Any Forthcoming IP Video Caption Rules Seen Backed by All FCC Democrats; GOP Opposition Possible

Only Public Citizen and seven groups representing those with hearing impairments have backed such a requirement. The hearing impaired groups, led by Telecommunications for the Deaf and Hard of Hearing Inc. (TDI), had petitioned for reconsideration of a January 2012 order that required full-length programming, but not clips, be captioned when put online. Wheeler had seemed keen to pursue such an expanded requirement after Feb. 20, the day the agency approved at its last public meeting of all members’ linear-programming captioning quality rules, officials have said. Rosenworcel said at that meeting she'd back such rules. “I think we heard today -- two votes on clips,” Wheeler said after Rosenworcel’s endorsement. Clyburn likely would join Rosenworcel in such support, said FCC and industry officials in interviews.

A party-line split on any rules is possible, said agency and industry officials. They said commissioners Mike O'Rielly and Ajit Pai may have concerns about imposing additional rules in this area. Because the Media Bureau hasn’t finished work on any IP captioning requirement, and O'Rielly and Pai haven’t much considered the issue yet, the two have made no decision on how to proceed, said agency and industry officials. The bureau’s work, though ongoing, could possibly be completed soon with an order circulating for a vote in coming months, said an industry official who would oppose such rules. A bureau spokeswoman declined to comment for this story.

There are reasons to be optimistic such rules would be unanimously adopted, said TDI’s lawyer, Director Blake Reid of the University of Colorado’s Samuelson-Glushko Technology Law & Policy Clinic. Yet Association of Public Television Stations General Counsel Lonna Thompson told us that she has hope the agency won’t require such online clips be captioned. APTS and PBS, filing jointly now (http://bit.ly/1dwHBCF) after not commenting initially, said that if the FCC requires such captioning, it should exclude excerpts from programs already captioned online. TDI and allies want clips captioned online starting within a year.

TDI is “very optimistic that there will be consensus” among all FCC members on the issue, Reid told us by email. “The Commission’s process has been geared toward building an effective record and making a decision promptly so that it doesn’t go stale. Our data-gathering strongly suggests that voluntary efforts to caption clips haven’t come to fruition, and we think the obvious decision is for the Commission to act.” Comments on TDI’s recon petition show the agency’s “hope that voluntary clip captioning efforts would fulfill the” promise of the 21st Century Communications and Video Accessibility Act (CVAA) “has not come to fruition,” said TDI and allies (http://bit.ly/P5NXk2). “Requiring video programmers to caption video clips is both necessary and achievable."

Thompson is optimistic the FCC won’t require clips be captioned because she thinks the agency will “carefully review the record” and “carefully consider and question, ‘Is this the right time for the requirements?’,” she told us. “The technology is still very early and new, and the cost therefore is very expensive” for such captioning, she said. “It will fall, as more programming is captioned online. But to immediately require clips will probably be cost-prohibitive for a lot of the educational materials that are out there now.” It’s “a tough issue,” and “accessibility is incredibly important for public television to provide to the public,” said Thompson. “But this is an issue we do have a problem with, because we think the law is clear” that CVAA doesn’t require such captions.

Commenters disagreed on whether CVAA requires clips be captioned. The 2010 law doesn’t require the FCC to take such action, though it also doesn’t bar it, Thompson told us. “When we look at the legislative language and the legislative history around it and the common definition around video programming, it seems clear this was not the intent of the law” to require the FCC make clips captioned, she said. Section 202(b) of CVAA talks about video programming, defined by Webster’s Dictionary to mean program-length shows, said APTS and PBS. “At a minimum, the statutory text is ambiguous with respect to the scope of the term ‘programming,’ thus making it appropriate to consult the legislative history of the CVAA."

No commenter to the FCC “remotely refutes the undeniable reality” that Congress wanted clips captioned and gave the agency authority to do so, said TDI and allies: The Association of Late-Deafened Adults, Cerebral Palsy and Deaf Organization, Deaf and Hard of Hearing Consumer Advocacy Network, Hearing Loss Association of America, National Association of the Deaf and Gallaudet University’s Technology Access Program. “Unfortunately, some commenters continue to urge the Commission to undermine the clear application of the CVAA’s requirements to video clips by engaging in procedural chicanery or substituting misinterpretations of the CVAA’s legislative history for its plain text.”

The broadcast and cable industries are putting more captioned content online, said NAB and NCTA in separate replies. “If Congress wanted the Commission to require the captioning of clips it could -- and would -- have said so in the statute,” said NAB (http://bit.ly/1l830nl). “Congress did not do so.” The amount of what’s captioned online “is increasing dramatically,” said NCTA (http://bit.ly/NYOYsX). “While the industry continues to explore new ways to improve and streamline the process, captioning clips remains a time-consuming and costly endeavor. Determining which clips are best suited for captioning is precisely the sort of decision best left to individual program providers.” -- Jonathan Make (jmake@warren-news.com)