FCC Invalidates Captioning Waivers For Over 300 Broadcasters

The Federal Communications Commission has reversed over 300 closed-captioning waivers for primarily religious nonprofit broadcasters, saying it was wrong in 2006 to have extended what was in effect a blanket waiver to nonprofits that indicated the captioning requirement was an undue burden.

In an Oct. 20 order, the commission ruled that the criteria under which the those waivers were granted, the majority (238) -- without any notice or comment -- was "not supported by the [1996 Telecommunications] Act, its legislative history, or the Commission's implementing regulations and Orders."

Those criteria were that they were nonprofits and that the programming itself was "not remunerative."

"[W]e conclude that it was not appropriate to grant exemptions in reliance on the non-commercial nature and lack of remunerative value of Angler's and New Beginning's programming. Rather, in conducting the undue burden analysis, all of the petitioners' available resources should have been taken into consideration, not just the resources allocated for the programs for which exemptions were sought," the FCC said in reversing the waivers.

It also said that there was no categorical exemption for nonprofits and because the waivers had established a presumption that the extent to which captioning might curtail other activities was an appropriate factor in determining an undue burden.

The FCC said that those 300-plus could all re-file for individual waivers under the new standard.

"Providing closed captioning of video programming is essential to ensuring equal access to television programming by Americans who are deaf or hard-of-hearing Americans," said an FCC spokesman.

"The Commission's rules provide procedures for petitioning the Commission for an exemption from the closed captioning rules where compliance with the rules would be economically burdensome," said an FCC official on background. "This will expand access to television programming to millions more Americans while preserving the opportunity to apply for an exemption."

The FCC's reversal comes as it prepares to adopt rules for implementing the 21st Century Video Accessibility Act, which updates closed captioning and other accessibility technologies for the digital age.

"The FCC determined that the Media Bureau had used the wrong standard, and the wrong process, for considering requests for exemptions from TV closed captioning requirements," said National Religious Broadcasters senior vice president and general counsel Craig Parshall. "Hundreds of small and medium-sized broadcasters, many of them carrying Christian content, who had been granted exemptions are now get letters from the Commission directing them to go back to the drawing board and file new applications within 90 days. Our main concern is two fold: First, Christian communicators who can afford closed captioning need to do so, our message is too important not to share with the hearing impaired community. But second, the FCC and the Media Bureau need to make sure that the process is ultimately fair to the smaller TV folks, who are in the clutches of a financial stranglehold because of the economy."