TV Captioning Issues - Part 1

By Lise Hamlin

Editor: Here's Lise Hamlin's writeup of Cheryl Heppner's workshop on TV Captioning Issues. This workshop included a bunch of captioning pros, including:
Moderator: Cheryl Heppner, Executive Director, NVRC
- Rosaline Crawford, Director, Law & Advocacy Center, National Association of the Deaf
- Greg Hlibok, Senior Attorney, Disability Rights Office, Federal Communications Commission
- Michael Schooler, Deputy General Counsel, National Cable & Telecommunications Association
- Heather York, Account Executive/Marketing Manager, VITAC
- Marsha McBride, Executive Vice President, Legal & Regulatory Affairs, National Association of Broadcasters

This is part one of three parts.

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Here's Part One

Here's Part Two

Here's Part Three

On of the sessions that packed in the audience at the TDI Conference in San Mateo was a panel discussion of TV captioning issues. Cheryl Heppner moderated this discussion. She introduced the panel, then launched into a description of the state of captioning for emergency broadcasts.

Visual Information in Emergencies

Cheryl told us that in August of 2006, the FCC issued a clarification that wasn't clear to most consumers. That notice permitted captions to be absent if critical information was visually provided some other way and allowed TV stations to provide visual information some other way if the failure was "reasonable" without defining "reasonable." Consumers viewed this "clarification" as rule change - but without a public notice to allow consumers the opportunity to comment.

After consumers raised their concerns with the FCC, in December 29, 2006, there was a public notice to clarify the clarification notice they had issued. This notice was an important advancement because for the first time it provided the types of steps that could be taken by stations to obtain closed captioning quickly that would be considered reasonable.

Cheryl concluded her remarks with a discussion about some continuing issues in getting visual information in emergencies:

1) The FCC has created a Catch 22: when you send a complaint to the FCC about not having visual information in an emergency, you have to tell them what information is missing. However, if consumers knew that, we wouldn't be complaining in the first place.
2) People who have submitted complaints find that they often have no idea what happens to that complaint.
3) Broadcasters in the less populous areas are not required to provide realtime captioning.

Caption Quality Petition

Cheryl introduced Rosaline Crawford, the director of the Law and Advocacy Center for the National Association of the Deaf (NAD). Rosaline was there to provide the consumer perspective on closed captioning rule making.

Rosaline spoke first about a petition that was filed in 2004 requesting the Federal Communications Commission (FCC) make changes to the closed captioning rules. That petition was filed by TDI and joined by the NAD, Hearing Loss Association of America, Association of Late-Deafened Adults and the Deaf and Hard of Hearing Consumer Advocacy Network.

The petition was filed to:
1) establish additional enforcement mechanisms to ensure closed captioning rules were implemented fully, to increase accountability of distributors of programming, and to ensure that technical problems identified would be rectified quickly; and
2) establish quality standards for captioning.

The petition gave the FCC a number of different recommendations:
• To have a database of video distributors contact information so consumers could contact them directly when there was a problem.
• To create an easier way for consumers to file complaints with the FCC.
• To require responses to complaints to be within 30 days
• To require programmers to continue reporting their level of compliance.
• To require the FCC to provide compliance audits.
• To establish some penalties for noncompliance.
• To require continuous monitoring of captioning by programmers.
• To require distributors to reformat captioned programming that has been edited or compressed.
• To extend the prohibition of counting as captions live programming using the electronic news room (ENR) technique.
• To adopt some non-technical quality standards for captioning.

That petition was filed in 2004. The FCC issued a proposed rule making process in 2005. The response and reply periods have ended. Petitioners would like to see a response to that rule making request.

Exemptions from Closed Captioning: the Consumer Perspective

Rosaline noted that currently, 100% of all new English programming (produced after 1998) that is not exempt should be captioned. Automatic exemptions include: programming broadcast during late night hours (2-6 am local time); primarily textual programs; musical programs with no lyrics.

One special exemption is undue burden. To qualify for this exemption, programmers must show the FCC that providing captions will be such a significant difficulty and expense that they cannot do it. FCC reviews these applications and they post them on public notice for comment. After the comment period is completed, the FCC determines whether the undue burden exemption applies.

During a six-year period from 1999 to 2005, a total of 67 programs requested an exemption. Of those 67, the FCC denied 50 of them. And it only granted three of them, and granted the exemption to those three for only a short period of time.

By 2006, 100% of non-exempt programming is required to be captioned. Suddenly, by August of 2006 there were 99 petitions posted on public notice. In response, the FCC posted a decision on two petitions. One of the programs was "Anglers for Christ." The FCC granted these two programs exemptions from ever being closed captioned. With this action, the FCC granted permanent exemptions for the first time in the history of TV captioning,

In addition to that, the FCC essentially created a new category. For nonprofit organizations that do not get paid for producing their programs and that claim that in order to provide captioning they may have to reduce or stop their TV programming, or may have to take resources away from other activities that are important to them, the FCC would be inclined favorably to grant an exemption.

And then the FCC did just that. The agency granted over 200 programs exemptions, without even making those petitions available for the public to comment on them.

NAD, TDI, and others objected and requested a review and rescission of that order. The consumer organizations let the FCC know that they had not followed their own procedures. There was enough pressure put on by people from Congress, and by hundreds and hundreds of consumers who wrote in saying, "You've got to be kidding!" that the FCC decided to suspend their decision. Then they posted for public notice 494 programs that requested exemption.

TDI, NAD, several other consumer organizations, volunteers, put in hundreds of hours and read each one of these petitions, evaluate them, write responses, and make recommendations as to what they thought should happen with each and every single one of these 494 petitions. In 2007, there have been 100 more petitions posted and answered by consumer organizations, who are waiting for the FCC to actually decide on all these petitions.

Consumer organizations have reiterated again and again that they want cancellation of that September 12th "Anglers" order that created that new category of exempt programs. As Rosaline said, "Let's go back to the way the rules are. They are already there, let's just follow the rules as they're written."

Here's Part One

Here's Part Two

Here's Part Three