FCC upholds denial of San Antonio church’s closed captioning exemption request

posted on 2.08.2016

The FCC has upheld its denial of a San Antonio church’s exemption request from the commission’s closed captioning rules.

In 2009, San Antonio’s San Fernando Cathedral, which produces La Santa Misa, a Sunday Mass program broadcast weekly on satellite and “various TV Networks, Cable services, and independent stations” sought a waiver from the FCC’s closed captioning rules.

In 2012, after the FCC issued the so-called “Anglers Reversal MO&O”, the church was notified of the need to file updated information with respect to their pending petition to meet the requirements of that decision and the FCC’s captioning rules.

After the church replied to several FCC requests to supplement the original petition, the commission dismissed the church’s petition in 2014 saying it remained incomplete.

The church filed a petition for review of the dismissal that same year.

This month the FCC denied the review saying the church “has not provided sufficient justification for granting the sought waiver.”

The FCC ordered that closed captioning must be provided for this program no later than May 2.

The church had petitioned with several reasons to exempt the program which the FCC rejected save one.  

Among those rejected were:

• First Amendment – the church argued that application of the captioning rules to the La Misa program violated the Free Exercise Clause of the First Amendment.  The FCC said by the church availing itself of a means for dissemination of its programming governed by commission regulation, it subjected that programming to requirements that apply to such video programming generally.  Quoting prior case law, the FCC said the Free Exercise Clause of the First Amendment “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.”
   
• Hosanna-Tabor – the church said the visual format of its Sunday Mass telecast interfered with the religious organization’s “sensitive internal judgments.”   Hosanna-Tabor is a U.S. court decision that addresses the ministerial exception to employment discrimination laws.  The FCC said the church read Hosanna-Tabor too broadly because it pertains only to the employment relationship between a religious institution and its ministers.  Said the FCC, “Hosanna-Tabor does not apply here because the captioning rules do not interfere with religious organizations’ selection of ministers.”
   
• Categorical Exemptions – the church argued it was entitled to a categorical exemption.  The FCC said “We find no basis to conclude that La Santa Misa would qualify for either of the categorical exemptions it claims is applicable. While SFC claims a “late hours” categorical exemption, which depends on the time of broadcast, SFC did not provide any specifics concerning the markets where the Sunday Mass is allegedly broadcast before 6:00 a.m. Further, the “locally produced programming” categorical exemption, which SFC claims is also applicable, pertains only to programming locally produced “by the video programming distributor,” among other requirements.  We find no basis to conclude that SFC is a video programming distributor within the meaning of the FCC’s Rules.  In any event, according to SFC, the program is not only locally delivered, but also distributed by satellite to a variety of communities spanning a number of time zones.”
   
• Economically burdensome exemption – the FCC said the church failed to provide, either in the initial petition or supplemental filings, adequate evidence to support its request for an individual exemption.  Regarding its financial status, for example, the documentation provided by the church “only purported to show the operating budget for the Sunday Mass broadcast effort and did not address the overall financial resources available”.   The FCC said this insufficiency was never corrected, despite repeated requests.   The commission said the church also “failed to identify any sources or price quotes to verify the cost it would incur to caption La Santa Misa or to demonstrate the unavailability of financial support for captioning from its video programming distributor or other parties.”

Questions? Contact TAB's Michael Schneider or call (512) 322-9944.

---