[Federal Register Volume 65, Number 176 (Monday, September 11, 2000)]
[Rules and Regulations]
[Pages 54805-54813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23154]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MM Docket No. 99-339; FCC 00-258]


Implementation of Video Description of Video Programming

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document adopt rules to require larger broadcast stations 
and multichannel programming distributors (MVPDs) to provide 
programming with video description. This document also adopts rules to 
require all broadcast stations and MVPDs to pass through any video 
description they receive from their programming suppliers if they have 
the technical capability necessary to do so. This document also adopts 
rules to enhance the accessibility of emergency information. The 
purpose of these actions is to enhance the accessibility of video 
programming to persons with visual disabilities.

DATES: Section 79.3 is effective April 1, 2002. Section 79.2 contains 
information collection requirements which have not been approved by the 
Office Of Management Budget (``OMB''). The Commission will publish a 
document in the Federal Register announcing the effective date of this 
section.

FOR FURTHER INFORMATION CONTACT: Eric J. Bash, Policy and Rules 
Division, Mass Media Bureau, (202) 418-2130 (voice), (202) 418-1169 
(TTY), or [email protected], or Meryl S. Icove, Disabilities Rights Office, 
Consumer Information Bureau, (202) 418-2372 (voice), 418-0178 (TTY), or 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order (``R&O''), FCC 00-258, adopted July 21, 2000; released August 
7, 2000. The full text of the Commission's R&O is available for 
inspection and copying during normal business hours in the FCC Dockets 
Branch (Room TW-A306), 445 12 St. S.W., Washington, D.C. The complete 
text of this R&O may also be purchased from the Commission's copy 
contractor, International Transcription Services (202) 857-3800, 1231 
20th St., N.W., Washington, D.C. 20036.

Synopsis of Report and Order

I. Introduction

    1. In this R&O, we adopt rules designed to bring the benefits of 
video description to the commercial video marketplace but not impose an 
undue burden on the video programming production and distribution 
industries. Video description is the description of key visual elements 
in programming, inserted into natural pauses in the audio of the 
programming. It is designed to make television programming more 
accessible to the many Americans who have visual disabilities.
    2. As explained further, we conclude that we have the authority to 
adopt video description rules, and require the top broadcast stations 
and multichannel video programming distributors (MVPDs) to provide 
programming with video description on the top programming networks. 
This will ensure that the broadcast stations and MVPDs that reach the 
most people will provide video description for the most watched 
programming. We also adopt rules to enhance the accessibility of 
emergency information for people with visual disabilities. 
Specifically, we adopt rules as follows:
     We require affiliates of the top four commercial broadcast 
TV networks in the top 25 TV markets to provide 50 hours per calendar 
quarter of prime time and/or children's programming with video 
description.
     We also require MVPDs with 50,000 or more subscribers to 
provide 50 hours per calendar quarter of prime time and/or children's 
programming with video description on each of the top five national 
nonbroadcast networks they carry.
     In addition, we require any broadcast station, regardless 
of its market size, to ``pass through'' any video description it 
receives from a programming provider, if the broadcast station has the 
technical capability necessary to do so, and we require any MVPD, 
regardless of its number of subscribers, to ``pass through'' any video 
description it receives from a programming provider, if the MVPD has 
the technical capability necessary to do so on the channel on which it

[[Page 54806]]

distributes the programming of the programming provider.
     The first calendar quarter these rules will be effective 
will be April-June 2002.
     We also require broadcast stations and MVPDs that provide 
local emergency information through a regularly scheduled newscast, or 
an unscheduled newscast that interrupts regularly scheduled 
programming, to make the critical details of that information 
accessible to persons with visual disabilities in the affected local 
area. We also require broadcast stations and MVPDs that provide local 
emergency information through another manner, such as a ``crawl'' or 
``scroll,'' to accompany that information with an aural tone to alert 
persons with visual disabilities that they are providing emergency 
information. These rules relating to emergency information will become 
effective upon approval by the Office of Management and Budget.

II. Background

A. Audience for Video Description

    3. 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 are as high as twelve 
million. This estimate includes persons with a problem seeing that 
cannot be corrected with ordinary glasses or contact lenses, with a 
range in severity.
    4. A disproportionate number of persons with visual disabilities 
are seniors. 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.
    5. 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.

B. Process of Providing Video Description

    6. Current describers of programming charge between $2000 and $4000 
per hour for their service. They begin their process by viewing a 
program, and writing a script to describe key visual elements. The 
describer times the placement and length of the description to fit 
within natural pauses in the dialogue. The narration is recorded and 
mixed with the original program audio to create a full audio track with 
video description. That audio track is then laid back to the master on 
a spare channel if the programming is intended for broadcast, and to a 
separate master if it is intended for distribution by home video. When 
the audio track with video description is provided on a separate audio 
channel for broadcast, viewers decide whether they wish to hear the 
video description. Viewers who wish to hear the description must 
activate the Second Audio Program (SAP) channel on their TV sets or 
VCRs. ``Closed'' video description refers to the process of providing 
video description on the SAP channel. SAP reception is a standard 
feature of most TV sets and VCRs built since 1990. SAP-capable TV sets 
and VCRs can be relatively inexpensive--less than $150--and converter 
boxes are also available for use with TV sets and VCRs that are not 
SAP-capable.
    7. Programming providers that wish to distribute programming on the 
SAP channel typically need the capability to support three audio 
channels at all points in the distribution process. This is because two 
audio channels are used to support left and right stereo, so that a 
third audio channel is necessary to support a monaural mix of the main 
audio and the video description. The programming provider transmits 
both audio tracks as part of its main signal. Networks, broadcast 
stations, and MVPDs that do not have the capability to support three 
channels of audio generally need to upgrade equipment and plant wiring 
to do so. The cost depends on the amount and nature of the equipment 
that needs to be upgraded.
    8. A number of commercial broadcast and nonbroadcast networks have 
provided programming with Spanish language as a second audio program. 
Each of the top four commercial broadcast TV networks has provided a 
Spanish language soundtrack as a second audio program, on at least an 
occasional basis. At least thirty-three ABC affiliates have the 
capability to pass through a second soundtrack on the SAP channel; at 
least twenty-three Fox affiliates do; and approximately twenty NBC 
affiliates do. Some nonbroadcast networks, such as HBO and Showtime, 
also have offered a Spanish language soundtrack as a separate audio 
program, and, Turner Classic Movies has provided a soundtrack with 
video description as a separate audio program. Some MVPDs that carry 
their programming provide the audio on the SAP channel.

III. Entities To Provide Programming With Video Description

A. Broadcast Stations in Top 25 DMAs

    9. We require broadcast stations in the top 25 Designated Market 
Areas (DMAs, defined by Nielsen Media Research) affiliated with the top 
four commercial broadcast networks to provide programming with video 
description. Our goal in this proceeding is to adopt rules designed to 
enhance the availability of video description, but not impose an undue 
burden on programming producers and distributors. Broadcast stations in 
the top 25 DMAs reach approximately 50% of U.S. TV households. Those 
affiliated with the top four broadcast networks provide the highest-
rated programming, i.e., the most-watched, and therefore the most-
advertiser-supported, programming. Some affiliates of the top four 
networks in the top 25 DMAs already have the technical capability 
necessary to provide programming with video description. Those that do 
not are likely to have the resources to acquire that capability without 
being unduly burdened.

B. Multichannel Video Programming Distributors With at Least 50,000 
Subscribers

    10. We also require larger multichannel video programming 
distributors (MVPDs) that serve 50,000 or more subscribers to provide 
programming with video description on each of the top five national 
nonbroadcast networks they carry, as defined by prime time audience 
share, as well as the programming of broadcast stations and other 
networks they carry, under certain circumstances, as described. We 
believe this result is consistent with our goal of enhancing the 
availability of video description without imposing an undue burden on 
the programming production and distribution industries. The ``larger 
MVPDs'' as we define them include approximately 275 cable systems that 
serve approximately 50% of MVPD

[[Page 54807]]

households, and two DBS systems that serve over 12 million customers. 
The top five nonbroadcast networks as we define them include those with 
the most-watched programming during prime time.
    11. Because MVPDs must have the capability to support a third audio 
channel for each channel on which they intend to provide programming 
with video description, we have decided to limit the number of 
nonbroadcast networks for which ``larger MVPDs'' must provide video 
description to five. Given that we require MVPDs to provide programming 
with video description during prime time, we define the top five 
nonbroadcast networks in terms of prime time audience share, as 
determined by an average of Nielsen prime time ratings for the time 
period October 1, 1999-September 30, 2000.
    12. The per-channel costs for MVPDs also suggests that the cut-off 
for ``larger MVPDs'' should be based on cable system size, not on 
multiple system operator size. We have decided to apply our rules to 
systems with more than 50,000 subscribers. These systems include 
approximately 275 cable systems that reach approximately 50% of cable 
subscribers, just as our rules affect broadcast stations that reach 
approximately 50% of U.S. TV households. Our decision to apply our 
rules to MVPDs that serve at least 50,000 subscribers will also include 
two DBS systems that together reach an additional 12 million 
subscribers.

C. Equipped Broadcast Stations and MVPDs

    13. We further require all broadcast stations, including 
noncommercial educational stations, that have the technical capability 
necessary to ``pass through'' any second audio program containing video 
description that they receive from their affiliated networks. 
Similarly, we require all MVPDs that have the technical capability 
necessary to ``pass through'' any secondary audio program containing 
video description that they receive from a broadcast station or 
nonbroadcast network. We believe this requirement is consistent with 
our approach to enhance the availability of video description, but not 
impose an undue burden on programming producers and distributors. We 
will consider broadcast stations and MVPDs to have the technical 
capability necessary to support video description if they have 
virtually all necessary equipment and infrastructure to do so, except 
for items that would be of minimal cost.

IV. Programming To Contain Video Description

A. Amount of Programming

    14. We require broadcast stations in the top 25 DMAs and MVPDs with 
at least 50,000 subscribers to provide at least fifty hours per 
calendar quarter of programming with video description. Our goal in 
this proceeding is to bring the benefits of video description to the 
commercial video marketplace, while at the same time not impose an 
undue burden on the broadcast stations and MVPDs subject to our initial 
rules. We believe that requiring these broadcast stations and MVPDs to 
provide fifty or more hours per calendar quarter of programming with 
video description satisfies this goal.
    15. We clarify, as suggested by several commenters, that the 
broadcast stations and MVPDs may not count toward their 50-hour 
quarterly requirement programming that they have previously aired with 
video description, once the rules go into effect. In other words, a 
broadcast station or MVPD may not count toward its 50-hour quarterly 
requirement any programming it aired with video description after the 
effective date of the rules when that same broadcast station or MVPD 
repeats the same programming later. Broadcast stations and MVPDs may, 
however, count any programming they air after the effective date in 
excess of their quarterly requirements, and that they repeat later. In 
addition, they may count any programming with video description they 
air before the effective date of the rule, and that they later repeat 
after the effective date. We also clarify, as suggested by several 
commenters, that once a broadcast station or MVPD has aired a 
particular program with video description, all of that broadcast 
station's or MVPD's subsequent airings of that program should contain 
video description, unless another use is being made of the SAP channel. 
We further clarify that non-program minutes, however, such as 
advertisements and public service announcements, aired during a program 
need not be described.
    16. We also believe that our decision to require that 50 hours per 
quarter, or roughly 4 hours per week, of programming with video 
description will avoid any conflicts between competing uses of the SAP 
channel. Some networks use the SAP channel to provide Spanish audio or 
other services. Although as some commenters point out there is not a 
technical solution to allow two uses of the SAP channel simultaneously, 
as others point out most networks that use the SAP channel to provide 
Spanish language audio do so on a limited basis. Those few networks 
that provide more extensive Spanish language audio are not among the 
networks that will be affected by our rules. Thus, we believe that our 
rules will not create conflicts between Spanish language audio and 
video description for use of the SAP channel.

B. Prime Time vs. Other Types of Programming

    17. We require that the described programming must either be shown 
during prime time or be children's programming. Prime time programming 
is the most watched programming, and so programming provided during 
this time will reach more people than programming provided at any other 
time. In addition, the several thousand dollars per hour cost to 
describe programming is a very small portion of the production budget 
for the typical prime time program. At the same time, programming with 
video description may provide a benefit not only to children who are 
visually disabled, but also to those who are learning disabled. 
Programming with video description has both audio description and 
visual appeal, and so has the potential to capture the attention of 
learning disabled children and enhance their information processing 
skills. Requiring broadcast stations and MVPDs to provide children's or 
prime time programming with video description thus ensures that the 
programming reaches the greatest portion of the audience it is intended 
to benefit the most. Permitting broadcast stations and MVPDs to select 
between the two provides them flexibility without compromising that 
goal.
    18. In order to help the public identify the broadcast stations and 
MVPDs that are required to provide programming with video description, 
and the programming for which they are doing so, we encourage broadcast 
stations and MVPDs that provide programming with video description to 
take steps to educate and inform the public about the service. We 
encourage broadcast stations and MVPDs to promote the service in their 
programming and on their websites, and provide the relevant information 
to magazines and newspapers that follow their programming schedules, as 
some commenters suggest.
    19. We note the some commenters suggest that we should not focus on 
entertainment programming, but rather on the accessibility of text 
information aired on TV, such as emergency information, the identity of 
speakers on news and talk shows, and telephone

[[Page 54808]]

numbers or other contact information in advertisements. We believe that 
the accessibility of this type of information is important, and address 
the accessibility of emergency information in particular below. We 
believe, however, that a secondary audio program may not be the 
appropriate vehicle to provide text-based information. However, we do 
encourage producers of programming with text information to provide 
that information aurally, by announcing the names of speakers. 
Advertisers should already have a commercial incentive to provide 
contact information aurally.

V. Effective Date of New Rules

    20. We require the broadcast stations in the top 25 DMAs and MVPDs 
with at least 50,00 subscribers to begin providing programming with 
video description during the first calendar quarter that is eighteen 
months after the adoption date of this R&O, i.e., April through June 
2002. Although we appreciate the desire of many to have programming 
with video description earlier, we wish to give the affected broadcast 
stations, MVPDs, and networks the time that may be necessary to make 
arrangements to describe the programming, and to upgrade their 
equipment and infrastructure. We believe that giving the affected 
parties until April 2002 is ample time. We decline to make our 
effective date coincide with the beginning of the TV season for 
broadcast networks because our rules also affect nonbroadcast networks, 
which may or may not use the same schedule to introduce new programs as 
broadcast networks do. We encourage parties that seek to make the 
beginning of their new programming seasons coincide with starting date 
of their providing video description to make the necessary arrangements 
to do so, within the time frame to meet their first quarterly 
compliance requirement in April-June 2002.

VI. Exemptions

    21. We adopt procedures and standards to exempt any broadcast 
station or MVPD subject to our rules for which compliance would be an 
``undue burden.'' We, therefore, will exempt any affected broadcast 
station or MVPD that can demonstrate through sufficient evidence that 
compliance would result in an ``undue burden,'' which means significant 
difficulty or expense. We will consider the following factors: The 
nature and cost of providing video description of the programming; the 
impact on the operation of the broadcast station or MVPD; the financial 
resources of the broadcast station or MVPD; the type of operations of 
the broadcast station or MVPD; any other factors the petitioner deems 
relevant; and any available alternatives to video description. Given 
the limited nature of our initial video description rules, we decline 
to exempt, however, any particular categories of programming or class 
of programming providers.

VII. Enforcement

    22. We adopt enforcement procedures as follows. A complaint 
alleging a violation of this section may be transmitted to the 
Commission by any reasonable means, such as letter, facsimile 
transmission, telephone (voice/TRS/TTY), Internet e-mail, audio-
cassette recording, and Braille, or some other method that would best 
accommodate a complainant's disability. A complaint shall include the 
name and address of the complainant. The complaint shall include the 
name of the broadcast station or MVPD against whom the complaint is 
alleged. A complaint against a broadcast station should include the 
name and address of the station, and its call letters and network 
affiliation. A complaint against an MVPD should include the name and 
address of the MVPD, and the name of the network that provides the 
programming that is the subject of the complaint. Complaints should 
include a statement of facts sufficient to show that the broadcast 
station or MVPD has violated or is violating the Commission's rules, 
and, if applicable, the date and time of the alleged violation; the 
specific relief or satisfaction sought by the complainant; and the 
complainant's preferred format or method of response to the complaint 
(such as letter, facsimile transmission, telephone (voice/TRS/TTY), 
Internet e-mail, or some other method that would best accommodate a 
complainant's disability). Complaints should be sent to the 
Commission's Consumer Information Bureau. That bureau will forward 
formal complaints to the Commission's Enforcement Bureau, and we 
delegate authority to the Enforcement Bureau to act on and resolve any 
complaints in a manner consistent with this R&O.
    23. Complaints satisfying the requirements described will be 
promptly forwarded by Commission staff to the broadcast station or MVPD 
involved, which shall be called on to answer the complaint within a 
specified time, generally within 30 days. To ensure fair and meaningful 
enforcement of our video description requirements, we will authorize 
the staff to either shorten or lengthen the time required for 
responding to complaints in particular cases. For example, if a 
complaint alleges that the video description disappeared during a 
program, we believe that it is appropriate to require the broadcast 
station or MVPD to respond within 10 days after being notified of the 
complaint in order to minimize the risk of repeat or recurring 
problems. If, on the other hand, a complaint alleges that a broadcast 
station or MVPD has not met its quarterly requirements, it may not be 
appropriate to require the broadcast station or MVPD to respond until 
the end of the quarter that is the subject of the complaint. However, 
recurring complaints or a pattern of such complaints against a 
particular broadcast station or MVPD may warrant a more immediate 
response to ensure that quarterly requirements are being addressed by 
the broadcast station or MVPD in manner consistent with their intended 
purposes. Commission staff will manage our complaint processes to 
reflect these and other case specific differences. The burden of proof 
of compliance in response to a complaint is on the broadcast station or 
MVPD, and they must maintain records sufficient to show their 
compliance with our rules.
    24. Commission staff will review all relevant information provided 
by the complainant and defendant broadcast station or MVPD and may 
request additional information from either or both parties when needed 
for a full resolution of the complaint. Certifications of compliance 
from programming suppliers, including programming producers, 
programming owners, networks, syndicators and other distributors, may 
be relied on by broadcast stations and MVPDs to defend against claims 
of noncompliance. As a general matter, distributors will not be held 
responsible for situations where a program source falsely certifies 
that programming delivered to the distributor meets our video 
description requirements and the distributor did not know and could not 
have reasonably ascertained that the certification was false. However, 
we expect broadcast stations and MVPDs to establish appropriate 
policies and procedures to safeguard against such false certifications. 
Commission staff will scrutinize complaints to ensure that broadcast 
stations and MVPDs vigilantly adhere to our video description 
requirements. If we determine that a violation has occurred, we will 
use our considerable discretion under the Act to tailor sanctions and 
remedies to the individual circumstances of a particular violation. For 
example, in egregious

[[Page 54809]]

cases or cases demonstrating a pattern or practice of noncompliance, 
sanctions may include a requirement that the video programming 
distributor deliver video programming containing video description in 
excess of its requirements.

VIII. Emergency Information

    25. We require any broadcast station or MVPD that provides local 
emergency information to make the critical details of that information 
accessible to persons with visual disabilities. Our rule applies to all 
broadcast stations and MVPDs that provide emergency information, as 
opposed to just those in the largest TV markets or with the largest 
number of subscribers. We believe this is appropriate both because of 
the importance of emergency information and because it does not involve 
the kinds of technical issues involved in using a SAP channel. We 
envision that affected broadcast stations and MVPDs will aurally 
describe the emergency information in the main audio as part of their 
ordinary operations. This would be similar to providing ``open'' video 
description. We define emergency information to be that which is 
intended to protect life, health, safety, and property, i.e., critical 
details about an emergency and how to respond to the emergency. 
Examples of the types of emergencies covered include tornadoes, 
hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy 
snows, widespread fires, discharge of toxic gases, widespread power 
failures, industrial explosions, civil disorders, school closings and 
changes in school bus schedules resulting from such conditions, and 
warnings and watches of impending changes in weather. These examples 
are intended to provide guidance as to what is covered by the rule and 
are not intended to be an exhaustive list. We do not believe an 
exhaustive list of examples is necessary to convey what is covered by 
the rule. Our definition of emergency information will include the 
provision of critical details in an accessible manner. Critical details 
could include, among other things, specific details regarding the areas 
that will be affected by the emergency, evacuation orders, detailed 
descriptions of areas to be evacuated, specific evacuation routes, 
approved shelters or the way to take shelter in one's home, 
instructions on how to secure personal property, road closures, and how 
to obtain relief assistance.
    26. The rule will require broadcast stations and MVPDs that provide 
local emergency information to make that information accessible to 
viewers who are blind or have visual disabilities in the affected local 
area through aural presentation whenever such information is provided 
during regularly scheduled newscasts, unscheduled newscasts that 
preempt regularly scheduled programming or during continuing coverage 
of a situation. As a result of our rule, persons with visual 
disabilities will have access to the same critical information to which 
other viewers have access. Under this rule, broadcast stations and 
MVPDs are not required to provide in an accessible format all of the 
information about an emergency situation that they are providing to 
viewers visually, only the visual information intended to further the 
protection of life, health, safety, and property. In determining 
whether particular details need to be made accessible, we will permit 
programmers to rely on their own good faith judgments.
    27. We believe that our requirement that broadcast stations and 
MVPDs make the critical details of emergency information available 
during regularly scheduled newscasts and newscasts that are 
sufficiently urgent to interrupt regular programming will generally 
ensure that the critical details of emergency information will be 
accessible to persons with visual disabilities. This is because we 
expect that broadcast stations and MVPDs will provide emergency 
information of an extremely urgent nature by interrupting their 
regularly scheduled programming with a newsbreak, and we require them 
to make the critical details of this information accessible. To the 
extent, however, that a broadcast station or MVPD does not interrupt 
its regular programming to provide emergency information but rather 
does so through another manner, such as a ``crawl'' or ``scroll,'' 
during that programming, we require them to accompany that information 
with an aural tone, as referenced in the Notice of Proposed Rule Making 
(``NPRM''), 64 FR 67236 (December 1, 1999).
    28. The new rules regarding emergency information will be effective 
upon approval by the Office of Management and Budget. We adopt an 
earlier effective date for this rule because of the importance of 
emergency information, and because there should be little if any 
equipment and infrastructure costs associated with compliance.

IX. Jurisdiction

    29. We conclude that we have the authority to adopt video 
description rules. Section 1 of the Act (codified as 47 U.S.C. 151) 
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, Nationwide, and world-wide wire and radio 
communication service. * * *'' (emphasis added). Section 1 also 
established the Commission ``for the purpose of promoting safety of 
life and property through the use of wire and radio communication.'' 
Section 2(a) of the Act (codified as 47 U.S.C. 152(a)) states that 
``[t]he provisions of this act shall apply to all interstate and 
foreign communication by wire or radio'' and ``all persons engaged 
within the United States in such communication.'' Section 4(i) 
(codified as 47 U.S.C. 154(i)) states that ``[t]he Commission may 
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'' and section 303(r) (codified as 47 U.S.C. 
303(r)) states that ``the Commission from time to time, as public 
convenience, interest, or necessity requires shall * * * [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 of this Act. * * *''
    30. Congress has thus authorized the Commission to make available 
to all Americans a radio and wire communication service, and to promote 
safety and life through such service, and to make such regulations to 
carry out that mandate, that are consistent with the public interest 
and not inconsistent with other provisions of the Act or other law. In 
other words, as the Commission has previously explained, ``[t]he courts 
have consistently held that the Commission has broad discretion so long 
as its actions further the legislative purposes for which the 
Commission was created and are not contrary to the basic statutory 
scheme.'' Thus, in considering the Commission's power to create the 
universal service fund (for which at the time there was no explicit 
statutory authority), the U.S. Court of Appeals for the D.C. Circuit 
relied, solely, on sections 1 and 4(i) of the statute, holding: ``As 
the Universal Service Fund was proposed in order to further the 
objective of making communication service available to all Americans at 
reasonable charges, the proposal was within the Commission's statutory 
authority.''
    31. We disagree with those parties that contend that video 
description rules would be inconsistent with other provisions in the 
Act or other law.

[[Page 54810]]

Specifically, some parties contend that video description rules are 
inconsistent with sections 624 and 713 of the Act, and the First 
Amendment. Others suggest that the rules interfere with the rights of 
copyright holders. We address each of these.
    32. Section 713. Some commenters contend that section 713(f) of the 
Act, codified as 47 U.S.C. 613(f), only authorizes the Commission to 
conduct an inquiry, and thus forecloses a rulemaking, on video 
description. Section 713(f) of the Act states, in its entirety:

    Within 6 months after the date of enactment of the 
Telecommunications Act of 1996, the Commission shall 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. The Commission's report shall assess the 
appropriate methods and schedule 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.

    Section 713(f) is silent with respect to--and thus by itself 
neither authorizes nor precludes--a rulemaking. In other words, section 
713(f) does not change the purpose for which the Commission was 
created, as expressed in section 1 of the Act, nor does it derogate the 
general rulemaking powers the Commission has, as expressed in sections 
4(i) and 303(r) of the Act.
    33. We recognize, as some commenters point out, that the 
legislative history to section 713 indicates that Congress considered, 
but did not enact, language explicitly referencing a rulemaking 
proceeding. The Conference Report indicates that the House amendment to 
the Senate bill contained language explicitly referencing a rulemaking 
proceeding: ``Following the completion of this inquiry the Commission 
may adopt regulations it deems necessary to promote the accessibility 
of video programming to persons with visual impairments.'' The 
conferees agreed, however, to remove such language: ``The agreement 
deletes the House provision referencing a Commission rulemaking with 
respect to video description.'' While this history indicates that 
section 713 should not be construed to authorize a Commission 
rulemaking, the history does not indicate that section 713 should be 
construed to prohibit such a rulemaking, given our otherwise broad 
powers to make rules, as expressed in sections 4(i) and 303(r) of the 
Act. Had Congress intended to limit our general authority, it could 
have expressly done so, as it has elsewhere in the Act.
    34. Section 624(f). Some commenters also contend that, absent 
express authority to conduct a rulemaking on video description 
elsewhere in the Act, section 624(f) of the Act precludes the 
Commission from adopting video description rules for cable operators. 
Section 624(f) states that ``[a]ny Federal agency * * * may not impose 
requirements regarding the provision or content of cable services, 
except as expressly provided in [Title VI].'' The U.S. Court of Appeals 
for the D.C. Circuit has interpreted this section to forbid ``rules 
requiring cable companies to carry particular programming.'' The video 
description rules we adopt today are not content-based, and as such, do 
not require cable companies (or any other distributor of video 
programming) to carry particular programming. Rather, our rules simply 
require that, if a distributor chooses to carry the programming of the 
largest networks, it must provide a small amount of programming with 
video description.
    35. First Amendment. Some commenters argue that requiring video 
description is inconsistent with the First Amendment, because it 
compels speech, or otherwise is content-based regulation. Other 
commenters, however, contend that our rules are content-neutral 
regulations, similar to time, place, and manner regulations, and under 
the applicable test, are consistent with the First Amendment. The 
Supreme Court has held that ``[t]he principal inquiry in determining 
content neutrality, in speech cases generally and in time, place or 
manner cases in particular, is whether the government has adopted a 
regulation of speech because of disagreement with the message it 
conveys. The government's purpose is the controlling consideration. A 
regulation that serves purposes unrelated to free expression is deemed 
neutral, even if it has an incidental effect on some speakers or 
messages but not others.'' The purpose of our video description rules 
is to enhance the accessibility of video programming to persons with 
disabilities, and is not related to content.
    36. The fact that our rules will require, as opposed to restrict, 
speech does not change the analysis. As a number of commenters explain, 
a mandate to provide video description does not require a programmer to 
express anything other than what the programmer has already chosen to 
express in the visual elements of the program. Our rules simply require 
a programmer to express what it has already chosen to express in an 
alternative format to enhance the accessibility of the message. As 
such, our rules are comparable to a requirement to translate one's 
speech into another language in other contexts. A requirement to 
provide programming with video description is most similar to our 
existing requirements to provide programming with closed captioning, 
which, as several commenters point out, has not been challenged on 
First Amendment grounds. Indeed, the U.S. Court of Appeals for the D.C. 
Circuit concluded nearly twenty years ago that any requirement to 
provide programming with closed captioning would not violate the First 
Amendment.
    37. Given that our video description rules are content-neutral 
regulations, the applicable test for reviewing their constitutionality 
is whether the regulations promote an important government purpose, and 
whether they do not burden substantially more speech than necessary. As 
indicated, our purpose in adopting our rules is to enhance the 
accessibility of television programming to persons with visual 
disabilities. As we observed in the NPRM, television programming shapes 
American culture and public opinion in myriad ways, because it is our 
principal source of news and information, and provides hours of 
entertainment weekly. Millions of Americans have visual disabilities 
and have difficulty following the visual elements in television 
programming, which can be overcome through video description. We 
believe this is an important government purposes in the context of the 
First Amendment, and believe that other legislation designed to enhance 
the accessibility of communications to persons with disabilities 
supports our conclusion.
    38. We also believe that video description will not burden any more 
speech than necessary. As described, video description is in effect the 
translation of the visual elements of programming into another language 
to provide functional equivalency for the blind. Our rules will require 
only a limited amount of programming to contain video description. To 
the extent the video description is distracting to viewers who do not 
wish to hear it, they can simply listen to the main audio instead of 
the SAP channel.

X. Conclusion

    39. Today we adopt rules to enhance the accessibility of the 
important medium of television to persons with visual disabilities. We 
do not impose an undue burden on the programming

[[Page 54811]]

production and distribution industries. Our rules will require only the 
largest broadcast stations and MVPDs--which provide television 
programming to the majority of the public--to provide a limited amount 
of programming with video description. These broadcast stations and 
MVPDs will provide programming with video description on the largest 
networks they carry--which provide the most watched television 
programming. Our rules will thus create a benefit to the greatest 
number of persons with visual disabilities but at the same time impose 
a cost on the least number of broadcast stations and MVPDs. As the 
industry and the public gain greater experience with video description, 
we hope that more broadcast stations and MVPDs will provide video 
description, and those that do so will provide more hours of 
programming with video description.

XI. Administrative Matters

    40. This document is available to individuals with disabilities 
requiring accessible formats (electronic ASCII text, Braille, large 
print, and audiocassette) by contacting Brian Millin at (202) 418-7426 
(voice), (202) 418-7365 (TTY), or by sending an email to 
[email protected].
    41. Final Paperwork Reduction Act Analysis. This R&O contains 
information collection requirements that the Commission is submitting 
to the Office of Management and Budget requesting clearance under the 
Paperwork Reduction Act of 1995.
    42. Final Regulatory Flexibility Certification. Pursuant to the 
Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601 et seq.

XII. Ordering Clauses

    43. 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, part 
79 of the Commission's rules are amended as set forth.
    44. The rules set forth that revise Sec. 79.2 of the Commission's 
rules, 47 CFR 79.2, shall become effective upon approval from the 
Office of Management and Budget, and the rules set forth that add 
Sec. 79.3 to the Commission's rules, 47 CFR 79.3, shell become 
effective on April 1, 2002.
    45. The Commission's Consumer Information Bureau, Reference 
Information Center, shall send a copy of this R&O, including the Final 
Regulatory Flexibility Certification, to the Chief Counsel for Advocacy 
of the Small Business Administration.
    46. This proceeding is terminated.

XIII. Final Regulatory Flexibility Act Certification

    47. The Regulatory Flexibility Act (RFA) requires that an agency 
prepare a regulatory flexibility analysis for notice-and-comment 
rulemaking proceedings, unless the agency certifies that ``the rule 
will not, if promulgated, have a significant economic impact on a 
substantial number of small entities.'' The NPRM published in this 
proceeding proposed rules to provide video description on video 
programming in order to ensure the accessibility of video programming 
to persons with visual impairments.
    48. In an abundance of caution, the Commission published an Initial 
Regulatory Flexibility Analysis (IRFA) in the NPRM, even though the 
Commission was reasonably confident that the proposed rules would not 
have the requisite ``significant economic impact'' on a ``substantial 
number of small entities.'' The IRFA sought written public comment on 
the proposed rules. No written comments were received on the IRFA, nor 
were general comments received that raised concerns about the impact of 
the proposed rules on small entities.
    49. The rules adopted in this R&O requiring stations to provide 
video descriptions on video programming will affect at most five small 
broadcasters, which are affiliates of the top four networks in the top 
25 Nielsen Designated Market Areas, in the amount of $5,000 to $25,000 
each. We recognize that the upper end of the possible economic impact 
might constitute a significant impact for some small broadcasters, but, 
as noted, this impact will reach, at most, 10 entities, and we have 
provided an exemption (upon application) for those small entities for 
which the cost is burdensome. The pass through of programming will have 
no significant economic impact on small entities because they are 
required to pass through the programming with video description only if 
they already have the technical capability necessary to do so. The 
Commission believes that the emergency notification requirement will 
have a negligible effect on small entities as well. In addition, if 
this requirement should prove burdensome to small entities, they may 
apply for an exemption.
    50. The Commission therefore certifies, pursuant to the RFA, that 
the rules adopted in the present R&O will not have a significant 
economic impact on a substantial number of small entities. The 
Commission will send a copy of the R&O, including a copy of this final 
certification, in a report to be sent to Congress pursuant to the Small 
Business Regulatory Enforcement Fairness Act, see 5 U.S.C. 
801(a)(1)(A). In addition, the Commission will send a copy of the R&O, 
including a copy of this final certification, to the Chief Counsel for 
Advocacy of the Small Business Administration. In addition, a copy of 
the R&O and this final certification will be published in the Federal 
Register. See 5 U.S.C. 605(b).

List of Subjects in 47 CFR Part 79

    Cable television.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rules

    Part 79 of Title 47 of the U.S. Code of Federal Regulations is 
amended by revising it to read as follows:

PART 79--CLOSED CAPTIONING AND VIDEO DESCRIPTION OF VIDEO 
PROGRAMMING

    1. The title of part 79 is revised to read as set forth above:

    2. The authority citation for part 79 is revised to read as 
follows:

    Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 
613.


    3. Section 79.2 is amended by revising paragraphs (a)(1), (b)(1), 
and (b)(3) to read as follows:


Sec. 79.2  Accessibility of programming providing emergency 
information.

    (a) Definitions. (1) For purposes of this section, the definitions 
in Secs. 79.1 and 79.3 apply.
* * * * *
    (b) Requirements for accessibility of programming providing 
emergency information.
    (1) Video programming distributors must make emergency information, 
as defined in paragraph (a) of this section, accessible as follows:
    (i) Emergency information that is provided in the audio portion of 
the programming must be made accessible to persons with hearing 
disabilities by using a method of closed captioning or by using a 
method of visual presentation, as described in Sec. 79.1 of this part;
    (ii) Emergency information that is provided in the video portion of 
a regularly scheduled newscast, or newscast that interrupts regular 
programming, must be made accessible to persons with visual 
disabilities; and
    (iii) Emergency information that is provided in the video portion 
of programming that is not a regularly scheduled newscast, or a 
newscast that

[[Page 54812]]

interrupts regular programming, must be accompanied with an aural tone.
* * * * *
    (3) Video programming distributors must ensure that:
    (i) Emergency information should not block any closed captioning 
and any closed captioning should not block any emergency information 
provided by means other than closed captioning; and
    (ii) Emergency information should not block any video description 
and any video description provided should not block any emergency 
information provided by means other than video description.
* * * * *

    4. Part 79 is amended by adding Sec. 79.3 to read as follows:


Sec. 79.3  Video description of video programming.

    (a) Definitions. For purposes of this section the following 
definitions shall apply:
    (1) Designated Market Areas (DMAs). Unique, county-based geographic 
areas designated by Nielsen Media Research, a television audience 
measurement service, based on television viewership in the counties 
that make up each DMA.
    (2) Second Audio Program (SAP) channel. A channel containing the 
frequency-modulated second audio program subcarrier, as defined in, and 
subject to, the Commission's OET Bulletin No. 60, Revision A, 
``Multichannel Television Sound Transmission and Processing 
Requirements for the BTSC System,'' February 1986.
    (3) Video description. The insertion of audio narrated descriptions 
of a television program's key visual elements into natural pauses 
between the program's dialogue.
    (4) Video programming. Programming provided by, or generally 
considered comparable to programming provided by, a television 
broadcast station that is distributed and exhibited for residential 
use.
    (5) Video programming distributor. Any television broadcast station 
licensed by the Commission and any multichannel video programming 
distributor (MVPD), and any other distributor of video programming for 
residential reception that delivers such programming directly to the 
home and is subject to the jurisdiction of the Commission.
    (b) The following video programming distributors must provide 
programming with video description as follows:
    (1) Commercial television broadcast stations that are affiliated 
with one of the top four commercial television broadcast networks (ABC, 
CBS, Fox, and NBC), as of September 30, 2000, and that are licensed to 
a community located in the top 25 DMAs, as determined by Nielsen Media 
Research, Inc. for the year 2000, must provide 50 hours of video 
description per calendar quarter, either during prime time or on 
children's programming;
    (2) Television broadcast stations that are affiliated or otherwise 
associated with any television network, must pass through video 
description when the network provides video description and the 
broadcast station has the technical capability necessary to pass 
through the video description;
    (3) Multichannel video programming distributors (MVPDs) that serve 
50,000 or more subscribers, as of September 30, 2000, must provide 50 
hours of video description per calendar quarter during prime time or on 
children's programming, on each channel on which they carry one of the 
top five national nonbroadcast networks, as defined by an average of 
the national audience share during prime time of nonbroadcast networks, 
as determined by Nielsen Media Research, Inc., for the time period 
October 1999 through September 2000; and
    (4) Multichannel video programming distributors (MVPDs) of any 
size:
    (i) Must pass through video description on each broadcast station 
they carry, when the broadcast station provides video description, and 
the channel on which the MVPD distributes the programming of the 
broadcast station has the technical capability necessary to pass 
through the video description; and
    (ii) Must pass through video description on each nonbroadcast 
network they carry, when the network provides video description, and 
the channel on which the MVPD distributes the programming of the 
network has the technical capability necessary to pass through the 
video description.
    (c) Responsibility for and determination of compliance. (1) The 
Commission will calculate compliance on a per channel, calendar quarter 
basis, beginning with the calendar quarter April 1 through June 30, 
2002.
    (2) Programming with video description will count toward a 
broadcaster's or MVPD's minimum requirement for a particular quarter 
only if that programming has not previously been counted by that 
broadcaster or MVPD towards its minimum requirement for any quarter.
    (3) Once an entity has aired a particular program with video 
description, it is required to include video description with all 
subsequent airings of that program, unless the entity uses the SAP 
channel in connection with the program for a purpose other than 
providing video description.
    (4) In evaluating whether a video programming distributor has 
complied with the requirement to provide video programming with video 
description, the Commission will consider showings that any lack of 
video description was de minimis and reasonable under the 
circumstances.
    (d) Procedures for exemptions based on undue burden.
    (1) A video programming distributor may petition the Commission for 
a full or partial exemption from the video description requirements of 
this section, which the Commission may grant upon a finding that the 
requirements will result in an undue burden.
    (2) The petitioner must support a petition for exemption with 
sufficient evidence to demonstrate that compliance with the 
requirements to provide programming with video description would cause 
an undue burden. The term ``undue burden'' means significant difficulty 
or expense. The Commission will consider the following factors when 
determining whether the requirements for video description impose an 
undue burden:
    (i) The nature and cost of providing video description of the 
programming;
    (ii) The impact on the operation of the video programming 
distributor;
    (iii) The financial resources of the video programming distributor; 
and
    (iv) The type of operations of the video programming distributor.
    (3) In addition to these factors, the petitioner must describe any 
other factors it deems relevant to the Commission's final determination 
and any available alternative that might constitute a reasonable 
substitute for the video description requirements. The Commission will 
evaluate undue burden with regard to the individual outlet.
    (4) The petitioner must file an original and two (2) copies of a 
petition requesting an exemption based on the undue burden standard, 
and all subsequent pleadings, in accordance with Sec. 0.401(a) of this 
chapter.
    (5) The Commission will place the petition on public notice.
    (6) Any interested person may file comments or oppositions to the 
petition within 30 days of the public notice of the petition. Within 20 
days of the close of the comment period, the petitioner may reply to 
any comments or oppositions filed.
    (7) Persons that file comments or oppositions to the petition must 
serve the petitioner with copies of those comments or oppositions and 
must

[[Page 54813]]

include a certification that the petitioner was served with a copy. 
Parties filing replies to comments or oppositions must serve the 
commenting or opposing party with copies of such replies and shall 
include a certification that the party was served with a copy.
    (8) Upon a showing of good cause, the Commission may lengthen or 
shorten any comment period and waive or establish other procedural 
requirements.
    (9) Persons filing petitions and responsive pleadings must include 
a detailed, full showing, supported by affidavit, of any facts or 
considerations relied on.
    (10) The Commission may deny or approve, in whole or in part, a 
petition for an undue burden exemption from the video description 
requirements.
    (11) During the pendency of an undue burden determination, the 
Commission will consider the video programming subject to the request 
for exemption as exempt from the video description requirements.
    (e) Complaint procedures. (1) A complainant may file a complaint 
concerning an alleged violation of the video description requirements 
of this section by transmitting it to the Consumer Information Bureau 
at the Commission by any reasonable means, such as letter, facsimile 
transmission, telephone (voice/TRS/TTY), Internet e-mail, audio-
cassette recording, and Braille, or some other method that would best 
accommodate the complainant's disability. Complaints should be 
addressed to: Consumer Information Bureau, 445 12th Street, SW, 
Washington, DC 20554. A complaint must include:
    (i) The name and address of the complainant;
    (ii) The name and address of the broadcast station against whom the 
complaint is alleged and its call letters and network affiliation, or 
the name and address of the MVPD against whom the complaint is alleged 
and the name of the network that provides the programming that is the 
subject of the complaint;
    (iii) A statement of facts sufficient to show that the video 
programming distributor has violated or is violating the Commission's 
rules, and, if applicable, the date and time of the alleged violation;
    (iv) The specific relief or satisfaction sought by the complainant; 
and
    (v) The complainant's preferred format or method of response to the 
complaint (such as letter, facsimile transmission, telephone (voice/
TRS/TYY), Internet e-mail, or some other method that would best 
accommodate the complaint's disability).
    (2) The Commission will promptly forward complaints satisfying the 
requirements to the video programming distributor involved. The video 
programming distributor must respond to the complaint within a 
specified time, generally within 30 days. The Commission may authorize 
Commission staff to either shorten or lengthen the time required for 
responding to complaints in particular cases.
    (3) The Commission will review all relevant information provided by 
the complainant and the video programming distributor and will request 
additional information from either or both parties when needed for a 
full resolution of the complaint.
    (i) The Commission may rely on certifications from programming 
suppliers, including programming producers, programming owners, 
networks, syndicators and other distributors, to demonstrate 
compliance. The Commission will not hold the video programming 
distributor responsible for situations where a program source falsely 
certifies that programming that it delivered to the video programming 
distributor meets our video description requirements if the video 
programming distributor is unaware that the certification is false. 
Appropriate action may be taken with respect to deliberate 
falsifications.
    (ii) If the Commission finds that a video programming distributor 
has violated the video description requirements of this section, it may 
impose penalties, including a requirement that the video programming 
distributor deliver video programming containing video description in 
excess of its requirements.
    (f) Private rights of action are prohibited. Nothing in this 
section shall be construed to authorize any private right of action to 
enforce any requirement of this section. The Commission shall have 
exclusive jurisdiction with respect to any complaint under this 
section.

[FR Doc. 00-23154 Filed 9-8-00; 8:45 am]
BILLING CODE 6712-01-P