[Federal Register Volume 85, Number 99 (Thursday, May 21, 2020)]
[Proposed Rules]
[Pages 30917-30924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09805]



[[Page 30917]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket No. 11-43; FCC 20-55; FRS 16708]


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 proposes to expand its video 
description regulations by phasing them in for an additional 10 
designated market areas (DMAs) each year for four years, beginning on 
January 1, 2021. The Commission also proposes to modernize the 
terminology in our regulations to use the term ``audio description'' 
rather than ``video description.'' Finally, it proposes to make a non-
substantive edit to the video description rules, to delete outdated 
references to compliance deadlines that have passed.

DATES: Comments are due on or before June 22, 2020; reply comments are 
due on or before July 6, 2020.

ADDRESSES: You may submit comments, identified by MB Docket Nos. 11-43, 
by any of the following methods:
     Federal Communications Commission's website: http://apps.fcc.gov/ecfs. Follow the instructions for submitting comments.
     Mail: Filings may be sent by commercial overnight mail, or 
by U.S. Postal Service first-class, Express, or Priority mail. All 
filings must be addressed to the Commission's Secretary, Office of the 
Secretary, Federal Communications Commission.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: (202) 418-
0530 or TTY: (202) 418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Diana Sokolow, [email protected], of the Policy 
Division, Media Bureau, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking, FCC 20-55, adopted on April 22, 2020 and 
released on April 23, 2020. The full text of this document is available 
for public inspection and copying during regular business hours in the 
FCC Reference Center, Federal Communications Commission, 445 12th 
Street SW, Room CY-A257, Washington, DC 20554. The full text of this 
document will also be available via ECFS at http://apps.fcc.gov/ecfs. 
Documents will be available electronically in ASCII, Microsoft Word, 
and/or Adobe Acrobat. Alternative formats are available for people with 
disabilities (braille, large print, electronic files, audio format), by 
sending an email to [email protected] or calling the Commission's Consumer 
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY).

Synopsis

    1. In the Notice of Proposed Rulemaking (NPRM), the Commission 
proposes to expand its video description regulations by phasing them in 
for an additional 10 designated market areas (DMAs) each year for four 
years, beginning on January 1, 2021. The Twenty-First Century 
Communications and Video Accessibility Act of 2010 (CVAA) directed the 
Commission to submit a report to Congress on October 8, 2019, assessing 
certain aspects of video description. The CVAA also provides that as of 
October 8, 2020, ``based upon the findings, conclusions, and 
recommendations'' contained in that report, the Commission has the 
authority to phase in the video description regulations for up to an 
additional 10 DMAs each year, if it determines that the costs of 
implementing the video description regulations to program owners, 
providers, and distributors in those additional markets are 
reasonable.\1\ Through this NPRM, the Commission invites comment on its 
proposal to phase in its video description regulations for an 
additional 10 DMAs each year for four years, including comments on 
whether the costs of such an expansion would be reasonable.\2\ This 
proposed expansion would help ensure that a greater number of 
individuals who are blind or visually impaired can be connected, 
informed, and entertained by television programming.
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    \1\ Specifically, pursuant to the ``continuing Commission 
authority'' provision of the CVAA, the Commission has authority ``to 
phase in the video description regulations for up to an additional 
10 [DMAs] each year (I) if the costs of implementing the video 
description regulations to program owners, providers, and 
distributors in those additional markets are reasonable, as 
determined by the Commission; and (II) except that the Commission 
may grant waivers to entities in specific [DMAs] where it deems 
appropriate.''
    \2\ In the Second Report, the Media Bureau (Bureau) indicated 
that it would issue a public notice in early 2020 ``to consider 
whether the costs of such an expansion would be reasonable.'' Rather 
than issue a public notice, we have decided to issue this NPRM 
containing specific proposals, which will similarly allow the 
Commission to develop a record on all relevant issues, including 
costs and benefits.
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    2. In addition, we propose to modernize the terminology in part 79 
of the Commission's regulations to use the term ``audio description'' 
rather than ``video description.'' While the CVAA uses the term ``video 
description,'' there appears to be wide support among consumer 
organizations and industry for the proposed change. The Commission 
invites comment on this proposal.
    3. Video description \3\ makes video programming \4\ more 
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.'' \5\ Video description 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 
to the secondary audio. As required by section 202 of the CVAA, the 
Commission adopted rules in 2011 requiring certain television broadcast 
stations and multichannel video programming distributors (MVPDs) to 
provide video description for a portion of the video programming that 
they offer to consumers on television.
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    \3\ We note that although the CVAA uses the term ``video 
description'' in this context, the Commission considers the terms 
``video description'' and ``audio description'' to be synonymous and 
welcomes commenters to use either term to describe this service for 
purposes of this rulemaking proceeding.
    \4\ ``Video programming'' refers to programming provided by, or 
generally considered comparable to programming provided by, a 
television broadcast station but does not include consumer-generated 
media.
    \5\ 47 CFR 79.3(a)(3).
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    4. The current video description rules require commercial 
television broadcast stations that are affiliated with one of the top 
four commercial television broadcast networks (ABC, CBS, Fox, and NBC) 
and are located in the top 60 television markets to provide 50 hours of 
video-described programming per calendar quarter during prime time or 
on children's programming,\6\ as well as

[[Page 30918]]

an additional 37.5 hours of video-described programming per calendar 
quarter at any time between 6 a.m. and midnight.\7\ In addition, MVPD 
systems that serve 50,000 or more subscribers must provide 50 hours of 
video description per calendar quarter during prime time or on 
children's programming, as well as an additional 37.5 hours of video 
description per calendar quarter at any time between 6 a.m. and 
midnight, on each of the top five national nonbroadcast networks that 
they carry on those systems.\8\ The top five nonbroadcast networks 
currently subject to the video description requirements are USA 
Network, HGTV, TBS, Discovery, and History.\9\
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    \6\ On July 1, 2015, full-power affiliates of the top four 
television broadcast networks located in markets 26 through 60 
became subject to the video description requirements in addition to 
the top 25 markets already covered by the requirements.
    \7\ Covered broadcast stations became subject to the requirement 
to provide an additional 37.5 hours of video description as of the 
calendar quarter beginning on July 1, 2018. In addition, the rules 
require ``[t]elevision broadcast stations that are affiliated or 
otherwise associated with any television network [to] pass through 
video description when the network provides video description and 
the broadcast station has the technical capability necessary to pass 
through the video description, unless it is using the technology 
used to provide video description for another purpose related to the 
programming that would conflict with providing the video 
description.'' 47 CFR 79.3(b)(3).
    \8\ For purposes of the video description rules, the top five 
national nonbroadcast networks include only those that reach 50 
percent or more of MVPD households and have at least 50 hours per 
quarter of prime-time programming that is not live or near-live or 
otherwise exempt under the video description rules. The list of the 
top five networks is updated every three years based on changes in 
ratings and was last updated on July 1, 2018 (remaining in effect 
until June 30, 2021). Covered MVPDs became subject to the 
requirement to provide an additional 37.5 hours of video description 
as of the calendar quarter beginning on July 1, 2018. In addition, 
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.
    \9\ On October 7, 2019, the Bureau released an order that grants 
a limited waiver of the video description rules with respect to USA 
Network for the remainder of the current ratings period ending on 
June 30, 2021, but it declined to grant a safe harbor from the video 
description requirements for other similarly situated, top 5 
nonbroadcast networks. As a condition of the waiver, USA Network 
must air at least 1,000 hours of described programming each quarter 
without regard to the number of repeats and must describe at least 
75 percent of any newly produced, non-live programming that is aired 
between 6:00 a.m. and midnight per quarter.
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    5. The CVAA required the Commission to submit two reports to 
Congress related to video description. In the First Report, submitted 
to Congress in June 2014, the Bureau found that ``[t]he availability of 
video description on television programming has provided substantial 
benefits for individuals who are blind or visually impaired, and the 
industry appears to have largely complied with their responsibilities 
under the Commission's 2011 rules.'' The Bureau also found, however, 
that ``consumers report the need for increased availability of and 
easier access to video-described programming, both on television and 
online.''
    6. The CVAA required the Commission's Second Report to assess, 
among other topics, ``the potential costs to program owners, providers, 
and distributors in [DMAs] outside of the top 60 of creating [video-
described] programming'' and ``the need for additional described 
programming in [DMAs] outside the top 60.'' The Bureau submitted the 
Second Report to Congress in October 2019. This report found that 
consumers who are blind or visually impaired derive significant 
benefits from the use of video description and, while it observed that 
there has been significant progress in the types and amount of video-
described programming available over the past five years, it also noted 
that consumers would benefit from additional described programming. The 
Bureau observed that the record ``indicates that consumers seek 
expansion of the video description requirements to DMAs outside the top 
60, and it provides no basis for concluding that consumers would 
benefit less from video description in those markets than in other 
areas.''
    7. As to the information regarding the costs to program owners, 
providers, and distributors of creating video-described content, the 
Bureau reported in the Second Report that the maximum cost of creating 
video-described programming remains consistent with the Commission's 
2017 estimate of $4,202.50 per hour, while the cost of described pre-
recorded programming can be as low as $1,000 per hour. The Bureau also 
noted that, according to one industry commenter, ``costs should be 
manageable for network affiliates that receive programming via a 
network feed and simply pass through any video description.'' \10\ This 
commenter further claimed that some stations ``could be forced `to 
devote a substantial portion of their limited resources to compliance' 
'' and some might ``face significant expenditures, such as the purchase 
of additional equipment, to facilitate video description.'' \11\ The 
Second Report also noted a consumer commenter's claim that ``passing 
through [an] audio stream that is already included on national 
broadcast network programming should not be burdensome, regardless of 
market, because the emergency information rules already require the use 
of the secondary audio stream.'' \12\ In its summary, the Bureau stated 
that commenters did not offer ``detailed or conclusive information'' as 
to the costs of such an expansion or a station's ability to bear those 
costs. It thus deferred issuing a determination regarding whether any 
costs associated with the expansion would be reasonable, explaining 
that, ``[s]hould the Commission seek to expand the video description 
requirements to DMAs outside the top 60, it will need to utilize the 
information contained in this Second Report, and any further 
information available to it at the time, to determine that `the costs 
of implementing the video description regulations to program owners, 
providers, and distributors in those additional markets are 
reasonable.' '' \13\
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    \10\ Second Report at para. 27 (citing National Association of 
Broadcasters (NAB) Comments for Second Report).
    \11\ Id.
    \12\ Id. (citing Timothy Wynn (Wynn) Comments for Second 
Report).
    \13\ Id. at para. 28 (quoting 47 U.S.C. 613(f)(4)(C)(iv)(I)).
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    8. Expanding the Number of Markets Subject to Video Description 
Requirements. We propose to phase in the video description requirements 
for an additional 10 DMAs each year for four years, beginning on 
January 1, 2021, and we invite comment on this proposal. As indicated 
in the Second Report, consumers seek expansion of the video description 
requirements to additional DMAs, and we believe our proposal will 
provide significant benefits to consumers who are blind or visually 
impaired and are located in DMAs 61 through 100. As stated, the CVAA 
provides the Commission with authority for this phase-in, ``based upon 
the findings, conclusions, and recommendations contained in the [Second 
Report],'' ``(I) if the costs of implementing the video description 
regulations to program owners, providers, and distributors in those 
additional markets are reasonable, as determined by the Commission; and 
(II) except that the Commission may grant waivers to entities in 
specific [DMAs] where it deems appropriate.'' We propose that any 
further expansion beyond DMA 100 would be undertaken only following a 
future determination of the reasonableness of the associated costs.
    9. We tentatively conclude that the costs of implementing the video 
description regulations in markets 61 through 100 are reasonable. The 
Second

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Report indicates that the costs of adding description to television 
programming have held steady since 2017. Costs thus remain at a level 
the Commission has previously considered ``minimal,'' relative to total 
programming expenses and network revenues, when it increased the 
required number of hours for described programming for commercial 
broadcast television stations affiliated with ABC, CBS, Fox, or NBC 
that are located in the top 60 television markets. Similarly, the 
record in the Second Report reflects that, for purposes of DMAs outside 
the top 60, ``costs should be manageable for network affiliates that 
receive programming via a network feed and simply pass through any 
video description.'' \14\ We seek comment on this tentative conclusion.
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    \14\ Id. at para. 27.
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    10. We note that covered broadcasters are currently 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, without exception for 
technical capability or market size. Since video description is also 
provided via the secondary audio stream, we assume that broadcasters 
capable of compliance with the emergency information requirement also 
have the technical capability to comply with the video description 
requirements. We believe this supports our tentative conclusion that 
the costs of expanding the video description requirements to DMAs 61 
through 100 would be ``reasonable.'' We seek comment on our analysis. 
The record gathered for the Second Report was not conclusive on other 
technical costs of providing video description, such as whether 
expenditures for any additional equipment might be necessary. 
Accordingly, we seek comment on this issue.
    11. Further, we expect that the costs to program owners, providers, 
and distributors of providing video description in markets 61 through 
100 are reasonable, and we invite comment on whether that is correct. 
Specifically, we invite comment on the costs of creating video-
described programming for network affiliates in markets 61 through 
100.\15\ We note that the First Report concluded that the costs of 
complying with the video description requirements were consistent with 
industry's expectations at the time the rules were adopted and had not 
impeded industry's ability to comply, and the record for the Second 
Report did not alter that conclusion. We believe that the costs of 
providing video description in DMAs 61 through 100 are similar if not 
the same as the costs of providing video description in DMAs that are 
already subject to the requirements. For example, network affiliated 
stations outside of the top 60 DMAs currently provide a substantial 
amount of video-described programming due to their pass-through 
obligation. Thus, this mitigates the costs associated with the proposed 
rule expansion. The record for the Second Report indicates that 
``compliance costs should be manageable for'' network affiliated 
broadcasters that ``typically receive programming via a network feed, 
and pass through the audio of any video described programming on their 
[secondary audio] channels, including some stations in markets below 
the top 60 that do so voluntarily.'' \16\ We seek information on how 
the differing costs faced by network affiliates that receive 
programming via a network feed as compared to other network affiliates 
should impact our analysis. Are there any network affiliates in any DMA 
that do not receive programming via a network feed? \17\ We assume that 
network affiliated stations in markets 61 through 100 would be able to 
satisfy the video description requirements entirely by using the 
programming they receive via a network feed. Is this assumption correct 
or would they incur costs to describe additional programming in order 
to meet the requirements? Are there differing costs incurred by 
stations owned by large station group owners as compared to smaller 
station group owners or single stations? Commenters should provide 
specific data on the costs that program owners, providers, and 
distributors would face if the Commission were to expand the video 
description requirements to an additional 10 DMAs each year, until all 
DMAs up to market 100 are covered. Would program owners and providers, 
as well as broadcast stations in DMAs 61 through 100, face additional 
costs as a result of the proposed expansion? If so, commenters should 
specify the nature and amount of those costs. Should we account for the 
current coronavirus pandemic in evaluating the reasonableness of costs 
of expanding video description requirements to markets 61 through 100, 
and if so, how?
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    \15\ While there is no technical capability exception for 
network affiliated stations in covered DMAs, if commenters have 
information concerning broadcasters in markets 61 through 100 that 
are not technically capable of delivering a secondary audio stream, 
such information would be relevant to determining costs that these 
stations may incur as a result of this proceeding. We request that 
such information be presented in detail.
    \16\ NAB Comments for Second Report at 8.
    \17\ As noted above, all network affiliated stations, including 
those outside of the top 60 DMAs, are already required to ``pass 
through video description when the network provides video 
description and the broadcast station has the technical capability 
necessary to pass through the video description, unless it is using 
the technology used to provide video description for another purpose 
related to the programming that would conflict with providing the 
video description.'' 47 CFR 79.3(b)(3).
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    12. In addition to information about costs, we also seek comment on 
the benefits of expanding the video description requirements to DMAs 61 
through 100, including whether these benefits would outweigh any of the 
costs referenced above. In the Second Report, the Bureau described the 
record on this topic, which indicated that some video-described 
programming is available outside the top 60 DMAs but that consumers 
desire even more of such programming. It is indisputable that video 
description enhances the accessibility of video programming to 
consumers who are blind or visually impaired. Would expanding the video 
description requirements to DMAs 61 through 100 substantially increase 
the availability of video description to consumers in these areas, 
therefore providing a significant benefit to such consumers? Commenters 
should provide specific data on the amount of video-described 
programming currently available in DMAs 61 through 100, as compared to 
the amount that would be available if the Commission were to expand the 
video description requirements to such DMAs. We also invite commenters 
to specify the benefits that consumers in the DMAs at issue would 
derive from the proposed expansion.\18\
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    \18\ Nielsen data from 2020 indicates that expanding the video 
description requirements to DMAs 61-70 on January 1, 2021 would 
cover more than an additional 4.22 million households, with more 
than an additional 3.63 million households by expanding to DMAs 71-
80, more than an additional 3.25 million households by expanding to 
DMAs 81-90, and more than an additional 2.86 million households by 
expanding to DMAs 91-100. See MediaTracks Communications, Nielsen 
DMA Rankings 2020, available at https://mediatracks.com/resources/nielsen-dma-rankings-2020/ (last visited Mar. 26, 2019).
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    13. If the Commission determines that the costs of implementing the 
video description regulations to program owners, providers, and 
distributors in DMAs 61 through 100 are ``reasonable,'' we invite 
comment on the compliance deadline for the expansion of the video 
description requirements. While the CVAA provides us with authority to 
expand the video description regulations to an additional 10 DMAs per 
year beginning on October 8, 2020, we propose to expand the 
requirements to DMAs 61 through 70 as of January 1, 2021, to provide 
entities with sufficient

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time for compliance. We propose that these expansions would continue 
with an additional 10 DMAs per year, until the requirements are 
expanded to DMAs 91 through 100 on January 1, 2024. In 2023, the 
Commission will determine whether to continue expanding to an 
additional 10 DMAs per year, with any further expansion to be 
undertaken only following a future determination of the reasonableness 
of the associated costs. We invite comment on these proposals. Would 
stations within the first DMAs subject to the expansion (DMAs 61 
through 70) have a sufficient amount of time to comply, or should we 
provide more time for the first compliance deadline? \19\ We do not 
expect there to be any need to provide more time for any station in a 
DMA outside the first group subject to the expansion because stations 
in other DMAs will be fully aware of the applicable compliance 
deadlines well in advance. Should the current coronavirus pandemic 
affect our decision regarding the compliance deadline, and if so, how?
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    \19\ We recognize that when the Commission reinstated the video 
description rules in 2011, there were approximately 10 months 
between the release of the order and the compliance deadline.
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    14. We propose that any extension of the rules to additional DMAs 
should be based on an updated Nielsen determination, as the Commission 
did when previously expanding the application of the rules from the top 
25 to the top 60 markets, and we invite comment on this proposal. The 
video description rules currently apply to stations ``licensed to a 
community located in the top 60 DMAs, as determined by The Nielsen 
Company as of January 1, 2015.'' If we utilize updated Nielsen figures, 
should the updated figures apply to determine the top 60 markets? What 
should be the compliance deadline for stations in a DMA that was not in 
the top 60 markets as of January 1, 2015, but is within the top 60 
markets as of January 1, 2020? We believe that using updated Nielsen 
data would facilitate the roll out of video description obligations to 
more television households more efficiently.
    15. If the Commission expands the video description rules to 
additional DMAs, we propose that section 79.3(d) of the Commission's 
rules will govern any petitions for exemption due to economic burden. 
The video description rules permit covered entities to petition the 
Commission for a full or partial exemption from the requirements upon a 
showing that the requirements are economically burdensome.\20\ The CVAA 
also provides that if an expansion of the video description rules to 
additional DMAs occurs, ``the Commission may grant waivers to entities 
in specific [DMAs] where it deems appropriate.'' Section 1.3 governs 
waivers of the Commission's rules generally. We tentatively conclude 
that Sec. Sec.  79.3(d) and 1.3 provide a sufficient mechanism for 
entities seeking relief from any expansion of the video description 
rules to additional DMAs, and we invite comment on this conclusion.
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    \20\ The term ``economically burdensome'' means imposing 
significant difficulty or expense, and the Commission considers the 
following factors in determining whether the requirements for video 
description would be economically burdensome: (i) The nature and 
cost of providing video description of the programming; (ii) the 
impact on the operation of the video programming provider; (iii) the 
financial resources of the video programming provider; and (iv) the 
type of operations of the video programming provider. In addition, 
the Commission considers any other factors the petitioner deems 
relevant to the determination and any available alternative that 
might constitute a reasonable substitute for the video description 
requirements, and it evaluates economic burden with regard to the 
individual outlet. In the First Report, the Bureau stated its belief 
``that the ability to seek an exemption on the basis of economic 
burden should alleviate the potential for undue cost burdens on 
covered entities, particularly when the rules go into effect for 
broadcast stations in television markets ranked 26 through 60 in 
2015.''
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    16. Finally, we seek comment on whether there are any other issues 
with respect to our proposal to extend the video description rules to 
additional DMAs of which we should be aware.
    17. Modernizing Terminology. Additionally, we propose to make a 
non-substantive amendment to the rules to substitute the term ``audio 
description'' for the term ``video description'' for purposes of part 
79. Because the Commission's definition of video description already 
references both terms, our proposed modernization of terminology should 
not change the substance of any regulations. As early as 2011, in 
response to the Commission's Notice of Proposed Rulemaking, consumer 
and industry groups proposed using the term ``audio description'' 
instead of ``video description.'' Although the Commission previously 
sought comment on this proposal in its 2016 Notice of Proposed 
Rulemaking, the Commission has not yet resolved the matter. Recently, 
the Disability Advisory Committee (DAC) recommended that ``the 
Commission, as soon as practicable, use the term `audio description' to 
refer to described video programs when discussing or listing audio 
described programming.'' The DAC points out that the term ``audio 
description'' is used by most federal agencies, and explains that 
consistency in terminology will help consumers and video providers 
avoid confusion. Indeed, our search to date has not revealed any other 
federal agency that uses the term ``video description.'' We are 
concerned that the use of inconsistent terms may cause confusion for 
consumers and industry. We recognize that terminology can become 
obsolete and, historically, agencies have made non-substantive 
modifications to regulations to reflect the newer terminology, even if 
the pertinent statute itself may not have been amended. We therefore 
seek to refresh the record on our proposal to revise our rules to 
reflect the newer and more commonly used terminology. Because the 
current definition in the Commission's rules treats the terms ``video 
description'' and ``audio description'' as synonymous, we propose to 
retain the statutory term ``video description'' in the definition while 
using the more commonly understood term ``audio description'' elsewhere 
in the rule. We invite comment on this proposal. We find that the 
Commission has authority to adopt update its terminology as proposed as 
part of its ``continuing authority'' to regulate video description. 
Updating the terminology does not implicate any limitation contained in 
the statute, nor does it make any substantive change to the rules. We 
invite comment on this analysis.
    18. Technical Update to the Rules. Finally, we propose to make a 
non-substantive edit to the video description rules, to delete the 
outdated references in section 79.3(b)(1) and (4) to the compliance 
deadlines of July 1, 2015 and July 1, 2018, which have passed. We 
invite comment on this proposal.
    19. Initial Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission 
has prepared an Initial Regulatory Flexibility Analysis (IRFA) 
concerning the possible significant economic impact on small entities 
by the policies and rules proposed in the Notice of Proposed Rulemaking 
(NPRM). Written public comments are requested on the IRFA. Comments 
must be identified as responses to the IRFA and must be filed by the 
deadlines for comments indicated on the first page of the FNPRM. The 
Commission will send a copy of the NPRM, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration (SBA). 
In summary, the NPRM: (1) Proposes to expand the video description 
regulations by phasing them in for an additional 10 DMAs each year for 
four years, beginning on January 1, 2021; (2) proposes to modernize the 
terminology in part 79 of the Commission's regulations to use the term 
``audio description'' rather than ``video

[[Page 30921]]

description''; and (3) proposes to make a non-substantive edit to the 
video description rules, to delete outdated references to compliance 
deadlines that have passed. The proposed action is authorized pursuant 
to the Twenty-First Century Communications and Video Accessibility Act 
of 2010, Public Law 111-260, 124 Stat. 2751, and section 713 of the 
Communications Act of 1934, as amended, 47 U.S.C. 613. The types of 
small entities that may be affected by the proposals contained in the 
FNPRM fall within the following categories: Television Broadcasting, 
Wired Telecommunications Carriers, Cable and Other Subscription 
Programming, Cable Television Distribution Services, Cable Companies 
and Systems (Rate Regulation Standard), Cable System Operators 
(Telecommunications Act Standard), and Direct Broadcast Satellite (DBS) 
Service.
    20. The projected reporting, recordkeeping, and other compliance 
requirements are: (1) Phasing in the existing video description 
requirements for an additional 10 DMAs each year, beginning on January 
1, 2021 and continuing until January 1, 2024, with the extension based 
on an updated Nielsen determination; and (2) providing that section 
79.3(d) of the Commission's rules will govern any petitions for 
exemption due to economic burden, with section 1.3 of the Commission's 
rules governing waivers of the Commission's rules generally. The 
Commission's proposal to update the term ``video description'' to 
``audio description'' is a non-substantive change that will not cause 
any new or revised reporting, recordkeeping, or other compliance 
requirements that would be applicable to small entities. The same is 
true of its proposal to make a non-substantive edit to the video 
description rules to delete the outdated references in section 
79.3(b)(1) and (4) to the compliance deadlines of July 1, 2015 and July 
1, 2018, which have passed. There is no overlap with other regulations 
or laws. The extension to DMAs 61 through 100 would have a limited 
impact on small entities. The NPRM focuses on engaging in a cost-
benefit analysis to determine the effects the expansion would have. 
Comments on the NPRM will help us determine whether the benefits of the 
expansion would indeed outweigh any costs. The Commission has attempted 
to minimize the impact of the rules on small entities, and it invites 
comment on alternative approaches.
    21. Paperwork Reduction Act. This document contains proposed new or 
revised 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, Public Law 104-13 (44 
U.S.C. 3501-3520). In addition, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), the Commission seeks specific comment on how it might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.''
    22. Ex Parte Rules--Permit-But-Disclose. The proceeding this Notice 
initiates shall be treated as a ``permit-but-disclose'' proceeding in 
accordance with the Commission's ex parte rules.\21\ Persons making ex 
parte presentations must file a copy of any written presentation or a 
memorandum summarizing any oral presentation within two business days 
after the presentation (unless a different deadline applicable to the 
Sunshine period applies). Persons making oral ex parte presentations 
are reminded that memoranda summarizing the presentation must (1) list 
all persons attending or otherwise participating in the meeting at 
which the ex parte presentation was made, and (2) summarize all data 
presented and arguments made during the presentation. If the 
presentation consisted in whole or in part of the presentation of data 
or arguments already reflected in the presenter's written comments, 
memoranda or other filings in the proceeding, the presenter may provide 
citations to such data or arguments in his or her prior comments, 
memoranda, or other filings (specifying the relevant page and/or 
paragraph numbers where such data or arguments can be found) in lieu of 
summarizing them in the memorandum. Documents shown or given to 
Commission staff during ex parte meetings are deemed to be written ex 
parte presentations and must be filed consistent with rule 1.1206(b). 
In proceedings governed by rule 1.49(f) or for which the Commission has 
made available a method of electronic filing, written ex parte 
presentations and memoranda summarizing oral ex parte presentations, 
and all attachments thereto, must be filed through the electronic 
comment filing system available for that proceeding, and must be filed 
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). 
Participants in this proceeding should familiarize themselves with the 
Commission's ex parte rules.
---------------------------------------------------------------------------

    \21\ 47 CFR 1.1200 et seq.
---------------------------------------------------------------------------

    23. Filing Requirements--Comments and Replies. Pursuant to 
Sec. Sec.  1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 
1.419, interested parties may file comments and reply comments on or 
before the dates indicated on the first page of this document. Comments 
may be filed using the Commission's Electronic Comment Filing System 
(ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 
63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    All filings must be addressed to the Commission's Secretary, Office 
of the Secretary, Federal Communications Commission.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW, Washington, DC 20554.
     Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020), https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
     During the time the Commission's building is closed to the 
general public and until further notice, if more than one docket or 
rulemaking number appears in the caption of a proceeding, paper filers 
need not submit two additional copies for each additional docket or 
rulemaking number; an original and one copy are sufficient.
    24. The proposed action is authorized pursuant to the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Public Law 
111-260, 124 Stat. 2751, and the authority contained in Section 713 of 
the Communications Act of 1934, as amended, 47 U.S.C. 613.

[[Page 30922]]

List of Subjects in 47 CFR Part 79

    Communications equipment, Television broadcasters.

Federal Communications Commission.
Marlene Dortch,
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 citation 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.  79.2 by revising paragraph (b)(5) to read as follows:


Sec.  79.2   Accessibility of programming providing emergency 
information.

* * * * *
    (b) * * *
    (5) Video programming distributors and video programming providers 
must ensure that aural emergency information provided in accordance 
with paragraph (b)(2)(ii) of this section supersedes all other 
programming on the secondary audio stream, including audio description, 
foreign language translation, or duplication of the main audio stream, 
with each entity responsible only for its own actions or omissions in 
this regard.
* * * * *
0
3. Amend Sec.  79.3 by revising the heading and paragraphs (a)(3), (b) 
introductory text, (b)(1), (3) through (4), (5)(i) through (ii), (c)(2) 
through (3), (4)(i) through (ii), (5), (d)(1), (2) introductory text, 
(2)(i), (3), (10) through (11), (e)(1) introductory text, (3)(i) 
through (ii) to read as follows:


Sec.  79.3   Audio description of video programming.

    (a) * * *
    (3) Audio description/Video description. The insertion of audio 
narrated descriptions of a television program's key visual elements 
into natural pauses between the program's dialogue.
* * * * *
    (b) The following video programming distributors must provide 
programming with audio description as follows:
    (1) Commercial television broadcast stations that are affiliated 
with one of the top four commercial television broadcast networks (ABC, 
CBS, Fox, and NBC), and that are licensed to a community located in the 
top 60 DMAs, as determined by The Nielsen Company as of January 1, 
2020, must provide 50 hours of audio description per calendar quarter, 
either during prime time or on children's programming, and 37.5 
additional hours of audio description per calendar quarter between 6 
a.m. and 11:59 p.m. local time, on each programming stream on which 
they carry one of the top four commercial television broadcast 
networks. If a previously unaffiliated station in one of these markets 
becomes affiliated with one of these networks, it must begin compliance 
with these requirements no later than three months after the 
affiliation agreement is finalized. On January 1, 2021, and each year 
thereafter until January 1, 2024, the requirements of this paragraph 
shall extend to the next 10 largest DMAs as determined by The Nielsen 
Company as of January 1, 2020;
* * * * *
    (3) Television broadcast stations that are affiliated or otherwise 
associated with any television network must pass through audio 
description when the network provides audio description and the 
broadcast station has the technical capability necessary to pass 
through the audio description, unless it is using the technology used 
to provide audio description for another purpose related to the 
programming that would conflict with providing the audio description;
    (4) Multichannel video programming distributor (MVPD) systems that 
serve 50,000 or more subscribers must provide 50 hours of audio 
description per calendar quarter during prime time or children's 
programming, and 37.5 additional hours of audio description per 
calendar quarter between 6 a.m. and 11:59 p.m. local time, on each 
channel on which they carry one of the top five national nonbroadcast 
networks, as defined by an average of the national audience share 
during prime time of nonbroadcast networks that reach 50 percent or 
more of MVPD households and have at least 50 hours per quarter of prime 
time programming that is not live or near-live or otherwise exempt 
under these rules. Initially, the top five networks are those 
determined by The Nielsen Company, for the time period October 2009-
September 2010, and will update at three year intervals. The first 
update will be July 1, 2015, based on the ratings for the time period 
October 2013-September 2014; the second will be July 1, 2018, based on 
the ratings for the time period October 2016-September 2017; and so on; 
and
    (5) * * *
    (i) Must pass through audio description on each broadcast station 
they carry, when the broadcast station provides audio description, and 
the channel on which the MVPD distributes the programming of the 
broadcast station has the technical capability necessary to pass 
through the audio description, unless it is using the technology used 
to provide audio description for another purpose related to the 
programming that would conflict with providing the audio description; 
and
    (ii) Must pass through audio description on each nonbroadcast 
network they carry, when the network provides audio description, and 
the channel on which the MVPD distributes the programming of the 
network has the technical capability necessary to pass through the 
audio description, unless it is using the technology used to provide 
audio description for another purpose related to the programming that 
would conflict with providing the audio description.
    (c) * * *
    (2) In order to meet its quarterly requirement, a broadcaster or 
MVPD may count each program it airs with audio 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 four 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) of this section has aired a particular program with 
audio description, it is required to include audio description with all 
subsequent airings of that program on that same broadcast station, 
unless it is using the technology used to provide audio description for 
another purpose related to the programming that would conflict with 
providing the audio description.
    (4) * * *
    (i) Has aired a particular program with audio description on a 
broadcast station it carries, it is required to include audio 
description with all subsequent airings of that program on that same 
broadcast station, unless it is using the technology used to provide 
audio description for another purpose related to the programming that 
would conflict with providing the audio description; or
    (ii) Has aired a particular program with audio description on a 
nonbroadcast network it carries, it is

[[Page 30923]]

required to include audio description with all subsequent airings of 
that program on that same nonbroadcast network, unless it is using the 
technology used to provide audio description for another purpose 
related to the programming that would conflict with providing the audio 
description.
    (5) In evaluating whether a video programming distributor has 
complied with the requirement to provide video programming with audio 
description, the Commission will consider showings that any lack of 
audio description was de minimis and reasonable under the 
circumstances.
    (d) * * *
    (1) A video programming provider may petition the Commission for a 
full or partial exemption from the audio description requirements of 
this section, which the Commission may grant upon a finding that the 
requirements would be economically burdensome.
    (2) The petitioner must support a petition for exemption with 
sufficient evidence to demonstrate that compliance with the 
requirements to provide programming with audio description would be 
economically burdensome. The term ``economically burdensome'' means 
imposing significant difficulty or expense. The Commission will 
consider the following factors when determining whether the 
requirements for audio description would be economically burdensome:
    (i) The nature and cost of providing audio description of the 
programming;
* * * * *
    (3) In addition to these factors, the petitioner must describe any 
other factors it deems relevant to the Commission's final determination 
and any available alternative that might constitute a reasonable 
substitute for the audio description requirements. The Commission will 
evaluate economic burden with regard to the individual outlet.
* * * * *
    (10) The Commission may deny or approve, in whole or in part, a 
petition for an economic burden exemption from the audio description 
requirements.
    (11) During the pendency of an economic burden determination, the 
Commission will consider the video programming subject to the request 
for exemption as exempt from the audio description requirements.
    (e) * * *
    (1) A complainant may file a complaint concerning an alleged 
violation of the audio description requirements of this section by 
transmitting it to the Consumer and Governmental Affairs Bureau at the 
Commission by any reasonable means, such as letter, facsimile 
transmission, telephone (voice/TRS/TTY), email, audio-cassette 
recording, and braille, or some other method that would best 
accommodate the complainant's disability. Complaints should be 
addressed to: Consumer and Governmental Affairs Bureau, 445 12th Street 
SW, Washington, DC 20554. A complaint must include:
* * * * *
    (3) * * *
    (i) The Commission may rely on certifications from programming 
suppliers, including programming producers, programming owners, 
networks, syndicators and other distributors, to demonstrate 
compliance. The Commission will not hold the video programming 
distributor responsible for situations where a program source falsely 
certifies that programming that it delivered to the video programming 
distributor meets our audio description requirements if the video 
programming distributor is unaware that the certification is false. 
Appropriate action may be taken with respect to deliberate 
falsifications.
    (ii) If the Commission finds that a video programming distributor 
has violated the audio description requirements of this section, it may 
impose penalties, including a requirement that the video programming 
distributor deliver video programming containing audio description in 
excess of its requirements.
* * * * *
0
4. Amend Sec.  79.105 by revising the heading and paragraphs (a)(1) and 
(b)(3)(i), to read as follows:


Sec.  79.105   Audio description and emergency information 
accessibility requirements for all apparatus.

    (a) * * *
    (1) The transmission and delivery of audio description services as 
required by Sec.  79.3; and
* * * * *
    (b) * * *
    (3)(i) Achievable. Apparatus that use a picture screen of less than 
13 inches in size must comply with the provisions of this section only 
if doing so is achievable as defined in this section. Manufacturers of 
apparatus that use a picture screen of less than 13 inches in size may 
petition the Commission for a full or partial exemption from the audio 
description and emergency information requirements of this section 
pursuant to Sec.  1.41 of this chapter, which the Commission may grant 
upon a finding that the requirements of this section are not 
achievable, or may assert that such apparatus is fully or partially 
exempt as a response to a complaint, which the Commission may dismiss 
upon a finding that the requirements of this section are not 
achievable.
* * * * *
0
5. Amend Sec.  79.106 by revising the heading and paragraph (b) to read 
as follows:


Sec.  79.106   Audio description and emergency information 
accessibility requirements for recording devices.

* * * * *
    (b) All apparatus subject to this section must enable the 
presentation or the pass through of the secondary audio stream, which 
will facilitate the provision of audio description signals and 
emergency information (as that term is defined in Sec.  79.2) such that 
viewers are able to activate and de-activate the audio description as 
the video programming is played back on a picture screen of any size.
* * * * *
0
6. Amend Sec.  79.107 by revising paragraph (a)(4)(viii) to read as 
follows:


Sec.  79.107   User interfaces provided by digital apparatus.

    (a) * * *
    (4) * * *
    (viii) Configuration--Audio Description Control. Function that 
allows the user to enable or disable the output of audio description 
(i.e., allows the user to change from the main audio to the secondary 
audio stream that contains audio description, and from the secondary 
audio stream back to the main audio).
* * * * *
0
7. Amend Sec.  79.108 by revising paragraph (a)(2)(vi) to read as 
follows:


Sec.  79.108   Video programming guides and menus provided by 
navigation devices.

    (a) * * *
    (2) * * *
    (vi) Configuration--Audio Description Control. Function that allows 
the user to enable or disable the output of audio description (i.e., 
allows the user to change from the main audio to the secondary audio 
stream that contains audio description, and from the secondary audio 
stream back to the main audio).
* * * * *
0
8. Amend Sec.  79.109 by revising paragraph (a)(2) to read as follows:


Sec.  79.109   Activating accessibility features.

    (a) * * *
    (2) Manufacturers of digital apparatus designed to receive or play 
back video programming transmitted in digital format simultaneously 
with sound,

[[Page 30924]]

including apparatus designed to receive or display video programming 
transmitted in digital format using internet protocol, with built-in 
audio description capability must ensure that audio description can be 
activated through a mechanism that is reasonably comparable to a 
button, key, or icon. Digital apparatus do not include navigation 
devices as defined in Sec.  76.1200 of this chapter.
* * * * *
[FR Doc. 2020-09805 Filed 5-20-20; 8:45 am]
 BILLING CODE 6712-01-P