National Association of the Deaf

The "Undue Burden" Exemption



Request and Approval Required

The closed captioning rules provide detailed procedures for requesting an exemption from the rules based on “undue burden” (when closed captioning would be a significant difficulty or expense). Requests can be made for a channel, a category of video programming, a specific video program, or a video programming provider. A request for an exemption, called a petition, must be supported by sufficient evidence to demonstrate that closed captioning would be an undue burden. Undue burden must be evaluated on an individual, case-by-case basis. The Federal Communications Commission (FCC) makes requests for undue burden exemptions available for public comment. While waiting for the FCC to decide the request, the video programming does not have to be captioned.

For more information about exemptions from the closed captioning requirements based on undue burden, see http://www.fcc.gov/cgb/dro/caption_exemptions.html.

What Happened?

Between 1999 and the end of 2005, 67 requests for undue burden exemptions were filed with the Federal Communications Commission (FCC) and made available for public comment. The NAD, along with other consumer advocacy groups, responded with comments and opposition. Of these 67 petitions, the FCC denied 50, a few were withdrawn, and a few more remained pending or undecided. The FCC granted only three requests for exemption – for periods of one to three years each. No permanent exemptions were granted.

Just before the deadline for 100% captioning on January 1, 2006, many requests for exemption from the closed captioning rules were filed with the FCC. The NAD, along with other consumer advocacy groups, were confident – based on the FCC’s record of handling these requests from 1999-2005 – that these requests would be reviewed and decided appropriately. We notified the FCC that comments and oppositions would not be filed for each request made available for public comment. Instead, the NAD and other consumer advocacy groups would file comments and opposition to requests that raised new or novel issues.

What Went Wrong?

In September 2006, the FCC announced that it had granted two requests for exemption from the closed captioning rules. For the first time, the FCC did not limit the time period for the exemptions. These exemptions were permanent.

Worse, the FCC said that it is “inclined favorably” (more likely) to approve requests made by television programs:

  • when the program is produced by a non-profit organization;
  • when the organization receives nothing in exchange for their program or when they need to pay to broadcast their program;
  • when the organization says the cost for closed captioning will result in reducing or stopping their television program or other important activities.

We also learned that the FCC received about 550 requests for programs to be shown without closed captions. Worse, the FCC approved almost 300 of these requests based on the new criteria (described above). Most of these requests were not made available for public comment. We had no chance to comment on or oppose these requests. The FCC was not following its own procedures.

The NAD Responded

In October 2006, the NAD, along with other consumer advocacy groups, filed an “Application for Review.” We asked the FCC to reverse the September 2006 decision and rescind all exemptions granted that were based on that decision, and to take other actions. Representatives from the NAD and other consumer advocacy groups met with FCC Chairman Kevin Martin and FCC Commissioners to discuss these recent FCC actions.

In November 2006, the FCC identified and made available for public comment 494 requests for exemption from the closed captioning rules. The FCC also suspended the exemptions given to almost 300 requests in September, until the comment period ended. The opportunity to provide comments was shortened to 20 days. In another meeting with FCC Chairman Kevin Martin and representatives of consumer advocacy groups, the Chairman agreed that more time would be given to respond to the 494 requests now open for comment. Chairman Martin also assured us that each request for waiver from the closed captioning rules will be analyzed individually.

Nonetheless, we filed a formal request for a 120-day extension and permission for consumers and other consumer advocacy groups to file comments electronically (rather than print, copy, and mail comments). The FCC granted our requests. The NAD, with assistance of other consumer advocacy groups, reviewed, summarized, analyzed, prepared comments, and made recommendations for each of the 494 requests from television programs to be exempt from the closed captioning rules.

In March 2007, the NAD, along with other consumer advocacy groups, filed comments and recommendations for each of the 494 requests. We also provided instructions and encouraged consumers to file comments, too.

Since then, the NAD continues to respond to new requests for exemption to the closed captioning rules: 125 requests made available for comment in 2007; and 84 requests in 2008. More importantly, the NAD continues to advocate for review and reversal of the September 2006 decision and for the FCC to analyze each request for exemption from closed captioning in accordance with established FCC procedures and precedent.

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National Association of the Deaf | 8630 Fenton Street, Suite 820, Silver Spring, MD 20910-3819