[Federal Register Volume 76, Number 53 (Friday, March 18, 2011)]
[Proposed Rules]
[Pages 14856-14871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6240]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 79
[MB Docket No. 11-43; FCC 11-36]
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 takes an initial step to
implement the Twenty-First Century Communications and Video
Accessibility Act of 2010, by seeking comment on the mandated
reinstatement of video description rules that would apply to MVPDs and
network-affiliated broadcasters.
DATES: Comments must be submitted by interested parties on or before
April 18, 2011. Reply comments must be submitted no later than May 17,
2011. Written PRA comments on the proposed information collection
requirements contained herein must be submitted by the public, Office
of Management and Budget (OMB), and other interested parties on or
before May 17, 2011.
ADDRESSES: You may submit comments, identified by MB Docket No. 11-43,
FCC 11-36, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web site:http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
Mail: Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although the Commission continues to experience
delays in receiving U.S. Postal Service mail). All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
People With Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
In addition to filing comments with the Secretary, a copy of any
PRA comments on the proposed collection requirements contained herein
should be submitted to the Federal Communications Commission via e-mail
to [email protected] and to Nicholas A. Fraser, Office of Management and
Budget, via e-mail to [email protected] or via fax at 202-395-5167.
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, contact
Lyle Elder, [email protected], of the Media Bureau, Policy Division,
at (202) 418-2120. For additional information concerning the
information collection requirements contained in this document, send an
e-mail to [email protected] or contact Cathy Williams, (202) 418-2918. To
view or obtain a copy of this information collection request (ICR)
submitted to OMB: (1) Go to this OMB/GSA Web page: http://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the Web
page called ``Currently Under Review,'' (3) click on the downward-
pointing arrow in the ``Select Agency'' box below the ``Currently Under
Review'' heading, (4) select ``Federal Communications Commission'' from
the list of agencies presented in the ``Select Agency'' box, (5) click
the ``Submit'' button to the right of the ``Select Agency'' box, and
(6) when the list of FCC ICRs currently under review appears, look for
the OMB control number of this ICR as shown in the Supplementary
Information section below (or its title if there is no OMB control
number) and then click on the ICR Reference Number. A copy of the FCC
submission to OMB will be displayed.
SUPPLEMENTARY INFORMATION: This is a summary of document FCC 11-36,
adopted March 2, 2011 and released March 3, 2011. The full text is
available for public inspection and copying during regular business
hours in the FCC Reference Center, Federal Communications Commission,
445 12th Street, SW., CY-A257, Washington, DC, 20554. These documents
will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/).
Documents will be available electronically in ASCII, Word 97, and/or
Adobe Acrobat. The complete text may be purchased from the Commission's
copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC
20554. To request this document in accessible formats (computer
diskettes, large print, audio recording, and Braille), send an e-mail
to [email protected] or call the Commission's Consumer and Governmental
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
This document contains proposed information collection
requirements. As part of its continuing effort to reduce paperwork
burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44
U.S.C. 3501-3520), the Federal Communications Commission invites the
general public and other Federal agencies to comment on the following
information collection(s). Public and agency comments are due May 17,
2011.
Comments should address: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment
on how we might ``further reduce the information collection burden for
small business concerns with fewer than 25 employees.''
OMB Control Number: 3060-xxxx.
Title: Video Description of Video Programming.
Form Number: N/A.
Type of Review: New collection.
Respondents: Individuals or households; Businesses or other for-
profit entities; Not-for-profit institutions.
Number of Respondents and Responses: 76 respondents; 80 responses.
Estimated Time per Response: 1-5 hours.
Frequency of Response: On occasion reporting requirement.
Obligation to Respond: Voluntary and required to obtain or retain
benefits. The statutory authority for this collection of information is
contained in 47 U.S.C. 613(f).
Total Annual Burden: 144 hours.
Total Annual Costs: $26,250.
Privacy Act Impact Assessment: Yes. The Privacy Impact Assessment
(PIA) was completed on June 28, 2007. It may
[[Page 14857]]
be reviewed at: http://www.fcc.gov/omd/privacyact/Privacy_Impact_Assessment.html. The Commission is in the process of updating the PIA
to incorporate various revisions made to the SORN.
Nature and Extent of Confidentiality: Confidentiality is an issue
to the extent that individuals and households provide personally
identifiable information, which is covered under the FCC's system of
records notice (SORN), FCC/CGB-1, ``Informal Complaints and
Inquiries.'' As required by the Privacy Act, 5 U.S.C. 552a, the
Commission also published a SORN, FCC/CGB-1 ``Informal Complaints and
Inquiries'', in the Federal Register on December 15, 2009 (74 FR 66356)
which became effective on January 25, 2010.
Needs and Uses: The Commission is seeking approval for this
proposed information collection from the Office of Management and
Budget (OMB). On March 3, 2011, the Commission released a Notice of
Proposed Rulemaking, MB Docket No. 11-43; FCC 11-36. This rulemaking
proposed information collection requirements that support the
Commission's video description rules that would be codified at 47 CFR
79.3, as required by the Twenty-First Century Communications and Video
Accessibility Act of 2010 (``CVAA''). In 2000, the Commission adopted
rules requiring certain broadcasters and multichannel video program
distributors (MVPDs) to carry programming with video description. The
United States Court of Appeals for the District of Columbia Circuit
vacated the rules due to insufficient authority soon after their
initial adoption. The CVAA directs the Commission to reinstate those
rules, with certain modifications, on October 8, 2011.
The proposed information collection requirements consist of:
Petitions for exemption based on ``economic burden.''
Pursuant to proposed 47 CFR 79.3(d), a video programming provider
may petition the Commission for a full or partial exemption from the
video description requirements based upon a showing that they would be
economically burdensome.
Petitions for exemption must by filed with the Commission, placed
on Public Notice, and be subject to comment from the public.
Complaints alleging violations of the video description rules.
Section 79.3(e) of the proposed rules provides that a complaint
alleging a violation of the video description rules may be transmitted
to the Commission by ``any reasonable means'' that would best
accommodate the complainant's disability, and that each complaint must
include:
The name and address of the complainant;
The name and address of the broadcast station against whom the
complaint is alleged and its call letters and network affiliation, or
the name and address of the MVPD against whom the complaint is alleged
and the name of the network that provides the programming that is the
subject of the complaint;
A statement of facts sufficient to show that the video programming
distributor has violated or is violating the Commission's rules, and,
if applicable, the date and time of the alleged violation;
The specific relief or satisfaction sought by the complainant;
The complainant's preferred format or method of response to the
complaint (such as letter, facsimile transmission, telephone (voice/
TRS/TTY), Internet e-mail, or some other method that would best
accommodate the complainant's disability); and
A certification that the complainant attempted in good faith to
resolve the dispute with the broadcast station or MVPD against whom the
complaint is alleged.
The Commission is seeking OMB approval for the proposed information
collection requirements.
Summary of the Notice of Proposed Rulemaking
I. Introduction
1. In compliance with the recently enacted Twenty-First Century
Communications and Video Accessibility Act of 2010 (the
``Communications and Video Accessibility Act'' or ``CVAA''),\1\ the
Notice of Proposed Rulemaking (``NPRM'') proposes and seeks comment on
reinstatement of the video description rules adopted by the Commission
in 2000. The CVAA directs us to ``reinstate [our] video description
regulations'' with certain modifications.\2\ ``Video description,''
sometimes referred to as ``audio description,'' which is the insertion
of audio narrated descriptions of a television program's key visual
elements into natural pauses in the program's dialogue,\3\ makes video
programming more accessible to individuals who are blind or visually
impaired. The United States Court of Appeals for the District of
Columbia Circuit vacated the Commission's video description rules due
to insufficient authority soon after their initial adoption.\4\ The
CVAA now directs the Commission to reinstate those rules with certain
modifications.\5\ We anticipate that the revised and reinstated rules
will afford better access to television programs for individuals who
are blind or visually impaired, enabling millions more Americans to
enjoy the benefits of television service and participate more fully in
the cultural and civic life of the nation.
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\1\ Twenty-First Century Communications and Video Accessibility
Act of 2010, Public Law 111-260, 124 Stat. 2751 (2010).
\2\ CVAA 202(a), Public Law 111-260, 124 Stat. 2751(2010) (to be
codified at 47 U.S.C. 613). The regulations were promulgated in
Implementation of Video Description of Video Programming, MM Docket
No. 99-339, Report and Order, 15 FCC Rcd 15230 (2000) (``2000 Report
and Order''), recon. granted in part and denied in part, 16 FCC Rcd
1251 (2001) (``Recon'') (attached at Appendix C) and were codified
at 47 CFR 79.3.
\3\ CVAA at Title II, sec. 202(a), 713(h)(1).
\4\ Motion Picture Ass'n of America, Inc. v. Federal
Communications Comm., 309 F.3d 796 (D.C. Cir. 2002).
\5\ CVAA at Title II, sec. 202(a), 713(f)(1-2).
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2. The Commission's rules required large-market broadcast
affiliates of the top four national networks and multichannel video
programming distributors (``MVPDs'') with more than 50,000 subscribers
to provide video description.\6\ Covered broadcasters were required to
provide 50 hours of video-described prime time or children's
programming, per quarter, and covered MVPDs were required to provide
the same number of hours on each of the five most popular nonbroadcast
networks.\7\ The rules also required that all network-affiliated
broadcasters (commercial or non-commercial) and all MVPDs pass through
any video description provided with programming they carried, to the
extent that they are technically capable of doing so.\8\ As required
under the CVAA, we propose to reinstate these rules, with the
modifications required by the law, on October 8, 2011, and to require
broadcast stations and MVPDs subject to our rules to begin providing
the requisite number of hours of programming with video description
beginning in the first quarter of 2012.
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\6\ 47 CFR 79.3(b).
\7\ Id. at Sec. 79.3(b)(1), (3).
\8\ Id. at Sec. 79.3(b)(2), (4).
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3. We seek comment on the modifications to the rules required by
the CVAA. Notably, these modifications include the exemption of ``live
or near-live'' programming from the rules. We seek comment on the
definition of ``near-live,'' and propose that programs produced within
24 hours of their first airing be considered ``near-live'' under the
rules. We also seek information about the number of hours of non-exempt
programming provided by the top nonbroadcast programming
[[Page 14858]]
networks to enable us to identify which networks will be subject to our
rules.
II. Background
4. In 1996, at Congress's direction, the Commission issued a report
on the use of video description in video programming.\9\ In 2000, the
Commission adopted rules requiring certain broadcasters and MVPDs to
carry programming with video description.\10\ The Commission found that
the record demonstrated the importance of video description, stating,
for example, that
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\9\ 47 U.S.C. 613 (this section, Video Programming
Accessibility, was added to the Communications Act by Section 305 of
the Telecommunications Act of 1996); see also Implementation of
Section 305 of the Telecommunications Act of 1996--Video Programming
Accessibility, MM Docket No. 95-176, Report, 11 FCC Rcd 19214 (1996)
(``Report''). The Commission had initiated the inquiry in 1995,
before enactment of the 1996 Act. Closed Captioning and Video
Description of Video Programming, MM Docket No. 95-176, Notice of
Inquiry,11 FCC Rcd 4912 (1995).
\10\ 2000 Report and Order, supra note 2.
[t]he comments of the American Council of the Blind contained
more than 250 e-mails and letters of support for rules, which
explained how video description enhances the understanding of blind
and low vision people of television programming and cultural
behavior such as body language, and gives them a feeling of
independence. One commenter said that * * * ``[w]hether
entertaining, educational or cultural, television has become an
integral part of American life. I, and other blind and visually
impaired people, have always participated in television viewing, but
with [video description], we are finally participating equally.''
Helen Harris, founder of a description service, says that ``[v]ideo
description effectively bridges the gap between the blind and
mainstream society by creating a shared experience which leaves the
blind with an increased sense of normalcy in their lives.'' \11\
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\11\ 2000 Report and Order, supra note 2, at para. 4 (internal
citations omitted).
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Five months after the rules went into effect, they were vacated by
the United States Court of Appeals for the District of Columbia Circuit
on the ground that the Commission lacked sufficient authority to
promulgate video description rules.\12\ Nonetheless, some broadcast and
nonbroadcast networks have voluntarily continued to provide this
important service; for instance, CBS, Fox, PBS, TCM, and TNT all
provide description of selected programming. We commend these networks
and all others that are voluntarily offering described programming, for
recognizing the importance of video description to the members of their
audiences who are blind or visually impaired.
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\12\ Motion Picture Ass'n of America, Inc. v. Federal
Communications Comm., 309 F.3d 796 (D.C. Cir. 2002).
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5. On October 8, 2010, President Obama signed the CVAA,\13\ which
increases the access of persons with disabilities to modern
communications services and technologies and gives the Commission
express authority to adopt video description rules. The statute directs
the Commission, as an initial step, to reinstate the previously adopted
video description rules, with certain modifications.\14\ To fulfill our
statutory mandate, we begin the process with requests for comment in
this Notice of Proposed Rulemaking. The CVAA imposes other requirements
with respect to video description. For example, we are required to
submit a report within two years of phasing in the reinstated rules,
discussing the status, benefits, and costs of video description on
television and Internet-provided video programming.\15\ We must file a
second report, nine years after the enactment of the CVAA, that
provides a detailed review of the video description market and the
potential need for expansion of the description mandates.\16\ The CVAA
also gives us authority to expand the video description hour
requirements and the number of markets in which broadcasters are
required to provide description if we determine that the benefits of
televised description outweigh its costs.\17\ We will address these
additional requirements and potential expansions in a separate
proceeding.
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\13\ Communications and Video Accessibility Act, supra note 1.
\14\ Id. at Title II, sec. 202(a), 713(f)(1) (requiring
reinstatement of the rules one year after the date of enactment of
the CVAA).
\15\ Id. at 713(f)(3).
\16\ Id. at 713(f)(4)(C)(iii).
\17\ Id. at 713(f)(4)(A), (B), (C)(i), (iv).
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III. Discussion
A. Reinstated Rules
6. Section 713(f)(1) of the Communications Act, as added by the
CVAA, states that the Commission shall, after a rulemaking, reinstate
its video description regulations contained in the Implementation of
Video Description of Video Programming Report and Order (15 F.C.C.R.
15,230 (2000)), recon. granted in part and denied in part, (16 F.C.C.R.
1251 (2001)), modified as provided in paragraph (2).\18\
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\18\ Id. at 713(f)(1). See also id. at 713(f)(2) (``Such
regulations shall be modified only as follows * * *'').
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Consistent with Congress' directive, we will reinstate the
Commission's 2000 rules on October 8, 2011 with the modifications
required by the CVAA.\19\ The most significant elements of those rules
are:
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\19\ See generally 2000 Report and Order and Recon, supra note
2. We incorporate the discussion of these rules in the 2000 Report
and Order and Reconsideration Order into the record of this
proceeding.
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Affiliates of the top four national networks \20\ located
in the top 25 television markets \21\ must provide 50 hours per
calendar quarter of video-described prime time and/or children's
programming. For this purpose, prime time means 8-11 pm Monday through
Saturday, and 7-11 pm on Sunday, except that these times are an hour
earlier in the central time zone, and stations in the mountain time
zone may choose which ``prime time'' period to adopt for the purpose of
these rules. 47 CFR 79.3(a)(6). In this item, we propose to define
children's programming as being directed at children 16 years of age
and younger. See paragraph 32, below, and Appendix A. MVPDs with 50,000
or more subscribers must provide 50 hours per calendar quarter of
video-described prime time and/or children's programming on each of the
top five nonbroadcast networks that they carry. Our ranking of the Top
5 networks will be based on Nielsen national prime time audience share,
the number of subscribers reached, and amount of non-exempt
programming. See paragraph 12, below.
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\20\ For the purpose of the video description rules, these are
ABC, CBS, Fox, and NBC. 47 CFR 79.3(b)(1).
\21\ Markets are ranked by Nielsen based on their total number
of television households. TVB Market Profiles at http://www.tvb.org/market_profiles/131627. Nielsen Media Research, Inc. (``Nielsen'')
is now known as The Nielsen Company.
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To count toward the requirement, the programming must not
have been previously aired with video description, on that particular
MVPD channel or broadcast station, more than once.\22\ The CVAA defines
``video programming'' in the video description context as ``programming
by, or generally considered comparable to programming provided by a
television broadcast station, but not including consumer-generated
media (as defined in section 3).'' CVAA at Title II, sec. 202(a),
713(h)(2). Section 3 of the Communications Act, as amended in the CVAA,
defines consumer-generated media as ``content created and made
available by consumers to online Web sites and services on the
Internet, including video, audio, and multimedia
[[Page 14859]]
content.'' CVAA at Title I, sec. 101(1), 3 (54). The proposed rules
adopt the CVAA definition of video programming.
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\22\ 47 CFR 79.3(c)(2); see also Recon, supra note 2, at fn. 74
(``Broadcast stations and MVPDs can count a repeat of a previously
aired program in the same quarter or in a later quarter, but only
once altogether'').
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Any broadcast station, regardless of its market size,
affiliated or otherwise associated with any television network, must
``pass through'' video description when the network provides it and the
station has the technical capability necessary to do so.\23\ Similarly,
any MVPD, regardless of its number of subscribers, must ``pass
through'' video description when a broadcast station or nonbroadcast
network provides it, if it has the technical capability necessary to do
so on the channel on which it distributes the broadcast station or
nonbroadcast network programming.\24\ Any programming aired with
description must always include description if re-aired on the same
station or MVPD channel.\25\
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\23\ 47 CFR 79.3(b)(2); see infra paras. 14-16.
\24\ 47 CFR 79.3(b)(4); see infra paras. 14-16.
\25\ 47 CFR 79.3(c)(3); see also Recon, supra note 2, at para.
27 and fn. 83.
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Complaints alleging a failure to comply with these rules
may be filed with the Commission by any viewer, and the Commission will
act to resolve such complaints in consultation with the video
programming distributor.\26\
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\26\ 47 CFR 79.3(e).
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B. Identifying Stations Required To Provide Video Description
7. As discussed above, under the reinstated rules, certain
broadcast stations and MVPDs will have an obligation to provide video
description of some of the programming they provide. Specifically,
affiliates of ABC, CBS, Fox, and NBC that are located in the 25
television markets with the largest number of television households
must provide 50 hours per calendar quarter of video-described
programming during prime time, or at any time if it is children's
programming. To count toward this 50-hour requirement, video-described
programming must be airing either the first or second time on the
station; that is, a video described program may be counted toward the
50 hours when it is originally aired and once more when it is re-run.
Although we anticipate that much of the programming aired with video
description will be newly produced, we propose that the reinstated
rules permit stations to count any program that they are airing for the
first or second time with video description after the reinstated rules
become effective, even if the program has previously been aired on that
station. Similarly, a station may count programming toward its 50 hour
obligation even if that programming has aired elsewhere with
description, so long as it is airing with description for the first or
second time on that station. The rules are identical for MVPDs with
50,000 or more subscribers, except that they apply to the programming
of each of the top five national non-broadcast networks carried by the
MVPDs.
8. Although the CVAA requires reinstatement of the rules largely as
adopted by the Commission in 2000, the Commission does have some
discretion in determining the stations, MVPDs, and networks to which
they apply. We therefore seek comment on these issues, as discussed
below.
1. Broadcast Stations
9. As established in the 2000 rules, the broadcast stations subject
to the requirement to provide video description \27\ were those
``[c]ommercial television broadcast stations that [were] affiliated
with one of the top four commercial television broadcast networks (ABC,
CBS, Fox, and NBC), as of September 30, 2000, and that [were] licensed
to a community located in the top 25 DMAs, as determined by Nielsen
Media Research, Inc. for the year 2000.'' \28\ We propose to reinstate
the rules insofar as they designate ABC, CBS, Fox, and NBC as the
broadcast networks affected.\29\ Although the original rule refers only
to ``commercial television broadcast stations,'' the 2000 Report and
Order is unclear about whether this requirement was intended to be
limited to full-power commercial stations, or to apply to commercial
low power stations as well. We seek comment on the appropriate scope of
the requirement to provide description. The CVAA directs us to ``update
the list of the top 25 designated market areas.'' \30\ We propose to
apply the rules to the Top 25 markets as determined by Nielsen as of
January 1, 2011 (i.e., the 2010-2011 DMA rankings), and, within those
markets, to require stations affiliated with ABC, CBS, Fox, or NBC to
provide video description, regardless of when the affiliation begins.
We seek comment on this proposal.
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\27\ 47 CFR 79.3(b)(1), (3) (requirement to provide
description).
\28\ 47 CFR 79.3(b)(1).
\29\ Id.
\30\ CVAA, Title II, sec. 202(a), 713(f)(2)(B).
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10. The relative size of markets often changes over time. We want
to ensure that the rules apply to the top 25 markets, as required by
the CVAA. At the same time, we seek to ensure that regulatees and the
public at large have adequate advance notice regarding which broadcast
stations will be subject to the requirement to provide video
description, and to avoid undue disruption for audiences who come to
rely upon video described programming. Further, we recognize that a
significant amount of video described programming (potentially all the
programming required under the rules) will be provided by national
network programmers and passed through by local stations, even in the
top 25 markets. Because of the ``pass-through'' obligations of network
stations outside the top 25 markets, discussed below, there may be
little to no difference in the amount of video described programming
available from affiliates of the top 4 networks in larger and smaller
markets.\31\ In light of these considerations, we seek comment on
whether we should reconsider the ranking of the top 25 markets at
certain intervals to reflect current market conditions better and, if
so, what those intervals should be.
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\31\ See infra para. 14.
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11. The CVAA mandates that the Commission extend the video
description requirements to the top 60 markets after filing a report to
Congress on the state of the video description market, as discussed
above,\32\ and no later than six years after the enactment date of the
CVAA (i.e., October 8, 2016). If, as we propose in this Notice, the
first phase is complete on January 1, 2012, the Report will be
submitted to Congress no later than January 1, 2014. Should we identify
now the date to be used to determine the top 60 markets and a
compliance deadline for stations in markets 26-60, or should we set
those dates following the required report to Congress?
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\32\ Id. at 713(f)(4)(C)(i-ii). See supra para. 5.
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2. Top Five National Nonbroadcast Networks
12. In order to implement the requirement that MVPDs provide video
description, we must also update the ``top 5 national nonbroadcast
networks that have at least 50 hours per quarter of prime time
programming that is not exempt.'' \33\ The prior rules determined the
top nonbroadcast networks using ``an average of the national audience
share during prime time of nonbroadcast networks, as determined by
Nielsen Media Research, Inc., for the time period October 1999-
September 2000, that reach 50 percent or more of MVPD households.''
\34\ Those rules did not contemplate that any programming would be
exempt, which made identification of those networks more
[[Page 14860]]
straightforward than under the new statutory requirements.\35\ We
propose to update the definition's time period to October 2009--
September 2010 (These dates cover the 2009-2010 television season,
which will be the most recent full television season from which ratings
will have been calculated and be available when the rules are adopted).
We also propose to explicitly exclude from the top five any non-
broadcast network that does not provide, on average, at least 50 hours
per quarter of prime time non-exempt programming, i.e., programming
that is not live or near-live.\36\ We seek comment regarding this
proposal, and particularly seek detailed information from any network
that believes it should be excluded from the top five covered networks
due to an insufficient amount of non-exempt programming. We note that
Nielsen treats some nonbroadcast ``channels'' as more than one
``network'' for ratings purposes; for example, Nickelodeon/Nick at Nite
and Cartoon Network/Adult Swim. We seek comment as to how we should
take this into account when determining which networks are subject to
the requirement to provide video description for 50 hours per quarter
of prime time or children's programming. According to staff analysis of
Nielsen data for the 2009-2010 television season, the top 5 national
nonbroadcast networks, based on an average of the national audience
share during prime time of nonbroadcast networks, are USA, the Disney
Channel, ESPN, TNT, and Nickelodeon's Nick at Nite. FCC Staff Analysis
based on data provided by Nielsen. Additional networks, some of which
are tied for audience share during the 2009-2010 television season,
which have the potential to be covered under the statute if any of the
top 5 do not provide the requisite hours of non-exempt programming,
include Fox News, TBS, A&E, History, the Cartoon Network's Adult Swim,
the Family Channel, and HGTV. Any network that believes it should be
excluded from the top five due to an insufficient amount of nonexempt
programming should provide notice in the Record before the close of the
Comment period. The network's Comments should be accompanied by an
affidavit stating how many hours of nonexempt programming it typically
airs per quarter (including how many hours of live programming and how
many hours of near-live programming, as we propose to define those
terms), as well as supporting documentation such as program schedules.
Parties that wish to challenge any such claims may do so in their Reply
Comments. If the Media Bureau determines that the information submitted
is insufficient to determine whether a particular network has at least
50 hours per quarter of non-exempt prime time programming, we authorize
the Bureau to seek additional information from the network or networks,
consistent with the requirements of the Paperwork Reduction Act.\37\
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\33\ CVAA, Title II, sec. 202(a), 713(f)(2)(B). ``Exempt''
programming includes ``live or near-live programming.'' See infra
para. 21.
\34\ 47 CFR 79.3(b)(3).
\35\ See infra para. 20, et seq.
\36\ See infra para. 21.
\37\ See infra note 51.
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13. Ratings of nonbroadcast networks often change over time. We
want to ensure that the rules apply to the top five national
nonbroadcast networks, as required by the CVAA. At the same time, we
also want to ensure that regulatees and the public at large have
adequate advance notice regarding which networks will be subject to the
rules, and to avoid undue disruption for audiences who will come to
rely upon video described programming. In light of these
considerations, we seek comment on whether we should reconsider the
ranking of the top five nonbroadcast networks at certain intervals to
better reflect current market conditions and, if so, what those
intervals should be.
C. Pass-Through of Video Described Programming
14. As noted above, under our previous video description rule,
broadcasters affiliated with any network and all MVPDs were required to
pass through any video description that they received from a broadcast
or cable network or, in the case of MVPDs, from a broadcast station
they carried, whenever they had the technical capability on the
relevant channel to pass through the video description, unless they
were using the technology necessary to provide such video description
for another purpose related to the programming that would conflict with
providing the video description.\38\ We propose to reinstate this rule
without revision. We also note that the must carry provision of the
Communications Act requires cable operators to carry ``the primary
video, accompanying audio, and line 21 closed caption transmission of
each of the local commercial television stations carried on the cable
system and, to the extent technically feasible, program-related
material carried in the vertical blanking interval or on subcarriers.''
\39\ Although the original rule refers to all ``television broadcast
stations,'' the 2000 Report and Order is unclear about whether this
requirement was intended to include low power stations. We seek comment
on the appropriate scope of the obligation to pass through description.
This obligation is distinct from the requirement to provide video
description that we propose to impose on certain broadcasters and
MVPDs. First, it applies to all MVPDs and network-affiliated broadcast
stations (including non-commercial stations), rather than a subset of
large-market entities.\40\ Second, broadcast stations and MVPDs with
the obligation to provide 50 hours of description must continue to pass
through any video description that they receive even after they have
provided the 50 required hours of description.\41\ Broadcast stations
and MVPDs that pass through video-described programming from a network
can count that programming toward their 50 hour obligation, so long as
it is either aired during prime time or is children's programming, and
has not been previously aired more than once since the adoption of our
rules. We note that, historically, most video described programming has
been provided by the broadcast and non-broadcast networks to the
broadcast stations and MVPDs, which pass it through and make it
available to consumers.
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\38\ 3847 CFR 79.3(b)(2), (4).
\39\ 3947 U.S.C. 534(b)(3), 47 CFR 76.62(e), (f) (cable); 47
U.S.C. 338(j), 47 CFR 76.66(j) (DBS). See also Carriage of Digital
Television Broadcast Signals; Amendments to Part 76 of the
Commission's Rules and Implementation of the Satellite Home Viewer
Improvement Act of 1999, First Report and Order and Further Notice
of Proposed Rulemaking, 16 FCC Rcd 2598, paras. 60-61 (2001).
\40\ 2000 Report and Order, supra note 2, at para. 30.
\41\ Recon, supra note 2, at para. 14 (The National Association
of Broadcasters recognized that entities that had met their 50 hour
obligation were still required to pass description through to
viewers).
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15. In the 2000 Report and Order, the Commission required any
station or MVPD with the ``technical capability'' to do so to pass
through video description.\42\ We said that we would ``consider
broadcast stations and MVPDs to have the technical capability necessary
to support video description if they have virtually all necessary
equipment and infrastructure to do so, except for items that would be
of minimal cost.'' \43\ On reconsideration, the Commission adopted an
exception to this requirement. When the secondary audio program
(``SAP'') equipment and channel was being used to provide another
program-related service, a station or MVPD did not have to stop
providing that service in order to pass through the video description.
This was based on the fact that the SAP
[[Page 14861]]
channel could not be used to provide two services simultaneously.\44\
For the same reason, the Commission also adopted this ``other program-
related service'' exception in subsections (c)(3) and (4) of the video
description rules (subsequent airings of described programming).\45\ In
the analog world, the SAP channel gave an entity the technical
capability to pass through video description, but the inherent
limitations of the technology meant that the entity could not provide
video description simultaneously with another secondary audio track.
Digital transmission, however, enables broadcasters and MVPDs to
provide numerous audio channels for any given video stream. Unlike with
SAP, therefore, digital technology allows simultaneous transmission of
a variety of program-related secondary audio tracks. Digital video
signals can have an enormous number of alternative audio tracks;
although as a practical matter that number may be limited by the amount
of bandwidth allocated to the programming stream, digital programming
can technically include more than three audio tracks.\46\ Given this
flexibility, is it necessary or appropriate to apply the ``other
program-related service'' exception to digital transmissions?
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\42\ 2000 Report and Order, supra note 2, at para. 30.
\43\ Id.
\44\ Id. at para. 15.
\45\ 47 CFR 79.3(c)(3), (4).
\46\ See MPEG Compression Standard ISO/IEC 13818-1; Advanced
Television Systems Committee A/53, A/52 Standards.
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16. Transmission of multiple audio tracks, even digitally, may
require the use of additional equipment by broadcasters and MVPDs. We
seek comment on what is needed for broadcast stations and MVPDs to have
the ``technical capability necessary'' to pass through video
description of digital programming, the extent to which affected
entities already have any necessary equipment or have incentives to
upgrade to this equipment for other purposes, and the cost of such
equipment and any other necessary upgrades. Specifically, we seek
comment on the costs of providing additional audio tracks once an
entity is technically capable of providing a secondary digital audio
track. What standards should we use to take these costs into account
when determining whether a distributor has ``the technical capability
necessary to pass through the video description''?
D. Phase-In
17. The CVAA requires us to reinstate the revised video description
rules ``on the day that is 1 year after the date of enactment,'' \47\
to provide ``an appropriate phased schedule of deadlines for
compliance,'' \48\ and to determine ``the beginning calendar quarter
for which compliance shall be calculated.'' \49\ We propose to adopt
and publish modified rules before October 8, 2011 (the date one year
after enactment) that will be effective thirty days after
publication,\50\ except for those requirements subject to Office of
Management and Budget (OMB) \51\ approval or that are phased-in as
described below. We seek comment on this proposed timeline.
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\47\ CVAA, Title II, sec. 202(a), 713(f)(1).
\48\ Id. at 713(f)(2)(F).
\49\ Id. at 713(f)(2)(B).
\50\ The Administrative Procedure Act requires that ``[t]he
required publication or service of a substantive rule shall be made
not less than 30 days before its effective date,'' with certain
exceptions. 5 U.S.C. 553(d).
\51\ The Paperwork Reduction Act requires that any new
regulation imposing a paperwork burden be reviewed and approved by
OMB before it becomes effective. The Paperwork Reduction Act of 1995
(``PRA''), Pub. L. No. 104-13, 109 Stat 163 (1995) (codified in
Chapter 35 of title 44 U.S.C.).
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18. We propose that on January 1, 2012, 85 days after the
reinstatement of the rules,\52\ affiliates of the top four networks
located in the top 25 markets begin providing 50 hours per calendar
quarter of video-described prime time and/or children's programming.
Similarly, we propose that on January 1, 2012,\53\ MVPDs with 50,000 or
more subscribers begin providing 50 hours per calendar quarter of
video-described prime time and/or children's programming on each of the
top five non-broadcast networks that they carry. We propose that,
should any MVPD not serving at least 50,000 subscribers on the
effective date of the rules begin to do so at a later date, it must
provide video description on the top five non-broadcast networks, in
the same manner as MVPDs currently serving 50,000 or more subscribers,
beginning no more than three months after reaching 50,000 subscribers.
Given that an MVPD should be aware in advance that it is approaching
the 50,000 subscriber threshold, we believe three months is adequate
time to ensure that it will be able to comply with this requirement. We
further propose that compliance with the ``50-described hours''
requirement be calculated for these broadcasters and MVPDs beginning in
the first calendar quarter of 2012.\54\ We also propose that
broadcasters and MVPDs comply with the pass-through requirement \55\
commencing January 1, 2012.
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\52\ The effective date of rules requiring OMB approval may be
later.
\53\ The effective date of rules requiring OMB approval may be
later.
\54\ The first quarter of measured compliance with any rules
requiring OMB approval may be later.
\55\ See supra paras. 14-16.
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19. We seek comment on these phase-in proposals. Will this
compliance schedule provide sufficient time for covered entities to
begin providing and passing through video described programming? Given
the limited number of hours of video description required at this
stage, we do not expect any significant delay in compliance as a result
of a need to negotiate with rights holders. We seek comment on this
conclusion. We note that although the CVAA deferred certain
implementation issues to the Commission, to a great extent the entities
that will be subject to our reinstated rules have been aware of the
pending requirements since at least the enactment of the CVAA on
October 8, 2010.
E. Exemptions
20. The CVAA recognizes the unique difficulties of providing video
description for programming that is produced live or shortly before it
is first aired, i.e., programming that is ``live or near-live.'' As a
result, the statute explicitly states that the regulations we adopt
``shall not apply to live or near-live programming,'' and directs us to
take this exemption into consideration when determining whether a non-
broadcast network is covered by the video description rules.\56\ The
CVAA also gives the Commission authority to provide certain other
categorical or individual exemptions, and we seek comment on whether
and how such exemptions should be provided.
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\56\ CVAA, Title II, sec. 202(a), 713(f)(2)(B), (E).
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1. Live or Near-Live Programming
21. Section 713(f)(2)(E) of the Communications Act, as added by the
CVAA, states that: ``[t]he regulations shall not apply to live or near-
live programming.'' \57\ We believe that ``live'' programming is, self-
evidently, programming aired substantially simultaneously with its
performance. This programming is often non-scripted, and would include,
for example, many sporting events and news programs.\58\ We are,
however, unaware of an accepted definition of ``near-live
programming.'' Some television programs, even if not aired ``live,''
are filmed and produced just hours before they are first aired. In
addition, we understand that some programs aired live on the East Coast
are aired three hours later on the West Coast. By
[[Page 14862]]
including ``near-live'' programming within the exemption, Congress
apparently wished to exempt programs produced such a short time before
airing that there is not sufficient time for the creation of video
descriptions. We therefore seek comment on a definition of ``near-live
programming'' that will ensure that programming is not covered by the
reinstated rules unless there is ample time to create and insert video
descriptions in the programming before it is aired. We propose that
programming performed and recorded less than 24 hours prior to the time
it is first aired be deemed ``near-live,'' and seek comment on this
proposal. We seek comment on how long it takes to produce video
descriptions, and request that those who prefer a shorter or longer
window for near-live programming support their alternative proposals
with information regarding the length of time needed to produce video
descriptions. How should our rule address the situation where a program
is substantially completed before the beginning of the ``near-live''
window, but edited during that window in ways which do not change the
basic content? How commonly does this occur in the production of major
network prime time programming? We note that we may modify our
definition of ``near-live programming'' in the future as broadcasters,
MVPDs, and programming producers gain experience with integrating video
description into their production and transmission cycle and it becomes
feasible to incorporate video descriptions closer to the time of
transmission of the programming.
---------------------------------------------------------------------------
\57\ Id. at 713(f)(2)(E).
\58\ See, e.g., Merriam-Webster Dictionary available at http://www.merriam-webster.com/dictionary/live (``broadcast directly at the
time of production'').
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2. Other Exemptions
22. Section 713(f)(2)(C) of the Communications Act, as added by the
CVAA, states that
[t]he regulations may permit a provider of video programming or a
program owner to petition the Commission for an exemption from the
requirements of [the video description provisions] upon a showing
that the requirements contained in this section be[sic] economically
burdensome.\59\
---------------------------------------------------------------------------
\59\ Id. at 713(f)(2)(C). We note that Section 713(f)(2)(C) is
expressed in permissive terms (e.g., ``the regulations may
permit''), rather than the mandatory language that appears in other
subsections of the legislation. Compare 713(f)(2)(A) (``the
regulations shall apply''). Accordingly, under subsection (C), the
Commission may permit exemptions based on the ``economically
burdensome'' standard, but is not required to do so.
We propose to reinstate the previously adopted process for requesting
an exemption from our rules. We also propose to replace the term
``undue burden'' in the rules with ``economically burdensome,'' as
described in the CVAA, and propose that we use the same factors as
applied to the undue burden standard. In the closed captioning context,
the Commission has previously found the standards to be quite ``closely
related.'' \60\ This will allow the video description rules to mirror
the ``economically burdensome'' standard currently used in the closed
captioning context. In the CVAA, Congress revised Section 713(d)(3) of
the Communications Act, dealing with closed captioning exemptions, to
remove the reference to the ``undue burden'' standard and replace it
with a reference to the ``economically burdensome'' standard. CVAA,
Title II, sec. 202(c). The Senate Commerce Committee report, in
discussing this provision of the CVAA, states that the Committee
``encourages the Commission, in its determination of `economically
burdensome' to use the factors listed in section 713(e).'' S. Rep. 111-
386, at 14 (2010). Section 713(e) of the Communications Act, which was
not amended by the CVAA, lists the factors to be considered when
determining if the closed captioning rules create an ``undue burden''
on a party (these factors are repeated in the Commission's rules at 47
CFR 79.1(f)(2); see paragraph 23, below). Thus, the Committee appears
to consider the two standards to be interchangeable, at least in the
closed captioning context. We seek comment on this proposal.
---------------------------------------------------------------------------
\60\ Closed Captioning and Video Description of Video
Programming, et al, MM Docket No. 95-176, Report and Order, 13 FCC
Rcd 3272, para. 143 (1997); but see para. 168 (noting the paucity of
useful legislative history).
---------------------------------------------------------------------------
23. The Commission previously determined in the closed captioning
context that compliance would constitute an ``undue burden'' for an
entity, therefore justifying an individual exemption from the rule,
upon a showing that the captioning requirements would result in
``significant difficulty or expense'' for the petitioner. Commission
rules explain that such exemptions may be granted for ``a channel of
video programming, a category or type of video programming, an
individual video service, a specific video program or a video
programming provider.'' 47 CFR 79.1(f)(1). The factors to be taken into
consideration when making an exemption determination under this section
are: (1) The nature and cost of the closed captions for the
programming; (2) the impact on the operation of the provider or program
owner; (3) the financial resources of the provider or program owner;
and (4) the type of operations of the provider or program owner.\61\
What are the circumstances under which the video description rules
might be, or might become, ``economically burdensome'' for covered
entities? What are the necessary costs for broadcasters, MVPDs, and the
producers of programming to begin providing 50 hours per calendar
quarter of video described programming? How are these costs different
in digital than in analog transmission? Specifically, are there any
considerations unique to particular MVPD delivery technologies, such as
DBS or IPTV, that might justify a partial exemption or delay? \62\
---------------------------------------------------------------------------
\61\ 47 CFR 79.1(f)(2). See also 47 U.S.C. 613(e) and supra note
68.
\62\ For the purposes of this proceeding, we consider Internet
Protocol delivery only to the extent it is used by an MVPD. The Act
directs the Commission to initiate a future inquiry about video
description in video programming distributed via the Internet. CVAA,
Title II, sec. 202(a), 713(f)(3)(B).
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24. What are the anticipated ongoing costs, per program or hour
described? What, on average, is the total cost to produce a single
program or hour of prime time programming on the major networks covered
by the requirement to provide video description? Will this requirement
add any ongoing costs other than the description itself? Comments from
both the purchasers and producers of video description would be of
great value in understanding these costs.
25. For those entities subject to the requirement to provide (and
not merely pass through) video description, we find it unlikely that
the modest requirement of 50 hours per quarter will be economically
burdensome; as discussed above, in the first phase this requirement
only applies to the top broadcast network affiliates in the biggest
markets, MVPDs serving more than 50,000 subscribers, and the most
popular nonbroadcast networks. Are there any particular concerns
regarding the economic burden of pass-through obligations, which will
apply to a much larger number of entities than the requirement to
provide video description? We seek comment on these issues.
26. Section 713(f)(2)(D) of the Communications Act, as added by the
CVAA, provides that
[t]he Commission may exempt from the regulations * * * a service,
class of services, program, class of programs, equipment, or class
of equipment for which the Commission has determined that the
application of such regulations would be economically burdensome for
the provider of such service, program, or equipment.\63\
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\63\ Id. at 713(f)(2)(D).
We are unaware of a need to exempt any such categories at this time,
beyond the
[[Page 14863]]
exemption for ``live or near-live'' programming discussed above. The
Commission will be actively studying the impact of our video
description rules over the next several years, as part of our
continuing Congressional reporting obligations.\64\ As a result, we
anticipate that there will be ample opportunity to resolve any problems
that impact an entire class of ``service, program, or equipment'' in
future Orders in this proceeding. We seek comment on our proposal not
to adopt new categorical exemptions, and on whether there are any
classes of ``service, program, or equipment'' that should be so
exempted.
---------------------------------------------------------------------------
\64\ Id. at 713(f)(3), (4)(C)(iii).
---------------------------------------------------------------------------
F. Digital Format
27. Section 713(f)(2)(A) of the Communications Act, as added by the
CVAA, states that ``[t]he regulations shall apply to video programming,
as defined in subsection (h), insofar as such programming is
transmitted for display on television in digital format.'' \65\ When
the video description rules were originally adopted in 2000, digital
television was in its relative infancy, and those rules explicitly did
not extend to digital transmission of programming.\66\ At the time, the
Commission indicated that it expected to extend the rules to cover
digital broadcasting ``after there has been further experience with
both digital broadcasting and video description.'' \67\ On June 12,
2009 full-power television broadcasters nationwide completed their
transition to digital-only broadcasting,\68\ and a number of digital
broadcasters and digitally transmitted nonbroadcast networks have been
providing video description to viewers for even longer.\69\ We propose,
therefore, to extend the reinstated rules to cover all video
programming, including that transmitted for display on television in
digital format. We seek comment on this proposal.
---------------------------------------------------------------------------
\65\ Id. at 713(f)(2)(A). See also id. at 713(h)(2) (``The term
`video programming' means programming by, or generally considered
comparable to programming provided by a television broadcast
station, but not including consumer-generated media (as defined in
section 3).''); see also id. at Title I, sec. 101, Sec. 3(54)
(``The term `consumer generated media' means content created and
made available by consumers to online Web sites and services on the
Internet, including video, audio, and multimedia content.'').
\66\ 2000 Report and Order, supra note 2, at para. 7; Recon,
supra note 2, at para. 18.
\67\ Id.
\68\ Press Release, Federal Communications Commission, Full-
Power TV Broadcasters Go All-Digital (June 13, 2009).
\69\ See supra para. 4.
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28. A separate issue, exclusive to digital broadcasting, is the
ability of digital television broadcasters to transmit multiple streams
of programming on a single channel. We propose to consider only
programming on the primary programming stream when measuring a
broadcast station's compliance with the ``50 described hours''
requirement, unless the station carries a top-four national network on
another stream. How should we apply the rules when a station is
affiliated with more than one network? In situations in which a
broadcast station carries another top-four network's programming on a
secondary stream, we propose to apply the rules in the same manner as
if the network programming were carried by a separate station. We seek
comment on this proposal. We also propose to impose the pass-through
requirement, discussed above, on all network-provided programming
carried on all of an affiliated station's programming streams. This
approach would ensure the availability of described programming to the
widest possible audience. In particular, this requirement would ensure
that those who subscribe to an MVPD service that only carries the
broadcast station's primary stream would have access to described
programming. We seek comment on these proposals.
G. Other Issues
29. Quality Standards. We seek comment on whether we should adopt
quality standards for video description. Although some quality issues
might be subjective (dealing with the content of the narration) and
therefore difficult to enforce, others might be addressed in an
objective standard. For example, the Commission could adopt a standard
requiring that video description not conflict with dialogue or other
important audio in the program. Additionally, the Commission could
require video description to be synchronous with the action it is
describing. Is it necessary for the Commission to adopt these or other
standards? If so, what standards would be necessary or appropriate?
Does the Commission have authority to adopt such standards and could we
do so consistent with the First Amendment? Commenters who support
adoption of such quality standards should also propose either standards
or existing sources that could serve as the basis for standards.
Whether or not the Commission adopts mandatory standards, are there
existing sources of such standards? Should the industry develop a list
of best practices? We solicit input on what some of these practices
might be.
30. Program Selection. For informational purposes, we also seek
comment on how programs are likely to be chosen for description. Do
entities plan to determine which shows to describe based on popularity
or input from community advisory groups, or the degree to which a
particular program would be enhanced by video description, or do they
anticipate taking a different approach to choosing programs for video
description? Do the costs or benefits of description change with
different types or formats of program? How do entities intend to
publicize the availability of video description? Only a subset of
programming will contain video description. Therefore, should the
Commission require that the availability of video description on
certain programs be publicized in a certain manner, and if so, what is
the best way to do so and does the Commission have authority to require
the covered entities to publicize this information? We seek comment on
these questions.
31. Updated A/53 Standard. The Commission's Rules incorporate the
ATSC digital broadcast standard by reference, but have not been updated
to reflect the 2010 revisions to the A/53 standard.\70\ The 2007
standard currently in effect under our rules includes two options for
transmission of the Visually Impaired (``VI'') audio service that would
typically carry video descriptions. The first option is compatible with
all DTV receivers. The second option requires support in DTV receivers
that is rarely implemented. In the latest version of A/53 Part 5
adopted by ATSC, the second option has been eliminated.\71\ We propose
to update our rules to incorporate A/53 Part 5: 2010 in order to ensure
that video description can be received by all DTV receivers. We seek
comment on this proposal.
---------------------------------------------------------------------------
\70\ 47 CFR 73.682(d).
\71\ ATSC Digital Television Standard, Document A/53 Part 5:
2010 (July 6, 2010).
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32. Children's Programming. Under the proposed rules, broadcast
stations and MVPDs required to provide 50 hours of video described
programming per quarter may do so during prime time or children's
programming.\72\ The
[[Page 14864]]
proposed rules define ``prime time'' for video description
purposes.\73\ The Commission's rules define ``children's programming''
differently in different contexts. For instance, we impose limits on
commercial advertising in programming ``produced and broadcast
primarily for an audience of children 12 years old and younger.'' \74\
Our processing guidelines regarding ``educational and informational''
programming for children, on the other hand, apply to programming that
``furthers the educational and informational needs of children 16 years
of age and under.'' \75\ Because older children with vision or other
impairments can benefit from video description, we propose to define
children's programming in this context as programming directed at
children 16 years of age and under. We seek comment on this proposal.
---------------------------------------------------------------------------
\72\ As the Commission explained in the 2000 Report and Order,
Prime time programming is the most watched programming, and so
programming provided during this time will reach more people than
programming provided at any other time. In addition, as we noted in
the Notice, the several thousand dollars per hour cost to describe
programming is a very small portion of the production budget for the
typical prime time program. At the same time, as we noted in the
Notice, programming with video description may provide a benefit not
only to children who are visually disabled, but also to those who
are learning disabled. Programming with video description has both
audio description and visual appeal, and so has the potential to
capture the attention of learning disabled children and enhance
their information processing skills. Requiring broadcast stations
and MVPDs to provide children's or prime time programming with video
description thus ensures that the programming reaches the greatest
portion of the audience it is intended to benefit the most.
Permitting broadcast stations and MVPDs to select between the two
provides them flexibility without compromising that goal.
2000 Report and Order, supra note 2, at para. 36 (internal
citations omitted).
\73\ Supra para. 6; see also Appendix A.
\74\ 47 CFR 73.670, note 2.
\75\ 47 CFR 73.671(c).
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33. Subsection G. Section 713(f)(2)(G) of the Communications Act,
as added by the CVAA, says that
[t]he Commission shall consider extending the exemptions and
limitations in the reinstated regulations for technical capability
reasons to all providers and owners of video programming.\76\
---------------------------------------------------------------------------
\76\ CVAA, Title II, sec. 202(a), 713(f)(2)(G).
We propose not to take any action under this provision. We seek comment
on this proposal.
34. Non-Substantive Revisions. In addition to the proposals above,
we intend to make necessary non-substantive revisions to the rules.
These include revisions and additions to the Definitions section of the
prior rules,\77\ changes to the second paragraph of the Procedures for
Exemptions section \78\ to reflect that they apply to video programming
``providers'' rather than just video programming ``distributors,'' \79\
updates to the Complaint Procedures \80\ to reflect the valid current
address and name of the Consumer and Governmental Affairs Bureau, and
non-substantive wording changes intended to make the meaning of the
rules clearer. We seek comment on any other necessary technical
revisions to the reinstated rules.
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\77\ 47 CFR 79.3(a). At a minimum, this will include a
definition of ``Live or Near-live Programming.''
\78\ 47 CFR 79.3(d)(2).
\79\ The Recon changed the scope of the undue burden exemption
so that it applied to ``providers'' rather than just to
``distributors,'' but while 47 CFR 79.3(d)(1) was updated to reflect
this change, 47 CFR 79.3(d)(2) was not.
\80\ 47 CFR 79.3(e).
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35. Other Comments Requested. Finally, we invite comment on any
other issues relating to the reinstatement and modification of our
Video Description rules.
IV. Procedural Matters
A. Initial Paperwork Reduction Act of 1995 Analysis
36. 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.''
B. Ex Parte Rules
37. Permit-But-Disclose. This proceeding will be treated as a
``permit-but-disclose'' proceeding subject to the ``permit-but-
disclose'' requirements under section 1.1206(b) of the Commission's
rules.\81\ 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.\82\ Additional
rules pertaining to oral and written presentations are set forth in
Section 1.1206(b).
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\81\ See 47 CFR 1.1206(b); see also 47 CFR 1.1202, 1.1203.
\82\ See 47 CFR 1.1206(b)(2).
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C. Filing Requirements
38. Pursuant to sections 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: (1) The Commission's Electronic
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking
Portal, or (3) by filing paper copies. 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://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov.
Paper Filers: Parties who choose to file by paper must
file an original and four copies 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.
Effective December 28, 2009, all hand-delivered or
messenger-delivered paper filings for the Commission's Secretary must
be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325,
Washington, DC 20554. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes must be disposed of before
entering the building. The filing hours are 8 a.m. to 7 p.m.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
People With Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an e-mail to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
39. Availability of Documents. Comments, reply comments, and ex
parte submissions will be available for public inspection during
regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street, SW.,
[[Page 14865]]
CY-A257, Washington, DC 20554. These documents will also be available
via ECFS. Documents will be available electronically in ASCII,
Microsoft Word, and/or Adobe Acrobat.
40. Accessibility Information. To request information in accessible
formats (computer diskettes, large print, audio recording, and
Braille), send an e-mail to [email protected] or call the FCC's Consumer
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY). This document can also be downloaded in Word and Portable
Document Format (PDF) at: http://www.fcc.gov.
41. Additional Information. For additional information on this
proceeding, contact John Norton, [email protected], or Lyle Elder,
[email protected], of the Media Bureau, Policy Division, (202) 418-
2120.
D. Initial Regulatory Flexibility Analysis
42. With respect to the NPRM, an Initial Regulatory Flexibility
Analysis (``IRFA''), see generally 5 U.S.C. 603, follows. Comments must
be identified as responses to the IRFA and must be filed by the
deadlines for comments on the NPRM specified supra. The Commission will
send a copy of the NPRM, including the IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration.\83\
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\83\ See 5 U.S.C. 603(a). In addition, the Notice of Proposed
Rulemaking and the IRFA (or summaries thereof) will be published in
the Federal Register.
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Initial Regulatory Flexibility Analysis
43. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA'') \84\ the Commission has prepared this Initial
Regulatory Flexibility Analysis (``IRFA'') of the possible economic
impact on a substantial number of small entities by the policies and
rules proposed in this Notice of Proposed Rulemaking (``NPRM'').
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 on the NPRM as indicated on its first page. The Commission
will send a copy of the NPRM, including this IRFA, to the Chief Counsel
for Advocacy of the Small Business Administration (``SBA'').\85\ In
addition, the NPRM and IRFA (or summaries thereof) will be published in
the Federal Register.\86\
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\84\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (``SBREFA''), Public Law 104-121, Title II, 110 Stat. 857
(1996).
\85\ See 5 U.S.C. 603(a).
\86\ See id.
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E. Need for, and Objectives of, the Proposals
44. This NPRM proposes and seeks comment on reinstatement of the
Commission's video description rules, which make television programming
more accessible to persons with visual disabilities. The United States
Court of Appeals for the District of Columbia Circuit vacated the rules
due to insufficient authority soon after initial adoption.\87\ With its
enactment, the CVAA now directs the Commission to reinstate the rules
with certain modifications.\88\ The proposed rules require large-market
broadcast affiliates of the top four national networks and multichannel
video programming distributors (``MVPDs'') with more than 50,000
subscribers to provide video description.\89\ Covered broadcasters are
required to provide 50 hours of video-described prime time or
children's programming, per quarter, and covered MVPDs are required to
provide the same number of hours on each of the five most popular
nonbroadcast networks.\90\ This requirement to provide description will
effect few, if any, small entities. The rules also require, to the
extent technically possible, that all network-affiliated broadcasters
(commercial or non-commercial) and all MVPDs pass through any video
description provided with programming they carried.\91\ This pass-
through requirement will effect any small MVPDs and network-affiliated
broadcasters. As required under the CVAA, we propose to reinstate these
rules on October 8, 2011, and to require broadcast stations and MVPDs
subject to our rules to begin full compliance in the first quarter of
2012. We also propose to make certain modifications to the rules, as
directed by the CVAA. Notably, these modifications include the
exemption of ``live or near-live'' programming from consideration under
the rules. We seek comment on the definition of ``near-live,'' propose
that programs produced within 24 hours of their first airing be
considered ``near-live'' in the context of video description, and also
seek comment on other possible grounds for exemption from the rules.
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\87\ Motion Picture Ass'n of America, Inc. v. Federal
Communications Comm., 309 F.3d 796 (D.C. Cir. 2002).
\88\ Twenty-First Century Communications and Video Accessibility
Act of 2010, Public Law 111-260, 124 Stat. 2751 (2010) (``CVAA'') at
Title II, sec. 202(a), 713(f)(1-2).
\89\ 47 CFR 79.3(b).
\90\ Id. at Sec. 79.3(b)(1), (3).
\91\ Id. at Sec. 79.3(b)(2), (4).
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F. Legal Basis
45. The authority for the action proposed in this rulemaking is
contained in the Twenty-First Century Communications and Video
Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751, and
Sections 1, 2(a), 4(i), 303, 307, 309, 310, and 713 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i),
303, 307, 309, 310, and 613.
G. Description and Estimate of the Number of Small Entities to Which
the Proposals Will Apply
46. 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.\92\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \93\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.\94\ A ``small business concern'' is one
which: (1) Is independently owned and operated; (2) is not dominant in
its field of operation; and (3) satisfies any additional criteria
established by the Small Business Administration (SBA).\95\ The rule
changes proposed herein will directly affect small television broadcast
stations and small multichannel video program distributors (MVPDs),
which include cable operators and satellite video providers. A
description of these small entities, as well as an estimate of the
number of such small entities, is provided below.
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\92\ 5 U.S.C. 603(b)(3).
\93\ 5 U.S.C. 601(b).
\94\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small-business concern'' in the Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and
after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of
the agency and publishes such definition(s) in the Federal
Register.''
\95\ 15 U.S.C. 632.
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47. Television Broadcasting. The SBA defines a television
broadcasting station as a small business if such station has no more
than $14.0 million in annual receipts.\96\ Business concerns included
in this industry are those ``primarily engaged in broadcasting images
together with sound.'' \97\ The Commission has
[[Page 14866]]
estimated the number of licensed commercial television stations to be
1,392.\98\ According to Commission staff review of the BIA/Kelsey,
MAPro Television Database (``BIA'') as of April 7, 2010, about 1,015 of
an estimated 1,380 commercial television stations \99\ (or about 74
percent) have revenues of $14 million or less and, thus, qualify as
small entities under the SBA definition. The Commission has estimated
the number of licensed noncommercial educational (NCE) television
stations to be 390.\100\ We note, however, that, in assessing whether a
business concern qualifies as small under the above definition,
business (control) affiliations \101\ must be included. Our estimate,
therefore, likely overstates the number of small entities that might be
affected by our action, because the revenue figure on which it is based
does not include or aggregate revenues from affiliated companies. The
Commission does not compile and otherwise does not have access to
information on the revenue of NCE stations that would permit it to
determine how many such stations would qualify as small entities.
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\96\ See 13 CFR 121.201, NAICS Code 515120 (2007).
\97\ Id. This category description continues, ``These
establishments operate television broadcasting studios and
facilities for the programming and transmission of programs to the
public. These establishments also produce or transmit visual
programming to affiliated broadcast television stations, which in
turn broadcast the programs to the public on a predetermined
schedule. Programming may originate in their own studios, from an
affiliated network, or from external sources.'' Separate census
categories pertain to businesses primarily engaged in producing
programming. See Motion Picture and Video Production, NAICS code
512110; Motion Picture and Video Distribution, NAICS Code 512120;
Teleproduction and Other Post-Production Services, NAICS Code
512191; and Other Motion Picture and Video Industries, NAICS Code
512199.
\98\ See News Release, ``Broadcast Station Totals as of December
31, 2009,'' 2010 WL 676084 (F.C.C.) (dated Feb. 26, 2010)
(``Broadcast Station Totals''); also available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-296538A1.pdf.
\99\ We recognize that this total differs slightly from that
contained in Broadcast Station Totals, supra, note 15; however, we
are using BIA's estimate for purposes of this revenue comparison.
\100\ See Broadcast Station Totals, supra, note 15.
\101\ ``[Business concerns] are affiliates of each other when
one concern controls or has the power to control the other or a
third party or parties controls or has to power to control both.''
13 CFR 121.103(a)(1).
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48. In addition, an element of the definition of ``small business''
is that the entity not be dominant in its field of operation. We are
unable at this time to define or quantify the criteria that would
establish whether a specific television station is dominant in its
field of operation. Accordingly, the estimate of small businesses to
which rules may apply do not exclude any television station from the
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also, as noted, an additional element of the
definition of ``small business'' is that the entity must be
independently owned and operated. We note that it is difficult at times
to assess these criteria in the context of media entities and our
estimates of small businesses to which they apply may be over-inclusive
to this extent.
49. Satellite Telecommunications. Since 2007, the SBA has
recognized satellite firms within this revised category, with a small
business size standard of $15 million.\102\ The most current Census
Bureau data are from the economic census of 2007, and we will use those
figures to gauge the prevalence of small businesses in this category.
Those size standards are for the two census categories of ``Satellite
Telecommunications'' and ``Other Telecommunications.'' Under the
``Satellite Telecommunications'' category, a business is considered
small if it had $15 million or less in average annual receipts.\103\
Under the ``Other Telecommunications'' category, a business is
considered small if it had $25 million or less in average annual
receipts.\104\
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\102\ See 13 CFR 121.201, NAICS code 517410.
\103\ Id.
\104\ See 13 CFR 121.201, NAICS code 517919.
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50. The first category of Satellite Telecommunications ``comprises
establishments primarily engaged in providing point-to-point
telecommunications services to other establishments in the
telecommunications and broadcasting industries by forwarding and
receiving communications signals via a system of satellites or
reselling satellite telecommunications.'' \105\ For this category,
Census Bureau data for 2007 show that there were a total of 512 firms
that operated for the entire year.\106\ Of this total, 464 firms had
annual receipts of under $10 million, and 18 firms had receipts of $10
million to $24,999,999.\107\ Consequently, we estimate that the
majority of Satellite Telecommunications firms are small entities that
might be affected by rules adopted pursuant to the NPRM.
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\105\ U.S. Census Bureau, 2007 NAICS Definitions, ``517410
Satellite Telecommunications''.
\106\ See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&-_lang=en.
\107\ Id.
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51. The second category of Other Telecommunications consists of
firms ``primarily engaged in providing specialized telecommunications
services, such as satellite tracking, communications telemetry, and
radar station operation. This industry also includes establishments
primarily engaged in providing satellite terminal stations and
associated facilities connected with one or more terrestrial systems
and capable of transmitting telecommunications to, and receiving
telecommunications from, satellite systems. Establishments providing
Internet services or voice over Internet protocol (VoIP) services via
client-supplied telecommunications connections are also included in
this industry.'' \108\ For this category, Census Bureau data for 2007
show that there were a total of 2,383 firms that operated for the
entire year.\109\ Of this total, 2,346 firms had annual receipts of
under $25 million.\110\ Consequently, we estimate that the majority of
Other Telecommunications firms are small entities that might be
affected by our action.
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\108\ U.S. Census Bureau, 2007 NAICS Definitions, ``517919 Other
Telecommunications'', http://www.census.gov/naics/2007/def/ND517919.HTM.
\109\ See 13 CFR 121.201, NAICS code 517919.
\110\ U.S. Census Bureau, 2007 Economic Census, Subject Series:
Information, Table 5, ``Establishment and Firm Size: Employment Size
of Firms for the United States: 2007 NAICS Code 517919'' (issued
Nov. 2010).
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52. 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,'' \111\ which was developed for small wireline firms. Under
this category, the SBA deems a wireline business to be small if it has
1,500 or fewer employees.\112\ To gauge small business prevalence for
the DBS service, the Commission relies on data currently available from
the U.S. Census for the year 2007. According to that source, there were
3,188 firms that in 2007 were Wired Telecommunications Carriers. Of
these, 3,144 operated with less than 1,000 employees, and 44 operated
with more than 1,000 employees. However, as to the latter 44 there is
no data available that shows how many operated with more than 1,500
employees. Based on this data, the majority of these firms can be
considered small.\113\ Currently, only two entities provide DBS
service, which requires a great investment of capital for operation:
DIRECTV and EchoStar Communications Corporation (``EchoStar'')
(marketed as the DISH Network).\114\ Each currently offers
[[Page 14867]]
subscription services. DIRECTV \115\ and EchoStar \116\ each report
annual revenues that are in excess of the threshold for a small
business. Because DBS service requires significant capital, we believe
it is unlikely that a small entity as defined by the SBA would have the
financial wherewithal to become a DBS service provider.
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\111\ See 13 CFR 121.201, NAICS code 517110 (2007). The 2007
NAICS definition of the category of ``Wired Telecommunications
Carriers'' is in paragraph 7, above.
\112\ 13 CFR 121.201, NAICS code 517110 (2007).
\113\ See http://www.factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
\114\ See Annual Assessment of the Status of Competition in the
Market for the Delivery of Video Programming, Thirteenth Annual
Report,, 24 FCC Rcd 542, 580, para. 74 (2009) (``13th Annual
Report''). We note that, in 2007, EchoStar purchased the licenses of
Dominion Video Satellite, Inc. (``Dominion'') (marketed as Sky
Angel). See Public Notice, ``Policy Branch Information; Actions
Taken,'' Report No. SAT-00474, 22 FCC Rcd 17776 (IB 2007).
\115\ As of June 2006, DIRECTV is the largest DBS operator and
the second largest MVPD, serving an estimated 16.20% of MVPD
subscribers nationwide. See 13th Annual Report, 24 FCC Rcd at 687,
Table B-3.
\116\ As of June 2006, DISH Network is the second largest DBS
operator and the third largest MVPD, serving an estimated 13.01% of
MVPD subscribers nationwide. Id. As of June 2006, Dominion served
fewer than 500,000 subscribers, which may now be receiving ``Sky
Angel'' service from DISH Network. See id. at 581, para. 76.
---------------------------------------------------------------------------
53. Fixed Microwave Services. Fixed microwave services include
common carrier,\117\ private operational-fixed,\118\ and broadcast
auxiliary radio services.\119\ At present, there are approximately
22,015 common carrier fixed licensees and 61,670 private operational-
fixed licensees and broadcast auxiliary radio licensees in the
microwave services. The Commission has not created a size standard for
a small business specifically with respect to fixed microwave services.
For purposes of this analysis, the Commission uses the SBA small
business size standard for Wireless Telecommunications Carriers (except
Satellite), which is 1,500 or fewer employees.\120\ The Commission does
not have data specifying the number of these licensees that have more
than 1,500 employees, and thus is unable at this time to estimate with
greater precision the number of fixed microwave service licensees that
would qualify as small business concerns under the SBA's small business
size standard. Consequently, the Commission estimates that there are up
to 22,015 common carrier fixed licensees and up to 61,670 private
operational-fixed licensees and broadcast auxiliary radio licensees in
the microwave services that may be small and may be affected by the
rules and policies adopted herein. We note, however, that the common
carrier microwave fixed licensee category includes some large entities.
---------------------------------------------------------------------------
\117\ See 47 CFR 101 et seq. (formerly, Part 21 of the
Commission's Rules) for common carrier fixed microwave services
(except Multipoint Distribution Service).
\118\ Persons eligible under parts 80 and 90 of the Commission's
Rules can use Private Operational-Fixed Microwave services. See 47
CFR parts 80 and 90. Stations in this service are called
operational-fixed to distinguish them from common carrier and public
fixed stations. Only the licensee may use the operational-fixed
station, and only for communications related to the licensee's
commercial, industrial, or safety operations.
\119\ Auxiliary Microwave Service is governed by Part 74 of
Title 47 of the Commission's Rules. See 47 CFR part 74. This service
is available to licensees of broadcast stations and to broadcast and
cable network entities. Broadcast auxiliary microwave stations are
used for relaying broadcast television signals from the studio to
the transmitter, or between two points such as a main studio and an
auxiliary studio. The service also includes mobile television
pickups, which relay signals from a remote location back to the
studio.
\120\ See 13 CFR 121.201, NAICS code 517210.
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54. Cable and Other Program Distribution. Since 2007, these
services have been defined within the broad economic census category of
Wired Telecommunications Carriers; that category is defined as follows:
``This industry comprises establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired telecommunications networks. Transmission
facilities may be based on a single technology or a combination of
technologies.'' \121\ The SBA has developed a small business size
standard for this category, which is: All such firms having 1,500 or
fewer employees.\122\ According to Census Bureau data for 2007, there
were a total of 955 firms in this previous category that operated for
the entire year.\123\ Of this total, 939 firms had employment of 999 or
fewer employees, and 16 firms had employment of 1000 employees or
more.\124\ Thus, under this size standard, the majority of firms can be
considered small and may be affected by rules adopted pursuant to the
NPRM.
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\121\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired
Telecommunications Carriers'' (partial definition), http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
\122\ 13 CFR 121.201, NAICS code 517110 (2007).
\123\ U.S. Census Bureau, 2007 Economic Census, Subject Series:
Information, Table 5, Employment Size of Firms for the United
States: 2007, NAICS code 5171102 (issued Nov. 2010).
\124\ See id.
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55. 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.\125\ Industry
data indicate that, of 1,076 cable operators nationwide, all but eleven
are small under this size standard.\126\ In addition, under the
Commission's rules, a ``small system'' is a cable system serving 15,000
or fewer subscribers.\127\ Industry data indicate that, of 7,208
systems nationwide, 6,139 systems have under 10,000 subscribers, and an
additional 379 systems have 10,000-19,999 subscribers.\128\ Thus, under
this second size standard, most cable systems are small and may be
affected by rules adopted pursuant to the NPRM.
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\125\ See 47 CFR 76.901(e). The Commission determined that this
size standard equates approximately to a size standard of $100
million or less in annual revenues. See Implementation of Sections
of the 1992 Cable Television Consumer Protection and Competition
Act: Rate Regulation, MM Docket Nos. 92-266, 93-215, Sixth Report
and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393,
7408 para. 28 (1995).
\126\ These data are derived from R.R. Bowker, Broadcasting &
Cable Yearbook 2006, ``Top 25 Cable/Satellite Operators,'' pages A-8
& C-2 (data current as of June 30, 2005); Warren Communications
News, Television & Cable Factbook 2006, ``Ownership of Cable Systems
in the United States,'' pages D-1805 to D-1857.
\127\ See 47 CFR 76.901(c).
\128\ Warren Communications News, Television & Cable Factbook
2006, ``U.S. Cable Systems by Subscriber Size,'' page F-2 (data
current as of Oct. 2005). The data do not include 718 systems for
which classifying data were not available.
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56. Cable System Operators. The Act also contains a size standard
for small cable system operators, which is ``a cable operator that,
directly or through an affiliate, serves in the aggregate fewer than 1
percent of all subscribers in the United States and is not affiliated
with any entity or entities whose gross annual revenues in the
aggregate exceed $250,000,000.'' \129\ The Commission has determined
that an operator serving fewer than 677,000 subscribers shall be deemed
a small operator, if its annual revenues, when combined with the total
annual revenues of all its affiliates, do not exceed $250 million in
the aggregate.\130\ Industry data indicate that, of 1,076 cable
operators nationwide, all but ten are small under this size
standard.\131\ We note that the Commission neither requests nor
collects information on whether cable system operators are affiliated
with entities whose gross annual revenues exceed $250 million,\132\ and
therefore
[[Page 14868]]
we are unable to estimate more accurately the number of cable system
operators that would qualify as small under this size standard.
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\129\ 47 U.S.C. 543(m)(2); see also 47 CFR 76.901(f) & nn.1-3.
\130\ 47 CFR 76.901(f); see FCC Announces New Subscriber Count
for the Definition of Small Cable Operator, Public Notice, 16 FCC
Rcd 2225 (Cable Services Bureau 2001).
\131\ These data are derived from R.R. Bowker, Broadcasting &
Cable Yearbook 2006, ``Top 25 Cable/Satellite Operators,'' pages A-8
& C-2 (data current as of June 30, 2005); Warren Communications
News, Television & Cable Factbook 2006, ``Ownership of Cable Systems
in the United States,'' pages D-1805 to D-1857.
\132\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's
finding that the operator does not qualify as a small cable operator
pursuant to Sec. 76.901(f) of the Commission's rules.
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57. Open Video Services. The open video system (``OVS'') framework
was established in 1996, and is one of four statutorily recognized
options for the provision of video programming services by local
exchange carriers.\133\ The OVS framework provides opportunities for
the distribution of video programming other than through cable systems.
Because OVS operators provide subscription services,\134\ OVS falls
within the SBA small business size standard covering cable services,
which is ``Wired Telecommunications Carriers.'' \135\ The SBA has
developed a small business size standard for this category, which is:
all such firms having 1,500 or fewer employees. According to Census
Bureau data for 2007, there were a total of 3,188 firms in this
previous category that operated for the entire year.\136\ Of this
total, 3,144 firms had employment of 999 or fewer employees, and 44
firms had employment of 1000 employees or more.\137\ Thus, under this
size standard, most cable systems are small and may be affected by
rules adopted pursuant to the NPRM. In addition, we note that the
Commission has certified some OVS operators, with some now providing
service.\138\ Broadband service providers (``BSPs'') are currently the
only significant holders of OVS certifications or local OVS
franchises.\139\ The Commission does not have financial or employment
information regarding the entities authorized to provide OVS, some of
which may not yet be operational. Thus, again, at least some of the OVS
operators may qualify as small entities.
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\133\ 47 U.S.C. 571(a)(3)-(4). See Annual Assessment of the
Status of Competition in the Market for the Delivery of Video
Programming, MB Docket No. 06-189, Thirteenth Annual Report, 24 FCC
Rcd 542, 606 para. 135 (2009) (``Thirteenth Annual Cable Competition
Report'').
\134\ See 47 U.S.C. 573.
\135\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired
Telecommunications Carriers''; http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.
\136\ U.S. Census Bureau, 2007 Economic Census, Subject Series:
Information, Table 5, Employment Size of Firms for the United
States: 2007, NAICS code 5171102 (issued Nov. 2010).
\137\ See id.
\138\ A list of OVS certifications may be found at http://www.fcc.gov/mb/ovs/csovscer.html.
\139\ See Thirteenth Annual Cable Competition Report, 24 FCC Rcd
at 606-07 para. 135. BSPs are newer firms that are building state-
of-the-art, facilities-based networks to provide video, voice, and
data services over a single network.
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H. Description of Projected Reporting, Record Keeping, and Other
Compliance Requirements for Small Entities
58. The NPRM seeks comment on rules that would affect small
television broadcast stations and MVPDs by requiring them to pass
through a secondary audio track, containing video description, with any
described programming that is provided by a network. The description
need not be passed through if the station or MVPD does not have the
technical capability to pass it through, or if the entity is already
using all of the secondary audio capacity associated with that program
for other program-related material. If any small entities are subject
to the separate requirement to ``provide'' video description, we
anticipate that they will do so by passing description through to
viewers. This separate requirement will thus impose no distinct burden
on small broadcasters or MVPDs. These requirements may in some cases
result in the need for engineering services. The NPRM seeks comment, in
part, on whether the rules could require the purchase of additional
equipment.
I. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
59. 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.\140\ We seek comment on the applicability of any of these
alternatives to affected small entities.
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\140\ 5 U.S.C. 603(c)(1)-(c)(4).
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60. The requirements proposed in the NPRM, including those
affecting small broadcasters and MVPDs, are largely mandated by
Congress. They would in most cases create minimal economic impact on
small entities, and could provide positive economic impact by
increasing viewership by persons with visual impairments. The
Commission has statutory authority to determine the effective date of
the rules, and to exempt parties or classes from operation of any or
part of the proposed rules. We invite small entities to submit comment
on the impact of the proposed rules, and on how the Commission could
further minimize potential burdens on small entities if the proposals
provided in the NPRM, or those submitted into the record, are
ultimately adopted.
J. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
None.
V. Ordering Clauses
61. 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 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.
62. It is ordered that the Reference Information Center, Consumer
and Governmental Affairs Bureau, shall send a copy of this Notice of
Proposed Rulemaking, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects
47 CFR Part 73
Civil defense, Communications equipment, Defense communications,
Education, Equal employment opportunity, Foreign relations, Mexico,
Political candidates, Radio, Reporting and recordkeeping requirements,
Television.
47 CFR Part 79
Cable television.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission Proposes 47 CFR parts 73 and 79 as follows:
PART 73--RADIO BROADCAST SERVICES
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336, and 339.
2. Section 73.682 is amended by revising paragraph (d) to read as
follows:
Sec. 73.682 TV Transmission Standards.
* * * * *
[[Page 14869]]
(d) Digital broadcast television transmission standard. Effective
May 29, 2008 transmission of digital broadcast television (DTV) signals
shall comply with the standards for such transmissions set forth in
ATSC A/52: ``ATSC Standard Digital Audio Compression (AC-3)''
(incorporated by reference, see Sec. 73.8000), ATSC A/53, Parts 1-4
and 6: 2007 ``ATSC Digital Television Standard,'' (January 3, 2007),
and ATSC A/53, Part 5: 2010 ``ATSC Digital Television Standard,'' (July
6, 2010), except for section 6.1.2 (``Compression Format Constraints'')
of A/53 Part 4: 2007 (``MPEG-2 Video Systems Characteristics'') and the
phrase ``see Table 6.2'' in section 6.1.1 Table 6.1 and section 6.1.3
Table 6.3 (incorporated by reference, see Sec. 73.8000), and ATSC A/
65C: ``ATSC Program and System Information Protocol for Terrestrial
Broadcast and Cable, Revision C With Amendment No. 1 dated May 9,
2006,'' (January 2, 2006) (incorporated by reference, see Sec.
73.8000). Although not incorporated by reference, licensees may also
consult ATSC A/54A: ``Recommended Practice: Guide to Use of the ATSC
Digital Television Standard, including Corrigendum No. 1,'' (December
4, 2003, Corrigendum No. 1 dated December 20, 2006, and ATSC A/69:
``Recommended Practice PSIP Implementation Guidelines for
Broadcasters,'' (June 25, 2002) (Secs. 4, 5, 303, 48 Stat., as amended,
1066, 1068, 1082 (47 U.S.C. 154, 155, 303)). ATSC A/54A and ATSC A/69
are available from Advanced Television Systems Committee (ATSC), 1750 K
Street, NW., Suite 1200, Washington, DC 20006, or at the ATSC Web site:
http://www.atsc.org/standards.html.
PART 79--CLOSED CAPTIONING AND VIDEO DESCRIPTION OF VIDEO
PROGRAMMING
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,
613.
2. Section 79.3 is revised to read as follows:
Sec. 79.3 Video description of video programming.
(a) Definitions. For purposes of this section the following
definitions shall apply:
(1) Designated Market Areas (DMAs). Unique, county-based geographic
areas designated by Nielsen Media Research, a television audience
measurement service, based on television viewership in the counties
that make up each DMA.
(2) Video programming provider. Any video programming distributor
and any other entity that provides video programming that is intended
for distribution to residential households including, but not limited
to, broadcast or nonbroadcast television networks and the owners of
such programming.
(3) Video description. The insertion of audio narrated descriptions
of a television program's key visual elements into natural pauses
between the program's dialogue.
(4) Video programming. Programming provided by, or generally
considered comparable to programming provided by, a television
broadcast station, but not including consumer-generated media.
(5) Video programming distributor. Any television broadcast station
licensed by the Commission and any multichannel video programming
distributor (MVPD), and any other distributor of video programming for
residential reception that delivers such programming directly to the
home and is subject to the jurisdiction of the Commission.
(6) Prime time. The period from 8 to 11 p.m. Monday through
Saturday, and 7 to 11 p.m. on Sunday local time, except that in the
central time zone the relevant period shall be between the hours of 7
and 10 p.m. Monday through Saturday, and 6 and 10 p.m. on Sunday, and
in the mountain time zone each station shall elect whether the period
shall be 8 to 11 p.m. Monday through Saturday, and 7 to 11 p.m. on
Sunday, or 7 to 10 p.m. Monday through Saturday, and 6 to 10 p.m. on
Sunday.
(7) Live or near-live programming. Programming performed either
simultaneously with, or recorded no more than 24 hours prior to, its
first transmission by a video programming distributor.
(8) Children's Programming. Television programming directed at
children 16 years of age and under.
(b) The following video programming distributors must provide
programming with video description as follows:
(1) Commercial television broadcast stations that are affiliated
with one of the top four commercial television broadcast networks (ABC,
CBS, Fox, and NBC), and that are licensed to a community located in the
top 25 DMAs, as determined by Nielsen Media Research, Inc. as of
January 1, 2011, must provide 50 hours of video description per
calendar quarter, either during prime time or on children's
programming, on each programming stream on which they carry one of the
top four commercial television broadcast networks;
(2) Television broadcast stations that are affiliated or otherwise
associated with any television network must pass through video
description when the network provides video description and the
broadcast station has the technical capability necessary to pass
through the video description, unless it is using the technology used
to provide video description for another purpose related to the
programming that would conflict with providing the video description;
(3) Multichannel video programming distributors (MVPDs) that serve
50,000 or more subscribers must provide 50 hours of video description
per calendar quarter during prime time or children's programming, on
each channel on which they carry one of the top five national
nonbroadcast networks, as defined by an average of the national
audience share during prime time of nonbroadcast networks, as
determined by Nielsen Media Research, Inc., for the time period October
2009-September 2010, 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; and
(4) Multichannel video programming distributors (MVPDs) 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.
(c) Responsibility for and determination of compliance. (1) The
Commission will calculate compliance on a per channel, and, for
broadcasters, a per stream, calendar quarter basis, beginning with the
calendar quarter January 1 through March 31, 2012.
(2) In order to meet its fifty-hour quarterly requirement, a
broadcaster or
[[Page 14870]]
MVPD may count each program it airs with video description no more than
a total of two times on each channel on which it airs the program. A
broadcaster or MVPD may count the second airing in the same or any one
subsequent quarter. A broadcaster may only count programs aired on its
primary broadcasting stream towards its fifty-hour quarterly
requirement. A broadcaster carrying one of the top four commercial
television broadcast networks on a secondary stream may count programs
aired on that stream toward its fifty-hour quarterly requirement for
that network only.
(3) Once a commercial television broadcast station as defined under
paragraph (b)(1) of this section has aired a particular program with
video description, it is required to include video description with all
subsequent airings of that program on that same broadcast station,
unless it is using the technology used to provide video description for
another purpose related to the programming that would conflict with
providing the video description.
(4) Once an MVPD as defined under paragraph (b)(3) of this section:
(i) Has aired a particular program with video description on a
broadcast station it carries, it is required to include video
description with all subsequent airings of that program on that same
broadcast station, unless it is using the technology used to provide
video description for another purpose related to the programming that
would conflict with providing the video description; or
(ii) Has aired a particular program with video description on a
nonbroadcast network it carries, it is required to include video
description with all subsequent airings of that program on that same
nonbroadcast network, unless it is using the technology used to provide
video description for another purpose related to the programming that
would conflict with providing the video description.
(5) In evaluating whether a video programming distributor has
complied with the requirement to provide video programming with video
description, the Commission will consider showings that any lack of
video description was de minimis and reasonable under the
circumstances.
(d) Procedures for exemptions based on economic burden. (1) A video
programming provider may petition the Commission for a full or partial
exemption from the video description requirements of this section,
which the Commission may grant upon a finding that the requirements
would be economically burdensome.
(2) The petitioner must support a petition for exemption with
sufficient evidence to demonstrate that compliance with the
requirements to provide programming with video description would be
economically burdensome. The term ``economically burdensome'' means
imposing significant difficulty or expense. The Commission will
consider the following factors when determining whether the
requirements for video description would be economically burdensome:
(i) The nature and cost of providing video description of the
programming;
(ii) The impact on the operation of the video programming provider;
(iii) The financial resources of the video programming provider;
and
(iv) The type of operations of the video programming provider.
(3) In addition to these factors, the petitioner must describe any
other factors it deems relevant to the Commission's final determination
and any available alternative that might constitute a reasonable
substitute for the video description requirements. The Commission will
evaluate economic burden with regard to the individual outlet.
(4) The petitioner must file an original and two (2) copies of a
petition requesting an exemption based on the economically burdensome
standard, and all subsequent pleadings, in accordance with Sec.
0.401(a) of this chapter.
(5) The Commission will place the petition on public notice.
(6) Any interested person may file comments or oppositions to the
petition within 30 days of the public notice of the petition. Within 20
days of the close of the comment period, the petitioner may reply to
any comments or oppositions filed.
(7) Persons that file comments or oppositions to the petition must
serve the petitioner with copies of those comments or oppositions and
must include a certification that the petitioner was served with a
copy. Parties filing replies to comments or oppositions must serve the
commenting or opposing party with copies of such replies and shall
include a certification that the party was served with a copy.
(8) Upon a finding of good cause, the Commission may lengthen or
shorten any comment period and waive or establish other procedural
requirements.
(9) Persons filing petitions and responsive pleadings must include
a detailed, full showing, supported by affidavit, of any facts or
considerations relied on.
(10) The Commission may deny or approve, in whole or in part, a
petition for an economic burden exemption from the video description
requirements.
(11) During the pendency of an economic burden determination, the
Commission will consider the video programming subject to the request
for exemption as exempt from the video description requirements.
(e) Complaint procedures. (1) A complainant may file a complaint
concerning an alleged violation of the video description requirements
of this section by transmitting it to the Consumer and Governmental
Affairs Bureau at the Commission by any reasonable means, such as
letter, facsimile transmission, telephone (voice/TRS/TTY), Internet e-
mail, audio-cassette recording, and Braille, or some other method that
would best accommodate the complainant's disability. Complaints should
be addressed to: Consumer and Governmental Affairs Bureau, 445 12th
Street, SW, Washington, DC 20554. A complaint must include:
(i) The name and address of the complainant;
(ii) The name and address of the broadcast station against whom the
complaint is alleged and its call letters and network affiliation, or
the name and address of the MVPD against whom the complaint is alleged
and the name of the network that provides the programming that is the
subject of the complaint;
(iii) A statement of facts sufficient to show that the video
programming distributor has violated or is violating the Commission's
rules, and, if applicable, the date and time of the alleged violation;
(iv) The specific relief or satisfaction sought by the complainant;
(v) The complainant's preferred format or method of response to the
complaint (such as letter, facsimile transmission, telephone (voice/
TRS/TTY), Internet e-mail, or some other method that would best
accommodate the complainant's disability); and
(vi) A certification that the complainant attempted in good faith
to resolve the dispute with the broadcast station or MVPD against whom
the complaint is alleged.
(2) The Commission will promptly forward complaints satisfying the
above requirements to the video programming distributor involved. The
video programming distributor must respond to the complaint within a
specified time, generally within 30 days. The Commission may authorize
Commission staff either to shorten or lengthen the time required for
responding to complaints in particular cases. The answer to a complaint
must include a certification that the video programming
[[Page 14871]]
distributor attempted in good faith to resolve the dispute with the
complainant.
(3) The Commission will review all relevant information provided by
the complainant and the video programming distributor and will request
additional information from either or both parties when needed for a
full resolution of the complaint.
(i) The Commission may rely on certifications from programming
suppliers, including programming producers, programming owners,
networks, syndicators and other distributors, to demonstrate
compliance. The Commission will not hold the video programming
distributor responsible for situations where a program source falsely
certifies that programming that it delivered to the video programming
distributor meets our video description requirements if the video
programming distributor is unaware that the certification is false.
Appropriate action may be taken with respect to deliberate
falsifications.
(ii) If the Commission finds that a video programming distributor
has violated the video description requirements of this section, it may
impose penalties, including a requirement that the video programming
distributor deliver video programming containing video description in
excess of its requirements.
(f) Private rights of action are prohibited. Nothing in this
section shall be construed to authorize any private right of action to
enforce any requirement of this section. The Commission shall have
exclusive jurisdiction with respect to any complaint under this
section.
[FR Doc. 2011-6240 Filed 3-17-11; 8:45 am]
BILLING CODE 6712-01-P