FCC Approval of IP Captioning Order Coming, With Release Possible Thursday

The legislators who wrote the 21st Century Communications and Video Accessibility Act, which requires IP captioning rules to be finished by Thursday, wrote FCC Chairman Julius Genachowski two days earlier to seek what might amount to some changes in the draft. Rep. Ed Markey, D-Mass., and Sen. Mark Pryor, D-Ark., asked that some programming that may be considered clips when put online still be captioned. The initial draft order (CD Jan 6 p4) didn’t set specific rules for what’s considered a video clip and thus exempt from CVAA IP captioning rules. The draft said the agency would be on the lookout for efforts to game the system, such as by classifying as clips programming that’s put online but could be considered full-length material. A bureau spokeswoman declined to comment.

Commission staff appear to be weighing how much responsibility to give to video programming owners, as opposed to the broadcast and pay-TV video programming distributors, industry officials said. VPOs want the commission to limit their responsibility, while VPDs have sought a role for content owners. Both sides continued this week their lobbying of eighth-floor and bureau personnel, new ex partes in docket 11-154 show (http://xrl.us/bmofve). Apple executives spoke with aides to two FCC members other than the chairman, while HTC sent a letter to the agency.

The MPAA wants no requirement that video clips be captioned when they're transmitted by IP devices, while advocates for the deaf and hard of hearing are concerned about an exclusion that’s too wide. Markey and Pryor said the intent of their legislation was to exempt ads, public service announcements and other types of promotions. “It was our intent that full-length programming that has been broadcast on television with captions after the effective date of the Commission’s rule be shown with captions when the programming is delivered using IP even if such programming is shown on the Internet in segments and even when some but not all segments are posted online,” the legislators wrote (http://xrl.us/bmof3a). “Americans increasingly are accessing online news, information and entertainment in such segments, which are excerpted from full-length television programming, rather than watching programs in their entirety. It is therefore critical that individuals with disabilities also are able to access such segments of full-length television programming via IP captions when the programming is posted online."

Deaf groups think Congress didn’t intend to create uncaptioned video clips in name only, because they're regular shows that aren’t delivered in their entirety in IP. “Contrary to industry assertions, we do not believe that Congress intended to create a new class of uncaptioned “video clips,” said Telecom for the Deaf and Hard of Hearing, Hearing Loss Association of America and the National Association of the Deaf about their meeting with an aide to Commissioner Mignon Clyburn (http://xrl.us/bmof3c). “The text of the CVAA plainly requires fully-featured segments of programming that are ‘by, or generally considered comparable to programming provided by a television broadcast station,’ to be captioned. Accordingly, the Commission’s rules need not address the terms ‘video clips’ or ‘full-length programming,’ which do not appear anywhere in the text of the CVAA."

Deaf advocates have made it “clear” to Genachowski’s office that excusing segments of programming from IP captioning rules “under the guise of excluding ‘video clips’ would plainly contradict the CVAA.” That’s according to lawyer Blake Reid of Georgetown University’s Institute for Public Representation, which represents Telecom for the Deaf and Hard of Hearing and who attended last week’s meeting of deaf advocates with Clyburn’s aide. “The plain text of the statute neither mentions ‘video clips’ nor affords the commission any other authority to exclude programming strictly on the basis of its length, except in the case of advertisements and similar content that is exempted from the commission’s television captioning rules,” Reid told us. Excluding any other types of programming “would contravene Congress’s intent, particularly in light of the ex parte letter filed by Rep. Markey and Sen. Pryor earlier this week,” he continued. “We agree with the sentiment of the letter."

The MPAA believes it’s “consistent with the statute” to not require captions for clips or outtakes. The association reported (http://xrl.us/bmof3g) an executive told a bureau official and aides to Clyburn and Commissioner Robert McDowell of the need for “flexibility as to timing” of when VPDs, VPOs and video programming providers “share information about the captions contained in programming to be distributed online.” The NCTA also sought (http://xrl.us/bmof3r) “flexibility” for VPOs and VPDs to come up with a “mutually-agreeable mechanism that ensures that appropriate material is provided with captions online without overburdening industry through any program-by-program certification approach.” The American Cable Association, Comcast and DirecTV also made ex parte filings.

Apple and HTC want formats other than only the technical standard from the Society of Motion Picture and Television Engineers to be considered OK by the FCC for use with IP captions. The draft makes the SMPTE standard a safe harbor, while also saying other, proprietary standards would be alright. “If FCC rules refer to SMPTE-TT in any way, these rules should make it clear that only the portions of SMPTE-TT necessary to implement the captioning rules are relevant,” Apple said (http://xrl.us/bmof3z). HTC said (http://xrl.us/bmof35) HTTP Live Streaming “already is emerging as a widely-supported, de facto delivery standard.”