Supporting statement OMB 3060-0761 (amended 073012)

OMB Control Number: 3060-0761 July 2012

Section 79.1 Closed Captioning, CG Docket 05-231

SUPPORTING STATEMENT

A. Justification

1. Section 713 of the Communications Act of 1934, as amended (the Act), which was added pursuant to section 305 of the Telecommunications Act of 1996, required the Commission to prescribe rules and implementation schedules for closed captioning of video programming. In enacting section 713, Congress generally required that video programming be closed captioned, regardless of distribution technology, to ensure access to persons with hearing disabilities.

As indicated in more detail below, the Commission initiated a rulemaking in July 2005 to review the current status of the closed captioning rules that were adopted in 1997. On November 7, 2008, the Commission released an Order adopting some changes to the rules, as proposed in the 2005 Notice of Proposed Rulemaking. The purpose of this submission is to extend the collection for the closed captioning rules (found in 47 C.F.R. § 79.1) and bring current the estimates of existing burdens that were included in the July 2009 Paperwork Reduction Act (PRA) submission to the Office of Management and Budget (OMB). Because the Commission has not addressed all of the issues raised in the 2005 Notice of Proposed Rulemaking, the proposed information collection requirements from that order remain pending and are not addressed here.

History:

On August 22, 1997, the Commission issued a Report and Order for closed captioning of video programming, adopting rules and implementation schedules for the closed captioning of video programming. Closed Captioning and Video Description of Video Programming; Implementation of Section 305 of the Telecommunications Act of 1996; Video Programming Accessibility, MM Docket No. 95-176, FCC 97-279, Report and Order, 13 FCC Rcd 3272 (August 22, 1997), published at 62 FR 48487 (September 16, 1997) (Closed Captioning Report and Order). In the Closed Captioning Report and Order, the Commission took the following actions, among others:

(a) Placed responsibility for compliance with the closed captioning rules on video programming distributors, defined as all entities that provide video programming directly to customers’ homes, regardless of distribution technology used [i.e., broadcasters and multichannel video programming distributors (“MVPDs”)];

2. Generally required that 95% of new English language programming be closed captioned as of January 1, 2006, subject to certain exceptions. New programming is defined as programs first published or exhibited on or after January 1, 1998;

2. Established a 10-year transition period for captioning of “pre-rule” programming, and required that 75% of all pre-rule nonexempt English language programming delivered to consumers during the first quarter of 2008 and thereafter must be captioned. Pre-rule analog programming is defined as analog programming first published or exhibited before January 1, 1998;

2. Established exemptions from the closed captioning rules for several classes of programs or services for which the Commission determined a requirement to provide closed captioning would be economically burdensome;

2. Established procedures for seeking individual exemptions from the closed captioning rules if the requirements would impose an undue burden;

2. Required that video programming providers deliver intact the closed captioning they receive as part of the programming they distribute to viewers where the captions do not need to be reformatted;

2. Required that video programming providers maintain and monitor their equipment to ensure the technical quality of the closed captioning they transmit;

2. Permitted the use of electronic newsroom technique to create closed captions of live programming;

2. Established a complaint procedure, found in 47 C.F.R. § 79.1(g), requiring that:

(1) Complaints alleging violation of the closed captioning rules are first directed in writing to the video programming provider responsible for distribution of the programming;

(2) Video programming distributors (VPDs) respond to such complaints within a set time period;

(3) Complaints be directed to the Commission if the complainant remains dissatisfied after the VPD is afforded an opportunity to resolve the complaint; and

(4) VPDs are provided an opportunity to respond to the complaint after it is filed with the Commission.

In an Order on reconsideration, see Closed Captioning and Video Description of Video Programming; Implementation of Section 305 of the Telecommunications Act of 1996; Video Programming Accessibility, MM Docket No. 95-176, FCC 98-236, Order on Reconsideration, 13 FCC Rcd 19973 (October 2, 1998), published at 63 FR 55959 (October 20, 1998) (Reconsideration Order), among other things, the Commission:

1. Granted petitions for reconsideration of the Closed Captioning Report and Order’s definition of full accessibility as the captioning of 95% of new nonexempt programming, instead concluding that as of January 1, 2006, 100% of new English language programming must be captioned, with some exceptions, in order for the rules to be consistent with the statutory mandate in section 713;

2. Granted petitions for reconsideration seeking to impose a closed captioning requirement on Spanish language programming, and established a 12-year transition period for new Spanish language programming to be 100% captioned as of January 1, 2010, with three benchmarks; and a 14-year transition period for pre-rule Spanish programming to be 75% captioned as of January 1, 2012, with one benchmark; and

3. Granted, in part, petitions for reconsideration regarding the use of electronic newsroom technique, and limited the circumstances in which this method of captioning may be permitted to count toward the captioning requirement for live programming.

On July 31, 2000, the Commission amended the closed captioning rules to require an increasing amount of digital programming to be captioned in a format that can be recovered and displayed by decoders meeting the EIA-708 standard.¹ Closed Captioning Requirements for Digital Television Receivers; Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Video Programming Accessibility, ET Docket No. 99-254, MM Docket No. 95-176, FCC 00-259, Report and Order, 15 FCC Rcd 16788 (July 31, 2000), published at 65 FR 58467 (September 29, 2000) (DTV Closed Captioning Order). The DTV Closed Captioning Order:

1. Adopted the same benchmark transition period for new and pre-rule digital programming as exists for analog programming;

2. Established July 1, 2002, as the date for determining whether digital programming is

new programming or pre-rule programming, and as the effective date requiring digital TVs have digital closed captioning decoders.

On July 21, 2005, the Commission issued a Notice of Proposed Rulemaking seeking comment on several aspects of the closed captioning rules, and seeking comment on whether certain measures, including information collections, should be adopted. Closed Captioning of Video Programming; Telecommunications for the Deaf, Inc., Petition for Rulemaking, CG Docket No. 05-231, FCC 05-142, Notice of Proposed Rulemaking, 20 FCC Rcd 13211 (July 21, 2005) (2005 Closed Captioning NPRM).

On November 7, 2008, the Commission released the 2008 Closed Captioning Declaratory Ruling and Order.² In the Order, the Commission amended its rules to provide for more efficient complaint processes and methods for consumers to contact VPDs with concerns about closed captioning.

(a) Responding to consumer complaints:

(1) Pursuant to 47 C.F.R. § 79.1(g), complaints concerning an alleged violation of the closed captioning requirements may be filed with the Commission or with the VPD responsible for delivery and exhibition of the video programming within sixty (60) days of the problem with captioning.

(2) Complaints filed first with the Commission will be forwarded to the appropriate VPD. The VPD must respond in writing to the Commission and the complainant within 30 days of the receipt of the complaint from the Commission.

(3) If the complaint is filed first with the VPD, the VPD must respond in writing to the complainant within 30 days after receipt of the complaint. If the VPD fails to respond within 30 days or a dispute remains following the initial complaint resolution procedures, a complaint may be filed with the Commission within 30 days after the time allotted for the VPD to respond has ended. The VPD shall respond to the Commission and the complainant within 30 days of receipt of the complaint from the Commission.

(b) Provide contact information to viewers and subscribers and place this information in directories:

(1) 47 C.F.R. § 79.1(i) requires VPDs to make available contact information for the receipt and handling of immediate closed captioning concerns raised by consumers while they are watching a program.

(i) Requires VPDs to designate a telephone number, fax number, and e-mail address for purposes of receiving and responding immediately to any closed captioning concerns, and to ensure that any staff reachable through this contact information has the capability to immediately respond to and address consumers' concerns.

(ii) Requires that, to the extent that a VPD has personnel available, either on site or remotely, to address any technical problems that may arise, consumers using this dedicated contact information must be able to reach someone, either directly or indirectly, who can address the consumers’ captioning concerns.  This provision does not require that VPDs alter their hours of operation or the hours during which they have staffing available; at the same time, however, where staff is available to address technical issues that may arise during the course of transmitting programming, they also must be knowledgeable about and be able to address closed captioning concerns. In situations where a VPD is not immediately available, any calls or inquiries received, using this dedicated contact information, should be returned or otherwise addressed within 24 hours. In those situations where the captioning problem does not reside with the VPD, the staff person receiving the inquiry should refer the matter appropriately for resolution.   

(2) Requires VPDs to make contact information available for the receipt and handling of written closed captioning complaints that do not raise the type of immediate issues that are addressed above. The contact information required for written complaints shall include the name of a person with primary responsibility for captioning issues and who can ensure compliance with the rules. It also must include the person’s title or office, telephone number, fax number, postal mailing address, and e-mail address.

(3) Requires VPDs to include the above information on their Web sites (if they have a Web site), in telephone directories, and in billing statements (to the extent the VPD issues billing statements). They also must keep this information current, and update it within 10 business days for Web sites, by the next billing cycle for billing statements, and by the next publication of directories.

(4) Requires VPDs to file the contact information described in both (b)(1) and (b)(2) with the Chief of the Disability Rights Office, Consumer and Governmental Affairs Bureau, or by sending the information to [email protected].

(i) Requires Commission staff to post the list of contact information on the FCC’s Web site and then prepare a Public Notice advising consumers and other interested parties how to obtain access to the contact information. Requires that this contact information also be available by telephone inquiry to the Commission’s Consumer Center.

(ii) Requires VPDs to notify the Commission, within 10 business days, each time there is a change in any of the required contact information.

On December 4, 2009, the Commission adopted an Order amending 47 C.F.R. § 79.1(i)(3) to permit VPDs to submit the required contact information through an electronic webform as an alternative to the email and paper filing options already provided for under the rule. While the Order encouraged VPDs to use the webform, VPDs may use any of these three methods. Closed Captioning of Video Programming, CG Docket No. 05-231, Order, FCC 09-109, 24 FCC Rcd 14837 (Dec. 11, 2009). The Commission duly notified OMB that the webform approach would have a negligible, if any, impact on the burdens associated with the already-approved collection, and in fact, it may even reduce the burdens.

The statutory authority for this information collection is section 713 of the Act, 47 U.S.C. § 613, and implemented at 47 C.F.R. § 79.1.

FINAL INFORMATION COLLECTION REQUIREMENTS

(a) Petitions for individual exemption.

(1) Pursuant to 47 C.F.R. § 79.1(f), a video programming provider, video programming producer, or video programming owner may petition the Commission for a full or partial exemption from the closed captioning requirements based upon a showing that the closed captioning requirements will result in an undue burden. On October 20, 2011, the Commission adopted an interim standard calling for an economically burdensome showing rather than an undue burden showing, but the four factor test for economically burdensome is identical to the four factor test for undue burden. As a result, there was no change to the information collection requirements. Anglers for Christ Ministries, Inc.; New Beginning Ministries; Petitioners Identified in Appendix A; Interpretation of Economically Burdensome Standard; Amendment of Section 79.1 of the Commission’s Rules; Video Program Accessibility, CG Docket No. 06-181, CG Docket No. 11-175, FCC 11-159, Memorandum Opinion and Order, Order, and Notice of Proposed Rulemaking, 26 FCC Rcd 14941 (October 20, 2011), published at 76 FR 67376, November 1, 2011, 76 FR 67377, November 1, 2011, and at 76 FR 67397, November 1, 2011 (Anglers Review Order).³ On July 20, 2012, the Commission adopted a Report and Order making permanent the change of terminology from undue burden to economically burdensome. Interpretation of Economically Burdensome Standard; Amendment of Section 79.1(f) of the Commission’s Rules; Video Programming Accessibility, CG Docket No. 11-175, Report and Order, FCC 12-83, released July 20, 2012, at ¶¶ 7-9 (Economically Burdensome Order). The amendment to 47 C.F.R. § 79.1(f) changing the terminology from undue burden to economically burdensome will become effective 30 days after publication in the Federal Register. Id. at ¶ 16.

(2) Petitions for individual exemption must by filed with the Commission, placed on Public Notice, and be subject to comment from the public.

(b) Complaints alleging violations of the closed captioning rules.

1. In response to a complaint, a VPD is obligated to provide the Commission with sufficient records and documentation to demonstrate that it is in compliance with the Commission’s rules.

2. The Commission will review the complaint, including all supporting evidence, and determine whether a violation has occurred, and the Commission shall, as needed, request additional information from the video programming provider.

2. The parties who are involved in these information collections, why they are involved, and how the information that they provide is to be collected and used, is as follows:

1. The requirements set forth in section 713 of the Act and 47 C.F.R. § 79.1 are to ensure that all television broadcasters and MVPDs deliver video programming to the public in a fashion that is accessible to individuals with hearing disabilities through closed captioning.

(b) As part of the existing and proposed requirements, consumers, many of whom are individuals, have the right to complain about what they perceive as deficiencies in how broadcasters and MVPDs comply with the closed captioning requirements.

(c) The broadcasters and MVPDs have the right to respond to these complaints.

(d) Under section 713 of the Act, the Commission has in place a complaint and response mechanism to address these complaints. This mechanism was revised in the 2008 Closed Captioning Declaratory Ruling and Order.

(e) The FCC uses the consumer complaints and responses to consumer complaints, filed by broadcasters and MVPDs, to inform its judgment about how the rules are working and whether consumers and VPDs understand their respective obligations under the rules; these complaints and responses also are used for enforcement purposes.

(f) The information contained in the compliance reports would be used to inform the public as to the amount of closed captioning provided by a specific VPD; this information also could be used for enforcement purposes.

(g) The contact information that VPDs provide to consumers through bills and in published directories, as well as the information on the VPDs’ Web sites and information VPDs submit to the FCC’s website or send to the FCC for placement on the FCC’s Web site, is used by consumers to contact the VPDs with captioning-related questions, concerns or complaints.

(h) The information submitted as part of, or in response to, a petition for individual exemption pursuant to 47 C.F.R. § 79.1(f) is used by the FCC to determine whether an individual exemption is warranted.

The collection of information may contain personally identifiable information on individuals (PII).

(a) As required by OMB Memorandum M-03-22 (September 26, 2003), the FCC completed a Privacy Impact Assessment (PIA) on June 28, 2007, that gives a full and complete explanation of how the FCC collects, stores, maintains, safeguards, and destroys the PII covered by these information collection requirements. The PIA may be viewed at: http://www.fcc.gov/omd/privacyact/Privacy_Impact_Assessment.html.

(b) Furthermore, as required by the Privacy Act, 5 U.S.C. § 552a, the FCC also published a system of records notice (SORN), FCC/CGB-1, “Informal Complaints and Inquiries,” in the Federal Register on December 15, 2009 (74 FR 66356), which became effective on January 25,

2010.⁴

3. In the 2008 Closed Captioning Declaratory Ruling and Order, the Commission required VPDs to post on their Web sites contact information for the receipt and handling of closed captioning complaints, as well as contact information for the receipt and handling of immediate closed captioning concerns. VPDs also must submit this information to the Commission’s Web site or provide this information to the Commission for posting on the Commission’s Web site.

4. There are no comparable information collection requirements regarding compliance with the closed captioning rules.

5. The Commission’s closed captioning requirements are assumed to have a significant impact on small entities; however, the specific information collection requirements associated with closed captioning provisions do not, and the proposed information collection requirements will not.

6. If the Commission did not sponsor these information collections, the Commission would not be in compliance with section 713 of the Act, and would be presented with significantly greater difficulty in any enforcement efforts under section 713.

7. Under 47 C.F.R. § 79.1(g)(5), a respondent is obligated to provide the Commission with sufficient records and documentation to demonstrate that it is in compliance with the Commission’s rules. This may require VPDs to report information to the FCC more often than quarterly, depending on how often VPDs must respond to closed captioning complaints. Otherwise, the collection is not conducted in any manner that is inconsistent with the guidelines in 5 C.F.R. § 1320.6.

8. Pursuant to 5 C.F.R. § 1320.8(d), the Commission published a notice in the Federal Register on February 22, 2012, 77 FR 10522, seeking comment on extension of the previous information collection requirements. Telecommunications for the Deaf and Hard of Hearing, Inc. (TDI) filed PRA comments on April 23, 2012 generally supporting the extension of the information collection requirements, including information collection requirements proposed in the 2005 Notice of Proposed Rulemaking. The National Association of Broadcasters (NAB) filed PRA comments objecting to certain information collection requirements proposed in the 2005 Notice of Proposed Rulemaking. The Commission will take into consideration the comments filed by TDI and NAD when it issues a decision in regard to those proposed information collection requirements. The Commission removed the proposed requirements and burdens from this collection and will consider the proposed requirements when it considers the remaining pending matters from 2005 Notice of Proposed Rulemaking.

9. There are no payments or gifts to respondents.

10. Assurances of confidentiality are being provided to the respondents.

To the extent that petitioners (i.e., program owners, providers or VPDs) seeking individual exemptions from the closed captioning rules desire to withhold from public review the financial information that serves as the basis of their exemption petitions, such requests should be made in writing to the Commission, pursuant to the Commission’s existing rules for requesting confidential treatment, 47 C.F.R. § 0.459.

With respect to the complaint procedures in the closed captioning rules, the Commission is not requesting that respondents submit confidential information, e.g., credit card numbers, social security numbers, and personal financial data, to the Commission.

(a) A privacy statement is included on all FCC forms accessed through the

Commission’s Internet Web site.

(b) In addition, respondents are made aware of the fact that their complaint information may be

released to law enforcement officials and other parties as mandated by law. PII is contained in the Commission’s operations support for complaint analysis and resolution (OSCAR), consumer information management system (CIMS), and consumer case management system (CCMS) databases, which are covered under the Commission’s SORN, FCC/CGB-1, “Informal Complaints and Inquiries.” The PII covered by this SORN is used by Commission personnel to handle and to process informal complaints from individuals and groups. The Commission will not share this information with other federal agencies except under the routine uses listed in the SORN.

The PIA that the FCC completed on June 28, 2007 gives a full and complete explanation of how the FCC collects, stores, maintains, safeguards, and destroys the PII, as required by OMB regulations contained in Memorandum M-03-22 (September 22, 2003) and the Privacy Act, 5 U.S.C. § 552a. The PIA may be viewed at: http://www.fcc.gov/omd/privacyact/Privacy Impact_Assessment.html.

11. The Commission believes that this information collection will not raise any questions or issues of a sensitive nature for respondents. Additionally, consumers are cautioned not to provide on complaints personal information such as social security numbers, credit card numbers, etc.

12. Estimates of the burden hours for the collection of information are as follows:

Video Programming Distributors (VPDs)	Number of Distributors per Technology
Cable Television Systems5	6,635
Commercial and Non-commercial Television Stations6	4,311
Open Video Systems (OVS) operators7	112
Direct Broadcast Satellite (DBS) operators8	2
Satellite Master Antenna Television (SMATV) systems9	41
Wireless Cable Systems10	5
Local exchange carriers11	3
Public Power Entities12	100
Total VPDs13	11,209

The Commission also notes that there are approximately 28 million Americans who are deaf or hard of hearing and who rely on closed captioning to access television programming. However, only a fraction of these people file complaints regarding closed captioning. The Commission anticipates that only approximately 1,000 respondents may, in any given year, file closed captioning complaints, and not all of those will be filed with the Commission. They may, instead, be filed with the VPD.

(A) Final Information Collection Requirements

(1) Petitions for individual exemption:¹⁴

(a) Filing of Petitions: The Commission estimates that, for present and future purposes, approximately 200 video programming producers and owners (VPOs) will file petitions requesting exemption from the closed captioning requirements annually.¹⁵

Total Number of Petitioners: 200 Respondents

Total Number of Responses:

200 VPOs x 1 petition/VPO = 200 petitions annually

The Commission estimates that the average burden to complete all aspects of each petition process, including filing any possible reply comments and associated certifications, may require 5 hours.

(i) The Commission estimates that 90 percent of the petitions that VPOs file will be prepared “in house” using the VPO’s staff.

200 VPOs x 90% using “in-house” staff = 180 VPOs

180 VPOs x 5 hours/petition = 900 hours

The Commission estimates that the “in house” staff that VPOs use to prepare these petitions earns a salary equivalent to a GS-14/Step 5 level ($57.13/hour):

900 hours x $57.13/hour for “in house” staff = $51,417.00

(ii) The Commission also estimates 10 percent of the petitions that the VPOs file will be prepared using outside legal counsel, e.g., attorneys in private law firms.

200 VPOs x 10% using outside legal counsel = 20 VPOs

VPOs that use outside legal counsel are likely to spend an average of 2 hours per petition to coordinate with their outside legal counsel to prepare and submit the petitions, including any possible reply comments and associated certifications.

20 VPOs x 2 hours/petition per outside legal counsel = 40 hours

The Commission estimates that the “in house” staff VPOs use to prepare these petitions earn a salary equivalent to a GS-14/Step 5 level ($57.13/hour):

40 hours x $57.13/hour for “in house” staff = $2,285.20

Annual Burden Hours to Prepare Petitions:

900 hours + 40 hours = 940 hours

Annual “In House” Costs:

$51,417.00 + $2,285.20 = $53,702.20

(b) Filing of Responses: The Commission estimates that there is an average of one commenter filing a response or opposition to every petition. The Commission estimates that the average burden to complete all aspects of the response process, including the certification, is five (5) hours.

Total Number of Respondents to Petitions: 200 commenters

Total Number of Responses:

200 VPOs filing petitions x 1 response/petition = 200 responses

The Commission estimates that 10 percent of commenters filing responses prepare the responses themselves. The remaining 90 percent of commenters hire outside legal counsel to prepare and file the response:

(i) 200 commenters x 10%/preparing their responses = 20 commenters

20 commenters x 5 hours/response preparation = 100 hours

The Commission estimates that the commenters use “in house” staff earning the equivalent of a GS-14/Step 5 level ($57.13/hour) to prepare the responses:

100 hours x $57.13/hour “in house” staff = $5,713.00

(ii) 200 commenters x 90 percent using outside legal counsel to prepare responses = 180 commenters.

(A) Of those 180 commenters, it is the Commission’s observation that 90% of the responses prepared by outside legal counsel will be done at a pro-bono rate, and without any significant consultation between the commenter and the outside legal counsel.

180 commenters x 90% = 162 commenters

(B) The remaining 10 percent (18) commenters using outside legal counsel are likely to take 2 hours to coordinate the preparation of their response with the outside legal counsel:

18 comments x 2 hours to coordinate with outside legal counsel = 36 hours

The Commission estimates that the commenters use “in house” legal and/or administrative staff earning the equivalent of a GS-14/Step 5 level ($57.13/hour) to coordinate their responses with the outside legal counsel:

36 hours x $57.13/hour for legal/administrative staff = $2,056.68

Annual Burden Hours to Prepare and File Responses to Petitions:

100 hrs + 36 hrs = 136 hours

Annual “In House” Costs:

$5,713.00 + $2,056.68 = $7,769.68

(c) The Commission estimates that 25 percent of petitioners will file replies to oppositions by commenters. The burden hours for such replies are already encompassed in 12(A)(1). However, this will generate an additional 50 responses annually.

Total Number of Responses: 50 replies to oppositions

(2) Complaints alleging violations of the Closed Captioning Rules

(a) Filing of Complaints: The Commission estimates that, for present and future purposes, of an estimated total 1,000 annual complaints, 500 will be filed with the VPDs and 500 with the Commission. Of the 500 filed with the VPDs, the Commission estimates that approximately 20 percent will remain unresolved, and the complainants will then re-file their complaints with the Commission.¹⁶

Annual Number of Respondents: 1,000 complainants

1,000 annual complaints (responses)

500 complaints to VPDs/year x 20% refiled with Commission = 100 refiled complaints/year (responses)

Annual Number of Responses: 1,100 responses

The Commission estimates that the average burden for each consumer to prepare and submit the complaint to the VPD or directly to the FCC would be 1 hour, except for complaints being re-filed with the Commission, which the Commission estimates will require approximately 2 hours per complaint.

1,000 annual complaints x 1 hr/complaint = 1,000 hours

100 complaints re-filed with Commission annually x 2 hrs/complaint = 200 hours

Annual Burden Hours: 1,200 hours

Annual “In House” Costs: None

(b) Responses to Complaints: The Commission assumes that VPDs will file a response to each complaint. The Commission estimates, for present and future purposes, that with 50 percent of the 1,000 annual complaints, received by VPDs either directly from the complainants or via forwarding by the Commission, VPDs will use “in-house” staff to respond to these complaints, and that with the other 50 percent VPDs will use outside legal counsel to prepare the responses. The Commission estimates, for present and future purposes, that the average burden for VPDs to prepare and submit an “in-house” response to each consumer complaint is 3 hours. The Commission further estimates that with the 50 percent where VPDs will use outside legal counsel to prepare the responses, VPDs will spend an hour to coordinate each response with outside legal counsel. Likewise, the Commission estimates, for present and future purposes, that for the estimated 100 complaints per year that will be re-filed with the Commission, VPDs will use outside legal counsel to prepare responses to these re-filed complaints, and will spend 1 hour to coordinate each response with outside legal counsel.

1,000 complaints x 50% complaint responses using “in-house” staff = 500 complaint responses using “in-house” staff

1,000 complaints x 50% complaint responses using outside legal counsel = 500

complaint responses using outside legal counsel

100 responses to complaints re-filed with the Commission

Annual Number of Responses: 1,100 responses

500 ”in-house” responses x 3 hrs/response = 1,500 hours

500 outside legal counsel responses x 1 hr/response conferring with outside legal counsel on responses = 500 hours

100 responses to re-filed complaints x 1 hr/response conferring with outside legal counsel = 100 hours

Annual Burden Hours: 2,100 hours

The Commission estimates, for present and future purposes, that VPDs will use “in-house” legal and/or administrative staff earning the equivalent salary of a GS-14/step 5 level ($57.13/hour) to prepare responses to consumer complaints, and to confer with outside legal counsel on the responses that it will prepare to consumer complaints and complaints re-filed with the Commission:

500 responses using “in-house” staff x 3 hours/response x $57.13/hour = $85,695

500 outside legal counsel responses to original complaints x 1 hour/response conferring with outside legal counsel x $57.13/hour = $28,565

100 outside legal counsel responses to original complaints x 1 hr/response conferring with outside legal counsel x $57.13/hour = $5,713

Annual “In-House” Costs: $85,695 + $28,565 + $5,713 = $ 119,973

(c) Re-filing of Misdirected Complaints: The Commission assumes, for present and future purposes, that 10 percent of the estimated 1,000 annual complaints will have to be re-filed by consumers because they were misdirected when first filed. The Commission estimates that the average burden for consumers to re-file such misdirected complaints will be approximately 15 minutes (0.25 hours) per complaint re-filed.

1,000 complaints x 10% re-filed = 100 re-filed complaints (responses)

The number of respondents is already encompassed in the number of respondents noted in (a). This is a layout of the burden hours it would require for consumers to re-file complaints that were originally misdirected.

100 responses x 0.25 hrs/response = 25 hours

Annual Burden Hours: 25 hours

Annual “In-House” Costs: None

(d) Recordkeeping in Support of Complaint Responses: The Commission estimates, for present and future purposes, that the average annual burden for VPDs to perform recordkeeping and to make information available upon request to the Commission will be 10 hours for each VPD.¹⁷ The Commission believes that the VPDs can perform these activities “in house:”

Annual Number of Responses: 11,209 sets of records kept (responses)

11,209 VPDs x 10 hrs/VPD = 112,090 hours

Annual Burden Hours for VPDs to perform recordkeeping and to make closed captioning information available to viewers: 112,090 hours

The Commission estimates, for present and future purposes, that VPDs will use clerical/administrative staff earning a salary equivalent to a GS-5/Step 5 level ($18.50/hour) to perform recordkeeping and to make closed captioning information available to the Commission:

112,090 hours x $18.50/hour = $2,073,665

Annual “In House” Costs: $2,073,665

(3) Provision of contact information to viewers, subscribers, and FCC

47 C.F.R. § 79.1(i) requires that VPDs make two kinds of contact information available to consumers: (1) contact information for the receipt and handling of immediate closed captioning concerns raised by consumers (e.g., the captions suddenly disappear or become garbled); and (2) contact information for the receipt and handling of written closed captioning complaints. All VPDs must place this information in telephone directories, in billing statements, to the extent they issue billing statements, and on their Web sites, if they have a Web site, and must provide their contact information to the FCC for posting on the FCC’s Web site. In addition, VPDs are required to keep this information current, and update it within 10 business days for Web sites (including the Commission’s Web site), by the next billing cycle for billing statements, and by the next publication of directories.

1. The Commission estimates, for present and future purposes, that 11,209 VPDs will place one contact information listing in four telephone directories annually. The Commission further estimates that 13 VPDs are national or regional providers serving multiple markets, and that they will only place contact information listings in directories in markets where they directly do business. While the actual number of directories per provider will depend on the provider’s geographic reach, the Commission estimates that, on average, each of these 13 VPDs will place one contact information listing in 100 telephone directories annually.

Annual Responses: 11,209 VPDs x 4 listings/VPD/year = 44,836

13 VPDs x 100 listings/VPD/year = 1,300

46,136 listings (responses)

The Commission estimates, for present and future purposes, that 11,209 VPDs will spend approximately 1 hour each conferring with outside printing firms on how to compose the contact information to be placed in telephone directories. The Commission further estimates that the aforementioned 13 VPDs will spend approximately 10 hours each conferring with outside printing firms on how to compose the contact information to be placed in telephone directories.

Annual Burden Hours: 11,209 VPDs x 1 hour/VPD = 11,209

13 VPDs x 10 hours/VPD = 130

11,339 hours

The Commission estimates, for present and future purposes, that VPDs will use “in-house” legal and/or administrative staff earning the equivalent salary of a GS-13/step 5 level ($48.35/hour) to confer with outside printing firms.

Annual “In-House” Costs: 11,209 VPDs x 1 hour/VPD x $48.35/hour = $541,955.15

13 VPDs x 10 hours/VPD x $48.35/hour = $ 6,285.50

$548,240.65

2. Of the 6,898 subscription service providers, the Commission estimates, for present and future purposes, that 20 percent or 1,380 will have changed their contact information and that 5 percent or 345 will be new entrants.¹⁸ As a result, the Commission estimates that 1,725 subscription service providers will update or place contact information in billing statements, and that they will spend approximately 30 minutes (0.5 hours) doing so.¹⁹

Number of Responses: 1,725 responses

1,725 subscription service providers x 1 contact information placement or update/provider x 0.5 hrs/contact information placement = 862.5 hours (863 hours rounded)

Annual Burden Hours = 863 hours

The Commission estimates, for present and future purposes, that 1,725 subscription service providers will use “in-house” clerical/administrative staff earning equivalent to a GS-5/step 5 salary ($18.50/hour) to place contact information in billing statements:

1,725 subscription service providers x 0.5 hrs/subscription service provider x $18.50/hour = $15,956.25

Total “In-House” Costs: $15,956.25

3. Of the 11,209 VPDs, the Commission estimates, for present and future purposes, that 20 percent or 2,242 will have changed their contact information and that 5 percent or 560 will be new entrants.²⁰ As a result, the Commission estimates that 2,802 VPDs will update or place contact information on their Web sites.

Annual Responses: 2,802 VPDs x 1 listing/VPD = 2,802 listings (responses)

The Commission estimates, for present and future purposes, that 2,802 VPDs will spend approximately 30 minutes (0.5 hours) each providing contact information on their Web sites:

Annual Burden Hours: 2,802 VPDs x 0.5 hrs/VPD = 1,401 hours

The Commission estimates, for present and future purposes, that 2,802 VPDs will use “in-house” clerical/administrative staff earning equivalent to a GS-5/step 5 salary ($18.50/hour) to provide contact information:

Annual “In-House” Costs: 2,802 VPDs x 0.5 hours/VPD x $18.50/hour = $25,918.50

4. Of the 11,209 VPDs, the Commission estimates, for present and future purposes, that 20 percent or 2,242 will have changed their contact information and that 5 percent or 560 will be new entrants.²¹ As a result, the Commission estimates that 2,802 VPDs will update or provide contact information to the FCC.

Annual Responses: 2,802 VPDs x 1 filing/VPD = 2,802 filings (responses)

The Commission estimates, for present and future purposes, that 2,802 VPDs will spend approximately 15 minutes (0.25 hours) each providing contact information to the FCC:

Annual Burden Hours: 2,802 VPDs x 1 filing/VPD x 0.25 hrs/filing = 700.5 hours (701 hours rounded)

The Commission estimates, for present and future purposes, that 2,802 VPDs will use “in-house” clerical/administrative staff earning equivalent to a GS-5/step 5 salary ($18.50/hour) to provide contact information:

Annual “In-House” Costs: 2,802 VPDs x 1 filing/VPD x 0.25 hours/filing x $18.50/hour = $12,959.25

EXISTING (FINAL) INFORMATION COLLECTION REQUIREMENTS:

Total Number of Respondents: 12,609

Total Annual Number of Responses: 67,424

Total Annual Burden Hours: 130,795

Total Annual “In-House” Costs: $2,858,184.53

EXISTING (FINAL) INFORMATION COLLECTION REQUIREMENTS

Existing (Final) Information Collection Requirements:	Number of Respondents	Number of Responses	Estimated Hourly Burden	Annual Burden Hours	Annual “In House” Costs
(1) petitions for individual exemption
(1)(a)(i) VPO petitions using “in house” staff	180	180	5	900 hours	$51,417.00
(1)(a)(ii) VPO petitions using outside legal counsel	20	20	2	40 hours	$2,285.20
(1)(b)(i) Commenter responses to petitions using “in house” staff	20	20	5	100 hours	$5,713.00
(1)(b)(ii)(A) Commenter responses to petitions using pro-bono outside legal counsel	162	162	0	0 hours	n/a
(1)(b)(ii)(B) Commenter responses to petitions using paid outside legal counsel	18	18	2	36 hours	$2,056.68
(1)(c) Petitioners filing replies to oppositions by commenters	Already inc. under (1)(a)	50	0 (burdens already included under estimates for (1))	0 hours (burdens already included under estimates for (1))	0 (burdens already included under estimates for (1))
(2) Complaints alleging violations of the Closed Captioning Rules:
(2)(a) Viewers filing complaints	1,000	1,100	1-2	1,200 hours	n/a
(2)(b) VPD responses to complaints	1,000	1,100	1-3	2,100 hours	$119,973.00
(2)(c) Re-filing of misdirected complaints	Already inc. under (a)	100	0.25	25 hours	n/a
(2)(d) Recordkeeping in support of complaint responses	11,209	11,209	10	112,090 hours	$2,073,665.00

(3) Provision of contact information to viewers, subscribers, and FCC	11,209
(3)(a) VPDs provide contact information in telephone directories	Already inc. under (2)	46,136	1-10	11,339 hours	$548,240.65
(3)(b) VPDs provide updated or new contact information in billing statements	Already inc. under (2)	1,725	0.5	863 hours	$15,956.25
(3)(c) VPDs place updated or new contact information on their Web sites	Already inc. under (2)	2,802	0.5	1,401 hours	$25,918.50
(3)(d) VPDs provide updated or new contact information to FCC	Already inc. under (2)	2,802	0.25	701 hours	$12,959.25
TOTAL EXISTING (FINAL) REQUIREMENTS	12,609	67,424	0.25 – 10 hours	130,795	$2,858,184.53

13. The following represents the Commission’s estimate of annual cost burdens to respondents resulting from respondents’ consultation time with outside legal counsel:

(A) Filing of Individual Exemption Petitions

In Section 12(A)(1)(a)(ii) above, the Commission estimates that 10% of 200 annual individual exemption petitions will be filed by outside legal counsel, who will prepare the petitions for exemption, reply comments and associated certifications. The Commission further estimates that these assignments may require 5 hours per petition, and that outside legal counsel will charge $300.00 per hour for legal services:²²

20 petitions x 5 hours/petition = 100 hours

100 hours x $300.00/hour legal services = $30,000.00

Total Annual Cost: $30,000.00

(B) Responses to Individual Exemption Petitions

In Section 12(A)(1)(b)(ii) above, the Commission estimates that 90 percent of 200 annual oppositions to individual exemption petitions will be prepared using outside legal counsel. Of the resulting 180 oppositions to be prepared by outside legal counsel, the Commission estimates that 90 percent, or 162, will be prepared on a pro bono (without cost to the respondent) basis. For the remaining 10 percent of the 180, or 18, the Commission estimates that outside legal counsel preparing the responses, including the certification, will require 5 hours and will charge $300.00 per hour.

18 responses x 5 hours/response = 90 hours

90 hours x $300.00/hour “outside” legal fees = $27,000.00

Total Annual Cost: $27,000.00

(C) Responses to Consumer Complaints Alleging Violation of Closed Captioning Rules

In Section 12(A)(2)(a) above, the Commission estimates that with 50 percent of the estimated 1,000 annual complaints, VPDs will use outside legal counsel to prepare responses to the complaints. The Commission further estimates that outside legal counsel will spend 3 hours per response and charge $300.00 per hour for legal services.

500 responses x 3 hrs/response = 1,500 hours

1,500 hours x $300.00/hour outside legal services = $450,000.00

Total Annual Cost: $450,000.00

(D) Responses to Re-filed Complaints Submitted to the Commission

In Section 12(A)(2)(c) above, the Commission estimates that 20 percent of 500 complaints originally filed with VPDs will be re-filed with the Commission. In Section 12(A)(2)(b), the Commission assumes that of the resulting 100 complaints per year that will be re-filed with the Commission, VPDs will use outside legal counsel to prepare responses to all of these re-filed complaints. The Commission further estimates that outside legal counsel will require 4 hours to prepare, submit and serve responses to each complaint re-filed with the FCC, and will charge $300.00 per hour for legal services.

100 responses x 4 hours/response = 400 hours

400 hours x $300.00/hour “outside” legal fee = $120,000.00

Total Annual Cost: $120,000.00

(E) Placing Contact Information in Telephone Directories

In Section 12(A)(3)(a) above, the Commission estimates that each of 11,209 VPDs will hire an outside printing firm to place complaints-related contact information into 4 telephone directories annually, and each of 13 VPDs will hire an outside printing firm to place complaints-related contact information into 100 telephone directories annually. The Commission further estimates that each outside printing firm will charge a flat rate of $756 per year, per listing, to place the required contact information in telephone directories.²³

11,209 VPDs x 4 annual listings/VPD x $756/annual listing = $33,896,016

13 VPDs x 100 annual listings/VPD x $756/annual listing = $982,800

$34,878,816

Total Annual Cost: $34,878,816

(a) Total capital and/or start-up costs: None

(b) Total operation and maintenance costs:

$30,000.00 + $27,000.00 + $450,000.00 + $120,000.00 + $34,878,816.00 = $35,505,816.00

(c) Total Annual Costs: $35,505,816.00

14. Estimates of annualized costs to the Federal government are as follows:

(i) Processing Individual Exemption Petitions

VPOs submit approximately 200 petitions for individual exemption from the closed captioning rules to the Commission annually,²⁴ and the Commission estimates that a response will be filed for each. The Commission uses attorneys at the GS-14/Step 5 level ($57.13/hour) to review these petitions and the comments/responses. The Commission estimates that its attorneys spend 10 hours to review each of these petitions and their associated records (i.e., including responses/opposition, replies, and any other filings associated with the petition):

200 petitions x 10 hours x $57.13/hour = $114,260.00

(ii) Processing Complaints and re-filed VPD Complaints Submitted to the FCC

(a) Viewers submit approximately 500 complaints annually directly to the Commission, and re-file with the Commission approximately 20 percent of the approximately 500 complaints originally filed with VPDs.²⁵ The Commission uses clerical staff at the GS-8/5 level ($25.38/hour) to forward these estimated 600 complaints to VPDs. This requires approximately 15 minutes (0.25 hours) per complaint to complete:

600 complaints x $25.38/hour x 0.25 hours/complaint = $3, 807.00

(b) The Commission uses clerical staff at the GS-8/Step 5 level ($25.38/hour) to process and review each complaint, which the Commission estimates requires 5 hours per complaint:

600 complaints x $25.38/hour x 5 hours/complaint = $76,140.00

(iii) Posting and Updating Contact Information, and Public Notice Releases

The Commission uses paraprofessional staff at the GS-14/5 level ($57.13) to post for new entrants, and to update as necessary, VPDs’ contact information to the FCC Web site.²⁶ The Commission estimates that of the 2,802 VPDs that update or provide new contact information to the Commission each year,²⁷ 70 percent will post it directly to the FCC Web site and that 30 percent or 841 VPDs will provide the contact information in a form that requires the Commission to reenter the information on the FCC Web site. The Commission estimates that it takes staff approximately 0.25 hours per posting to update the contact information.²⁸

841 Web site postings x 0.25 hours/posting x $57.13/hour = $12,011.58

(iv) Handling of Contact Information Inquiries in the Consumer Center

Because the Commission’s Consumer Center already handles telephone inquiries as part of its day-to-day operations, and the volume of calls due to contact information inquiries is marginal, if not negligible, the Commission concludes that the handling of contact information inquiries does not measurably add any burdens to Commission staff.

Total Cost to the Federal Government:

$114,260.00 + $3,807.00 + $76,140.00 + $12,011.58 = $206,218.58

15. This supporting statement contains various adjustments to the collections of information covered under OMB Control Number 3060-0761. Specifically, the Commission generally reevaluated the assumptions underlying the calculation of its total annual burden estimates for the existing final information collections. Accordingly, the Commission has re-evaluated the calculation of its total respondents, annual number of responses, annual burden hours, and annual costs for this information collection. These adjustments are reflected as follows: -1,674 to the annual respondents, -31,640 to the annual number of responses, -22,559 to the annual burden hours and $2,777,184 to the annual cost burden.

The Commission has program changes to this information collection. These program changes are due to the removal of the proposed information collection requirements that were approved under OMB Control Number 3060-0761. The Commission will consider those proposed requirements when it considers the remaining pending matters from the 2005 Notice of Proposed Rulemaking. The program changes are as follows: -12,183 to the total annual number of responses and -73,098 hours to the total annual burden hours.

16. The results of these information collections are not planned to be published.

17. The Commission intends to display the expiration date for OMB approval of the information collection.

18. There are exceptions to the Certification Statement which are due to the Commission removing the approved proposed information collection requirements from this collection. The Commission will consider the proposed requirements when it considers the remaining pending matters from 2005 Notice of Proposed Rulemaking.

B. Collections of Information Employing Statistical Methods

The Commission does not anticipate that the collection of information will employ statistical methods.

1 EIA-708-B is the standard adopted by the Electronics Industries Alliance for digital closed captioning.

2 See Closed Captioning of Video Programming; Closed Captioning Requirements for Digital Television Receivers, CG Docket No. 05-231 and ET Docket No. 99-254, Declaratory Ruling, Order, and Notice of Proposed Rulemaking, FCC 08-255, 23 FCC Rcd 16674 (Nov. 7, 2008) (2008 Closed Captioning Declaratory Ruling and Order).

3 The Commission changed the term from undue burden to economically burdensome on a interim basis in order to implement a conforming amendment to 713(d)(3) of the Communications Act of 1934, as amended, 47 U.S.C. § 613(d)(3), which changed the term in that section from undue burden to economically burdensome without changing the four factor test to be used. Anglers Review Order, 26 FCC Rcd at 14957-14960, ¶¶ 30-36. See also Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), Pub. L. No. 111-260 § 202(c), 124 Stat. 2751 (2010). See also Amendment to CVAA, Pub. L. 11-265, 124 Stat. 2795 (2010), which makes technical corrections to the CVAA. The Anglers Review Order also included a notice of proposed rulemaking, which proposed to make the change of terminology to economically burdensome a permanent change. 26 FCC Rcd at 14961-14962, ¶¶ 38-39.

4 The Commission is in the process of updating the PIA to incorporate various revisions to it as a result of revisions made to the SORN.

5 See Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, MB Docket No. 11-154, Report and Order, App. C, FCC 12-9, Final Regulatory Flexibility Analysis at ¶ 12 (January 13, 2012) (IP Captioning FRFA), citing Warren Communications News, Television & Cable Factbook 2008, “U.S. Cable Systems by Subscriber Size,” page F-2 (data current as of Oct. 2007). The data do not include 851 systems for which classifying data were not available.

6 See FCC News Release, “Broadcast Station Totals as of December 31, 2011,” dated January 6, 2012. This total includes UHF and VHF Commercial TV, UHF and VHF Educational TV, UHF and VHF Class A Stations, and UHF and VHF Low Power TV.

7 See http://www.fcc.gov/mb/ovs/csovscer.html; http://transition.fcc.gov/mb/ovs/csovsarc.html (current as of January 2012).

8 See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Thirteenth Annual Report, 24 FCC Rcd 542, 580, ¶ 74 (2009) (“13th Annual Report”). We note that, in 2007, EchoStar purchased the licenses of Dominion Video Satellite, Inc. (“Dominion”) (marketed as Sky Angel). See Public Notice, “Policy Branch Information; Actions Taken,” Report No. SAT-00474, 22 FCC Rcd 17776 (IB 2007).

9 The Independent Multi-Family Communications Council (IMCC) lists 41 members on its website. See http://www.imcc-online.org/imcc/?cat=10 (visited January 23, 2012).

10 Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Twelfth Annual Report, MB docket No. 05-255, 21 FCC Rcd 2503, 2565, ¶¶ 131-32 (mentioning five systems operated by two different providers; in addition, industry-wide, estimated number of subscribers as of March 2005 was 100,000, down from 200,000 subscribers in 2004); see also 13^th Annual Report. 24 FCC Rcd at 609-610, ¶ 141 (mentioning that the estimated number of subscribers for 2006 remained at 100,000).

11 13^th Annual Report, 24 FCC Rcd at 604-606, ¶¶ 130-134.

12 13^th Annual Report, 24 FCC Rcd at 607, ¶ 137.

13 The Commission notes that the July 2009 supporting statement also included 1000 miscellaneous video programming producers and owners in the above table and referred to such producers and owners (VPOs) and VPDs collectively as VPPs. Because video programming producers and owners are subject only to the collection requirements associated with petitions for individual exemption, and are not subject to the other collection requirements, the Commission is no longer including them in the above table.

14 Although the Commission changed the term used for the standard for individual exemption petitions from undue burden to economically burdensome, the four factor test originally used to determine undue burden is now used to determine economically burdensome. See Anglers Review Order, 26 FCC Rcd at 14957-14960, ¶¶ 30-36; Economically Burdensome Order at ¶¶ 7-9. See also note 3, supra. Because the four factor test for individual exemptions remains identical, the Commission believes that the July 2009 estimate of 100 such petitions being filed annually is still valid.

15 Based on empirical data from the number of individual exemption petitions filed in recent years, the July 2009 estimate of 100 individual exemption petitions per year has been increased to 200 per year.

16 Empirical data from the number of complaints filed with the Commission in 2010 and 2011 confirms the accuracy of the anticipated number of complaints estimated in July 2009.

17 The Commission considers all of these recordkeeping and information provision requirements to constitute one response per VPD or one set of records kept per VPD, with the 10 hours per response encompassing the burdens associated with fulfilling these requirements.

18 Because the requirement to provide contact information has been in effect since February 19, 2010, VPDs have had ample opportunity to initially provide their contact information in accordance with the Commission’s rules. Therefore, the July 2009 estimates for initially providing contact information in billing statements are no longer applicable.

19 Though billing statements typically are issued once per month, the Commission considers this a one-time burden because, once contact information is placed in billing statements, it need only be replicated in subsequent billing statements.

20 Because the requirement to provide contact information has been in effect since February 19, 2010, VPDs have had ample opportunity to initially provide their contact information in accordance with the Commission’s rules. Therefore, the July 2009 estimates for initially providing contact information on websites are no longer applicable.

21 Because the requirement to provide contact information has been in effect since February 19, 2010, VPDs have had ample opportunity to initially provide their contact information in accordance with the Commission’s rules. Therefore, the July 2009 estimates for initially providing contact information to the FCC are no longer applicable.

22 The increase in the hourly rate from $250.00 per hour in the July 2009 supporting statement to $300.00 per hour in the instant statement is a result of general increases in law firm hourly rates.

23 Because outside printing firms charge an annual flat rate, there is no hourly burden associated with this cost.

24 Based on empirical data from the number of individual exemption petitions filed in recent years, the July 2009 estimate of 100 individual exemption petitions per year has been increased to 200 per year.

25 See supra Section 12(A)(2)(a).

26 Because the requirement to provide contact information has been in effect since February 19, 2010, VPDs have had ample opportunity to initially provide their contact information in accordance with the Commission’s rules. Therefore, the July 2009 estimates for initially providing contact information to the FCC are no longer applicable.

27 See supra Section 12(A)(3)(d), where the Commission estimates that 5 percent of the VPDs will be new entrants and that 20 percent of VPDs will update their contact information annually.

28 The July 2009 supporting statement included an aggregate estimate of 120 hours for all postings; this has been revised to 0.25 hours per posting, which the Commission believes to be more accurate.

23