Legal_Implications_of_Social_Media

Report
Nancy Rodgers
[email protected]
Twitter @rodgdog72
Ken Fellman
[email protected]
Twitter @kenfellman
Legal Implications of
Social Media
e-NATOA
January 12, 2015
Captioning’s Regulatory History

1990 Television Decoder Circuitry Act (TDCA)


1992 - FCC Regulations


FCC adopts technical standards for closed captioning to implement
TDCA
1996 - The Video Programming Accessibility Act (part of the
Telecommunications Act of 1996)


Required all TVs (>13”) to receive & display captions by 1993
Required the FCC to set rules/implement schedules for TV captioning
1998 - 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 2nd 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.


1990 - ADA passed




Prohibition on discrimination; reasonable modification mandate. 28 C.F.R.
§ 35.130(b)(7).
Local gov’ts must take steps to ensure effective communication, using
auxiliary aids where necessary. 28 C.F.R. §§ 35.160(a) and (b).
“Auxiliary Aids” includes closed captioning. 28 C.F.R. § 35.104
2010 - Revised Dept. of Justice Regulations


Title II applies to public entities.
1991 - Dept. of Justice Regulations


Exception: federally funded public service announcements
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.


Regulations



Each federal agency has its own set of Section 504 regulations.
E.g.: Department of Education. 34 C.F.R. § 104.44(d).
Typical regulatory requirements include:



Section 504 does not specifically mandate closed captioning.
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
e-NATOA, 1/12/2015
Video via Internet
Protocol
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


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)(8)
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. 2014 Report and Order

Captioning is still a Video Program Distributor (VPD) requirement


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


FCC declined to shift compliance from VPDs to programmers (for now)
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. 2014 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.



Does not apply to clips posted on third-party websites / apps (a
subject of the FNPRM) or to archived programming.
Compliance deadlines:




“If it is captioned on TV, it should be captioned on the Internet.”
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, 1/12/2015
Which Law Governs?
Which Agency Governs?
Local
government
programming
ADA*
Section
504
FCC Regs. FCC Regs. FCC Regs.
TV
Internet
Video Clips
Yes
Yes – 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-1.2000.
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?
Program on TV
ADA
Section
504
FCC Regs. FCC Regs. FCC Regs.
TV
Internet
Video Clips
Yes
Yes (federally
Not right now
(depends on the
FNPRM)
funded
programs)
Program on Local Yes
Govt. Website
Yes (federally
Yes (if
funded
programs)
captioned on TV)
Video clips on
Local Govt.
Website
Yes
Yes (federally
Yes (if captioned
funded
programs)
on TV)
Videos (full
length or clips)
on third-party
sites
Yes
e-NATOA, 9/8/2014
Yes (federally
Yes (if full
funded
programs)
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
303-320-6100
[email protected]

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