More Ugly News on Captioning Exemptions
By Cheryl Heppner
Many of you have been following the recent saga of sudden mass exemptions granted for closed captioning of TV programs. The exemptions, over 270 of them, were given by the Federal Communications Commission (FCC) to mostly faith-based organizations. Few of these organizations provided the required evidence to show that captioning would be an undue burden.
Actions by Consumer Organizations
I have been working with a team of advocates from TDI, NAD, AAPD, CSD, DHHCAN and HLAA to address the serious errors committed in the granting of these permanent exemptions from closed captioning.
Among our actions were:
– Two meetings were held with FCC Commissioner Deborah Tate, one with Commissioner Robert McDowell, one with Chairman Kevin Martin, and conversations with Commissioners Michael Copps and Jonathan Adelstein.
– An “Application for Review of Bureau Order” filed with the FCC. We asked that all grants of exemption be rescinded and that the FCC individually review each petition for exemption to determine undue burden, and place all current and future exemptions on public notice. We pointed out that the FCC had violated the Telecommunications Act and Administrative Procedures Act, and had committed a number of procedural violations.
– A “Petition for Emergency Stay” was also filed with the FCC. In this petition, we noted that the Consumer and Governmental Affairs Bureau arbitrarily overruled its own precedent without giving any rationale. We also reminded the FCC that the Bureau did not have delegated authority to create new rules or categories of captioning exemptions, only to administer and enforce rules and policies already created.
Action by National Religious Broadcasters in Opposition
The National Association of Religious Broadcasters (NRB), which is based at Technology Drive in Manassas, VA, filed an opposition to our “Application for Review of Bureau Order”, requesting that it be denied by the FCC.
In response, we filed a reply today that refutes their argument. The NRB gave as its interpretation of the test of undue burden a requirement that shows captioning would “likely produce a central interference, a mission-critical intrusion onto the non-profit organization’s ‘programming’ or ‘other activities important to its mission’”. Among other things, we pointed out that it’s not clear how the FCC would characterize an organization’s “mission”, or determine which activities are “important” or which intrusions are “mission-critical”.
Yesterday’s Shocking Development
The FCC released a Public Notice on November 7, 2006 that we did not receive until the afternoon of November 8, 2006. This notice said that the FCC had put the petitions for those 290+ entities which received exemptions on its website on October 12, 2006 The FCC also made information about additional petitions available on its website.
Buried in a footnote was the news that the petitions for exemption already granted by letter order were being “held in abeyance until the comment cycle on these petitions has ended.”
Good news: The FCC is indicating that its earlier decision to grant 290+ exemptions apparently isn’t final.
Bad news: We must submit comments on these and hundreds more new requests for exemption – a total of about 600 petitions – even though most of them clearly lack any information to justify an undue burden exemption. The FCC staff needs only to look in their files to see this.
Incredibly bad news: We have 20 days to file our comments. That’s 20 days from the date the Public Notice was released. We already lost 1 1/2 days before we knew of its release. Tomorrow and November 23-24 are holidays. November 11, 12, 25, and 26 are weekends. This gives us a total of 11 working days to go through and write up comments before the deadline of Monday, November 27, and two of them are already gone. That’s an average of 66 or 67 we’d have to comment on each working day.
You can find the FCC’s Public Notice at:
And More Gripes!
We didn’t need another stab to the heart, but the Public Notice issued on November 7 had a lot of objectionable language and inaccuracies. One that definitely didn’t sit well was the FCC’s note “where similar petitions were previously placed on public notice, an opposition was filed by only one coommenter:. Our coalition of organizations that had worked together to file comments in the past (aided enormously by pro bono lawyers at Bingham McCutchen) does its best to represent the more than 30 million people who are deaf or hard of hearing.
The FCC’s public notice also blames our coalition for deciding not to put any more petitions for captioning exemption on public notice. They cite a letter sent to them in after we learned that more than 450 exemption requests had been sent to the FCC. In this letter, we said that it was a hardship to our organzations to file oppositions to petitions that were “clearly deficient” — the ones that didn’t have all the information required by the FCC’s own regulations. We said we’d only file oppositions to petitions that raised new issues. We felt that after filing dozens of oppositions we had established a clear precedent with the FCC that we expected them to put each petition to the test contained in their own regulations.
The November 7 public notice says, “As a result, the Commission stopped placing these petitions on public notice.” the November 7 public notice says. How crazed is that? How can we know if the exemption requests are clearly deficient or not unless they’re placed on public notice? And why assume that we are the only people in the entire nation who might have something to say about the petitions for exemption?
So this is our reward for speaking up, 600 petitions to respond to in 20 days.
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