By Maria T. Browne, Ronald G. London, and Bradley W. Guyton
The Federal Communications Commission (FCC) released its Second Order on Reconsideration and Second Further Notice of Proposed Rulemaking (“Order” or “FNPRM”) requiring closed captioning of certain video clips delivered via Internet Protocol (IP). The new requirements apply to video clips of any duration that a programming provider or distributor posts to its website or app if the clips come from content previously published or distributed by that provider or distributor on television in the United States with captions. Significantly, the FCC did not extend the captioning obligation to clips posted on third-party websites or apps, which is a subject of the FNPRM, nor did it apply the IP clip-captioning requirement to archived programming. In addition, the obligations on providers and distributors, which extend the captioning rules for full-length IP-delivered programming to clips will be phased in over the next three years.
Specifically, the effective dates for the new requirements under the rule are staggered. Approximately a year from now (starting January 1, 2016), “straight lift” IP video clips must be captioned. Two years from now (starting January 1, 2017), the new rule will apply to all newly posted IP video clip “montages,” or compilations of “straight lift” clips containing content previously shown on television with captions. Finally, about three years from now (starting July 1, 2017), clips of a time-sensitive nature – including live or near-live programming – must start being captioned, but such clips will be afforded an eight- or 12-hour grace period, measured from conclusion of the initial television transmission, for near-live and live programming, respectively. The Order also includes an acknowledgement that these compliance deadlines might be extended if captioning technology does not develop as expected, and notes that video programming distributors (VPDs) may petition for an economic burden exemption.
Importantly, the new rule does not apply to IP video clips currently in VPDs’ online libraries prior to the various compliance deadlines. In addition, the new rule does not apply to video clips posted online with an audio track that is substantially different from the audio track that accompanied the same video when aired on television.
Because the FCC’s rules for full-length IP-delivered video programming will generally apply to clips, the quality of IP clips must be at least as good as the quality of captioning presented with the same content on television, and VPDs must maintain the quality of captioning provided by the video programming owner. As with full-length IP video, de minimis compliance failures will not be treated as violations.
The FCC has acknowledged that certain aspects of captioning programming in the IP context present technological challenges and noted that it will take that into consideration when dealing with complaints.
In addition to the new rule, the FNPRM addresses four issues related to captioning IP video clips:
- How the new rule should be applied to third-party video distributors (non-VPDs to whom the new requirements do not apply, such as news websites or Hulu);
- Whether the 12- and eight-hour grace periods for clips of live and near-live programming, respectively, should be decreased or eliminated over time as technological capabilities for producing captions advance;
- How the requirements should be applied to “mash-ups,” or combinations of one or more captioned IP video clips with other non-captioned clips; and
- How the new rule should apply to “advance” video clips, which are clips that are posted online before the full-length programming from which they were excerpted has been shown on television.
The comment and reply-comment period on these issues raised by the FNPRM recently closed, and the FCC is expected to act on these issues in the future.