Legal Implications of Social Media e-NATOA January 12, 2015 Nancy Rodgers Ken Fellman

e-NATOA, 1/12/2015 Captioning’s Regulatory History  1990 Television Decoder Circuitry Act (TDCA)  Required all TVs (>13”) to receive & display captions by 1993  FCC Regulations  FCC adopts technical standards for closed captioning to implement TDCA  The Video Programming Accessibility Act (part of the Telecommunications Act of 1996)  Required the FCC to set rules/implement schedules for TV captioning  FCC Regulations on Closed Captioning  By 2006, 100% of all new video programming, unless exempt, is required to be closed captioned on TV.  Exemptions: locally produced, educational, governmental, general financial exemption, undue burden.  2000 / 2008 – FCC Revised Regulations on Closed Captioning  Adopted and revised technical standards

e-NATOA, 1/12/2015 Captioning’s Regulatory History  2010 – Twenty-First Century Communication & Video Accessibility Act  Extends closed captioning requirements to Internet programming  2012 – FCC IP Closed Captioning Order  Interpreting closed captioning requirements of the CVAA  Set forth an implementation schedule Which brings us to…. the present:  Feb. 20, 2014 – FCC Report and Order; FNPRM  Revised, clarified, and expanded quality standards, tech. compliance rules  Set forth “best practices” for video programmers  Seeks comments on additional measures to ensure access  July 11, 2014 – FCC’s CVAA 2 nd Order (“Video Clips Order”)  Extends requirements to IP video clips

e-NATOA, 1/12/2015 Other Laws and Regulations  Americans with Disabilities Act  The ADA does not specifically mandate closed captioning.  Exception: federally funded public service announcements  ADA passed  Title II applies to public entities.  Dept. of Justice Regulations  Prohibition on discrimination; reasonable modification mandate. 28 C.F.R. § (b)(7).  Local gov’ts must take steps to ensure effective communication, using auxiliary aids where necessary. 28 C.F.R. §§ (a) and (b).  “Auxiliary Aids” includes closed captioning. 28 C.F.R. §  Revised Dept. of Justice Regulations  No specific changes re closed captioning.  Late 2014?  NPRM re public entity websites and the ADA  RIN: 1190-AA65

e-NATOA, 1/12/2015 Other Laws and Regulations  Section 504 of the Rehabilitation Act of 1973  Prohibits disability discrimination in federal agency programs, programs receiving federal financial assistance. 29 U.S.C. § 794.  Section 504 does not specifically mandate closed captioning.  Regulations  Each federal agency has its own set of Section 504 regulations.  E.g.: Department of Education. 34 C.F.R. § (d).  Typical regulatory requirements include:  Program accessibility;  Effective communication with people who have hearing or vision disabilities.  Individuals with Disabilities in Education Act of 1990  Mandate to provide children with disabilities with special education and related services (such as captions)

e-NATOA, 1/12/2015 Current FCC Regulatory Framework Television Video via Internet Protocol

e-NATOA, 1/12/2015 Televised Programming 47 C.F.R. § 79.1 “Video programming distributors must provide closed captioning for nonexempt video programming that is being distributed and exhibited on each channel...” 47 C.F.R. § 79.1(b).

e-NATOA, 1/12/2015 Televised Programming  What is a “Video Programming Distributor”?  Any television broadcast station licensed by the Commission; and  Any multichannel video programming distributor, 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.  49 C.F.R. § 79.1(a)(11)  PEG channels are not licensed by the FCC and are not subject to the FCC’s jurisdiction as a licensed channel.  Would not fall under the definition of video programming distributor with respect to closed captioning.

e-NATOA, 1/12/2015 Televised Programming Exemptions from Television Captioning Requirements:  Locally Produce Programming:  Locally produced and distributed non-news programming with no repeat value  47 C.F.R. § 79.1(d)(8)  Educational Programming:  Instructional programming that is locally produced by public TV stations for use in grades K–12 and post secondary schools.  47 C.F.R. § 79.1(d)(13)  Note – check Dept. of Education Regulations  Governmental Programming:  No specific exemption for governmental programming. However, depending upon content, some governmental programming may qualify for the exemptions stated above.

e-NATOA, 1/12/2015 Televised Programming Exemptions cont.:  General Financial Exemption:  Channels that generate less than $3 million in revenues in the previous year are exempt.  47 C.F.R. § 79.1(d)(12)  See also 47 C.F.R. § 79.1(d)(11)  No requirement to caption if the cost to do so would exceed 2% of the channel’s gross revenue during the previous calendar year.  Undue Burden Exemption:  Allows a station to petition the FCC if providing closed captioning would be a significant difficulty or expense.  49 C.F.R. § 79.1(d)(2)

e-NATOA, 1/12/2015 Televised Programming Impact of the Feb Report and Order  Captioning is still a Video Program Distributor (VPD) requirement  FCC declined to shift compliance from VPDs to programmers (for now)  VPDs are required to request, in writing, that each programmer either:  Complies with the FCC’s captioning quality standards, or  Is exempt from the closed captioning rules.  Application of Best Practices  VPDs, programmers, and vendors expected to adhere to established “Best Practices”  $3 Million Revenue exemption applies separately to each programming stream on a multicast broadcast signal Effective Date: ~Jan. 15, 2015

e-NATOA, 1/12/2015 Televised Programming Feb FNPRM  Possible shift of some captioning regulatory compliance to programmers directly  Elimination of exemptions from closed captioning requirements, including:  Locally produced and distributed non-news programming with no repeat value  Channels producing less than $3 million in annual gross revenue  Comment period closed August 8, 2014 (extended)

e-NATOA, 1/12/2015 Video via Internet Protocol 47 C.F.R. § 79.4 “All nonexempt full-length video programming delivered using Internet protocol must be provided with closed captions if the programming is published or exhibited on television in the United States with captions.” If it is captioned on TV, it should be captioned on the Internet.

e-NATOA, 1/12/2015 Video via Internet Protocol  Different from TV captioning requirements, IP captioning requirements fall upon the video programming owners  “Video programming owner” is any person or entity that licenses video programming to a video programming distributor or video programming provider, or acts as the distributor or provider.  47 C.F.R. § 79.4(a)(4).  The TV captioning exemptions do not apply to IP closed captioning rules.  “Caption on TV = Caption on the Internet” is the rule even if the program or the channel was exempt from the television closed captioning rules but nevertheless captioned the program.

e-NATOA, 1/12/2015 Video via Internet Protocol  Timeline  New pre-recorded, live and near-live programming must be captioned immediately when added to an Internet library if shown on TV with captions.  Existing programs in a Internet library?  Within 45 days after program is shown on TV with captions if shown between March 30, 2014 – March 30, 2015  Within 30 days after program is shown on TV with captions if shown between March 30, 2014 – March 30, 2016  Within 15 days after program is shown on TV with captions if shown after March 30, 2016

e-NATOA, 1/12/2015 Video via Internet Protocol Impact of the July 2014 Video Clip Order  IP captioning requirements apply to video clips of any duration that are posted to a programming provider or distributor website or app if that content previously shown on TV with captions.  “If it is captioned on TV, it should be captioned on the Internet.”  Does not apply to clips posted on third-party websites / apps (a subject of the FNPRM) or to archived programming.  Compliance deadlines:  January 1, 2016: “straight lift” IP video clips  January 1, 2017: all newly posted IP video clip “montages,” or compilations of “straight lift” clips with previously televised and captioned content  July 1, 2017: clips of a time-sensitive nature – including live or near-live programming (such clips receive an 8- or 12-hour grace period).  Compliance deadlines might be extended if captioning technology does not develop as expected.

e-NATOA, 9/8/2014 Which Law Governs? Which Agency Governs? ADA*Section 504 FCC Regs. TV FCC Regs. Internet FCC Regs. Video Clips Local government programming YesYes – if a federally funded program No – but it may (depends on the FNPRM) Yes – if the program was captioned for TV Yes – if the clip was captioned for TV *ADA applies to “any department, agency, special purpose district, or other instrumentality of a State or local government.” Title II Tech. Asst. Manual II If your operation has both public and private (e.g. non-profit) features, consider these factors: 1)Are the operational funds public funds? 2)Are the employees considered govt. employees? 3)Does a govt. assist with property or equipment? 4)Is it governed by elected officials or a private board?

e-NATOA, 9/8/2014 Which Law Governs? Which Agency Governs? ADASection 504 FCC Regs. TV FCC Regs. Internet FCC Regs. Video Clips Program on TVYesYes (federally funded programs) Not right now (depends on the FNPRM) Program on Local Govt. Website YesYes (federally funded programs) Yes (if captioned on TV) Video clips on Local Govt. Website YesYes (federally funded programs) Yes (if captioned on TV) Videos (full length or clips) on third-party sites YesYes (federally funded programs) Yes (if full length and captioned on TV)

Getting captioning right… Quality Control Matters New Regulations Public Opinion The good ones go viral Entire Tumblr Page on “Caption Fails” #captionfail is a hash tag on Twitter Quality service to deaf, hard of hearing, and caption users.

Questions? Nancy Rodgers, Esq. Kissinger & Fellman, P.C. Denver, Colorado