2019 Closed Captioning Update

The CVAA and FCC go hand-in-hand. A review of their latest rules and rulings is preventive maintenance.

Broadcasters have been captioning TV for decades. The CVAA says online video that has previously aired on television must have captioning “of at least the same quality as when such programs are shown on television." The following captioning information was provided by 3Play Media.

CVAA is the Twenty-First Century Communications and Video Accessibility Act, passed by Congress in 2010. It is made up of two parts. The first part makes products and services using broadband accessible to people with disabilities, making smart phones usable for blind and visually impaired people, as well as deaf and hard of hearing people. The second part focuses on making it easier for people with disabilities to view video programming on television and the Internet. This includes video streaming sites that distribute TV shows online such as Netflix, Amazon, and Hulu.

The FCC sets rules for closed captioning and it addresses captioning content quality issues. The rules apply to all television with captions, and requires that they meet the following standards:

  • Accuracy: Captions must match the spoken words in the dialogue and include background noises and other ambient sounds to the best ability.
  • Timing: Captions are required to be synchronized with their corresponding spoken words and sounds to the greatest extent possible. They must also be displayed at a speed that can be read by viewers.
  • Completeness: Captions must run from the beginning to the end of the program to the fullest extent possible.
  • Placement: Captions should not block other important visual content on the screen, overlap one another or be cut off by the edge of the screen.

While the FCC ruling applies specifically to television, FCC quality standards for television closed captioning directly impact the standard for online video as well. The CVAA requires that online video that previously aired on television have captioning “of at least the same quality as when such programs are shown on television.” Therefore, by extension, the FCC’s quality standards impact online video.

The ADA

Title III of the Americans with Disabilities Act (ADA) also applies to entertainment. This law ensures that individuals are not discriminated against because of disability with regards to the full and equal enjoyment of the goods and services of any place of public accommodation. In the past, “a place of public accommodation” referred to brick and mortar facilities, but recently has broadened to include online‐only businesses such as streaming services.

Online video accessibility has become a vital business practice and a legal necessity covered by the ADA.

Online video accessibility has become a vital business practice and a legal necessity covered by the ADA.

The broadening of this term is a result of several recent lawsuits including the landmark suit of National Association of the Deaf (NAD) vs. Netflix. This specific case resulted in two major takeaways:

First, online video accessibility can no longer be ignored. Second, the court’s determination that Netflix’s streaming video service is considered a “place of public accommodation” potentially extends the ADA to all organizations that publish video.

Since then, several other lawsuits have arisen regarding the accessibility of online video streaming. Amazon struck a deal with the National Association of the Deaf to ensure that their library of over 190,000 TV shows and films would get closed captioning. Although Amazon Prime Video was already fully captioned, this agreement targeted Amazon’s archive of Instant Video, as well new content to Prime Video.

In addition, Hulu reached a settlement agreement with the NAD that ensured 100% of full-length English and Spanish videos would be captioned. They also agreed that all captions on Hulu content would comply with the FCC captioning standards.

As media and entertainment continues to expand and be at our disposal, the accessibility of these products and services will have to keep up. Want to better understand what accessibility laws apply to you? Take this quiz to find out!

Closed Captioning Exemptions

With the CVAA and FCC imposing stricter guidelines, both in terms of what online video material must be captioned and in terms of the quality required for those captions, you might be wondering, who is exempt from the FCC’s captioning rules? There are basically two types of exemptions: self-implementing and economically burdensome.

Economically Burdensome Exemption

The Commission can be petitioned for an economically burdensome exemption from closed captioning rules if compliance with the rules would be economically burdensome. The petition must be supported by sufficient evidence. The guidelines for filing an FCC petition for an exemption from closed captioning require the petitioner to provide the details of the program they are requesting exemption from closed captioning for, including the cost of closed captioning and the impact of captioning their programming, as well as a detailed explanation of the petitioner’s financial resources, including proof of having sought programming distributer assistance and additional sponsorships.

Self-Implementing Exemption

To qualify for a self-implementing exemption, the provider does not need to file a petition; the provider must simply meet one or more of the FCC’s thirteen criteria:

  1. Programming is subject to contractual captioning restrictions
  2. Captioning requirement has been waived due to economically burdensome exemption
  3. Programming is in a language other than English or Spanish
  4. Programming is primarily textual
  5. Programming is distributed between 2 a.m. and 6 a.m. local time
  6. Interstitials, promotional announcements, and public service announcements that are 10 minutes or less in duration
  7. EBS (Educational Broadband Service) programming
  8. Locally produced and distributed non-news programming with no repeat value
  9. Programming on new networks for the first four years (new guidelines are re-evaluating this exemption)
  10. Primarily non-vocal musical programming
  11. Captioning expense in excess of 2% of gross revenues
  12. Channels producing revenues under $3,000,000
  13. Locally produced educational programming

Material provided by Elisa Edelberg, 3Play Media

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