§  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 § 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.

   (i) Analog video programming that is first published or exhibited on or
   after January 1, 1998.

   (ii) Digital video programming that is first published or exhibited on
   or after July 1, 2002.

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

   (ii) Digital video programming that was first published or exhibited
   before July 1, 2002.

   (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 § 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) Complaints concerning an alleged
   violation of the closed captioning requirements of this section shall
   be filed with the Commission or with the video programming distributor
   responsible for delivery and exhibition of the video programming within
   sixty (60) days of the problem with captioning. 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.

   (2) Complaints filed first with the Commission will be forwarded to the
   appropriate video programming distributor. The video programming
   distributor must respond in writing to the Commission and the
   complainant within 30 days of the receipt of the complaint from the
   Commission.

   (3) Complaints sent to a video programming distributor regarding
   programming 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,
   shall be forwarded by the video programming distributor within seven
   (7) days of receipt to the entity responsible for closed captioning of
   the programming at issue. The video programming distributor must also
   notify the complainant and the Commission that it has forwarded the
   complaint. Entities receiving forwarded complaints must respond in
   writing to the complainant within 30 days of the forwarding date of the
   complaint.

   (4) If a complaint is first filed with the video programming
   distributor, the video programming distributor must respond in writing
   to the complainant within thirty (30) days after receipt of a closed
   captioning complaint. If a video programming distributor fails to
   respond to the complainant within thirty (30) days, or the response
   does not satisfy the consumer, the complainant may file the complaint
   with the Commission within thirty (30) days after the time allotted for
   the video programming distributor to respond. If a consumer re-files
   the complaint with the Commission (after filing with the distributor),
   the Commission will forward the complaint to the distributor, and the
   distributor shall respond to the Commission and the complainant within
   thirty (30) days of receipt of the complaint from the Commission.

   (5) 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.

   (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.

   (i) Contact information . (1) Video programming distributors shall make
   available contact information for the receipt and handling of immediate
   closed captioning concerns raised by consumers while they are watching
   a program. Programming distributors must designate a telephone number,
   fax number, and e-mail address for purposes of receiving and responding
   immediately to any closed captioning concerns. Distributors shall
   include this information on their Web sites (if they have a Web site),
   in telephone directories, and in billing statements (to the extent the
   distributor issues billing statements). Distributors shall keep this
   information current and update it to reflect any changes within 10
   business days for Web sites, by the next billing cycle for billing
   statements, and by the next publication of directories. Video
   programming distributors should ensure that any staff reachable through
   this contact information has the capability to immediately respond to
   and address consumers' concerns. To the extent that a distributor has
   personnel available, either on site or remotely, to address any
   technical problems that may arise, consumers using this dedicated
   contact information must be able to reach someone, either directly or
   indirectly, who can address the consumer's captioning concerns. This
   provision does not require that distributors alter their hours of
   operation or the hours during which they have staffing available; at
   the same time, however, where staff is available to address technical
   issues that may arise during the course of transmitting programming,
   they also must be knowledgeable about and be able to address closed
   captioning concerns. In situations where a distributor is not
   immediately available, any calls or inquiries received, using this
   dedicated contact information, should be returned or otherwise
   addressed within 24 hours. In those situations where the captioning
   problem does not reside with the distributor, the staff person
   receiving the inquiry should refer the matter appropriately for
   resolution.”

   (2) Video programming distributors shall make contact information
   available for the receipt and handling of written closed captioning
   complaints that do not raise the type of immediate issues that are
   addressed in paragraph (i)(1) of this section. The contact information
   required for written complaints shall include the name of a person with
   primary responsibility for captioning issues and who can ensure
   compliance with our rules. In addition, this contact information shall
   include the person's title or office, telephone number, fax number,
   postal mailing address, and e-mail address. Distributors shall include
   this information on their Web sites (if they have a Web site), in
   telephone directories, and in billing statements (to the extent the
   distributor issues billing statements). Distributors shall keep this
   information current and update it within 10 business days for Web
   sites, by the next billing cycle for billing statements, and by the
   next publication of directories.

   (3) Video programming distributors shall file the contact information
   described in this section with the Chief of the Disability Rights
   Office, Consumer and Governmental Affairs Bureau, or by sending the
   information to CLOSEDCAPTIONING_POC@fcc.gov . After compiling and
   posting the list on the FCC's Web site, Commission staff shall prepare
   a Public Notice advising consumers and other interested parties how to
   obtain access to the contact information. This information shall also
   be available by telephone inquiry to the Commission's Consumer Center.
   Distributors shall notify the Commission each time there is a change in
   any of this required information within 10 business days.

   [ 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;  74 FR 1604 , Jan. 13, 2009;  74 FR 46703 , Sept. 11, 2009]

   Effective Date Note1:   At  74 FR 1604 , Jan. 13, 2009, § 79.1 was amended
   by revising paragraphs (g)(1) through (g)(5), and by adding paragraph
   (i). These paragraphs contain information collection and recordkeeping
   requirements and will not become effective until approval has been
   given by the Office of Management and Budget.

   Effective Date Note2:   At  74 FR 46703 , Sept. 11, 2009, paragraph
   (i)(1) was revised. This paragraph contains information collection and
   recordkeeping requirements and will not become effective until approval
   has been given by the Office of Management and Budget.