Cable Television

"The requirements for closed captioning are as follows:

1. As of June 30, 1992, the operator of each cable television system shall not take any action to remove or alter closed captioning data contained on line 21 of the vertical blanking interval: and
2. As of July 1, 1993, the operator of each cable television system shall deliver intact closed captioning data contained on line 21 of the vertical blanking interval, as it arrives at the headend or from another origination source, to subscriber terminals and (when so delivered to the cable system) in a format that can be recovered and displayed by decoders meeting 47 C.F.R. 15.119 of the Rules"
   

Section added by order in FCC Docket Nos. 91-169 and 85-38, effective June 30, 1992, 57 FR 11000. For report, see 70 RR 2d 679.

Cases Involving Captioning

The Supreme Court held that Section 504 of the Rehabilitation Act of 1973 does not require the Federal Communications Commission to review a public television station's license for renewal of applications applying special standards.

A telecast of a professional football game is not subject to the provisions of ADA Title IV (47 § 611) requiring close-captioning of public service announcements, since what is televised is not a public service, is not funded with public dollars, and is not provided by a public entity. The local blackout rule, whereby a professional football league's game cannot be telecast in the area have been sold out, is not actionable by individuals with hearing impairments under the ADA. The Court of Appeals for the Sixth Circuit in dismissing the case said that the league, team and sponsors are not employers that would be covered under Title I, nor are the broadcasts public accommodations under Title III or public services under Title IV.

"From the United States Law Week, 64 LW 3366, 11-21-95--95-598 Stoutenborough v. National Football League, Inc.:"

NFL blackout rule - Access to live event in place of public accommodation - Americans with Disabilities Act.
Ruling below (CA 6, 59 F.3d 580 1035):
Title III of Americans with Disabilities Act does not provide remedy for hearing impaired persons who complain that they are unlawfully discriminated against when they are denied access to live television broadcasts of professional football team's home games by National Football League's 'blackout' rule, which forbids live local telecast of home football games that are not sold out 72 hours before game time, while hearing people can listen to radio broadcast of blacked-out games, because neither NFL, football team, television networks, nor television stations fall within any of 12 'public accommodation' categories identified in Section 301(7) of statute, and prohibitions of Title III are restricted to 'places' of public accommodation, which, in turn, are limited to physical facilities; nor does Title IV of statute protect hearing impaired individuals in contect of television broadcast services, because, although Title IV amends 1934 Communications Act to accommodate hearing impaired persons in provision of telephone services, common carriers referred to in that title do not include television broadcasters.

Question presented: Is scope of public accommodations and telecommunications provisions of Americans with Disabilities Act broad enough to encompass telecommunication of live sporting events that are already programmed on television and broadcast from places of public accommodation to place of public accommodation, thus prohibiting NFL, its member clubs, and broadcast networks and their local affiliates from implementing 'black-out' rule via licensing agreement that imposes discriminatory impact on hearing impaired people who want technological access to live sporting event in places of public accommodation?
Petition for certiorari filed 10/12/95, by Christopher D. Kuebler, and O'Bryan Baun P.C., both of Birmingham, Mich."

"64 LW 3416, 12-12-95 Certiorari Denied. 95-598 Stoutenborough v. NFL"

California Assn. of the Physically Handicapped, Inc. v. Federal Communications Commission, 840 F.2d 88 (1988); 268 U.S. App. D.C. 208; 64 Rad. Reg. 2d (P & F) 757.

Section 504 of the Rehabilitation Act of 1973 does not impose captioning legislation obligations on broadcaster, or duty on FCC to consider captioning services in licensing decisions.

Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern California, 719 F.2d 1017 (9th Cir. 1983).

Gottfried v. FCC, 655 F.2d 297 (1981); 49 Rad. Reg. 2d (P & F) 449.

Disabled Access Credit

In the General Instructions, under "Eligible access expenditures," it states:
b. To provide qualified interpreters or other methods of making audio materials available to hearing-impaired individuals.

Law Reviews and Captioning

• Dubow, Sy. "The Television Decoder Circuitry Act -- TV for All", 64 Temple Law Review 609-618 (Summer 1991). This is the most comprehensive law review article on captioning written by the former director of the now-defunct National Center of Law and Deafness at Gallaudet University.

• "Access of the hearing-impaired to television programming", 5 Loyola Entertainment Law Journal 188-197 (1985).

• "The public interest standard in the Communications Act and the hearing impaired: Community Television of Southern California v. Gottfried", 25 Boston College Law Review 893-918 (July 1984).

• "Community Television of Southern California v. Gottfried: defining the role of the television industry in serving the needs of the hearing impaired", 19 New England Law Review 899-916 (1983/1984).

• "Public television and the hearing impaired", 9 The Journal of College and University Law 1-25 (1982/1983).

• "Gottfried v. FCC: the public interest standard and broadcaster responsibility to the hearing-impaired", 130 University of Pennsylvania Law Review 957-980 (April 1982).

Movie Theaters and ADA

1. "Movie theaters are not required to present open-captioned films. However, other public accommodations that impart verbal information through soundtracks on films, video tapes, or slide shows are required to make such information accessible to persons with hearing impairments. Captioning is one means to make the information accessible to individuals with disabilities (app B to 28 CFR § 36.303(3) and 56 Fed Reg 35567 (July 26, 1991)(Commentary)."
2. "Title III applies to private entities that are considered public accommodations because they affect interstate commerce (42 USC § 12131-12165). One of the 12 entities include place of entertainment or exhibition (motion picture house; a theater; a concert hall; a stadium; or other place of exhibition or entertainment) ( 42 USC § 12181(7)(C))."

If so, then refer to the "auxiliary aids and services which include... open and closed captioning... or other effective methods of making aurally delivered materials available to individuals with hearing impairments (42 USCS § 12101(1))"

In 2004, a landmark lawsuit in Washington, DC was settled with the movie theater chains involved agreeing to install rear window captioning in at least 12 metro DC area theaters.

Presidential Elections and Captioning

"No candidate for the office of President or Vice President may receive amounts from the Presidential Election Campaign Fund under this chapter or chapter 96 unless such candidate has certified that any television commercial prepared or distributed by the candidate will be prepared in a manner which ensures that the commercial contains or is accompanied by closed captioning of the oral content of the commercial to be broadcast in line 21 of the vertical blanking interval, or is capable of being viewed by deaf and hearing impaired individuals via any comparable successor technology to line 21 of the vertical blanking interval."

Pub.L. 102-393, Title V, § 534(a), Oct. 6, 1992, 106 Stat. 1764. United States Code Annotated, Title 26, Internal Revenue Code, Financing of Presidential Election Campaigns, Presidential Election Campaign Fund.

Public Service Announcements

"Title II, section II-7.1000: Must public service announcements or other television programming produced by public entities be captioned? Audio portions of television and video-tape programming produced by public entities are subject to the requirement to provide equally effective communication for individuals with hearing impairments. Closed captioning of such programs is sufficient to meet this requirement. ["Auxiliary aids and services include a wide range of services and devices that promote effective communication. Examples of auxiliary aids and services for individuals who are deaf or hard of hearing include qualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TTD's) videotext display, exchange of written notes, computer terminals, speech synthesizers, and communication boards."].

"Title IV: Any television public service announcement that is produced or funded in whole or in part by any agency or instrumentality of Federal Government shall include closed captioning of the verbal content of such announcement. A television broadcast station licensee:

1. shall not be required to supply closed captioning for any such announcement that fails to include it: and
2. shall not be liable for broadcasting any such announcement without transmitting a closed caption unless the licensee intentionally fails to transmit the closed caption that was included with the announcement."

July 26, 1990, P.L. 101-336, Title IV, 402, 104 Stat. 369.

From Disabilities and the Law by Laura Rothstein, Shepard's/McGraw-Hill, 1992, p.346-250, and pocket part p.167-168:

"§13.03
Given the impact of technology on American life and the importance of telecommunications technology as a means of actively participating in society, it is obvious that disabled individuals need reasonable access to these channels of communication. Some information essential to safety and health may only be available via telecommunications, and one need only note the number of television sets currently found in American homes to realize how important television has become (See Schwartz & Woods, "Public Television and the Hearing Impaired", 9 J. College & University Law 1,4 (1982-83)).

Means of Access. There are basically three means of access to television programming for hearing impaired persons. Providing sign language interpreters on the screen is the least expensive method but provides access to only to some hearing impaired persons (Individuals who become hearing impaired later in life are unlikely to find this mode of communications useful). Closed captioning is a visual display of the written words on those televisions that have a decoder device. This provides access only to those who can afford the decoder. Open captioning, whereby written words are displayed on the screens of all viewers, provides the greatest access but presents the problem of distraction to viewers not hearing impaired (The Television Decoder Circuitry Act, 47 USC §303(u), which was enacted in 1990, requires that as of July 1, 1993, televisions that have a picture of 13 inches or greater manufactured in the United States or for sale in the United States must be equipped for closed captioning. See also Dubow, The Television Decoder Circuitry Act - TV for All, 64 Temple Law Review 609 (1991). See also 47 CFR §15.119.)

Emergency broadcasts and Public Service Announcements. Current Federal Communications Commission (FCC) requirements mandate emergency information for hearing impaired persons (47 CFR §73.1250(h)). The Americans with Disabilities Act (ADA) requires that public service announcements be closed captioned (47 USC § 152(b) & 221(b)).

Other Broadcasting. Some of the questions about requirements for television broadcasting for the hearing impaired were discussed in the Supreme Court decision in FCC v Gottfried (459 US 498 (1983)). The case involved a challenge to FCC licensing renewal procedures by hearing impaired persons. The basis of the challenge was that, under the Communications Act of 1934, the FCC must consider the public interest in licensing television stations (47 USC § 309(a)). The plaintiffs contended that this public interest requirement imposed an obligation on television stations to consider the 'national policy expressed in the Rehabilitation Act of 1973 and any legal obligations imposed on stations by Section 504' ( See Gottfried v FCC, 655 F2d 297, 305 (DC Cir 1981)). The Supreme Court rejected this contention and held that the FCC is not required to evaluate compliance with the Rehabilitation Act of 1973 in its licensing procedures (459 US at 508-10) or to promulgate regulations pursuant to the Rehabilitation Act of 1973. Although the FCC is required to consider whether a television station meets the public interest requirement in granting and renewing licenses (Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 FCC2d 650 (1971). This requirement applied to both commercial and noncommercial television stations), the Rehabilitation Act of 1973 standards are not applicable to a determination of what is in the public interest (For a criticism of the circuit court's holding that the FCC must incorporate national policies for which other administrative agencies are responsible, see Comment, 'Gottfried v FCC: The Public Interest Standard and Broadcaster Responsibility to the Hearing-Impaired', 130 U Pa L. Rev. 957 (1982)). Currently all that is required for a station to demonstrate that it meets the needs and interests of the public is that the station interview leaders from '19 typical institutions and elements normally present in a community' (Ascertainment of Community Problems by Broadcast Applicants, 53 FCC2d 3,7 (1975)). Although the categories include leaders from minority and ethnic groups, representatives of the elderly, and representatives of women (Ascertainment of Community Problems by Commercial Broadcast Applicants, 57 FCC2d 418, 442 (1976)), a category of person with disabilities is not specified (For a discussion of judicial deference to agency decision making on what is in the public interest, see Comment, 130 U Pa L. Rev at 967-79 (1982)).

What remains unsettled is the extent to which a direct challenge of discrimination under Section 504 of the Rehabilitation Act of 1973 can be made against television broadcasting stations. The Supreme Court's decision in Gottfried involved a challenge of licensing procedures only under FCC rules and regulations. There are several questions to be resolved in a direct Section 504 challenge. There are preliminary issues as to whether there is a private right of action, whether there must be exhaustion of administrative remedies, and what remedies are availablE in such actions. There is also the significant question of whether the broadcaster in question is a recipient of federal assistance within the meaning of Section 504. While public or noncommercial broadcasters may meet the requirement where they are direct recipients of federal funds to support programming and broadcasting (It is uncertain whether any judicial action would be applied to the entirety of the public broadcaster's television programming or if it would apply only to programming specifically receiving financial assistance from the federal government. See generally Schwartz & Woods, 9 J. College & University Law at 18 (1982-83), the status of commercial stations as recipients of federal assistance is less clear (The cases of Greater Los Angeles Council on Deafness, Inc v Community Television, 719 F2d 1017 (9th Cir 1983), and California Assn.. of the Physically Handicapped, Inc v FCC, 721 F2d 667 (9th Cir 1983), decided that the FCC is not required to issue regulations under the Rehabilitation Act of 1973. See also California Assn.. of the Physically Handicapped, Inc v FCC, 840 F2d 88 (DC Cir 1988) (FCC not a funding agency and not required to enforce Section 504; Department of Education, not FCC has enforcement responsibility over public TV stations; Communications Act of 1934's amendments does not create Section 504 obligation to provide closed-caption television. See also Stoutenborough v. National Football League, 59 F3d 580 (6th Cir 1995) (ADA does not require that football games not be blacked out on television in suit by man with hearing impairment)).

Even where Section 504 applies, however, the meaning of equal access and nondiscrimination in the television broadcasting context is uncertain. If the standard of accommodation required under Section 504 by the Supreme Court in Southeastern Community College v Davis (422 US 397 (1979)) is applied to television broadcasting, it is unlikely that most courts will require totally equal access by mandating open captioning or live captioning of all television programming in view of the high cost of these services (See generally Schwartz & Woods at 7). It is more likely that courts in news programming, and allow a reasonable number of hours to be broadcast by closed captioning or a sign language interpreter.

Regardless of the degree of accommodation required under Section 504, if it is determined that only public broadcasters receive the requisite federal assistance, the unsettling result would be to make public broadcasters subject to a higher financial burden. This would be an unfortunate result in view of the financial crises facing many public television stations and programmers, and in view of the fact that public television broadcasters have already made many more voluntary efforts than have commercial television broadcasters (It should also be noted that colleges and universities are often the owners of public broadcasting stations, and placing a higher burden on public television than on commercial television will indirectly cause an adverse effect to those colleges and universities).

One aspect of the Americans with Disabilities Act of 1990 (ADA) (42 USC §12101 et seq.) it its amendment of the Communications Act of 1934, providing that public service announcements produced or funded in whole or in part by a federal government entity are to included closed captioning of the verbal content (47 USC §611. Television stations are not required to supply the closed captioning and are not liable for broadcasting a noncaptioned announcement unless it was an intentional failure). The ADA public accommodations requirements provide that places of lodging providing televisions in five or more guest rooms and hospitals providing television for patients are to provide decoding caption devices on request, unless it would be unduly burdensome to do so (37 CFR §36.303(e),(f))."

Section 504 and Captioning

"§ 7.5 Section 504: Access to Television:

Private television broadcasters are not subject to Section 504 of the Rehabilitation Act of 1973, since they are not recipients of federal financial assistance. And, while public broadcasting systems are subject to Section 504, the courts have consistently held that Section 504 does not compel public broadcasting systems to provide open- or closed-captioned programs for hearing-impaired persons. In Community Television of Southern California v. Gottfried, 459 U.S. 498, 103 S.Ct. 885, 74 L.Ed.2d 705 (1983), the Supreme Court held that Section 504 does not require the Federal Communications Commission (FCC) to review a public television station's license renewal application applying special standards. The majority of the Court held that the FCC has no responsibility for enforcing Section 504, and that the Commission's duties derive solely from the Communications Act of 1934. The Court noted that while regulations may be promulgated under Section 504 that impose special obligations on a licensee subsidized by the federal government, such regulations may only be promulgated by agencies responsible for enforcing the Act.

In 1987, the FCC adopted rules and regulations pursuant to Section 504. The FCC ruled that the 1978 amendment extending the coverage of Section 504 to include the activities 'conducted by' federal agencies were not intended to apply to the activities of licensees of federal agencies. Thus, the FCC's regulations provide that 'the programs or activities of entities that are licensed or certified by the Commission are not, themselves, covered by this part.' The FCC's rules were challenged in California Association of the Physically Handicapped, Inc. v. Federal Communications Commission, 840 F.2d 88, 268 U.S. App. D.C. 208 (D.C. Cir. 1988). The District of Columbia upheld the validity of the regulations.

Section 504, therefore, has proven to be of no assistance to hearing-impaired persons seeking to compel television broadcasters. Nor do Title II or III of the Americans with Disabilities Act of 1990 apply to television broadcasters. In an effort to provide some assistance in this area, Congress enacted the Television Decoder Circuitry Act of 1990. This Act amends Section 303 of the Communications Act of 1934, 47 U.S.C. § 303, to require all television sets manufactured in - or for use in - the United States having picture screens at least 13 inches in size to be equipped with 'built-in decoded circuitry designed to display closed captioned television transmissions...' It is anticipated that if all sets are equipped with built-in decoders, television stations will voluntarily increase the number of closed-captioned programs to reach the market of over 24 million hearing-impaired persons in the United States."

Television Decoder Circuitry Act of 1990

Legislation

Federal Communications Commission

Captioning Fact Sheet

Minnesota

Telecommunications Act of '96

Q. Does Title III, Sec. 305 of the Telecommunications Act of 1996 mandate captioning of all TV programs?

A. Yes and no. Please note that Section 305 creates a new section in the Commission's "rules book", numbered 713. OK, Sec. 713 (b)(1) essentially says, "Yes"; all NEW video programs, including news, movies, etc., shown on TV by a video programming provider (telcos, cable operators, etc.) MUST be captioned 100%, IF NOT EXEMPTED. As for older programs (old movies, reruns, etc.) Sec. 713 (b)(2) essentially says that the program providers should (but are not required to) maximize captioning such programs.

Q. If not exempted?

A. Sec. 713 (d) (1), (2), and (3), list possible exemptions which may be granted to the video providers by the FCC upon evidence of undue burden. Note that the FCC "may exempt by regulation programs, classes of programs, or services" on the basis of undue burden.

Q. What about telecommunications equipment and services?

A. Title I, Sec. 101, which creates new section 255, covers this aspect. Essentially, Sec. 255 (b) says that any new telecom equipment being manufactured ought to be accessible and usable by individuals with disabilites. If not, then Sec. 255 (d) says that such new equipment ought to be compatible with existing devices (i.e., TTY, telebraille, etc.). Similarly, Sec. 255 (c) and (d) mandate access to telecom services/network. However, here, Sec. 255 (b)-(d) have the "if readily achievable" clause which might get the telecom manufacturers and providers exempted.

The actual text of the legislation can be downloaded from the THOMAS Legislation on the Internet site via file transfer.

Other Telecommunications Act of 1996 Links

• Captioning Rules, August 1997
• Benton's Telecommunication's Act of 1996 Page
• FCC Report

Complaints

If you have a captioning complaint, follow the instructions in the complaint section of the FCC Fact Sheet.

Other Countries

Canada

Canada requires 90% of programming on major networks to be captioned. For more details, search the Canadian Radio-Television and Telecommunications website for captioning information.

United Kingdom

In the United Kingdom, the Office of Communications has a Code on Television Access Services that establishes subtitling requirements. These requirements were put in place by the 2003 Communication Act.