Congress passed the 21st Century Communications and Video Accessibility Act (CVAA) to update our nation’s telecommunications protections for people with disabilities. Signed into law in 2010, the CVAA follows a string of laws— passed in the 1980s and 90s—that were designed to ensure that telephone and television services would be accessible to all Americans with disabilities. These laws were not able to keep up with the fast paced technological changes that our society has witnessed over the past decade, however. The CVAA included new measures to enable people with disabilities to access broadband, digital and mobile innovations—the emerging 21st century technologies for which the act is named.
Among the new legal requirements imposed by the CVAA is that certain content delivered via the internet be closed captioned. This may leave student journalists wondering – does my web-only newscast need to be captioned? If my broadcast class creates content and posts it on the internet, do we have to caption it? Adding to this confusion is recent legal action initiated by advocates for the deaf and hard of hearing against Harvard and MIT. These advocates argue that the Americans with Disabilities Act (“ADA”) requires that additional online content – such as lectures, massive open online courses (“MOOCs”), and podcasts – be made accessible via captions.
So, what needs to be captioned, and what doesn’t?
Roots of Today’s IP Closed Captioning Regulations
The Federal Communications Commission (“FCC”) is responsible for promulgating rules regarding captioning and enforcing those rules, at least as far as they pertain to programming within the FCC’s jurisdiction. In 1998, the FCC adopted rules mandating closed captioning of video programming aired on television and established deadlines for a phase-in of captioning over the years that followed. The rules applied (and continue to apply) to video programming distributors, such as television broadcasters and cable operators. The captioning phase-in deadlines established by the FCC in 1998 have all passed, and today all “new” programming1 aired on television, whether in English or Spanish, must be captioned (unless the programming is subject to one of the FCC’s specific captioning exemptions).
Pursuant to the CVAA, the FCC in 2012 expanded its closed captioning rules to cover full-length video programming delivered using Internet Protocol (“IP”). Then, in 2014, the FCC amended its captioning rules again, this time to require captioning of certain IP-delivered video clips.
Because of the way video programming is defined, and because the FCC only regulates certain kinds of entities, not every video on the internet is governed by the FCC. In fact, the FCC’s captioning rules likely do not apply to lectures, MOOCs, and podcasts posted online by colleges and universities, which is why advocates for the deaf and hard of hearing have filed suit under the ADA to mandate captioning for this type of content. More on that later.
The FCC’s “Aired on TV” Trigger for “Video Programming”
So, what types of programming delivered via the internet must be captioned? First, the programming must be made available by either a Video Programming Distributor (“VPD”) or a Video Programming Owner (“VPO”). VPDs are entities that make video programming available directly to end users via IP distribution. VPOs are entities that either: (i) license video programming to a VPD; or (ii) act as the VPD and possesses the right to license the video programming to a VPD. Second, the programming must be “video programming,” which the FCC defines as “[p]rogramming provided by, or generally considered comparable to programming provided by, a television broadcast station, but not including consumer-generated media.”2 From there, what needs to be captioned depends on whether the programming constitutes a full-length video program, or a video “clip.” Common to both full-length programming and video clips, however, is the requirement that the content have aired on television in order for the captioning rules to apply.
Full-Length Video Programming
“Full-length video programming” is basically any programming except “video clips or outtakes.”3 The actual length of the program doesn’t matter. For example, a full-length program could be an hour-long in-depth analysis of gun violence in America, or a five-minute summary of the day’s news. So long as the program isn’t chopped-up into pieces, the FCC will consider it to be a full-length program.
The FCC’s IP captioning rules only apply to full-length programming that aired on television in the United States with captions after April 30, 2012. Note that there are four elements here – the programming must have (1) aired on television, (2) with captions, (3) in the United States, (4) after April 30, 2012.4 If any of these elements aren’t met, the programming need not be captioned. For example, if a media class at a local university or college produces a 10-minute news program that it then distributes exclusively via the internet, the news program need not be captioned.
The IP captioning rules adopted by the FCC in 2012 originally applied only to full-length programming, exempting video clips from the captioning requirements unless the clips in the aggregate constituted all, or substantially all, of the program.5 In 2014, however, the Commission amended its rules to require captioning of video clips, regardless of whether the clips, considered in the aggregate, would constitute full-length programming. Importantly, the IP captioning rules for video clips continue to apply only to video clips that aired on television in the United States with captions after the applicable compliance deadline.6 As with the IP captioning rules for full-length video programs, there are four elements to the IP captioning rules for video clips – the clips must have (1) aired on television, (2) in the United States, (3) with captions, (4) after a certain date (more on that below). If the clip (either by itself or as part of a longer program), never aired on television in the U.S. with captions, it need not be captioned when distributed via the internet.7
The IP captioning rules for video clips haven’t yet taken effect, but they will in 2016 according to the following schedule:
- By January 1, 2016, VPDs and VPOs must provide captions for “straight lift” clips of pre-recorded programming. “Straight lift” clips contain a single excerpt of a captioned television program with the same video and audio that was presented on television.
- By January 1, 2017, montages of straight lift clips must be captioned.
- Finally, by July 1, 2017, VPDs and VPOs must provide captioning for clips of live and near-live programming; however, VPDs and VPOs will have a grace period of 12 hours for live programming and 8 hours for near-live programming. “Live” and “near-live” programming is programming shown or aired on television within 24 hours of when it was performed and recorded.
ADA Captioning Requirements
As discussed earlier, not all video content available on the internet is regulated by the FCC. That’s why, in February 2015, advocates for the deaf and hard of hearing filed lawsuits against Harvard and M.I.T. in federal court arguing that the universities violated the ADA and Rehabilitation Act of 1973 by failing to provide closed captioning of their online lectures, courses, podcasts, and other educational materials.8
The ADA and Rehabilitation Act do not discuss captioning of online content directly. Rather, they are broader statutes that seek to address disability discrimination. Most of us are familiar with the ADA, which, among other things, requires certain buildings to be handicapped accessible, such as by having wheelchair ramps and elevators.9 More broadly, the ADA requires that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns . . . or operates a place of public accommodation.”10 The Rehabilitation Act is related. Section 504 of that act specifies that: “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….”11
In the lawsuits, the advocates argued that Harvard and M.I.T. violated the ADA and Rehabilitation Act because much of the online content produced by those universities or made available on university platforms has no captioning, or has captioning that is so inaccurate as to make the content inaccessible to deaf or hard of hearing individuals. “Just as buildings without ramps bar people who use wheelchairs,” the advocates argued, “online content without captions excludes individuals who are deaf or hard of hearing.”
As Harvard and M.I.T. point out in their responses to the advocates’ complaints, online videos and audio files, and even the modern Internet itself, did not exist when Congress enacted the ADA and Rehabilitation Act. Therefore, because the statutes, the regulations that implement them, and the agencies that enforce them (i.e., the Department of Justice (“DOJ”) and Department of Education (“DOE”)), are silent as to whether or how online content should be made accessible to the deaf and hard of hearing, Harvard and M.I.T are under no legal obligation to provide captioning.12 In addition, Harvard and M.I.T. argue that the courts should dismiss the lawsuits because the DOJ very soon is expected to promulgate rules specifying accessibility standards for websites generally and online video content in particular.13 These rules would help colleges and universities to understand what needs to be captioned and when.
So what’s the lesson here?
Student journalists would likely be considered VPDs or VPOs under the FCC’s rules, and therefore the FCC’s closed captioning requirements would apply them – but only in two very limited circumstances. First, if student journalists produced a full-length program that aired on television in the United States with captions after April 30, 2012, that program must be captioned when uploaded to the web. Second, if student journalists produced video clips that aired on television in the United States with captions after the applicable compliance deadline, they must be captioned when posted online.
As to the ADA’s captioning requirements, although captioning of lectures, MOOCs and the like is not required by current law, it may not be long before colleges and universities are required to caption this kind of online content. To the extent feasible now, therefore, it’s a good idea to caption as much online content as possible.
Kathleen Kirby is a partner with Washington, D.C.-based Wiley Rein LLP, where she is chair of the media-law practice group, and is a former member of the SPLC Board of Directors.
Kathryne Dickerson is an associate in the Washington office of Wiley Rein, where her law practice includes advising broadcast clients on FCC compliance issues as well as legal issues involved in advertising.
1. There are two types of “new” programming. The FCC defines “new” analog programming as programming that was first exhibited on or after January 1, 1998. “Exhibited” includes any public showing—in a movie theater, on pay cable, home video, etc., not just on broadcast television. “New” digital programming is programming prepared or formatted for display on digital televisions that was first exhibited on or after July 1, 2002.
2. 47 C.F.R. § 79.4(a)(1). “Consumer-generated media” include home videos and the like.
3. Id. at (a)(2) (defining “full-length video programming” as “Video programming that appears on television and is distributed to end users, substantially in its entirety, via internet protocol, excluding video clips or outtakes.”).
4. Id. at (b)(i)-(iv).
5. For example, if you had a newscast broadcast on television with captions that included 20 stories, and you then posted clips of just five of those stories online, those five clips would not have needed to be captioned. By contrast, if you posted “substantially all” of the stories as clips so that in the aggregate a substantial portion of the newscast was online, then those news clips need to be captioned. Why? Because, when considered in the aggregate, the clips would qualify as “full-length programming.”
6. 47 C.F.R. § 79.4(b)(2).
7. The new rules also come with three important carve-outs. First, clips posted before the appropriate phase-in deadlines do not need to be captioned after the deadline passes. In other words, clips that are currently posted and that will be posted prior to the phase-in deadlines do not need captioning. Second, the rules do not currently apply to “advance video clips,” which are clips posted online after the phase-in deadline but before the clip airs on television. Third, the rules apply only when VPDs post clips on their own website or app, not when the clip is posted by third-party websites.
8. The cases, both of which were filed in the U.S. District Court for the District of Massachusetts, are NAD v. Harvard¸ case no. 3:15-cv-30023 and NAD v. MIT, case no. 3:15-cv-30024.
9. 42 U.S.C. § 12181, et seq.
10. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
11. 29 U.S.C. § 794(a).
12. In 2010, however, the DOJ and DOE issued a joint statement in which they expressed their concern that colleges and universities were violating the ADA by not making electronic book readers accessible to blind or low vision students. See Department of Justice and Department of Education Joint Statement, available at http://www.ada.gov/kindle_ltr_eddoj.htm. “A serious problem with some of these devices,” the DOJ and DOE wrote, “is that they lack an accessible text-to-speech function.” Id. Thus, “[r]equiring use of an emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilities–individuals with visual disabilities–is discrimination prohibited by the [ADA] and Section 504 of the Rehabilitation Act of 1973 …. unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner.” Id.
13. See Notice of Proposed Rulemaking, Accessibility of Web Information Services of State and Local Governments and Public Accommodations, 75 Fed. Reg. 43460 (July 26, 2010).