TV Closed Captioning Rules: New Requirements Effective January 2004
March 29, 2004
We are by now all familiar with the TV “crawls” that visually display the audio portion of a TV signal at the bottom of TV screens. So-called “closed captioning” has been a requirement for some time, but the Federal Communications Commission (FCC) gradually has been increasing the amount of programming that TV stations must caption. The intent of these requirements is to make television generally (and emergency information in particular) accessible to hearing-impaired persons.
The most recent increase in captioning requirements became effective on January 1, 2004. As of that date, all television stations (both analog and digital) are required to provide at least 1350 hours of captioned programming per calendar quarter.[1] This averages to a little less than 15 hours of captioned programming per day.
Exceptions
The captioning requirements apply only to analog programming that first aired on or after January 1, 1998, and to digital programming that first aired on or after July 1, 2002. However, as of January 1, 2003, broadcasters must caption at least 30 percent of all pre-1998 analog programming, and 30 percent of all pre-July 2002 digital programming. The requirement for both rises to 75 percent by January 1, 2008.
Other exceptions apply:
Any advertisement that is 5 minutes or less need not be captioned, nor must any Public Service Announcement or promo that is 10 minutes or less in duration
- If a station’s annual revenues are less than $3 million, or if the cost of captioning would account for more than 2 percent of a station’s gross revenues, then the station is exempted from all captioning requirements
- Programming in a language other than English or Spanish need not be captioned
- Late-night programming (between 2 and 6 a.m. local time) need not be captioned
- On a case-by-case basis, the FCC will entertain captioning exemption requests
However, in any of the situations described above, the station is required to pass through any already captioned programs.
Spanish Programming
The rules set forth above apply to programming in English only. For programming in Spanish, stations are required to caption at least 900 hours of analog programming aired on or after January 1, 1998. If a station broadcasts less than 900 hours of such Spanish programming, all of that programming must be captioned. By January 1, 2005, at least 30 percent of pre-1998 analog Spanish programming, and 30 percent of pre-July 2002 digital Spanish programming, must be captioned.
Real-time Captioning
In live broadcast situations, such as sporting events, breaking news and weather updates, it is not possible to have pre-scripted captioning. In these situations, the four major networks (ABC, CBS, Fox and NBC) and their affiliates in the top 25 markets must provide real-time captioning in order to meet the FCC’s captioning requirements. Other stations, however, are permitted to use Electronic Newsroom Technique (ENT) for live programming in order to meet the captioning mandates.
Enforcement
Consumers may complain to the FCC if they believe that a station is not meeting its captioning obligations. The consumer must first attempt to resolve the situation directly with the station. If no resolution is reached, any formal complaint to the FCC must be filed no later than the end of the calendar quarter following the calendar quarter in which the alleged violation occurred. If the FCC determines that a violation has occurred, it may impose penalties, including a requirement that the station increase its captioning. To date, however, no station has been issued a fine for non-compliance with the captioning rules. Finally, there are no requirements as to the accuracy of the captioned material.
What’s Next?
These are the rules of the road for the next two years. Effective January 1,
2006, stations must caption 100 percent of analog and digital programming that
is not subject to an exception. By January 1, 2008, 75 percent of all pre-1998
analog programming (and all pre-2002 digital programming) must also be
captioned.
For more information, please e-mail David O’Connor at
david.oconnor@hklaw.com or call toll free, 1-888-688-8500.
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1. The captioning rules also apply to cable and satellite stations, but the focus of this article is on broadcast television stations.
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