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FCC Reaffirms Closed-Caption Exemption Standards

The factors used to evaluate individual requests for closed-captioning exemptions will continue

Despite a change in terminology used by the U.S. government to describe possible economic hardships placed on broadcasters and video producers because of closed captioning requirements, the factors used to determine if a hardship exists will remain.

On Aug. 13, 2012, the Federal Communications Commission posted a final rule on the Federal Register—Closed Captioning and Video Description of Video Programming—that says in 1996 the four factors that were added to the Communications Act of 1934 will continue to apply when evaluating individual requests for closed captioning exemptions.

The four factors will continue despite a change in terminology in the statute, enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA; P.L. 111-260) that replaces the phrase “undue burden” with the phrase “economically burdensome,” the final rule says.

In addition, to ensure persons with hearing disabilities have access to television programming, the Communications Act of 1934 was amended in 1996 to include closed captioning requirements for video programming. The amendment also directed the FCC to develop rules to carry out that mandate. The FCC’s closed captioning rules currently require video programming distributors to caption 100 percent of all new, non-exempt English and Spanish language programming.

However, the 1996 amendment authorizes the FCC to grant individual exemptions from the closed captioning requirements on “a case-by-case basis.” Under that provision, a petitioner seeking an exemption would have to show that closed captioning would “result in an undue burden” which is defined to mean “significant difficulty or expense,” the notice says. In order to make a determination if closed captioning would create an undue burden, the FCC was directed to consider four factors. Those factors are:

  • The nature and cost of the closed captions for the programming
  • The impact on the operation of the provider or program owner
  • The financial resources of the provider or program owner
  • The type of operations of the provider or program owner

In October 2010, the CVAA was adopted, and it replaced “undue burden” with “economically burdensome,” but the definition of undue burden, along with the four factors remained. In addition, in November 2011, the FCC issued a notice of proposed rulemaking to replace the term undue burden with economically burdensome, but not make any substantive change in the standard for evaluating individual exemption petitions, or the factors it would consider when deciding those petitions, the notice says.