[Federal Register Volume 76, Number 174 (Thursday, September 8, 2011)]
[Rules and Regulations]
[Pages 55585-55606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22878]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 73 and 79

[MB Docket No. 11-43; FCC 11-126]


Video Description: Implementation of the Twenty-First Century 
Communications and Video Accessibility Act of 2010

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This Order reinstates the video description rules adopted by 
the Commission in 2000. ``Video description,'' which is the insertion 
of audio narrated descriptions of a television program's key visual 
elements into natural pauses in the program's dialogue, makes video 
programming more accessible to individuals who are blind or visually 
impaired. The Order reinstates the requirement that large-market 
broadcast affiliates of the top four national networks, and 
multichannel video programming distributor systems (``MVPDs'') with 
more than 50,000 subscribers, provide video description. It also 
reinstates the requirement that that all network-affiliated 
broadcasters (commercial or non-commercial) and all MVPDs pass through 
any video description provided with network programming they carry, to 
the extent that they are technically capable of doing so and when that 
technical capability is not being used for another purpose related to 
the programming.

DATES: Effective date: October 11, 2011, except for 47 CFR 79.3(d) and 
(e), which contain information collection requirements that have not 
been approved by OMB. The Federal Communications Commission will 
publish a document in the Federal Register announcing the effective 
date. The incorporation by reference of certain publications listed in 
the rule is approved by the Director of the Federal Register as of 
October 11, 2011.
    Compliance date: October 1, 2012.

FOR FURTHER INFORMATION CONTACT: Lyle Elder, [email protected] of the 
Policy Division, Media Bureau, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Report and Order in MB Docket No. 11-43, 
FCC 11-126, adopted August 24, 2011, and released August 25, 2011. The 
full text of this document is available for public inspection and 
copying during regular business hours in the FCC Reference Center, 
Federal Communications Commission, 445 12th Street, SW., CY-A257, 
Washington, DC 20554. These documents will also be available via ECFS 
(http://www.fcc.gov/cgb/ecfs/). (Documents will be available 
electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete 
text may be purchased from the Commission's copy contractor, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554. To request this 
document in accessible formats (computer diskettes, large print, audio 
recording, and Braille), send an e-mail to [email protected] or call the 
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

[[Page 55586]]

Summary of the Final Rule

I. Introduction

    1. Pursuant to the Commission's responsibilities under the Twenty-
First Century Communications and Video Accessibility Act of 2010 
(``CVAA''),\1\ this Order reinstates the video description rules 
adopted by the Commission in 2000.\2\ ``Video description,'' which is 
the insertion of audio narrated descriptions of a television program's 
key visual elements into natural pauses in the program's dialogue,\3\ 
makes video programming more accessible to individuals who are blind or 
visually impaired. The United States Court of Appeals for the District 
of Columbia Circuit vacated the Commission's original video description 
rules due to insufficient authority soon after their initial 
adoption.\4\ The CVAA has directed us to reinstate those rules with 
certain modifications.\5\ We anticipate that these revised and 
reinstated rules will afford better access to television programs for 
individuals who are blind or visually impaired, enabling millions more 
Americans to enjoy the benefits of television service and participate 
more fully in the cultural and civic life of the nation.
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    \1\ Twenty-First Century Communications and Video Accessibility 
Act of 2010, Public Law 111-260, 124 Stat. 2751 (2010).
    \2\ The CVAA requires that ``the Commission shall, after a 
rulemaking, reinstate its video description regulations'' with 
certain modifications. CVAA 202(a), Public Law 111-260, 124 Stat. 
2751 (2010) (to be codified at 47 U.S.C. 613). The regulations were 
initially promulgated in Implementation of Video Description of 
Video Programming, MM Docket No. 99-339, Report and Order, 15 FCC 
Rcd 15230 (2000) (``2000 Report and Order''), recon. granted in part 
and denied in part, 16 FCC Rcd 1251 (2001) (``Recon''), and were 
codified at 47 CFR 79.3. The Commission initiated this proceeding to 
implement the CVAA in March 2011. Video Description: Implementation 
of the Twenty-First Century Communications and Video Accessibility 
Act of 2010, MB Docket No. 11-43, Notice of Proposed Rulemaking, 26 
FCC Rcd 2975 (2011) (``NPRM'').
    \3\ CVAA at Title II, sec. 202(a), 713(h)(1). Video description 
is sometimes referred to as ``audio description''; see infra para. 
56 (discussing the Commission's use of the statutory term ``video 
description'').
    \4\ Motion Picture Ass'n of America, Inc. v. Federal 
Communications Comm., 309 F.3d 796 (DC Cir. 2002).
    \5\ CVAA at Title II, sec. 202(a), 713(f)(1-2).
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    2. This Order reinstates the requirement that large-market 
broadcast affiliates of the top four national networks, and 
multichannel video programming distributor systems (``MVPDs'') with 
more than 50,000 subscribers, provide video description.\6\ Covered 
broadcasters are each required to provide 50 hours of video-described 
prime time or children's programming, per calendar quarter, and covered 
MVPDs are required to provide the same number of hours on each of the 
five most popular nonbroadcast networks.\7\ This ``most popular'' list 
excludes two nonbroadcast networks that primarily air programming 
recorded less than 24 hours before it is first aired.\8\ The rules also 
require that all network-affiliated broadcasters (commercial or non-
commercial) and all MVPDs pass through any video description provided 
with programming they carry. They must do so, however, only to the 
extent that they are technically capable of doing so and when that 
technical capability is not being used for another purpose related to 
the programming.\9\ As required under the CVAA, these rules will be 
reinstated on October 8, 2011. Broadcast stations and MVPDs subject to 
the rules must begin full compliance on July 1, 2012.
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    \6\ Appendix A, Final Rules (Revised 47 CFR 79.3(b)).
    \7\ Id. at Sec.  79.3(b)(1), (3).
    \8\ See infra para. 14 (ESPN and Fox News exempted); see also 
CVAA at Title II, sec. 202(a), 713(f)(2)(E).
    \9\ Appendix A, Final Rules (Revised 47 CFR 79.3(b)(3), (5)).
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II. Background

    3. In 1996, at Congress's direction, the Commission issued a report 
on the use of video description in video programming.\10\ In 2000, the 
Commission adopted rules requiring certain broadcasters and MVPDs to 
carry programming with video description.\11\ Five months after the 
rules went into effect, they were vacated by the United States Court of 
Appeals for the District of Columbia Circuit on the ground that the 
Commission lacked sufficient authority to promulgate video description 
rules.\12\ On October 8, 2010, President Obama signed the CVAA, which 
gives the Commission express authority to adopt video description 
rules. The statute directs the Commission, as an initial step, to 
reinstate the previously adopted video description rules, with certain 
modifications.\13\ To fulfill our statutory mandate, we adopt the rules 
discussed below.\14\
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    \10\ 47 U.S.C. 613 (this section, Video Programming 
Accessibility, was added to the Communications Act by Section 305 of 
the Telecommunications Act of 1996); see also Implementation of 
Section 305 of the Telecommunications Act of 1996--Video Programming 
Accessibility, MM Docket No. 95-176, Report, 11 FCC Rcd 19214 (1996) 
(``Report''). The Commission had initiated the inquiry in 1995, 
before enactment of the 1996 Act. Closed Captioning and Video 
Description of Video Programming, MM Docket No. 95-176, Notice of 
Inquiry, 11 FCC Rcd 4912 (1995).
    \11\ 2000 Report and Order, supra note 2.
    \12\ Motion Picture Ass'n of America, Inc. v. Federal 
Communications Comm., 309 F.3d 796 (DC Cir. 2002).
    \13\ CVAA at Title II, sec. 202(a), 713(f)(1) (requiring 
reinstatement of the rules one year after the date of enactment of 
the CVAA).
    \14\ The CVAA imposes other requirements with respect to video 
description. For example, we are required to submit a report to 
Congress by April 1, 2014 discussing the status, benefits, and costs 
of video description on television and Internet-provided video 
programming. Id. at Sec.  713(f)(3). We must submit a second report 
by October 8, 2019 that provides a detailed review of the video 
description market and the potential need for expansion of the 
description mandates. Id. at Sec.  713(f)(4)(C)(iii). The CVAA also 
gives us authority to expand the video description obligations if we 
determine that the benefits of video description outweigh its costs. 
Id. at Sec.  713(f)(4)(A), (B), (C)(iv). We will address these 
questions in later proceedings.
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III. Discussion

A. Reinstated Rules

    4. Section 713(f)(1) of the Communications Act, as added by the 
CVAA, states that the Commission shall, after a rulemaking, reinstate 
its video description regulations contained in the Implementation of 
Video Description of Video Programming Report and Order (15 F.C.C.R. 
15,230 (2000)), recon. granted in part and denied in part, (16 F.C.C.R. 
1251 (2001)), modified as provided in paragraph (2).\15\
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    \15\ Id. at Sec.  713(f)(1). See also id. at Sec.  713(f)(2) 
(``Such regulations shall be modified only as follows * * *'').
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    Consistent with Congress' directive, we will reinstate the 
Commission's video description rules on October 8, 2011, with the 
modifications required by the CVAA and discussed below.\16\ The most 
significant elements of these reinstated rules are:
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    \16\ See generally 2000 Report and Order and Recon, supra note 
2.
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     Full-power affiliates of the top four national networks 
located in the top 25 television markets must provide 50 hours per 
calendar quarter of video-described prime time and/or children's 
programming. MVPDs that operate systems with 50,000 or more subscribers 
must provide 50 hours per calendar quarter of video-described prime 
time and/or children's programming on each of the top five non-
broadcast networks that they carry on those systems.
     To count toward the requirement, the programming must not 
have been previously aired with video description, on that particular 
MVPD channel or broadcast station, more than once.
     Any broadcast station, regardless of its market size, 
affiliated or otherwise associated with any television network, must 
``pass through'' video description when the network provides it, if the 
station has the technical capability necessary to do so, and that 
technical capability is not being used for another purpose related to 
the programming. Similarly, any MVPD system, regardless of its number 
of subscribers, must ``pass

[[Page 55587]]

through'' video description when a broadcast station or nonbroadcast 
network provides it, if it has the technical capability necessary to do 
so on the channel on which it distributes the broadcast station or 
nonbroadcast network programming and that technical capability is not 
being used for another purpose related to the programming. Any 
programming aired with description must always include description if 
re-aired on the same station or MVPD channel.
     Complaints alleging a failure to comply with these rules 
may be filed with the Commission by any viewer, and the Commission will 
act to resolve such complaints after reviewing all relevant information 
provided by the complainant and the video programming distributor.

B. Requirement To Provide Video Description

    5. Under the reinstated rules, certain broadcast stations and MVPDs 
have an obligation to provide video description of some of the video 
programming \17\ that they offer. Full-power affiliates of the top 
national networks that are located in the 25 television markets with 
the largest number of television households \18\ must provide 50 hours 
per calendar quarter of video-described programming during prime 
time,\19\ or at any time if they are providing children's 
programming.\20\ To count toward this 50-hour requirement, video-
described programming must be airing either the first or second time on 
the station; that is, a video described program may be counted toward 
the 50 hours when it is originally aired and once more when it is re-
run for the first time. Although we anticipate that much of the 
programming aired with video description will be newly produced, 
stations may count any program that they are airing for the first or 
second time with video description after the reinstated rules become 
effective, even if the program has previously been aired on that 
station. Similarly, a station may count programming toward its 50-hour 
obligation even if that programming has aired elsewhere with 
description, so long as it is airing with description for the first or 
second time on that station. The rules are identical for MVPDs with 
50,000 or more subscribers, except that they apply to the programming 
of each of the top five national non-broadcast networks \21\ carried by 
the MVPDs.
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    \17\ The CVAA defines ``video programming'' in the video 
description context as ``programming by, or generally considered 
comparable to programming provided by a television broadcast 
station, but not including consumer-generated media (as defined in 
section 3).'' CVAA at Title II, section 202(a), 713(h)(2). Section 3 
of the Communications Act, as amended in the CVAA, defines consumer-
generated media as ``content created and made available by consumers 
to online websites and services on the Internet, including video, 
audio, and multimedia content.'' CVAA at Title I, sec. 101(1), 3 
(54). The rules adopted herein adopt the CVAA definition of video 
programming. See Appendix A, Final Rules (Revised 47 CFR 
79.3(a)(4)).
    \18\ These markets are the top 25 as determined by The Nielsen 
Company as of January 1, 2011 (i.e., the 2010-2011 Designated Market 
Area rankings).
    \19\ For this purpose, prime time means 8-11 p.m. Monday through 
Saturday, and 7-11 p.m. on Sunday, except that these times are an 
hour earlier in the central time zone, and stations in the mountain 
time zone may choose which ``prime time'' period to adopt for the 
purpose of these rules. Appendix A, Final Rules (Revised 47 CFR 
79.3(a)(6)). The National Association of Broadcasters (``NAB'') 
supports this definition, which was not opposed by any party. 
Comments of NAB at note 22.
    \20\ For this purpose, this is programming directed at children 
16 years of age and younger. See infra para. 51 and Appendix A, 
Final Rules (Revised 47 CFR 79.3(a)(8)).
    \21\ The ranking of the Top 5 is based on The Nielsen Company's 
data on national prime time audience share, the number of 
subscribers reached, and the amount of non-exempt programming. See 
infra para. 12.
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    6. MVPD commenters raise some concerns about the requirement to 
provide video description, as opposed to passing it through when it is 
received. AT&T argues that

[b]ecause of the practical, technical, and legal challenges 
involved, MVPDs are currently incapable of producing video 
descriptions on their own, and thus should only be required to 
transmit video descriptions to the extent that they are 
available.\22\

    \22\ Comments of AT&T Services, Inc. (``AT&T'') at 7.

AT&T notes that ``MVPDs do not generally have the expertise, resources, 
or established processes for'' the production of video description.\23\ 
Along similar lines, Verizon explains that ``[t]he overwhelming 
majority of programming viewed by FiOS TV subscribers is received by 
Verizon and immediately passed on to subscribers in real-time,'' 
creating technical hurdles to monitoring and adjusting an audio stream 
containing video description.\24\ Finally, NCTA states that since video 
description is ``a creative work that is derivative of an original 
work, the descriptive audio may be subject to review and approval by 
several entities.'' \25\ AT&T argues that it would not be in a position 
to create such a derivative work without a license from the copyright 
holders, which ``may be hesitant to grant such licenses.'' \26\ For all 
these reasons, AT&T argues that ``the only entity that would be both 
capable of and authorized to create video descriptions would be the 
video programming provider,'' and ``the Commission should not skew [the 
carriage agreement] bargaining process by placing a regulatory 
obligation on MVPDs that they are unable independently to fulfill.'' 
\27\
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    \23\ Id. at 8.
    \24\ Comments of Verizon Communications, Inc. (``Verizon'') at 
2.
    \25\ Comments of NCTA at note 40.
    \26\ Comments of AT&T at 8.
    \27\ Id. See also Reply of CenturyLink at 4.
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    7. The American Association of People with Disabilities (``AAPD'') 
greets with skepticism Verizon's claim of being totally ``hands-off'' 
with their content. They note that ``distributors contract with content 
providers and programmers before any programming is passed through 
their system, and do not `blindly' pass along content to viewers.'' 
\28\ The American Council of the Blind (``ACB'') ``recognizes the 
challenges in obtaining copyright permissions and producing audio 
description for programs,'' but suggests that relying on these marginal 
concerns when drafting overarching policy would be allowing the tail to 
wag the dog.\29\ They argue that, rather than delaying full 
implementation due to these concerns, the Commission should simply take 
them into consideration, where appropriate, in the context of any 
future complaint.\30\
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    \28\ Reply of AAPD at 4.
    \29\ Comments of ACB at 6.
    \30\ Id.
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    8. As industry commenters observe and as the Commission 
acknowledged in the NPRM, most video description has historically been 
created by programmers with whom broadcast stations and MVPDs contract 
for distribution of their content.\31\ But the obligation on certain 
broadcast stations and MVPD systems to provide video description to 
their viewers is fundamental to the video description rules Congress 
has directed us to reinstate.\32\ Limiting our rules to a pass-through 
obligation would eviscerate them, leaving no requirement in place on 
any party to ensure the production and distribution of video described 
content. In addition, doing so would put us in clear violation of 
Congress' directive that we reinstate the 2000 video description rules.
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    \31\ NPRM, supra note 2, at note 47.
    \32\ See generally, CVAA, supra note 1. See also Reply of NAB at 
6 (recognizing that the reinstated rules will require some 
broadcasters to ``provide'' video description, even though some 
elements of that provision are out of their control).
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    9. As discussed more fully below, we do not find any of the 
technical, practical, or legal concerns described by the commenters 
insurmountable, particularly given the very small amount of programming 
that must be described. We note that these stations

[[Page 55588]]

and systems provide 22 hours of prime-time programming per week, and 
most of the nine broadcast and nonbroadcast networks covered by the 
rules also provide some amount of children's programming. Out of all 
these hours of programming each week, a single broadcast or 
nonbroadcast network will be required to newly describe fewer than four 
hours each week, and, as long as the described programming is prime-
time or children's programming, what is described is at the discretion 
of the regulated entity and their contractual partners.\33\ Each 
covered station and system knows that it is individually responsible 
for ensuring that it carries one to two hundred hours of newly 
described programming each year (depending on the frequency of re-
runs). We expect stations and systems to be forward-looking and fully 
prepared to provide this amount of newly described programming, whether 
by contract with network programmers or otherwise. Indeed, a third of 
the covered networks are already providing at least some video 
description.\34\ Commenters identify no relevant distinctions between 
these networks and the others covered by the rules, giving us every 
confidence that video description can be successfully expanded within 
the generous time frame for compliance that we adopt in this Order.\35\ 
Furthermore, as discussed below, the small amount of programming at 
issue in this proceeding also mitigates many other concerns raised by 
industry commenters, including those regarding the definition of 
``near-live'' programming,\36\ the pass-through obligation,\37\ and the 
alleged need for new blanket exemptions.\38\ We are simply not 
persuaded that these minimal requirements are overly burdensome, given 
the benefits they provide and our mandate from Congress. We also note 
that the CVAA requires us to review and reconsider these rules numerous 
times over the next decade, giving us ample opportunity to resolve any 
issues that arise upon implementation. Because the CVAA directs us to 
reinstate the video description rules as they were adopted in 2000, and 
gives us limited authority to revise them,\39\ we believe that it is 
appropriate to hew closely to the original text of the rules where 
possible. We need not attempt to address every possible situation 
suggested by commenters that could hypothetically arise; we can address 
special or unique situations on a case-by-case basis through our 
administrative procedures. Per the CVAA, we provide for exemptions from 
the rules where they may be economically burdensome, and establish the 
process for seeking such exemptions.
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    \33\ See infra para. 51 (noting that the Commission declines to 
seek information about the program selection process).
    \34\ After the Commission's original video description rules 
were vacated, some broadcast and nonbroadcast networks voluntarily 
continued to provide this important service. See NPRM, supra note 2, 
at para. 4. CBS, Fox, and TNT, for instance, all provide description 
today and will be providing description under these rules. We 
commend these networks, and all others that have and continue to 
voluntarily offer described programming, for recognizing the 
importance of video description to the members of their audiences 
who are blind or visually impaired.
    \35\ See infra paras. 34-38 (discussing the compliance 
timeline).
    \36\ See infra paras. 40-42.
    \37\ See infra paras. 20-21.
    \38\ See infra paras. 45-47.
    \39\ CVAA at Title II, sec. 202(a), 713(f)(1-2).
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1. Broadcast Stations
    10. Reference date for determining the top 25 markets. In the NPRM, 
the Commission proposed to reinstate the 2000 rules, which designated 
ABC, CBS, Fox, and NBC affiliates, licensed to the top 25 markets as 
determined by The Nielsen Company, as the broadcast stations required 
to provide 50 hours of video description per quarter, and we adopt that 
proposal.\40\ The CVAA directed us to ``update the list of the top 25 
designated market areas,'' \41\ and in response, the NPRM proposed to 
apply the rules to the top 25 markets as determined by Nielsen as of 
January 1, 2011 (i.e., the 2010-2011 designated market areas (DMA) 
rankings).\42\ NAB, the WGBH National Center for Accessible Media 
(``WGBH''), and ACB agree with this approach to determining the covered 
broadcast stations, and we adopt the proposal.\43\
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    \40\ NPRM, supra note 2, at para. 9.
    \41\ CVAA, Title II, sec. 202(a), 713(f)(2)(B).
    \42\ NPRM, supra note 2, at para. 9. Markets are ranked by 
Nielsen based on their total number of television households. TVB 
Market Profiles at http://www.tvb.org/market_profiles/131627. DMA 
is a registered trademark of The Nielsen Company.
    \43\ See Comments of NAB at 11; Comments of WGBH at 11; Comments 
of ACB at 4. ACB suggests that although Nielsen ratings ``may 
suffice'' for determining the top 25 markets at this time, they may 
ultimately prove insufficient to accurately gauge market size, due 
to the expanding use of Internet-delivered video. They raise similar 
concerns about the measurement of audience size when determining the 
top five nonbroadcast networks. Given that the rules Congress 
instructed us to reinstate are limited to the provision of video 
description on television, the reach of broadcast stations and 
nonbroadcast networks over the Internet is not addressed in this 
proceeding.
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    11. New Affiliates. The Commission also proposed to require 
stations in those markets that are affiliated with ABC, CBS, Fox, or 
NBC to provide video description regardless of when the affiliation 
begins.\44\ That is, a station in a top 25 market that is not currently 
affiliated with one of those networks but becomes affiliated with one 
of them would be immediately responsible for complying with the video 
description requirement. NAB asks the Commission instead to give new 
affiliates a ``phase-in period of at least three months (but preferably 
six months)'' before requiring them to provide video description.\45\ 
NAB argues that
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    \44\ NPRM, supra note 2, at para. 9.
    \45\ August 19, 2011 Ex Parte of NAB at 1.

[a] station that becomes a top-four affiliate but is not technically 
ready to pass through video description will need a reasonable 
period to deploy the requisite technical capability. The CVAA does 
not require an immediate imposition of the video description rules 
on a station that newly becomes a top-four, top-25 affiliate, and 
NAB anticipates that without such a grace period, a station in this 
situation would seek a waiver of the rules.\46\
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    \46\ Comments of NAB at 11.

    No other comments addressed this argument. We agree with NAB that 
some stations may require some time to buy or upgrade equipment and 
software after the affiliation agreement is finalized, and note that we 
have provided a three month ``grace period'' to MVPD systems that reach 
50,000 subscribers.\47\ We anticipate that a similar period will 
provide ample time for a station to establish the necessary technical 
capability. Accordingly, we require new ABC, CBS, Fox, and NBC 
affiliates in the top 25 markets to provide video description, in the 
same manner as current ABC, CBS, Fox, and NBC affiliates in the top 25 
markets, beginning no more than three months after their affiliation 
agreement is finalized.
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    \47\ See infra para. 38.
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2. Top Five National Nonbroadcast Networks
    12. In order to implement the requirement that MVPD systems with 
more than 50,000 subscribers provide 50 hours per calendar quarter of 
video-described prime time and/or children's programming on each of the 
top five non-broadcast networks that they carry,\48\ we must identify 
the ``top 5

[[Page 55589]]

national nonbroadcast networks that have at least 50 hours per quarter 
of prime time programming that is not exempt.'' \49\ The prior rules 
determined the top nonbroadcast networks using ``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-September 2000, that reach 50 percent or more of MVPD 
households.'' \50\ In the NPRM, the Commission proposed to measure 
audience share over an updated time frame, October 2009-September 
2010,\51\ and to explicitly exclude from the top five any non-broadcast 
network that does not provide, on average, at least 50 hours per 
quarter of prime time non-exempt programming.\52\ No commenter opposed 
this proposal, which we adopt. Therefore, the top five nonbroadcast 
networks for the purposes of our rules are USA, the Disney Channel, 
TNT, Nickelodeon, and TBS.\53\
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    \48\ A number of commenters observe that, as proposed, the rules 
were ambiguous as to whether it is MVPD size or system size that 
determines whether a given MVPD system is required to provide 
description or only to pass it through. Comments of the National 
Cable & Telecommunications Association (``NCTA'') at 3; Reply of the 
American Cable Association (``ACA'') at 2-3; Reply of CenturyLink at 
3. The 2000 Report & Order, however, made it clear that the 
requirement to provide description was intended to be triggered by 
system size. 2000 Report and Order, supra note 2, at para. 27. We 
have clarified the language of the rule to reflect this intent. 
Appendix A, Final Rules (Revised 47 CFR 79.3(b)(4)).
    \49\ CVAA, Title II, sec. 202(a), 713(f)(2)(B). ``Exempt'' 
programming includes ``live or near-live programming.'' See infra 
para. 37.
    \50\ 47 CFR 79.3(b)(3).
    \51\ NPRM, supra note 2, at para. 12. These dates cover the 
2009-2010 television season, which is the most recent full 
television season for which ratings are available.
    \52\ Appendix A, Final Rules (Revised 47 CFR 79.3(b)(4)); see 
also infra paras. 40-42 (addressing the definition of ``live or 
near-live'').
    \53\ But see, infra, para. 18 (list will be revised at three 
year intervals, if ratings change).
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    13. The Nielsen Company treats some nonbroadcast ``channels'' as 
more than one ``network'' for ratings purposes--notably, Nickelodeon 
and Nick at Nite. The Commission asked how we should take this into 
account when determining which networks are subject to the requirement 
to provide video description.\54\ NCTA responds that, for these 
purposes, ``it makes sense for the Commission to treat those entities 
as a single network.'' \55\ No other commenters address this question, 
and we concur with NCTA's suggestion. We therefore consider Nickelodeon 
and Nick at Nite to be a single network for ranking purposes and will 
consider them a single network for the purposes of compliance with the 
50-hour requirement.
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    \54\ NPRM, supra note 2, at para. 12.
    \55\ Comments of NCTA at note 32.
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    14. We asked for detailed information from any network that 
believes it should be excluded from the top five covered networks 
because it does not ``have at least 50 hours per quarter of prime time 
programming that is not exempt'' from these rules.\56\ The comments of 
The Walt Disney Company (``Disney''), as parent company of ESPN, 
indicate that ``ESPN does not provide, on average, at least 50 hours 
per quarter of prime-time non-exempt programming,'' and are supported 
by an affidavit to that effect and ``a few illustrative programming 
schedules.'' \57\ Similarly, the reply of News Corporation (``Fox'') 
indicates that ``Fox News qualifies for exclusion from the rules 
because it does not provide at least 50 hours per quarter of non-exempt 
(i.e., non-live or non-near live) prime-time programming,'' and is 
supported by a declaration to that effect and a programming schedule 
for a representative week.\58\ Both networks base these assertions on 
the NPRM's proposed definition of ``near-live'' programming as 
``programming performed and recorded less than 24 hours prior to the 
time it is first aired,'' \59\ which we adopt here.\60\ No commenter 
disputes the accuracy of these filings. Thus, pursuant to the terms of 
the statute, ESPN and Fox News are excluded from the list of top five 
nonbroadcast networks because they do not ``have at least 50 hours per 
quarter of prime time programming that is not exempt under'' the 
statute.\61\
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    \56\ NPRM, supra note 2, at para. 12.
    \57\ Comments of Disney at 1-2, Appendix A, Appendix B.
    \58\ Reply of Fox at 1, Exhibit No. 1, Exhibit No. 2.
    \59\ Comments of Disney at note 5; Reply of Fox at note 5.
    \60\ Appendix A, Final Rules (Revised 47 CFR 79.3(a)(7)); see 
also infra paras. 38-40.
    \61\ CVAA, Title II, sec. 202(a), 713(f)(2)(B).
---------------------------------------------------------------------------

    15. ACB argues that, notwithstanding that the bulk of ESPN's prime-
time programming is live or near-live, ``there certainly is prime [sic] 
programming that ESPN produces that does not fall under the given rules 
and should not be exempted.'' \62\ The CVAA, however, limits the list 
of top five nonbroadcast networks to those networks that provide at 
least ``50 hours per quarter of prime time programming that is not 
exempt,'' and does not give the Commission authority to extend video 
description requirements to any other nonbroadcast networks.\63\ 
Therefore, we decline to adopt ACB's proposal to extend video 
description requirements to ESPN's non-exempt prime-time programming.
---------------------------------------------------------------------------

    \62\ Reply of ACB at 8.
    \63\ CVAA, Title II, sec. 202(a), 713(f)(2)(B).
---------------------------------------------------------------------------

3. Updates to the Lists of Markets and Nonbroadcast Networks
    16. Extension to Top 60 Markets. The CVAA mandates that the 
Commission extend the video description requirements to broadcast 
stations in the top 60 markets after filing a report to Congress on the 
state of the video description market, and no later than six years 
after the enactment date of the CVAA.\64\ The Report is due to be 
submitted to Congress between July 1, 2013 and July 1, 2014,\65\ and as 
a result we must extend the video description requirements to the top 
60 markets some time between July 1, 2013 and October 8, 2016. In the 
NPRM, the Commission asked whether this Order should identify now the 
reference date to be used to determine the top 60 markets and a 
compliance deadline for stations in markets 26-60, or whether the 
Commission should set those dates following the required report to 
Congress.\66\ WGBH states that we ``should set a date at this time for 
the next phase of video description so as to assure that all parties 
are aware of the pending requirements.'' \67\ ACB agrees that the 
reference date should be chosen at this time, and that the compliance 
deadline should be January 1, 2015, to give ``sufficient warning'' to 
covered entities and prevent ``unnecessary delays.'' \68\ NAB 
disagrees, arguing that ``[t]he broadcast television industry is 
dynamic, and more experience is needed before any realistic timeframe 
can be established.'' It proposes that the Commission act to set these 
dates no sooner than January 1, 2014.\69\ Given the narrow range of 
possible compliance deadlines, we see no benefit in delaying the 
selection of either the compliance date or the reference date. 
Furthermore, as WGBH notes, setting a date at this time gives 
significant advance notice to the parties likely to be covered.\70\ 
This approach gives major-network affiliates in the top 60 markets 
additional time to upgrade equipment or architecture in order to 
provide video description once it is mandated (although, given the 
pass-through obligations of these stations, we expect that they will 
have little or no need for upgrades). Given the benefits of selecting 
compliance and reference dates now, and the absence of any 
countervailing harms, we elect to do so. The rules extend the 
requirement to provide 50 hours per quarter of video description to 
major network affiliates in the 60 largest markets beginning on July 1, 
2015. These will be the television markets with the largest number of

[[Page 55590]]

television households as determined by The Nielsen Company as of 
January 1, 2015 (i.e., the 2014-2015 DMA rankings).
---------------------------------------------------------------------------

    \64\ Id. at Sec.  713(f)(4)(C)(i-ii).
    \65\ Id. (explaining that the Commission must begin an inquiry 
into the state of the video description market no later than one 
year after July 1, 2012, when the rules go fully into effect, and 
must file the report to Congress no later than a year after 
beginning the inquiry).
    \66\ NPRM, supra note 2 at para. 11.
    \67\ Comments of WGBH at 3.
    \68\ Comments of ACB at 5.
    \69\ Comments of NAB at 12.
    \70\ Comments of WGBH at 3.
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    17. Updating List of Top 25 Markets. As discussed above, affiliates 
of the top four broadcast networks must provide 50 hours of video 
description per quarter if they are licensed to communities in the top 
25 markets as of January 1, 2011. Because the relative size of 
television markets can change over time, the NPRM sought comment on 
whether we should reconsider the ranking of the top 25 markets at 
certain intervals to better reflect market conditions.\71\ WGBH 
supports a periodic reconsideration of the rankings and suggests a 
five-year time frame, while agreeing with the Commission that ``the 
availability of described programming should vary little market-to-
market based on the pass-through requirements.'' \72\ ACB agrees that a 
shifting television market supports periodic reevaluation, although at 
no less than 24-month intervals.\73\ The Commission noted in the NPRM 
that, because of the ``pass-through'' obligations of network stations 
outside the top 25 markets, there may be little to no difference in the 
amount of video described programming available from affiliates of the 
top four networks in larger and smaller markets.\74\ We share NAB's 
concern about increasing the ``complexities of compliance'' by 
modifying the list multiple times if it would have minimal impact on 
the availability of programming.\75\ Thus, we decline to act at this 
time, but will gather information about this issue when preparing the 
first report to Congress, looking particularly at the availability of 
passed-through video description on major network affiliates outside 
the top 25 and top 60.
---------------------------------------------------------------------------

    \71\ NPRM, supra note 2, at para. 10.
    \72\ Comments of WGBH at 3.
    \73\ Comments of ACB at 4.
    \74\ NPRM, supra note 2, at para. 10.
    \75\ Comments of NAB at 12.
---------------------------------------------------------------------------

    18. Updating List of Top Five Nonbroadcast Networks. Ratings of 
nonbroadcast networks change more frequently over time,\76\ and a 
change in the list of covered nonbroadcast networks could mean a 
significant change in the described programming available to viewers. 
The Commission therefore sought comment on whether we should reconsider 
the ranking of the top five nonbroadcast networks at certain intervals 
to better reflect current market conditions and, if so, what those 
intervals should be.\77\ Every commenter that addresses this issue 
supports a periodic reevaluation, although not an annual one.\78\ MVPD 
commenters express some concern about the ``ramping-up efforts'' that 
will be necessary when networks are newly added to the top five 
list.\79\ We find more compelling, however, the concerns both MVPD and 
consumer commenters raise about balancing the need for description of 
the most popular content against the need to avoid disruption for 
audiences who come to rely upon video described programming on a given 
channel.\80\ We agree with ACB that a period of less than 24 months 
would be excessively disruptive to viewers, but that NCTA's proposed 
five-year interval could allow the described programming to get too out 
of sync with viewer preference. Therefore, in line with ACB's proposal 
that the revisions occur on a cycle ``no less than'' two years long, 
and AT&T's proposal that it be ``multi-year,'' our rules will 
automatically update the top five list every three years. We agree with 
NCTA that it is important to give newly included networks time to come 
into full compliance,\81\ so each new list will be based not on The 
Nielsen Company ratings for the ratings year just ended, but for the 
previous year. Thus, the first update, on July 1, 2015, will be based 
on the ratings over the 2013-2014 ratings year. This approach will not 
only ensure that new top five networks have time to come into 
compliance, but that there is no interim period during which the list 
drops below five. To the extent a program network that otherwise would 
appear in the list of top five nonbroadcast networks does not air at 
least 50 hours of prime time programming that is not exempt,\82\ it 
must seek an exemption from the video description requirement no later 
than 30 days after publication of the 2013-2014 ratings information by 
The Nielsen Company. This requirement will ensure that the nonbroadcast 
network replacing it in the top five has ample time to come into 
compliance. We direct the Media Bureau to act on any such requests 
promptly, applying the definition of ``near-live'' programming adopted 
in this Order, and to provide public notice of any resulting revisions 
to the list.
---------------------------------------------------------------------------

    \76\ Comments of WGBH at 3.
    \77\ NPRM, supra note 2, at para. 13.
    \78\ Comments of NCTA at note 32 (``no less than five year 
intervals''); Comments of AT&T at 10 (``a multi-year reassessment 
interval''); Comments of ACB at 5 (``no less than 24 months''), 
Comments of WGBH at 3 (``perhaps on a two-year timeline'').
    \79\ Comments of NCTA at note 32; Comments of AT&T at 9-10.
    \80\ Comments of NCTA at note 32.
    \81\ Comments of AT&T at 10; Comments of ACB at 5.
    \82\ Like ESPN and Fox News, which are excluded from the current 
top five list.
---------------------------------------------------------------------------

    19. WGBH, ACB, and the American Foundation for the Blind (``AFB'') 
propose a ``no-backsliding'' rule in both the broadcast and 
nonbroadcast context. Under such a rule, the large network affiliate 
stations in a top 25 (or, later, top 60) market would retain the 
obligation to provide video description even if their market slipped 
out of the top 25, and MVPDs would retain the obligation to provide 
video description on any nonbroadcast network that was ever considered 
a top five network under these rules.\83\ NCTA notes that the economic 
justification for applying the rules to the most popular cable 
networks--that they could ``best bear'' the recurring costs of video 
description--diminishes once a network ceases to be one of the most 
popular.\84\ The same logic would apply to stations licensed to markets 
that suffer losses of numbers of television households.\85\ NCTA also 
questions whether the Commission has the statutory authority to apply 
the rules to a network that is not on its top five list (or, by 
extension, to a station not in a top 25 market).\86\ AFB argues that 
the ``Commission's ancillary jurisdiction provides the Commission the 
flexibility needed'' to take this option.\87\ We agree with NCTA that 
the statute does not authorize us to expand the number of nonbroadcast 
networks subject to our rules beyond the five identified according to 
the criteria set out in the statute and interpreted here.\88\ We 
therefore decline to adopt a ``no-backsliding'' rule in either the 
broadcast or non-broadcast contexts.\89\ We encourage those entities 
initially subject to our rules to continue to provide video description 
and thereby serve individuals who are blind or

[[Page 55591]]

visually impaired even after their obligation to do so ceases. We also 
note that broadcast stations that drop out of the top 25 markets will 
continue to have an obligation to pass through video description, as 
discussed below.
---------------------------------------------------------------------------

    \83\ Comments of WGBH at 2,3; Comments of ACB at 4-5; Reply of 
AFB at 3-4; Reply of ACB 6-7.
    \84\ Reply of NCTA at 5.
    \85\ In addition, a station's dropping off the list of top 25 
(or 60) markets will not likely have a significant practical effect, 
as they will still be required to pass through any video description 
they receive.
    \86\ Reply of NCTA at 5.
    \87\ Reply of AFB at 3-4.
    \88\ The CVAA states that our reinstated ``regulations shall be 
modified only as follows,'' including ``[t]he Commission shall 
update * * * the list of the top 5 national nonbroadcast networks.'' 
Since Congress specifically directed us to reinstate the ``top 5'' 
requirement, we are not authorized to expand this number. We do have 
the authority to expand these rules, but only after the passage of 
time and a review of their impact. CVAA, Title II, sec. 202(a), 
713(f)(4).
    \89\ We nonetheless encourage parties to voluntarily continue 
providing video description service once it has begun, because of 
the benefits it provides to the community and the lower costs of 
continuing, as opposed to beginning, the provision of video 
description.
---------------------------------------------------------------------------

C. Pass-Through and Subsequent Airing of Video Described Programming

1. Pass-Through
    20. In the NPRM, the Commission proposed to reinstate the 
previously adopted pass-through requirement.\90\ Two commenters support 
this proposal, and no commenter objects.\91\ Accordingly, we adopt this 
requirement without change. Broadcasters affiliated with any network, 
and all MVPDs, will be required to pass through any video description 
that they receive from a broadcast or cable network or, in the case of 
MVPDs, from a broadcast station they carry, subject to the exemptions 
discussed below.\92\ As the Commission noted in the NPRM,\93\ this 
obligation is distinct from the requirement to provide video 
description.\94\ First, it applies to all MVPDs and network-affiliated 
broadcast stations (including non-commercial stations), rather than a 
subset of large-market entities.\95\ Second, broadcast stations and 
MVPDs with the obligation to provide 50 hours of description must 
continue to pass through any video description that they receive even 
after they have provided the 50 required hours of description.\96\
---------------------------------------------------------------------------

    \90\ NPRM, supra note 2, at paras. 14-16.
    \91\ Comments of WGBH at 3; Reply of AAPD at 4; see also, e.g., 
Comments of Verizon at 2 (``Verizon passes along video descriptions 
when supplied by any of our other content suppliers, and we will 
continue to do so.'').
    \92\ Appendix A, Final Rules (Revised 47 CFR 79.3(b)(3), (5)); 
but see, infra paras. 23-31 (discussing exemptions from the pass-
through requirement). We also note that the must carry provision of 
the Communications Act requires cable operators to carry ``the 
primary video, accompanying audio, and line 21 closed caption 
transmission of each of the local commercial television stations 
carried on the cable system and, to the extent technically feasible, 
program-related material carried in the vertical blanking interval 
or on subcarriers.'' 47 U.S.C. 534(b)(3), 47 CFR 76.62(e), (f) 
(cable); 47 U.S.C. 338(j), 47 CFR 76.66(j) (DBS). See also Carriage 
of Digital Television Broadcast Signals; Amendments to Part 76 of 
the Commission's Rules and Implementation of the Satellite Home 
Viewer Improvement Act of 1999, First Report and Order and Further 
Notice of Proposed Rulemaking, 16 FCC Rcd 2598, paras. 60-61 (2001).
    \93\ NPRM, supra note 2, at para. 14.
    \94\ See supra paras. 5-9.
    \95\ 2000 Report and Order, supra note 2, at para. 30.
    \96\ Recon, supra note 2, at para. 14 (NAB recognized that 
entities that had met their 50 hour obligation were still required 
to pass description through to viewers). Broadcast stations and 
MVPDs that pass through video-described programming from a network 
can count that programming toward their 50 hour obligation, so long 
as it is either aired during prime time or is children's 
programming, and has not been previously aired on that channel more 
than once since the adoption of our rules.
---------------------------------------------------------------------------

    21. Although, as noted, no commenter opposes adoption of the 
reinstated pass-through rules, NCTA does express some concern about 
whether MVPDs will be able to identify video-described programming 
provided by broadcasters in order to pass it through, because 
broadcasters are not required to include the IS0-639 language 
descriptor.\97\ NAB responds that broadcasters will be able to include 
this descriptor without difficulty, and argues that this matter can be 
resolved by industry coordination and we should not impose a regulatory 
solution at this time.\98\ In line with our preference to hew closely 
to the video description rules as originally adopted, and given the 
likelihood of technological shifts in this area,\99\ we decline to 
dictate the method of identifying video described programming at this 
time.
---------------------------------------------------------------------------

    \97\ Comments of NCTA at 8-9. The ISO-639 language descriptor is 
essentially a metadata ``tag'' that is used by digital cable systems 
for ``signaling the presence of and providing information about 
individual AC-3 audio streams.'' Many broadcasters use a different 
``tag,'' due to updates to the digital broadcast television 
standard. Comments of NCTA at 8.
    \98\ Reply of NAB at 6-7.
    \99\ See infra para. 29-31 (discussing the difficulties with 
carrying video description on an additional audio stream at this 
time).
---------------------------------------------------------------------------

2. Subsequent Airings
    22. The Commission also proposed to reinstate the rule that, once a 
broadcast station or MVPD system has aired a program with description, 
either as part of its 50-hour obligation or because it passed the 
description through, that program must always include description if 
re-aired on the same station or MVPD channel.\100\ In practice, we 
anticipate that most described programming will be provided to viewers 
as it is received from a network or other program supplier. The 
Association of Public Television Stations, et al. (``APTS'') expresses 
concern about the requirement to re-air description it does not 
control.\101\ If stations or systems contract with program suppliers 
for described programming, rather than providing the description 
themselves, they can also ensure via contract that future airings of a 
described program also contain description.\102\ As a result, the 
program will be provided to the station or system with a video 
description track, and this rule will function identically to the 
``pass-through'' rule. As the Commission explained in the 2000 Report & 
Order, this requirement ``should not impose any burden on any broadcast 
station or MVPD subject to our rules, or on their programming 
suppliers.'' \103\ Once a program has aired with description, viewers 
reasonably anticipate that it will be at least as accessible in later 
airings. Furthermore, Congress has directed us to reinstate this rule. 
Therefore, we adopt this proposal, and reinstate the rule without 
change.\104\ As discussed below,\105\ however, and consistent with the 
rules adopted in 2000, the station or MVPD system need not include 
video description with a subsequent airing of a program if it is using 
the technology used to provide video description for a conflicting 
program-related purpose.
---------------------------------------------------------------------------

    \100\ NPRM, supra note 2, at para. 6.
    \101\ Comments of APTS at 6.
    \102\ Of course, if the station or system provides the 
description, or if it exists in a file in their control, the station 
or system should likewise have no difficulty complying with this 
requirement.
    \103\ 2000 Report and Order, supra note 2, at para. 33.
    \104\ Appendix A, Final Rules (Revised 47 CFR 79.3(c)(3), (4)); 
see also Recon, supra note 2, at note 74 (``Broadcast stations and 
MVPDs can count a repeat of a previously aired program in the same 
quarter or in a later quarter, but only once altogether'').
    \105\ See infra para. 28.
---------------------------------------------------------------------------

3. Technical Capability Exception
    23. In the original rules, the pass-through requirement did not 
apply when a station or MVPD channel did not have the ``technical 
capability necessary to pass through the video description.'' \106\ The 
Commission explained that it would ``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.'' \107\ In the NPRM, the Commission noted the evolution toward 
digital programming since the original rules were adopted, and sought 
comment on how this Order should take digital programming into account 
when determining whether a distributor has ``the technical capability 
necessary.'' \108\ We find that the exception remains necessary despite 
the passage of time. As APTS notes, almost half of public television 
stations are not providing a second audio stream capable of including 
video description at this time, and many are incapable of

[[Page 55592]]

doing so.\109\ We also find that there is insufficient justification 
for revising the ``minimal cost'' standard.\110\ We therefore reinstate 
the technical capability exception as previously adopted.
---------------------------------------------------------------------------

    \106\ This exception does not apply in the context of the 
``subsequent airing'' rule, because any channel on which description 
has previously aired has the demonstrated technical capability to 
air description again.
    \107\ 2000 Report and Order, supra note 2, at para. 30.
    \108\ NPRM, supra note 2, at para. 16.
    \109\ Comments of APTS at 4. As discussed below, if these 
stations are capable of providing a secondary audio stream that 
includes video description at ``minimal cost,'' they will be 
required to do so starting July 1, 2012.
    \110\ See infra para. 27 (discussing a proposal to revise the 
minimal cost standard).
---------------------------------------------------------------------------

    24. In the 2000 Report and Order, the Commission noted that it did 
``not believe [the pass-through] rule [would] impose any burden on the 
affected stations and MVPDs,'' because the rule only applied to 
``broadcast stations and MVPDs that already [had] the technical 
capability necessary to support video description.'' \111\ ACB appears 
to oppose the exception as proposed, suggesting that, unless a station 
or system faces an ``undue burden, there should be no other reason'' 
not to pass video description through.\112\ NAB reads their proposal to 
require the Commission to review the technical capability claims of any 
station or system before it could rely on this exception, and argues 
that this would result in an ``extraordinary drain on Commission 
resources.'' \113\ ACB's Reply, however, indicates that it is opposed 
not to the proposed implementation of the exception, but to the 
exception in its entirety. ACB objects to the possibility that we would 
``only apply audio description pass through rules to stations that are 
technically capable,'' arguing that this would not create incentives 
for stations and systems to develop pass through capacity.\114\
---------------------------------------------------------------------------

    \111\ 2000 Report and Order, supra note 2, at para. 30.
    \112\ Comments of ACB at 5. We note that ``undue burden'' has 
been replaced with the phrase ``economically burdensome'' in the 
individual exemption rules adopted in this item, but the process for 
seeking such an exemption remains the same. See infra paras. 43-44.
    \113\ Reply of NAB at 12-13.
    \114\ Reply of ACB at 5.
---------------------------------------------------------------------------

    25. To the extent not all stations and systems will have the 
technical capability to pass through video description by the 
implementation date, by its terms the exception will limit the scope of 
the pass-through rule.\115\ We note, however, that, as equipment prices 
drop over time and older architectures are upgraded, this exception 
will apply to fewer and fewer stations and systems. Furthermore, the 
CVAA directs us to reinstate the rules as they were adopted in 2000, 
and gives us limited authority to revise them.\116\ We agree with NAB 
that the record does not support revising this rule, and as NAB 
proposed we will ``only require pass through of audio description when 
a station [or system] becomes technically capable.'' \117\
---------------------------------------------------------------------------

    \115\ 2000 Report and Order, supra note 2, at para. 30. (``since 
our requirement will only affect other broadcast stations and MVPDs 
that already have the technical capability necessary to support 
video description, we do not believe our rule will impose any burden 
on the affected stations and MVPDs'').
    \116\ CVAA at Title II, sec. 202(a), 713(f)(1-2).
    \117\ Id.
---------------------------------------------------------------------------

    26. We note that, although the workings of the exception were not 
discussed in the 2000 Report and Order or Recon, as a practical matter 
it is self-implementing. A station or system may refrain from passing 
description through if it would be able to demonstrate, in the event of 
a complaint, that at the time of the failure to pass some description 
through, it was not technically capable of doing so (and could not 
become capable at minimal cost).\118\
---------------------------------------------------------------------------

    \118\ Thus, APTS' proposed special exemption for public 
television stations is unnecessary. See Comments of APTS at 5. If 
the cost of passing description through is minimal, it will not 
implicate the funding issues APTS raises. If it is more than 
minimal, it is not required, and no special exemption is necessary.
---------------------------------------------------------------------------

    27. Commenter Cristina Hartmann asks that the Commission explicitly 
define the term ``minimal cost'' as a percentage of annual gross 
revenues.\119\ Ms. Hartmann expresses concern that leaving the term 
undefined will result in the indefinite maintenance of the status 
quo.\120\ ACB raises a similar concern in its Reply.\121\ We find this 
concern to be speculative, however, and to provide an insufficient 
basis on which to deviate from the original rules Congress has directed 
us to reinstate. Thus, we adopt the approach of the 2000 Report & 
Order, finding that a station or system is technically capable to pass 
video description through if it has ``virtually all necessary equipment 
and infrastructure to do so, except for items that would be of minimal 
cost.'' \122\ We also emphasize that this exception does not apply to 
the requirement to provide description in the first instance. Those 
stations and MVPD systems obligated to provide 50 hours of described 
programming must do so, regardless of technical capability.\123\
---------------------------------------------------------------------------

    \119\ Reply of Cristina Hartmann at 9-11.
    \120\ Id.
    \121\ Reply of ACB at 5.
    \122\ 2000 Report & Order, supra note 2, at para. 30.
    \123\ These stations or systems may seek a waiver from the 
Commission on the grounds that the rules are economically 
burdensome. Appendix A, Final Rules (Revised 47 CFR 79.3(d)).
---------------------------------------------------------------------------

4. ``Other Program-Related Service'' Exception
    28. On reconsideration of the 2000 rules, the Commission adopted an 
exception to the pass-through and subsequent airing requirements, 
holding that when the secondary audio program (``SAP'') equipment and 
channel were being used to provide another program-related service, 
such as foreign-language audio, a station or MVPD system did not have 
to stop providing that service in order to provide the video 
description. This action was based on the fact that in the analog 
world, the SAP channel could not be used to provide two services 
simultaneously, and there was significant value in existing uses of the 
secondary audio (usually to provide Spanish-language audio).\124\ In 
the NPRM in this proceeding, the Commission pointed out that digital 
transmission enables broadcasters and MVPDs to provide numerous audio 
channels for any given video stream, thus allowing simultaneous 
transmission of a variety of audio tracks, and asked whether it is 
necessary or appropriate to apply this exception to digital 
transmissions.\125\ We are persuaded that, given the current state of 
technology, and the continuing and growing importance of service to 
Spanish language viewers, it is appropriate to continue the exception 
for now.
---------------------------------------------------------------------------

    \124\ Recon, supra note 2, at para. 15.
    \125\ NPRM, supra note 2, at para. 15 (``digital video signals 
can have an enormous number of alternative audio tracks; although as 
a practical matter that number may be limited by the amount of 
bandwidth allocated to the programming stream, digital programming 
can technically include more than three audio tracks''), citing MPEG 
Compression Standard ISO/IEC 13818-1; Advanced Television Systems 
Committee (``ATSC'') A/53, A/52 Standards.
---------------------------------------------------------------------------

    29. A number of commenters support elimination of this exception, 
largely on the assumption that the ability to carry numerous audio 
streams would alleviate any concerns about conflicts on any given audio 
channel.\126\ Many industry commenters, however, argue that, given the 
current state of technology, we cannot assume that MVPDs and 
broadcasters are able to carry numerous audio streams. NCTA notes that 
cable systems have been designed, and cable equipment manufactured, for 
a two-stream architecture.\127\ AT&T, CenturyLink, DirecTV, and DISH 
point to similar legacy equipment issues, as well as potential 
bandwidth constraints.\128\
---------------------------------------------------------------------------

    \126\ Comments of WGBH at 3; Comments of ACB at 6; Reply of the 
American Association of People with Disabilities (``AAPD'') at 3.
    \127\ Comments of NCTA at 5; see also Reply of ACA at 3-4.
    \128\ Comments of AT&T at 3; Joint Comments of DirecTV, Inc. and 
Dish Network, L.L.C. (``DBS Providers'') at 2-3; Reply of 
CenturyLink at 3-4.
---------------------------------------------------------------------------

    30. Industry commenters argue that it is not only their 
architecture that will need updating to enable widespread access to 
multiple audio streams, but

[[Page 55593]]

consumer equipment as well. NAB explains that ``use of a third audio 
stream [rather than the second] to deliver video descriptions * * * may 
actually disenfranchise many blind and visually impaired consumers 
because they will not be able to access'' the descriptions, for the 
reasons described below.\129\ Viewers relying on analog television 
sets, whether attached to over-the-air converter boxes or MVPD-
connected set-top boxes, may still rely on secondary audio program 
(``SAP'') technology and thus be limited to a maximum of one 
``additional'' channel.\130\ Even viewers with digital sets may be 
unable to find and activate an audio stream that has been properly 
labeled ``VI'' (``Visually Impaired'') pursuant to the ATSC standard, 
because few digital sets that take advantage of that capability are 
available.\131\
---------------------------------------------------------------------------

    \129\ Comments of NAB at 8. See also, Comments of DBS Providers 
at 2-3; Comments of AT&T at 3; Comments of NCTA at 5-6; Reply of ACA 
at 3-4; Reply of Cristina Hartmann at 11-12; Reply of CenturyLink at 
3-4; Reply of NCTA at 3-6; Reply of AT&T at 5-6.
    \130\ NPRM, supra note 2, at para. 15; but see Comments of the 
Consumer Electronics Association (``CEA'') at 4 (at least some MVPD 
equipment allows the audio channel to be chosen at the set-top box, 
which would allow any subscriber to access any audio stream provided 
by the MVPD regardless of the type of television the stream is sent 
to). As discussed in this section, however, many MVPD systems may 
still be architecturally limited to two audio streams, rendering 
this point moot.
    \131\ Comments of NAB at 7 (``NAB is not aware of any DTV 
receiver currently available in the market that can recognize and 
allow a consumer to choose an audio stream `tagged' as VI.''); 
Comments of CEA at 3 (``many legacy TVs may only present audio 
streams marked as `complete main' ''). ACB argues that MVPDs could 
target equipment upgrades to the homes of individuals who will most 
benefit from video description, in order to reduce the cost of 
transitioning. Reply of ACB at 4. Even if targeted upgrades to 
consumer premises equipment were feasible, however, and even if that 
equipment could be used to select the ``VI'' audio so that it could 
be output to legacy televisions in a usable fashion, some MVPDs 
would not have the system architecture in place to actually deliver 
more than two audio streams to that equipment.
---------------------------------------------------------------------------

    31. Thus, if we were to eliminate the exception for other program-
related content, one of two things would likely happen. Stations and 
systems would replace some other program-related content with video 
description to comply with the pass-through requirement, potentially 
depriving audiences, including in many instances non-English speaking 
communities who use the second audio stream to receive Spanish-language 
programming, of a valuable service. Alternatively, stations and systems 
would provide the passed-through video description on an audio stream 
tagged ``VI,'' making it difficult, if not impossible, for the target 
audience to access it. The record contains no information about the 
prevalence of use of secondary audio streams to provide other program-
related content, so we do not know the full impact of this exception. 
Nonetheless, we conclude that, since the potential for conflicting uses 
that originally drove adoption of the exception in the virtually all-
analog world in 2000 remains today, we will reinstate the exception as 
originally adopted and defer to stations and systems to determine how 
best to serve their audiences.\132\ We will, however, revisit the need 
for this exception when we review the state of the market.\133\ We 
expect that at some point in the near future, due to voluntary upgrades 
and equipment obsolescence, broadcasters, MVPDs, and the installed base 
of consumer equipment will be sufficiently advanced to handle a video 
description audio track that does not conflict with any other program-
related service, obviating this exception.\134\
---------------------------------------------------------------------------

    \132\ See, e.g., Comments of the Walt Disney Company 
(``Disney'') at 4 (``Disney Channel would like to ensure that its 
programming is accessible by both the visually-impaired and the 
Spanish-speaking communities.''); Reply of NCTA at 4; see also Reply 
of AT&T at 6 (stations and systems should have the flexibility to 
choose when it would be better to provide ``other secondary audio 
that serves the public interest.'').
    \133\ This review will begin no later than July 1, 2013. CVAA at 
Title II, sec. 202(a), 713(f)(3). See also CVAA at Title II, sec. 
203(d) (requiring that we undertake a rulemaking addressing 
technical standards, which must be completed within 18 months after 
the second VPAAC Report to the Commission (due April 8, 2012)).
    \134\ June 23, 2011 Ex Parte Presentation of CEA at 2.
---------------------------------------------------------------------------

    32. Even today, however, we strongly encourage stations and systems 
to provide video description simultaneously with other program-related 
content when they can do so. When both video description and another 
program-related secondary audio stream (usually Spanish language) is 
available for a given program, our rules allow the station or system to 
choose which to pass through.\135\ In some cases, that system or (more 
commonly) station will have the capability to pass both ``additional'' 
audio streams through simultaneously. In such a case, we encourage them 
to do so. When more than two audio tracks are passed through, the 
``second'' track (likely Spanish language) will often be the only 
``additional'' audio track many viewers can access, due to the limits 
of legacy equipment. Nonetheless, an increasing number of viewers will 
be able to access another ``additional'' audio track if it is provided, 
due to the growing adoption of newer technology. Indeed, individuals 
who are blind or visually impaired may be early adopters of such 
technology. Therefore, stations and systems should take full advantage 
of their capabilities to ensure the widest possible access to video 
described programming.
---------------------------------------------------------------------------

    \135\ Appendix A, Final Rules (Revised 47 CFR 79.3(b)(3), (5)).
---------------------------------------------------------------------------

    33. We emphasize that the other program-related content exception 
does not apply to the requirement to provide description, but only to 
the pass-through and ``previously described'' obligations. Video 
description of programming must be provided in a manner accessible by 
all consumers if a large-market broadcaster or large MVPD system 
intends to count that programming toward its requirement to provide 50 
hours of description.

D. Phase-In

    34. As required by statute, these rules will be ``reinstated'' on 
October 8, 2011 (``the day that is 1 year after the date of 
enactment'').\136\ As discussed below, broadcasters and MVPDs will have 
to be in full compliance beginning on July 1, 2012.\137\ The NPRM had 
proposed that compliance begin on January 1, 2012, but the record 
provides little support for that proposal.
---------------------------------------------------------------------------

    \136\ CVAA, Title II, sec. 202(a), 713(f)(1).
    \137\ The Paperwork Reduction Act requires that any new 
regulation imposing a paperwork burden be reviewed and approved by 
OMB before it becomes effective. The Paperwork Reduction Act of 1995 
(``PRA''), Public Law 104-13, 109 Stat 163 (1995) (codified in 
Chapter 35 of title 44 U.S.C.).
---------------------------------------------------------------------------

    35. Most consumer advocates acknowledge that there could be 
difficulties with the introduction of description on January 1, 2012, 
only 85 days after reinstatement of the rules.\138\ They are 
dismissive, however, of industry claims about the need for a full year 
to prepare for compliance, given the long history of these rules and 
industry participation in the drafting of the CVAA.\139\ ACB proposes 
and AAPD supports a 60 day ``testing'' period, beginning January 1, 
2012, in which viewers, distributors, and programmers could work 
together to test and verify the systems for provision and pass-through 
of video description, with full compliance required beginning March 1, 
2012.\140\ AFB also acknowledges that some stations or systems might 
have implementation difficulties that could

[[Page 55594]]

justify up to three months of additional time.\141\
---------------------------------------------------------------------------

    \138\ Comments of ACB at 5 (indicating that stations with 
``little experience with description'' will need time to coordinate 
reception and pass-through of video descriptions); Reply of AAPD at 
7 (``multiple entities and technologies [are] involved'' and testing 
is necessary to ensure audience is receiving the signal); Reply of 
AFB at 2 (``sometimes unforeseen practical circumstances can arise 
that thwart even the best of good intentions'').
    \139\ See e.g., Reply of AAPD at 4-5; Reply of AFB at 2.
    \140\ Comments of ACB at 5; Reply of AAPD at 7.
    \141\ Reply of AFB at 2.
---------------------------------------------------------------------------

    36. Industry commenters are largely unified not only in their 
opposition to a January 1 compliance date, but also in their support 
for compliance beginning in the fourth quarter of 2012.\142\ They note 
that certain central questions will remain in flux until the release of 
this Order,\143\ and that there are legal and contractual issues that 
cannot be resolved until its release (including program selection, 
standards setting, and coordination among individual MVPDs, broadcast 
stations, and programmers).\144\ NAB argues that we should roughly 
align the compliance date of the rules with the start of the fall 
television season, so that ``program production systems'' for new 
programs could be revised to include video description.\145\ NAB 
proposes October 1 as the compliance date, even though the fall season 
generally begins several weeks earlier, because it is the first day of 
a calendar quarter and compliance with the rules is calculated on a 
quarterly basis.\146\ NCTA also argues for an October 1 compliance 
date, which it states will allow programmers to choose programs that 
will provide the most benefit to consumers of video description, rather 
than have the choices ``dictated simply by the exigencies of 
compliance.'' \147\ Commenters also point to technical concerns with a 
shorter timeframe for compliance. Both programmers and distributors 
must verify, and possibly update, their transmission capabilities to 
handle video description.\148\ Finally, NCTA notes that the original 
rules gave stations and systems 18 months to comply, considerably more 
than the timeline proposed in the NPRM or by the consumer groups this 
time around.\149\
---------------------------------------------------------------------------

    \142\ Comments of NAB at 15 (proposing October 1, 2012); 
Comments of NCTA at 13 (same); Comments of APTS (October 8, 2012); 
Reply of AT&T at 2-4 (fourth quarter 2012); Reply of ACA at 5 
(same).
    \143\ Comments of NCTA at 10. These issues include the identity 
of the top 25 markets and the top five networks, and the standard 
for considering waiver requests, all finalized herein.
    \144\ Comments of NCTA at 12; Comments of NAB at 8; Reply of 
AT&T at 4. NCTA also argues in passing that the House Committee 
Report on the CVAA assumed that the rules will be in full effect 
``approximately'' one year after they are reinstated. Comments of 
NCTA at fn. 29. We find that the language of the House Committee 
Report, particularly given its use of the term ``approximately,'' 
does not compel any particular compliance date.
    \145\ Comments of NAB at 15.
    \146\ Comments of NAB at 15-16.
    \147\ Comments of NCTA at 12, 13.
    \148\ Comments of NCTA at 12-13.
    \149\ Comments of NCTA at 11.
---------------------------------------------------------------------------

    37. While we agree with consumer advocacy groups that industry does 
not need as much time to come into compliance with the CVAA-mandated 
rules as it did when the Commission originally adopted video 
description requirements a decade ago, a phase-in period of 
approximately nine months, is reasonable given the challenges cited by 
commenters. We continue to believe, as the Commission said in the NPRM, 
that ``although the CVAA deferred certain implementation issues to the 
Commission, to a great extent the entities that will be subject to our 
reinstated rules have been aware of the pending requirements since at 
least the enactment of the CVAA on October 8, 2010.'' \150\ We are 
persuaded, however, that enough issues were in flux until the release 
of this Order that the covered entities are justified in their request 
for more than the proposed 85 days to come into compliance. As 
discussed above, we do not believe it will be difficult for 
broadcasters and MVPDs to negotiate the rights to provide video 
description given the small amount of video-described programming 
required and their discretion in choosing it. Nonetheless, we recognize 
that complex programming agreements may need to be renegotiated. We 
also agree with NAB that it is appropriate to start the compliance date 
with the beginning of a calendar quarter to simplify compliance and 
enforcement.\151\ Given this long lead time, we believe that the vast 
majority of broadcast stations and MVPD systems can have their systems 
fully tested and be prepared to provide video description beginning 
July 1, 2012. We expect that this extended phase-in period will mean 
that few, if any, stations or systems will need an extension of time to 
come into full compliance.
---------------------------------------------------------------------------

    \150\ NPRM, supra note 2, at para. 19.
    \151\ Comments of NAB at 15-16.
---------------------------------------------------------------------------

    38. We also proposed that, should any MVPD system not serving at 
least 50,000 subscribers on the effective date of the rules begin to do 
so at a later date, it must provide video description on the top five 
non-broadcast networks, in the same manner as MVPD systems currently 
serving 50,000 or more subscribers, beginning no more than three months 
after reaching 50,000 subscribers.\152\ We received no comments on this 
proposal. As the NPRM noted, an MVPD should be aware in advance that it 
is approaching the 50,000 subscriber threshold, and we believe three 
months is sufficient time to come into compliance with the requirement 
to provide 50 hours of video description per quarter.\153\ Therefore, 
we adopt this proposal.
---------------------------------------------------------------------------

    \152\ NPRM, supra note 2 at para. 18.
    \153\ Given that all MVPDs are required to pass through video 
description they receive unless they lack the technical capability 
to do so or are using that capability for another program-related 
service, in most cases being elevated into the category of MVPDs 
that must also ``provide'' video description should have little 
effect on viewer access to described programming.
---------------------------------------------------------------------------

E. Exemptions

    39. As discussed in the NPRM, the CVAA directs us to exempt 
programming that is ``live or near-live'' from the operation of these 
rules, and directs us to take that exemption into consideration when 
determining whether a non-broadcast network is covered by the video 
description rules.\154\ As discussed above, we have adopted the NPRM's 
proposed definition of ``near-live'' and taken it into account when 
determining the top five list.\155\ The CVAA also gives the Commission 
authority to provide certain other individual or categorical 
exemptions. We adopt the proposal to make individual exemption 
determinations on the basis of economic burden, adopt a narrow 
``breaking news exemption,'' and decline to adopt further exemptions at 
this time.
---------------------------------------------------------------------------

    \154\ NPRM, supra note 2 at 20 (citing CVAA, Title II, sec. 
202(a), 713(f)(2)(B), (E)).
    \155\ See supra para. 14.
---------------------------------------------------------------------------

1. Live or Near-Live Programming
    40. As the Commission explained in the NPRM, ``live'' programming 
is ``programming aired substantially simultaneously with its 
performance.'' \156\ No commenter objects to this definition, which we 
adopt. The Commission further explained that some television programs 
are ``filmed and produced just hours before they are first aired,'' and 
that others are aired live on the East Coast but three hours later on 
the West Coast.\157\ With this understanding, the Commission proposed 
that programming performed and recorded less than 24 hours prior to the 
time it was first aired be considered ``near-live,'' and asked whether 
this time period would ``ensure that programming is not covered by the 
reinstated rules unless there is ample time to create and insert video 
descriptions in the programming before it is aired.'' \158\
---------------------------------------------------------------------------

    \156\ NPRM, supra note 2, at 21.
    \157\ Id.
    \158\ Id. We note our disagreement with those commenters who 
argue that because it is possible to provide video description in 
real-time, we should not exempt live programming, or at least all 
live programming, at all. Reply of Harry Brown; Reply of AAPD at 7; 
Comments of ACB at 4. Given the statute's explicit direction that 
the ``regulations shall not apply to live or near-live 
programming,'' we have no discretion in this matter. CVAA, Title II, 
sec. 202(a), 713(f)(2)(E).

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

[[Page 55595]]

    41. The legislative history of the CVAA sheds no light on the 
intended definition of ``near-live,'' \159\ but common sense suggests 
that a ``nearly live'' program is one that is aired a very short time 
after its performance or recording. NCTA argues that ``many episodes of 
programs are not ready [to be described] until very close to the time 
they are scheduled to air,'' \160\ and agrees with NAB that no program 
can begin the description process until it is delivered ``in final, 
edited and approved form.'' \161\ These commenters propose, therefore, 
that the question of whether a program is ``near-live'' should have no 
connection to when it was performed or recorded. They also argue that 
it takes over a week to add video description to a program even after 
it has been ``approved,'' and that the Commission should therefore 
define seven- or ten-day-old programming as ``near-live.'' \162\ We 
conclude that reading ``near-live'' as referring to programming that is 
``complete, with no further edits,'' \163\ seven or ten days before 
airing would strain the common-sense meaning of the term ``near-live,'' 
which connotes both a short time frame (of much less than seven or ten 
days) and one that is tied to when a performance occurred ``live.'' 
\164\
---------------------------------------------------------------------------

    \159\ S. Rep. 111-386 at 12 (2010); H. Rep. 111-563 at 28-29 
(2010).
    \160\ Comments of NCTA at 14.
    \161\ Comments of NAB at 17. See also Comments of WGBH at 4.
    \162\ Comments of NAB at 9; Comments of NCTA at 14.
    \163\ Comments of WGBH at 4.
    \164\ See Comments of Joe Clark at 2 (``The practicality of 
[video-]describing a late-arriving show that is indisputably 
prerecorded is an issue different from'' whether it is ``near-
live.''). We note that in the context of closed captioning of 
Internet Protocol (``IP'')-delivered video programming these terms 
may be defined differently. The Commission's Video Programming 
Accessibility Advisory Committee (``VPAAC'') has recommended that, 
in that context, we look to the time between a program's airing on 
television and its delivery via IP, rather than the time between its 
recording and airing. In that case as well, however, VPAAC suggests 
that ``near-live'' is best interpreted to mean a period of hours, 
not days. First Report of the Video Programming Accessibility 
Advisory Committee on the Twenty-First Century Communications and 
Video Accessibility Act of 2010 (rel. July 13, 2011).
---------------------------------------------------------------------------

    42. In any case, we do not believe the definition of ``live or 
near-live'' is as broadly significant as either industry or advocate 
commenters suggest. Because the obligation to provide video description 
is only for a limited number of hours, the definitions' primary purpose 
at this stage is to determine which nonbroadcast networks are excluded 
from the top five, and no commenter addressed how or whether any 
proposed change to the definition would change the top five list. As 
discussed in more detail in paragraph 9 above, covered entities may 
choose which approximately four hours of programming a week they will 
describe. We presume that they and their programmer partners will 
choose to describe programs that can be described in a timely fashion. 
Indeed, a number of programs are being video described today without 
any regulatory mandate at all,\165\ and we have every reason to believe 
that, except in the rare instances discussed in paragraph 44, below, 
networks will have enough programming from which to choose to meet the 
CVAA's minimal requirements without encountering problems due to the 
definition of ``near-live.'' \166\ Some consumer advocates propose that 
``historically significant events,'' such as the Olympics and 
Presidential inaugurations, be covered by the rules even if they are 
live or near-live.\167\ Leaving aside whether that would be permissible 
under the CVAA, the flexibility on the part of the programmers to 
describe their choice of programming means that, regardless of how we 
structure the exemptions, there is no guarantee that any specific 
programming will be described.\168\ Because no commenter demonstrates 
that the 24-hour definition will increase the burden of compliance, and 
no commenter offers a reasonable alternative definition of ``near-
live,'' nor demonstrates the impact of that definition on the top five, 
we adopt the proposal. We may revisit this issue at a later date, and 
will gather information about it when preparing the first report to 
Congress.\169\
---------------------------------------------------------------------------

    \165\ See supra note 34.
    \166\ NAB also proposes that we exempt ``delayed or repeated'' 
airings of live or near-live programs, arguing that ``it would be 
nonsensical to require a network or station to assume the costs of 
video description for programming primarily intended to be aired 
live, simply because such programming was re-aired at a later 
time.'' Comments of NAB at 16, 18. We decline to extend the 
exemption to this programming. If ``live or near-live'' programming 
is re-aired long enough after it is performed and recorded that it 
is no longer ``near-live,'' there is no reason to distinguish 
between it and programming that was never aired live. In either 
case, there is sufficient time to describe the programming, if the 
distributor chooses to describe it. Furthermore, if a station or 
system would prefer not to describe ``delayed or repeated'' airings 
of live or near-live programming, it can choose (or contract for its 
program supplier to choose) alternative programming.
    \167\ Comments of ACB at 6 (the Olympics); Reply of AAPD at 7 
(Super Bowls); Reply of ACB at 7 (Presidential inaugurations).
    \168\ We note that parties are of course not prohibited from 
describing programming that falls within the live or near-live 
exemption, and that any such described programming that a station or 
system provides may be counted toward the 50-hour requirement.
    \169\ See supra para. 16.
---------------------------------------------------------------------------

2. Other Exemptions
    43. Section 713(f)(2)(C) of the Communications Act, as added by the 
CVAA, states that

[t]he regulations may permit a provider of video programming or a 
program owner to petition the Commission for an exemption from the 
requirements of [the video description provisions] upon a showing 
that the requirements contained in this section be [sic] 
economically burdensome.\170\
---------------------------------------------------------------------------

    \170\ Id. at Sec.  713(f)(2)(C). We note that Section 
713(f)(2)(C) is expressed in permissive terms (e.g., ``the 
regulations may permit''), rather than the mandatory language that 
appears in other subsections of the legislation. Compare 
713(f)(2)(A) (``the regulations shall apply''). Accordingly, under 
subsection (C), the Commission may permit exemptions based on the 
``economically burdensome'' standard, but is not required to do so.

    The Commission proposed to reinstate the previously adopted process 
for requesting an individual exemption from our rules, replacing the 
term ``undue burden'' with ``economically burdensome,'' while using the 
same range of factors previously applied under the undue burden 
standard.\171\ As discussed in the NPRM, this revision ensures that the 
video description rules are aligned with the standard used in the 
closed captioning context.\172\ NAB and AAPD support this proposal, and 
we adopt it.\173\
---------------------------------------------------------------------------

    \171\ Comments of NAB at 23. In the CVAA, Congress revised 
Section 713(d)(3) of the Communications Act, which relates to closed 
captioning exemptions, by removing the reference to the ``undue 
burden'' standard and replacing it with a reference to the 
``economically burdensome'' standard. CVAA, Title II, sec. 202(c).
    \172\ NPRM, supra note 2, at para. 22.
    \173\ Comments of NAB at 23; Reply of AAPD at 8-9; see also 
Reply of Cristina Hartmann at 13-14.
---------------------------------------------------------------------------

    44. NCTA expresses concern about the fact that the proposed rule 
defined ``economically burdensome'' as ``imposing significant 
difficulty or expense.'' \174\ As the NPRM explained, we intend to 
``use the same factors as applied to the undue burden standard'' (and 
listed in the proposed rule itself) to determine whether the rules are 
economically burdensome (i.e., whether they impose significant 
difficulty or expense).\175\ Although the factors listed are not 
identical to those NCTA proposes,\176\ the list is not exclusive.\177\

[[Page 55596]]

We will consider all relevant evidence that the rules are 
``economically burdensome'' to a petitioning party.
---------------------------------------------------------------------------

    \174\ Appendix A, Final Rules (Revised 47 CFR 79.3(d)(2)).
    \175\ NPRM, supra note 2, at para. 22.
    \176\ Comments of NCTA at 15-16 (citing the NPRM at note 66).
    \177\ 47 U.S.C. 613(e) (``In determining whether the closed 
captions necessary to comply with the requirements of this paragraph 
would result in an undue economic burden, the factors to be 
considered include * * *'' (emph. added); Appendix A, Final Rules 
(Revised 47 CFR 79.3(d)(3)) (``In addition to these factors, the 
petitioner must describe any other factors it deems relevant to the 
Commission's final determination * * *'') (emph. added).
---------------------------------------------------------------------------

    45. The NPRM sought comment on whether the Commission should adopt 
any categorical exemptions, beyond the exemption for ``live or near-
live'' programming.\178\ NAB proposes that we exempt all locally 
produced programming, as well as all news programming, from the 
coverage of the rules.\179\ It argues that if we ``added such a 
burden'' to locally produced programming, it could become so expensive 
and untimely that the amount produced would drop. It points to a 
similar exemption in the closed captioning rules.\180\ Those rules, of 
course, require all programming to be captioned unless excepted, and 
are therefore fundamentally different from these rules, which require 
only a small amount of programming, chosen by the programmer, to be 
described. NAB also argues that there are special legal concerns with 
the description of news programming in particular, contending that 
declining to exempt non-live news programming from these rules would 
mean that ``broadcasters would be forced to add subjective video 
descriptions from non-journalists into the middle of news reporting.'' 
\181\ As discussed in paragraph 9, above, the very small amount of 
programming that must be described means that it is unnecessary to 
carve out exemptions for particular types of programs beyond the live 
and near-live exemption mandated by the CVAA. Stations and systems may 
choose what to describe and how and by whom a program is described, and 
may simply choose not to describe any programming that would be 
difficult to describe. Thus, NAB has not persuaded us that covering 
locally produced and news programming by the video description rules 
will be unduly burdensome for providers. Furthermore, no party 
recommending blanket exemptions for certain types of programs provided 
evidence of how or if these new exemptions would shift the list of top 
five nonbroadcast networks (which is based, in part, on the provision 
of sufficient non-exempt programming).\182\ Therefore, we decline to 
adopt these proposed categorical exemptions.
---------------------------------------------------------------------------

    \178\ NPRM, supra note 2, at para. 26.
    \179\ Comments of NAB at 18-19. NAB also proposes to exempt 
Mobile DTV (discussed infra para. 55), and NCTA proposes a blanket 
exemption for nonbroadcast networks with fewer than 50 hours of 
prime-time or children's programming that can count toward the 
requirement in a given quarter (discussed infra para. 44). We 
decline to grant either exemption for the reasons noted above. See 
Comments of Joe Clark (opposing the grant of any new blanket 
exemptions).
    \180\ Comments of NAB at 18.
    \181\ Comments of NAB at 19. But see Reply of Cristina Hartmann 
at 7-8 (dismissing NAB's concerns as groundless).
    \182\ See supra para. 12.
---------------------------------------------------------------------------

    46. We note and acknowledge NCTA's point that due to special 
circumstances, a covered network could theoretically have fewer than 50 
hours of scheduled prime-time or children's programming that can count 
toward the requirement in a given quarter.\183\ NCTA proposes that we 
adopt a categorical exemption from the 50-hour minimum requirement for 
networks in this situation, crediting them with satisfying the 
requirement if they describe all of the non-exempt programming in a 
quarter that could count toward the requirement even if that would be 
fewer than 50 hours of described programming.\184\ We decline to adopt 
such an exemption at this time, when we and the parties have little 
experience with the actual impact of the rules or ability to craft an 
exemption tailored to the types of special circumstances that may 
arise. We anticipate that these instances will be exceedingly rare; as 
noted in paragraph 9 above, these networks air many, many hours of 
prime-time and children's programming each quarter, and only 50 of 
those need be newly described or first-time re-runs. If such a 
situation does arise, however, a station or system (or the programmer 
itself) may petition the Commission for a waiver. Finally, NCTA can 
raise this issue again in the context of a future review, once the 
actual impact of these rules can be assessed.
---------------------------------------------------------------------------

    \183\ Comments of NCTA at 17 (raising concerns about a situation 
in which ``a program network airs a considerable amount of live or 
near-live programming during prime time in any particular calendar 
quarter (for example, to offer seasonal sporting event programming), 
or if a network schedule is filled with previously-described 
programming'' and as a result ``the network does not have the 
requisite hours of non-repeat programming in its prime time or 
children's programming line-up to describe'').
    \184\ Comments of NCTA at 17.
---------------------------------------------------------------------------

    47. One proposal that would not affect the top five list and is not 
obviated by the limited description requirements is the ``breaking news 
exemption'' that NAB proposes.\185\ In the children's television 
context, broadcasters must provide three hours per week of ``core'' 
educational and informational children's programming in order to 
receive expedited renewal of their licenses.\186\ Generally, if that 
program is preempted, it must be rescheduled, but we do not require 
that it be rescheduled if the preemption is for breaking news.\187\ In 
similar fashion, NAB suggests that we ``allow video described 
programming to be preempted for breaking news and emergency information 
without negative consequences.'' \188\ In practice this would mean that 
if an unscheduled news bulletin interrupted an hour-long video 
described program, the station or system would still be allowed to 
count that program in its entirety toward the 50-hour quarterly 
requirement. We agree that this is a sensible exemption, and adopt 
it.\189\
---------------------------------------------------------------------------

    \185\ Comments of NAB at 20.
    \186\ 47 CFR 73.671(d).
    \187\ Children's Television Obligations of Digital Television 
Broadcasters, MM Docket No. 00-167, Report and Order and Further 
Notice of Proposed Rulemaking, 19 FCC Rcd 22943, para. 39 (2004).
    \188\ Comments of NAB at 20.
    \189\ See also CVAA, Title II, section 202(a), 713(g) (requiring 
unscheduled news bulletins that report emergency information to 
convey such information in a manner that is accessible to 
individuals who are blind or visually impaired).
---------------------------------------------------------------------------

F. Digital Format

    48. Section 713(f)(2)(A) of the Communications Act, as added by the 
CVAA, states that ``[t]he regulations shall apply to video programming, 
as defined in subsection (h), insofar as such programming is 
transmitted for display on television in digital format.'' \190\ In the 
NPRM, the Commission proposed to clarify that the video description 
rules apply to all programming, including digital programming, which 
was not widespread at the time of the adoption of the original 
rules.\191\ All commenters who respond to this proposal support 
it.\192\ In a footnote, NCTA does raise a concern that the proposal 
could be read to imply a definition of ``video programming'' broader 
than the one in the CVAA itself.\193\ We adopt the NPRM's proposal to 
extend the reinstated rules to cover all video programming, and 
reiterate that we use the term ``video programming'' as it is defined 
in the CVAA.\194\
---------------------------------------------------------------------------

    \190\ 47 U.S.C. 613(f)(2)(A).
    \191\ NPRM, supra note 2, at para. 27.
    \192\ Comments of the Consumer Electronics Association (``CEA'') 
at 2; Comments of WGBH at 5; Comments of ACB at 7.
    \193\ Comments of NCTA at note 12.
    \194\ ``[P]rogramming by, or generally considered comparable to 
programming provided by a television broadcast station, but not 
including consumer-generated media.'' CVAA, Title II, section 
202(a), 713(h)(1). See also NPRM, supra note 2, at note 25 (``The 
proposed rules adopt the CVAA definition of video programming.'').
---------------------------------------------------------------------------

    49. The NPRM also proposed rules to govern our treatment of the 
secondary streams of digital broadcasters.\195\ We

[[Page 55597]]

received few comments on this issue.\196\ We adopt the proposal to 
consider only programming on the primary programming stream when 
measuring a broadcast station's compliance with the ``50 described 
hours'' requirement, unless the station carries another top-four 
national broadcast network on another stream.\197\ In situations in 
which a broadcast station carries a different top-four network's 
programming on a secondary stream, we will apply the rules in the same 
manner as if the network programming on that stream were carried by a 
separate station. We also adopt the NPRM's proposal to impose the pass-
through requirement, discussed above, on all network-provided 
programming carried on all of an affiliated station's programming 
streams, a proposal which no commenter directly addressed. This 
approach ensures the availability of described programming to the 
widest possible audience. NAB seeks assurance that major network 
affiliates on secondary streams will be eligible for technical 
capability exemptions from the pass-through requirements. We clarify 
that a major network carried on a secondary stream will be treated no 
differently than any other station or system required to pass 
description through; thus, it may seek a technical capability 
exemption.\198\
---------------------------------------------------------------------------

    \195\ NPRM, supra note 2, at para. 28.
    \196\ Comments of ACB at 7 (supporting the Commission's 
proposals).
    \197\ Thus, except as noted, a station that multicasts does not 
have to provide more than 50 hours of video description per quarter, 
all of which must be on its primary stream.
    \198\ Comments of NAB at 14.
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G. Other Issues

    50. Quality Standards. The NPRM sought comment on whether we should 
adopt quality standards for video description. The majority of 
commenters that address this question are strongly opposed to the 
imposition of quality standards of any kind.\199\ Other commenters do 
support the imposition of quality standards, with some pointing to the 
possible adoption of such standards in the closed captioning context as 
a demonstration of the need for rules.\200\ Nonetheless, we decline to 
adopt any such standards at this time. We acknowledge that our capacity 
to adequately judge description quality could benefit from practical 
experience as entities begin implementing these rules. Nonetheless, 
given the quality issues that have arisen in the closed captioning 
context, we will invite comments on the quality of video description 
when we conduct the inquiry that will inform our first report to 
Congress under the CVAA. We also recommend that the VPAAC consider this 
issue, and will include any analysis they provide in the same report. 
If necessary, we will revisit this issue at a later date.
---------------------------------------------------------------------------

    \199\ See, e.g., Comments of APTS at 6; Comments of NCTA at 18; 
Comments of Verizon at 2-3; Comments of NAB at 24, 25; Comments of 
Joe Clark at 3; Reply of NCTA at 7; Reply of AT&T at 7-8; Reply of 
Cristina Hartmann at 14-16; Reply of NAB at 13.
    \200\ Comments of WGBH at 5; Comments of ACB at 7-8 (notes the 
need for quality standards in closed captioning); Reply of AAPD at 
14 (notes the inconsistent quality of closed captioning and warns 
against a similar danger in video description).
---------------------------------------------------------------------------

    51. Program Selection. In the NPRM, the Commission sought comment, 
for informational purposes, on how programs are likely to be chosen for 
description.\201\ The majority of commenters that address this question 
are strongly opposed to the Commission seeking information about 
program selection even for informational purposes.\202\ Given the fact 
that only a small subset of programming will be required to be video 
described, the Commission also asked whether we should require that the 
availability of video description on certain programs be publicized in 
a certain way.\203\ All commenters agree that this information should 
be widely and clearly available, and most agree that this will occur 
without the need for regulation.\204\ We decline, at this time, to 
require that the availability of video description on certain programs 
be publicized in a certain manner. Nonetheless, we expect that 
programmers, stations, and systems will provide this information to 
viewers in an accessible manner, including on their Web sites and to 
companies that publish television listings information. We recommend 
that the VPAAC consider this issue and analyze industry best practices. 
In particular, we recommend that the VPAAC consider how broadcasters 
provide notice to MVPDs as to which programming is video described, and 
how effective that notice is. Both NAB and NCTA indicated that use of 
the ISO-639 language descriptor might be appropriate, but that the 
issue can be resolved through industry coordination.\205\ We recommend 
the VPAAC examine whether this coordination has been successful.
---------------------------------------------------------------------------

    \201\ NPRM, supra note 2, at para. 30.
    \202\ Comments of APTS at 6; Comments of NCTA at 18; Comments of 
NAB at 25; Reply of Cristina Hartmann at 14-16.
    \203\ NPRM, supra note 2, at para. 30.
    \204\ Comments of NCTA at 18; Comments of NAB at 24-25; Comments 
of WGBH at 5-6; Comments of ACB at 2; but see Reply of AAPD at 9-13.
    \205\ Comments of NCTA at 8; Reply of NAB at 6-7.
---------------------------------------------------------------------------

    52. Updated A/53 Standard. The Commission's rules incorporate the 
ATSC digital broadcast standard by reference, but have not been updated 
to reflect the 2010 revisions to the A/53 standard.\206\ The NPRM 
proposed to update our rules to incorporate A/53 Part 5: 2010,\207\ 
which deals with the provision and reception of an audio stream that 
has been tagged ``VI'' (``Visually Impaired'') pursuant to the ATSC 
standard. Commenters generally strongly support the need for and value 
of updating the standard.\208\ NAB supports the update, but objects 
that updating our rules only to incorporate the latest version of Part 
5 is ``illogical,'' and proposes that we initiate a new proceeding to 
update the entire standard at once.\209\ As discussed above, a ``VI''-
tagged audio stream will likely not be accessible by legacy equipment, 
so in the short term video description will generally not be 
transmitted using this tag.\210\ CEA argues, however, that ``it is 
important that the industry as a whole begin following A/53 Part 5: 
2010'' in the near future, so the update of Part 5 will help ``ensure 
that video description can be received by all DTV receivers'' \211\ on 
a going forward basis. There is thus a prospective benefit from this 
narrow update, and NAB identifies no countervailing harm.\212\ Since it 
is clear that updating the entire standard is beyond the scope of this 
proceeding, we will not delay adoption of updated

[[Page 55598]]

Part 5. Accordingly, we adopt the NPRM's proposal and revise our rules 
to reflect the latest version of A/53 Part 5 adopted by ATSC.\213\
---------------------------------------------------------------------------

    \206\ 47 CFR 73.682(d), 47 CFR 73.8000(b)(2).
    \207\ NPRM, supra note 2, at para. 31.
    \208\ Comments of CEA at 3; Comments of APTS at 7; Comments of 
WGBH at 6. But see, Ex Partes, Comments, and Reply of Dolby. Dolby 
``supports the Commission's proposal to update the video description 
rules to incorporate the [2010] standard.'' Reply of Dolby at 1. 
Dolby prefers an alternative technical approach to the delivery of 
video description, however, and argues that the Commission should 
adopt rules that ``allow for the transition to this improved 
receiver-mix technology.'' Comments of Dolby at 3. We note that, 
while our rules can incorporate a third party standard by reference, 
they cannot preemptively incorporate future changes to that standard 
(thus the need for a proactive update in this proceeding). 1 CFR 
51.1(f) (``Incorporation by reference of a publication is limited to 
the edition of the publication that is approved. Future amendments 
or revisions of the publication are not included.'').
    \209\ Comments of NAB at note 16.
    \210\ See supra para. 30.
    \211\ NPRM, supra note 2, at para. 31.
    \212\ In the NPRM implementing the Commercial Advertisement 
Loudness Mitigation (``CALM'') Act, released May 27, 2011, we 
referenced this proposed rule change and stated that ``this proposal 
is consistent with our proposed rules [in the CALM Act proceeding]'' 
and that the ``2010 ATSC A/53 Standard, Part 5, contains the new 
methods to measure and control audio loudness, reflected in the ATSC 
A/85 RP.'' Implementation of the Commercial Advertisement Loudness 
Mitigation (CALM) Act, MB Docket No. 11-93, Notice of Proposed 
Rulemaking, 26 FCC Rcd 8281 (2011) (citing 2010 ATSC A/53 Standard, 
Part 5 at 2.1 at 5 (referencing A/85) and 5.5 at 9 (Dialogue 
Level)).
    \213\ ATSC Digital Television Standard, Document A/53 Part 5: 
2010 (July 6, 2010).
---------------------------------------------------------------------------

    53. Children's Programming. Under the rules we are adopting today, 
broadcast stations and MVPDs required to provide 50 hours of video 
described programming per quarter may do so during prime time or 
children's programming. The Commission has defined children's 
programming differently in different contexts. Our limits on commercial 
advertising in children's programming apply to programming ``produced 
and broadcast primarily for an audience of children 12 years old and 
younger.'' \214\ In contrast, our processing guidelines for children's 
educational and informational programming apply to programming that 
``furthers the educational and informational needs of children 16 years 
of age and under.'' \215\ Because older children with vision or other 
impairments can benefit from video description, the NPRM proposed to 
define children's programming in this context as programming directed 
at children 16 years of age and under. Commenters support this 
definition, agreeing that it would provide benefits ``to a wide range 
of blind and visually impaired children.'' \216\ ACB and Joe Clark 
argue that, regardless of the definition, ``not all of a network's 
description content should be from children's programming,'' \217\ or 
the Commission's rules ``will have failed.'' \218\ NCTA objects, 
suggesting that ``[t]he rules adopted by the Commission in 2000 
included no such prohibition, and the Commission does not have 
authority to add one.'' \219\ Setting aside questions of authority, we 
agree with our predecessors regarding the potential value of these 
rules for children.\220\ We therefore adopt the proposal to define 
children's programming as programming directed at children 16 years of 
age and under, and, as noted above,\221\ to permit video described 
children's programming to count toward the 50-hour description 
requirement.
---------------------------------------------------------------------------

    \214\ 47 CFR 73.670, note 2.
    \215\ 47 CFR 73.671(c).
    \216\ Comments of WGBH at 6; see also Comments of NAB at note 
22.
    \217\ Comments of ACB at 2.
    \218\ Comments of Joe Clark at 4.
    \219\ Reply of NCTA at note 19.
    \220\ 2000 Report and Order, supra note 2, at para. 10.
    \221\ See supra para. 4.
---------------------------------------------------------------------------

    54. Subsection G. Section 713(f)(2)(G) of the Communications Act, 
as added by the CVAA, says that
    [t]he Commission shall consider extending the exemptions and 
limitations in the reinstated regulations for technical capability 
reasons to all providers and owners of video programming.\222\

    \222\ CVAA, Title II, section 202(a), 713(f)(2)(G).
---------------------------------------------------------------------------

    In the NPRM, we proposed to take no action under this provision. No 
commenter addressed this proposal. After consideration, we decline to 
take action under this provision.
    55. Methods of Filing Complaints. The rules we adopt herein permit 
viewers to file complaints about a failure to comply with the video 
description rules by ``any reasonable means,'' such as letter, 
facsimile transmission, telephone (voice/TRS/TTY), e-mail, audio-
cassette recording, and Braille, or some other method that would best 
accommodate the complainant.\223\ ACB expresses concern that the 
exclusion of Web-based electronic filing from the list of examples 
means that it is not available.\224\ On the contrary, anyone can file a 
complaint through the main FCC Web portal, and the rule as drafted 
permits video description complaints to be filed that way.\225\ Once 
the rules become effective, the Commission will release a consumer 
advisory that will provide step-by-step instructions on how to file 
complaints in various formats, including via the Commission's Web site. 
ACB also asks for a publicly accessible database of complaints.\226\ 
Although we do not release certain information about individual 
complaints because of privacy concerns, the Consumer and Governmental 
Affairs Bureau does periodically release reports concerning 
accessibility complaints, and will continue to do so.\227\
---------------------------------------------------------------------------

    \223\ Appendix A, Final Rules (Revised 47 CFR 79.3(e)).
    \224\ Comments of ACB at 8.
    \225\ See http://www.fcc.gov/complaints.
    \226\ Comments of ACB at 8.
    \227\ Past reports are available at http://transition.fcc.gov/cgb/quarter/welcome.html.
---------------------------------------------------------------------------

    56. Low Power Broadcast Stations. The NPRM sought comment on 
whether the requirement to provide description and the pass-through 
obligation should apply to low power broadcasters under the reinstated 
rules, and we find that it does.\228\ ACB notes that low power stations 
were not explicitly exempted in the previous rules and argues that they 
therefore should not be exempt now.\229\ NAB argues, not that the rules 
do not apply, but that the Commission should refrain from applying them 
pending the conclusion of the low-power DTV transition.\230\ We agree 
with ACB that the broad language of the original video description 
rules, referencing all ``television broadcast stations,'' is 
controlling.\231\ We therefore conclude that the best reading of the 
reinstated rules is that they apply to all television stations, 
including stations in the low power broadcast service. As NAB notes, 
many low power broadcasters have not yet completed their transition to 
digital, but the record in this proceeding does not support the 
service-wide exemption NAB proposes. We do not, however, want to impose 
costs that would impede these stations from making a timely 
transition.\232\ We are therefore prepared to entertain a petition to 
delay the implementation of these rules for a narrowly-crafted class of 
low-power broadcast stations that have not completed their transition 
to digital. If the petitioners can demonstrate that compliance with the 
video description rules on July 1, 2012 would be economically 
burdensome to members of that class, we could delay their 
implementation for an appropriate time period.\233\
---------------------------------------------------------------------------

    \228\ NPRM, supra note 2, at paras. 9, 14.
    \229\ Comments of ACB at 4.
    \230\ Comments of NAB at note 21.
    \231\ 2000 Report and Order, supra note 2, at Appendix B 
(Rules).
    \232\ The Commission recently established September 1, 2015 as 
the date for the completion of the low power television digital 
transition. See Amendment of Parts 73 and 74 of the Commission's 
Rules to Establish Rules for Digital Low Power Television, 
Television Translator, and Television Booster Stations and to Amend 
Rules for Digital Class A Television Stations, Second Report and 
Order, FCC 11-110, released July 15, 2011.
    \233\ See CVAA, Title II, section 202(a), 713(f)(2)(D).
---------------------------------------------------------------------------

    57. Mobile DTV. The NPRM did not specifically seek comment on the 
application of the rules to Mobile DTV, but insofar as it is used by a 
network-affiliated broadcaster to transmit programming for display on 
television, it is subject to these rules.\234\ NAB agrees that the CVAA 
``requires mobile devices to include video description,'' but argues 
for a delay in applying the rules to Mobile DTV broadcasts. They 
explain that the current generation of Mobile DTV devices are limited, 
and that ``Mobile DTV receivers that support video description are not 
expected to be available for another two years.'' \235\

[[Page 55599]]

Given the nascency of this service, and the fact that requiring pass-
through of video description with Mobile DTV broadcasts would have 
little benefit to consumers at this time, we agree with NAB that it is 
appropriate to delay the effectiveness of these rules. We therefore 
grant broadcasters offering Mobile DTV 24 months after the date of 
reinstatement of these rules (that is, until October 8, 2013) to bring 
those broadcasts into compliance with the video description rules.
---------------------------------------------------------------------------

    \234\ Use of the Mobile/Handheld Digital Television Standard (A/
153) allows broadcasters to provide a digital stream of video 
programming that can be received by compliant portable devices, even 
while the devices are in motion, and supports multiple audio 
streams. A/153 is a subsidiary element of the A/53 standard, and has 
not been formally adopted by the Commission, but its use is 
permitted under the flexible content provisions of the A/53 
standard. Dell Inc. and LG Electronics USA, Inc. Request for Waiver 
of Section 15.117 of the Commission's Rules, MB Docket No. 10-111, 
Order, 25 FCC Rcd 9172 at para. 3 (2010).
    \235\ August 19, 2011 Ex Parte of NAB at 2. The CVAA also 
requires us to develop and apply accessible user interface design 
rules to mobile devices. NAB notes that we are directed to delay the 
effective date of those rules for Mobile DTV devices, and argues 
that the video description rules themselves should also be delayed. 
Comments of NAB at 22 (citing CVAA at Title II, sec. 204(d)).
---------------------------------------------------------------------------

    58. Audio Description. ACB argues that the Commission should use 
the term ``audio description,'' rather than the term ``video 
description'' throughout our rules and in Commission actions.\236\ NAB 
notes that it supports doing so, ``if such term is preferable to 
consumers and potential users of such technology.'' \237\ No other 
commenter supported this proposal, however, indicating that at best 
this is an open question for the blind and visually impaired community 
as a whole.\238\ Congress directed us to reinstate our ``video 
description regulations,'' \239\ so absent clear evidence that this 
phrase is inappropriate or inaccurate, we will retain the statutory 
term for purposes of our rules.\240\
---------------------------------------------------------------------------

    \236\ Comments of ACB at 3.
    \237\ Reply of NAB at note 3.
    \238\ AAPD expressed indifference regarding the specific term 
used, so long as it is used consistently. Reply of AAPD at 13.
    \239\ CVAA at Title II, sec. 202(a), 713(f)(1).
    \240\ We will consider this issue during our upcoming inquiry, 
to determine whether the prevailing trend is to change this 
terminology to ``audio description.''
---------------------------------------------------------------------------

    59. Non-Substantive Revisions. In addition to the revisions 
discussed above, we make several necessary non-substantive revisions to 
the rules. These include revisions and additions to the Definitions 
section of the prior rules,\241\ changes to the second paragraph of the 
Procedures for Exemptions section \242\ to reflect that they apply to 
video programming ``providers'' rather than just video programming 
``distributors,'' updates to the Complaint Procedures,\243\ a 
clarification that it is system size, rather than Operator size, that 
determines the applicability of the rules to MVPDs,\244\ and non-
substantive wording changes intended to make the meaning of the rules 
clearer.
---------------------------------------------------------------------------

    \241\ Appendix A, Final Rules (Revised 47 CFR 79.3(a)).
    \242\ Appendix A, Final Rules (Revised 47 CFR 79.3(d)(2)(ii-
iv)).
    \243\ Appendix A, Final Rules (Revised 47 CFR 79.3(e)).
    \244\ Appendix A, Final Rules (Revised 47 CFR 79.3(b)(4), (5)).
---------------------------------------------------------------------------

    60. Other Proposals Raised. Some parties propose additional 
Commission action in this area; for instance, AFB proposes that the 
Commission subsidize video description on public television, and ACB 
proposes that we require description of IP delivered content that has 
been aired with description on television.\245\ At this time we decline 
to go beyond the rules we adopt in this Order. We will commence an 
inquiry into the state of the video description market by July 1, 
2013,\246\ and commenters will have an opportunity at that time to 
raise any issues which still appear to demand statutory or regulatory 
action.
---------------------------------------------------------------------------

    \245\ Reply of AFB at 2-3; Comments of ACB at 4; see also, e.g., 
Comments of NAB at 25 (viewers should come to the Commission for 
information on which programming is video described); Comments of 
AT&T at 2 (video description rules should limit contractual terms).
    \246\ CVAA, Title II, sec. 202(a), 713(f)(3) (``The Commission 
shall commence the following inquiries no later than 1 year after 
the completion of the phase-in of the reinstated regulations * * 
*'').
---------------------------------------------------------------------------

IV. Procedural Matters

A. Final Paperwork Reduction Act of 1995 Analysis

    61. This document contains information collection requirements 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. The requirements were submitted to the Office of Management and 
Budget (OMB) for review under Section 3507(d) of the PRA on March 18, 
2011 at the Notice of Proposed Rulemaking stage. OMB approved the 
proposed requirements on April 22, 2011. The requirements were adopted 
as proposed. The Commission will activate the burden in OMB's system 
and publish an effective date notice informing the public when the 
requirements will go into effect. In addition, pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), the Commission previously sought specific comment on 
how we might ``further reduce the information collection burden for 
small business concerns with fewer than 25 employees.''

B. Additional Information.

    62. For additional information on this proceeding, contact Lyle 
Elder, [email protected], of the Media Bureau, Policy Division, (202) 
418-2120.

C. Final Regulatory Flexibility Analysis

    63. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA'') \247\ an Initial Regulatory Flexibility Analysis 
(``IRFA'') was incorporated in the Notice of Proposed Rule Making in 
this proceeding.\248\ The Commission sought written public comment on 
the proposals in the NPRM, including comment on the IRFA. The 
Commission received no comments on the IRFA. This present Final 
Regulatory Flexibility Analysis (``FRFA'') conforms to the RFA.\249\
---------------------------------------------------------------------------

    \247\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (``SBREFA''), Public Law 104-121, Title II, 110 Stat. 847 
(1996). The SBREFA was enacted as Title II of the Contract With 
America Advancement Act of 1996 (``CWAAA'').
    \248\ Video Description: Implementation of the Twenty-First 
Century Communications and Video Accessibility Act of 2010, MB 
Docket No. 11-43, Notice of Proposed Rulemaking, 26 FCC Rcd 2975 
(2011) (``NPRM'').
    \249\ See 5 U.S.C. 604.
---------------------------------------------------------------------------

1. Need for, and Objectives of, the Report and Order
    64. This Report and Order reinstates the Commission's video 
description rules. ``Video description,'' which is the insertion of 
audio narrated descriptions of a television program's key visual 
elements into natural pauses in the program's dialogue,\250\ makes 
video programming more accessible to individuals who are blind or 
visually impaired. This is in compliance with the Twenty-First Century 
Communications and Video Accessibility Act of 2010 (``CVAA''), which 
directed the Commission to reinstate the rules with certain 
modifications.\251\ The reinstated rules require large-market broadcast 
affiliates of the top four national networks and multichannel video 
programming distributor (``MVPD'') \252\ systems with more than 50,000 
subscribers to provide video description.\253\ Covered broadcasters are 
required to provide 50 hours of video-described prime time or 
children's programming, per quarter, and covered MVPD systems are 
required to provide the same number of hours on each of the five most 
popular nonbroadcast networks that carry at least 50 hours of non-
exempt programming per calendar quarter.\254\

[[Page 55600]]

The rules also require that all network-affiliated broadcasters 
(commercial or non-commercial) and all MVPDs pass through any video 
description provided with programming they carried, to the extent they 
are technically capable and not using the capacity for another program-
related service.\255\ This pass-through requirement will affect any 
small MVPD system or network-affiliated broadcaster. As required under 
the CVAA, we are reinstating these rules on October 8, 2011, and 
broadcast stations and MVPD systems subject to the rules must begin 
full compliance in the third quarter of 2012.
---------------------------------------------------------------------------

    \250\ CVAA at Title II, section 202(a), 713(h)(1). Video 
description is sometimes referred to as ``audio description''; see 
infra para. 58 (discussing the Commission's use of the statutory 
term ``video description'').
    \251\ Twenty-First Century Communications and Video 
Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751 (2010) 
(``CVAA'') at Title II, section 202(a), 713(f)(1-2).
    \252\ E.g., cable, direct broadcast satellite, etc.
    \253\ Appendix A, Final Rules (revised 47 CFR 79.3(b)).
    \254\ Id. at Sec.  79.3(b)(1), (4).
    \255\ Id. at Sec.  79.3(b)(3), (5).
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2. Legal Basis
    65. The authority for the action taken in this rulemaking is 
contained in the Twenty-First Century Communications and Video 
Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751, and 
Sections 1, 2(a), 4(i), 303, 307, 309, 310, and 713 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 
303, 307, 309, 310, and 613.
3. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA
    66. No comments were filed in response to the IRFA.
4. Description and Estimate of the Number of Small Entities to Which 
the Proposals Will Apply
    67. The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the proposed rules if adopted.\256\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction'' \257\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\258\ 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 Small Business Administration (SBA).\259\ The rule 
changes proposed herein will directly affect small television broadcast 
stations and small MVPD systems, which include cable operators and 
satellite video providers. A description of these small entities, as 
well as an estimate of the number of such small entities, is provided 
below.
---------------------------------------------------------------------------

    \256\ 5 U.S.C. 603(b)(3).
    \257\ 5 U.S.C. 601(b).
    \258\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small-business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \259\ 15 U.S.C. 632.
---------------------------------------------------------------------------

    68. Television Broadcasting. The SBA defines a television 
broadcasting station as a small business if such station has no more 
than $14.0 million in annual receipts.\260\ Business concerns included 
in this industry are those ``primarily engaged in broadcasting images 
together with sound.'' \261\ The Commission has estimated the number of 
licensed commercial television stations to be 1,390.\262\ According to 
Commission staff review of the BIA Kelsey Inc. Media Access Pro 
Television Database (BIA) as of January 31, 2011, 1,006 (or about 78 
percent) of an estimated 1,298 commercial television stations \263\ in 
the United States have revenues of $14 million or less and, thus, 
qualify as small entities under the SBA definition. The Commission has 
estimated the number of licensed noncommercial educational (``NCE'') 
television stations to be 391.\264\ We note, however, that, in 
assessing whether a business concern qualifies as small under the above 
definition, business (control) affiliations \265\ must be included. Our 
estimate, therefore, likely overstates the number of small entities 
that might be affected by our action, because the revenue figure on 
which it is based does not include or aggregate revenues from 
affiliated companies. The Commission does not compile and otherwise 
does not have access to information on the revenue of NCE stations that 
would permit it to determine how many such stations would qualify as 
small entities.
---------------------------------------------------------------------------

    \260\ See 13 CFR 121.201, NAICS Code 515120 (2007).
    \261\ Id. This category description continues, ``These 
establishments operate television broadcasting studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in 
turn broadcast the programs to the public on a predetermined 
schedule. Programming may originate in their own studios, from an 
affiliated network, or from external sources.'' Separate census 
categories pertain to businesses primarily engaged in producing 
programming. See Motion Picture and Video Production, NAICS code 
512110; Motion Picture and Video Distribution, NAICS Code 512120; 
Teleproduction and Other Post-Production Services, NAICS Code 
512191; and Other Motion Picture and Video Industries, NAICS Code 
512199.
    \262\ See News Release, ``Broadcast Station Totals as of 
December 31, 2010,'' 2011 WL 484756 (F.C.C.) (dated Feb. 11, 2011) 
(``Broadcast Station Totals''); also available at http://www.fcc.gov/Daily_Releases/Daily_Business/2011/db0211/DOC-304594A1.pdf.
    \263\ We recognize that this total differs slightly from that 
contained in Broadcast Station Totals, supra, note 56; however, we 
are using BIA's estimate for purposes of this revenue comparison.
    \264\ See Broadcast Station Totals, supra, note 56.
    \265\ ``[Business concerns] are affiliates of each other when 
one concern controls or has the power to control the other or a 
third party or parties controls or has to power to control both.'' 
13 CFR 121.103(a)(1).
---------------------------------------------------------------------------

    69. In addition, an element of the definition of ``small business'' 
is that the entity not be dominant in its field of operation. We are 
unable at this time to define or quantify the criteria that would 
establish whether a specific television station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which rules may apply do not exclude any television station from the 
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also, as noted, an additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. We note that it is difficult at times 
to assess these criteria in the context of media entities and our 
estimates of small businesses to which they apply may be over-inclusive 
to this extent.
    70. Satellite Telecommunications. Since 2007, the SBA has 
recognized satellite firms within this revised category, with a small 
business size standard of $15 million.\266\ The most current Census 
Bureau data are from the economic census of 2007, and we will use those 
figures to gauge the prevalence of small businesses in this category. 
Those size standards are for the two census categories of ``Satellite 
Telecommunications'' and ``Other Telecommunications.'' Under the 
``Satellite Telecommunications'' category, a business is considered 
small if it had $15 million or less in average annual receipts.\267\ 
Under the ``Other Telecommunications'' category, a business is 
considered small if it had $25 million or less in average annual 
receipts.\268\
---------------------------------------------------------------------------

    \266\ See 13 CFR 121.201, NAICS code 517410.
    \267\ Id.
    \268\ See 13 CFR 121.201, NAICS code 517919.
---------------------------------------------------------------------------

    71. The first category of Satellite Telecommunications ``comprises 
establishments primarily engaged in providing point-to-point 
telecommunications services to other establishments in the 
telecommunications and broadcasting industries by forwarding and 
receiving communications signals via a system of satellites or 
reselling satellite telecommunications.'' \269\ For this category, 
Census Bureau data for 2007

[[Page 55601]]

show that there were a total of 512 firms that operated for the entire 
year.\270\ Of this total, 464 firms had annual receipts of under $10 
million, and 18 firms had receipts of $10 million to $24,999,999.\271\ 
Consequently, we estimate that the majority of Satellite 
Telecommunications firms are small entities that might be affected by 
rules adopted pursuant to the Notice.
---------------------------------------------------------------------------

    \269\ U.S. Census Bureau, 2007 NAICS Definitions, ``517410 
Satellite Telecommunications''.
    \270\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&-_lang=en.
    \271\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&-_lang=en.
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    72. The second category of Other Telecommunications consists of 
firms ``primarily engaged in providing specialized telecommunications 
services, such as satellite tracking, communications telemetry, and 
radar station operation. This industry also includes establishments 
primarily engaged in providing satellite terminal stations and 
associated facilities connected with one or more terrestrial systems 
and capable of transmitting telecommunications to, and receiving 
telecommunications from, satellite systems. Establishments providing 
Internet services or voice over Internet protocol (VoIP) services via 
client-supplied telecommunications connections are also included in 
this industry.'' \272\ For this category, Census Bureau data for 2007 
show that there were a total of 2,383 firms that operated for the 
entire year.\273\ Of this total, 2,346 firms had annual receipts of 
under $25 million.\274\ Consequently, we estimate that the majority of 
Other Telecommunications firms are small entities that might be 
affected by our action.
---------------------------------------------------------------------------

    \272\ U.S. Census Bureau, 2007 NAICS Definitions, ``517919 Other 
Telecommunications'', http://www.census.gov/naics/2007/def/ND517919.HTM.
    \273\ See 13 CFR 121.201, NAICS code 517919.
    \274\ U.S. Census Bureau, 2007 Economic Census, Subject Series: 
Information, Table 5, ``Establishment and Firm Size: Employment Size 
of Firms for the United States: 2007 NAICS Code 517919'' (issued 
Nov. 2010).
---------------------------------------------------------------------------

    73. Direct Broadcast Satellite (``DBS'') Service. DBS service is a 
nationally distributed subscription service that delivers video and 
audio programming via satellite to a small parabolic ``dish'' antenna 
at the subscriber's location. DBS, by exception, is now included in the 
SBA's broad economic census category, ``Wired Telecommunications 
Carriers,'' \275\ which was developed for small wireline firms. Under 
this category, the SBA deems a wireline business to be small if it has 
1,500 or fewer employees.\276\ To gauge small business prevalence for 
the DBS service, the Commission relies on data currently available from 
the U.S. Census for the year 2007. According to that source, there were 
3,188 firms that in 2007 were Wired Telecommunications Carriers. Of 
these, 3,144 operated with less than 1,000 employees, and 44 operated 
with more than 1,000 employees. However, as to the latter 44 there is 
no data available that shows how many operated with more than 1,500 
employees. Based on this data, the majority of these firms can be 
considered small.\277\ Currently, only two entities provide DBS 
service, which requires a great investment of capital for operation: 
DIRECTV and EchoStar Communications Corporation (``EchoStar'') 
(marketed as the DISH Network).\278\ Each currently offers subscription 
services. DIRECTV \279\ and EchoStar \280\ each report annual revenues 
that are in excess of the threshold for a small business. Because DBS 
service requires significant capital, we believe it is unlikely that a 
small entity as defined by the SBA would have the financial wherewithal 
to become a DBS service provider.
---------------------------------------------------------------------------

    \275\ See 13 CFR 121.201, NAICS code 517110 (2007). The 2007 
NAICS definition of the category of ``Wired Telecommunications 
Carriers'' is in paragraph 7, above.
    \276\ 13 CFR 121.201, NAICS code 517110 (2007).
    \277\ See http://www.factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
    \278\ See Annual Assessment of the Status of Competition in the 
Market for the Delivery of Video Programming, Thirteenth Annual 
Report, 24 FCC Rcd 542, 580, para. 74 (2009) (``13th Annual 
Report''). We note that, in 2007, EchoStar purchased the licenses of 
Dominion Video Satellite, Inc. (``Dominion'') (marketed as Sky 
Angel). See Public Notice, ``Policy Branch Information; Actions 
Taken,'' Report No. SAT-00474, 22 FCC Rcd 17776 (IB 2007).
    \279\ As of June 2006, DIRECTV is the largest DBS operator and 
the second largest MVPD, serving an estimated 16.20% of MVPD 
subscribers nationwide. See 13th Annual Report, 24 FCC Rcd at 687, 
Table B-3.
    \280\ As of June 2006, DISH Network is the second largest DBS 
operator and the third largest MVPD, serving an estimated 13.01% of 
MVPD subscribers nationwide. Id. As of June 2006, Dominion served 
fewer than 500,000 subscribers, which may now be receiving ``Sky 
Angel'' service from DISH Network. See id. at 581, para. 76.
---------------------------------------------------------------------------

    74. Fixed Microwave Services. Microwave services include common 
carrier,\281\ private-operational fixed,\282\ and broadcast auxiliary 
radio services.\283\ At present, there are approximately 31,549 common 
carrier fixed licensees and 89,633 private and public safety 
operational-fixed licensees and broadcast auxiliary radio licensees in 
the microwave services. Microwave services include common carrier,\284\ 
private-operational fixed,\285\ and broadcast auxiliary radio 
services.\286\ They also include the Local Multipoint Distribution 
Service (LMDS),\287\ the Digital Electronic Message Service 
(DEMS),\288\ and the 24 GHz Service,\289\ where licensees can choose 
between common carrier and non-common carrier status.\290\ The 
Commission has not yet defined a small business with respect to 
microwave services. For purposes of the IRFA, the Commission will use 
the SBA's definition applicable to Wireless Telecommunications Carriers 
(except satellite)--i.e., an entity with no more than 1,500 persons is 
considered small.\291\ For the category of Wireless Telecommunications 
Carriers (except Satellite), Census data for 2007, which supersede data 
contained in the 2002 Census, show that there were 1,383 firms that 
operated that year.\292\ Of those 1,383, 1,368 had fewer than 100 
employees, and 15 firms had more than 100 employees. Thus under this 
category and the associated small business size standard, the majority 
of firms can be considered small. The Commission notes that the number 
of firms does not necessarily track the number of licensees. The 
Commission estimates that virtually all of the Fixed

[[Page 55602]]

Microwave licensees (excluding broadcast auxiliary licensees) would 
qualify as small entities under the SBA definition.
---------------------------------------------------------------------------

    \281\ 47 CFR Part 101 et seq. (formerly, part 21 of the 
Commission's Rules) for common carrier fixed microwave services 
(except MDS).
    \282\ Persons eligible under Parts 80 and 90 of the Commission's 
rules can use Private-Operational Fixed Microwave services. See 47 
CFR Parts 80 and 90. Stations in this service are called 
operational-fixed to distinguish them from common carrier and public 
fixed stations. Only the licensee may use the operational-fixed 
station, and only for communications related to the licensee's 
commercial, industrial, or safety operations.
    \283\ Auxiliary Microwave Service is governed by Part 74 and 
Part 78 of Title 47 of the Commission's Rules. Available to 
licensees of broadcast stations, cable operators, and to broadcast 
and cable network entities. Auxiliary microwave stations are used 
for relaying broadcast television signals from the studio to the 
transmitter, or between two points such as a main studio and an 
auxiliary studio. The service also includes TV pickup and CARS 
pickup, which relay signals from a remote location back to the 
studio.
    \284\ See 47 CFR Part 101, Subparts C and I.
    \285\ See 47 CFR Part 101, Subparts C and H.
    \286\ Auxiliary Microwave Service is governed by Part 74 of 
Title 47 of the Commission's Rules. See 47 CFR Part 74. Available to 
licensees of broadcast stations and to broadcast and cable network 
entities, broadcast auxiliary microwave stations are used for 
relaying broadcast television signals from the studio to the 
transmitter or between two points such as a main studio and an 
auxiliary studio. The service also includes mobile TV pickups, which 
relay signals from a remote location back to the studio.
    \287\ See 47 CFR Part 101, Subpart L.
    \288\ See 47 CFR Part 101, Subpart G.
    \289\ See id.
    \290\ See 47 CFR 101.533, 101.1017.
    \291\ 13 CFR 121.201, NAICS code 517210.
    \292\ U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007 
NAICS code 517210 (rel. Oct. 20, 2009), http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=700&-ds_name=EC0751SSSZ5&-_lang=en.
---------------------------------------------------------------------------

    75. Cable and Other Program Distribution. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers; that category is defined as follows: 
``This industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' \293\ The SBA has developed a small business size 
standard for this category, which is: all such firms having 1,500 or 
fewer employees.\294\ According to Census Bureau data for 2007, there 
were a total of 955 firms in this previous category that operated for 
the entire year.\295\ Of this total, 939 firms had employment of 999 or 
fewer employees, and 16 firms had employment of 1,000 employees or 
more.\296\
---------------------------------------------------------------------------

    \293\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers'' (partial definition), http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
    \294\ 13 CFR 121.201, NAICS code 517110 (2007).
    \295\ U.S. Census Bureau, 2007 Economic Census, Subject Series: 
Information, Table 5, Employment Size of Firms for the United 
States: 2007, NAICS code 5171102 (issued Nov. 2010) (located at 
http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en).
    \296\ See id.
---------------------------------------------------------------------------

    76. Cable Companies and Systems. The Commission has also developed 
its own small business size standards, for the purpose of cable rate 
regulation. Under the Commission's rules, a ``small cable company'' is 
one serving 400,000 or fewer subscribers, nationwide.\297\ Industry 
data indicate that, of 1,076 cable operators nationwide, all but eleven 
are small under this size standard.\298\ In addition, under the 
Commission's rules, a ``small system'' is a cable system serving 15,000 
or fewer subscribers.\299\ Industry data indicate that, of 6,635 
systems nationwide, 5,802 systems have under 10,000 subscribers, and an 
additional 302 systems have 10,000-19,999 subscribers.\300\ Thus, under 
this second size standard, most cable systems are small.
---------------------------------------------------------------------------

    \297\ 47 CFR 76.901(e). The Commission determined that this size 
standard equates approximately to a size standard of $100 million or 
less in annual revenues. Implementation of Sections of the 1992 
Cable Act: Rate Regulation, Sixth Report and Order and Eleventh 
Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995).
    \298\ These data are derived from: R.R. Bowker, Broadcasting & 
Cable Yearbook 2006, ``Top 25 Cable/Satellite Operators,'' pages A-8 
& C-2 (data current as of June 30, 2005); Warren Communications 
News, Television & Cable Factbook 2006, ``Ownership of Cable Systems 
in the United States,'' pages D-1805 to D-1857.
    \299\ 47 CFR 76.901(c).
    \300\ Warren Communications News, Television & Cable Factbook 
2008, ``U.S. Cable Systems by Subscriber Size,'' page F-2 (data 
current as of Oct. 2007). The data do not include 851 systems for 
which classifying data were not available.
---------------------------------------------------------------------------

    77. Cable System Operators. The Act also contains a size standard 
for small cable system operators, which is ``a cable operator that, 
directly or through an affiliate, serves in the aggregate fewer than 1 
percent 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.'' \301\ The Commission has determined 
that an operator serving fewer than 677,000 subscribers shall be deemed 
a small operator, if its annual revenues, when combined with the total 
annual revenues of all its affiliates, do not exceed $250 million in 
the aggregate.\302\ Industry data indicate that, of 1,076 cable 
operators nationwide, all but ten are small under this size 
standard.\303\ We note that the Commission neither requests nor 
collects information on whether cable system operators are affiliated 
with entities whose gross annual revenues exceed $250 million,\304\ and 
therefore we are unable to estimate more accurately the number of cable 
system operators that would qualify as small under this size standard.
---------------------------------------------------------------------------

    \301\ 47 U.S.C. 543(m)(2); see also 47 CFR 76.901(f) and notes 
1-3.
    \302\ 47 CFR 76.901(f); see FCC Announces New Subscriber Count 
for the Definition of Small Cable Operator, Public Notice, 16 FCC 
Rcd 2225 (Cable Services Bureau 2001).
    \303\ These data are derived from R.R. Bowker, Broadcasting & 
Cable Yearbook 2006, ``Top 25 Cable/Satellite Operators,'' pages A-8 
& C-2 (data current as of June 30, 2005); Warren Communications 
News, Television & Cable Factbook 2006, ``Ownership of Cable Systems 
in the United States,'' pages D-1805 to D-1857.
    \304\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's 
finding that the operator does not qualify as a small cable operator 
pursuant to section 76.901(f) of the Commission's rules.
---------------------------------------------------------------------------

    78. Open Video Services. Open Video Service (OVS) systems provide 
subscription services.\305\ The open video system (``OVS'') framework 
was established in 1996, and is one of four statutorily recognized 
options for the provision of video programming services by local 
exchange carriers.\306\ The OVS framework provides opportunities for 
the distribution of video programming other than through cable systems. 
Because OVS operators provide subscription services,\307\ OVS falls 
within the SBA small business size standard covering cable services, 
which is ``Wired Telecommunications Carriers.'' \308\ The SBA has 
developed a small business size standard for this category, which is: 
All such firms having 1,500 or fewer employees. To gauge small business 
prevalence for the OVS service, the Commission relies on data currently 
available from the U.S. Census for the year 2007. According to that 
source, there were 3,188 firms that in 2007 were Wired 
Telecommunications Carriers. Of these, 3,144 operated with less than 
1,000 employees, and 44 operated with more than 1,000 employees. 
However, as to the latter 44 there is no data available that shows how 
many operated with more than 1,500 employees. Based on this data, the 
majority of these firms can be considered small.\309\ In addition, we 
note that the Commission has certified some OVS operators, with some 
now providing service.\310\ Broadband service providers (``BSPs'') are 
currently the only significant holders of OVS certifications or local 
OVS franchises.\311\ The Commission does not have financial or 
employment information regarding the entities authorized to provide 
OVS, some of which may not yet be operational. Thus, at least some of 
the OVS operators may qualify as small entities. The Commission further 
notes that it has certified approximately 45 OVS operators to serve 75 
areas, and some of these are currently providing service.\312\ 
Affiliates of Residential Communications Network, Inc. (``RCN'') 
received approval to operate OVS systems in New York City, Boston, 
Washington, DC, and other areas. RCN has sufficient revenues to assure 
that they do not qualify as a small business entity. Little financial 
information is available for the other entities that are authorized to 
provide OVS and are not yet operational. Given that some entities 
authorized to provide OVS service have

[[Page 55603]]

not yet begun to generate revenues, the Commission concludes that up to 
44 OVS operators (those remaining) might qualify as small businesses.
---------------------------------------------------------------------------

    \305\ See 47 U.S.C. 573.
    \306\ 47 U.S.C. 571(a)(3)-(4). See 13th Annual Report, 24 FCC 
Rcd at 606, para 135.
    \307\ See 47 U.S.C. 573.
    \308\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired 
Telecommunications Carriers''; http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
    \309\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
    \310\ A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html.
    \311\ See 13th Annual Report, 24 FCC Rcd at 606-07, para 135. 
BSPs are newer firms that are building state-of-the-art, facilities-
based networks to provide video, voice, and data services over a 
single network.
    \312\ See http://www.fcc.gov/mb/ovs/csovscer.html (current as of 
February 2007).
---------------------------------------------------------------------------

5. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    79. These rules affect small television broadcast stations and 
small MVPDs by requiring them to pass through a secondary audio track, 
containing video description, with any described programming that is 
provided by a network. The description need not be passed through if 
the station or MVPD does not have the technical capability to pass it 
through, or if the entity is already using all of the secondary audio 
capacity associated with that program for other program-related 
material. ``Technical capability'' means a station or system has 
``virtually all necessary equipment and infrastructure to do so, except 
for items that would be of minimal cost'' If any small entities are 
subject to the separate requirement to ``provide'' video description, 
we anticipate that they will do so by passing description through to 
viewers. This separate requirement will thus impose no distinct burden 
on small broadcasters or small MVPDs. These requirements may in some 
cases result in the need for engineering services.
6. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    80. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.\313\
---------------------------------------------------------------------------

    \313\ 5 U.S.C. 603(c)(1)-(c)(4).
---------------------------------------------------------------------------

    81. These rules may have a significant economic impact in some 
cases, and that impact may affect a substantial number of small 
entities. Although alternatives to minimize economic impact have been 
considered, the video description rules have been reinstated in their 
present form because of the Congressional mandate, and the Commission 
has very limited authority to revise them. However, the importance of 
minimizing adverse economic impact on small entities has been 
recognized. Exemptions from the pass-through requirement, the rule most 
likely to apply to small entities, are easily available for parties 
that will face more than minimal cost to comply. Furthermore, these 
rules could provide off-setting positive economic impact on small 
entities by increasing viewership by persons with visual impairments.
7. Federal Rules that May Duplicate, Overlap, or Conflict with the 
Proposed Rules
    82. None.

V. Ordering Clauses

    83. It is ordered that, pursuant to the Twenty-First Century 
Communications and Video Accessibility Act of 2010, Public Law 111-260, 
124 Stat. 2751, and the authority contained in Sections 1, 2(a), 4(i), 
303, and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 152, 154(i), 303, and 613, this report and order is hereby 
adopted.
    84. It is further ordered that parts 73 and 79 of the Commission's 
rules, 47 CFR parts 73 and 79, are Amended as set forth in Appendix A, 
and such rule amendments shall be effective 30 days after the date of 
publication of the text thereof in the Federal Register, except to the 
extent they contain information collections subject to PRA review. The 
rules that contain information collections subject to PRA review will 
become effective following approval by the Office of Management and 
Budget.
    85. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this second report and order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.
    86. it is further ordered that the Commission shall send a copy of 
this second report and order in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Parts 73 and 79

    Civil defense, Communications equipment, Defense communications, 
Education, Equal employment opportunity, Foreign relations, 
Incorporation by reference, Mexico, Political candidates, Radio, 
Reporting and recordkeeping requirements, Television, Cable television.

Federal Communications Commission.
Bulah P. Wheeler,
Deputy Manager.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 73 and 79 as follows:

PART 73--RADIO BROADCAST SERVICES

0
1. The authority citation for part 73 continues to read as follows:

    Authority:  47 U.S.C. 154, 303, 334, 336, and 339.


0
2. Section 73.682 is amended by revising paragraph (d) to read as 
follows:


Sec.  73.682  TV transmission standards.

* * * * *
    (d) Digital broadcast television transmission standard. Effective 
October 11, 2011 transmission of digital broadcast television (DTV) 
signals shall comply with the standards for such transmissions set 
forth in ATSC A/52: ``ATSC Standard Digital Audio Compression (AC-3)'', 
ATSC A/53, Parts 1-4 and 6: 2007 ``ATSC Digital Television Standard,'' 
(January 3, 2007), and ATSC A/53 Part 5:2010 ``ATSC Digital Television 
Standard: Part 5--AC-3 Audio System Characteristic,'' (July 6, 2010), 
except for section 6.1.2 (``Compression Format Constraints'') of A/53 
Part 4: 2007 (``MPEG-2 Video Systems Characteristics'') and the phrase 
``see Table 6.2'' in section 6.1.1 Table 6.1 and section 6.1.3 Table 
6.3, and ATSC A/65C: ``ATSC Program and System Information Protocol for 
Terrestrial Broadcast and Cable, Revision C With Amendment No. 1 dated 
May 9, 2006,'' (January 2, 2006) (all standards incorporated by 
reference, see Sec.  73.8000). Although not incorporated by reference, 
licensees may also consult ATSC A/54A: ``Recommended Practice: Guide to 
Use of the ATSC Digital Television Standard, including Corrigendum No. 
1,'' (December 4, 2003, Corrigendum No. 1 dated December 20, 2006, and 
ATSC A/69: ``Recommended Practice PSIP Implementation Guidelines for 
Broadcasters,'' (June 25, 2002) (Secs. 4, 5, 303, 48 Stat., as amended, 
1066, 1068, 1082 (47 U.S.C. 154, 155, 303)). ATSC A/54A and ATSC A/69 
are available from Advanced Television Systems Committee (ATSC), 1750 K 
Street, NW., Suite 1200, Washington, DC 20006, or at the ATSC Web site: 
http://www.atsc.org/standards.html.
* * * * *

[[Page 55604]]

0
3. Section 73.8000 is amended by revising paragraphs (b)(2) 
introductory text and (b)(2)(v) to read as follows:


Sec.  73.8000  Incorporation by reference.

* * * * *
    (b) * * *
    (2) ATSC A/53 Parts 1-4 and 6: 2007 ``ATSC Digital Television 
Standard,'' (January 3, 2007) and ATSC A/53 Part 5: 2010 ``ATSC Digital 
Television Standard: Part 5--AC-3 Audio System Characteristic,'' (July 
6, 2010), as listed below:
* * * * *
    (v) A/53, Part 5: 2010, ``AC-3 Audio System Characteristics'' (July 
6, 2010), IBR approved for Sec.  73.682.
* * * * *

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

0
4. The authority citation for part 79 continues to read as follows:

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


0
5. Section 79.3 is revised 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 The Nielsen Company, a television audience 
measurement service, based on television viewership in the counties 
that make up each DMA.
    (2) Video programming provider. Any video programming distributor 
and any other entity that provides video programming that is intended 
for distribution to residential households including, but not limited 
to, broadcast or nonbroadcast television networks and the owners of 
such programming.
    (3) Video description/Audio 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, but not including consumer-generated media.
    (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.
    (6) Prime time. The period from 8 to 11 p.m. Monday through 
Saturday, and 7 to 11 p.m. on Sunday local time, except that in the 
central time zone the relevant period shall be between the hours of 7 
and 10 p.m. Monday through Saturday, and 6 and 10 p.m. on Sunday, and 
in the mountain time zone each station shall elect whether the period 
shall be 8 to 11 p.m. Monday through Saturday, and 7 to 11 p.m. on 
Sunday, or 7 to 10 p.m. Monday through Saturday, and 6 to 10 p.m. on 
Sunday.
    (7) Live or near-live programming. Programming performed either 
simultaneously with, or recorded no more than 24 hours prior to, its 
first transmission by a video programming distributor.
    (8) Children's Programming. Television programming directed at 
children 16 years of age and under.
    (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), and that are licensed to a community located in the 
top 25 DMAs, as determined by The Nielsen Company as of January 1, 
2011, must provide 50 hours of video description per calendar quarter, 
either during prime time or on children's programming, on each 
programming stream on which they carry one of the top four commercial 
television broadcast networks. If a station in one of these markets 
becomes affiliated with one of these networks after the effective date 
of these rules, it must begin compliance with these requirements no 
later than three months after the affiliation agreement is finalized;
    (2) Beginning July 1, 2015, commercial television broadcast 
stations that are affiliated with one of the top four commercial 
television broadcast networks (ABC, CBS, Fox, and NBC), and that are 
licensed to a community located in the top 60 DMAs, as determined by 
The Nielsen Company as of January 1, 2015, must provide 50 hours of 
video description per calendar quarter, either during prime time or on 
children's programming, on each programming stream on which they carry 
one of the top four commercial television broadcast networks. If a 
station in one of these markets becomes affiliated with one of these 
networks after July 1, 2015, it must begin compliance with these 
requirements no later than three months after the affiliation agreement 
is finalized;
    (3) 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, unless it is using the technology used 
to provide video description for another purpose related to the 
programming that would conflict with providing the video description;
    (4) Multichannel video programming distributor (MVPD) systems that 
serve 50,000 or more subscribers must provide 50 hours of video 
description per calendar quarter during prime time or 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 that 
reach 50 percent or more of MVPD households and have at least 50 hours 
per quarter of prime time programming that is not live or near-live or 
otherwise exempt under these rules. Initially, the top five networks 
are those determined by The Nielsen Company, for the time period 
October 2009-September 2010, and will update at three year intervals. 
The first update will be July 1, 2015, based on the ratings for the 
time period October 2013-September 2014; the second will be July 1, 
2018, based on the ratings for the time period October 2016-September 
2017; and so on; and
    (5) Multichannel video programming distributor (MVPD) systems 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, unless it is using the technology used 
to provide video description for another purpose related to the 
programming that would conflict with providing 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, unless it is using the technology used to provide 
video description for another purpose related to the programming that 
would conflict with providing the video description.

[[Page 55605]]

    (c) Responsibility for and determination of compliance. (1) The 
Commission will calculate compliance on a per channel, and, for 
broadcasters, a per stream, calendar quarter basis, beginning with the 
calendar quarter July 1 through September 30, 2012.
    (2) In order to meet its fifty-hour quarterly requirement, a 
broadcaster or MVPD may count each program it airs with video 
description no more than a total of two times on each channel on which 
it airs the program. A broadcaster or MVPD may count the second airing 
in the same or any one subsequent quarter. A broadcaster may only count 
programs aired on its primary broadcasting stream towards its fifty-
hour quarterly requirement. A broadcaster carrying one of the top four 
commercial television broadcast networks on a secondary stream may 
count programs aired on that stream toward its fifty-hour quarterly 
requirement for that network only.
    (3) Once a commercial television broadcast station as defined under 
paragraph (b)(1) of this section has aired a particular program with 
video description, it is required to include video description with all 
subsequent airings of that program on that same broadcast station, 
unless it is using the technology used to provide video description for 
another purpose related to the programming that would conflict with 
providing the video description.
    (4) Once an MVPD as defined under paragraph (b)(3) of this section:
    (i) Has aired a particular program with video description on a 
broadcast station it carries, it is required to include video 
description with all subsequent airings of that program on that same 
broadcast station, unless it is using the technology used to provide 
video description for another purpose related to the programming that 
would conflict with providing the video description; or
    (ii) Has aired a particular program with video description on a 
nonbroadcast network it carries, it is required to include video 
description with all subsequent airings of that program on that same 
nonbroadcast network, unless it is using the technology used to provide 
video description for another purpose related to the programming that 
would conflict with providing the video description.
    (5) 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 economic burden. (1) A video 
programming provider 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 
would be economically burdensome.
    (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 be 
economically burdensome. The term ``economically burdensome'' means 
imposing significant difficulty or expense. The Commission will 
consider the following factors when determining whether the 
requirements for video description would be economically burdensome:
    (i) The nature and cost of providing video description of the 
programming;
    (ii) The impact on the operation of the video programming provider;
    (iii) The financial resources of the video programming provider; 
and
    (iv) The type of operations of the video programming provider.
    (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 economic 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 economically burdensome 
standard in this paragraph, 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 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 finding 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 economic burden exemption from the video description 
requirements.
    (11) During the pendency of an economic 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 and Governmental 
Affairs Bureau at the Commission by any reasonable means, such as 
letter, facsimile transmission, telephone (voice/TRS/TTY), 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 and Governmental Affairs 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/TTY), Internet e-mail, or some other method that would best 
accommodate the complainant).
    (2) The Commission will promptly forward complaints satisfying the 
above 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 either to shorten or lengthen the time required for 
responding to

[[Page 55606]]

complaints in particular cases. The answer to a complaint must include 
a certification that the video programming distributor attempted in 
good faith to resolve the dispute with the complainant.
    (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. 2011-22878 Filed 9-7-11; 8:45 am]
BILLING CODE 6712-01-P