[Federal Register Volume 85, Number 230 (Monday, November 30, 2020)]
[Rules and Regulations]
[Pages 76480-76486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24897]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 79
[MB Docket No. 11-43; FCC 20-155; FRS 17215]
Video Description: Implementation of the Twenty-First Century
Communications and Video Accessibility Act of 2010
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission expands its video description
requirements by phasing them in for an additional 10 designated market
areas (DMAs) each year for the next four years. This action is based on
a finding that the costs of expanding the video description regulations
to DMAs 61 through 100 are reasonable for program owners, providers,
and distributors. In addition, the Commission modernizes the
terminology in its rules to use the more common and widely understood
term ``audio description'' rather than ``video description.'' Finally,
the Commission adopts its proposal to delete from the rules outdated
references to compliance deadlines that have passed.
DATES: Effective December 30, 2020.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Diana Sokolow, Diana.Sokolow@fcc.gov, of the Policy
Division, Media Bureau, (202) 418-2120.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, FCC 20-155, adopted and released on October 27, 2020. This
document will be available via ECFS at https://www.fcc.gov/ecfs/.
Documents will be available electronically in ASCII, Microsoft Word,
and/or Adobe Acrobat. Alternative formats are available for people with
disabilities (braille, large print, electronic files, audio format), by
sending an email to fcc504@fcc.gov or calling the Commission's Consumer
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY).
Synopsis
1. In this Report and Order, we take the unopposed action of
expanding our video description requirements by phasing them in for an
additional 10 designated market areas (DMAs) each year for the next
four years. Consistent with the Twenty-First Century Communications and
Video Accessibility Act of 2010 (CVAA),\1\ we find that the costs of
expanding the video description regulations to DMAs 61 through 100 are
reasonable for program owners, providers, and distributors. Our action
in this document will help ensure that a greater number of individuals
who are blind or visually impaired can be connected, informed, and
entertained by television programming. In addition, we modernize the
terminology in part 79 of the Commission's rules to use the more common
and widely understood term ``audio description'' rather than ``video
description.'' \2\ Finally, we adopt our proposal to delete from the
rules outdated references to compliance deadlines that have passed.
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\1\ Specifically, pursuant to the ``continuing Commission
authority'' provision of the CVAA, the Commission has authority ``to
phase in the video description regulations for up to an additional
10 [DMAs] each year (I) if the costs of implementing the video
description regulations to program owners, providers, and
distributors in those additional markets are reasonable, as
determined by the Commission; and (II) except that the Commission
may grant waivers to entities in specific [DMAs] where it deems
appropriate.''
\2\ Throughout the remainder of this document, we will use the
term ``audio description'' instead of ``video description.''
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[[Page 76481]]
2. Audio description \3\ makes video programming \4\ more
accessible to individuals who are blind or visually impaired through
``[t]he insertion of audio narrated descriptions of a television
program's key visual elements into natural pauses between the program's
dialogue.'' \5\ To access audio description, consumers generally switch
from the main program audio to the secondary audio stream on which
audio description is typically provided. In 2011, pursuant to section
202 of the CVAA, the Commission adopted rules requiring certain
television broadcast stations and multichannel video programming
distributors (MVPDs) to provide audio description for a portion of the
video programming that they offer to consumers on television.
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\3\ We note that although the CVAA uses the term ``video
description'' in this context, the Commission has long considered
the terms ``video description'' and ``audio description'' to be
synonymous.
\4\ ``Video programming'' refers to programming provided by, or
generally considered comparable to programming provided by, a
television broadcast station but does not include consumer-generated
media.
\5\ 47 CFR 79.3(a)(3).
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3. Specifically, the audio description rules currently require
commercial television broadcast stations that are affiliated with one
of the top four commercial television broadcast networks (ABC, CBS,
Fox, and NBC) and are located in the top 60 television markets to
provide 50 hours of audio-described programming per calendar quarter
during prime time or on children's programming, as well as an
additional 37.5 hours of audio-described programming per calendar
quarter at any time between 6 a.m. and midnight.\6\ In addition, MVPD
systems that serve 50,000 or more subscribers must provide 50 hours of
audio description per calendar quarter during prime time or on
children's programming, as well as an additional 37.5 hours of audio
description per calendar quarter at any time between 6 a.m. and
midnight, on each of the top five national nonbroadcast networks that
they carry on those systems.\7\ The top five nonbroadcast networks
currently subject to the audio description requirements are USA
Network, HGTV, TBS, Discovery, and History.\8\
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\6\ The rules also require ``[t]elevision broadcast stations
that are affiliated or otherwise associated with any television
network [to] pass through [audio] description when the network
provides [audio] description and the broadcast station has the
technical capability necessary to pass through the [audio]
description, unless it is using the technology used to provide
[audio] description for another purpose related to the programming
that would conflict with providing the [audio] description.'' 47 CFR
79.3(b)(3).
\7\ For purposes of the audio description rules, the top five
national nonbroadcast networks include only those that reach 50
percent or more of MVPD households and have at least 50 hours per
quarter of prime-time programming that is not live or near-live or
otherwise exempt under the audio description rules. The list of the
top five networks is updated every three years based on changes in
ratings and was last updated on July 1, 2018 (remaining in effect
until June 30, 2021). The rules also require MVPD systems of any
size to pass through audio description provided by a broadcast
station or nonbroadcast network, if the channel on which the MVPD
distributes the station or programming has the technical capability
necessary to do so and if that technology is not being used for
another purpose related to the programming.
\8\ On October 7, 2019, the Media Bureau (Bureau) released an
order that granted a limited waiver of the audio description rules
with respect to USA Network for the remainder of the current ratings
period ending on June 30, 2021, but it declined to grant a safe
harbor from the audio description requirements for other similarly
situated, top five nonbroadcast networks. As a condition of the
waiver, USA Network must air at least 1,000 hours of described
programming each quarter without regard to the number of repeats and
must describe at least 75 percent of any newly produced, non-live
programming that is aired between 6:00 a.m. and midnight per
quarter.
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4. The CVAA required the Commission to submit two reports to
Congress related to audio description. In the First Report, submitted
to Congress in June 2014, the Bureau found that ``[t]he availability of
[audio] description on television programming has provided substantial
benefits for individuals who are blind or visually impaired, and the
industry appears to have largely complied with their responsibilities
under the Commission's 2011 rules.'' The Bureau also found, however,
that ``consumers report the need for increased availability of and
easier access to [audio]-described programming, both on television and
online.''
5. In the Second Report, submitted to Congress in October 2019, the
CVAA required the Commission to assess, among other topics, ``the
potential costs to program owners, providers, and distributors in
[DMAs] outside of the top 60 of creating [audio-described]
programming'' and ``the need for additional described programming in
[DMAs] outside the top 60.'' The Second Report stated that commenters
did not offer ``detailed or conclusive information'' as to the costs of
such an expansion or a station's ability to bear those costs. It thus
deferred issuing a determination regarding whether any costs associated
with the expansion would be reasonable, explaining that, ``[s]hould the
Commission seek to expand the [audio] description requirements to DMAs
outside the top 60, it will need to utilize the information contained
in this Second Report, and any further information available to it at
the time, to determine that `the costs of implementing the [audio]
description regulations to program owners, providers, and distributors
in those additional markets are reasonable.' '' \9\
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\9\ Second Report (quoting 47 U.S.C. 613(f)(4)(C)(iv)(I)).
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6. The CVAA provides the Commission with authority ``to phase in
the [audio] description regulations for up to an additional 10 [DMAs]
each year (I) if the costs of implementing the [audio] description
regulations to program owners, providers, and distributors in those
additional markets are reasonable, as determined by the Commission; and
(II) except that the Commission may grant waivers to entities in
specific [DMAs] where it deems appropriate.'' Accordingly, in April
2020, in accordance with the CVAA, the Commission proposed to expand
its audio description regulations to an additional 10 DMAs per year for
four years, thus covering DMAs 61 through 100, and it invited comment
on whether the costs of such an expansion would be reasonable.\10\ The
Commission also sought to refresh the record on its 2016 proposal to
revise its rules to use the newer and more commonly used term ``audio
description,'' rather than ``video description.'' Finally, the
Commission proposed to delete outdated references in the audio
description rules to compliance deadlines that had passed. The 2020
Audio Description Notice of Proposed Rulemaking (NPRM) (85 FR 30917,
May 21, 2020) elicited 11 comments and two replies, all of which
supported the Commission's proposals, including the expansion of audio
description requirements to an additional 10 DMAs per year for four
years until DMAs 61 through 100 are covered.
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\10\ The Commission also proposed that in 2023, ``the Commission
will determine whether to continue expanding to an additional 10
DMAs per year, with any further expansion to be undertaken only
following a future determination of the reasonableness of the
associated costs.''
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7. Expanding the Number of Markets Subject to Audio Description
Requirements. We adopt our proposal to phase in the audio description
requirements for an additional 10 DMAs each year for four years,
beginning on the later of January 1, 2021, or the effective date of
this Order. Commenters unanimously support the expansion of the
Commission's audio description rules to additional markets. As stated,
the CVAA provides the Commission with authority for this phase-in,
``based upon the findings, conclusions, and recommendations contained
in the [Second Report],'' ``(I) if the costs of implementing the
[audio] description
[[Page 76482]]
regulations to program owners, providers, and distributors in those
additional markets are reasonable, as determined by the Commission; and
(II) except that the Commission may grant waivers to entities in
specific [DMAs] where it deems appropriate.''
8. The record confirms our conclusion that the costs of
implementing the audio description regulations in markets 61 through
100 are reasonable. The costs of adding description to television
programming have held steady since 2017, indicating that the costs are
at a level the Commission previously deemed ``minimal.'' Covered
broadcasters already are required to have the equipment and
infrastructure necessary to deliver a secondary audio stream for
purposes of the emergency information requirements, without exception
for technical capability or market size. As NAB acknowledges, stations
in compliance with the requirement to deliver audible emergency
information via the secondary audio stream ``should be able to provide
audio description without significant additional cost.'' \11\ Further,
network affiliates in all DMAs are already required to pass through the
audio description they receive via a network feed, which will mitigate
any costs associated with the rule expansion.\12\ For all of these
reasons, we conclude that the costs of expanding the audio description
regulations to DMAs 61 through 100 are reasonable. To the extent a
broadcaster finds itself in an unusual situation that makes the costs
of compliance unreasonable, it may avail itself of the exemption
procedures discussed below.\13\ However, based on our expertise and the
record compiled in this proceeding, we expect such instances to be
exceedingly rare.
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\11\ We note that the Commission asked in the 2020 Audio
Description NPRM whether we should account for the current
coronavirus pandemic in evaluating the reasonableness of costs of
expanding audio description requirements to markets 61 through 100.
No commenters except NAB addressed this issue. Although NAB
initially noted that concerns about costs to broadcasters are
potentially exacerbated by the pandemic, it subsequently indicated,
as described above, that the compliance costs were feasible.
\12\ In addition, the First Report concluded that the costs of
complying with the audio description requirements were consistent
with industry's expectations at the time the rules were adopted and
had not impeded industry's ability to comply, and the record for the
Second Report did not alter that conclusion. The 2020 Audio
Description NPRM sought comment on several additional issues related
to analyzing the costs, including information on the differing costs
faced by network affiliates that receive programming via a network
feed as compared to other network affiliates; whether there are any
network affiliates in any DMA that do not receive programming via a
network feed; whether network affiliated stations in markets 61
through 100 would be able to satisfy the audio description
requirements entirely by using the programming they receive via a
network feed; and whether there are differing costs incurred by
stations owned by large station group owners as compared to smaller
station group owners or single stations. Commenters did not address
these issues. Nonetheless, as explained herein, we believe the
record provides sufficient information to determine, as required
under the CVAA, that the costs of implementing the audio description
regulations to program owners, providers, and distributors in the
additional markets are ``reasonable.''
\13\ Although the Commission requested additional information
regarding specific costs that broadcasters in DMAs 61 through 100
might face as a result of the proposed expansion, commenters
generally did not provide detailed information on costs. Nor did
they provide any information that undermines our conclusion
regarding the reasonableness of costs.
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9. The significant benefits of expanding the audio description
requirements to DMAs 61 through 100, when weighed against the minimal
costs, further support expansion to these markets. Consumers desire an
expansion of the audio description requirements outside the top 60
DMAs, and consumers who are blind or visually impaired and live in
those markets will benefit from the increased video programming
accessibility that the expansion will provide. In addition, the record
indicates that consumers who are not blind or visually impaired and
live in those markets also would benefit from the expansion, such as
consumers with other sensory or cognitive impairments, individuals
learning the language, and those who listen to video programming while
multitasking. Commenters contend that the importance of access to news
and entertainment programming during the current COVID-19 pandemic
provides further evidence of the need for the expansion. Although
commenters did not provide specific data on the amount of audio-
described programming currently available in DMAs 61 through 100, as
compared to the amount that would be available if the Commission were
to expand the audio description requirements to such DMAs, it is clear
that any expansion of described programming in these additional markets
will benefit consumers.\14\
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\14\ Nielsen data from 2020 indicate that expanding the audio
description requirements to DMAs 61-70 on January 1, 2021, would
cover more than an additional 4.22 million households, with more
than an additional 3.63 million households covered by expanding to
DMAs 71-80, more than an additional 3.25 million households covered
by expanding to DMAs 81-90, and more than an additional 2.86 million
households covered by expanding to DMAs 91-100. In total, expanding
the video description rules from the top 60 DMAs to the top 100 DMAs
would increase the share of TV households covered by these rules
from 74 percent to 87 percent of TV households. See MediaTracks
Communications, Nielsen DMA Rankings 2020, available at https://mediatracks.com/resources/nielsen-dma-rankings-2020/ (last visited
Aug. 21, 2020).
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10. We therefore expand the audio description requirements to DMAs
61 through 70 as of the later of January 1, 2021, or the effective date
of this Order.\15\ This approach is necessary to ensure that the first
compliance deadline does not occur prior to the Order's effective date.
The Commission's audio description rules will extend to DMAs 71 to 80
on January 1, 2022, DMAs 81 to 90 on January 1, 2023, and DMAs 91 to
100 on January 1, 2024.\16\
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\15\ The 2020 Audio Description NPRM proposed to expand the
requirements to DMAs 61 through 70 as of January 1, 2021, to provide
entities with sufficient time for compliance. While NAB initially
requested that the expansion commence on October 1, 2021 for DMAs 61
through 70, it subsequently withdrew the request, indicating that it
``share[s] the FCC's goal of ensuring access to video programming''
and will ``support stations who are unable to meet the deadline on a
case-by-case basis'' rather than pursuing a blanket delay.
\16\ We recognize that there will be less time between the
adoption of the instant Order and the compliance deadline than there
was when the Commission reinstated the audio description rules in
2011. However, we expect that less time should be needed to comply
with the extension, given that covered broadcasters are already
required to have the equipment and infrastructure necessary to
deliver a secondary audio stream for purposes of the emergency
information requirements. We note that no commenter has demonstrated
that there would not be sufficient time to comply with audio
description requirements in these additional DMAs. In any event, to
the extent any broadcaster finds that it is unable to comply with
the deadline, it may file an economic burden exemption petition in
accordance with the processes found in section 79.3(d) or seek a
waiver under section 1.3. We expect that stations in DMAs 71 through
100 will not need relief from the applicable compliance deadline
since they should be aware of that deadline well in advance.
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11. We also adopt our proposal to base the extension to additional
DMAs on an updated Nielsen determination of market rankings. The only
commenter that addressed this issue, American Council of the Blind
(ACB), supports the proposal, explaining that it ``will help ensure
that the greatest number of consumers can access audio-described
programming.'' We find that using updated Nielsen data will facilitate
the efficient roll out of audio description obligations to more
television households. Our approach is consistent with the Commission's
prior expansion of the rules from the top 25 markets to the top 60
markets. The audio description rules currently apply to stations
``licensed to a community located in the top 60 DMAs, as determined by
The Nielsen Company as of January 1, 2015.'' The revised rules, as set
forth in the Final Rules below, will apply to the relevant DMAs ``as
determined by The Nielsen Company as of January 1, 2020.'' The updated
figures will apply to determine the top 60 DMAs, as well as the phase-
in for DMAs
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61 through 100. In the 2020 Audio Description NPRM, we sought comment
on the appropriate compliance deadline for stations in a DMA that was
not in the top 60 markets as of January 1, 2015, but is in the top 60
markets as of January 1, 2020. Commenters did not address this issue.
We expect any such station to come into compliance with the audio
description rules by the compliance deadline for DMAs 61 through
70.\17\
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\17\ We note that there is only a single market that was in the
top 60 DMAs as of January 1, 2015, and is not in the top 60 DMAs as
of January 1, 2020 (Little Rock-Pine Bluff, which moved from number
56 to number 62), and there is only a single market that was not in
the top 60 DMAs as of January 1, 2015, and is in the top 60 DMAs as
of January 1, 2020 (Ft. Myers-Naples, which moved from number 62 to
number 53). Thus, Little Rock-Pine Bluff is currently subject to the
audio description requirements because it was in the top 60 DMAs as
of January 1, 2015, and it will remain subject to those requirements
as the rules covering DMAs 61 through 70 go into effect. Ft. Myers-
Naples is not currently subject to the requirements since it was in
DMA 62 as of January 1, 2015, but it is now in DMA 53 and will
become subject to the requirements as of the later of January 1,
2021, or the effective date of this Order, which is also when the
rules extend to DMAs 61 through 70. Stations in the Ft. Myers-Naples
DMA thus would have been subject to the same compliance deadline,
even if we did not utilize updated Nielsen data, since they were
previously in DMA 62.
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12. We affirm our tentative conclusion in the 2020 Audio
Description NPRM that ``[Sec. Sec. ] 79.3(d) and 1.3 provide a
sufficient mechanism for entities seeking relief from any expansion of
the [audio] description rules to additional DMAs.'' Specifically, Sec.
79.3 of the Commission's rules will continue to govern any petitions
for exemption due to economic burden, and Sec. 1.3 will continue to
govern waivers of the Commission's rules generally. The only commenter
that addressed this issue, ACB, supports the proposal to use Sec.
79.3(d) to govern any petitions for exemption due to economic burden,
and explains further that this should apply ``rather than adopting any
other governing authority over petitions for exemption, such as section
1.3 of its rules, which allows for exemptions simply by a showing of
`good cause.' '' \18\ Section 79.3(d) permits covered entities to
petition the Commission for a full or partial exemption from the audio
description requirements upon a showing that they are economically
burdensome.\19\ The CVAA also provides that if an expansion of the
audio description rules to additional DMAs occurs, ``the Commission may
grant waivers to entities in specific [DMAs] where it deems
appropriate.'' Although Sec. 79.3(d) will apply to instances in which
an entity seeks to demonstrate that the extension to additional DMAs is
economically burdensome, we recognize that the CVAA specifically
references waivers as a means of relief, which differs from the
exemptions available under Sec. 79.3(d). Accordingly, to the extent a
broadcaster subject to the extension believes it needs relief due to
some reason other than economic burden, it may seek a waiver under
Sec. 1.3.
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\18\ Although it does not provide specific information about the
number of affected stations or costs, NAB generally asserts that
stations in DMAs 61 through 100 may have smaller viewership and
advertising revenues as compared to those in larger markets,
compliance costs may be more burdensome for some stations in smaller
markets to accommodate, and these costs may be arising in the middle
of stations' budget cycle. As explained above, however, NAB concedes
that stations in compliance with the requirement to deliver audible
emergency information via the secondary audio stream already should
be able to provide audio description without significant compliance
costs.
\19\ The term ``economically burdensome'' means imposing
significant difficulty or expense, and the Commission considers the
following factors in determining whether the requirements for audio
description would be economically burdensome: (i) The nature and
cost of providing audio description of the programming; (ii) the
impact on the operation of the video programming provider; (iii) the
financial resources of the video programming provider; and (iv) the
type of operations of the video programming provider. In addition,
the Commission considers any other factors the petitioner deems
relevant to the determination and any available alternative that
might constitute a reasonable substitute for the audio description
requirements, and it evaluates economic burden with regard to the
individual outlet. In the First Report, the Bureau stated its belief
``that the ability to seek an exemption on the basis of economic
burden should alleviate the potential for undue cost burdens on
covered entities, particularly when the rules go into effect for
broadcast stations in television markets ranked 26 through 60 in
2015.''
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13. Finally, we adopt our proposal to revisit expansion beyond the
top 100 DMAs at a later date. Specifically, in 2023, the Commission
will determine whether to continue expanding our audio description
requirements to an additional 10 DMAs per year. Any further expansion
will be undertaken only following a future determination of the
reasonableness of the associated costs. Although some commenters
request that the Commission include DMAs beyond the top 100 in the
extension at this time, we find that consideration of the
reasonableness of the costs for the smallest markets at the appropriate
time will best enable us to consider the unique circumstances that may
be applicable to them. Additionally, in 2023, we will have the
additional benefit of having implemented the extension to DMAs beyond
the top 60 and will be able to consider any additional information
gleaned from that practical experience.\20\
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\20\ We note that commenters raise additional issues that are
outside the scope of this Order and thus not addressed here. Such
proposals include those related to the availability of audio
description online and in movie theaters, the accessibility of audio
description, and the threshold for cable audio description
requirements.
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14. Modernizing Terminology. We adopt our proposal to make a non-
substantive amendment to the rules to substitute the term ``audio
description'' for the term ``video description'' for purposes of part
79. Commenters nearly universally support this terminology change.\21\
The term ``audio description'' is used by other Federal agencies, in
television and movie listings, and by the Worldwide Web Consortium. We
are concerned that the Commission's use of an inconsistent term,
``video description,'' may be confusing both for consumers and
industry. In 2019, both ACB and the Commission's Disability Advisory
Committee advocated for the use of the term ``audio description,''
which ACB and NAB had proposed to the Commission as early as 2011.
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\21\ In addition, NAB indicates that it does not object to this
terminology change. Only a single consumer whose position was
included in the appendix to the ACB Comments indicates that ``video
description'' is a more accurate term because the video is what is
being described. We remain persuaded that the Commission should use
the more commonly accepted term, ``audio description,'' which is
logical given that the description is provided via audio.
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15. Since the Commission's definition of video description already
references both ``video description'' and ``audio description,''
modernizing the terminology as discussed herein does not change the
substance of any regulations.\22\ Although the underlying statute uses
the term ``video description,'' we reiterate our statement in the 2020
Audio Description NPRM that we have authority to update our terminology
as part of our ``continuing authority'' to regulate audio description.
Modernizing our terminology to use the more common and widely
understood phrase ``audio description'' is consistent with other
instances in which agencies have made non-substantive modifications to
regulations to reflect newer terminology, even if the pertinent statute
itself may not have been amended. Accordingly, we revise our rules as
reflected in the Final Rules below to use the term ``audio
description'' rather than ``video description.''
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\22\ Consistent with our proposal, because the current
definition in the Commission's rules treats the terms ``video
description'' and ``audio description'' as synonymous, we will
retain the statutory term ``video description'' in the definition
while using the more commonly understood term ``audio description''
elsewhere in the rule.
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16. Technical Update to the Rules. Finally, we adopt our proposal
to delete from the audio description rules the outdated references in
Sec. 79.3(b)(1) and (4) to the compliance deadlines of July
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1, 2015, and July 1, 2018, which have passed. No commenter addressed
this issue, and we find that it is an appropriate update to our rules
to reflect the passage of time.
17. Final Regulatory Flexibility Analysis. As required by the
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission
has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to
the Report and Order. In summary, the Report and Order expands the
video description requirements by phasing them in for an additional 10
designated market areas (DMAs) each year for the next four years. In
addition, the Order modernizes the terminology in part 79 of the
Commission's rules to use the more common and widely understood term
``audio description'' rather than ``video description.'' Finally, it
adopts the Commission's proposal to delete from the rules outdated
references to compliance deadlines that have passed. The action is
authorized pursuant to the Twenty-First Century Communications and
Video Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751,
and section 713 of the Communications Act of 1934, as amended, 47
U.S.C. 613. The types of small entities that may be affected by the
action fall within the following categories: Television Broadcasting,
Wired Telecommunications Carriers, Cable and Other Subscription
Programming, Cable Television Distribution Services, Cable Companies
and Systems (Rate Regulation Standard), Cable System Operators
(Telecommunications Act Standard), and Direct Broadcast Satellite (DBS)
Service.
18. The projected reporting, recordkeeping, and other compliance
requirements include phasing in the audio description requirements for
an additional 10 DMAs each year for four years, beginning on the later
of January 1, 2021 or the effective date of the Order. The extension to
additional DMAs will be based on an updated Nielsen determination, with
the revised rules applying to the relevant DMAs as determined by the
Nielsen company as of January 1, 2020. The order also makes two changes
that will not have any impact on small entities or others. First, it
revises the Commission's rules to substitute the term ``audio
description'' for the term ``video description'' for purposes of part
79. Second, it deletes outdated references in Sec. 79.3(b)(1) and (4)
to compliance deadlines that have passed. The SBA did not file
comments.
19. In considering the impact on small entities, the Commission
emphasizes that the extension of the audio description requirements to
DMAs 61 through 100 is based on a cost-benefit analysis. Specifically,
the Commission concludes that the costs of implementing the audio
description regulations in markets 61 through 100 are reasonable. In
addition, the Commission states that the significant benefits of
expanding the audio description requirements to DMAs 61 through 100,
when weighed against the minimal costs, further support expansion to
these markets.
20. Further, the Commission has adopted certain proposals that will
ease burdens on broadcasters that are small entities, as well as other
broadcasters. First, to the extent any station in DMAs 61 through 100
finds that it is unable to comply with the expansion due to economic
burden, it may file a petition for an exemption due to economic burden
in accordance with Sec. 79.3(d). Stations may also seek a waiver under
section 1.3. Additionally, although the Commission has authority to
extend the audio description requirements to 10 additional DMAs per
year until all DMAs are covered, it has only extended the requirements
to DMAs 61 through 100 at this time. In 2023, the Commission will
determine whether to continue expanding its audio description
requirements to an additional 10 DMAs per year. This approach will
ensure that any further expansion is undertaken only following a future
determination of the reasonableness of the associated costs outside DMA
100. The Commission finds that consideration of the reasonableness of
the costs for the smallest markets at the appropriate time will best
enable it to consider the unique circumstances that may be applicable
to them. Additionally, in 2023, the Commission will have the additional
benefit of having implemented the extension to DMAs beyond the top 60
and will be able to consider any additional information gleaned from
that practical experience.
21. Paperwork Reduction Act. The Report and Order does not contain
new or revised information collection requirements subject to the
Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-
3520).\23\ In addition, therefore, it does not contain any new or
modified ``information collection burden for small business concerns
with fewer than 25 employees,'' pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4).
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\23\ The Commission will file a non-substantive modification to
the information collection that contains Sec. 79.3 (OMB 3060-1148),
and to the information collection that contains Sec. Sec. 79.105
and 79.106 (OMB 3060-0967), to indicate the change in terminology
from ``video description'' to ``audio description.'' The non-
substantive modification for OMB 3060-1148 also will clarify that
the audio description requirements have been extended to DMAs 61
through 100.
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22. Ordering Clauses. Accordingly, it is ordered that, pursuant to
the Twenty-First Century Communications and Video Accessibility Act of
2010, Public Law 111-260, 124 Stat. 2751, and the authority contained
in Section 713 of the Communications Act of 1934, as amended, 47 U.S.C.
613, this Report and Order is hereby adopted.
23. It is further ordered that part 79 of the Commission's rules,
47 CFR part 79, is amended as set forth in the Final Rules below, and
such rule amendments shall be effective thirty (30) days after the date
of publication in the Federal Register.
24. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Report and Order, including the Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
25. It is further ordered that the Commission shall send a copy of
this Report and Order in a report to be sent to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 79
Communications equipment, Television broadcasters.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 79 as follows:
PART 79--ACCESSIBILITY OF VIDEO PROGRAMMING
0
1. The authority citation for part 79 continues to read as follows:
Authority: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310,
330, 544a, 613, 617.
0
2. Amend Sec. 79.2 by revising paragraph (b)(5) to read as follows:
Sec. 79.2 Accessibility of programming providing emergency
information.
* * * * *
(b) * * *
(5) Video programming distributors and video programming providers
must ensure that aural emergency information provided in accordance
with paragraph (b)(2)(ii) of this section supersedes all
[[Page 76485]]
other programming on the secondary audio stream, including audio
description, foreign language translation, or duplication of the main
audio stream, with each entity responsible only for its own actions or
omissions in this regard.
* * * * *
0
3. Amend Sec. 79.3 by revising the section heading and paragraphs
(a)(3), (b) introductory text, (b)(1), (3), and (4), (b)(5)(i) through
(ii), (c)(2) and (3), (c)(4)(i) and (ii), (c)(5), (d)(1), (d)(2)
introductory text, (d)(2)(i), (d)(3), (10), and (11), (e)(1)
introductory text, and (e)(3)(i) and (ii) to read as follows:
Sec. 79.3 Audio description of video programming.
(a) * * *
(3) Audio description/video description. The insertion of audio
narrated descriptions of a television program's key visual elements
into natural pauses between the program's dialogue.
* * * * *
(b) Audio description requirements. The following video programming
distributors must provide programming with audio description as
follows:
(1) Commercial television broadcast stations that are affiliated
with one of the top four commercial television broadcast networks (ABC,
CBS, Fox, and NBC), and that are licensed to a community located in the
top 60 DMAs, as determined by The Nielsen Company as of January 1,
2020, must provide 50 hours of audio description per calendar quarter,
either during prime time or on children's programming, and 37.5
additional hours of audio description per calendar quarter between 6
a.m. and 11:59 p.m. local time, on each programming stream on which
they carry one of the top four commercial television broadcast
networks. If a previously unaffiliated station in one of these markets
becomes affiliated with one of these networks, it must begin compliance
with these requirements no later than three months after the
affiliation agreement is finalized. On January 1, 2021, and on January
1 each year thereafter until January 1, 2024, the requirements of this
paragraph (b)(1) shall extend to the next 10 largest DMAs as determined
by The Nielsen Company as of January 1, 2020, as follows: On January 1,
2021, the requirements shall extend to DMAs 61 through 70; on January
1, 2022, the requirements shall extend to DMAs 71 through 80; on
January 1, 2023, the requirements shall extend to DMAs 81 through 90;
and on January 1, 2024, the requirements shall extend to DMAs 91
through 100;
* * * * *
(3) Television broadcast stations that are affiliated or otherwise
associated with any television network must pass through audio
description when the network provides audio description and the
broadcast station has the technical capability necessary to pass
through the audio description, unless it is using the technology used
to provide audio description for another purpose related to the
programming that would conflict with providing the audio description;
(4) Multichannel video programming distributor (MVPD) systems that
serve 50,000 or more subscribers must provide 50 hours of audio
description per calendar quarter during prime time or children's
programming, and 37.5 additional hours of audio description per
calendar quarter between 6 a.m. and 11:59 p.m. local time, on each
channel on which they carry one of the top five national nonbroadcast
networks, as defined by an average of the national audience share
during prime time of nonbroadcast networks that reach 50 percent or
more of MVPD households and have at least 50 hours per quarter of prime
time programming that is not live or near-live or otherwise exempt
under this part. Initially, the top five networks are those determined
by The Nielsen Company, for the time period October 2009-September
2010, and will update at three year intervals. The first update will be
July 1, 2015, based on the ratings for the time period October 2013-
September 2014; the second will be July 1, 2018, based on the ratings
for the time period October 2016-September 2017; and so on; and
(5) * * *
(i) Must pass through audio description on each broadcast station
they carry, when the broadcast station provides audio description, and
the channel on which the MVPD distributes the programming of the
broadcast station has the technical capability necessary to pass
through the audio description, unless it is using the technology used
to provide audio description for another purpose related to the
programming that would conflict with providing the audio description;
and
(ii) Must pass through audio description on each nonbroadcast
network they carry, when the network provides audio description, and
the channel on which the MVPD distributes the programming of the
network has the technical capability necessary to pass through the
audio description, unless it is using the technology used to provide
audio description for another purpose related to the programming that
would conflict with providing the audio description.
(c) * * *
(2) In order to meet its quarterly requirement, a broadcaster or
MVPD may count each program it airs with audio description no more than
a total of two times on each channel on which it airs the program. A
broadcaster or MVPD may count the second airing in the same or any one
subsequent quarter. A broadcaster may only count programs aired on its
primary broadcasting stream towards its quarterly requirement. A
broadcaster carrying one of the top four commercial television
broadcast networks on a secondary stream may count programs aired on
that stream toward its quarterly requirement for that network only.
(3) Once a commercial television broadcast station as defined under
paragraph (b)(1) of this section has aired a particular program with
audio description, it is required to include audio description with all
subsequent airings of that program on that same broadcast station,
unless it is using the technology used to provide audio description for
another purpose related to the programming that would conflict with
providing the audio description.
(4) * * *
(i) Has aired a particular program with audio description on a
broadcast station it carries, it is required to include audio
description with all subsequent airings of that program on that same
broadcast station, unless it is using the technology used to provide
audio description for another purpose related to the programming that
would conflict with providing the audio description; or
(ii) Has aired a particular program with audio description on a
nonbroadcast network it carries, it is required to include audio
description with all subsequent airings of that program on that same
nonbroadcast network, unless it is using the technology used to provide
audio description for another purpose related to the programming that
would conflict with providing the audio description.
(5) In evaluating whether a video programming distributor has
complied with the requirement to provide video programming with audio
description, the Commission will consider showings that any lack of
audio description was de minimis and reasonable under the
circumstances.
(d) * * *
(1) A video programming provider may petition the Commission for a
full or partial exemption from the audio description requirements of
this section,
[[Page 76486]]
which the Commission may grant upon a finding that the requirements
would be economically burdensome.
(2) The petitioner must support a petition for exemption with
sufficient evidence to demonstrate that compliance with the
requirements to provide programming with audio description would be
economically burdensome. The term ``economically burdensome'' means
imposing significant difficulty or expense. The Commission will
consider the following factors when determining whether the
requirements for audio description would be economically burdensome:
(i) The nature and cost of providing audio description of the
programming;
* * * * *
(3) In addition to the factors in paragraph (d)(2) of this section,
the petitioner must describe any other factors it deems relevant to the
Commission's final determination and any available alternative that
might constitute a reasonable substitute for the audio description
requirements. The Commission will evaluate economic burden with regard
to the individual outlet.
* * * * *
(10) The Commission may deny or approve, in whole or in part, a
petition for an economic burden exemption from the audio description
requirements.
(11) During the pendency of an economic burden determination, the
Commission will consider the video programming subject to the request
for exemption as exempt from the audio description requirements.
(e) * * *
(1) A complainant may file a complaint concerning an alleged
violation of the audio description requirements of this section by
transmitting it to the Consumer and Governmental Affairs Bureau at the
Commission by any reasonable means, such as letter, facsimile
transmission, telephone (voice/TRS/TTY), email, audio-cassette
recording, and Braille, or some other method that would best
accommodate the complainant's disability. Complaints should be
addressed to: Consumer and Governmental Affairs Bureau, located at the
address of the FCC's main office indicated in 47 CFR 0.401(a). A
complaint must include:
* * * * *
(3) * * *
(i) The Commission may rely on certifications from programming
suppliers, including programming producers, programming owners,
networks, syndicators and other distributors, to demonstrate
compliance. The Commission will not hold the video programming
distributor responsible for situations where a program source falsely
certifies that programming that it delivered to the video programming
distributor meets the audio description requirements of this section if
the video programming distributor is unaware that the certification is
false. Appropriate action may be taken with respect to deliberate
falsifications.
(ii) If the Commission finds that a video programming distributor
has violated the audio description requirements of this section, it may
impose penalties, including a requirement that the video programming
distributor deliver video programming containing audio description in
excess of its requirements.
* * * * *
0
4. Amend Sec. 79.105 by revising the section heading and paragraphs
(a)(1) and (b)(3)(i) to read as follows:
Sec. 79.105 Audio description and emergency information accessibility
requirements for all apparatus.
(a) * * *
(1) The transmission and delivery of audio description services as
required by Sec. 79.3; and
* * * * *
(b) * * *
(3)(i) Apparatus that use a picture screen of less than 13 inches
in size must comply with the provisions of this section only if doing
so is achievable as defined in this section. Manufacturers of apparatus
that use a picture screen of less than 13 inches in size may petition
the Commission for a full or partial exemption from the audio
description and emergency information requirements of this section
pursuant to Sec. 1.41 of this chapter, which the Commission may grant
upon a finding that the requirements of this section are not
achievable, or may assert that such apparatus is fully or partially
exempt as a response to a complaint, which the Commission may dismiss
upon a finding that the requirements of this section are not
achievable.
* * * * *
0
5. Amend Sec. 79.106 by revising the section heading and paragraph (b)
to read as follows:
Sec. 79.106 Audio description and emergency information accessibility
requirements for recording devices.
* * * * *
(b) All apparatus subject to this section must enable the
presentation or the pass through of the secondary audio stream, which
will facilitate the provision of audio description signals and
emergency information (as that term is defined in Sec. 79.2) such that
viewers are able to activate and de-activate the audio description as
the video programming is played back on a picture screen of any size.
* * * * *
0
6. Amend Sec. 79.107 by revising paragraph (a)(4)(viii) to read as
follows:
Sec. 79.107 User interfaces provided by digital apparatus.
(a) * * *
(4) * * *
(viii) Configuration--audio description control. Function that
allows the user to enable or disable the output of audio description
(i.e., allows the user to change from the main audio to the secondary
audio stream that contains audio description, and from the secondary
audio stream back to the main audio).
* * * * *
0
7. Amend Sec. 79.108 by revising paragraph (a)(2)(vi) to read as
follows:
Sec. 79.108 Video programming guides and menus provided by navigation
devices.
(a) * * *
(2) * * *
(vi) Configuration--audio description control. Function that allows
the user to enable or disable the output of audio description (i.e.,
allows the user to change from the main audio to the secondary audio
stream that contains audio description, and from the secondary audio
stream back to the main audio).
* * * * *
0
8. Amend Sec. 79.109 by revising paragraph (a)(2) to read as follows:
Sec. 79.109 Activating accessibility features.
(a) * * *
(2) Manufacturers of digital apparatus designed to receive or play
back video programming transmitted in digital format simultaneously
with sound, including apparatus designed to receive or display video
programming transmitted in digital format using internet protocol, with
built-in audio description capability must ensure that audio
description can be activated through a mechanism that is reasonably
comparable to a button, key, or icon. Digital apparatus do not include
navigation devices as defined in Sec. 76.1200 of this chapter.
* * * * *
[FR Doc. 2020-24897 Filed 11-27-20; 8:45 am]
BILLING CODE 6712-01-P