The FCC has adopted a notice of proposed rule making looking to toughen the closed-captioning rules as statutory requirements for more universal closed captioning loom.
Nearly 10 years ago, Congress amended the Communications Act to require that all video programming be closed captioned. Closed captioning had up to then been undertaken on a voluntary basis, without the need for prodding by the legislature. However, Congress was concerned that the explosion of new channels of video programming might result in new programming sources, which might not feel that voluntary spirit. Congress believed it important to require that new programming sources be accessible to persons with hearing disabilities.
One of the last benchmarks is January 1, 2006, the deadline by which all new English-language programming must be captioned. In light of this impending deadline, and in response to a petition for rule making filed by several public interest organizations that focus on accessibility issues, the commission released the notice in late July that includes several new proposals.
The commission is seeking comment on whether it should adopt technical and non-technical quality standards. Specifically, it questions whether complaints by parties relating to such issues as accuracy of transcriptions, typos and other errors associated with closed captioning justify the establishment of minimum standards in those areas.
In addition, while broadcasters and cable systems are already required to pass through closed captioning already embedded in the programs they transmit, the FCC is asking whether it should adopt any supplemental rules to ensure that viewers who rely on closed-captioning services do not suffer from technical glitches and other service disruptions. One partial remedy suggested is to require TV stations and cable systems to actively monitor and maintain the closed-captioning service.
The FCC is considering shortening the time provided for television stations and cable systems to respond to complaints regarding non-emergency closed captioning. While the commission itself directly responds to complaints relating to problems associated with the closed captioning of emergency programming, it requires complaints regarding non-emergency broadcasts to be directed in the first instance to the television station or cable system. And, under the current rules, the station/system has more than 45 days in which to contact the program supplier and formulate a response. According to the commission, because all new English-language programming will have to be captioned as of January 1, 2006, it might no longer be necessary or appropriate to permit such a lengthy response time.
The commission also is considering adoption of a standardized form for closed-captioning complaints as well as specific forfeiture penalties for violations of the captioning rules.
A proposal likely to attract opposition is a planned rule that would impose a certification requirement on broadcasters concerning the amount of closed-captioned programming each television station is providing. This raises the problem of coming up with a method that could be used to verify that such certifications are accurate. Another issue is whether a station would be permitted to rely on the certifications of the companies that provide their programming.
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Under the current rules, stations located in the top 25 markets cannot count towards the closed-captioning requirements. The rules require, instead, live closed captioning of news and other live programming. The commission is seeking comment as to whether this standard should be extended to include all television markets so that live programming on all television stations would have to be closed captioned on a real-time basis.
Harry C. Martin is the immediate-past president of the Federal Communications Bar Association and a member of Fletcher, Heald and Hildreth PLC, Arlington, VA.
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