[Federal Register Volume 64, Number 230 (Wednesday, December 1, 1999)]
[Proposed Rules]
[Pages 67236-67244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31116]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 99-339; FCC 99-353]


Implementation of Video Description of Video Programming

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This document proposes to adopt limited requirements for 
television video description. The Commission seeks comment on ways to 
increase the availability of video

[[Page 67237]]

description. This action is intended to ensure the availability of 
video description for the benefit of all Americans with visual 
disabilities in accordance with the Telecommunications Act of 1996.

DATES: Comments are due on or before January 24, 2000; reply comments 
are due on or before February 23, 2000.

ADDRESSES: Federal Communications Commission, 445 12th Street, Room TW-
A306, SW, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Eric Bash, Policy and Rules Division, 
Mass Media Bureau, (202) 418-2130.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (``NPRM''), FCC 99-339, adopted November 18, 
1999; released November 18, 1999. The full text of the Commission's 
NPRM is available for inspection and copying during normal business 
hours in the FCC Dockets Branch (Room TW-A306), 445 12 St. SW, 
Washington, DC. The complete text of this NPRM may also be purchased 
from the Commission's copy contractor, International Transcription 
Services, (202) 857-3800, 1231 20th St., NW, Washington, DC 20036.

Synopsis of Notice of Proposed Rulemaking

I. Introduction

    1. Television plays a significant role in our society. Television 
programming shapes public opinion and culture in myriad ways. It is the 
principal source of news and information and provides hours of 
entertainment every week to American homes. For the millions of 
Americans with visual disabilities--who watch television in similar 
numbers and with similar frequency to the general population--the 
difficulty of being able to follow the visual action in television 
programs puts them at a significant disadvantage. This disadvantage can 
be overcome through the use of video description, through which 
narrated descriptions of a television program's key visual elements are 
inserted during the natural pauses in the program's dialogue. Video 
description is typically provided through the use of the Secondary 
Audio Programming channel so that it is audible only to those who wish 
to hear the narration. The narration generally describes settings and 
actions that are not otherwise reflected in the dialogue, such as the 
movement of a person in the scene. In this NPRM, we propose to adopt 
limited requirements to ensure that video description is more available 
so that all Americans can enjoy the benefits of television. We expect 
to expand these requirements once we have gained greater experience 
with video description.
    2. Public television has been airing described video programming 
for more than a decade. WGBH's Descriptive Video Service (DVS) has 
described more than 1600 PBS programs, and in the fall of 1998 provided 
video description of three daily programs, four weekly programs, 
selected episodes of three other series and several specials. Many 
commercial broadcasters also have the technical ability to air 
described video programming, but few have done so. Many cable systems 
have the capability to provide described programming, but do so only on 
very limited channels, such as the Turner Classic Movies channel, and 
none of this programming is available without the assistance of public 
funding. As a result, less than 1% of all programming contains video 
description.
    3. The Commission has previously conducted inquiries on video 
description. The Commission issued its first Notice of Inquiry 
(``NOI'') on video description in 1995, 60 FR 65052 (December 18, 
1995). Section 713(f) of the Act, added by the 1996 Act, directed the 
Commission to commence an inquiry on video description, and report to 
Congress on its findings. Using the record adduced in response to the 
First NOI, the Commission issued the required report to Congress in 
1996, 61 FR 42249 (August 14, 1996). The Commission then issued a 
second NOI in 1997, 62 FR 38088 (July 16, 1997), and submitted more 
information to Congress on video description in its 1997 annual report 
on competition in the markets for the delivery of video programming, 63 
FR 10222 (March 2, 1998). The availability of video description has not 
meaningfully improved during the past several years while these 
proceedings were ongoing.
    4. Various parties have asked the Commission to take steps to 
enhance the availability of video description. As discussed, the 
Commission has received two specific proposals to implement the 
service, both of which suggest that we phase in video description over 
a number of years. In addition, the President's Advisory Committee on 
the Public Interest Obligations of Digital Television Broadcasters has 
encouraged digital broadcasters to provide video description. The 
Commission has also received letters of support from Congress and 
industry. Through this proceeding, we seek comment on ways to increase 
the availability of video description, without imposing an undue burden 
on industry.

II. Background

    5. Audience for Video Description. Video description is designed to 
make television programming more accessible to persons with visual 
disabilities, and enable them to ``hear what they cannot see.'' Thus, 
the primary audience for video description is persons with visual 
disabilities. Estimates of the number of persons with visual 
disabilities range from more than eight million to nearly twelve 
million. The group includes persons with a problem seeing that cannot 
be corrected with ordinary glasses or contact lenses, with a range in 
severity.
    6. A disproportionate number of persons with visual disabilities 
are older. The National Center for Health Statistics reports that eye 
problems are the third leading cause, after heart disease and 
arthritis, of restricting the normal daily activities of persons 65 
years of age or older. While only 2-3% of the population under 45 years 
of age has visual disabilities, 9-14% of the population 75 years of age 
or older does. This means that as the population ages, more and more 
people will become visually disabled.
    7. Secondary audiences for video description exist as well. For 
example, at least one and a half million children between the ages of 6 
and 14 with learning disabilities may benefit from video description. 
Because the medium has both audio description and visual appeal, it has 
significant potential to capture the attention of learning disabled 
children and enhance their information processing skills. Described 
video programming capitalizes on the different perceptual strengths of 
learning-disabled children, pairing their more-developed modality with 
their less-developed modality to reinforce comprehension of 
information.
    8. The secondary audience may also include persons without 
disabilities. Just as health club members and sports bar patrons have 
become beneficiaries of closed captioning, viewers who are doing 
several things at once, who need to attend to something during a 
program, or who leave the room during a program, may become 
beneficiaries of video description. In fact, the Narrative Television 
Network, which provides video description that is ``open'' and 
therefore cannot be turned off, reports that 60% of its audience is not 
visually disabled.
    9. Technology. Video description can be either ``open'' or 
``closed.'' Open description is provided as part of the main soundtrack 
of a program. As a result, no special equipment is needed for a 
broadcaster or multichannel video

[[Page 67238]]

programming distributor (MVPD) to transmit the descriptions or for the 
viewer to receive them. The descriptions cannot, however, be turned 
off.
    10. Closed description is provided on the Secondary Audio 
Programming, or SAP, channel. The SAP channel allows for an additional 
audio soundtrack for a program, independent of or separate from the 
monaural and stereophonic soundtracks. A secondary carrier, or 
subcarrier, transmits the SAP channel audio soundtrack through a 
modulator. When the SAP channel is used, a programming distributor 
transmits two separate audio tracks. The second audio track is 
transmitted with the main program signal. For example, the SAP channel 
as currently used by PBS for its video description is transmitted with 
the main program signal from the network's master control facility and 
satellite distribution system to the local station's broadcast facility 
and through the local transmitter. To accommodate the additional 
soundtrack, changes may need to be made to some network and local 
stations' plant wiring and equipment. At the local transmitter, the 
broadcast station or cable operator must have the technical facilities 
to pass through the subcarrier signal to include the SAP channel 
information.
    11. The CPB-WGBH National Center for Accessible Media (NCAM) 
reports that, as of 1998, 156 public television stations reaching 79 
million (80%) of TV households had installed the necessary equipment to 
distribute descriptions via SAP. In addition, each of the four largest 
commercial television networks (ABC, CBS, Fox, NBC) offered Spanish 
audio on the SAP channel last year. According to NCAM, in the top 25 
DMAs, 81% of one major commercial network's affiliates are SAP-
equipped, and, in the top 50 DMAs, 69% of cable systems are. NCAM also 
reports that SAP has been a standard feature of stereo broadcasting for 
the past fifteen years; as of 1997, 650 TV stations broadcast in 
stereo, amounting to roughly 40% of total TV stations. For those 
stations that are not yet SAP-equipped, NCAM estimates that the cost to 
update equipment to become so is between $5,000 and $25,000, based on 
the experience of the noncommercial stations that are SAP-capable.
    12. To receive information contained within the SAP channel, a 
viewer must have a receiver (TV set) capable of delivering it. 
According to the Consumer Electronics Manufacturers Association, as of 
January 1998, 59% of TV sets sold, and 90% of VCRs sold, have stereo 
capability, and most of these are SAP-equipped. The Commission observed 
several years ago that 52% of American households at the time had SAP-
compatible TV sets, and 20% had such VCRs. SAP-capable TV sets and VCRs 
can be relatively inexpensive, less than $150, and a converter box is 
also available for use with TV sets and VCRs that are not SAP-capable.
    13. Prior Video Description Inquiries. The Commission first 
considered video description when it issued a NOI on closed captioning 
and video description on December 4, 1995. Several months later, the 
Telecommunications Act of 1996 became law. Section 305(f) of the 1996 
Act added new section 713 to the Communications Act of 1934. Entitled 
``Video Programming Accessibility,'' section 713 addressed closed 
captioning and video description.
    14. On July 29, 1996, the Commission released the required report, 
based on the record adduced in response to the NOI. The Commission did 
not issue specific guidance on the criteria enumerated in section 713, 
because ``the present record on which to assess video description * * * 
is limited, and the emerging nature of the service renders definitive 
conclusions difficult.'' However, the Commission noted that ``the 
development of rules for closed captioning, which is more widely 
available, can provide a useful model for the process of phasing in 
broadened use of video description.'' The Commission concluded that it 
should monitor the service and seek more information in the context of 
its annual report on competition in the market for the delivery of 
video programming.
    15. On January 13, 1998, the Commission released its second report 
on video description, as part of its annual report to Congress on 
competition in the market for video programming. In the Fourth Annual 
Report, the Commission stated that ``it is certain that `closed' video 
description is feasible,'' given that it is already being provided by 
some, such as PBS. The Commission noted the expense of providing the 
service, citing, for example, information provided by WGBH that the 
expense of describing programming was approximately $3,400 per hour, 
and that the expense of noncommercial broadcasters that have upgraded 
equipment to become SAP-capable ranged from $5000 to $25,000.
    16. Coalition and NCAM Proposals. Following the Fourth Annual 
Report, NCAM submitted a proposal to phase in video description. This 
proposal was based on an earlier one submitted by the National 
Coalition of Blind and Visually Impaired Persons for Increased Video 
Access (Coalition), but modified and updated to take into account the 
Commission's closed captioning rules.
    17. NCAM proposes that initial video description requirements apply 
to the largest broadcast networks (ABC, CBS, Fox, NBC, and PBS), and 
national non-broadcast networks, such as cable networks, that serve 50% 
or more of the total number of MVPD households. In order to ensure that 
video description provided by these distributors is capable of being 
received by viewers, NCAM proposes local pass-through requirements on a 
staggered schedule. Thus, NCAM suggests that by the end of the first 
year after any Commission rules become effective, affiliates of the 
broadcast networks identified in the top 25 markets would be required 
to pass through the description provided by the networks, and all cable 
systems in the top 25 markets would be required to pass through the 
description provided by those broadcasters and by national non-
broadcast networks serving 50% or more of the total number of MVPD 
households. By the end of the second year, these requirements would be 
extended to the top 50 markets; by the end of the third year, to the 
top 100 markets; and by the end of the fourth year, to the top 200 
markets.
    18. Both the Coalition and NCAM propose that initial video 
description requirements apply to prime time and children's 
programming, and suggest that requirements for other programming be 
deferred for several years until the infrastructure for video 
description has developed more, and the Commission, the industry, and 
the public have gained more experience with the technology. Both the 
Coalition and NCAM propose that the requirements be phased in over a 
seven-year period. By the end of the first year after any Commission 
rules become effective, the distributors would be required to describe 
four hours of prime time programming per week. By the end of each 
succeeding year, they would be required to describe an additional three 
hours of prime time programming per week, until all twenty-two hours of 
prime time programming (excluding live newscasts) are described. In 
addition, by the end of the second year, both the Coalition and NCAM 
propose that the applicable distributors be required to describe three 
hours of children's programming per week.

III. Proposals and Request for Comment

    19. We propose to adopt limited rules to phase ``closed'' video 
description into the marketplace. We hope to ensure the more widespread 
availability of video description, but to proceed incrementally so as 
not to impose a

[[Page 67239]]

significant burden on video programming distributors. We thus propose 
that the largest video programming distributors should provide a 
limited amount of video description of their prime time and/or 
children's programming. We believe that requiring these distributors to 
provide some video description will not be economically burdensome for 
them. We further believe that requiring them to provide video 
description of a small portion of their prime time and/or children's 
programming will ensure the widest availability of video description to 
audiences that are most likely to benefit from it. We ask for comment 
on these views.
    20. In this section, we outline a particular proposal of the kind 
that we envision for the initial implementation of these rules. The 
proposal would require broadcasters affiliated with ABC, CBS, Fox, and 
NBC in Nielsen's top 25 Designated Market Areas (DMAs), and larger 
MVPDs, to provide some ``closed'' video description. We propose that 
these broadcasters and MVPDs provide a minimum of 50 hours per calendar 
quarter (roughly four hours per week) of described prime time and/or 
children's programming. Larger MVPDs would be required to carry the 
described programming of the broadcasters affiliated with the top 4 
networks, and of nonbroadcast networks that reach 50% or more of MVPD 
households. We also propose that these broadcasters and MVPDs begin 
providing the required described programming no later than 18 months 
after the effective date of our rules. We further propose to adopt 
procedures to waive our rules if compliance would be unduly burdensome, 
and to adopt enforcement procedures. These proposals are described in 
more detail.
    21. This approach is generally modeled after our closed captioning 
rules. Our approach here is more measured, however, because video 
description technology is not as developed as closed captioning 
technology, and all distributors may not have the technical capability 
now to provide described programming. As the Commission, the industry, 
and the public gain greater experience with video description, we will 
review the rules we propose to adopt now, and modify them as the public 
interest requires. We expect to increase the amount of required 
described programming over time ``in order to ensure the accessibility 
of video programming to persons with visual impairments,'' as 
envisioned by Congress in the section 713(f) of the Act.
    22. We recognize that broadcasters are in the process of converting 
from analog to digital technology. The flexibility inherent in digital 
technology may make the provision of video description even easier and 
less costly. Given that the need for video description exists now and 
that the transition to digital will not occur overnight, however, we do 
not wish to wait for the transition to be complete before adopting 
video description requirements. We are thus proposing to apply the 
requirements outlined in this Notice to analog broadcasters. We do 
intend, however, to extend our video description requirements to 
digital broadcasters in the future. We are inclined not to adopt a 
specific timetable to apply to digital broadcasters in the Report and 
Order arising out of this Proposed Rule, but rather to address such 
specifics in a future proceeding. At that time we can craft rules based 
upon the experience we have gained as a result of analog broadcasters' 
implementation of our initial requirements. We seek comment on this 
approach. We also seek comment on what technical issues are raised by 
the provision of video description by digital broadcasters and on how 
the conversion to digital affects the costs associated with the 
provision of video description.
    23. Entities to Describe Programming. We propose to hold 
programming distributors, as opposed to producers, responsible for 
compliance with our video description rules. We recognize that 
distributors may not actually describe the programming. In the closed 
captioning proceeding, the Commission observed that others such as 
producers might more efficiently caption programming, but reasoned that 
the Commission could more easily monitor and enforce the rules by 
holding distributors responsible for compliance. We believe this 
reasoning is equally applicable here, and therefore propose to hold 
distributors responsible for complying with video description 
requirements. We seek comment on these views.
    24. We propose to apply our rules to all distributors of video 
programming over which we have jurisdiction. Video programming 
distributors include television broadcast stations, cable operators, 
direct broadcast satellite (DBS) operators, home satellite dish (HSD) 
providers, open video system (OVS) operators, satellite master antenna 
television (SMATV) operators, and wireless cable operators using 
channels in the multichannel multipoint distribution service (MMDS). We 
believe that as many distributors as possible should provide video 
description to enhance the availability of the service, as well as to 
ensure a level playing field among distributors. MVPDs are increasingly 
the primary source of video programming for most Americans, and 
noncable MVPDs continue to grow. Some MVPDs may require separate SAP 
generators for each channel they wish to distribute with audio on a SAP 
channel. It does appear, however, that most of the distribution 
technologies are capable of transmitting audio on the SAP channel or 
through other means. We seek comment on this proposal.
    25. We believe, however, that our initial rules should only require 
the largest distributors to provide video description. As the 
Commission stated in the Fourth Annual Report, ``any requirements for 
video description should begin with only the largest broadcast stations 
and programming networks that are better able to bear the costs 
involved * * *. For example, a minimal amount of video description 
could be required to be provided by the larger broadcast stations in 
larger markets, and by the larger video programming networks.'' The 
costs of providing video description include the cost of having 
programming described, and, in some instances, the cost of upgrading 
equipment. We thus propose to require the affiliates of the four 
largest broadcast networks (ABC, CBS, Fox, and NBC) in the top 25 DMAs, 
and the larger MVPDs to provide video description. Our proposal is 
consistent with the first phase of NCAM's proposal. We seek comment on 
our proposal, and on how to define the larger MVPDs to which our 
initial rules should apply. We seek to identify those MVPDs that are 
comparable to the broadcast stations we have proposed to require to 
provide described programming. As indicated, we acknowledge and expect 
that programming networks, and not broadcast stations and MVPDs, will 
actually describe programming, but we believe, for ease of enforcement 
and monitoring of compliance with our rules, that we should hold 
distributors responsible for compliance. Our proposal would not require 
any noncommercial stations to provide video description at this time, 
given the financial difficulties that many of them face, particularly 
during the transition to DTV.
    26. To help us better evaluate our proposal and realize our goal of 
maximizing video description without imposing an undue burden, we also 
seek further comment on the costs of video description. The Commission 
has previously noted that the cost of

[[Page 67240]]

describing prime time programming may be as much as several thousand 
dollars per hour, although commenters have pointed out that the cost of 
describing prime time programming is but a small fraction of the total 
budget of such programming. We seek additional comment on the costs of 
describing programming, including more information on the costs 
relative to the production budgets of programming such as prime time 
programming. The Commission has also noted that the cost of upgrading 
equipment may be between $5,000 and $25,000, although NCAM reports that 
81% of one network's affiliates are SAP-equipped, and 69% of cable 
systems are. We seek more complete and updated information on the 
number of broadcasters and MVPDs that are SAP-equipped. We seek further 
comment on the cost of upgrading equipment, particularly from 
broadcasters that have already done this.
    27. We also seek comment on our proposal to require the largest 
distributors to provide described programming beginning 18 months after 
the effective date of our rules. We wish to select a beginning date 
that ensures more widespread video description is available rapidly, 
but does not impose an undue burden on distributors.
    28. We intend our proposal to require the largest programming 
distributors to provide a limited amount of video description to be a 
starting point for further development of the service. The experience 
of the largest programming distributors will provide us with concrete 
information upon which to propose a schedule to phase in other 
distributors. We seek comment on an appropriate timetable for the next 
phase in.
    29. Programming to be Described. We propose that the distributors 
should initially provide a minimum of 50 hours per quarter (roughly 
four hours per week) of video description of prime time and/or 
children's programming. As the Commission stated in the Video 
Accessibility Report, ``initial requirements for video description 
should be applied to new programming that is widely available through 
national distribution services and attracts the largest audiences, such 
as prime time entertainment series.'' Our proposal to require 
distributors to describe roughly four hours per week of prime time 
programming is consistent with first phase of the Coalition's and 
NCAM's proposals. Although four hours per week appears to be a 
reasonable starting point, we prefer to express the requirement as 50 
hours per quarter in order to grant distributors additional flexibility 
in selecting the best programming to describe. We propose also to 
permit distributors to meet the 50 hour video description requirement 
by describing children's programming in order to meet the needs of 
children with visual disabilities. As indicated, NCAM suggests that 
video description of children's programming would also provide a 
benefit to children with learning disabilities. Within these broad 
categories of programming, the distributors would have flexibility to 
decide which programming will reach the largest audience and be most 
likely to provide the intended benefits of video description. We seek 
comment on our proposal, and on any alternatives. Instead of requiring 
that the minimum number of hours of video description apply to prime 
time and children's programming, should we allow distributors complete 
flexibility to choose which programming to describe? Should we 
establish certain parameters to ensure that distributors select 
programming that has a significant audience that would benefit from 
video description? Whether we prescribe prime time and/or children's 
programming or not, is a minimum of 50 hours per quarter (roughly 4 
hours per week) appropriate for the initial requirement? We seek 
comment on the resources currently available to describe programming. 
We also seek comment on how to ensure that the public, and in 
particular people with disabilities, know when described video 
programming is scheduled.
    30. Commenters in our earlier NOI proceedings have noted that 
Spanish-language audio sometimes competes for use of the SAP channel. 
We seek comment on the extent to which Spanish or other languages use 
or plan to use the SAP channel, the impact, if any, of today's 
proposals on such services, and how such potential conflicts could be 
avoided or minimized. Further, although we believe that adoption of 
digital technology will eliminate any potential conflict between 
competing users of the SAP channel, we seek comment on whether there 
are any technical solutions to such potential conflicts in the analog 
environment.
    31. In addition, commenters in our earlier NOI proceedings have 
argued that a second script, which may constitute a ``derivative work'' 
under copyright law, is necessary to provide video description. As 
noted, however, many distributors have provided video description for 
years, and apparently have not found this to be an obstacle. We seek 
comment on whether copyright issues could become an obstacle to video 
description, and, what could be done to prevent or minimize such a 
result.
    32. The Coalition points out that public safety messages that 
scroll across the TV screen are totally inaccessible to persons with 
visual disabilities, and proposes that an aural tone be required to 
accompany the messages to alert such persons to turn on a radio, the 
SAP channel, or a designated digital channel. We believe that it is of 
vital importance for these emergency messages to be accessible to 
persons with visual disabilities. We seek comment on the Coalition's 
proposal, how it relates to the Commission's current standards for 
broadcasting emergency information, and on any other effective 
approaches to this problem. Could these messages be provided via 
``open'' description?
    33. Waivers and Enforcement Procedures. We also propose to adopt 
procedures to enforce our rules, and to waive them if compliance would 
result in an undue burden. The Commission adopted such procedures in 
its closed captioning rules. Guided by statutory factors, the 
Commission determined that factors relevant to a showing that 
compliance with its closed captioning rules would result in an undue 
burden are the nature and cost of captioning the programming, the 
impact on the operation of the petitioner, the financial resources of 
the petitioner, and the type of operations of the petitioner. The 
Commission also adopted some basic pleading requirements and timetables 
for petitions for waiver. In terms of enforcement, the Commission did 
not adopt any reporting requirements, but rather simply adopted 
pleading requirements and timetables. We seek comment on whether these 
procedures are appropriate for our initial video description rules.

IV. Jurisdiction

    34. We seek comment on the question whether we possess statutory 
authority to adopt the proposed video description rules. We also seek 
comment on the question whether the existence or relative strength of 
such authority varies according to the type of video programming 
provider--broadcaster, cable operator, or DBS company, for example--
potentially subject to the rules.
    35. In connection with this jurisdictional question, we note that 
section 1 of the Act established the Commission ``[f]or the purpose of 
regulating interstate and foreign commerce in communication by wire and 
radio so as to make available, so far as possible, to all the people of 
the United States * * * a rapid, efficient,

[[Page 67241]]

Nation-wide, and world-wide wire and radio communication service * * 
*.'' Also, section 2(a) grants the Commission jurisdiction over ``all 
interstate and foreign communication by wire or radio'' and ``all 
persons engaged within the United States in such communication * * *.'' 
In addition, section 4(i) of the Act empowers ``[t]he Commission [to] 
perform any and all acts, make such rules and regulations, and issue 
such orders, not inconsistent with this Act, as may be necessary in the 
execution of its functions.'' Finally, section 303(r) directs the 
Commission, ``as the public interest, convenience, and necessity 
requires,'' to ``[m]ake such rules and regulations and prescribe such 
restrictions and conditions, not inconsistent with law, as may be 
necessary to carry out the provisions in this Act * * *.''
    36. We further observe that Congress has expressed a general 
legislative preference for the increased accessibility of certain 
communications services for persons with disabilities. Section 225 
requires the Commission to ensure that ``interstate and intrastate 
telecommunications relay services are available, to the extent possible 
and in the most effective manner, to hearing-impaired and speech-
impaired individuals in the United States.'' Similarly, section 255 
requires manufacturers of telecommunications equipment, and providers 
of telecommunications services, to make such equipment and services 
``accessible to and usable by individuals with disabilities, if readily 
achievable.'' Section 303(u) generally requires television receivers to 
be equipped with a closed captioning chip. Section 710 provides for 
compatibility between telephones and hearing aids. In addition, the 
1998 amendments to section 508 of the Rehabilitation Act require 
federal departments and agencies to accommodate persons with 
disabilities, including both employees and members of the public, with 
respect to the accessibility of information, technology, and data.
    37. Other sections of the Act may also relate to the Commission's 
authority to adopt video description rules. For example, in order to 
grant a Title III license, renew such a license, or permit the 
assignment or transfer of such a license, sections 309(a), 307(c)(1) 
and 310(d) of the Act, respectively, require the Commission to find 
that the ``public interest, convenience, and necessity'' will be served 
thereby.
    38. Also potentially relevant to this inquiry is section 713(f). 
That provision directed the Commission to ``commence an inquiry to 
examine the use of video descriptions on video programming in order to 
ensure the accessibility of video programming to persons with visual 
impairments, and report to Congress on its findings.'' As noted, the 
report was to address ``appropriate methods and schedules for phasing 
video descriptions into the marketplace, technical and quality 
standards for video descriptions, a definition of programming for which 
video descriptions would apply, and other technical and legal issues 
that the Commission deems appropriate.''
    39. We seek comment on the question whether these provisions of the 
Act, taken together, provide sufficient authority to adopt the proposed 
video description regulations and on the scope of such authority as it 
relates to different types of programming providers.

V. Conclusion

    40. We adopt this Notice in order to stimulate greater availability 
of video description, while at the same time not impose an undue burden 
on distributors. To meet the needs of the millions of Americans with 
visual disabilities, many public television stations and a few cable 
programmers have voluntarily provided some video described programming, 
and we applaud these efforts. Through the limited requirements we 
propose today, we hope to make this service more widely available to 
ensure that all Americans have access to video programming.

VI. Administrative Matters

    41. Comments and Reply Comments. Pursuant to sections 1.415 and 
1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested 
parties may file comments on or before January 24, 2000 and reply 
comments on or before February 23, 2000. Comments may be filed using 
the Commission's Electronic Comment Filing System (ECFS) or by filing 
paper copies, 63 FR 24121 (May 1, 1998).
    42. Comments filed through ECFS can be sent as an electronic file 
via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, 
only one copy of an electronic submission must be filed. In completing 
the transmittal screen, commenters should include their full name, 
Postal Service mailing address, and the applicable docket or rulemaking 
number. Parties may also submit an electronic comment via e-mail. To 
get filing instructions for e-mail comments, commenters should send an 
e-mail to [email protected], and should include the following words in the 
body of the message, ``get form .'' A sample form 
and directions will be sent in reply.
    43. Parties who choose to file by paper must file an original and 
four copies of each filing. All filings must be sent to the 
Commission's Secretary, Magalie Roman Salas, Office of the Secretary, 
Federal Communications Commission, 445 Twelfth Street, SW, TW-A325, 
Washington, DC 20554.
    44. Parties who choose to file paper should also submit their 
comments on diskette. These diskettes should be addressed to: Wanda 
Hardy, Paralegal Specialist, Mass Media Bureau, Policy and Rules 
Division, Federal Communications Commission, 445 Twelfth Street, SW, 2-
C221, Washington, DC 20554. Such a submission should be on a 3.5 inch 
diskette formatted in an IBM compatible format using Word 97 or 
compatible software. The diskette should be accompanied by a cover 
letter and should be submitted in ``read only'' mode. The diskette 
should be clearly labeled with the commenter's name, proceeding 
(including the lead docket number in this case (MM Docket No. 99-353), 
type of pleading (comment or reply comment), date of submission, and 
the name of the electronic file on the diskette. The label should also 
include the following phrase ``Disk Copy--Not an Original.'' Each 
diskette should contain only one party's pleadings, preferably in a 
single electronic file. In addition, commenters must sent diskette 
copies to the Commission's copy contractor, International Transcription 
Service, Inc., 445 Twelfth Street, SW, CY-B402, Washington, DC 20554.
    45. Comments and reply comments will be available for public 
inspection during regular business hours in the FCC Reference Center, 
Federal Communications Commission, 445 Twelfth Street, SW, CY-A257, 
Washington, DC 20554. Persons with disabilities who need assistance in 
the FCC Reference Center may contact Bill Cline at (202) 418-0270, 
(202) 418-2555 TTY, or [email protected]. Comments and reply comments also 
will be available electronically at the Commission's Disabilities 
Issues Task Force web site: www.fcc.gov/dtf. Comments and reply 
comments are available electronically in ASCII text, Word 97, and Adobe 
Acrobat.
    46. This document is available in alternative formats (computer 
diskette, large print, audio cassette, and Braille). Persons who need 
documents in such formats may contact Martha Contee at (202) 4810-0260, 
TTY (202) 418-2555, or [email protected]. 

[[Page 67242]]

    47. Ex Parte Rules. This proceeding will be treated as a ``permit-
but-disclose'' proceeding, subject to the ``permit-but-disclose'' 
requirements under Sec. 1.1206(b) of the rules. 47 CFR 1.1206(b), as 
revised. Ex parte presentations are permissible if disclosed in 
accordance with Commission rules, except during the Sunshine Agenda 
period when presentations, ex parte or otherwise, are generally 
prohibited. Persons making oral ex parte presentations are reminded 
that a memorandum summarizing a presentation must contain a summary of 
the substance of the presentation and not merely a listing of the 
subjects discussed. More than a one or two sentence description or the 
views and arguments presented is generally required. 47 CFR 
1.1206(b)(2), as revised. Additional rules pertaining to oral and 
written presentations are set forth in Sec. 1.1206(b).
    48. Initial Regulatory Flexibility Analysis (``IRFA''). As required 
by the Regulatory Flexibility Act, 5 U.S.C. 603, the Commission has 
prepared an IRFA of the possible economic impact on small entities of 
the proposals contained in this Notice. Written public comments are 
requested on the IFRA. In order to fulfill the mandate of the Contract 
with America Advancement Act of 1996 regarding the Final Regulatory 
Flexibility Analysis, we ask a number of questions in our IRFA 
regarding the prevalence of small businesses in the television 
broadcasting industry. Comments on the IRFA must be filed in accordance 
with the same filing deadlines as comments on the Notice, and must have 
a distinct heading designating them as a response to the IRFA. The 
Reference Information Center, Consumer Information Bureau, will send a 
copy of this Notice, including the IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration.
    49. Initial Paperwork Reduction Act Analysis. This Notice may 
contain either proposed or modified information collections. As part of 
our continuing effort to reduce paperwork burdens, we invite the 
general public to take this opportunity to comment on the information 
collections contained in this Notice, as required by the Paperwork 
Reduction Act of 1996. Public and agency comments are due at the same 
time as other comments on the Notice. Comments should address: (a) 
Whether the proposed collection of information is necessary for the 
proper performance of the functions of the Commission, including 
whether the information shall have practical utility; (b) ways to 
enhance the quality, utility, and clarity of the information collected; 
and (c) ways to minimize the burden of the collection of information on 
the respondents, including the use of automated collection techniques 
or other forms of information technology. In addition to filing 
comments with the Secretary, a copy of any comments on the information 
collections contained herein should be submitted to Judy Boley, Federal 
Communications Commission, 445 Twelfth Street, SW, Room C-1804, 
Washington, DC 20554, or via the Internet to [email protected] and to 
Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 17th Street, NW, 
Washington, DC 20503 or via the Internet to [email protected]. 
    50. Additional Information. For additional information on this 
proceeding, please contact Eric Bash, Policy and Rules Division, Mass 
Media Bureau, (202) 418-2130, (202) 418-1169 TTY.

VII. Ordering Clauses

    51. Accordingly, pursuant to the authority contained in sections 1, 
2(a), 4(i), 303, 307, 309, 310, and 713 of the Communications Act, as 
amended, 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 613, this 
Notice of Proposed Rulemaking is adopted.
    52. The Commission's Reference Information Center, Consumer 
Information Bureau, shall send a copy of this Notice, including the 
Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration in accordance with the 
Regulatory Flexibility Act.

VIII. Initial Regulatory Flexibility Analysis

    53. As required by the Regulatory Flexibility Act, 5 U.S.C. 603 
(``RFA''), the Commission has prepared this present Initial Regulatory 
Flexibility Analysis (IRFA) of the possible economic impact on small 
entities by the policies and rules proposed in this Notice. Written 
public comments are requested on this IRFA. Comments must be identified 
as responses to the IRFA and must be filed by the deadlines for 
comments on the Notice provided in paragraph 38. The Commission will 
send a copy of the Notice, including this IRFA, to the Chief Counsel 
for Advocacy of the Small Business Administration, 5 U.S.C. 603(a). In 
addition, the Notice and the IRFA (or summaries thereof) will be 
published in the Federal Register.

Need for, and Objectives of, the Proposed Rules

    54. Section 713(f) of the Communications Act of 1934, as amended 
(``Act''), 47 U.S.C. 613, directed the Commission, within six months of 
its enactment, to ``commence an inquiry on video descriptions on video 
programming in order to ensure the accessibility of video programming 
to persons with visual impairments, and report to Congress on its 
findings.'' Section 713(f) required the report to ``assess appropriate 
methods and schedules for phasing video descriptions into the 
marketplace, technical and quality standards for video descriptions, a 
definition of programming for which video descriptions would apply, and 
other technical and legal issues that the Commission deems 
appropriate.''

Legal Basis

    55. This Notice is adopted pursuant to sections 1, 2(a), 4(i), 303, 
307, 309, 310, and 713 of the Act, 47 U.S.C. 151, 152(a), 154(i), 303, 
307, 309, 310, 613.

Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    56. The Regulatory Flexibility Act defines the term ``small 
entity'' as having the same meaning as the terms ``small business,'' 
``small organization,'' and ``small business concern'' under section 3 
of the Small Business Act, 5 U.S.C. 601(3) (1980). A small business 
concern is one which: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the SBA, 15 U.S.C. 632.
    57. Small TV Broadcast Stations. The SBA defines small television 
broadcasting stations as television broadcasting stations with $10.5 
million or less in annual receipts, 13 CFR 121.201.
    58. The Notice proposes to limit the TV broadcast stations that 
must provide described programming to the TV broadcast stations 
affiliated with the top four commercial networks in the top 25 Nielsen 
Designated Market Areas (DMAs). According to Commission staff review of 
the BIA Publications, Inc., Master Access Television Analyzer Database, 
less than five commercial TV broadcast stations subject to our proposal 
have revenues of less than $10.5 million dollars. We note, however, 
that under SBA's definition, revenues of affiliates that are not 
television stations should be aggregated with the television station 
revenues in determining whether a concern is small. Our estimate may 
thus overstate the number of small entities since the revenue figure on 
which it is based does not include or aggregate revenues from 
nontelevision affiliated companies.

[[Page 67243]]

    59. Small MVPDs. The Notice proposes to limit the MVPDs that must 
provide described programming to larger MVPDs. The Notice seeks comment 
on how to define the MVPDs to which the initial rules should apply, and 
seeks to identify those MPVDs that are comparable to the broadcast 
stations affiliated with the top 4 commercial networks in the top 25 
DMAs. The Notice thus proposes not to apply the initial rules to 
smaller MVPDs.
    60. It is possible, however, that the MVPDs we ultimately decide to 
require to provide described programming may constitute a ``small 
business'' under some definitions. For that reason, we review the 
definition of ``small business'' for various MVPDs.
    61. SBA has developed a definition of a small entity for cable and 
other pay television services, which includes all such companies 
generating $11 million or less in annual receipts. This definition 
includes cable system operators, closed circuit television services, 
direct broadcast satellite services, multipoint distribution systems, 
satellite master antenna systems and subscription television services. 
According to the Bureau of the Census, there were 1423 such cable and 
other pay television services generating less than $11 million in 
revenue that were in operation for at least one year at the end of 
1992. We will address each service individually to provide a more 
succinct estimate of small entities. We seek comment on the tentative 
conclusions.
    62. Cable Systems: The Commission has developed its own definition 
of a small cable company for the purposes of rate regulation. Under the 
Commission's rules, a ``small cable company,'' is one serving fewer 
than 400,000 subscribers nationwide. We estimate that there were 1439 
cable operators that qualified as small cable companies at the end of 
1995. Since then, some of those companies may have grown to serve over 
400,000 subscribers, and others may have been involved in transactions 
that caused them to be combined with other cable operators. 
Consequently, we estimate that there are fewer than 1439 small entity 
cable system operators under this definition.
    63. The Communications Act also contains a definition of a small 
cable system operator, which is ``a cable operator that, directly or 
through an affiliate, serves in the aggregate fewer than 1% of all 
subscribers in the United States and is not affiliated with any entity 
or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' The Commission has determined that there are 61,700,000 
subscribers in the United States. Therefore, we found that an operator 
serving fewer than 617,000 subscribers shall be deemed a small 
operator, if its annual revenues, when combined with the total annual 
revenues of all of its affiliates, does not exceed $250 million in the 
aggregate. Based on available data, we find that the number of cable 
operators serving 617,000 subscribers or less totals 1,450. Although it 
seems certain that some of these cable system operators are affiliated 
with entities whose gross annual revenues exceed $250,000,000, we are 
unable at this time to estimate with greater precision the number of 
cable system operators that would qualify as small cable operators 
under the definition in the Communications Act.
    64. MMDS: The Commission refined the definition of ``small entity'' 
for the auction of MMDS as an entity that together with its affiliates 
has average gross annual revenues that are not more than $40 million 
for the proceeding three calendar years. This definition of a small 
entity in the context of the Commission's Report and Order concerning 
MMDS auctions that has been approved by the SBA.
    65. The Commission completed its MMDS auction in March, 1996 for 
authorizations in 493 basic trading areas (``BTAs''). Of 67 winning 
bidders, 61 qualified as small entities. Five bidders indicated that 
they were minority-owned and four winners indicated that they were 
women-owned businesses. MMDS is an especially competitive service, with 
approximately 1,573 previously authorized and proposed MMDS facilities. 
Information available to us indicates that no MDS facility generates 
revenue in excess of $11 million annually. We tentatively conclude that 
for purposes of this IRFA, there are approximately 1,634 small MMDS 
providers as defined by the SBA and the Commission's auction rules.
    66. ITFS: There are presently 2,032 ITFS licensees. All but one 
hundred of these licenses are held by educational institutions. 
Educational institutions are included in the definition of a small 
business. However, we do not collect annual revenue data for ITFS 
licensees and are not able to ascertain how many of the 100 non-
educational licensees would be categorized as small under the SBA 
definition. Thus, we tentatively conclude that at least 1,932 licensees 
are small businesses.
    67. DBS: As of December, 1996, there were eight DBS licensees. 
However, the Commission does not collect annual revenue data for DBS 
and, therefore, is unable to ascertain the number of small DBS 
licensees that could be impacted by these proposed rules. Although DBS 
service requires a great investment of capital for operation, we 
acknowledge that there are several new entrants in this field that may 
not yet have generated $11 million in annual receipts, and therefore 
may be categorized as a small business, if independently owned and 
operated.
    68. HSD: The market for HSD service is difficult to quantify. 
Indeed, the service itself bears little resemblance to other MVPDs. HSD 
owners have access to more than 265 channels of programming placed on 
C-band satellites by programmers for receipt and distribution by MVPDs, 
of which 115 channels are scrambled and approximately 150 are 
unscrambled. HSD owners can watch unscrambled channels without paying a 
subscription fee. To receive scrambled channels, however, an HSD owner 
must purchase an integrated receiver-decoder from an equipment dealer 
and pay a subscription fee to an HSD programming package. Thus, HSD 
users include: (1) Viewers who subscribe to a packaged programming 
service, which affords them access to most of the same programming 
provided to subscribers of other MVPDs; (2) viewers who receive only 
non-subscription programming; and (3) viewers who receive satellite 
programming services illegally without subscribing. Because scrambled 
packages of programming are most specifically intended for retail 
consumers, these are the services most relevant to this discussion.
    69. According to the most recently available information, there are 
approximately 30 program packages nationwide offering packages of 
scrambled programming to retail consumers. These program packages 
provide subscriptions to approximately 2,314,900 subscribers 
nationwide. This is an average of about 77,163 subscribers per program 
package. This is substantially smaller than the 400,000 subscribers 
used in the commission's definition of a small MSO. Furthermore, 
because this is an average, it is likely that some program packages may 
be substantially smaller.
    70. OVS: The Commission has certified three OVS operators. On 
October 17, 1996, Bell Atlantic received approval for its certification 
to convert its Dover, New Jersey Video Dialtone (``VDT'') system to 
OVS. Bell Atlantic subsequently purchased the division of Futurevision 
which had been the only operating program package provider on the Dover 
system, and has begun offering programming on this system using these 
resources. Metropolitan Fiber Systems was granted certifications

[[Page 67244]]

on December 9, 1996, for the operation of OVS systems in Boston and New 
York, both of which are being used to provide programming. On October 
10, 1996, Digital Broadcasting Open Video Systems received approval to 
offer OVS service in southern California. Because these services have 
been introduced so recently, little financial information is available. 
Bell Atlantic and Metropolitan Fiber Systems have sufficient revenues 
to assure us that they do not qualify as small business entities. 
Digital Broadcasting Open Video Systems, however, is a general 
partnership just beginning operations. Accordingly, we tentatively 
conclude that one OVS licensee qualifies as a small business concern.
    71. SMATVs: Industry sources estimate that approximately 5,200 
SMATV operators were providing service as of December, 1995. Other 
estimates indicate that SMATV operators serve approximately 1.05 
million residential subscribers as of September, 1996. The ten largest 
SMATV operators together pass 815,740 units. If we assume that these 
SMATV operators serve 50% of the units passed, the ten largest SMATV 
operators serve approximately 40% of the total number of SMATV 
subscribers. Because these operators are not rate regulated, they are 
not required to file financial data with the Commission. Furthermore, 
we are not aware of any privately published financial information 
regarding these operators. Based on the estimated number of operators 
and the estimated number of units served by the largest ten SMATVs, we 
tentatively conclude that a substantial number of SMATV operators 
qualify as small entities.

Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    72. The Notice proposes to hold certain TV broadcast stations and 
MVPDs responsible for providing 50 hours per quarter of described prime 
time and/or children's programming. Those broadcast stations and MVPDs 
must keep sufficient records to show that they are providing and have 
provided at least the required amount of described programming.

Steps Taken To Minimize Significant Impact on Small Entities, and 
Significant Alternatives Considered

    73. As indicated, the Notice proposes to limit the TV broadcast 
stations and MVPDs that must provide described programming to larger TV 
broadcast stations (specifically, commercial TV broadcast stations 
affiliated with the four largest commercial broadcast networks in the 
top 25 DMAs) and larger MVPDs. The Notice seeks comment on how to 
define the MVPDs to which the initial rules should apply, and seeks to 
identify those MVPDs that are comparable to the broadcast stations 
affiliated with the top four networks in the top 25 DMAs. The 
Commission, therefore, has taken steps to minimize the impact of the 
proposed rules on small business.
    74. Although the Notice proposes to hold the larger broadcast 
stations and MVPDs responsible for compliance with the initial rules, 
the Commission acknowledges that the broadcast and nonbroadcast 
networks that supply programming to the broadcast stations and MVPDs 
will most likely provide the actual video description of the 
programming. The Notice proposes, however, to limit the programming 
that must be described to that shown on the four largest commercial 
broadcast networks, and on nonbroadcast networks that reach 50% or more 
of MVPD households. The Commission has, therefore, taken steps to 
minimize the impact of the proposed rules on small business.

Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    None.

List of Subjects in 47 CFR Part 73

    Television broadcasting.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 99-31116 Filed 11-30-99; 8:45 am]
BILLING CODE 6712-01-P