Sec.  79.1   Closed captioning of video programming.

   (a) Definitions. For purposes of this section the following definitions
   shall apply:

   (1) Video programming. Programming provided by, or generally considered
   comparable to programming provided by, a television broadcast station that
   is distributed and exhibited for residential use. Video programming includes
   advertisements of more than five minutes in duration but does not include
   advertisements of five minutes' duration or less.

   (2) Video programming distributor. Any television broadcast station licensed
   by the Commission and any multichannel video programming distributor as
   defined in  Sec. 76.1000(e) of this chapter, and any other distributor of video
   programming  for  residential reception that delivers such programming
   directly to the home and is subject to the jurisdiction of the Commission.
   An entity contracting for program distribution over a video programming
   distributor that is itself exempt from captioning that programming pursuant
   to paragraph (e)(9) of this section shall itself be treated as a video
   programming distributor for purposes of this section To the extent such
   video programming is not otherwise exempt from captioning, the entity that
   contracts for its distribution shall be required to comply with the closed
   captioning requirements of this section.

   (3) Video programming provider. Any video programming distributor and any
   other  entity  that  provides  video  programming that is intended for
   distribution  to  residential households including, but not limited to
   broadcast  or  nonbroadcast  television network and the owners of such
   programming.

   (4) Closed captioning. The visual display of the audio portion of video
   programming pursuant to the technical specifications set forth in part 15 of
   this chapter.

   (5) New programming. Video programming that is first published or exhibited
   on or after January 1, 1998.

   (6) Pre-rule programming. (i) Video programming that was first published or
   exhibited before January 1, 1998.

   (ii)  Video  programming  first  published or exhibited for display on
   television  receivers equipped for display of digital transmissions or
   formatted for such transmission and exhibition prior to the date on which
   such  television  receivers must, by Commission rule, be equipped with
   built-in decoder circuitry designed to display closed-captioned digital
   television transmissions.

   (7)  Nonexempt programming. Video programming that is not exempt under
   paragraph  (d)  of this section and, accordingly, is subject to closed
   captioning requirements set forth in this section.

   (b)  Requirements  for  closed  captioning  of  video programming —(1)
   Requirements  for  new English language programming. Video programming
   distributors must provide closed captioning for nonexempt video programming
   that is being distributed and exhibited on each channel during each calendar
   quarter in accordance with the following requirements:

   (i) Between January 1, 2000, and December 31, 2001, a video programming
   distributor shall provide at least 450 hours of captioned video programming
   or  all  of  its new nonexempt video programming must be provided with
   captions, whichever is less;

   (ii) Between January 1, 2002, and December 31, 2003, a video programming
   distributor shall provide at least 900 hours of captioned video programming
   or  all  of  its new nonexempt video programming must be provided with
   captions, whichever is less;

   (iii) Between January 1, 2004, and December 31, 2005, a video programming
   distributor shall provide at least an average of 1350 hours of captioned
   video programming or all of its new nonexempt video programming must be
   provided with captions, whichever is less; and

   (iv)  As  of  January 1, 2006, and thereafter, 100% of the programming
   distributor's  new  nonexempt  video programming must be provided with
   captions.

   (2)  Requirements for pre-rule English language programming. (i) After
   January 1, 2003, 30% of the programming distributor's pre-rule nonexempt
   video programming being distributed and exhibited on each channel during
   each calendar quarter must be provided with closed captioning.

   (ii)  As  of  January  1, 2008, and thereafter, 75% of the programming
   distributor's pre-rule nonexempt video programming being distributed and
   exhibited on each channel during each calendar quarter must be provided with
   closed captioning.

   (3) Requirements for new Spanish language programming. Video programming
   distributors must provide closed captioning for nonexempt Spanish language
   video programming that is being distributed and exhibited on each channel
   during each calendar quarter in accordance with the following requirements:

   (i) Between January 1, 2001, and December 31, 2003, a video programming
   distributor shall provide at least 450 hours of captioned Spanish language
   video  programming  or all of its new nonexempt Spanish language video
   programming must be provided with captions, whichever is less;

   (ii) Between January 1, 2004, and December 31, 2006, a video programming
   distributor shall provide at least 900 hours of captioned Spanish language
   video  programming  or all of its new nonexempt Spanish language video
   programming must be provided with captions, whichever is less;

   (iii) Between January 1, 2007, and December 31, 2009, a video programming
   distributor shall provide at least an average of 1350 hours of captioned
   Spanish language video programming or all of its new nonexempt Spanish
   language video programming must be provided with captions, whichever is
   less; and

   (iv)  As  of  January 1, 2010, and thereafter, 100% of the programming
   distributor's new nonexempt Spanish language video programming must be
   provided with captions.

   (4)  Requirements for Spanish language pre-rule programming. (i) After
   January 1, 2005, 30% of the programming distributor's pre-rule nonexempt
   Spanish language video programming being distributed and exhibited on each
   channel  during  each  calendar  quarter  must be provided with closed
   captioning.

   (ii)  As  of  January  1, 2012, and thereafter, 75% of the programming
   distributor's pre-rule nonexempt Spanish language video programming being
   distributed and exhibited on each channel during each calendar quarter must
   be provided with closed captioning.

   (5) Video programming distributors shall continue to provide captioned video
   programming  at  substantially  the same level as the average level of
   captioning that they provided during the first six (6) months of 1997 even
   if that amount of captioning exceeds the requirements otherwise set forth in
   this section.

   (c) Obligation to pass through captions of already captioned programs. All
   video programming distributors shall deliver all programming received from
   the video programming owner or other origination source containing closed
   captioning to receiving television households with the original closed
   captioning data intact in a format that can be recovered and displayed by
   decoders  meeting the standards of part 15 of this chapter unless such
   programming  is  recaptioned  or  the  captions are reformatted by the
   programming distributor.

   (d) Exempt programs and providers. For purposes of determining compliance
   with this section, any video programming or video programming provider that
   meets one or more of the following criteria shall be exempt to the extent
   specified in this paragraph.

   (1)  Programming subject to contractual captioning restrictions. Video
   programming that is subject to a contract in effect on or before February 8,
   1996,  but not any extension or renewal of such contract, for which an
   obligation  to  provide closed captioning would constitute a breach of
   contract.

   (2) Video programming or video programming provider for which the captioning
   requirement has been waived. Any video programming or video programming
   provider for which the Commission has determined that a requirement for
   closed captioning imposes an undue burden on the basis of a petition for
   exemption filed in accordance with the procedures specified in paragraph (f)
   of this section.

   (3) Programming other than English or Spanish language. All programming for
   which the audio is in a language other than English or Spanish, except that
   scripted  programming that can be captioned using the “electronic news
   room” technique is not exempt.

   (4) Primarily textual programming. Video programming or portions of video
   programming for which the content of the soundtrack is displayed visually
   through text or graphics (e.g., program schedule channels or community
   bulletin boards).

   (5) Programming distributed in the late night hours. Programming that is
   being distributed to residential households between 2 a.m. and 6 a.m. local
   time. Video programming distributors providing a channel that consists of a
   service that is distributed and exhibited for viewing in more than a single
   time  zone shall be exempt from closed captioning that service for any
   continuous 4 hour time period they may select, commencing not earlier than
   12  a.m. local time and ending not later than 7 a.m. local time in any
   location where that service is intended for viewing. This exemption is to be
   determined based on the primary reception locations and remains applicable
   even if the transmission is accessible and distributed or exhibited in other
   time zones on a secondary basis. Video programming distributors providing
   service outside of the 48 contiguous states may treat as exempt programming
   that is exempt under this paragraph when distributed in the contiguous
   states.

   (6)   Interstitials,  promotional  announcements  and  public  service
   announcements. Interstitial material, promotional announcements, and public
   service announcements that are 10 minutes or less in duration.

   (7)  EBS  programming. Video programming transmitted by an Educational
   Broadband Service licensee pursuant to part 27 of this chapter.

   (8) Locally produced and distributed non-news programming with no repeat
   value.  Programming  that is locally produced by the video programming
   distributor, has no repeat value, is of local public interest, is not news
   programming,  and  for  which  the “electronic news room” technique of
   captioning is unavailable.

   (9) Programming on new networks. Programming on a video programming network
   for the first four years after it begins operation, except that programming
   on a video programming network that was in operation less than four (4)
   years on January 1, 1998 is exempt until January 1, 2002.

   (10) Primarily non-vocal musical programming. Programming that consists
   primarily of non-vocal music.

   (11) Captioning expense in excess of 2 percent of gross revenues. No video
   programming provider shall be required to expend any money to caption any
   video programming if such expenditure would exceed 2 percent of the gross
   revenues received from that channel during the previous calendar year.

   (12) Channels producing revenues of under $3,000,000. No video programming
   provider shall be required to expend any money to caption any channel of
   video programming producing annual gross revenues of less than $3,000,000
   during the previous calendar year other than the obligation to pass through
   video programming already captioned when received pursuant to paragraph (c)
   of this section.

   (13) Locally produced educational programming. Instructional programming
   that is locally produced by public television stations for use in grades
   K–12 and post secondary schools.

   (e) Responsibility for and determination of compliance. (1) Compliance shall
   be calculated on a per channel, calendar quarter basis;

   (2) Open captioning or subtitles in the language of the target audience may
   be used in lieu of closed captioning;

   (3) Live programming or repeats of programming originally transmitted live
   that are captioned using the so-called “electronic newsroom technique” will
   be  considered  captioned,  except that effective January 1, 2000, and
   thereafter, the major national broadcast television networks ( i.e. , ABC,
   CBS, Fox and NBC), affiliates of these networks in the top 25 television
   markets as defined by Nielsen's Designated Market Areas (DMAs) and national
   nonbroadcast networks serving at least 50% of all homes subscribing to
   multichannel video programming services shall not count electronic newsroom
   captioned programming towards compliance with these rules. The live portions
   of noncommercial broadcasters' fundraising activities that use automated
   software  to  create a continuous captioned message will be considered
   captioned;

   (4)  Compliance  will  be  required  with respect to the type of video
   programming generally distributed to residential households. Programming
   produced solely for closed circuit or private distribution is not covered by
   these rules;

   (5) Video programming that is exempt pursuant to paragraph (d) of this
   section that contains captions, except video programming exempt pursuant to
   paragraph (d)(5) of this section (late night hours exemption), can count
   towards the compliance with the requirements for new programming prior to
   January 1, 2006. Video programming that is exempt pursuant to paragraph (d)
   of this section that contains captions, except that video programming exempt
   pursuant to paragraph (d)(5) of this section (late night hours exemption),
   can count towards compliance with the requirements for pre-rule programming.

   (6) For purposes of paragraph (d)(11) of this section, captioning expenses
   include  direct expenditures for captioning as well as allowable costs
   specifically allocated by a programming supplier through the price of the
   video programming to that video programming provider. To be an allowable
   allocated  cost, a programming supplier may not allocate more than 100
   percent  of  the  costs  of captioning to individual video programming
   providers. A programming supplier may allocate the captioning costs only
   once and may use any commercially reasonable allocation method;

   (7) For purposes of paragraphs (d)(11) and (d)(12) of this section, annual
   gross revenues shall be calculated for each channel individually based on
   revenues received in the preceding calendar year from all sources related to
   the programming on that channel. Revenue for channels shared between network
   and local programming shall be separately calculated for network and for
   non-network  programming, with neither the network nor the local video
   programming provider being required to spend more than 2 percent of its
   revenues for captioning. Thus, for example, compliance with respect to a
   network service distributed by a multichannel video service distributor,
   such as a cable operator, would be calculated based on the revenues received
   by the network itself (as would the related captioning expenditure). For
   local service providers such as broadcasters, advertising revenues from
   station-controlled  inventory  would  be included. For cable operators
   providing local origination programming, the annual gross revenues received
   for  each  channel  will  be used to determine compliance. Evidence of
   compliance could include certification from the network supplier that the
   requirements  of the test had been met. Multichannel video programming
   distributors, in calculating non-network revenues for a channel offered to
   subscribers as part of a multichannel package or tier, will not include a
   pro rata share of subscriber revenues, but will include all other revenues
   from the channel, including advertising and ancillary revenues. Revenues for
   channels  supported  by direct sales of products will include only the
   revenues from the product sales activity (e.g., sales commissions) and not
   the revenues from the actual products offered to subscribers. Evidence of
   compliance could include certification from the network supplier that the
   requirements of this test have been met.

   (8) If two or more networks (or sources of programming) share a single
   channel, that channel shall be considered to be in compliance if each of the
   sources of video programming are in compliance where they are carried on a
   full time basis;

   (9) Video programming distributors shall not be required to provide closed
   captioning  for  video programming that is by law not subject to their
   editorial control, including but not limited to the signals of television
   broadcast stations distributed pursuant to sections 614 and 615 of the
   Communications  Act  or pursuant to the compulsory copyright licensing
   provisions of sections 111 and 119 of the Copyright Act (Title 17 U.S.C. 111
   and 119); programming involving candidates for public office covered by
   sections 315 and 312 of the Communications Act and associated policies;
   commercial leased access, public access, governmental and educational access
   programming carried pursuant to sections 611 and 612 of the Communications
   Act; video programming distributed by direct broadcast satellite (DBS)
   services  in compliance with the noncommercial programming requirement
   pursuant to section 335(b)(3) of the Communications Act to the extent such
   video  programming  is  exempt from the editorial control of the video
   programming provider; and video programming distributed by a common carrier
   or that is distributed on an open video system pursuant to section 653 of
   the  Communications  Act by an entity other than the open video system
   operator. To the extent such video programming is not otherwise exempt from
   captioning, the entity that contracts for its distribution shall be required
   to comply with the closed captioning requirements of this section.

   (10) In evaluating whether a video programming provider has complied with
   the requirement that all new nonexempt video programming must include closed
   captioning,  the  Commission  will  consider showings that any lack of
   captioning was de minimis and reasonable under the circumstances.

   (f) Procedures for exemptions based on undue burden. (1) A video programming
   provider, video programming producer or video programming owner may petition
   the Commission for a full or partial exemption from the closed captioning
   requirements. Exemptions may be granted, in whole or in part, for a channel
   of video programming, a category or type of video programming, an individual
   video service, a specific video program or a video programming provider upon
   a finding that the closed captioning requirements will result in an undue
   burden.

   (2) A petition for an exemption must be supported by sufficient evidence to
   demonstrate that compliance with the requirements to closed caption video
   programming would cause an undue burden. The term “undue burden” means
   significant difficulty or expense. Factors to be considered when determining
   whether  the requirements for closed captioning impose an undue burden
   include:

   (i) The nature and cost of the closed captions for the programming;

   (ii) The impact on the operation of the provider or program owner;

   (iii) The financial resources of the provider or program owner; and

   (iv) The type of operations of the provider or program owner.

   (3) In addition to these factors, the petition shall describe any other
   factors  the  petitioner  deems  relevant  to  the  Commission's final
   determination  and  any available alternatives that might constitute a
   reasonable substitute for the closed captioning requirements including, but
   not limited to, text or graphic display of the content of the audio portion
   of the programming. Undue burden shall be evaluated with regard to the
   individual outlet.

   (4) An original and two (2) copies of a petition requesting an exemption
   based on the undue burden standard, and all subsequent pleadings, shall be
   filed in accordance with  Sec. 0.401(a) of this chapter.

   (5) The Commission will place the petition on public notice.

   (6) Any interested person may file comments or oppositions to the petition
   within 30 days of the public notice of the petition. Within 20 days of the
   close of the comment period, the petitioner may reply to any comments or
   oppositions filed.

   (7)  Comments  or  oppositions  to the petition shall be served on the
   petitioner and shall include a certification that the petitioner was served
   with a copy. Replies to comments or oppositions shall be served on the
   commenting or opposing party and shall include a certification that the
   commenter was served with a copy.

   (8) Upon a showing of good cause, the Commission may lengthen or shorten any
   comment period and waive or establish other procedural requirements.

   (9) All petitions and responsive pleadings shall contain a detailed, full
   showing, supported by affidavit, of any facts or considerations relied on.

   (10) The Commission may deny or approve, in whole or in part, a petition for
   an undue burden exemption from the closed captioning requirements.

   (11)  During  the pendency of an undue burden determination, the video
   programming subject to the request for exemption shall be considered exempt
   from the closed captioning requirements.

   (g) Complaint procedures. (1) No complaint concerning an alleged violation
   of the closed captioning requirements of this section shall be filed with
   the Commission unless such complaint is first sent to the video programming
   distributor  responsible  for  delivery  and  exhibition  of the video
   programming. A complaint must be in writing, must state with specificity the
   alleged Commission rule violated and must include some evidence of the
   alleged rule violation. In the case of an alleged violation by a television
   broadcast station or other programming for which the video programming
   distributor is exempt from closed captioning responsibility pursuant to
   paragraph (e)(9) of this section, the complaint shall be sent directly to
   the station or owner of the programming. A video programming distributor
   receiving a complaint regarding such programming must forward the complaint
   within seven days of receipt to the programmer or send written instructions
   to the complainant on how to refile with the programmer.

   (2)  A  complaint will not be considered if it is filed with the video
   programming distributor later than the end of the calendar quarter following
   the calendar quarter in which the alleged violation has occurred.

   (3) The video programming distributor must respond in writing to a complaint
   no later than 45 days after the end of the calendar quarter in which the
   violation is alleged to have occurred or 45 days after receipt of a written
   complaint, whichever is later.

   (4) If a video programming distributor fails to respond to a complaint or a
   dispute remains following the initial complaint resolution procedures, a
   complaint may be filed with the Commission within 30 days after the time
   allotted for the video programming distributor to respond has ended. An
   original and two (2) copies of the complaint, and all subsequent pleadings
   shall be filed in accordance with  Sec. 0.401(a) of this chapter. The complaint
   shall include evidence that demonstrates the alleged violation of the closed
   captioning requirements of this section and shall certify that a copy of the
   complaint  and the supporting evidence was first directed to the video
   programming  distributor.  A  copy of the complaint and any supporting
   documentation must be served on the video programming distributor.

   (5) The video programming distributor shall have 15 days to respond to the
   complaint. In response to a complaint, a video programming distributor is
   obligated  to  provide  the  Commission  with  sufficient  records and
   documentation to demonstrate that it is in compliance with the Commission's
   rules. The response to the complaint shall be served on the complainant.

   (6)  Certifications  from programming suppliers, including programming
   producers, programming owners, networks, syndicators and other distributors,
   may be relied on to demonstrate compliance. Distributors will not be held
   responsible for situations where a program source falsely certifies that
   programming delivered to the distributor meets our captioning requirements
   if  the  distributor is unaware that the certification is false. Video
   programming  providers  may  rely  on  the accuracy of certifications.
   Appropriate action may be taken with respect to deliberate falsifications.

   (7) The Commission will review the complaint, including all supporting
   evidence, and determine whether a violation has occurred. The Commission
   shall, as needed, request additional information from the video programming
   provider.

   (8) If the Commission finds that a violation has occurred, penalties may be
   imposed, including a requirement that the video programming distributor
   deliver  video  programming  containing closed captioning in an amount
   exceeding that specified in paragraph (b) of this section in a future time
   period.

   (h) Private rights of action prohibited. Nothing in this section shall be
   construed  to  authorize  any  private  right of action to enforce any
   requirement  of  this  section.  The  Commission  shall have exclusive
   jurisdiction with respect to any complaint under this section.

   [ 62 FR 48493 , Sept. 16, 1997, as amended at  63 FR 55962 , Oct. 20, 1998;  64 FR 33424 , June 23, 1999;  65 FR 58477 , Sept. 29, 2000;  69 FR 72047 , Dec. 10,
   2004]