Posted on August 26, 2011 by Brendan Holland

FCC Releases Order Reinstating Television Video Description Rules

Yesterday, the FCC released its Report and Order (available here) reinstating its “video description” rules, which require that certain broadcast stations and nonbroadcast networks provide audio narration of the action depicted in the video portion of the television programming.  The Commission originally adopted such rules back in 2000, but they were subsequently vacated by the D.C. Court of Appeals for lack of sufficient authority.  This past year, Congress rectified that lack of authority by enacting the Twenty-First Century Communications and Video Accessibility Act (CVAA), which was signed into law last October. DWT previously discussed the FCC’s rulemaking to reinstate the video description rules back in March (available here), and has now released a further advisory on the newly adopted rules available here.

In a nutshell, the rules require large-market broadcast affiliates of the top four national networks, and cable operators and DBS providers with more than 50,000 subscribers, to provide programming with audio-narrated descriptions of a program’s key visual elements, beginning mid-2012. While the FCC originally proposed to require full compliance by Jan. 1, 2012, the R&O pushes that date back six months, to July 1, 2012.  Highlights  of the reinstated video description rules are as follows:

  • Broadcast affiliates of the top four national networks—ABC, CBS, Fox, and NBC—located in the top 25 television markets as determined by Nielsen as of Jan. 1, 2011, must provide 50 hours per calendar quarter of prime-time and/or children’s programming with video descriptions. 
  • The list of the top 25 television markets are those determined by Nielsen as of Jan. 1, 2011. To the extent a station in a top 25 market becomes newly affiliated with a top-four network, it must start providing video description in the same manner as current ABC, CBS, Fox, and NBC affiliates in the top 25 markets, beginning no later than three months after finalizing the new affiliation agreement.
  • Going forward, the video description requirements will extend to major network broadcast affiliates in the top 60 markets beginning July 1, 2015. Rankings for the top 60 markets at that time will be based on Nielsen ratings as of Jan. 1, 2015. 
  • Multichannel video programming distributors (MVPDs), including cable operators and DBS providers, with 50,000 or more subscribers must also provide 50 hours per calendar quarter of prime-time and/or children’s programming with video descriptions, for each of the top-five Nielsen-rated nonbroadcast networks (see below), which presumably will be bound through affiliation agreements to aid MVPDs in meeting this obligation. MVPDs that currently do not have 50,000 subscribers but later grow to that size have three months after doing so to come into compliance with the rules.
  • The top five Nielsen-rated national nonbroadcast networks with enough non-exempt prime-time programming to provide 50 hours per calendar quarter of prime-time and/or children’s programming with video descriptions are—at least initially—USA, Disney Channel, TNT, Nickelodeon, and TBS. ESPN and Fox News were not in the “top five” because they primarily air exempt “near live programming,” i.e., programming recorded less than 24 hours before it is first aired, even though their ratings would otherwise rank them in the top five. 
  • All broadcast stations, regardless of market size or affiliation, and all MVPDs, regardless of number of subscribers, must “pass through” video description when such descriptions are provided by the program source and the station or MVPD has the technical capability to do so and that technical capacity is not being used for another purpose related to the programming (for example, if a station can offer only one secondary audio channel, which is already occupied by a Spanish language audio stream, the station is not required to bump the Spanish audio stream in order to pass through video descriptions). The “technical capability to do so” is defined as having “virtually all necessary equipment and infrastructure … except for items that would be of minimal cost,” with the FCC anticipating that as equipment prices drop and older architecture is updated, more stations and MVPDs will become “technically capable” of passing through video descriptions.

For further details regarding the new video description rules, please see our complete advisory.
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Posted on March 18, 2011 by Brendan Holland

Comments on Revised Video Description Rules for Television Programming due to FCC by April 18

UPDATE:  On March 23rd, the FCC granted a ten-day extension of the filing deadline.  Comments are now due April 28th, and Reply Comments are due by May 27th.

The FCC's recent item proposing the adoption of video description rules was published in the Federal Register today setting the deadline for Comments in the proceeding. The FCC subsequently extended the deadline, and Comments are now due by April 28th, with Reply Comments due by May 27th.  As we wrote about recently (here), the FCC has initiated a rule making proceeding to reinstate its prior video description rules with certain modifications, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (Act). The proposed rules would require large market broadcast affiliates of the top four national networks and most cable operators and DBS providers to provide programming with audio narrated descriptions of a television program’s key visual elements beginning as soon as first quarter 2012.  Davis Wright Tremaine previously summarized the Act in our earlier advisory available here.

Now, with today's publication of the Notice of Proposed Rule Making in the Federal Register, the date for comments has been set, and the FCC is moving quickly to implement the rules.  In addition to proposing to reinstate the rules previously adopted by the FCC, the item asks many practical implementation questions about refreshing market rankings, applicability of the rules to low power television, and what constitutes the “technical capability” to pass through video descriptions. In particular, the FCC seeks to refresh the list of the top 25 DMAs, as well as update the top five national nonbroadcast networks subject to the rule.  Interested parties may file comments with the FCC either in paper or electronically through the FCC’s Electronic Comment Filing System on or before April 28, 2011.  

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Posted on March 4, 2011 by Brendan Holland

FCC Initiates Rule Making to Reinstate Video Description Regulations for Television Programming

Yesterday, the FCC initiated a rule making proceeding to reinstate its prior video description rules with certain modifications, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (Act). The proposed rules would require large market broadcast affiliates of the top four national networks and most cable operators and DBS providers to provide programming with audio narrated descriptions of a television program’s key visual elements beginning as soon as first quarter 2012.  Davis Wright Tremaine previously summarized the Act in our earlier advisory available here.

The Notice of Proposed Rule Making (NPRM) takes the first step toward restoring the video description regulations that the FCC previously adopted in 2000, but which were subsequently vacated by the U.S.  Court of Appeals for the D.C. Circuit. Now with explicit Congressional authorization, the FCC seeks to restore the video description rules by Oct. 8, 2011, as required by the Act. The FCC proposes a quick implementation, with the video description and pass-through rules beginning Jan. 1, 2012. The most significant elements of the reinstated video description rules are: 

  • Broadcast affiliates of the top four national networks—ABC, CBS, Fox, and NBC—located in the top 25 television markets must provide 50 hours per calendar quarter of prime time and/or children’s programming with video descriptions.
  • The top five national nonbroadcast networks must provide 50 hours per calendar quarter of prime time and/or children’s programming with video descriptions. The proposed rule would be applied to multichannel video programming distributors (MVPDs), including cable operators and DBS providers with 50,000 or more subscribers, and presumably then be applied to the top five networks through affiliation agreements.
  • “Live” and “near live” programming is exempt from the rules.
  • In order to count toward the requirement, the programming must not have been aired previously with video descriptions, on that particular broadcast station or MVPD channel, more than once.
  • All broadcast stations, regardless of market size or affiliation, and all MVPDs, regardless of the number of subscribers they serve, must “pass through” video description when such descriptions are provided and when the station or program distributor has the technical capability to do so.

In addition to proposing to reinstate the rules previously adopted by the FCC, the item asks many practical implementation questions about refreshing market rankings, applicability of the rules to low power television, and what constitutes the “technical capability” to pass through video descriptions. In particular, the FCC seeks to refresh the list of the top 25 DMAs, as well as update the top five national nonbroadcast networks subject to the rule. In determining the top five nonbroadcast networks, the FCC proposes to exclude from the top five any nonbroadcast 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. The NPRM specifically seeks comment from any network that believes it should be excluded from the top five covered networks because it does not offer enough pre-recorded prime time or children’s programming.

The item also seeks input regarding the definition of “near live” programming, which the FCC proposes to define as programming performed and recorded less than 24 hours prior to the time it is first aired. Other than live or near live programming, the FCC proposes not to adopt any new categorical exemptions, but seeks input regarding an exemption based on a showing that compliance would be economically burdensome, similar to the existing exemption for closed captioning.

Finally, the FCC seeks comment on how to accommodate digital television stations that multicast multiple programming streams (i.e., whether it must include descriptions on all four streams), including if a station carries a top-four national network on another stream, and whether it should adopt quality standards for video descriptions, assuming that it has the authority to do so.

Comments in this proceeding will be due 30 days after the NPRM is published in the Federal Register, with Reply Comments due 60 days after publication.  Interested parties may file comments with the FCC either in paper or electronically through the FCC’s Electronic Comment Filing System. 
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Posted on May 13, 2010 by Brendan Holland

TV Stations and Cable Operators Should Watch Out for Increased Closed Captioning Enforcdement

So it seems like we have been posting about Closed Captioning issues at least once a month recently, and this month is no exception as word comes now that the FCC is expecting to ratchet up enforcement of its closed captioning rules as it has now become easier for consumers to file complaints directly to the FCC.  Today, the FCC released a Public Notice aimed at informing consumers of just how easy it is to file complaints with the FCC regarding closed captioning.  The Notice also instructs viewers on how they can find contact information for video programming providers in order to contact satellite providers, cable systems, and broadcast television stations directly with any issues they may have.  Today's Public Notice, a copy of which is available here, is specifically aimed at viewers and touts that:  "The simplified complaint rules make it easier for consumers to bring their concerns about closed captions on television to the attention of the Commission." 

Today's notice comes on the heels of public statements made earlier this week about the fact that the FCC intends to ramp up its enforcement of the captioning rules.  According to trade press reports, the Deputy Chief of the FCC's Consumer and Governmental Affairs Bureau believes that the DTV transition has resulted in an increased number of captioning issues, and that the FCC expects to step up enforcement in this area to respond to the growing number of complaints.  So television stations, cable operators, and satellite television providers are on notice that the FCC is paying close attention to closed captioning issues.  Video programming providers should be vigilant to ensure that they are complying with the rules and that they respond promptly and thoroughly to any inquiry or complaint from either a viewer or the FCC.  Further details about the recent changes to the closed captioning complaint rules can be found in our earlier post here.   

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Posted on March 17, 2010 by Brendan Holland

Reminder: Closed Captioning Contact Info Due by March 22, 2010

Just a reminder that all Video Programming Distributors -- which includes broadcast television stations --  must identify a contact person for closed captioning issues, both immediate issues and general complaints, and file that contact information with the FCC by March 22, 2010.  As we've discussed previously, new FCC closed captioning rules recently went into effect that require video programming distributors to establish a contact for handling immediate closed captioning concerns, as well a contact for receiving written captioning complaints of a general or non-time sensitive nature.  In order to assist viewers and potentially facilitate the resolution of such captioning complaints, the rules require that video programming distributors publicize the appropriate contact information and also provide the information to the Commission, which will maintain a database open to consumers.  

Accordingly, by March 22, 2010, television stations must designate a contact person, post the necessary contact information on their web site (and in any phone directories the station may advertise in), and submit the information to the FCC.  The best way for stations to file this information with the FCC is to visit the FCC's Web site and submit the information online. The Commission’s Web site contains a detailed form with step-by-step instructions that will walk applicants through the process.  Alternatively, the contact information can be e-mailed directly to the FCC’s Disability Rights Office at: CLOSEDCAPTIONING_POC@fcc.gov.

Video programming distributors must keep their contact information current and update both their Web sites and the Commission’s database within 10 business days of any changes to the information.  Further details about the contact information requirement and the revised FCC closed captioning complaint rules can be found in our earlier posting here. 

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Posted on February 23, 2010 by Brendan Holland

Closed Captioning Update: New Complaint Rules Now Effective; Contact Information Due by March 22, 2010

On Friday, Feb. 19, 2010, two important new closed captioning rules were published in the Federal Register and went into effect. The new rules require immediate attention by video programming distributors -- including broadcast television stations -- to ensure that they respond promptly to viewer complaints regarding closed captioning issues, and to ensure that they timely file contact information with the FCC by March 22, 2010. 

As detailed in Davis Wright Tremaine’s November 2008 advisory and subsequent January 2009 advisory update, the Federal Communications Commission (FCC) adopted a Declaratory Ruling and Order in late 2008 that, among other things, imposed new requirements on video programming distributors with respect to fielding inquiries and complaints about closed captioning.  While the implementation of some aspects of those rules was delayed initially, with Friday's publication in the Federal Register, two of those are now in effect.  The new rules, and the obligations they impose on video programming distributors, are discussed below. 

Streamlined complaint process

First, the Commission’s earlier Order revised the complaint process for complaints involving closed captioning rules, and with the Feb. 19 publication in the Federal Register, the new complaint procedures are effective immediately. The revised complaint procedures are as follows:

  • Viewers who believe that a video programming distributor has failed to meet its captioning obligations may now file a complaint directly with either the FCC or with the program distributor, e.g., cable operator, television broadcaster or DBS provider. (Previously, viewers were required to first file complaints with distributors.)
  • If a complaint is filed with a program distributor, then the distributor must respond to the viewer complaint in writing within 30 days of receipt. If a video programming distributor fails to respond to the complainant within 30 days, or if the complainant is unsatisfied with the response, the viewer may then file a complaint with the FCC within 30 days.
  • If a complaint is filed directly with the FCC, the FCC will forward the complaint to the program distributor, which will be required to respond to the FCC in writing within 30 days of receipt. (Previously, distributors were required to respond to FCC complaints within 15 days.) In responding to a complaint, the video programming distributor must provide the Commission with sufficient records and documentation to demonstrate that it has complied with the Commission's rules. 
  • Viewer complaints must be in writing and must be filed within 60 days of the alleged violation (whereas previously complaints could be filed within the calendar quarter in which the alleged violation occurred). The complaint also must state with specificity the alleged Commission rule violated and include some evidence of the alleged rule violation.

 New captioning contact requirements

Second, in order to facilitate the ability for viewers to (1) raise immediate captioning concerns (such as garbled or missing captions), and (2) file captioning complaints, video programming distributors must publicize appropriate contact information and also provide contact information to the Commission.

To assist viewers with immediate captioning concerns while they are watching a program, video programming distributors must publish a telephone number, fax number and e-mail address for purposes of receiving and responding immediately to any closed captioning concerns. The revised rules require that “customers using this dedicated contact information must be able to reach someone, either directly or indirectly, who can address the consumer's captioning concerns.”

Under the new rule, distributors must ensure that any staff reachable through this contact information has the capability to immediately respond to and address viewers' concerns, and in situations where the captioning problem does not reside with the distributor, the staff person receiving the inquiry should refer the matter appropriately for resolution. Distributors are not required to alter their hours when they have staff available, but if calls are placed when staff is not available, such calls and inquiries must be returned or addressed within 24 hours. The FCC also expects distributors to take measures to accommodate calls placed through a Telecommunications Relay Service operator.

In addition, distributors also must separately designate a contact person for the receipt of written (non-immediate) captioning complaints. This contact person must have primary responsibility for captioning issues and compliance with the FCC rules. The contact information must include the contact person’s name, title/office, telephone number, fax number, postal mailing address and e-mail address. A distributor’s contact information must be included on the distributor’s Web site (if it has a Web site), in billing invoices (if any) and in telephone directories (if the distributor already directly advertises or has a paid expanded listing, i.e., more than merely name, number and location in standard font, in a telephone directory).

The FCC will maintain a list of video programming distributors’ contact information for purposes of resolving closed captioning issues. Accordingly, distributors—including cable systems, broadcast television stations and satellite television providers—must file their contact information with the FCC by March 22, 2010. Distributors must provide the required contact information both for handling immediate concerns and for receiving written captioning complaints.

The best way for video programming distributors to file this information with the FCC is to visit its Web site and submit the information online. The Commission’s Web site contains a detailed form with step-by-step instructions.  Alternatively, the contact information can be e-mailed directly to the FCC’s Disability Rights Office at:  CLOSEDCAPTIONING_POC@fcc.gov.

Video programming distributors must keep their contact information current and update both their Web sites and the Commission’s database within 10 business days of any changes.

Finally, the Commission has stayed the effectiveness of the rule that would require video programming distributors to forward closed captioning complaints to a third party in certain circumstances. Because of the potential conflict with laws prohibiting the disclosure of personally identifiable information to third parties, the Commission has stayed the implementation of this rule until it can review the issue further and potentially issue a notice of proposed rulemaking.
 
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Posted on June 21, 2008 by David Oxenford

Closed Captions and Video Description - The First Step to FCC Regulation of On-Line Media?

A recent Washington Post article highlights a bill that was recently introduced in Congress suggesting that the FCC bring back their rules for audio descriptions of video programming - rules which were thrown out by the Courts several years ago as being beyond the scope of the Commission's authority without explicit Congressional authorization.  But not only does this bill propose to give that missing Congressional approval to the FCC to re-introduce video description requirements for broadcast television, but it would authorize the FCC to introduce these rules, and closed-captioning requirements, on all video screens, including MP3 players, wireless devices and other video devices getting their programming through the Internet or other digital technologies.  With this bill, and various other proposals that have surfaced in recent months, it seems more and more likely that, as the Internet becomes even more important in the provision of broadcast-like programming in the future, the FCC may be called on by Congress to impose broadcast-like restrictions on that programming.

The full text of the recent bill, introduced by Congressman Markey, Chair of the House Subcommittee on Telecommunications and the Internet, can be found here.  A summary of the bill is also available on Congressman Markey's website.  The bill deals first with the accessibility of telephones and other communications devices, before setting out the provisions dealing with the captioning and video description requirements for broadcast and Internet video devices.  The bill first asks the FCC to study and report to Congress on the issues with captioning and video description on video devices, and then asks the FCC to adopt rules governing these matters, making video programming placed on the Internet that was either broadcast on a television stations or which is "comparable" to broadcast programming to be subject to these rules.  The idea is to make all TV-like programming subject to the rules, no matter what device it is viewed on.  Presumably, if adopted, the law would allow the FCC to make exemptions for certain types of programming (just as it currently allows exemptions from the current closed captioning requirements for small entities that have insufficient resources to caption a program).  The bill also requires that the FCC make sure that program guides and emergency information are available to those with hearing or visual difficulties, and that the navigation devices on video receivers can  be worked by those with disabilities.  So the FCC would have much to do to comply with this law, if adopted, and all within an 18 month period.

Of course, as we are now entering the summer before a major Federal election, Congress will be preoccupied with various political campaigns, and will deal principally with that legislation that needs to get passed.  But whether or not this bill is adopted this Congressional session, the mere fact that it has been introduced (and featured in a Washington Post story) may well mean that the issue will return in future Congresses.

This is not the only indication that the FCC will become involved in Internet programming issues in coming years.  In a recent debate between surrogates of the two Presidential candidates, press reports indicate that former FCC Chairman Michael Powell, speaking on behalf of the McCain campaign, indicated that the FCC under a President McCain would look to make programming regulation uniform across various platforms - which could mean between broadcast and cable platforms, though some interpreted it to mean that such rules would be extended to the Internet as well.  Through such platform parity, could this mean that, for instance, the enforcement of indecency laws and policies would spread to the Internet?

Whether it's captioning or indecency, the Wild West of the Internet may one day in the not too distant future have a new sheriff to deal with - one with which broadcasters are already very familiar.
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