Online Video Clip Caption Rules Approved 5-0; Pai Concurs, O'Rielly Partly Concurs
Closed captioning requirements for online video clips were approved by all five FCC members at the commission’s Friday meeting, and include a grace period for near-live clips as well as live ones, according to Media Bureau staff. Though both Republican commissioners voted in favor of the item, Commissioner Ajit Pai described his vote as a concurrence, while Commissioner Mike O'Rielly said he was concurring in part and approving in part. Both cited the commission’s failure to adequately examine the costs and benefits of the rule and tie implementation to real-world analysis as reasons for their reservations about the rules.
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The captioning requirements and implementation deadlines are a way for the commission to challenge companies to develop technology to solve accessibility problems “up front,” said Chairman Tom Wheeler. Along with grace periods, the order as expected (WID July 11 p11) applies TV captioning quality standards to online clips and defers issues of third-party responsibility and captioning for advance clips to a further NPRM.
Near-live clips, defined as clips from programming shown within 24 hours of being recorded, will have an eight-hour grace period after being posted online before they must be captioned, while live clips will have 12 hours, said bureau staff. All other video clips from programs shown on TV with captions that are posted by video programming distributors on their own websites will have to be captioned the moment they appear online, the bureau said in a news release (http://fcc.us/1jkrpcN). As expected, the rules don’t apply to clips in video programming distributors’ online libraries before the compliance deadlines. The requirements to caption live and near-live online clips take effect later than the requirements for other clips. Non-live “straight lift” clips, which contain the same video and audio that they did on TV, must be captioned starting in January 2016. Montage clips must be captioned starting January 2017.
The grace period for near-live clips and later implementation deadline for live and near-live clips, weren’t part of the order when it was first circulated and were added at Pai’s request, he said. A request from O'Rielly, that tentative conclusions be removed from the FNPRM, was also incorporated into the order, Pai said. The changes allowed Pai to concur with the item, he said.
The Republican commissioners raised concerns that the IP clip caption order wasn’t based on an analysis of whether the cost to companies of implementing could affect the amount of clips online. Pai’s office requested such an analysis, but it “never arrived” he said. O'Rielly, Commissioner Mignon Clyburn and Pai said they were concerned about the effect of the order on smaller broadcasters. “We should remain mindful of imposing any additional burdens on those least able to shoulder them,” Clyburn said. Smaller broadcasters “may stop uploading clips onto the Internet altogether” rather than face the costs of putting them online, Pai said. The order includes a waiver procedure for broadcasters that can show the clip captioning requirements are an undue economic burden, bureau staff told us during a news briefing.
O'Rielly also questioned whether Congress had given the commission authority to regulate clips, a point repeatedly raised by NAB and NCTA during the lead-up to the vote (WID July 9 p10). The “best course of action” would have been to ask Congress for a clarification of its intent, O'Rielly said. The matter of FCC authority over clips may “ultimately be resolved by the courts,” he said.
Several questions of IP clip captioning policy were deferred to the FNPRM, including the question of how the rules should apply to clips posted by third-party distributors and how the rules apply to “mash-up” clips that combine content that was shown on TV with captions with content that wasn’t. The question of how the rules should apply to advance clips -- those posted online before the video program is shown on TV, and then remain online after the programming has been televised -- is also in the FNPRM.
A fourth question in the FNPRM, asking if the grace period rules for live and near-live clips put in place by the order should be decreased over time to account for technological advancement, is “odd,” Pai said. Before FCC rules for IP clips “even go into effect, it asks whether those rules should be eliminated or modified,” said Pai. “One would think that we would let newly adopted rules take effect and then assess their real-world impact before we decide whether to change them.” That sort of procedure leaves companies trapped in a “regulatory merry-go-round,” Pai said.
Consumer groups representing the hearing impaired are “really pleased” with the order, which has a “reasonable schedule of implementation,” said Blake Reid, assistant clinical professor of the University of Colorado-Boulder and director of its Samuelson-Glushko Technology Law & Policy Clinic. Reid filed joint comments on behalf of Telecommunications for the Deaf and Hard of Hearing and numerous other consumer groups in the proceeding. Though TDI and other groups had pushed for no grace period for live or near-live clips, Reid said the FNPRM and obvious support on the commission for sunsetting the grace period are likely to address the issue.
Before the commission’s vote, Wheeler said the IP clip captioning rules are “just the beginning,” seconding an earlier statement by Clyburn. Future accessibility policies from the commission may be indicated in Friday’s FNPRM, Wheeler said. He said requiring captions for all online video is not the commission’s goal. -- Monty Tayloe (mtayloe@warren-news.com)