§  79.4   Closed captioning of video programming delivered using Internet
protocol.

   (a) Definitions. For purposes of this section the following definitions
   shall apply:

   (1) Video programming. Programming provided by, or generally considered
   comparable to programming provided by, a television broadcast station,
   but not including consumer-generated media.

   (2) Full-length video programming. Video programming that appears on
   television and is distributed to end users, substantially in its
   entirety, via Internet protocol, excluding video clips or outtakes.

   (3) Video programming distributor or video programming provider. Any
   person or entity that makes available directly to the end user video
   programming through a distribution method that uses Internet protocol.

   (4) Video programming owner. Any person or entity that either:

   (i) Licenses the video programming to a video programming distributor
   or provider that makes the video programming available directly to the
   end user through a distribution method that uses Internet protocol; or

   (ii) Acts as the video programming distributor or provider, and also
   possesses the right to license the video programming to a video
   programming distributor or provider that makes the video programming
   available directly to the end user through a distribution method that
   uses Internet protocol.

   (5) Internet protocol. Includes Transmission Control Protocol and a
   successor protocol or technology to Internet protocol.

   (6) Closed captioning. The visual display of the audio portion of video
   programming pursuant to the technical specifications set forth in this
   part.

   (7) Live programming. Video programming that is shown on television
   substantially simultaneously with its performance.

   (8) Near-live programming. Video programming that is performed and
   recorded less than 24 hours prior to the time it was first aired on
   television.

   (9) Prerecorded programming. Video programming that is not “live” or
   “near-live.”

   (10) Edited for Internet distribution. Video programming for which the
   television version is substantially edited prior to its Internet
   distribution.

   (11) Consumer-generated media. Content created and made available by
   consumers to online Web sites and services on the Internet, including
   video, audio, and multimedia content.

   (12) Video clips. Excerpts of full-length video programming.

   (13) Outtakes. Content that is not used in an edited version of video
   programming shown on television.

   (14) Nonexempt programming. Video programming that is not exempted
   under paragraph (d) of this section and, accordingly, is subject to
   closed captioning requirements set forth in this section.

   (b) Requirements for closed captioning of Internet protocol-delivered
   video programming. All nonexempt full-length video programming
   delivered using Internet protocol must be provided with closed captions
   if the programming is published or exhibited on television in the
   United States with captions on or after the following dates:

   (1) September 30, 2012, for all prerecorded programming that is not
   edited for Internet distribution, unless it is subject to paragraph
   (b)(4) of this section.

   (2) March 30, 2013, for all live and near-live programming, unless it
   is subject to paragraph (b)(4) of this section.

   (3) September 30, 2013, for all prerecorded programming that is edited
   for Internet distribution, unless it is subject to paragraph (b)(4) of
   this section.

   (4) All programming that is already in the video programming
   distributor's or provider's library before it is shown on television
   with captions must be captioned within 45 days after the date it is
   shown on television with captions on or after March 30, 2014 and before
   March 30, 2015. Such programming must be captioned within 30 days after
   the date it is shown on television with captions on or after March 30,
   2015 and before March 30, 2016. Such programming must be captioned
   within 15 days after the date it is shown on television with captions
   on or after March 30, 2016.

   (c) Obligations of video programming owners, distributors and providers
   —(1) Obligations of video programming owners. Each video programming
   owner must:

   (i) Send program files to video programming distributors and providers
   with captions as required by this section, with at least the same
   quality as the television captions provided for the same programming.
   If a video programming owner provides captions to a video programming
   distributor or provider using the Society of Motion Picture and
   Television Engineers Timed Text format (SMPTE ST 2052-1:2010,
   incorporated by reference, see §  79.100), then the VPO has fulfilled
   its obligation to deliver captions to the video programming distributor
   or provider in an acceptable format. A video programming owner and a
   video programming distributor or provider may agree upon an alternative
   technical format for the delivery of captions to the video programming
   distributor or provider.

   (ii) With each video programming distributor and provider that such
   owner licenses to distribute video programming directly to the end user
   through a distribution method that uses Internet protocol, agree upon a
   mechanism to inform such distributors and providers on an ongoing basis
   whether video programming is subject to the requirements of this
   section.

   (2) Obligations of video programming distributors and providers. Each
   video programming distributor and provider must:

   (i) Enable the rendering or pass through of all required captions to
   the end user, maintaining the quality of the captions provided by the
   video programming owner and transmitting captions in a format
   reasonably designed to reach the end user in that quality. A video
   programming distributor or provider that provides applications,
   plug-ins, or devices in order to deliver video programming must comply
   with the requirements of §  79.103(c) and (d).

   (ii) With each video programming owner from which such distributor or
   provider licenses video programming for distribution directly to the
   end user through a distribution method that uses Internet protocol,
   agree upon a mechanism to inform such distributor or provider on an
   ongoing basis whether video programming is subject to the requirements
   of this section, and make a good faith effort to identify video
   programming subject to the requirements of this section using the
   agreed upon mechanism. A video programming distributor or provider may
   rely in good faith on a certification by a video programming owner that
   the video programming need not be captioned if:

   (A) The certification includes a clear and concise explanation of why
   captioning is not required; and

   (B) The video programming distributor or provider is able to produce
   the certification to the Commission in the event of a complaint.

   (iii) Make contact information available to end users for the receipt
   and handling of written closed captioning complaints alleging
   violations of this section. The contact information required for
   written complaints shall include the name of a person with primary
   responsibility for Internet protocol captioning issues and who can
   ensure compliance with these rules. In addition, this contact
   information shall include the person's title or office, telephone
   number, fax number, postal mailing address, and email address. Video
   programming distributors and providers shall keep this information
   current and update it within 10 business days of any change.

   (3) A video programming provider's or owner's de minimis failure to
   comply with this section shall not be treated as a violation of the
   requirements.

   (d) Procedures for exemptions based on economic burden. (1) A video
   programming provider or owner may petition the Commission for a full or
   partial exemption from the closed captioning requirements of this
   section, which the Commission may grant upon a finding that the
   requirements would be economically burdensome.

   (2) The petitioner must support a petition for exemption with
   sufficient evidence to demonstrate that compliance with the
   requirements for closed captioning of video programming delivered via
   Internet protocol would be economically burdensome. The term
   “economically burdensome” means imposing significant difficulty or
   expense. The Commission will consider the following factors when
   determining whether the requirements for closed captioning of Internet
   protocol-delivered video programming would be economically burdensome:

   (i) The nature and cost of the closed captions for the programming;

   (ii) The impact on the operation of the video programming provider or
   owner;

   (iii) The financial resources of the video programming provider or
   owner; and

   (iv) The type of operations of the video programming provider or owner.

   (3) In addition to these factors, the petitioner must describe any
   other factors it deems relevant to the Commission's final determination
   and any available alternatives that might constitute a reasonable
   substitute for the closed captioning requirements of this section
   including, but not limited to, text or graphic display of the content
   of the audio portion of the programming. The Commission will evaluate
   economic burden with regard to the individual outlet.

   (4) The petitioner must electronically file its petition for exemption,
   and all subsequent pleadings related to the petition, in accordance
   with §  0.401(a)(1)(iii) of this chapter.

   (5) The Commission will place the petition on public notice.

   (6) Any interested person may electronically file comments or
   oppositions to the petition within 30 days after release of the public
   notice of the petition. Within 20 days after the close of the period
   for filing comments or oppositions, the petitioner may reply to any
   comments or oppositions filed.

   (7) Persons who file comments or oppositions to the petition must serve
   the petitioner with copies of those comments or oppositions and must
   include a certification that the petitioner was served with a copy. Any
   petitioner filing a reply to comments or oppositions must serve the
   commenting or opposing party with a copy of the reply and shall include
   a certification that the party was served with a copy. Comments or
   oppositions and replies shall be served upon a party, its attorney, or
   its other duly constituted agent by delivering or mailing a copy to the
   party's last known address in accordance with §  1.47 of this chapter or
   by sending a copy to the email address last provided by the party, its
   attorney, or other duly constituted agent.

   (8) Upon a finding of good cause, the Commission may lengthen or
   shorten any comment period and waive or establish other procedural
   requirements.

   (9) Persons filing petitions and responsive pleadings must include a
   detailed, full showing, supported by affidavit, of any facts or
   considerations relied on.

   (10) The Commission may deny or approve, in whole or in part, a
   petition for an economic burden exemption from the closed captioning
   requirements of this section.

   (11) During the pendency of an economic burden determination, the
   Commission will consider the video programming subject to the request
   for exemption as exempt from the requirements of this section.

   (e) Complaint procedures. (1) Complaints concerning an alleged
   violation of the closed captioning requirements of this section shall
   be filed in writing with the Commission or with the video programming
   distributor or provider responsible for enabling the rendering or pass
   through of the closed captions for the video programming within sixty
   (60) days after the date the complainant experienced a problem with
   captioning. A complaint filed with the Commission must be directed to
   the Consumer and Governmental Affairs Bureau and submitted through the
   Commission's online informal complaint filing system, U.S. Mail,
   overnight delivery, or facsimile.

   (2) A complaint should include the following information:

   (i) The name, postal address, and other contact information of the
   complainant, such as telephone number or email address;

   (ii) The name and postal address, Web site, or email address of the
   video programming distributor, provider, and/or owner against which the
   complaint is alleged, and information sufficient to identify the video
   programming involved;

   (iii) Information sufficient to identify the software or device used to
   view the program;

   (iv) A statement of facts sufficient to show that the video programming
   distributor, provider, and/or owner has violated or is violating the
   Commission's rules, and the date and time of the alleged violation;

   (v) The specific relief or satisfaction sought by the complainant; and

   (vi) The complainant's preferred format or method of response to the
   complaint (such as letter, facsimile transmission, telephone
   (voice/TRS/TTY), email, or some other method that would best
   accommodate the complainant).

   (3) If a complaint is filed first with the Commission, the Commission
   will forward complaints satisfying the above requirements to the named
   video programming distributor, provider, and/or owner, as well as to
   any other video programming distributor, provider, and/or owner that
   Commission staff determines may be involved. The video programming
   distributor, provider, and/or owner must respond in writing to the
   Commission and the complainant within 30 days after receipt of the
   complaint from the Commission.

   (4) If a complaint is filed first with the video programming
   distributor or provider, the video programming distributor or provider
   must respond in writing to the complainant within thirty (30) days
   after receipt of a closed captioning complaint. If a video programming
   distributor or provider fails to respond to the complainant within
   thirty (30) days, or the response does not satisfy the consumer, the
   complainant may file the complaint with the Commission within thirty
   (30) days after the time allotted for the video programming distributor
   or provider to respond. If a consumer re-files the complaint with the
   Commission (after filing with the distributor or provider) and the
   complaint satisfies the above requirements, the Commission will forward
   the complaint to the named video programming distributor or provider,
   as well as to any other video programming distributor, provider, and/or
   owner that Commission staff determines may be involved. The video
   programming distributor, provider, and/or owner must then respond in
   writing to the Commission and the complainant within 30 days after
   receipt of the complaint from the Commission.

   (5) In response to a complaint, video programming distributors,
   providers, and/or owners shall file with the Commission sufficient
   records and documentation to prove that the responding entity was (and
   remains) in compliance with the Commission's rules. Conclusory or
   insufficiently supported assertions of compliance will not carry a
   video programming distributor's, provider's, or owner's burden of
   proof. If the responding entity admits that it was not or is not in
   compliance with the Commission's rules, it shall file with the
   Commission sufficient records and documentation to explain the reasons
   for its noncompliance, show what remedial steps it has taken or will
   take, and show why such steps have been or will be sufficient to
   remediate the problem.

   (6) The Commission will review all relevant information provided by the
   complainant and the subject video programming distributors, providers,
   and/or owners, as well as any additional information the Commission
   deems relevant from its files or public sources. The Commission may
   request additional information from any relevant entities when, in the
   estimation of Commission staff, such information is needed to
   investigate the complaint or adjudicate potential violation(s) of
   Commission rules. When the Commission requests additional information,
   parties to which such requests are addressed must provide the requested
   information in the manner and within the time period the Commission
   specifies.

   (7) If the Commission finds that a video programming distributor,
   provider, or owner has violated the closed captioning requirements of
   this section, it may employ the full range of sanctions and remedies
   available under the Communications Act of 1934, as amended, against any
   or all of the violators.

   (f) Private rights of action prohibited. Nothing in this section shall
   be construed to authorize any private right of action to enforce any
   requirement of this section. The Commission shall have exclusive
   jurisdiction with respect to any complaint under this section.

   [ 77 FR 19515 , Mar. 30, 2012]

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