[Federal Register Volume 81, Number 103 (Friday, May 27, 2016)]
[Proposed Rules]
[Pages 33642-33653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10816]



[[Page 33642]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket No. 11-43; FCC 16-37]


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

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on proposals to 
expand the amount of and access to video described programming, for the 
benefit of consumers who are blind or visually impaired.

DATES: Comments are due on or before June 27, 2016; reply comments are 
due on or before July 26, 2016.

ADDRESSES: You may submit comments, identified by MB Docket No. 11-43, 
by any of the following methods:
     Federal Communications Commission (FCC) Electronic Comment 
Filing System (ECFS) Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow 
the instructions for submitting comments.
     Mail: U.S. Postal Service first-class, Express, and 
Priority Mail must be addressed to the FCC Secretary, Office of the 
Secretary, Federal Communications Commission, 445 12th Street SW., 
Washington, DC 20554. 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.
     Hand or Messenger Delivery: All hand-delivered or 
messenger-delivered paper filings for the FCC Secretary must be 
delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, 
Washington, DC 20554.
     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 ``PROCEDURAL MATTERS'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Lyle Elder, [email protected], of the 
Media Bureau, Policy Division, (202) 418-2120. For additional 
information concerning the Paperwork Reduction Act information 
collection requirements contained in this document, contact Cathy 
Williams at (202) 418-2918 or send an email to [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM), FCC 16-37, adopted on March 31, 2016, 
and released on April 1, 2016. The full text of this document is 
available electronically via the FCC's Electronic Document Management 
System (EDOCS) Web site at http://fjallfoss.fcc.gov/edocs_public/ or 
via the FCC's Electronic Comment Filing System (ECFS) Web site at 
http://fjallfoss.fcc.gov/ecfs2/. Documents will be available 
electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. This 
document is also available for public inspection and copying during 
regular business hours in the FCC Reference Information Center, Federal 
Communications Commission, 445 12th Street SW., CY-A257, Washington, DC 
20554. Alternative formats are available for persons 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).

I. Introduction

    1. Since the video description rules were reinstated, they have 
provided substantial benefits to persons who are blind or visually 
impaired by making television programming more accessible. Through 
video description, individuals who are blind or visually impaired can 
independently enjoy and follow popular television programs and be more 
fully included in the shared cultural experience that television 
offers. The Federal Communications Commission (``FCC'' or ``the 
Commission'') is now proposing revisions to our rules that would expand 
the availability of, and support consumer access to, video described 
programming. In 2011, the Commission took the initial step in expanding 
access to video description, by reinstating the 2000 rules as directed 
by Section 202 of the Twenty-First Century Communications and Video 
Accessibility Act of 2010 (``CVAA'').\1\ The CVAA gives the Commission 
authority, subject to certain limitations, to issue additional 
regulations, if the benefits of doing so outweigh the costs.\2\ As 
discussed in greater detail below, we tentatively conclude that the 
substantial benefits for individuals who are blind or visually impaired 
outweigh the likely minimal costs of the proposals we make in this 
NPRM.
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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, 11849, para. 3 (2011) (``2011 Order'').
    \2\ Public Law 111-260, 124 Stat. 2751, sec. 202 (2010). See 47 
U.S.C. 613(f)(4).
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    2. Specifically, we propose the following revisions to our video 
description rules:
     An increase in the amount of described programming on each 
included network (a network carried on a programming stream or channel 
on which a broadcaster or MVPD is required to provide video 
description) carried by a covered broadcast station or multichannel 
video programming distributor (``MVPD''), from 50 hours per calendar 
quarter to 87.5;
     An increase in the number of included networks carried by 
covered distributors, from four broadcast and five nonbroadcast 
networks to five broadcast and ten nonbroadcast networks;
     Adoption of a no-backsliding rule, which would ensure that 
once a network is designated an ``included network'' required to 
provide description, it would remain an ``included network'' even if it 
falls out of the top five or top ten ranking;
     Removal of the threshold requirement that nonbroadcast 
networks reach 50 percent of pay-TV (or MVPD) households in order to be 
subject to inclusion;
     A requirement that covered distributors provide dedicated 
customer service contacts who can answer questions about video 
description; and
     A requirement that petitions for exemptions from the video 
description requirements, together with comments on or objections to 
such petitions, be filed with the Commission electronically.

    We seek comment on our tentative conclusion regarding the costs and 
benefits of these proposed rules, on the proposed rules themselves, on 
appropriate timelines for the proposed rules, and on other possible 
changes to the rules to ensure that blind and visually impaired 
consumers have access to television programming.

II. Background

    3. The CVAA was enacted on October 8, 2010 for the purpose of 
ensuring that individuals with disabilities are able to fully utilize 
modern communications services and equipment and to better access video 
programming.\3\ As part of

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this legislation, Congress mandated that the Commission reinstate its 
previously adopted video description rules for television programming, 
required periodic reports on issues related to video description, and 
granted the Commission continuing authority to adopt additional 
regulations so long as the benefits of those new regulations outweigh 
their costs. Video description makes video programming accessible to 
individuals who are blind or visually impaired through ``[t]he 
insertion of audio narrated descriptions of a television program's key 
visual elements into natural pauses between the program's dialogue,'' 
and is typically provided through the use of a secondary audio stream, 
which allows the consumer to choose whether to hear the narration by 
switching from the main program audio.
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    \3\ Twenty-First Century Communications and Video Accessibility 
Act of 2010, Public Law 111-260, 124 Stat. 2751 (2010). See H.R. 
Rep. No. 111-563, 111th Cong., 2d Sess. at 19 (2010); S. Rep. No. 
111-386, 111th Cong., 2d Sess. at 1 (2010).
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    4. In August 2011, the Commission reinstated the video description 
regulations that previously had been adopted in 2000, requiring certain 
television broadcast stations and MVPDs to provide video description 
for a portion of the video programming that they offer to consumers on 
television.\4\ These covered broadcasters and MVPDs are required to 
provide video described programming only on certain networks, as 
defined by our rules. The Commission's rules play a key role in 
affording 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.'' \5\
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    \4\ 47 CFR 79.3. See generally 2011 Order. See also Video 
Description: Implementation of the Twenty-First Century 
Communications and Video Accessibility Act of 2010, Notice of 
Proposed Rulemaking, 26 FCC Rcd 2975 (2011) (``Reinstatement 
NPRM'').
    \5\ 2011 Order, 26 FCC Rcd at 11848, para. 1.
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    5. The Commission's video description rules require commercial 
television broadcast stations that are affiliated with ABC, CBS, Fox, 
or NBC and are located in the top 60 television markets to provide 50 
hours per calendar quarter of video described prime time or children's 
programming.\6\ 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.\7\ The nonbroadcast networks currently subject to these video 
description requirements are USA, TNT, TBS, History, and Disney 
Channel.\8\ Any programming initially aired with video description must 
include video description if it is re-aired on the same station or MVPD 
channel, unless the station or MVPD is using the technology for another 
program-related purpose.
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    \6\ Although the reinstated rules originally applied to the top 
25 television markets, as of July 1, 2015, the rules were extended 
to the top four broadcasters in the top 60 television markets. 47 
CFR 79.3(b)(2).
    \7\ For purposes of the rules, the top five national 
nonbroadcast networks are 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 the video description rules. 47 CFR 
79.3(b)(4).
    \8\ Video Description: Implementation of the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Order 
and Public Notice, 30 FCC Rcd 2071, 2071, para. 1 (2015) (``Update 
Order''). The list of the top five networks is updated every three 
years in response to any changes in ratings. 47 CFR 79.3(b)(4). The 
Update Order was the first of these periodic updates. Absent any 
revision to our rules, the next update will be in effect on July 1, 
2018 based on the ratings for the time period from October 2016 to 
September 2017, and will be announced earlier in 2018.
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    6. The rules also impose video description ``pass through'' 
obligations on all network-affiliated broadcast stations regardless of 
market size, and on all MVPDs regardless of the number of subscribers. 
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 \9\ and if that technology is not being used for 
another purpose related to the programming. 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. Broadcasters and MVPDs were 
required to be in compliance with the video description requirements 
beginning on July 1, 2012. The rules permit covered entities to seek a 
full or partial exemption based on economic burden; we have received no 
such exemption requests to date.
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    \9\ A station or MVPD system is technically capable of passing 
through video description if it has virtually all necessary 
equipment and infrastructure to do so, except for items that would 
be of minimal cost. 2011 Order, 26 FCC Rcd at 11861, para. 27. See 
also 2000 Order, 15 FCC Rcd at 15243, para. 30. We expect that all 
stations and MVPDs now have this capability, because of the 
requirement to provide audible emergency information to persons who 
are blind or visually impaired, which is also accomplished by means 
of a secondary audio stream.
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    7. Pursuant to the direction of the CVAA, not more than two years 
after the completion of the phase-in of the reinstated video 
description rules, the Commission submitted a report to Congress with 
findings relating to the costs and benefits of video description ``in 
television programming'' and ``in video programming distributed on the 
Internet.'' \10\ With regard to the video description rules that are 
currently in place, the report concluded that ``[t]he availability of 
video description on television programming has provided substantial 
benefits for individuals who are blind or visually impaired.'' Notably, 
the report found that video description greatly enhances the experience 
of viewing video programming because viewers who are blind or visually 
impaired no longer miss critical visual elements of television 
programming and, therefore, can fully understand and enjoy the program 
without having to rely on their sighted family members and friends to 
narrate these visual elements. Commenters expressed that this ability 
to watch video programming independently is an incredibly important 
benefit of video description. In addition, the report found that 
``industry appears to have largely complied with their responsibilities 
under the Commission's 2011 rules,'' and that the rules have been 
implemented without exceptional or unexpected costs. It also found, 
however, that ``consumers report the need for increased availability of 
and easier access to video-described programming.'' With respect to 
video programming distributed on the Internet, the report found that 
there would be substantial benefits to wider availability, but that 
there were potential technical challenges and insufficient information 
to analyze costs. In February of 2016, the Video Description Working 
Group of the Video Programming Subcommittee of the FCC's Disability 
Advisory Committee released a list of recommended issues for our 
consideration; those issues are addressed throughout the item.\11\
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    \10\ Video Description: Implementation of the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Report 
to Congress, 29 FCC Rcd 8011 (2014) (``2014 Report''). See 47 U.S.C. 
613(f)(3).
    \11\ Recommendation of the FCC Disability Advisory Committee, 
Video Description Working Group of the Video Programming 
Subcommittee, MB Docket 11-43 (Feb. 23, 2016) (``DAC Letter'').
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III. Authority

    8. Additional Regulations and Cost/Benefit Analysis. As discussed 
in more detail below, we tentatively conclude

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that the statutory requirement for the Commission to issue additional 
video description regulations is satisfied because ``the need for and 
benefits of'' providing video described programming as proposed here 
would be ``greater than the technical and economic costs'' if the rules 
are adopted. The statute grants the Commission ``continuing authority'' 
to regulate the provision of video described programming. Our 
continuing authority, however, is contingent on a finding that the 
benefits of additional video described programming outweigh the costs. 
Specifically, we may issue ``additional regulations'' if we determine 
that ``the need for and benefits of'' any video described programming 
required by the new rules ``are greater than the technical and economic 
costs.'' Furthermore, Congress directed us not to make such a 
determination until at least two years after release of the 2014 
Report; as a result, the earliest the Commission can issue additional 
regulations is June 30, 2016. We therefore will take full consideration 
of the Report's findings, as well as the comments in this proceeding, 
when determining the relative costs and benefits of adopting additional 
requirements.
    9. The 2014 Report found that ``[v]ideo description provides 
significant benefits to individuals who are blind or visually 
impaired'' by allowing ``them greater independence and the ability to 
follow and understand television programs.'' One commenter to the 
proceeding expressed that she enjoys video description immensely when 
it is available because ``[m]ost television shows are pointless to me 
unless I have description.'' Commenters who provided input for the 
Report described how video description allows them to directly follow 
the visual elements of television programming, including ``expressions, 
scene changes, visual jokes, and even things like visual clues in a 
murder mystery.'' For example, one commenter noted that without video 
description ``I'd just hear exciting music and have to guess what was 
happening, but now I can hear how the good guys caught the bad guys, or 
about the significant looks exchanged by two characters, or how the 
good guy escaped from some impossible situation. It's great!'' 
Commenters explained that this information is essential for providing 
access to the storytelling in what is a fundamentally visual medium, 
including for viewers who are not blind but who still can have 
difficulty with small visual details. Of arguably even more 
significance is the way this direct access to video programming 
provides greater independence to persons who are blind or visually 
impaired. Commenters made clear the immense value of not having to rely 
on spouses, family members, or friends to keep them ``up to speed'' on 
television programming. They talked about the value of being able to 
enjoy a program without waiting for someone else to want to watch the 
same thing, and ``interrupt their own viewing pleasure to try to tell 
[them] what was going on.'' As Mr. Rodgers' comment makes clear, the 
benefits of this independence accrue not just to viewers who are blind 
or visually impaired, but to the members of their households as well. 
We seek comment on whether there are any other studies or data points 
about the use and benefits of video description that should inform our 
deliberations.
    10. While the benefits of video description are extensive, video 
description itself remains in relatively limited supply, and can be 
difficult to access even where it exists. The 2014 Report noted that 
consumers ``[o]verwhelmingly . . . desire an increased amount of video 
description in television programming''; have ``concerns regarding the 
availability of information about which television programs are video-
described''; and ``express frustration with the quality of customer 
support service for video description.''
    11. The 2014 Report also found that there were ``no significant 
issues with regard to the technical or creative aspects'' of providing 
video description, and that

[t]he costs of video description are consistent with the 
expectations of industry at the time of rule adoption, and covered 
entities do not indicate that the costs of video description have 
impeded their ability to comply with the video description rules.

At the time of the 2014 Report, these costs included the ``start-up'' 
costs of developing the technical capability to provide video 
description, but, as explained in the Report, every distributor should 
now have that technical capacity.\12\ The costs also include the actual 
description of video programming. According to the National Association 
of Broadcasters (``NAB''), the one-time cost to have an hour of 
programming video described can range from $2,500 to $4,100. The 2014 
Report also observed that there had been no petitions for exemption 
based on economic burden, and that has continued to be the case even 
after the requirements were extended to broadcasters in smaller 
television markets. Since the initial rules were adopted, some 
distributors have provided video description in live and other marquee 
events.\13\ In the 2014 Report, industry commenters noted that some 
included networks provide more hours than are required, and anticipate 
that the amount of described programming by some networks would grow 
even in the absence of additional regulation.
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    \12\ As of May 26, 2015, covered broadcasters and MVPDs are 
required to have the necessary equipment and infrastructure to 
deliver a secondary audio stream in order to provide timely, audible 
emergency information to consumers who are blind or visually 
impaired, which is required by our rules without exception for 
technical capability. Since video description is also provided via 
the secondary audio stream, compliance with the emergency 
information requirement will give covered broadcasters and MVPDs the 
technical capability to comply with the video description 
requirements. 47 CFR 79.2(b)(2)(ii) (implementing 47 U.S.C. 613(g)). 
See also 2014 Report, 29 FCC Rcd at 8028-29, para. 37.
    \13\ For example, people who are blind or visually impaired were 
able to join ``millions of Americans enjoying [the December 3, 2015] 
live broadcast of The Wiz on NBC, thanks to video description of the 
production.'' Alix Hackett, Perkins Students Enjoy Accessible 
Broadcast of `The Wiz Live!', Dec. 4, 2015, http://www.perkins.org/stories/news/perkins-students-enjoy-accessible-broadcast-of-the-wiz-live. Carl Augusto, CEO of the American Foundation for the Blind, 
called the live description of The Wiz a ``godsend to people with 
vision loss.'' Comcast, NBC Add Video Descriptions to `The Wiz 
Live!', Multichannel News, Dec. 2, 2015, http://www.multichannel.com/news/content/comcast-nbc-add-video-descriptions-wiz-live/395671 (``This nationally described television 
broadcast will not only be a godsend to people with vision loss, but 
also to those who describe action to people with vision loss, and 
the general public, who will learn about the importance of audio 
description.''). CBS broadcast a two-hour special called ``Stevie 
Wonder: Songs in the Key of Life--An All-Star Grammy Salute'' with 
video description. See CBS' Stevie Wonder Special to Air with Video 
Description for Visually Impaired, Feb. 11, 2015, http://www.broadwayworld.com/bwwtv/article/CBS-Stevie-Wonder-Special-to-Air-with-Video-Description-for-Visually-Impaired-20150211.
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    12. When the Commission reinstated the video description rules in 
2011, it anticipated that the reinstated rules would ``enabl[e] 
millions more Americans to enjoy the benefits of television service and 
participate more fully in the cultural and civic life of the nation,'' 
and considered it ``unlikely that the modest requirement of 50 hours 
per quarter will be economically burdensome.'' Our experience to date 
has confirmed the soundness of those predictions. As discussed below, 
we are proposing to increase the amount of described programming and 
make it more accessible. Given the extensive benefits to consumers of 
the existing requirements, we believe that they will benefit further 
from the proposed new requirements. We also have no evidence that the 
total cost of the additional description requirements or our other 
proposals will impose substantial

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economic burdens. Given the information currently in the record in this 
proceeding, we tentatively conclude that ``the need for and benefits 
of'' the increased availability and accessibility of video described 
programming would be ``greater than the technical and economic costs'' 
if the rules we propose are adopted. We seek comment on this tentative 
conclusion and the analysis set forth above. To the extent possible, 
commenters should provide specific data and information, such as actual 
or estimated dollar figures for each specific cost or benefit 
addressed, including a description of how the data or information was 
calculated or obtained, and any supporting documentation or other 
evidentiary support.
    13. Limitation. If the Commission decides to issue additional 
regulations, the CVAA places a restriction on any increase in the 
number of hours required to be video described. Paragraph (4)(B) of the 
CVAA, entitled ``Limitation,'' reads:

    If the Commission makes the determination under subparagraph (A) 
and issues additional regulations, the Commission may not increase, 
in total, the hour requirement for additional described programming 
by more than 75 percent of the requirement in the regulations 
reinstated under paragraph (1).

    The requirement in the reinstated regulations is the same for all 
included networks--50 hours of video description, per calendar 
quarter.\14\ 75 percent of those 50 hours is 37.5 hours. We therefore 
read this provision to grant the Commission continuing authority to 
increase the per-network requirement by 37.5 hours (i.e., up to 87.5 
hours per quarter), but no more than this amount.
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    \14\ The rules as reinstated require distributors--broadcast 
stations and covered MVPDs--to provide video description. As a 
practical matter, however, the included networks themselves, rather 
than the broadcast stations and MVPDs, generally bear the efforts of 
preparing and providing video description, which the distributors 
pass through. 2011 Order, 26 FCC Rcd at 11851-52, para. 8.
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    14. We find unpersuasive an alternative reading that suggests this 
provision caps the number of hours of video description a distributor 
must provide across all covered networks it carries. First, the CVAA's 
``Limitation'' provision says nothing about any increase in the hour 
requirement being constrained by the number of included networks. The 
CVAA and reinstated rules imposed the ``hour requirement'' on MVPDs on 
a per-channel basis, and on broadcasters on a per-programming stream 
basis. Thus, we believe that the continuing authority limitation is 
best interpreted as applying on a per-channel and per-programming 
stream basis; the alternative reading would import an aggregate 
calculation that is simply foreign to the statute and regulations. 
Second, the Commission cannot control the aggregate number of hours of 
described programming carried by a given distributor, because that 
depends on the networks they choose to carry. For example, one MVPD 
might choose to carry a large number of covered networks, while another 
might carry few of them, making an aggregate limitation apply 
differently to different MVPDs. For this reason, we believe an approach 
that focuses on the hours required for individual included networks, 
rather than on a theoretical aggregate number of hours that a 
distributor may or may not carry, better effectuates Congress's goals. 
We read the phrase ``in total'' in the statute to mean that if the 
Commission increases the required hours per-network of video-described 
programming in increments, the total increase cannot exceed 75 percent. 
Finally, we think that if Congress intended to restrict the Commission 
from increasing the number of included entities, it would have done so 
explicitly, just as it did by specifying the maximum number of covered 
DMAs that the rule could be revised to reach over time. We seek comment 
on our analysis of the statute's hourly limitation.
    15. Additional Designated Market Areas. In addition, the CVAA lays 
out a clear timeline for phasing in the video description regulations 
in designated market areas (``DMAs'') beyond the 25 included in the 
initial reinstated rules. A DMA is a Nielsen-defined television market 
consisting of a unique group of counties. The United States is divided 
into 210 DMA markets. Nielsen identifies television markets by placing 
each U.S. county (except for certain counties in Alaska) in a market 
based on measured viewing patterns and by MVPD distribution. The 
expansion to the top 60 DMAs occurred in 2015, pursuant to the existing 
rules. We may not expand beyond these 60 television markets, however, 
until 2020 at the earliest, and then only after completion of an 
additional study and report to Congress. The explicit timeline 
established by the CVAA does not contemplate any alternative approach 
to expanding the number of covered DMAs. As a result, it limits the 
Commission's authority to issue video description rules, at this time, 
to the top 60 television markets currently covered. We seek comment on 
this understanding of the scope of our authority.
    16. Television Programming. Finally, we limit our proposals to 
programming ``transmitted for display on television.'' The 2014 Report 
did consider the issues, costs, and benefits of ``[v]ideo description 
in video programming distributed on the Internet,'' per the directive 
of the CVAA. The report discussed a range of comments supportive and 
skeptical of our authority to impose video description requirements on 
programming distributed on the Internet. We do not propose taking any 
action at this time with regard to video description on Internet 
programming.

IV. Increased Availability of Video Described Programming

    17. We propose to increase the quarterly requirement for video 
described programming to 87.5 hours and to require six additional 
networks to provide such programing. The existing requirements have 
proven to be highly beneficial to persons who are blind or visually 
impaired, and we believe that these proposals will yield similar 
benefits. At the same time, we do not anticipate that the marginal cost 
of additional described programming would be higher than it is under 
the current rules or that the total cost of the requirements would be 
economically burdensome. As discussed above, in the 2014 Report we 
noted that the one-time cost to have an hour of programming video 
described can range from $2,500 to $4,100. This would constitute 
roughly 0.08-0.20 percent of the budget of an episode of an hour-long 
television drama, which regularly costs between $2.0 and $3.0 
million.\15\ We seek comment on whether there will be any other costs 
associated with the proposed increase. Accordingly, as noted above, we 
tentatively conclude that the benefits of our proposal will outweigh 
the costs, and we seek input on this tentative conclusion.
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    \15\ See Bill Carter, Cable TV, the Home of High Drama, N.Y. 
Times, Apr. 5, 2010, at B1.
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A. Hours per Included Network

    18. As discussed above, the CVAA gives us authority to increase the 
number of hours of described programming required to be aired on each 
included broadcast and nonbroadcast network carried by an entity 
subject to the rules, from 50 per quarter to no more than 87.5. Given 
the extensive benefits and reasonable costs of video described 
programming, we propose to revise our rules to require the full 87.5 
hours per quarter, per included network. Consumers have supported an 
increase in available video described programming. Although we propose 
to increase the total number of hours to the

[[Page 33646]]

maximum extent permissible under the CVAA, the total amount of hours 
required per covered network will remain relatively small (i.e., 87.5 
hours per quarter amounts to approximately 6 hours and 45 minutes per 
week in a 13 week calendar quarter). As discussed above in paragraph 
11, we have no evidence of compliance difficulties for covered 
distributors or the currently-included networks, and we do not believe 
any would arise if a limited amount of additional programming were 
required. Comments filed in the 2014 Report proceeding indicate that at 
least some networks are already offering as much described programming 
as would be required under the proposed revision to the rules. As 
discussed above, we anticipate that ``the need for and benefits of'' 
the increased availability of video described programming would be 
``greater than the technical and economic costs'' of providing this 
additional video described programming. We seek comment on this 
proposal.
    19. Commenters in this docket previously have expressed concern 
about having sufficient eligible prime time and children's programming 
to meet the requirement. In the 2011 Order, the Commission ``note[d] 
and acknowledge[d] 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.'' However, the Commission 
``anticipate[d] that these instances [would] be exceedingly rare'' 
because included networks ``air many, many hours of prime-time and 
children's programming each quarter.'' The Commission suggested that, 
if such a situation arose, a programming distributor or provider could 
seek a waiver for the relevant quarter under the Commission's general 
waiver authority. No such waivers have been requested under the 
existing rules. However, given the proposed increase in described 
hours, we seek comment on whether we should make any other changes to 
the rules to provide more flexibility. For instance, should we allow 
some amount of non-prime time, non-children's described programming to 
count toward the increased requirement? If we do, should we continue to 
require that at least 50 hours per quarter be provided in either prime 
time or children's programming? Should we require that any described 
programming that is counted toward the requirement run between 6 a.m. 
and Midnight local time? We seek comment on these questions.

B. Covered Networks

    20. We propose to extend the requirement to provide video 
description to additional networks. It currently applies when a covered 
broadcast station carries one of four named commercial broadcast 
networks (ABC, CBS, Fox, and NBC) or when a covered MVPD carries one of 
five popular nonbroadcast networks. We propose to increase these to 
five broadcast, and ten nonbroadcast, networks. The benefits of video 
described programming are abundant, and experience to date has borne 
out predictions regarding the reasonable costs of adding description to 
programming.
    21. Given the obvious parallels to closed captioning, which is 
required on virtually all television programming, it is not surprising 
that commenters have called for expanding the requirement for video 
description, with some going so far as to suggest that we echo the 
closed captioning requirement to extend the rules to virtually all 
programming. In the CVAA, however, Congress directed us to expand the 
video description rules in a measured fashion. Any proposed expansion 
must satisfy the statutory test that asks whether ``the need for and 
benefits of'' the additional video described programming would be 
``greater than the technical and economic costs'' of providing it. In 
recognition of this directive for a measured approach, we propose a 
limited increase in the number of included broadcast and nonbroadcast 
networks on which covered broadcasters and MVPDs must provide video 
description. We believe that this approach will have a significant 
benefit to viewers who are blind or visually impaired, given the 
popularity of the additional programming networks. We seek comment 
below on whether we should add more or fewer networks at this time, and 
what the grounds would be for choosing any specific number of networks.
    22. First, we propose to revise our rules to require any commercial 
television broadcast station that (i) is affiliated with ABC, CBS, Fox, 
and NBC or with any other of the top five commercial television 
broadcast networks, and (ii) is located in the top 60 television 
markets, to provide 87.5 hours per calendar quarter of video described 
prime time or children's programming on each programming stream on 
which they carry these networks. The original video description rules 
that Congress directed the Commission to reinstate specifically 
identified ABC, CBS, Fox, and NBC as subject to the description 
requirement. We propose to revise our rules to include those four 
networks, as well as any others in the top five nationally, determined 
triennially.\16\ Barring any significant changes to the marketplace, we 
anticipate this rule change would result in one additional broadcast 
network being aired with 87.5 hours per quarter (or approximately 6 
hours and 45 minutes per week in a 13 week calendar quarter) of video 
described programming.
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    \16\ The ``top five'' commercial broadcast networks will be 
determined in the same fashion as the nonbroadcast networks under 
the existing and proposed rules. Thus, every three years they will 
be the top five as determined by an average of the national audience 
share during prime time of broadcast networks, as calculated by 
Nielsen for the preceding ratings year, and that has 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. As 
discussed above, the ``top five'' will include ABC, CBS, Fox, and 
NBC, regardless of their relative rankings. In the event that one or 
more of those named networks suffers a sustained drop below fifth 
place in relative broadcast network rankings, the ``top five'' 
broadcast networks for the purposes of these rules could consist of 
more than five networks.
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    23. In addition, we propose to revise our rules to require any MVPD 
system that serves 50,000 or more subscribers to provide 87.5 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 ten 
national nonbroadcast networks.\17\ In adopting the current video 
description rules, the Commission recognized that the popularity of 
programming networks shifts over time, and therefore adopted a 
requirement that we review network ratings every three years to 
determine the top five. We propose to continue the existing review 
process, but to expand the number of included networks from five to 
ten. Because the number of nonbroadcast networks is much larger than 
the number of broadcast networks,\18\ we

[[Page 33647]]

believe it is appropriate to include a larger increase in covered 
nonbroadcast networks. If adopted, once the new rules are in effect, a 
covered MVPD would be required to provide 87.5 hours per quarter of 
video described programming on each of the top ten nonbroadcast 
networks that it carries. Below, we discuss the timing for 
implementation of these proposed revisions.
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    \17\ As under the current rules, these ``top ten'' would be 
determined by an average of the national audience share during prime 
time of nonbroadcast networks, as calculated by Nielsen for the 
preceding ratings year, and that has 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.
    \18\ MVPD subscribers to the most popular tiers of service have 
access to more than six times as many nonbroadcast networks as 
broadcast networks. Implementation of Section 3 of the Cable 
Television Consumer Protection and Competition Act of 1992; 
Statistical Report on Average Rates for Basic Service, Cable 
Programming Service, and Equipment, MM Docket No. 92-266, Report on 
Cable Industry Prices, 29 FCC Rcd 14895, 14905-06, Tbls. 4, 5 (MB 
2014) (showing an average of 250.8 total available channels on the 
most subscribed tiers of service, of which an average of 31.6 are 
local broadcast channels; these include standard definition and high 
definition streams as well as secondary programming streams). But 
see infra note 21 (noting the ``average'' subscriber as determined 
by Nielsen actually receives around 180 channels; assuming the same 
number of broadcast channels in those average lineups, this would 
reflect roughly five times as many nonbroadcast as broadcast 
networks).
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    24. With this proposal, we seek to ensure that consumers are able 
to realize the benefits of video description, keeping in mind our 
Congressional directive to proceed judiciously with any expansion of 
the requirements. Should we include more, or fewer, additional networks 
at this time? Commenters should provide justifications for any specific 
change in the number of included networks. Would an alternative 
approach to determining included networks, such as a rule that included 
networks based on a minimum average viewership level, or gross network 
revenues, be preferable to one based on relative prime time broadcast 
rankings? We seek comment on the proposed approach and any 
alternatives.

C. Other Changes

    25. No Backsliding. We propose to adopt a ``no-backsliding'' 
requirement. Such a rule would state that once a network is designated 
an ``included network'' required to provide description, it would 
remain an ``included network'' even if it falls out of the top five or 
top ten ranking. Under the current rules, the covered nonbroadcast 
networks are those in the top five, recalculated triennially, and when 
a network drops from the top five during the applicable ratings period, 
as Nickelodeon did between 2012 and 2015,\19\ MVPDs are no longer 
required to provide video description on that network once the 
triennial period has ended.\20\ In 2011, the Commission declined to 
adopt a ``no backsliding'' rule, noting that it did not have authority 
at that time to go beyond the scope of the reinstated rules except to 
the extent provided by the CVAA. The Commission also noted, however, 
that it would have authority to adopt such a rule ``after the passage 
of time and a review of [the rules'] impact.''
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    \19\ Although Nickelodeon is no longer in the top five 
nonbroadcast networks currently subject to the video description 
rules, it appears that Nickelodeon has continued to provide video 
description voluntarily on some of its children's programming. See 
American Council of the Blind, The Audio Description Project, Video 
Described Shows by Network (updated 3/6/16), available at http://www.acb.org/adp/tv.html#shows.
    \20\ However, MVPDs must always pass through description on any 
channel if the network or broadcaster provides description, if they 
are not using that capacity for another program-related purpose. 47 
CFR 79.3(b)(5).
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    26. Given the passage of time and the continuing authority granted 
to the Commission in the CVAA to adopt additional video description 
regulations, we believe that we now have authority to adopt a ``no-
backsliding'' rule. In addition, we believe that there are substantial 
policy benefits to ensuring that video described programming continues 
to be offered on networks currently subject to the rules. Once a 
broadcaster or MVPD begins to carry video described programming on a 
given network, it creates an expectation in consumers that they will be 
able to rely on that channel for described programming in the future. A 
``no-backsliding'' rule would ensure that such consumer expectations 
are fulfilled, and would also result in an increased amount of video 
described programming for individuals who are blind or visually 
impaired, as the popularity of networks shifts over time and new 
networks become subject to the rule. Further, we believe that the 
burden of continued compliance by formerly covered networks would be 
limited to the actual costs of describing specific programs, which as 
discussed above are low relative to the overall costs of television 
production. Since any included network would be broadcast or carried 
with video description for at least three years, the processes for 
including video description in that networks' programming will have 
been well established by the next time the Commission reviews rankings.
    27. For these reasons, along with the extensive benefits and 
reasonable costs of video describing programming discussed above, we 
propose to adopt a ``no-backsliding'' requirement. We note that 
networks are not directly covered by the rules. As a practical matter, 
however, the included networks themselves, rather than the broadcast 
stations and MVPDs, generally prepare and provide video description, 
which the distributors pass through. Thus, under the current rules, a 
network that finds inclusion economically burdensome may petition, as a 
video programming provider, for exemption from the effect of the rules. 
We seek comment on whether there should also be an express exemption 
from the proposed no-backsliding rule for networks that drop 
significantly in relative rankings or overall viewership. We seek 
comment on this proposal.
    28. 50 Percent Threshold Elimination. The rules, as reinstated, 
exempt nonbroadcast networks from being included networks if they are 
not available in 50 percent or more of MVPD homes. Thus, for example, 
even if a network were one of the most popular in prime time, MVPDs 
would not be required to provide video description of any of that 
network's programming if it reaches only 40 percent of MVPD households. 
This exemption was initially adopted in 2001 at the request of HBO, and 
effectively exempts premium networks from the video description 
requirements.
    29. We propose to eliminate the exemption for nonbroadcast networks 
that do not reach 50 percent or more of MVPD households. Given the 
increasing number of networks and fragmentation of the viewing 
public,\21\ it is no longer clear that carriage into a given number of 
homes, even 50 percent, is sufficiently more important than prime time 
ratings for the purpose of establishing a threshold for determining 
which nonbroadcast networks should be covered by the video description 
requirements. Some premium networks offer very popular programming, 
including some of the ``must-watch'' shows that are very highly rated 
and have made an impact on popular culture. The proposed rule change 
would ensure that if any premium networks are among the ten most 
popular they will be covered. We seek comment on this proposal.
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    \21\ The number of cable channels received by the average 
subscriber has tripled since the original video description rules 
were adopted, from around 60 to more than 180. Sam Ro, Americans Are 
Paying For a Lot of Channels They Don't Watch, Business Insider, 
Oct. 25, 2015, http://www.businessinsider.com/number-of-cable-channels-received-vs-viewed-2015-10. See also supra note 18 (noting 
that as many as 251 channels are widely available, even if not all 
are received by Nielsen's ``average'' 180 channel subscriber).
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D. Timing and Coverage

    30. We seek comment on the appropriate effective date of the 87.5 
hours/quarter requirement and the other proposed rules changes. When we 
reinstated the rules in 2011, the time from their release to the full 
compliance date was approximately ten months. If we adopt these 
proposals, should we allow a similar amount of time for distributors to 
come into compliance? Under the current rules, July 1, 2018 is the date 
on which the new list of included nonbroadcast networks will go into 
effect, after having been determined by the ratings for the time period 
October 2016 to September 2017. If the

[[Page 33648]]

proposed rules go into effect earlier than July 1, 2018, what ratings 
period should be used to determine the included networks? Should the 
effective date of these rules establish the beginning of a new three-
year network-list update cycle, or should the existing cycle be 
retained even if the implementation of these rules requires a mid-cycle 
addition of some networks? In the alternative, what are the benefits 
and costs of delaying the effective date of the proposed revisions to 
the rules until July 1, 2018, and expanding the number of broadcast and 
nonbroadcast networks that will be determined in reference to the 2016-
2017 ratings year? We propose that, as in 2015, in each cycle the Media 
Bureau will issue a Public Notice and undertake a process to formally 
establish the updated list of included networks. We seek comment on 
these questions and this proposal.

V. Improving Consumer Access to Video Description

    31. The 2014 Report found significant consumer dissatisfaction with 
the availability of information about which programming is video 
described. This was contrary to the Commission's expectation that even 
without any requirements, such information would be made available ``in 
an accessible manner, including on [distributor] Web sites and to 
companies that publish television listings information.'' The 2014 
Report also found that consumers are frustrated with MVPD customer 
service when they seek information about accessing video description. 
In both cases, we urged industry to take voluntary action to resolve 
these concerns. Therefore, we seek comment on the state of industry 
efforts, and propose requiring covered distributors to provide 
dedicated customer service contacts to assist viewers in accessing 
their video described programming. We tentatively conclude that the 
benefits of this proposal would exceed its costs, but seek comment on 
that tentative conclusion. We also seek comment on a requirement that 
covered distributors notify publishers of programming guides when a 
program will be video described.
    32. Programming Guide Information. Although fragmented lists of 
some video described programming are available online,\22\ some 
consumers report difficulty in finding information in programming 
guides, which for many remain the primary source of information about 
their viewing options.\23\ Industry commenters state that at least some 
information is provided to guide services by some included networks, 
but even they acknowledge that the information does not always actually 
appear in the guides.\24\ We seek comment on whether this situation has 
improved. Do networks provide information about video description to 
program guide services, and if not, why not? If they do provide such 
information, do program guide services choose to include that 
information in the guides, and if not, why not? Would a requirement 
that distributors consistently provide notice when a program is going 
to be described make guide services more likely to include that 
information in guides? In the children's programming context, our rules 
require commercial television broadcast licensees to provide to 
publishers of program guides information identifying programming 
specifically designed to educate and inform children. Has this 
requirement been effective in informing consumers about the 
availability of educational and informational children's programming, 
and if not, why not? Instead of, or in addition to the programming 
guide information, should distributors create an easily accessible list 
of described video programming? What are the benefits and drawbacks of 
requiring a centralized listing of all described video programming? 
Would the creation of such a listing assist in ensuring the accuracy 
and comprehensiveness of information available to the public? Would it 
be useful toward promoting best practices for identifying video 
described programming? We seek comment on the costs and benefits of a 
requirement that distributors provide information identifying video 
described programming to program guides, and whether we should adopt 
such a rule, or any other rule to improve consumer access to 
information about the availability of video described programming.
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    \22\ Some covered networks provide information on their Web 
sites that identifies programming with video description, see 2014 
Report, 29 FCC Rcd at 8023, para. 26, and where possible, the 
Commission has provided links to these network Web sites at https://www.fcc.gov/encyclopedia/video-description. However, consumers 
assert that information about video described programming available 
online is not always comprehensive or kept up to date. See 2014 
Report, 29 FCC Rcd at 8023-24, para. 27.
    \23\ Concerns about not being able to easily locate information 
on video described programs also were raised by participants at the 
Commission's Video Description Roundtable Event held on June 22, 
2015.
    \24\ 2014 Report, 29 FCC Rcd at 8023, para. 26 (Although NAB 
claims that broadcast networks provide video description information 
to program guides, they acknowledge that ``this information appears 
not to be published regularly.'') (citing NAB Report Comments at 3-
4).
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    33. Dedicated Customer Service Contacts. A number of consumers have 
expressed significant frustration with inadequate MVPD customer support 
for video description services. The 2014 Report details instances where 
consumers would call their provider for help with video description 
and, after spending ``many hours on the phone with ill-informed 
customer services representatives'' ultimately discover that ``not one 
person knew what [the consumer] was talking about.'' They would be 
promised return or follow-up calls that never came, or directed to 
email addresses that proved unhelpful. In some cases it appears that 
customer support has been so poor that it has essentially denied some 
consumers the opportunity to access described programming at all. 
Recognizing this, the 2014 Report encouraged covered distributors to 
provide proper customer service training and a dedicated point of 
contact so that consumers could get video-description-specific customer 
service from knowledgeable representatives. We seek comment on whether 
customer service has improved since adoption of the 2014 Report. In 
light of previous shortcomings in customer support, we also propose to 
require that covered entities provide contact information for a person 
or office with primary responsibility for accessibility compliance 
issues to consumers who have questions about the availability of and 
access to video description services, or who request technical support. 
The point of contact must be able to address consumers' concerns about 
video description issues, and would be required to respond to consumer 
inquiries within one business day. Alternatively, we seek comment on 
whether we should adopt rules that parallel 47 CFR 79.1(i)(1-3). The 
rules at Section 79.1(i)(1-3) are similar to our proposal in that they 
require distributors of programming with closed captioning to provide 
contact information to consumers and to the Commission, and to assist 
in resolving consumers' technical problems. They also, however, 
establish detailed parameters for compliance with those requirements. 
What would be the costs and benefits of either approach? We seek 
comment on how, specifically, contact information should be provided to 
consumers under either approach.
    34. Timing. We also seek comment on the timing for implementing the 
rule changes discussed in this Section. We believe that implementation 
of these consumer access and customer service rules could be 
accomplished quickly,

[[Page 33649]]

but we seek input on a reasonable timeframe.
    35. Are there other changes to the rules that we should adopt to 
improve consumer access without imposing excessive burdens on regulated 
parties? We seek comment on any such changes.

VI. Other Matters

    36. Electronic Filing. We propose that petitions for exemption from 
the video description rules, and filings related to those requests, be 
filed exclusively electronically. In the 2011 Electronic Filing Report 
and Order,\25\ the Commission amended certain of its procedural rules 
to increase the efficiency of Commission decision-making and modernize 
Commission procedures in the digital age, including adoption of a 
requirement to use electronic filing whenever technically feasible. In 
the closed captioning context, for example, requests for exemption are 
filed and available to the public electronically. Should we amend our 
rules to require the electronic filing of individual video description 
exemption requests in machine readable format, and further revise our 
rules to require that comments on and oppositions to such petitions 
also be filed electronically in machine readable format? We seek 
comment on the benefits of this approach, whether there would be 
associated costs, and the appropriate timing for implementing this rule 
change.
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    \25\ Amendment of Certain of the Commission's Part 1 Rules of 
Practice and Procedure and Part 0 Rules of Commission Organization, 
GC Docket No. 10-44, Report and Order, 26 FCC Rcd 1594, 1599-602, 
paras. 14-21 (2011).
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    37. Described Video-on-Demand. We seek comment on a potential 
requirement that Video-On-Demand (``VOD'') programming include video 
description if it has been previously carried by that MVPD with video 
description. If a program is carried on a linear programming stream 
with description and also made available on the MVPD's VOD service, it 
is not clear whether MVPDs are making the video description available 
to the VOD viewer. We seek comment on whether this comports with our 
existing rules.\26\ In 2014, we confirmed that closed captioning must 
be preserved in VOD programming.\27\ Should we have a similarly 
explicit requirement in the video description context? What are the 
technical and financial costs of such a requirement for MVPDs and other 
distributors?
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    \26\ DVR recordings of described programming, for example, must 
preserve the secondary audio stream that contains video description 
and make it available when the recording is later replayed.
    \27\ Closed Captioning of Video Programming; Telecommunications 
for the Deaf and Hard of Hearing, Inc., Petition for Rulemaking, CG 
Docket No. 05-231, Report and Order, Declaratory Ruling, and Further 
Notice of Proposed Rulemaking, 29 FCC Rcd 2221, 2290-91, paras. 118-
19 (2014) (``[W]e confirm that all `on demand' programming not 
subject to an exemption must comply with the relevant captioning 
requirements for new and pre-rule programming.'').
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    38. Secondary Audio. We seek comment on the state of the 
marketplace with regard to the use of multiple audio streams. The 
Commission previously has noted that ``digital transmission enables 
broadcasters and MVPDs to provide numerous audio channels for any given 
video stream,'' but that in practice many MVPDs were only capable of 
providing two audio streams, and many consumers were only capable of 
receiving two audio streams.\28\ The Commission found video description 
was thus likely to be provided on the same secondary audio stream as 
other alternate audio uses, like foreign language audio tracks, but 
expected ``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.'' Has the marketplace moved toward a 
realization of this expectation? Should we revise our rules at this 
time to reflect any such changes, and if so, how?
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    \28\ 2011 Order, 26 FCC Rcd at 11862-63, paras. 28-31. See also 
Emergency Information/Video Description Order, 28 FCC Rcd at 4882-
83, para. 14 (``At this time, we do not require covered entities to 
provide an audio stream that is dedicated solely to aurally 
accessible emergency information. MVPD commenters argue that 
mandating more than two audio streams--one for main audio, one for 
video description, and one for emergency information--would be 
costly and, in some cases, would pose technical difficulties.'') 
(footnote omitted).
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    39. Terminology. During the Commission's Video Description 
Roundtable, consumers observed that many other federal agencies use the 
term ``audio described'' to reference video programming containing 
audio description, rather than the term ``video described.'' We note 
that the CVAA uses the term ``video description,'' but we recognize 
that it may be preferable to use ``audio description'' if this is the 
term most common to a majority of federal agencies and more widely used 
by consumers. We seek comment on whether we should revise our rules 
and/or change our usage to reflect this different terminology.
    40. Statutory Authority. As discussed above, we believe the CVAA 
grants the Commission ``continuing authority'' to regulate the 
provision of video described programming. We seek comment on our 
statutory authority to adopt the changes discussed above, both the 
proposed rules and the others on which we seek comment. Are our 
proposals above consistent with the CVAA?
    41. Other Comments Requested. Finally, we invite comment on any 
other changes the Commission should consider making to the video 
description rules. For any other changes proposed, comments should 
include potential costs and benefits of such changes.

VII. Procedural Matters

A. Initial Regulatory Flexibility Act

    42. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''),\29\ the Commission has prepared this present Initial 
Regulatory Flexibility Analysis (``IRFA'') concerning the possible 
economic impact on small entities by the policies and rules proposed in 
the Notice. Written public comments are requested on this IRFA. 
Comments must be identified as responses to the IRFA and must be filed 
by the deadlines for comments as specified in the Notice. The 
Commission will send a copy of the Notice, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration.\30\ In 
addition, the Notice and this IRFA (or summaries thereof) will be 
published in the Federal Register.
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    \29\ 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, Public Law 104-121, Title II, 110 Stat. 857 (1996).
    \30\ See 5 U.S.C. 603(a).
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1. Need for, and Objectives of, the Proposed Rule Changes
    1. In the Notice, the Commission seeks comment on a series of 
proposals to increase the amount of video described programming 
available to consumers, and to make it easier to access. The NPRM 
tentatively concludes that the statutory requirement for the Commission 
to issue additional video description regulations is satisfied because 
``the need for and benefits of'' providing video described programming 
as proposed here would be ``greater than the technical and economic 
costs'' if the rules are adopted. The proposed rules would require that 
each included network provide 75% more described programming, or 87.5 
hours per quarter, and would include six additional networks within the 
rules, while revising the way included networks are determined. It 
proposes to require covered parties to provide dedicated

[[Page 33650]]

consumer service contacts to deal with video description issues, and to 
file any exemption petitions electronically. It also seeks comment on a 
range of related issues.
2. Legal Basis
    2. The authority for the action proposed in this rulemaking is 
contained in the Twenty-First Century Communications and Video 
Accessibility Act of 2010, Pub. L. 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. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply
    3. 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. The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' small organization,'' and ``small government 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one which: (1) Is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA.
    4. Television Broadcasting. This economic census category 
``comprises establishments primarily engaged in broadcasting images 
together with sound. These establishments operate television 
broadcasting studios and facilities for the programming and 
transmission of programs to the public.'' The SBA has created the 
following small business size standard for Television Broadcasting 
firms: Those having $14 million or less in annual receipts. The 
Commission has estimated the number of licensed commercial television 
stations to be 1,390. In addition, according to Commission staff review 
of the BIA Advisory Services, LLC's Media Access Pro Television 
Database on March 28, 2012, about 950 of an estimated 1,300 commercial 
television stations (or approximately 73 percent) had revenues of $14 
million or less. We therefore estimate that the majority of commercial 
television broadcasters are small entities.
    5. We note, however, that in assessing whether a business concern 
qualifies as small under the above definition, business (control) 
affiliations 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. 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 does not 
exclude any television station from the definition of a small business 
on this basis and is therefore possibly over-inclusive to that extent.
    6. In addition, the Commission has estimated the number of licensed 
noncommercial educational (``NCE'') television stations to be 395. 
These stations are non-profit, and therefore considered to be small 
entities.
    7. There are also 2,344 LPTV stations, including Class A stations, 
and 3689 TV translator stations. Given the nature of these services, we 
will presume that all of these entities qualify as small entities under 
the above SBA small business size standard.
    8. Wired Telecommunications Carriers. The North American Industry 
Classification System (``NAICS'') defines ``Wired Telecommunications 
Carriers'' 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. Establishments in 
this industry use the wired telecommunications network facilities that 
they operate to provide a variety of services, such as wired telephony 
services, including VoIP services; wired (cable) audio and video 
programming distribution; and wired broadband Internet services. By 
exception, establishments providing satellite television distribution 
services using facilities and infrastructure that they operate are 
included in this industry.'' The SBA has developed a small business 
size standard for wireline firms for the broad economic census category 
of ``Wired Telecommunications Carriers.'' Under this category, a 
wireline business is small if it has 1,500 or fewer employees. Census 
data for 2007 shows that there were 3,188 firms that operated for the 
entire year. Of this total, 3,144 firms had fewer than 1,000 employees, 
and 44 firms had 1,000 or more employees. Therefore, under this size 
standard, we estimate that the majority of businesses can be considered 
small entities.
    9. Cable Television Distribution Services. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers, which category is defined above. The 
SBA has developed a small business size standard for this category, 
which is: All such businesses having 1,500 or fewer employees. Census 
data for 2007 shows that there were 3,188 firms that operated for the 
entire year. Of this total, 3,144 firms had fewer than 1,000 employees, 
and 44 firms had 1,000 or more employees. Therefore, under this size 
standard, we estimate that the majority of businesses can be considered 
small entities.
    10. Cable Companies and Systems. The Commission has 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. Industry data 
shows that there are currently 660 cable operators. Of this total, all 
but ten cable operators nationwide are small under this size standard. 
In addition, under the Commission's rate regulation rules, a ``small 
system'' is a cable system serving 15,000 or fewer subscribers. Current 
Commission records show 4,629 cable systems nationwide. Of this total, 
4,057 cable systems have less than 20,000 subscribers, and 572 systems 
have 20,000 or more subscribers, based on the same records. Thus, under 
this standard, we estimate that most cable systems are small entities.
    11. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, 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.'' There are approximately 54 million 
cable video subscribers in the United States today. Accordingly, an 
operator serving fewer than 540,000 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. Based on available data, we find that all but ten incumbent 
cable operators are small entities under this size standard. We note 
that the Commission neither requests nor collects information on

[[Page 33651]]

whether cable system operators are affiliated with entities whose gross 
annual revenues exceed $250 million. Although it seems certain that 
some of these cable system operators are affiliated with entities whose 
gross annual revenues exceed $250,000,000, we are unable at this time 
to estimate with greater precision the number of cable system operators 
that would qualify as small cable operators under the definition in the 
Communications Act.
    12. 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, which was developed for small wireline businesses. Under this 
category, the SBA deems a wireline business to be small if it has 1,500 
or fewer employees. Census data for 2007 shows that there were 3,188 
firms that operated for that entire year. Of this total, 2,940 firms 
had fewer than 100 employees, and 248 firms had 100 or more employees. 
Therefore, under this size standard, the majority of such businesses 
can be considered small entities. However, the data we have available 
as a basis for estimating the number of such small entities were 
gathered under a superseded SBA small business size standard formerly 
titled ``Cable and Other Program Distribution.'' As of 2002, the SBA 
defined a small Cable and Other Program Distribution provider as one 
with $12.5 million or less in annual receipts. Currently, only two 
entities provide DBS service, which requires a great investment of 
capital for operation: DIRECTV and DISH Network. Each currently offers 
subscription services. DIRECTV and DISH Network 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 under the superseded SBA size 
standard would have the financial wherewithal to become a DBS service 
provider.
4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements
    13. The Notice proposes the following new or revised reporting or 
recordkeeping requirements that would be applicable to small entities. 
First, it proposes that all covered broadcasters and MVPDs provide 
dedicated customer service contacts to answer video description 
questions. In particular, it would require covered entities to provide 
contact information for a person or office with primary responsibility 
for accessibility compliance issues to consumers who have questions 
about the availability of or access to video description services, or 
who request technical support. The Notice also proposes to require all 
covered broadcasters and MVPDs to file petitions for exemption 
electronically.
    14. With regard to other compliance requirements, the Notice 
proposes to revise the video description rules by requiring an increase 
in the amount of described programming on each included network carried 
by a covered broadcast station or MVPD, from 50 hours per calendar 
quarter to 87.5, as well as an increase in the number of included 
networks carried by covered distributors to five broadcast and ten 
nonbroadcast networks.
    15. Finally, the Notice seeks comment on requiring distributors to 
notify program guides about the presence of video description, and to 
include video description with Video-on-Demand programming when that 
programming has been previously provided with descriptions.
    16. While the economic impact of these proposed rules on small 
entities is not quantifiable at this time, they are not likely to be 
burdensome for small entities or to affect small entities 
disproportionately.
5. Steps Taken To Minimize Significant Impact on Small Entities and 
Significant Alternatives Considered
    17. 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.
    18. The Notice proposes rules intended to expand consumer access to 
video described programming. The existing requirement to provide video 
description applies to commercial television broadcast stations that 
are affiliated with ABC, CBS, Fox, or NBC and are located in the top 60 
television markets, as well as MVPD systems that serve 50,000 or more 
subscribers. Thus, the proposed increase in the amount of video 
description required and expansion of the video description 
requirements to additional included networks will impose no direct 
burden on small broadcasters or small MVPDs. Although the rules 
currently impose ``pass through'' obligations on all network-affiliated 
broadcast stations regardless of market size and on all MVPDs 
regardless of the number of subscribers, most all stations and MVPDs, 
including small entities, now have this capability. As such, we 
anticipate that these proposals will have little to no impact on small 
entities.
    19. The proposed requirement to file exemption petitions 
electronically will not impose an additional burden on small entities, 
and may reduce the burden. The proposed requirement that covered 
broadcasters and MVPDs provide dedicated customer service contacts to 
answer video description questions may not require significant 
additional resources for small entities. Even if it requires additional 
resources, however, we believe it would provide benefits to consumers 
that outweigh any costs, and that those benefits would be undermined if 
the requirement were not universal. The item seeks comment on the 
timing for implementing the requirements. Finally, we invite comment on 
any other changes the Commission should consider making to the video 
description rules. For any other changes proposed, comments should 
include potential costs and benefits of such changes.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    20. None.

B. Paperwork Reduction Act

    21. This document contains proposed new information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collection 
requirements contained in this document, as required by the Paperwork 
Reduction Act of 1995. In addition, pursuant to the Small Business 
Paperwork Relief Act of 2002, we seek specific comment on how we might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.''

C. Ex Parte Rules

    22. This proceeding will be treated as a ``permit-but-disclose'' 
proceeding subject to the ``permit-but-disclose''

[[Page 33652]]

requirements under Section 1.1206(b) of the Commission's rules. Ex 
parte presentations are permissible if disclosed in accordance with 
Commission rules, except during the Sunshine Agenda period when 
presentations, ex parte or otherwise, are generally prohibited. Persons 
making oral ex parte presentations are reminded that a memorandum 
summarizing a presentation must contain a summary of the substance of 
the presentation and not merely a listing of the subjects discussed. 
More than a one- or two-sentence description of the views and arguments 
presented is generally required. Additional rules pertaining to oral 
and written presentations are set forth in Section 1.1206(b).

D. Filing Requirements

    23. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 
interested parties may file comments and reply comments on or before 
the dates indicated on the first page of this document. All comments 
are to reference MB Docket No. 11-43 and may be filed using: (1) the 
Commission's Electronic Comment Filing System (ECFS) or (2) by filing 
paper copies.
    [ssquf] Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
    [ssquf] 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.
    [ssquf] 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.
    [ssquf] 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.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street SW., Washington, DC 20554.
    24. 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 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    25. Availability of Documents. Comments and reply comments will be 
publically available online via ECFS. These documents will also be 
available for public inspection during regular business hours in the 
FCC Reference Information Center, which is located in Room CY-A257 at 
FCC Headquarters, 445 12th Street SW., Washington, DC 20554. The 
Reference Information Center is open to the public Monday through 
Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 
a.m.

VIII. Ordering Clauses

    26. Accordingly, 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 found in and 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, comment is hereby sought on 
the proposals described and rules set forth in this Notice of Proposed 
Rulemaking.
    27. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Notice of Proposed Rulemaking in MB Docket No. 11-43, 
including the Initial Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR 79

    Cable television operators, Communications equipment, Multichannel 
video programming distributors (MVPDs), Satellite television service 
providers.

Federal Communications Commission.
Gloria J. Miles,
Federal Register Liaison Officer, Office of the Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 79 as follows:

PART 79--ACCESSIBILITY OF VIDEO PROGRAMMING

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

    Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 
330, 544a, 613, 617.

0
2. Amend Sec.  79.3 by:
0
a. Adding paragraphs (a)(9) and (10), (b)(6) and (7) and,
0
b. Revising paragraphs (b) introductory text, (b)(1), (2) and (5), 
(c)(2), (3) and (4) introductory text.
    The additions and revisions read as follows:


Sec.  79.3  Video description of video programming.

    (a) * * *
    (9) Top commercial television broadcast networks. ABC, CBS, Fox, 
NBC, and any other commercial television broadcast network in the top 
five as determined by an average of the national audience share during 
prime time of broadcast networks and that has 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, based on the ratings for 
the time period October 2016-September 2017, and will update at three 
year intervals. The first update will be July 1, 2021, based on the 
ratings for the time period October 2019-September 2020; the second 
will be July 1, 2024, based on the ratings for the time period October 
2022-September 2023; and so on. Also, any commercial television 
broadcast network that the Commission identified as having met this 
definition as of 2018 or later, even if it is no longer in the top five 
based on subsequent ratings.
    (10) Top national nonbroadcast television networks. Any 
nonbroadcast television network in the top ten, as determined by an 
average of the national audience share during prime time of 
nonbroadcast networks that 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 ten networks are those determined 
by The Nielsen Company, based on the ratings for the time period 
October 2016-September 2017, and will update at three year intervals. 
The first update will be July 1, 2021, based on the ratings for the 
time period October 2019-September 2020; the second will be July 1, 
2024, based on the ratings for the time period October 2022-September 
2023; and so on. Also, any nonbroadcast television network that the 
Commission

[[Page 33653]]

identified as having met this definition as of 2018 or later, even if 
it is no longer in the top ten based on subsequent ratings.
    (b) The following video programming distributors must provide 
programming with video description and customer support as follows:
    (1) 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;
    (2) Beginning July 1, 2018, commercial television broadcast 
stations that are affiliated with one of the top commercial television 
broadcast networks and licensed to a community located in the top 60 
DMAs, as determined by The Nielsen Company as of January 1, 2015, must 
provide 87.5 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 commercial television 
broadcast networks. If a station in one of these markets becomes 
affiliated with one of one of the top commercial television broadcast 
networks after July 1, 2018, it must begin compliance with these 
requirements no later than three months after the affiliation agreement 
is finalized;
* * * * *
    (5) Beginning July 1, 2018, multichannel video programming 
distributor (MVPD) systems that serve 50,000 or more subscribers must 
provide 87.5 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 national nonbroadcast television networks; and
    (6) 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.
    (7) Each video programming distributor subject to paragraphs 
(b)(1), (2), (4), and/or (5) of this section shall make readily 
available contact information for a person or office with primary 
responsibility for accessibility compliance issues to consumers who 
have questions about the availability of or access to video description 
services, or who request technical support. The point of contact must 
be able to address consumers' concerns about video description issues, 
and must respond to consumer inquiries within one business day.
    (c) * * *
    (2) In order to meet its 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 quarterly requirement. A 
broadcaster carrying one of the top commercial television broadcast 
networks on a secondary stream may count programs aired on that stream 
toward its quarterly requirement for that network only.
    (3) Once a commercial television broadcast station as defined under 
paragraph (b)(1) or (b)(2) 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)(4) or (b)(5) of 
this section:
* * * * *
[FR Doc. 2016-10816 Filed 5-26-16; 8:45 am]
BILLING CODE 6712-01-P