Update (7/14):  The FCC released the text of the Second Order on Reconsideration and Second Further Notice of Proposed Rulemaking Monday.

The FCC adopted an Order today at its Open Meeting which expands the agency’s IP captioning rules to online video clips, subject to some important carve-outs that will be addressed in a Further Notice of Proposed Rulemaking.  The IP captioning rules currently exempt video clips, defined as “excerpts of full-length programming,” and apply only to full-length video programming that has previously aired on television with captions.

The new rules will phase in beginning in 2016.  Specifically, by January 1, 2016, video programming distributors (VPDs) must provide captions for “straight lift” clips of pre-recorded programming.  By January 1, 2017, montages of straight lift clips must be captioned.  Finally, by July 1, 2017, VPDs must provide captioning for clips of live and near-live programming; however, VPDs will have a grace period of 12 hours for live programming and 8 hours for near-live programming.  “Live programming” is programming “shown on television substantially simultaneous with its performance,” and “near-live programming” must be performed and recorded less than 24 hours prior to first airing on television.

Notably, the Commission indicated that it will entertain waiver requests based on the economically burdensome standard.  In addition, it clarified that the closed captioning quality rules, which take effect January 15, 2015, will apply to IP video clips.

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.  The Further Notice seeks comment on this exemption, which is of particular interest to stations that post clips of breaking news before the breaking news 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.  The Further Notice also seeks comment on this exemption.

The Further Notice also asks about decreasing or eliminating the grace period for live and near-live programming, a question Commissioner Pai deemed “odd” considering that the rule does not take effect for three years.  In addition, the Further Notice seeks comment on “mash-ups,” which the FCC defines as video packages that contain content shown on television with captions along with video not subject to the rules, such as online-only content.

We will provide further updates on comment deadlines when the Order and FNPRM are released and subsequently published in the Federal Register.

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