New Closed Captioning Quality Rules and Procedures Effective March 16, 2015
The FCC has announced that its new closed captioning quality rules will become effective Monday March 16, 2015. In addition to new record retention requirements, the new rules require broadcasters to obtain certifications of closed captioning compliance from their programming suppliers. A summary of the new rules is provided below, and a sample certification form can be downloaded HERE for your reference.
I. NEW MONITORING AND MAINTENANCE RECORD RETENTION REQUIREMENTS FOR CLOSED CAPTIONING STARTING MARCH 16, 2015
Beginning March 16, 2015, each video programming distributor (VPD), including each broadcast TV station, is required to maintain records of its closed captioning monitoring and maintenance activities, which shall include, without limitation, information about the VPD’s monitoring and maintenance of equipment and signal transmissions to ensure the pass through and delivery of closed captioning to viewers, and technical equipment checks and other activities to ensure that captioning equipment and other related equipment are maintained in good working order. Each VPD shall maintain such records for a minimum of two (2) years and shall submit such records to the FCC upon request. The FCC did not mandate any specific format for keeping records and thus provided flexibility to entities to establish their own internal procedures for creating and maintaining records that demonstrate compliance efforts and allow for prompt response to complaints and inquiries. At a minimum, it would appear to be reasonable for a TV station to log its closed captioning monitoring and maintenance activities once or twice per month, although no specific timeframe was provided by the FCC.
II. TV STATIONS MUST OBTAIN ONE OF THREE TYPES OF CLOSED CAPTIONING CERTIFICATIONS FROM PROGRAMMING SUPPLIERS BY MARCH 16, 2015 OR REPORT NON-CERTIFYING SUPPLIERS TO THE FCC
The FCC currently places primary responsibility for compliance with the new closed captioning quality rules with VPDs, such as individual TV stations, because they are ultimately responsible for ensuring the delivery of programming to consumers.
Under the new closed captioning quality rules, the FCC requires VPDs to exercise best efforts to obtain a certification from each programmer that supplies it with programming attesting that the programmer (1) complies with the new captioning quality standards (as described further below); (2) adheres to the “Best Practices” for video programmers (as described further below), or (3) is exempt from the closed captioning rules under one or more pre-existing exemptions, in which case such certification must identify the specific exemption claimed. Each TV station needs to obtain a certification from each programming source by March 16, 2015. Locally produced programming by the station owner is not exempt – a station should prepare a certification for its own produced programming.
A TV station may satisfy its best efforts obligation by locating a programmer’s certification on the programmer’s website (or elsewhere). If a TV station is unable to locate such certification, the station must inform the video programmer in writing that the programmer must make such certification widely available within 30 days. We have attached to this memorandum a sample form for requesting a certification from a video program supplier that could be used for this purpose. VPDs that fail to exercise best efforts to obtain the certification may be subject to FCC enforcement action.
If a VPD carries the programming of a video programmer that does not provide the certification described above, the VPD is obligated to report the non-certifying programmer to the FCC using procedures that presumably will be announced by the FCC on or before March 16, 2015. The FCC will compile a list of such programmers that will become available in a public database maintained by the Commission. If a VPD uses its best efforts to obtain one of these certifications from each of its programmers, and the VPD reports to the Commission the identity of any programmer who has refused to provide the requested certification, no sanctions will be imposed on the VPD as a result of any captioning violations that are outside the control of the VPD.
CERTIFICATION OPTION ONE: Meeting Closed Captioning quality standards.
Under new section 79.1(j)(2) of the FCC’s rules, closed captioning must convey the aural content of video programming in the original language (i.e. English or Spanish) to individuals who are deaf and hard of hearing to the same extent that the audio track conveys such content to individuals who are able to hear. Captioning must be accurate, synchronous, complete, and appropriately placed as those terms are defined below.
Accuracy. Captioning must match the spoken words (or song lyrics when provided on the audio track) in their original language (English or Spanish), in the order spoken, without substituting words for proper names and places, and without paraphrasing, except to the extent that paraphrasing is necessary to resolve any time constraints. Captions must contain proper spelling (including appropriate homophones), appropriate punctuation and capitalization, correct tense and use of singular or plural forms, and accurate representation of numbers with appropriate symbols or words. If slang or grammatical errors are intentionally used in a program’s dialogue, they must be mirrored in the captions. Captioning must provide nonverbal information that is not observable, such as the identity of speakers, the existence of music (whether or not there are also lyrics to be captioned), sound effects, and audience reaction, to the greatest extent possible, given the nature of the program. Captions must be legible, with appropriate spacing between words for readability.
Synchronicity. Captioning must coincide with the corresponding spoken words and sounds to the greatest extent possible, given the type of the programming. Captions must begin to appear at the time that the corresponding speech or sounds begin and end approximately when the speech or sounds end. Captions must be displayed on the screen at a speed that permits them to be read by viewers.
Completeness. Captioning must run from the beginning to the end of the program, to the fullest extent possible.
Placement. Captioning must be viewable and not blocked by other important visual content on the screen, including, but not limited to, character faces, featured text (e.g., weather or other news updates, graphics and credits), and other information that is essential to understanding a program’s content when the closed captioning feature is activated. Caption font must be sized appropriately for legibility. Lines of caption may not overlap one another and captions must be adequately positioned so that they do not run off the edge of the video screen.
The FCC recognizes that the standards discussed above will vary for different types of programming: pre-recorded, live and near-live.
a. PRE-RECORDED PROGRAMMING
Pre-recorded programming is programming that is produced, recorded, and edited in advance of its first airing on television. Captioning that is added after pre-recorded programming is produced but before it airs is known as off-line captioning. Because of the greater opportunity to review and edit off-line captioning, pre-recorded programming is expected to achieve full compliance with these standards, except for de minimis errors.
At times, captioning is added to pre-recorded programming as it airs to the public. Because there is no opportunity to proofread real-time captions, the FCC believes that real-time captioning for pre-recorded programming will not be expected to achieve full compliance. However, the FCC also noted that it expects that the use of real-time captioning for pre-recorded programming will be limited only to those situations when it is necessary
b. LIVE PROGRAMMING
Live programming is video programming that is shown on television substantially simultaneously with its performance, such as news, sports, and awards programs. Real-time captioning is used for live programming. Given the lack of time to review and correct real-time captioning, the FCC recognizes that full compliance with the accuracy standards may not be achievable, and will review such complaints on a case-by-case basis. The FCC encourages contractual provisions (i) allowing programmers to provide captioners advance notice of vocabulary likely to be used (ii) requiring captioners to have access to reliable, high-speed Internet to minimize interruptions or malfunctions, (iii) requiring programmers to provide captioners with high quality audio program signals to improve accuracy and (iv) requiring captioners to have certain skills and training.
The FCC also recognizes that a slight delay between the dialogue and the appearance of captions on live programming is inevitable. The FCC encourages industry participants to minimize such delays, such as by including contractual provisions (i) allowing programmers to provide captioners with advance materials (ii) requiring programmers to provide captioners with high quality audio program signals and (iii) requiring captioners to have certain skills and training.
The FCC further recognizes the challenges inherent in ensuring that captioning for live programming is captioned up to its very last second. The FCC encourages the following measures: (i) entities that send audio feed should alert the captioner that the program’s end is imminent (ii) a fade out of the last scene to add a few seconds for the transition to the next program (iii) advance delivery of the audio to the captioner by a few seconds, and (iv) allowing captions appearing toward the end of the program to be placed on the screen during the subsequent advertisement or program provided such placement would not interfere with the advertisement or program.
The FCC recognizes that certain live programming, such as sports programs, make extensive use of graphics and scrawls, for which it can be challenging to avoid having captions block graphics and scrawls. Accordingly, the Commission will take such matters into consideration when reviewing complaints regarding violations of the placement standard.
c. NEAR-LIVE PROGRAMMING
Near-live programming is defined as video programming recorded less than 24 hours prior to the time is was first aired on television. Examples include late-night talk and comedy shows and some public affairs programming. For purposes of caption quality standards, the FCC will treat near-live programming as if it were live programming. The FCC encourages the adoption of either of the following industry practices: (i) in advance of air time, programmers deliver a script or partial script to the captioner, allowing the captioner to create a caption file that can be combined simultaneously with the near-live program when it is aired or (ii) providing captioners with access to the live feed of the taping, allowing the captioner to then improve caption quality prior to the airing of the near-live program.
CERTIFICATION OPTION TWO: Best Practices by Video Programmers.
To satisfy its obligation to exercise its best efforts to obtain certification from its programmers regarding closed caption quality, a VPD also may seek certification from its video programmers that they will adhere to the following Best Practices codified under new Section 79.1(k):
Agreements with captioning services. Video programmers complying with the Best Practices will take the following actions to promote the provision of high quality television closed captions through new or renewed agreements with captioning vendors.
Performance requirements. Include performance requirements designed to promote the creation of high quality closed captions for video programming comparable to the Captioning Vendor Best Practices set forth in Section 79.1(k)(2)-(4) of the FCC’s rules.
Verification. Include a means of verifying compliance with the above performance requirements such as through periodic spot checks of captioned programming.
Training. Include provisions designed to ensure that captioning vendors’ employees and contractors who provide caption services have received appropriate training and that there is oversight of individual captioner’s performance.
Operational best practices. Video programmers complying with the Best Practices will take the following actions to promote delivery of high quality television captions through improved operations:
Preparation materials. To the extent available, provide captioning vendors with advance access to preparation materials such as show scripts, lists of proper names (people and places), and song lyrics used in the program, as well as to any dress rehearsal or rundown that is available and relevant.
Quality audio. Make commercially reasonable efforts to provide captioning vendors with access to a high quality program audio signal to promote accurate transcription and minimize latency.
Captioning for pre-recorded programming.
The presumption is that pre-recorded programs, excluding programs that initially aired with real-time captions, will be captioned offline before air except when, in the exercise of a programmer’s commercially reasonable judgment, circumstances require real-time or live display captioning. Examples of commercially reasonable exceptions may include instances when (1) a programmer’s production is completed too close to initial air time be captioned offline or may require editorial changes up to air time (e.g., news content, reality shows), (2) a program is delivered late, (3) there are technical problems with the caption file, (4) last minute changes must be made to later network feeds (e.g., when shown in a later time zone) due to unforeseen circumstances, (5) there are proprietary or confidentiality considerations, or video programming networks or channels with a high proportion of live or topical time-sensitive programming, but also some pre-recorded programs, use real-time captioning for all content (including pre-recorded programs) to allow for immediate captioning of events or breaking news stories that interrupt scheduled programming.
Make reasonable efforts to employ live display captioning instead of real-time captioning for pre-recorded programs if the complete program can be delivered to the caption service provider in sufficient time prior to airing.
Monitoring and remedial best practices. Video programmers complying with the Best Practices will take the following actions aimed at improving prompt identification and remediation of captioning errors as they occur:
Pre-air monitoring of offline captions. As part of the overall pre-air quality control process for television programs, conduct periodic checks of offline captions on pre-recorded programs to determine the presence of captions.
Real-time monitoring of captions. Monitor television program streams at point of origination (e.g., monitors located at the network master control point or electronic monitoring) to determine presence of captions.
Programmer and captioning vendor contacts. Provide to captioning vendors appropriate staff contacts who can assist in resolving captioning issues. Make captioning vendor contact information readily available in master control or other centralized location, and contact captioning vendor promptly if there is a caption loss or obvious compromise of captions.
Recording of captioning issues. Maintain a log of reported captioning issues, including date, time of day, program title, and description of the issue. Beginning one year after the effective date of the captioning quality standards (i.e., March 16, 2016), such log shall reflect reported captioning issues from the prior year.
Troubleshooting protocol. Develop procedures for troubleshooting consumer captioning complaints within the distribution chain, including identifying relevant points of contact, and work to promptly resolve captioning issues, if possible.
Accuracy spot checks. Within 30 days following notification of a pattern or trend of complaints from the FCC, conduct spot checks of television program captions to assess caption quality and address any ongoing concerns.
CERTIFICATION OPTION THREE: Certification of Exemption.
A VPD’s third alternative is to obtain a certification from the programmer (or itself) that the video program in question is exempt from closed captioning requirements. The self-implementing exemptions in the FCC’s rules have not changed for many years, although the FCC has solicited comment on whether to alter these exemptions. Self-implementing exemptions apply, for example, to programs broadcast in a language other than English or Spanish, programs aired between 2 am and 6 am, and programs aired on digital subchannels that had less than $3 million in annual revenues the prior calendar year. A video programmer also may have applied for an exemption based on the economically burdensome standard. In the latter case, the program in question is considered exempt while the application for exemption remains pending before the FCC.
III. THE FCC’s ENHANCED ENT PROCEDURES ALREADY ARE IN EFFECT
For those stations eligible to use Electronic Newsroom Technique (ENT) procedures for closed captioning of live programs (that is, stations not affiliated with ABC, CBS, Fox or NBC or stations affiliated with one of these four networks but outside the top 25 markets), new enhanced ENT procedures came into effect June 30, 2014. These ENT requirements, which are codified under Section 79.1(e)(11) are as follows:
In-studio produced news, sports, weather, and entertainment programming will be scripted.
For weather interstitials where there may be multiple segments within a news program, weather information explaining the visual information on the screen and conveying forecast information will be scripted, although the scripts may not precisely track the words used on air.
Pre-produced programming will be scripted (to the extent technically feasible).
If live interviews or live on-the scene or breaking news segments are not scripted, stations will supplement them with crawls, textual information, or other means (to the extent technically feasible).
The station will provide training to all news staff on scripting for improving ENT. The station will appoint an “ENT Coordinator” accountable for compliance.
These ENT rules do not relieve a broadcast station of its obligations under Section 79.2 of the FCC’s rules regarding the accessibility of programming providing emergency information (that is, the requirement to provide at least some type of visual rendering of critical details provided aurally and to make accessible to individuals who are blind or visually impaired emergency information provided visually).
We recommend that each station using ENT conduct a check of its compliance with the Enhanced ENT Procedures at least once monthly.