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ODHHS Information and Tech Assistance
Categories:Technology, Captioning 
Captioning Becomes Mandatory:
Slowly but Surely
(Source: Gary Robson)
Ever since captioning began in the U.S., it has been something companies do because they want to, not because they have to. With a few exceptions, captioning has never been required by law. On Thursday, August 7, 1997, a new ruling from the FCC changed all that.
The History of Captioning in the U.S.
Subtitling ("open captioning") of movies and instructional videos has been around for a long time. Pilgrim Imaging started open captioning for the deaf in 1960, for the Captioned Films for the Deaf Program, under the Dept. of Health, Education & Welfare. The first nationally broadcast open-captioned program was WGBH´s The French Chef, with Julia Child, which aired on PBS on August 5, 1972.
Closed captioning followed in 1980, with shows like The ABC Sunday Night Movie, NBC´s The Wonderful World of Disney, and PBS´s Masterpiece Theater. Also that year, IBM became the first company to closed-caption a television commercial.
The following year, 1981, marked the beginning of closed-captioned home video. We saw Close Encounters of the Third Kind, Chapter Two, and The China Syndrome, among others.
Realtime captioning hit national television in 1982, when Marty Block (then working for the National Captioning Institute) went on-the-air during the Academy Awards show.
Captioning in the beginning was a laborious and costly process. There were few commercial tools available, so each captioning company had to create their own captioning systems. The majority of the captioning then was paid for by government grants and non-profit organizations.
Despite those conditions, captioning expanded to the point where virtually all of network prime-time programming was captioned in the early 90´s. All of the network news, and a noticeable percentage of local news now has captioning. The overwhelming majority of new home video releases are captioned. But that´s not enough.
Previous Captioning Laws
The Americans with Disabilities Act was the first American law to explicitly address captioning. It did mandate captioning of public service announcements (PSAs) that were funded with government money. This wasn´t a big step, but it was a step forward nonetheless. Other captioning requirements may have been implied by the ADA, but the vague phraseology made everyone hesitant to test its captioning mandates in court. Overall, the ADA had very little effect on captioning in this country.
The next law regarding captioning had a major effect on the industry. The Television Decoder Circuitry Act required all television sets sold in the U.S. to contain caption decoder chips. When the TDCA was enacted in 1990, there were roughly 500,000 caption decoders in the country. By the time it took effect in July of 1993, Zenith had sold over a million television sets with caption decoders in them. That´s a gigantic leap. The number of decoders in American households tripled before the law even took effect.
That was nothing compared to what happened after July of 1993. Roughly 1.5 million televisions are sold in this country every month, and all of them now have decoders. The number of TVs with decoders installed in American homes every month is the same as the total number that existed when the TDCA took effect. It was this massive proliferation of caption-capable televisions (an estimated 80 million have been sold to date) that set the stage for the August FCC ruling.
The Telecommunications Act of 1996
In 1996, our government passed sweeping new laws affecting the broadcast and cable industries. The Telecommunications Act of 1996 was complex, and captioning was just one tiny part of it.
Like the ADA, this act was not very specific about its mandate to require captioning. It says only that regulations will be implemented to ensure that "video programming first published or exhibited after the effective date of such regulations is fully accessible through the provision of closed captions."
Unlike the ADA, it empowered the Federal Communications Commission (FCC) to interpret the act and enforce it. This is precisely what happened when the FCC implemented Section 305. The full Report and Order that was issued on August 22 is a massive and rambling document, with over 300 numbered paragraphs. It does what the Congress wanted it to do: it mandates captioning.
Specifically, the FCC´s ruling, which takes effect on January 1, 1998, provides an eight-year phase-in for captioning of "new" programming (programs that air for the first time after the ruling takes effect). During the phase-in, they provide these milestones:
  • 5 hours per day of captioning after 2 years  
  • 10 hours per day of captioning after 4 years  
  • 15 hours per day of captioning after 6 years
At the end of that eight-year period (as of January 1, 2006), 95% of all new programming must be captioned. This is a compromise from the 100% called for in the preliminary rulemaking. There is no specific mention of which five hours per day must be captioned by January 1 of 2000. Some stations may choose to caption their news, while others caption talk shows or sitcoms.
"Old" programming, which airs before the law takes effect, has no phase-in. There is no captioning requirement at all for ten years, after which 75% of the old programming must be captioned. Technically, a broadcaster could caption no old programs at all for nine years, and do it all the last year.
Weasel Clauses
Like most laws, the FCC ruling is riddled with exceptions. They provided numerous weasel clauses to allow stations to get out of captioning their programming. No captioning is required at all for:
  • Programs in foreign languages. Non-English programming was exempted largely because captioning companies bemoaned the lack of non-English realtime captioners. Unfortunately, the FCC failed to see the difference between non-English offline captioning, which is readily available, and non-English realtime captioning, which is quite rare.  
  • "Non-vocal" music programming. Since programs like symphony or instrumental jazz have no words, captioning them doesn´t make sense. Note that this does not exempt music with lyrics, such as the vast majority of MTV programming.  
  • Public service announcements. PSAs are expected to be addressed in a separate ruling. As we mentioned above, captioning of government-funded PSAs is already required by the ADA.  
  • Commercials. The FCC expects pure market pressure to drive advertisers here. If they don´t caption, deaf and hard-of-hearing people don´t buy their products.  
  • Late-night programming. Captioning is not required on programs aired between 2:00am and 6:00am. Stations that broadcast in multiple time zones can pick any four-hour period in the middle of the night, as long as it doesn´t go any earlier than midnight or later than 7:00am in any time zone.  
  • Programming from "new networks." Any broadcast network less than three years old is completely exempt from these captioning rules.  
  • Small video programming providers. Any video programming provider with less than $3 million per year in gross revenues is completely exempt. If the broadcaster is owned by a larger company, only the sales of the broadcaster are counted, not its parent company.  
  • Undue economic burden. We heard these words in the ADA as well. No broadcaster will be required to spend more than 2% of its annual gross revenues on captioning. To put this in perspective, consider a station that makes $3,000,000 per year. This is the smallest station that would be required to caption. The station may not be forced to spend more than $60,000 per year on captioning, which would be barely adequate to pay for one hour per day of realtime.  
  • Home video. The FCC ruling applies only to broadcast television, not to videotapes or movies.
The FCC was willing to step up to the plate and require that the caption signal be of high-enough quality for your caption decoder or television set. They were not willing to define quality requirements for the caption content.
The FCC correctly identified this as a two-edged sword. If they do not set certain quality standards, then a station can deliver virtually illegible and unusable captions, and claim to meet the requirements. If they do set quality standards, then the FCC becomes embroiled a never-ending stream of arguments concerning whether the captioning on a particular program is "good enough." They chose to avoid that particular pitfall, and allow the industry to regulate its own caption content quality.
The Reverse Weasel
One obvious negative potential of the new ruling was predicted and planned for. Under the new law, a station is required to have roughly 25% of its programming captioned by January 1, 2000, and 50% by January 1, 2002. What if the station already captions 30% or 40% of its programs? Does this mean they can stop captioning entirely for two years and build back up after that?
Thankfully, no. There is a "no backsliding" clause in the ruling that prohibits a video program provider from reducing its level of captioning. To quote directly from the FCC ruling, "We also will require video programming providers to continue to provide closed captioning at a level substantially the same as the average level of captioning that they provided during the first six months of 1997, even if the amount of captioned programming exceeds that required under the benchmarks."
To Realtime or Not To Realtime
During the public comment phase of the FCC ruling, many broadcasters complained about the cost of realtime captioning compared to the virtually free process of connecting their TelePrompTer system to the caption encoder. Granted, that will leave about half of the typical newscast uncaptioned, but it´s cheap and easy.
The FCC explicitly states that Electronic News Room (ENR) captioning, such as the aforementioned TelePrompTer scenario, is an acceptable way to caption a newscast. Of course, if only half of a one-hour newscast has captions, then only a half-hour will count toward the station´s total captioning quota.
Although not specifically addressed in the ruling, the "no backsliding" provision mentioned above may well apply here. The logic is that most deaf viewers find the ENR method unacceptable, thus a station that uses realtime captioning now would not be maintaining "substantially the same" level of captioning if they switched to ENR.
Got a Problem With That?
An unenforced law might as well not be a law. The FCC did put some teeth into their rulings. If you have a complaint about captioning, you must address the problem in writing with the network, station, cable company, or satellite company and give them a chance to respond. Only then may you file your complaint with the FCC itself. The FCC reserves the right to impose penalties. One penalty specifically mentioned in the ruling is requiring the video programming provider to caption more than the ruling mandates. This is one of the most appropriate penalties ever set forth: If you don´t caption enough, you may have to provide extra captioning!
If you see uncaptioned programs on your set at home, how do you know where to direct your complaint? The first stop is the video provider. If you have cable TV or a satellite dish, then the company you write your check to is your video provider. If you get your TV signal from a broadcast station, the station is your video provider. Either way, your video provider is not allowed to take the captions off a program. If the program was originally captioned, but the captions were stripped along the way, complain directly to the TV station, cable company, or satellite company.
If the program was never captioned in the first place, then your video provider will tell you who is responsible, and you can go directly to the source.
Hitting Close to Home
"How does this affect me?" you ask. As we build toward virtually all live programming being captioned, we will need to build a pool of qualified captioners many times larger than the existing force. This means job opportunities. Just about every major captioning company in the country is hiring.
As a profession, we have eight years to build a workforce capable of captioning tens of thousands of hours of live programming every week. We need to make sure there are captioning curricula in our court reporting schools. We need to test and certify captioners. We need to get the word out to the broadcast industry that the National Court Reporters Association is ready to meet the challenge.
As an individual, you need to consider your alternatives. In some ways, captioning relieves you of the burdens of court reporting. There are no transcripts, no arguing attorneys, and no 60-mile drives to get to a deposition that canceled when nobody told you. On the other hand, realtime captioning is a stressful and exacting profession, where every word you write is visible by thousands or millions of people immediately, and you don´t have the luxury of sending out a clean copy later. An attorney might forgive starting five minutes late because you were caught in traffic. Broadcasters will not forgive missing a portion of a broadcast. Depositions and court sessions usually happen during regular business hours on weekdays. Captioning happens on the 5:00am news and the 11:00pm news.
Broadcast captioning is not the profession for everyone. With the sweeping regulatory changes taking place, however, it will be an option for many. Are your quality and your attitude up for the challenge? If so, next month´s Journal of Court Reporting will show you what it takes to get a job in the captioning business.
Gary Robson is the chairman and chief technology officer for Cheetah Systems Inc., and author of the recently released bookInside Captioning, which is available through NCRA by calling 800-272-6272.