on the distributor.
Whether it’s the distributor or the programmer who’s at fault, we expect in the response for the distributor and, if applicable, the programmer to investigate it, figure out what the cause of the problem was, and then take steps to fix that so it won’t happen again.

If we start to receive a pattern of complaints regarding a particular distributor or programmer, we will expect them to provide a more formal answer as to what they are doing to fix the problem.

Each incident is a separate violation, so forfeitures can get expensive.

If it’s not then fixed, we would take the next step, which is a six-month compliance program to bring them into compliance.

And if that still doesn’t work, then we would refer them to the enforcement bureau, in which case there could be fines and forfeitures. Those could add up, particularly if it’s an ongoing problem. Each incident is a separate violation, so forfeitures can get expensive. But the first effort is to try and bring the programmer or distributor into compliance.

How can we test the closed captioning quality?

ELIOT GREENWALD: For a prerecorded program, we really expect the captions to be perfect with maybe only a few errors. With live programming, of course, there will be errors.
You should follow best practices to ensure high quality captions. Perform quality control reviews of your captioning agencies and individual captioners.

Video programmers certify the distributors that they’re complying with the quality. The distributors can rely on those certifications as a quality guarantee.

And then, of course, the distributors have to check their equipment, make sure all the equipment is working right and check that and perform routine maintenance.

When do the new closed captioning responsibility rules take effect?

ELIOT GREENWALD: The responsibilities themselves, as opposed to the other parts of the order, will take effect 30 days after Federal Register publication of a summary. And we expect that summary to be published around the end of February, 2016, which would mean that the effective date would be somewhere around the end of April, 2016.
The effective date for the changes in complaint procedures will be after we receive a Paperwork Reduction Act approval. Then the FCC will publish a notice of the effective date.

The other effective date would be for the certification and registration requirements.

Not only do we need Paperwork Reduction Act approval, but we also need to complete the development of the web form, so there’ll be a separate notice announcing the effective date of those requirements.

Do FCC closed captioning regulations apply to YouTubers?

ELIOT GREENWALD: They would not apply to YouTube videos, because that really falls under consumer postings and user-generated content.
However, according to the CVAA, when a program that has been shown on TV with captions, then when that same program is shown on the internet, it must be shown with captions. And the captions must be of at least the same quality as the captions were when they were shown on TV.

Do these closed captioning rules apply to video content on DVDs?

ELIOT GREENWALD: DVD players, as well as Blu-ray players, actually have a temporary exemption from the equipment requirements right now due to some technical problems that arose after the rules were adopted. The FCC is still going through the rulemaking process to figure out how to address those technical problems.
Now, the DVD itself is not regulated by the FCC. But the transmission of what’s on the DVD is regulated, if you understand that distinction.

We are running into issues delivering captions to all of the OTT and mobile devices in the market. Some devices don’t support captions at all, others have partial support, and others fail when going full-screen with the captions. Does the FCC requirement for these digital devices extend to all devices, all browsers, and all OTT platforms– e.g., Apple TV, Xbox, Roku, et cetera?

ELIOT GREENWALD: Right, the rules do extend to that. They apply to devices that were manufactured after 2014.
So of course, there are a lot of devices that are still around that precede that.

Plug-ins, apps, and other software need to be compliant as well and compatible with new devices.

Does content distributed over the internet via VOD and OTT all fall under the same FCC regulations for closed captioning?

ELIOT GREENWALD: There are really two different sets of rules for television: one set for cable and satellite broadcasting, the other for internet delivery.
IP transmission rules cover programs that have been shown on TV with captions after the effective date when they are then shown on the internet through IP. And that’s whether they’re streamed live or prerecorded. They must contain captions, and those captions must be of at least the same quality as the TV captions.

How do these policies apply to content like corporate training videos or other videos that are for internal use?

ELIOT GREENWALD: These rules do not apply to internal enterprise-type videos or the transmission of them.
However, if a program that was shown on TV with captions is distributed through a private network over IP, then it would be covered.

But if it’s, let’s say, a training program developed by a corporation, that would not have been shown on TV with captions, so it would not be covered.

How do these new closed captioning rules apply to public access television programs?

ELIOT GREENWALD: The general rules applies to public access.
However, the caveat is that a lot of public access programming is exempt.

There’s an exemption for channels that have less than $3 million in annual revenues, which is the case for a lot of public access channels.

There are other exemptions that might apply to pay channels as well, so you don’t see a lot of captioning in pay channels for that reason.

Some of the larger city pay channels might have big budgets that are over $3 million, and therefore that would count as revenues over $3 million and would be required to caption.

What are the latest rules on captioning requirements for video clips posted online?

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ELIOT GREENWALD: The FCC recently adopted rules on captioning video clips. And for video clips, the rules only apply at this time to video clips posted by the programmers themselves.
So for example, if a network produces a program and then puts clips on its website, the clip captioning rules apply.

The video clip captioning rules for prerecorded programming just became effective on January 1, 2016. And so any clip that’s been posted since January 1 of a prerecorded programming that was shown on TV with captions must include captions.

The rules will later become effective for other types of programming. And this only applies right now to straight-lift clips.

For montages, which are really combinations of clips, that becomes effective January 1, 2017.

And then for clips of live programming, that becomes effective July 1, 2017.

And again, in all instances, it’s only on the website of the programmer. So third-party websites are not covered by the clips rules at this time, although the FCC is looking into that and has an open proceeding on that.

Is content that is created directly for an OTT provider and never appears on television covered by this rule?

ELIOT GREENWALD: If the program has never appeared on TV with captions, then it would not be covered by FCC captioning rules.

What is the programmer’s responsibility when providing programs for viewing on devices that cannot read captions, like mobile phones?

ELIOT GREENWALD: Well, mobile devices that have been produced since 2015 are required to be capable of reading captions, unless it’s not technically possible.
And obviously, for mobile devices with real tiny screens, they might say that it just can’t be done with those devices.

But particularly as smartphones are getting larger and larger screens, they are certainly large enough to have captions that are legible.

How would the FCC rules apply to Netflix originals?

ELIOT GREENWALD: Netflix originals are not covered by the rules, because they’re not shown on TV with captions.
However, the National Association of the Deaf had filed a lawsuit against Netflix a number of years ago regarding captioning on Netflix.

And Netflix and NAD did come to a settlement, where Netflix agreed to caption all of its programming. Netflix has reported to us that, therefore, just about everything it offers is captioned these days. And that’s true of several other competitors of Netflix as well.

What is your position on the pending rulemaking that would extend your work into on-board entertainment systems?

ELIOT GREENWALD: On-board entertainment systems is an interesting question, which we’re currently looking at. I assume the question is about airplanes.

Some of these entertainment systems are now taking feeds from satellites, like from DirecTV or Dish. And if they’re taking feeds, then that’s part of the distribution process of the satellite system.

If they’re using satellite versus distribution via IP technology, then that would actually be covered by our rules if the programming were shown on TV with captions.

Beyond that, the FAA is looking more generally into the issue. It’s started a negotiated rulemaking proceeding looking into requiring captioning on all on-board entertainment systems, which I think would be a great idea.

If the FAA moves through with that, that will make the programming on airplanes a lot more accessible to a lot more people.


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