Posted on April 4, 2011 by David Oxenford

Comment Deadline on Video Description Rulemaking Extended

The FCC has granted an extension of time to submit comments in its proceeding to re-institute video description rules for television programming.  Comments are now due April 28th, and Reply Comments are due by May 27th.  A copy of the FCC's recent Order extending the deadline is available here.  As we wrote about earlier (here), this rule making proceeding seeks to reinstate the Commission's prior video description rules with certain modifications, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (the CVAA). 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.

In addition, the FCC also just granted an extension of time to file comments in a related proceeding that seeks to implement other aspects of the CVAA.  That proceeding, addressing accessibility of equipment and Advanced Communications Services, was also initiated in early March and shares a similar timetable for promulgating rules as the video description proceeding.  Accordingly, the FCC did not grant the full 30-day extension sought by the parties, but rather has granted a two week extension of time for comments.  Comments are now due on April 25, and replies on May 23 in that proceeding.  Groups including the National Federation for the Blind and the Consumer Electronic Association requested a month-long extension in the comment date but, as Congress has required that these rules go into effect at the beginning of 2012, the Commission felt that it could only justify a two week extension and still be able to meet the statutory deadline.  So have those comments ready by April 25. 

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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 February 13, 2011 by David Oxenford

Next FCC Meeting Full of Issues for Broadcasters - Retransmission Consent, Moving Rural Radio Stations Toward Urban Areas, and TV Video Description

After a series of FCC meetings where the only mention of broadcasters was in connection with taking TV spectrum for wireless broadband, the tentative agenda for the next FCC meeting, to be held on March 3, 2011, is full of broadcast issues - issues that could have broadcasters wishing that they were ignored once more.  The biggest issue is the initiation of a proceeding to re-examine the retransmission consent process by which television broadcasters negotiate with cable and satellite companies for payment for the carriage of their signals.  But also on the agenda are proceedings to look at rural radio services and whether the Commission should limit the ability of broadcasters to move stations from rural to urban areas, and the initiation of a proceeding to require that television programmers provide audio descriptions of the action taking place on the video portion of their programs to aid those who are visually impaired.

The retransmission consent proceeding is one which arises after several well-publicized cases where television stations and multichannel video program distributors (like cable and satellite television providers) have had disputes about the amount to be paid to the television broadcaster for the carriage of their signal by the MVPD.  In a few cases, this has resulted in the television station being pulled from the MVPD for some period of time until the dispute can be resolved.  Some MVPDs have argued that there should be more oversight over the process by which television stations can force the MVPD to pull the station's signal until the retransmission negotiation is completed.  MVPDs argue that viewers, who can get the signal over the air as it is made available by the TV station for free, should not be held hostage to the negotiations and should not suffer when the station is pulled from the MVPD to further the TV station's negotiation posture.  Broadcasters, on the other hand, argue that the system is working, that the number of stations who have been pulled from an MVPD is few, and that the MVPD should pay for the valuable television signal, just as it pays for other programming that it carries from cable networks.  The FCC is expected to ask whether some reform of the process, and perhaps some government oversight or mandatory mediation, should be required.

The rural radio proceeding is one which we wrote about here.  In addition to the proposal to give a preference to the initiation of new radio services on Tribal lands to service Native American populations, the proceeding more broadly looks at whether some restrictions should be placed on the ability of owners of rural stations to move those stations toward more urban areas.  Virtually all of the comments in that proceeding opposed more restriction, asking how the rural and urban areas would be defined and, as long as some minimum level of service was preserved to the rural area, are such limits really necessary?  Restrictions on the ability to move stations, in the name of Section 307(b)(the section of the Communications Act that mandates a fair and equitable distribution of broadcast services among the states and communities), could undo the liberalization granted to broadcast station owners to move their stations to respond to marketplace demands, that was just adopted four years ago (about which we wrote here).  As comments have already been filed in this proceeding, the Commission could issue a final decision in this proceeding next month.

The final proceeding, to require television stations to provide an audio description of action that occurs visually on a TV screen so that the visually impaired can understand what is happening.  Several years ago, the FCC had adopted such a requirement, which was thrown out by the Courts as being beyond the statutory authority of the Commission.  To overcome that court decision, Congress has adopted new legislation to require the FCC to adopt such rules, spelling out much of the adoption timetable (see our article here).  So watch for the FCC to specify at its upcoming meeting how this requirement will be implemented.

All in all, a big meeting for broadcasters.  So pay attention.
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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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Posted on January 26, 2008 by David Oxenford

FCC Releases Rules for Enhanced TV Disclosure Requirements

The FCC has released the full text of its Order adopting enhanced disclosure requirements for broadcast television stations - requiring that they post their public files on their websites and that they quarterly file a new form, FCC Form 355, detailing their programming in minute detail, breaking it down by specific program categories, and certifying that the station has complied with a number of FCC programming rules.  The Commission also released the new form itself and, as detailed below, the form will require a significant effort for broadcasters to document their programming efforts - probably requiring dedicated employees just to gather the necessary information.  The degree of detail required is more substantial than that ever required of broadcasters - far more detailed than the information broadcasters were required to gather prior to the deregulation of the 1980s - though, for the time being, much (though not all) of the information is not tied to any specific programming obligations set by the FCC.

 Before getting to the specifics of the new requirements, the thoughts of the Commission in adopting this order should be considered.  The Commission's decision focuses on its desire to increase the amount of citizen participation in the operation of television stations and the decisions that they make on programming matters.  While many broadcasters protested that the public rarely cared about the details of their operations, as evidenced by the fact that their public files were rarely if ever inspected, the Commission suggested that this was perhaps due to the difficulty the public had in seeing those files (the public actually had to go to the station to look at the file) and the lack of knowledge of the existence of the files (though broadcasters routinely broadcast notice of the public file's existence during the processing of their license renewal applications, rarely producing any viewers visiting the station to view the file).  With respect to the new Form 355 detailing the station's programming, the Commission rejected arguments that reporting of specific types of programming in excruciating detail imposes any First Amendment burden on stations, as the Commission claims that it has imposed no new substantive requirements.  Yet the Commission cites its desires that the public become more involved in the scrutinizing of the programming of television stations, which it states will be aided by the new form, and also emphasizes the importance that the Commission places on local service (an item detailed in Form 355).  At the same time, in its proposals detailed in its Localism proceeding (summarized here), the Commission is proposing rules requiring specific amounts of the very programming that is reported on Form 355, the very numbers that, in this proceeding, it claims have no significance.  Moreover, citizens will be encouraged by the Commission's actions to scrutinize the new reports, and file complaints based on the perceived shortcomings of the broadcaster's programming.  Broadcasters in turn will feel pressured to air programming that will head off these complaints.  So, implicitly, the Commission has created the First Amendment chilling effect that it claims to have avoided.

In the order, the FCC also minimizes the costs of complying with its new requirements.  The Commission suggests that the costs of digitizing a public inspection file would "involve a one-time cost of $15,000," and then could be maintained on a server for less than $20 a month.  Even if this cost is accurate (and as set forth below, there are reasons to doubt this), for a small market television station even that cost can be quite significant.  While the Commission suggests that small stations with minimal website operations can request a waiver of these requirements, it sets no standards by which such a waiver will be judged.  Similarly, the costs for the constant review of a station's programming necessary to complete the Form 355 will be substantial, as every day's programming will need to be timed, classified, and recorded so that the weekly averages that are reported on the Form can be computed, and as the report requires a complete catalog of all public interest programming.  Someone will have to make those computations, and prepare the required descriptions of the public interest programming, again not an insubstantial cost, especially for a small market station (and even for some larger market stations).  And for what purpose?  The Commission implies that it is for the greater good that will come from the information reported in the form - information which, as stated above, in the Commission's own eyes is currently of no regulatory significance.

These issues may well be played out in appeals or requests for reconsideration of the new rules.  But, unless and until the rules are changed, broadcasters will need to comply with the new requirements.  First, the provisions governing the on-line maintenance of the public file include the following (with our observations in parentheses):

  • The Rules will become effective 60 days after the notice of their approval by the Office of Management and Budget (as required by the Paperwork Reduction Act - this is paperwork reduction?) is published in the Federal Register.
  • Stations can either post the public file contents on their own website, or on the website of their State Broadcast Association (why would the Association volunteer to do that?).  Even if the State Association agrees to host the website, the station must have a link on its website to the report. 
  • If a station has no website, it does not need to create one to comply with these rules (and it has no obligation to place the file on the State Association site).  But if it later develops a website, it must have the public file contents posted within 30 days.
  • The contents of the political file do not need to be posted on the website
  • Letters from the public do not need to be posted on the site - though emails from the public should be posted
  • Documents that are posted on other sites, including the FCC site, need not also be stored on the station site, if a link to the documents is placed on the station's site
  • The file must be accessible to the disabled, complying with Conformance Level A of the World Wide Web consortium's Web Content Accessibility (W3C/WAI) guidelines.  (Information may be found here).  This may preclude some files being stored solely in a PDF format (and will no doubt cause some consternation among those at stations, who we would expect to be most people, not familiar with these standards). 
  • Twice each day, the station must publicize on the air, with its station identification, the availability of the file on the website.  At least one of those mentions must be between the hours of 6 PM and midnight.

The FCC Form 355 requires information including the following:

  • A list of the station's programming streams (i.e. the analog channel and any digital multicast program streams) and "their main programming focus"
  • A list of the parent company and affiliates of the company which owns the station (isn't this what Ownership Reports are for?)
  • For each programming stream, the average number of weekly programming hours devoted to the following:
    • High Definition programming
    • National news
    • Local news produced by the station
    • Local news produced by some other entity (who must be identified)
    • Programming devoted to "local civic affairs," defined as programming designed to provide the public with information about local issues, including statements or interviews with local officials, discussions of local issues, and coverage of local legislative meetings.  This programming must be subtracted from the "news" programming reported above.
    • Coverage of local electoral affairs - basically coverage of local elections - which must also be subtracted from the news coverage numbers reported above
    • Independently produced programming, i.e programming not produced by a national network (presumably each local station will have to determine if a network has as little as a one-third interest in all programming that is being aired)
    • "Other" local programming - which is not defined but presumably would include sports, religious, and entertainment programming produced within the station's service area
    • Public service announcements
    • Paid public service announcements (a PSA-type announcement for which the station or any group that the station is affiliated with - presumably including state broadcast associations - receives something of value)
    • Closed captioned programming
  • A list of each national news story that includes significant treatment of community issues, listing for each such program:
    • title, length and date and time of airing
    • whether it was aired on the primary channel of the station
    • whether it was locally produced
    • whether it previously aired on this station or any other station (how is a station supposed to figure out what other stations a national news program aired on?)
    • if it was part of a regularly scheduled news program
    • whether any consideration was received for the broadcast of the segment
  • A list of all local news program segments dealing with community issues, providing the same information for each such segment as listed above for national news segments
  • A list of all local civic affairs program segments that provides significant treatment of a community issue, with all the same details as listed above for news segments
  • A list of all electoral affairs programs that includes significant treatment of community issues, with the same details as provided for news segments
  • The title, length and date and time of the airing of all independently produced programming
  • A list of all local programming not otherwise listed above, with title, length,and date and time of airing, and whether the station received consideration for airing the program
  • For each PSA, the name of the sponsoring organization, the number of times the PSA ran, the length, and the percentage of times that were during prime time hours
  • For each paid PSA, the same information as for unpaid PSAs
  • Details of programming directed to "undeserved communities," defined as demographic segments of the community to which little or no programming is directed (query - if no programming is directed to a particular demographic segment, how can a station have anything to report in this category?)
  • Details of religious services or other local religious broadcasts aired at no change
  • A description of how the station determined that its programming met community needs
  • Details on the amount of closed captioned programming broadcast by the station, and a list of exempt programs that were aired, with details as to the exemptions
  • Whether the station voluntarily provided video description of any of its programs and, if so, how much
  • Information about broadcasts about community emergencies, including a statement as to whether or not the station complied with the rules that require such programs to be accessible to the disabled
  • Whether or not more than 3 hours per day of programming is provided pursuant to an LMA or JSA.

 As I was preparing this litany of information that the Form 355 will contain, I was trying to imagine how stations will comply with this requirement. As set out above, the form calls for an inventory of all program segments that deal with issues of public concern.  To fully comply with the rules, it would appear that a station will have to have staff members dedicated to monitoring all programming broadcast on the station - including on multicast streams and including all network and syndicated programming - to determine if the programming contains a significant discussion of important issues of public concern. Then, if any segment of any program does contain such a discussion, the station will have to write up the description of that program for inclusion on the Form 355, providing the duration, topic and time of broadcast of each such program. The Form 355 will not be a form that a station can simply fill out in the last few days of the quarter, but instead will require a minute-by-minute review of station operations, and a daily updating up information to be ready to upload it on the quarterly due date.

This would seem to be an incredibly burdensome requirement for any station. But, as with any new regulatory mandate, the burden falls hardest on small market stations. The costs and time to monitor station programming is essentially the same whether a station is in Glendive, Montana or New York City, as the amount of programming that a station broadcasts in either a big or a small market is essentially the same. Yet a New York City station has far greater resources from which to pay the costs of compliance with these rules. The small market station, in many cases already reeling under the costs of the digital transition, will be crushed by the new burden that these new rules entail. If ever the Paperwork Reduction Act should be brought to bear to reject a program for the regulatory burden it imposes, this should be the case. Lets hope that the Office of Management and Budget is more attuned to the burden that these rules create than was the FCC.
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