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