In a letter to FCC Chair Kevin Martin, a Massachusetts Congressmember today strongly criticized the agency's recent decision to make it easier for non-profit broadcasters to petition out of providing closed captioning for hard-of-hearing and deaf television viewers.

Edward Markey's letter comes in response to a September 12th FCC ruling granting exemption from closed captioning to two religious broadcasting groups: "Angler's for Christ Ministries, Inc," and "New Beginnings Ministries." The FCC's rules permit broadcasters to petition for an "undue burden" exemption, granted when closed captioning represents a "significant difficulty or expense" to the producer.

But in these two instances, the Commission went further, stating that the agency will now be "inclined favorably," to authorize exemptions for non-profit groups that do not "receive compensation from video programming distributors from the airing of programs, and that in the absence of an exemption, may terminate or substantially curtail its programming, or curtail other activities important to its mission."

"Taken as a whole," Markey wrote to Martin, "the Commission's action in this matter appears to have the effect of promulgating a change in its rules, specifically the creation of a new category of presumptive exemption from closed captioning rules."

Markey's letter offered three criticisms of the Commission's move:

• The FCC provided no clear standard for how to determine whether an "undue burden" will force a non-profit broadcaster to "curtail other activities" of importance. "I am not sure if this is what the Commission intended," Markey wrote, "but this obviously would create a test so lax that conceivably any non-commercial educational licensee could qualify by stipulating that any curtailment of 'other activities' warrants an exemption."
• The decision comes as the FCC is granting many new closed captioning waivers, possibly hundreds: "I understand that these exemption requests were filed and considered without public notice and therefore interested parties did no have an adequate mechanism for addressing potential problems or any deficiencies in the requests."
• Some non-profit broadcasters asked for temporary exemptions, yet the Commission granted them permanent waivers: "To simply eliminate the obligation to serve the disabled community permanently in such situations, by administrative fiat, when a petitioner was only seeking a temporary waiver flies in the face" of efforts to provide functional equivalency for the hard-of-hearing and deaf."

Although Markey's letter did not ask the agency to open a comment cycle on the question, he requested that the Commission launch a "fully transparent process" on the matter.

"A more adequate administrative process would provide ample opportunity for those who have waited a decade for the benefits of provisions of the closed captioning statute to become effective to be informed of each exemption request," Markey concluded.