Cable, Content Companies Clash on Closed Captioning Liability Proposal in FNPRM Comments

There is support among cable companies and AT&T for making video programmers liable for closed captioning production compliance, while content companies, like CBS and The Walt Disney Company, urged the FCC to reject such a “burden-shifting” model proposed by Comcast in reply comments on closed captioning requirements. Comments on the further notice of proposed rulemaking (FNPRM) were due this week.

Cable companies, including Cablevision, Charter and Mediacom, reiterated that programmers should be held directly accountable for captioning non-exempt programming. Making programmers directly liable “will better incent their compliance than the current contract/certification model,” they said in joint comments (http://bit.ly/1hecFW8). Doing so “will serve to improve consumers’ captioning experience and thereby advance the accessibility of video programming for people who are deaf and hard of hearing,” they said. The pay-TV companies supported either an enforcement model, like the one proposed by Comcast, or a “several liability model” advanced by DirecTV and Dish Network, they said.

The American Cable Association agreed with adopting a mechanism that shifts the burden from the video programming distributor (VPD) to the programmers “in the event that a VPD’s investigation of a complaint reveals that the problem lies with the video programmer rather than the VPD’s equipment,” it said (http://bit.ly/1fywrjP). The FCC should extend some of the responsibilities for compliance with its closed captioning quality standards for programming shown on television to video programmers, ACA said.

Comcast again said its proposal will lead to “prompt and efficient resolution of captioning issues, and thereby improve the overall captioning experience for consumers” (http://bit.ly/1hWx9lP). Comcast cautioned against leaving the programmers’ captioning responsibilities to be defined entirely by private contractual arrangements. Such arrangements are “too blunt and indirect an instrument to deal with the complex and nuanced issues involved in ensuring (and assessing) caption quality,” it said.

DirecTV and AT&T also supported Comcast’s burden-shifting proposal. While Comcast’s original proposal arose in a proceeding related to captioning quality, “the rationale for applying it in that context extends to all of the captioning rules,” DirecTV said (http://bit.ly/1jiC5WN). The framework proposed by Comcast would recognize the shared responsibility for delivering high quality closed captioning to users and the significant role that video programmers play in resolving closed captioning problems, AT&T said (http://bit.ly/1o44y39).

The record doesn’t justify shifting from a VPD-centric model, deaf and blind advocacy groups said. The groups include Telecommunications for the Deaf and Hard of Hearing (TDI) and the American Association of the Deaf-Blind. Instead, the FCC should extend its VPD-centric responsibility model “to the quality standards unless the record developed in this proceeding conclusively demonstrates the merits of a divided VPD/programmer model,” it said (http://bit.ly/1n3BYPw).

Content providers, including CBS, Time Warner and Viacom, urged the FCC to reject the Comcast proposal. That proposal would discourage collaboration and the prompt resolution of quality concerns, the companies said (http://bit.ly/1kpHQA9). The present allocation promotes the public interest “by incentivizing collaboration among the entities involved in providing closed captioning and prompt and effective resolution of consumer complaints,” they said.

Reply comments are due May 27. Comments on other issues in the FNPRM, like the use of offline captioning and fielding captioning complaints, are due June 25. The items raised in both comment proceedings are critical, said Blake Reid, assistant clinical professor of the University of Colorado’s Samuelson-Glushko Technology Law & Policy Clinic, which represents TDI. The responsibility proceeding is “a really discreet issue that’s totally critical to get the quality standards off the ground,” he said. The captioning rules “are not operative in a serious effect until someone bears responsibility,” he said. This doesn’t diminish the other issues, he said.