September 17, 1998

Re: MM Docket No. 95-176 In the Matter of Closed Captioning and Video Description of Video Programming; Implementation of Section 305 of the Telecommunications Act of 1996, Order on Reconsideration

I believe that it is vital for persons with hearing disabilities to have full access to video programming. It simply is inexcusable in this day and age for video programming not to be available to our nation's 27 million Americans with hearing disabilities. As the role of video programming becomes even more important in our society, it becomes increasingly incumbent on this Commission to ensure that we fully implement Congress's mandate to make programming accessible to all Americans. I am very pleased that the order my colleagues and I adopt today makes a number of changes to the closed captioning rules that will further this statutory mandate.

Today's order makes significant changes in our closed captioning rules, including increasing the definition of full accessibility from 95% to 100% of all new nonexempt video programming, establishing a benchmark for the closed captioning of pre-rule programming of 30% beginning on January 1, 2003, and requiring that Spanish language programming be closed captioned. These changes bring us closer to satisfying our statutory obligation under Section 713 that video programming be fully accessible.

I also am pleased that the Commission's decision today requires the largest video programming providers to use real time captioning to meet our benchmark requirements. However, because many of these providers may be able to meet these requirements without counting their news programming, I want to stress that I believe that news can and should be captioned regardless of whether the benchmark requirements have been met. Because important information often is lost when electronic newsroom (ENR) software is used to create captions, I strongly believe that ENR should not be the method of choice for captioning news and other live programming and should only be used when no other alternative is available. After all, television news programming is vital for the dissemination of information to all Americans. Through this information, we participate in our communities and make decisions that affect our lives. We learn what is going on in the world, our country, our home towns. News is essential to the democratic process and to being part of an informed electorate. Alternative sources of information do not provide the immediacy of television. Therefore, I urge video programming providers to give news programming the highest priority when allocating resources for captioning.

Beyond general and routine news programming, I am particularly concerned about the lack of information for persons with hearing disabilities in emergency situations where life and safety issues are involved and immediate action may be necessary. This is an issue that was recognized in the Report and Order and is being considered in a separate proceeding. I expect that the Commission will consider appropriate action in the next few months.

I also want to stress the importance that I will place on enforcement of our closed captioning rules. Our enforcement process requires that complaints first be directed to the video programming distributors in an effort to achieve a resolution that serves the needs of persons with hearing disabilities. To the extent that compliance can be achieved through informal discussions between the parties, I believe that we will accomplish our goal of serving the needs of persons with hearing disabilities and ensuring full accessibility to video programming. However, to make this process a success, video programming distributors will need to make their operations accessible to persons with hearing disabilities. Specifically, distributors and programmers should have TTY capability or staff trained and available to respond to inquiries received through the telecommunications relay service (TRS). They also should have customer service representatives knowledgeable regarding the closed captioning rules and the operator's efforts to comply. Each distributor and programming network should name a specific contact on these issues so that any complaints are resolved quickly and fairly. Distributors and programmers can also post information about closed captioning on their web sites, including the name of a staff contact. I also encourage distributors to address consumer complaints in a timely and effective manner. I do not think, for example, that it is necessary for a distributor to wait until after the close of a calendar quarter to respond to a complaint that involves captioning that does not go to the hourly requirements.

I do express one point of departure from today's order. I believe that it would have been appropriate for the Commission to require that nationally distributed advertisements be captioned at some point during the transition period. It is my view that the better reading of Section 713 results in advertising not being excluded from the definition of video programming. While I have concluded that legal arguments may be made to support either the inclusion or exclusion of advertising from this definition, I think the better argument includes advertising within the scope of video programming. In addition, while Congress provided an exception to its mandate that video programming be fully accessible for cases where a captioning requirement would impose an economic burden, I do not believe that captioning nationally distributed advertisements can be seen as an economic burden given the amount of money generally spent to develop these national advertisements. As a policy matter, I am concerned about the intense frustration of persons with hearing disabilities who are watching captioned programs where the advertisements are not captioned. Advertisements disseminate information to the public, and may have an even greater relevance for persons who are otherwise cut off from the rest of society in many ways. I note that some advertisers have chosen to caption their commercials without a regulatory requirement and I sincerely hope that others will see the benefits of attracting the business of the millions of consumers with hearing disabilities.

I also wish to note that I look forward to bringing an order before the Commission in the next few months that will bring our Section 255 proceeding to a close. This proceeding is vitally important for all Americans because allowing persons with disabilities to more fully participate in our society enriches the lives of all Americans.