[Federal Register Volume 78, Number 129 (Friday, July 5, 2013)]
[Proposed Rules]
[Pages 40421-40424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16019]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket No. 11-43; DA 13-1438]


Inquiry Regarding Video Description in Video Programming 
Distributed on Television and on the Internet

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; solicitation of comments.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) solicits public comment on issues related to video 
description in video programming that is delivered via both television 
and the Internet. The comments received in response to these inquiries 
will inform a report to Congress required by the CVAA on the status, 
benefits, and costs of video description on television and Internet-
provided video programming, which must be completed no later than July 
1, 2014.

DATES: Comments may be filed on or before September 4, 2013, and reply 
comments may be filed on or before October 2, 2013.

ADDRESSES: You may submit comments, identified by MB Docket No. 11-43, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     Mail: Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: (202) 418-
0530 or TTY: (202) 418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

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

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Public 
Notice in MB Docket No. 11-43, DA 13-1438, released on June 25, 2013. 
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., Room CY-A257, 
Washington, DC 20554. This document will also be available via ECFS at 
http://fjallfoss.fcc.gov/ecfs/. Documents will be available 
electronically in ASCII, Microsoft Word, 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. Alternative 
formats are available for people with disabilities (Braille, large 
print, electronic files, audio format), by sending an email to 
[email protected] or calling the Commission's Consumer and Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Summary

    1. By the Public Notice, the Media Bureau seeks comment on video 
description of video programming that is delivered via both television 
and the Internet. Pursuant to the Twenty-First Century Communications 
and Video Accessibility Act of 2010 (``CVAA''), the

[[Page 40422]]

Commission released a Report and Order \1\ on August 25, 2011, 
published at 76 FR 55585, September 8, 2011, reinstating the video 
description rules previously vacated by the U.S. Court of Appeals for 
the District of Columbia Circuit.\2\ Under the reinstated rules, 
certain television broadcast stations and MVPDs have an obligation to 
provide video description for a portion of the video programming \3\ 
that they offer to consumers. Video description is ``[t]he insertion of 
audio narrated descriptions of a television program's key visual 
elements into natural pauses between the program's dialogue.'' \4\ It 
makes video programming accessible to individuals who are blind or 
visually impaired. The Media Bureau seeks comment on specific inquiries 
related to video description in video programming that is delivered via 
both television and the Internet, as the CVAA requires.\5\ The comments 
received in response to these inquiries will inform a report to 
Congress required by the CVAA on the status, benefits, and costs of 
video description on television and Internet-provided video 
programming, which must be completed no later than July 1, 2014.\6\
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    \1\ Video Description: Implementation of the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Report 
and Order, 26 FCC Rcd 11847 (2011) (``2011 Video Description 
Order''). See 47 U.S.C. 613(f)(1)-(2).
    \2\ In 2000, the Commission adopted rules requiring certain 
broadcasters and multichannel video programming distributors 
(``MVPDs'') to carry programming with video description. See 
Implementation of Video Description of Video Programming, Report and 
Order, 15 FCC Rcd 15230 (2000) (``2000 Video Description Order''). 
The D.C. Circuit vacated the rules five months after they went into 
effect, on the ground that the Commission lacked authority to 
promulgate video description rules. Motion Picture Ass'n of Am., 
Inc. v. FCC, 309 F.3d 796 (D.C. Cir. 2002).
    \3\ In this context, ``video programming'' is defined as 
``[p]rogramming provided by, or generally considered comparable to 
programming provided by, a television broadcast station, but not 
including consumer-generated media.'' 47 CFR 79.3(a)(4).
    \4\ Id. 79.3(a)(3).
    \5\ 47 U.S.C. 613(f)(3)(A)-(B). Congress directed the Commission 
to ``commence the . . . inquiries not later than 1 year after the 
completion of the phase-in of the reinstated regulations. . . .'' 
Id. 613(f)(3). Broadcasters and MVPDs were required to be in full 
compliance with the video description rules beginning on July 1, 
2012. See 2011 Video Description Order, 26 FCC Rcd at 11864, para. 
34. Thus, the inquiries must be commenced no later than July 1, 
2013.
    \6\ 47 U.S.C. 613(f)(3) (requiring the Commission to report to 
Congress two years after the completion of the phase-in of the 
reinstated video description rules on the findings for the inquiries 
set forth in this section).
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    2. Background. The video description rules require commercial 
television broadcast stations that are affiliated with one of the top 
four commercial television broadcast networks and are located in the 
top 25 television markets to provide 50 hours per calendar quarter of 
video-described prime time or children's programming.\7\ In addition, 
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 of the top five national nonbroadcast 
networks that they carry on those systems.\8\ The rules also impose 
video description ``pass through'' obligations on all network-
affiliated broadcast stations regardless of market size,\9\ and on all 
MVPDs regardless of the number of subscribers.\10\ Any programming 
aired with video description must include video description if it is 
re-aired on the same station or MVPD channel. The video description 
rules were reinstated as of October 8, 2011, and broadcasters and MVPDs 
were required to be in full compliance with the video description 
requirements beginning on July 1, 2012.\11\ Video description services 
for television are provided on a secondary audio stream, and typically 
a consumer can access video description through an on-screen menu 
provided by the home television receiver or set-top box. The Commission 
recently adopted rules requiring apparatus that is designed to receive, 
play back, or record video programming transmitted simultaneously with 
sound to make secondary audio streams available for video description 
services.\12\ Those rules go into effect on June 24, 2013, except for 
the rules that require approval by the Office of Management and 
Budget.\13\ In a separate rulemaking proceeding, the Commission 
recently issued a Notice of Proposed Rulemaking seeking comment on 
issues related to implementation of Sections 204 and 205 of the CVAA, 
which generally require that user interfaces on digital apparatus used 
to view video programming, as well as on-screen text menus and guides 
on navigation devices, be accessible to and usable by individuals who 
are blind or visually impaired.\14\
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    \7\ 47 CFR 79.3(b)(1). See 2011 Video Description Order, 26 FCC 
Rcd at 11849, para. 4. Beginning July 1, 2015, full-power affiliates 
of the top four television broadcast networks located in markets 25 
to 60 will also be subject to this requirement. See 47 CFR 
79.3(b)(2); 2011 Video Description Order, 26 FCC Rcd at 11856, para. 
16.
    \8\ 47 CFR 79.3(b)(4). See also 2011 Video Description Order, 26 
FCC Rcd at 11849-50, para. 4. For purposes of the video description 
rules, the top five national nonbroadcast networks include only 
those 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 the video description 
rules. 47 CFR 79.3(b)(4). See also 2011 Video Description Order, 26 
FCC Rcd at 11854-55, paras. 12-15. Thus, for purposes of the rules, 
the top five nonbroadcast networks are USA, the Disney Channel, TNT, 
Nickelodeon, and TBS. 2011 Video Description Order, 26 FCC Rcd at 
11854, para. 12. The list of top five networks will be reviewed 
every three years for changes in ratings. Id. at 11857, para. 18.
    \9\ Specifically, any broadcast station affiliated or otherwise 
associated with a television network must pass through video 
description when it is provided by the network, if the station has 
the technical capability necessary to do so and if that technology 
is not being used for another purpose related to the programming. 47 
CFR 79.3(b)(3). See also 2011 Video Description Order, 26 FCC Rcd at 
11850, para. 4.
    \10\ Similarly, MVPD systems of any size must pass through video 
description provided by a broadcast station or nonbroadcast network, 
if the channel on which the MVPD distributes the station or 
programming has the technical capability necessary to do so and if 
that technology is not being used for another purpose related to the 
programming. 47 CFR 79.3(b)(5)(i)-(ii). See also 2011 Video 
Description Order, 26 FCC Rcd at 11850, para. 4.
    \11\ See 2011 Video Description Order, 26 FCC Rcd at 11864, 
para. 34.
    \12\ See Accessible Emergency Information, and Apparatus 
Requirements for Emergency Information and Video Description: 
Implementation of the Twenty-First Century Communications and Video 
Accessibility Act of 2010; Video Description: Implementation of the 
Twenty-First Century Communications and Video Accessibility Act of 
2010, Report and Order and Further Notice of Proposed Rulemaking, 28 
FCC Rcd 4871, 4907, para. 49 (2013) (``Emergency Information/Video 
Description Order''). Covered entities must comply with the 
apparatus rules by May 26, 2015.
    \13\ See Public Notice, Notice of Effective Date of New 
Emergency Information Rules and Emergency Information/Video 
Description Apparatus Rules and Announcement of Comment and Reply 
Comment Deadlines for Related Further Notice of Proposed Rulemaking, 
DA 13-1240 (rel. May 29, 2013) (``Effective Date PN'').
    \14\ See Accessibility of User Interfaces, and Video Programming 
Guides and Menus, Notice of Proposed Rulemaking, MB Docket No. 12-
108, FCC 13-77 (rel. May 30, 2013) (``User Interfaces/Programming 
Guides NPRM''). The User Interfaces/Programming Guides NPRM also 
seeks comment on the statutory requirement that certain devices must 
provide access to video description features through a mechanism 
reasonably comparable to a button, key, or icon. Id. at 19-20, para. 
45. Any comments relating to these issues should be filed in MB 
Docket No. 12-108. Comments are due July 15, 2013, and reply 
comments are due August 7, 2013. See Public Notice, Media Bureau 
Announces Comment and Reply Comment Deadlines for the Notice of 
Proposed Rulemaking Regarding Accessibility of User Interfaces and 
Video Programming Guides/Menus and Establishes Schedule for Ex Parte 
Meetings, DA 13-1398 (rel. June 18, 2013).
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    3. Video Description in Television Programming. Section 
713(f)(3)(A) of the Communications Act of 1934 as amended (the 
``Communications Act''), as added by the CVAA, directs the Commission 
to inquire about the following specific issues related to video 
description in television programming:
     The availability, use, and benefits of video description 
on video programming distributed on television;
     The technical and creative issues associated with 
providing such video description; and
     The financial costs of providing such video description 
for providers of

[[Page 40423]]

video programming and program owners.\15\
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    \15\ 47 U.S.C. 613(f)(3)(A).
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In accordance with Congress' directive, we request comment on each of 
the issues set forth above, including information on pertinent 
developments since the video description rules were reinstated in 
October 2011. Specifically, we solicit data on the amount of video-
described programming that is currently available to consumers on 
television, as well as the types of programming that are provided with 
video description. We seek comment on both programming that is video-
described by covered entities to comply with the Commission's rules and 
programming that is video-described voluntarily. How much video-
described programming is being provided voluntarily? We also seek 
comment on the extent to which consumers use video description services 
when viewing television programming, as well as the benefits to 
consumers of such services, including whether the benefits of video 
description extend to audiences without visual disabilities. Is the 
availability of video description indicated in program guides or other 
sources? \16\ If it is, is it indicated audibly, and is there a common 
industry method to indicate that the program is video-described?
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    \16\ See 2011 Video Description Order, 26 FCC Rcd at 11871-72, 
para. 51 (declining, at that time, ``to require that the 
availability of video description on certain programs be publicized 
in a certain manner,'' but stating the Commission's expectation 
``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''). See also User Interfaces/Programming Guides NPRM at 
19-20, paras. 45-46.
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    4. We seek comment on any technical or creative issues involved 
with the provision of video-described television programming, whether 
related to the creation, distribution, or viewing of such programming. 
We request information regarding the costs of providing video 
description for video programming on television. What financial costs 
have been incurred by program owners and video programming providers 
and distributors, particularly large market broadcast affiliates and 
large MVPDs that are currently subject to the requirements, to create 
and distribute video-described programming? What financial costs, if 
any, have been incurred by network-affiliated broadcast stations and 
MVPDs to comply with the video description pass through requirements? 
We further ask commenters to provide information on any other relevant 
legal and policy issues regarding the provision of video description in 
television programming that can help inform the Commission's report to 
Congress.
    5. In the 2011 Video Description Order, the Commission also 
indicated that it would revisit the need for providing an exception to 
the video description pass through requirements \17\ and to the 
requirements applicable to subsequent airings of programs \18\ when the 
technology used to provide video description is being used for other 
program-related content.\19\ At that time, the Commission explained 
that eliminating the exception may lead covered entities to replace 
other program-related content (e.g., foreign language audio) with video 
description on the secondary audio stream or, alternatively, to provide 
video description on a third audio stream tagged in a particular manner 
(e.g., ``visually impaired''), which could make it difficult for 
consumers to access.\20\ We seek comment on whether we should revisit 
the need for an exception for other program-related content. We note 
that the Commission has already addressed issues regarding the capacity 
to provide more than one audio stream in the Emergency Information/
Video Description Order and concluded that it should not mandate more 
than two audio streams.\21\ Apparatus are required to make video 
description available only on a secondary audio stream.\22\ Further, in 
the Emergency Information/Video Description Order, the Commission 
adopted rules requiring that emergency information provided on a 
secondary audio stream supersede all other programming on the secondary 
audio stream, including video description.\23\ We are not seeking to 
revisit these issues here.
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    \17\ See supra notes 9-10.
    \18\ See 47 CFR 79.3(c)(3)-(4) (requiring certain television 
stations and MVPDs to include video description on subsequent 
airings for programs that have already aired with 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'').
    \19\ See 2011 Video Description Order, 26 FCC Rcd at 11863, 
para. 31.
    \20\ See id. In the Further Notice of Proposed Rulemaking 
(``FNPRM'') adopted with the Emergency Information/Video Description 
Order, the Commission inquires whether an audio stream containing 
video description should include a particular tag (e.g., ``VI''). 
See Emergency Information/Video Description Order, 28 FCC Rcd at 
4928-29, para. 85. Any comments relating to this issue should be 
filed in MB Docket Nos. 12-107, 11-43. Comments are due July 23, 
2013, and reply comments are due August 22, 2013. Effective Date PN 
at 1.
    \21\ See Emergency Information/Video Description Order, 28 FCC 
Rcd at 4882-83, para. 14.
    \22\ See id. at 4907, para. 49.
    \23\ See id. at 4892-94, para. 26.
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    6. Video Description in Video Programming Distributed on the 
Internet. Section 713(f)(3)(B) of the Communications Act also directs 
the Commission to make the following inquiry related to video 
description in video programming distributed on the Internet:
     The technical and operational issues, costs, and benefits 
of providing video descriptions for video programming that is delivered 
using Internet protocol (``IP'').\24\
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    \24\ 47 U.S.C. 613(f)(3)(B).

In accordance with Congress' directive, we seek comment on the inquiry 
set forth above. We note that the Commission's video description 
regulations require video description only by certain television 
broadcast stations and MVPDs and that, at this time, the requirements 
do not apply to IP-delivered video programming that is not otherwise an 
MVPD service.\25\ What technical and operational issues are involved 
with providing video descriptions for IP-delivered video programming? 
As noted above, the Commission recently adopted rules requiring certain 
apparatus to make secondary audio streams available for video 
description services.\26\ Are there other technologies or 
functionalities that must be developed to accommodate the delivery of 
video-described programming on the Internet and to make such 
programming accessible to individuals who are blind or visually 
impaired? \27\ What are the costs of providing video description for 
IP-delivered video programming and what are the benefits to consumers 
of making video-described programming available on the Internet? We 
also seek comment on the feasibility of enforcing video description 
requirements for IP-delivered video programming that is not provided by 
broadcast stations or MVPDs. We further ask commenters to

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provide information on any other relevant legal and policy issues 
regarding the provision of video description on video programming 
distributed on the Internet that can help inform the Commission's 
report to Congress.
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    \25\ In the pending FNPRM, the Commission is seeking comment on 
whether an MVPD system must comply with the video description rules 
when it permits its subscribers to access linear video programming 
via tablets, laptops, personal computers, smartphones, or similar 
devices. See Emergency Information/Video Description Order, 28 FCC 
Rcd at 4927-28, paras. 83-84. Any comments relating to these issues 
should be filed in MB Docket Nos. 12-107, 11-43. See supra note 20.
    \26\ Id. at 4907, para. 49.
    \27\ See, e.g., Second Report of the Video Programming 
Accessibility Advisory Committee on the Twenty-First Century 
Communications and Video Accessibility Act of 2010: Video 
Description, at 27-28 (Apr. 9, 2012), available at http://vpaac.wikispaces.com/file/view/120409+VPAAC+Video+Description+REPORT+AS+SUBMITTED+4-9-2012.pdf.
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    7. Permit-but-Disclose. The proceeding shall be treated as a 
``permit-but-disclose'' proceeding in accordance with the Commission's 
ex parte rules.\28\ Persons making ex parte presentations must file a 
copy of any written presentation or a memorandum summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentation must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda, or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with rule Sec.  1.1206(b). In proceedings governed 
by Sec.  1.49(f) or for which the Commission has made available a 
method of electronic filing, written ex parte presentations and 
memoranda summarizing oral ex parte presentations, and all attachments 
thereto, must be filed through the electronic comment filing system 
available for that proceeding, and must be filed in their native format 
(e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this 
proceeding should familiarize themselves with the Commission's ex parte 
rules.
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    \28\ 47 CFR 1.1200 et seq.
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    8. Comments and Replies. Interested parties may file comments and 
reply comments on or before the dates indicated on the first page of 
this document. Comments and Reply Comments may be filed using the 
Commission's Electronic Comment Filing System (``ECFS'').\29\
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    \29\ See Electronic Filing of Documents in Rulemaking 
Proceedings, 63 FR 24121 (1998).
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     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th Street SW., Room TW-A325, Washington, DC 20554. The filing 
hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held 
together with rubber bands or fasteners. Any envelopes and boxes must 
be disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW., Washington, DC 20554.
    9. Availability of Documents. Comments, reply comments, and ex 
parte submissions will be available for public inspection 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. Documents will 
be available electronically in ASCII, Microsoft Word, and/or Adobe 
Acrobat.
    10. People with Disabilities. To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected] or call the FCC's 
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), 
(202) 418-0432 (TTY).
    11. Additional Information. For additional information on this 
proceeding, contact Maria Mullarkey, [email protected], of the 
Media Bureau, Policy Division, (202) 418-2120. Press contact: Janice 
Wise (202-418-8165; [email protected]).

Federal Communications Commission.
Thomas Horan,
Chief of Staff, Media Bureau.
[FR Doc. 2013-16019 Filed 7-3-13; 8:45 am]
BILLING CODE 6712-01-P