roundtable: FCC NOI - 2 of 2
roundtable: FCC NOI - 2 of 2
FCC NOI - 2 of 2
Larry Goldberg (larry_goldberg@wgbh.org)
19 Dec 1995 16:23:35 -0500
Message-Id: <n1392733092.7824@wgbh.org>
Date: 19 Dec 1995 16:23:35 -0500
From: "Larry Goldberg" <larry_goldberg@wgbh.org>
Subject: FCC NOI - 2 of 2
To: "TPR" <roundtable@cni.org>
Here is part two of the FCC's Notice of Inquiry on captioning
and description.
- Larry
Larry Goldberg
<larry_goldberg@wgbh.org>
--------------------------------------
VII. INQUIRY REGARDING MANDATORY
CAPTIONING AND VIDEO DESCRIPTION REQUIREMENTS
25. Introduction. With this Notice of Inquiry we seek to obtain
information on a variety of issues concerning closed captioning and video
description, including the availability of these services resulting
either from market incentives or voluntary efforts by video programming
providers and producers. As noted, in the context of closed captioning
the Commission has stated that some form of mandatory requirement could
prove necessary.56 There also is legislation pending in Congress that
generally would require closed captioning of video programming and which
would require the Commission to examine the means of promoting video
description.57
26. Before these mandatory requirements become law, the legislation
must pass both houses of Congress and be signed by the President.
Alternatively, the Commission could assess the possibility of adopting
regulatory requirements in this area under its existing statutory authority.58
We are not presently proposing such action, but we do take this opportunity
to request comment on the general form any mandatory closed captioning or
video description requirements should take if they are deemed necessary. We
particularly seek comment on the following matters.
27. The application of mandatory requirements. One issue we seek
comment on is which entities should be subject to any mandatory
requirements. Broadcast television stations and other delivery systems
produce some of their own programming, such as news programs, but they
often obtain programming from program producers or independent
distributors of such programming.59 The legislation pending in Congress
refers to "video programming providers or owners,"60 and a House report
states that it "is clearly more efficient and economical to caption
programming at the time of production and to distribute it with captions than
to have each delivery system or local broadcaster caption the program."61
Should mandatory requirements regarding closed captioning or video
description be imposed on entities that produce or distribute programming
that is aired on television? Or should they be confined to the "providers" of
this programming, i.e., broadcasters, cable systems, wireless cable, SMATV
operators, direct-to-home satellite services, and local exchange carrier/video
dialtone systems? Should both providers and owners/producers be subject to
any mandatory requirements that might be adopted, with parties being
allowed to allocate responsibilities in this area by private contract? We
seek
comment on current industry practices for providing closed captioning and
video description. Which entity -- producer, distributor, or provider --
normally provides these services?
28. Exemptions. Both the Senate and House legislative proposals
would provide exemptions from closed captioning requirements. The House
bill provides that "the Commission may exempt by regulation programs,
classes of programs, or services for which the Commission has determined
that the provision of closed captioning would be economically burdensome to
the provider or owner of such programming."62 It also provides that a video
programming provider or owner may petition the Commission for an
exemption if the closed captioning requirements would result in an "undue
burden," which is defined as a "significant difficulty or expense."63 The
Senate bill incorporates a more lenient standard: closed captioning would not
be required, and the Commission could extend exemptions, where it is not
"readily achievable," which is defined to mean "easily accomplishable and
able to be carried out without much difficulty or expense."64
29. We generally seek comment on the appropriate balance that should
be struck between providing access to Americans with disabilities through
closed captioning and video description and the costs and burdens imposed by
mandatory requirements. Any requirements in this area should recognize
the financial constraints facing many programming producers and providers,
especially smaller entities. We request comment on what factors should be
examined in determining whether an exemption should be granted, either
under an "undue burden" or a "readily achievable" standard that may be
incorporated into any legislation that is enacted. Relevant factors would
include the cost of the captioning or video description as well as the
financial
resources of the programming provider or owner/producer. The House bill
provides that the following factors should be examined in determining
whether closed captioning would impose an undue economic burden: "(1)
the nature and cost of the closed captions for the programming; (2) the impact
on the operation of the provider or program owner; (3) the financial
resources of the provider or program owner; and (4) the type of operations of
the provider or program owner."65 Are there other factors that would be
relevant? Should particular types of programs (e.g., locally or regionally
produced programs), or small programming providers or owners/producers,
be categorically exempted from captioning or video description requirements?
30. In developing criteria for granting exemptions, there is a need to
explore approaches that would minimize administrative burdens and FCC
oversight. Exemptions could be granted based on a formula or set of
guidelines in order to provide greater certainty. For example, closed
captioning or video description might only be required where their cost falls
below a certain percentage of the total production cost of a program. Or
these
services could be required only for programs that reach a particular size
audience. Alternatively, exemptions could be granted on a more case-by-case
basis that involves individualized determinations in granting exemptions.
We seek comment on the type of formulas that could be used, the nature of a
case-by-case approach, and the tradeoffs between these two alternatives.
31. We also request comment on whether there are particular types of
programs for which it is either impractical or unnecessary to provide closed
captioning or video description. For example, is it necessary to require
video
description of a sporting event that already provides a play-by-play
commentary or that is covered by a radio broadcast? In addition, the pending
legislation would exempt any closed captioning requirement where
providing this service would be inconsistent with an existing contract.66 We
solicit comment on the types of contracts and the circumstances under which
this situation would arise.
32. Technical and Quality Standards. There presently are no FCC
standards governing the transmission of video descriptions per se.67 We
seek comment on whether there is any need for technical or quality standards
to ensure that video descriptions are accessible and understandable to
individuals with vision disabilities. Would laboratory or field testing be
necessary to set any such standards, and, if so, what would be the nature of
this testing? To what extent do other ancillary uses compete with video
description now and in the future for use of the Second Audio Program
channel?68 What impact will the implementation of digital technology have
on the transmission of video description?69 We solicit comment on ways to
promote any necessary universal design standards that will obviate the need
for costly retrofitting in order to carry video description over digital
signals.
33. We also request comment on the current accuracy of closed
captioning on television programming. There have been reports regarding
inaccurate closed captioning, especially for live programming where there is
no chance to review and correct for errors.70 We seek comment on the extent
of this problem and any steps that could be taken to promote accurate and
appropriately formatted captions. We are particularly interested in proposals
to address such concerns through private-industry initiatives in order to
avoid unnecessary government regulation in this area.
34. Transition. We seek comment on appropriate timetables for
implementing any closed captioning or video description requirements that
may be imposed. Should any such requirements be instituted over a period
of time? Should requirements first be imposed on larger markets or larger
video programming providers and producers? Should they first take effect
for programming, such as news, that serves an especially important public
interest? We also ask parties to comment on whether the implementation of
digital technology on broadcast television, cable, and other delivery systems
should factor into any transition that is adopted. Should such a transition
seek to minimize the burden that may result from requiring closed
captioning or video description designed for analog programming to be
carried over a digital signal?
35. Strategies to Improve Competition and Innovation. We request
comment on ways to promote competition and innovation in the provision
of closed captioning and video description. Are there non-regulatory steps
that could be taken to foster the growth of these services? Are expenditures
for these services tax deductible, and, if not, would such favorable tax
treatment lead to significant increases in their availability?
36. Legal Authority. The pending Senate and House bills, if enacted,
would provide express statutory authority for imposing mandatory closed
captioning requirements. The House bill would also permit the Commission
to adopt regulations to promote the accessibility of video programming to
persons with visual disabilities after conducting an inquiry into video
description. However, we seek comment on the scope of the Commission's
authority under current law to adopt regulations imposing either closed
captioning or video description requirements on broadcast television
licensees, cable operators, wireless cable systems, SMATV operators,
direct-to-
home satellite services, and local exchange carrier/video dialtone systems, as
well as on producers/owners and other distributors of such programming.
Commenters should address with specificity the basis for their views
concerning the Commission's authority, and also address any other legal
constraints that they believe may apply in this area.
VIII. CONCLUSION
37. Closed captioning and video description of video programming can
offer important benefits to millions of Americans with hearing and visual
disabilities as well as other Americans. We issue this Notice of Inquiry to
seek comment on these benefits, the costs and availability of these services,
and the best means of promoting their greater use.
IX. ADMINISTRATIVE MATTERS
38. Authority. This Notice of Inquiry is issued pursuant to authority
contained in Section 4(i), 4(j), and 403 of the Communications Act of 1934, as
amended.
39. Comment Information. Pursuant to applicable procedures set forth
in Sections 1.415 and 1.419 of the Commission's Rules, 47 C.F.R. #164##164#
1.415,
1.419, interested parties may file comments on or before January 29, 1996, and
reply comments on or before February 14, 1996. All relevant and timely
comments will be considered by the Commission before final action is taken
in this proceeding. To file formally in this proceeding, parties must file an
original and four copies of all comments, reply comments and supporting
comments. If parties want each Commissioner to receive a personal copy of
their comments, an original plus nine copies must be filed. Comments and
reply comments should be sent to the Office of the Secretary, Federal
Communications Commission, 1919 M Street, N.W., Washington, D.C.
20554. Comments and reply comments will be available for public inspection
during regular business hours in the FCC Reference Center (Room 239) of the
Federal Communications Commission, 1919 M Street, N.W., Washington,
D.C. 20554.
40. Ex Parte Rules. There are no ex parte or disclosure requirements
applicable to this proceeding pursuant to 47 C.F.R. #164# 1.1204(a)(4).
41. Additional Information. For additional information on this
proceeding, contact Charles W. Logan (202/776-1653) of the Policy & Rules
Division, Mass Media Bureau.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Acting Secretary
0 See U.S. Dep't of Commerce, Economics and Statistics Admin., Bureau of
the Census, Statistical Abstract of the United States 140 (114th ed. 1994)
1 Telecommunications Reform, Hearings on S. 1822 Before the Senate
Committee on Commerce, Science and Transportation, 103rd Cong., 2d Sess.
(May 24, 1994) (statement of Margaret R. Pfanstiehl, President of The
Metropolitan Washington Ear) (available on Westlaw: 1994 WL 235685)
("Pfanstiehl Statement").
2 Id.
3 See infra at #166##166# 4-5.
4 See Implementation of Television Decoder Circuitry Act, 6 FCC Rcd 2419,
2420 (1991) ("TDCA R&O"), recon. granted in part, 7 FCC Rcd 2279 (1992).
Further background information concerning closed captioning can be found
in DuBow, "The Television Decoder Circuitry Act -- TV For All," 64 Temp. L.
Rev. 609 (1991), and on the World Wide Web home page of the Caption
Center of the WGBH Educational Foundation ("WGBH"):
http://www.wgbh.org/Pages/CaptionCenter/ CaptionCenterHome.html.
Copies of materials from the World Wide Web that are cited in this Notice of
Inquiry will be placed in the record of this proceeding.
5 See 47 C.F.R. #164# 73.682(a)(22). In particular, closed-captioning
information
may be transmitted on fields one and two of line 21 of the vertical blanking
interval. Standard television pictures are transmitted at a rate of 30 frames
per second, with two interlaced fields comprising each frame. Each field
begins with a vertical blanking interval of twenty-one lines, during which the
picture scanning beam is turned off (blanked) and is moved from the bottom
of the screen to its starting position at the top of the screen. Thus, there
are
two vertical blanking intervals transmitted per frame, one in each field. The
placement of data within the vertical blanking interval is described in terms
of the particular blanking line used and the field (one or two) in which it
occurs. See Permissible Uses of the Vertical Blanking Interval, 8 FCC Rcd 90
n.1 (1992).
6 See Captioning for the Deaf, 63 FCC 2d 378 (1976). See also Permissible
Uses
of the Vertical Blanking Interval, 8 FCC Rcd 3613 (permitting enhanced
closed-captioning and other broadcast-related information services on line 21,
field 2 of the vertical blanking interval).
7 Pub. L. No. 101-431, 104 Stat. 960 (1990) (codified at 47 U.S.C. #164##164#
303(u),
330(b)).
8 47 C.F.R. #164# 15.119; Implementation of the Television Decoder Circuitry
Act,
6 FCC Rcd 2419.
9 Id.
10 47 C.F.R. #164# 76.606; Cable Television Technical and Operational
Requirements, 7 FCC Rcd 2021, 2031 (1992), recon. granted in part, 7 FCC Rcd
8676 (1992). See also 47 U.S.C. #164##164# 534(b)(3), 535(g)(1) (cable
operators' must
carry obligations include carriage of "line 21 closed caption transmission").
11 47 C.F.R. #164# 73.1250(h); Emergency Messages -- Television, 61 FCC 2d 18
(1976), recon. granted in part, 62 FCC 2d 565 (1977).
12 47 U.S.C. #164# 611. The ADA is a comprehensive civil rights statute that
prohibits discrimination against individuals with disabilities in the areas of
employment, state and local government services, and in private places of
public accommodation such as restaurants, law offices, and movie theaters.
See generally Burgdorf, "The Americans with Disabilities Act: Analysis and
Implications of a Second-Generation Civil Rights Statute," 26 Harv. C.R.-C.L.
L. Rev. 413 (1991). In addition to requiring the closed captioning of
federally
funded public service announcements, Title IV of the ADA amended the
Communications Act of 1934 to require common carriers offering telephone
voice transmission services to provide telecommunications relay services for
individuals with hearing and speech disabilities. 47 U.S.C. #164# 225. The
Commission has adopted regulations implementing this requirement. See 47
C.F.R. #164##164# 64.601 - 64.608.
13 The Use of Telecasts to Inform and Alert Viewers With Impaired Hearing,
26 FCC 2d 917 (1970) (alerting television licensees of the special needs of
persons with hearing disabilities, and urging them to make use of visual as
well as oral announcements of emergencies, position newscasters so as to
permit the use of lip reading by viewers, and feature visualization of
materials in news, weather, and sports programs). See also Captioning for the
Deaf, 63 FCC 2d at 389 ("We continue to encourage broadcast licensees . . . to
make television a truly valuable medium for the hearing-impaired.");
Renewal Applications -- Los Angeles, 69 FCC 2d 451, 459 (1978) (rejecting
renewal challenges based on licensees' failure to provide closed captioning,
but "urg[ing] all television licensees to review the options presently
available
that, within reason, might provide some of the benefits of the medium of
television for this nation's hearing impaired"), recon. denied, 72 FCC 2d 273
(1979), aff'd sub nom. Community Television of Southern California v.
Gottfried, 459 U.S. 498 (1983).
14 Implementation of 1992 Cable Act Rate Regulation, 8 FCC Rcd 5631, 5902
(1993).
15 See The Use of Telecasts to Inform and Alert Viewers With Impaired
Hearing, 26 FCC 2d at 918-19 ("We will observe developments in this area in
the near future, and if the situation does not develop satisfactorily it may
be
necessary to begin rule making looking toward the adoption of minimum
requirements."); Renewal Applications - Los Angeles, 72 FCC 2d at 281 (if
closed captioning efforts prove unsuccessful, "it may be necessary for the
Commission to determine if a rulemaking is warranted to ensure that the
hearing impaired are not deprived of the benefits of television").
16 See Pfanstiehl Statement, supra note 1. WGBH has established the
Descriptive Video Service to provide video description. See WGBH World
Wide Web home page: http://www.wgbh.org/ Pages/DVS/DVSHome.html.
17 See 47 C.F.R. #164##164# 73.682(a)(23)(ii); 73.646.
18 H.R. 1555, 104th Cong., 2d Sess. #164# 204 (1995); S. 652, 104th Cong., 2d
Sess. #164#
308 (1995).
19 See infra at #166# 28.
20 See H.R. 1555, supra note 19, at #164# 204(a) (The FCC shall "ascertain
the level
at which video programming is closed captioned. Such inquiry shall examine
the extent to which existing or previously published programming is closed
captioned, the size of the video programming provider or programming
owner providing closed captioning, the size of the market served, the relative
audience shares achieved, or any other related factors.").
21 See H.R. 1555, supra note 19, at #164# 204(f) (requiring the FCC to
"assess
appropriate methods and schedules for phasing video descriptions into the
marketplace, technical and quality standards for video descriptions, a
definition of programming for which video descriptions would apply, and
other technical and legal issues that the Commission deems appropriate"); S.
652, supra note 19, at #164# 308(b) (requiring a "study of the
feasibility of
requiring the use of video descriptions on video programming in order to
ensure the accessibility of video programming to individuals with visual
impairments").
22 H.R. 1555, supra note 19, at #164# 204(f).
23 The Use of Telecasts to Inform and Alert Viewers With Impaired Hearing,
26 FCC 2d at 918. See also Captioning for the Deaf, 63 FCC 2d at 388 ("[W]e
believe it is of the utmost importance that the hearing-impaired, a
significant
portion of our population, enjoy the tremendously powerful television
medium.").
24 Roper Starch Worldwide, America's Watching: Public Attitudes Toward
Television 3 (1995) ("Roper Study"). A copy of this study will be placed in
the
record of this proceeding.
25 Id. at 6; Information Please Almanac 744 (48th ed. 1995).
26 Roper Study at 17.
27 See H.R. Rep. No. 767, 101st Cong., 2d Sess. 4 (1990) (legislative history
of
TDCA).
28 Section 2(2) of TDCA, Pub. L. 101-431, 104 Stat. 960, 47 U.S.C. #164# 303
note.
29 Section 2(a)(8) of the ADA, 42 U.S.C. #164# 12101(a)(8).
30 U.S. Dep't of Commerce, Economics and Statistics Admin., Bureau of the
Census, Statistical Abstract of the United States 140 (114th ed. 1994). But
see
H.R. Rep. No. 767, supra note 28, at 5 (referring to "20-40 million deaf and
hearing-impaired population").
31 H.R. Rep. No. 767, supra note 28, at 5; DuBow, The Television Decoder
Circuitry Act -- TV For All, 64 Temp. L. Rev. at 614.
32 Id. According to one commentator, 40 percent of the 60,000 captioning
decoders sold in 1989 were to people for whom English is a second language.
DuBow, The Television Decoder Circuitry Act -- TV For All, 64 Temp. L. Rev.
at 614.
33 Federal Spending, Hearings Before the Subcommittee on Labor, Health
and Human Services, and Education, House Committee on Appropriations,
104th Cong., 1st Sess. (Jan. 19, 1995) (statement of Oral Miller, National
Representative, American Council of the Blind) (available on Westlaw: 1995
WL 20724).
34 See H.R. Rep. No. 628, 102d Cong., 2d Sess. 93 (1992) (legislative history
of
Cable Television Consumer Protection and Competition Act of 1992); DuBow,
The Television Decoder Circuitry Act -- TV For All, 64 Temp. L. Rev. at 611.
35 Id.
36 Id.
37 See 47 U.S.C. #164##164# 534 - 535.
38 See Annual Assessment of the Status of Competition in the Market for the
Delivery of Video Programming, 10 FCC Rcd 7805 (1995).
39 See supra note 11.
40 See WGBH World Wide Web home page:
http://www.wgbh.org/Pages/DVS/ DVSBrochure.html. The video
description for these programs is provided by WGBH's Descriptive Video
Service.
41 Telecommunications Reform, Hearings on S. 1822 Before the Committee
on Commerce, Science and Transportation, 103rd Cong., 2d Sess. (May 24,
1994) (Testimony of Paul W. Schroeder, Co-Chair, Consortium for Citizens
with Disabilities, Task Force on Telecommunication/Communication
Accessibility) ("Schroeder Testimony") (available on Westlaw: 1994 WL
235759).
42 Id.
43 WGBH's Descriptive Video Service provided live description of PBS's
coverage of the 1993 Presidential Inauguration. See WGBH's World Wide
Web home page: http://www.wgbh.org/ Pages/DVS/DVSBrochure.html.
44 See Fourth Further Notice of Proposed Rule Making and Third Notice of
Inquiry in MM Docket No. 87-268, FCC 95-315, released Aug. 9, 1995.
45 Second Report and Order/Further Notice of Proposed Rule Making in
MM Docket No. 87-268, 7 FCC Rcd 3340, 3361 (1992).
46 Id.
47 Id.
48 H.R. Rep. 767, supra note 28, at 8.
49 Schroeder Testimony, supra note 42.
50 The National Captioning Institute is a private, non-profit corporation
that
was founded in 1979 with $6 million in federal start-up funds. See H.R. Rep.
No. 767, supra note 28, at 4.
51 Russ Britt, "Audience for Closed-Captioning Services Grows," Los Angeles
Daily News, April 3, 1995, at B1 (available on Westlaw: 1995 WL 5395368).
52 See H.R. Rep. No. 767, supra note 28, at 4-5.
53 Id.
54 Section 2(9) of the TDCA, Pub. L. 101-431, 104 Stat. 960, 47 U.S.C. #164#
303 note.
55 Russ Britt, "Audience for Closed-Captioning Services Grows," Los Angeles
Daily News, April 3, 1995, at B1 (available on Westlaw: 1995 WL 5395368).
56 See supra note 16.
57 See supra at #166##166# 7-8.
58 See infra at #166# 36.
59 See Review of Prime Time Access Rule, 9 FCC Rcd 6328, 6330-36 (1994)
(describing the television program production and distribution process).
60 H.R. 1555, supra note 19, at #164# 204(b); S. 652, supra note 19, at #164#
308(a).
61 H.R. Rep. No. 204, 104th Cong., 1st Sess. 114 (1995).
62 H.R. 1555, supra note 19, at #164# 204(d)(1).
63 Id. at #164# 204(d)(3) & (e).
64 S. 652, supra note 19, at #164# 308(a). The Senate bill incorporates the
definition of "readily achievable" used in the ADA. See 42 U.S.C. #164#
12181(9).
The "undue burden" standard employed in the House bill is also
borrowed from the ADA. See id. at #164# 12182(b)(2)(A)(iii);
28 C.F.R. #164# 36.104 (regulations implementing public accommodations
provisions of ADA adopted by the
U.S. Dep't of Justice). See also 28 C.F.R. part 36, App. B, at 591 (1994)
("The
'readily achievable' standard is a 'lower' standard than the 'undue burden'
standard in terms of the level of effort required.").
65 H.R. 1555, supra note 19, at #164# 204(e).
66 H.R. 1555, supra note 19, at #164# 204(d)(2); S. 652, supra note 19, at
#164# 308(a).
67 Like other ancillary services, such transmissions are prohibited from
causing observable degradation to any portion of the visual or aural broadcast
signal. See supra note 18.
68 The Second Audio Program channel appears to be used by some television
stations to simulcast a Spanish translation of a program. See, e.g., Pacific
FM,
Inc., 10 FCC Rcd 3479, 3482 (1995).
69 See also supra at #166# 17 (describing ATV proceeding and the need for ATV
to
be capable of carrying closed captioning).
70 See William Neikirk, "Closed Captioned TV Kneads Emproovmint,"
Chicago Tribune, Dec. 12, 1993, at 1 (available on Westlaw: 1993 WL 11834261).
[end of part two]
![[CNI Home Page]](/Images/home.gif)