On September 12th, the Federal Communications Commission granted closed-captioning exemptions for two religious broadcasters, a fairly rare occurrence until recently. But this decision went further, noting that in future cases if a non-profit demonstrates that it receives no compensation from video program distributors and that "in the absence of an exemption, may terminate or substantially curtail its programming," the FCC will favor a closed captioning exemption request.

The American Association of People with Disabilities quickly denounced the decision. Massachusetts Congressmember Edward Markey sent an open letter to FCC Chair Kevin Martin expressing his concern.

"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."

In the mid-1990s Karen Peltz Strauss served as attorney for the National Association for the Deaf. In that role she helped to draft language included in the Telecommunications Act of 1996 that created closed captioning mandates.

This year GU Press published her pathbreaking book A New Civil Right: Telecommunications Equality for Deaf and Hard of Hearing Americans. Strauss runs KPS Consulting on behalf of consumers with hearing disabilities.

LLFCC caught up with Strauss to get her take on the FCC's recent rulings.

LLFCC: What is your reaction to the FCC's decision to make it easier for non-profits to petition out of closed captioning requirements?

Karen Peltz Strauss: I am very concerned about the process that the FCC has followed, or failed to follow, in taking this new step. Two recent orders have come out. One is actually a public notice. Both involve the failure to follow Federal procedures.

The first notice, dated August 7, 2006, involved emergency programming. In that notice, the FCC backtracked on requiring certain stations in larger cities to provide captioning on emergency programming. An earlier public notice, dated July 20, 2006, had made clear that these particular stations, that are subject to a rule that requires real-time captioning on nearly all their programming since January 2006, must caption emergency broadcasts. They can't just provide access to such emergency information in another visual format.

Although the FCC issued the July 20th notice to make clear that these stations had to caption in real-time, the Commission’s August 7th notice indicated that it would rely on the good faith of these stations to decide whether or not they could caption such emergency programming. That was upsetting to consumers, who have filed an application for review of the August 7th decision. One of the reasons it is upsetting is that it seems to create a rule change without following notice and comment procedures.

Now in the more recent action, in which the FCC granted two petitions exempting programmers from the closed captioning rules—that order itself is upsetting, because it opens up the door for hundreds, if not thousands, of programmers to come forward and ask for exemptions. One of the most disturbing things about it is that it seems to use a new standard, again without any notice or comment from the public.

LLFCC: Why is that disturbing?

KPS: The new standard seems to suggest that a non-profit organization can get an exemption when it does not receive compensation from program distributors and when it claims that, without getting an exemption, it might terminate or substantially curtail its programming or curtail other activities important to its mission. Being able to get an exemption when the entity even alleges that activities important to their mission would be curtailed—that is not a standard in the rules. It's a standard that is created by this order. There was no notice and public comment. So it is very upsetting that the FCC would go ahead and create a standard like this without issuing notice and comment to the public.

Now on top of that there have been hundreds of additional letters sent out from the FCC granting additional exemptions.

LLFCC: I've noticed some of them while reading the FCC's Daily Digest.

KPS: This is what's interesting. The Daily Digest has, since 1999, contained notices about requests for exemptions from the closed captioning rules. However, there are hundreds of additional requests for exemptions that were submitted that never went into the Daily Digest. That's what is upsetting.

Now one organization, the National Association of the Deaf, has determined that over 500 letters in 2006, or rather requests for waivers, petitions for exemption, were not posted for public notice. In contrast, from 1999 through 2005 there were around 67 petitions put up for public notice. Each of those were analyzed by the FCC for undue burden. And what that entails basically is a balancing of the resources of the entity involved versus the cost of providing captioning. That is exactly what the law requires. It requires the FCC to put out a public notice on each petition, get public comment, and do an undue burden analysis.

But these 500 petitions filed in 2006 were not posted for public notice. In addition, somewhere between 200 and 250 were granted. Of those, however, to the extent that we can tell, very few of those were put out for public notice. There are approximately another 300 that are outstanding. So there's a failure of process here that's even more disturbing. What I don't understand is how an agency, can on its own decision, decide for good cause not to put out public notice on hundreds and hundreds of petitions, then grant those petitions, again without public notice. Those letters that went out granting those additional 200 or so—those were not posted in the Daily Digest.

LLFCC: The paradox is that this FCC has of late done some good things for deaf and hard-of-hearing people. Am I right?

KPS: Absolutely. This commission has been very good generally on disability issues. The disability rights community has had an excellent working relationship with this FCC. And the community really values that relationship.

However, the failure of process on this is so extreme. I think that the FCC was a little bit surprised at the community's reaction to what just happened. It's not in the normal order of things for such a lack of process to have taken place. The letters that the FCC sent out—each contained a footnote at the bottom—saying that while there are procedures to be followed for "undue burden" petitions, the FCC on its own motion and for good cause has decided to waive those procedures. There is no explanation in any of those letters for what that "good cause" is.

So why did they take this action? It's extremely surprising to us. They've had a good relationship with the community. There's been good communication, yet this and the emergency notice, which is a major change for the FCC, that action and this action together is a significant departure from the kind of good working relationship that they had with the community.

LLFCC: What will happen if this continues?

KPS: There's a pattern being created here. The fear is that it is sending a message to video programming producers and distributors that it's easy to get an exemption—come forth and we will give you what you want. In fact, if you look at the FCC's Web site, and you click on the page on captioning, the first thing you will see will not be the captioning rules, the first thing you will see is how to get an exemption.

What kind of message does that send to covered entities? If I were a covered entity it would say to me: "go for it." Not to mention the FCC's recent emergency notice, which said the FCC would defer to industry's good faith judgment. This is an industry that for twenty to thirty years neglected the law on emergency programming. There have been rules in effect since the mid-1970s that actually required broadcasters to provide emergency programming in a visual format. They were pretty much ignored. I mean hurricanes, earthquakes, tornadoes—for years, broadcasters failed to provide visual information, such as captions, scrolls, or crawls, that were necessary to enable people who cannot hear to understand what was happening in these televised emergencies. And now in 2006 the FCC says they are going to defer to the good faith judgment of this industry that has pretty much ignored their obligations for 30 years. It's very disturbing.

LLFCC: What's the disability access movement's strategy for responding to this?

KPS: There's been an application for review that was filed on the public notice dealing with emergency programming. And there will likely be a challenge as well on the order that recently came out on religious programming.