Jeffrey Krauss
Jeffrey Krauss
President of
and Technology
Here's a great idea for a new product: a device that monitors all the cable channels and alerts the operator when the captioning is messed up. Or maybe it's a person who does the monitoring. Either way, something like that is going to be needed if the FCC's latest proposals are adopted as rules. And either way, it will be costly to implement.

The FCC has just started a new proceeding (Docket No. 05-231) to tighten compliance with existing captioning requirements. They require that all new programming have closed captions by the beginning of next year, and most older programming have captions starting in 2008. Captioning is no longer an expensive proposition; last year, Fox told the FCC that it costs between $105 and $365 to caption a single hour of programming.

The new proceeding is a response to a petition filed by Telecommunications for the Deaf Inc. (TDI), which claimed the following captioning problems: errors in spelling, grammar and punctuation; captions turned off before a program or movie ends; captions absent although the program guide indicates the program is captioned, or present, but the guide fails to indicate captions; captions that are illegible or unreadable.

The FCC is considering non-technical quality standards for characteristics such as spelling, grammar, punctuation, identification of non-verbal sounds and type font. Cable operators and broadcasters would have to count and report the number of "errors," and the FCC would adopt an error rate threshold (for example, no more than 3 percent of the words may be wrong, misspelled or absent). A program that exceeded the threshold would not be counted as captioned.

Right now, there are two sections in the FCC's captioning rules that protect cable operators and broadcasters from having to do detailed compliance monitoring of the captioning in all programming. First is the "pass-through" requirement of Section 79.1(c) of the FCC Rules, which requires that captions created by the program creators be passed through rather than stripped off by cable operators and broadcasters. Second is the certification provision of Section 79.1(g)(6), which says:

Certifications from programming suppliers, including programming producers, programming owners, networks, syndicators and other distributors, may be relied on to demonstrate compliance. Distributors will not be held responsible for situations where a program source falsely certifies that programming delivered to the distributor meets our captioning requirements if the distributor is unaware that the certification is false. Video programming providers may rely on the accuracy of certifications.

But TDI claims that many captioning problems are due to local equipment failures, and many cable operators do not know of captioning problems until a customer complains. Under FCC rules, captioning complaints don't have to be dealt with immediately; video distributors have 45 days from the end of the calendar quarter in which the complaint was submitted to respond. Under existing rules, video distributors have an obligation to pass through the captions without damaging them, but sometimes the equipment doesn't work properly, particularly at transitions between programs.

Consequently, the FCC is proposing to require that video programming distributors monitor their signal transmissions, so that they can determine when captions are missing or damaged, and fix any equipment-related problems immediately. The complaint process will be tightened, requiring shorter response times. And the FCC may require cable operators to provide special phone numbers or other contact information for reporting captioning complaints, particularly for deaf and hearing-impaired customers. And video distributors may no longer be able to rely on certifications from the program producers. Instead, a greater burden would be placed on video distributors to ensure that their programming is captioned, regardless of assurances from programmers. In addition to monitoring the quality of the captions, cable operators and broadcasters would have to file quarterly compliance reports.

The problems aren't limited to analog programming. According to TDI, a nationwide sampling of digital TV stations shows that 35 percent of local digital TV stations failed to provide any closed captioning, and of the rest, only 20 percent provided digital captions that comply with the FCC's rules.

Up to now, the FCC has had no specific fines for non-compliance with captioning requirements. TDI proposed a fine of $8,000 per violation, for every hour of new programming that is not captioned. The FCC responded by referring to Section 1.80 of the FCC Rules, which lists specific fines for specific violations (for example, $7,500 for violation of cable leased access rules and $10,000 for failure to comply with tower lighting requirements); the FCC asked for comments on what level should apply to captioning violations. So you can expect to see a new entry in the Section 1.80 listing of fines, one that lists the penalty for bad or missing captioning. Does this sound like huge new burdens are in the works? New regulations? New reports? New equipment costs? It does to me. Whatever happened to deregulation?

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