Update 10/15/10:  A copy of the Davis Wright Tremaine advisory published on October 13 is now available here and provides further details about the new accessibility Act.

Last week Congress adopted legislation to promote the accessibility of communications and media services. The law, entitled the “Twenty First Century Communications and Video Accessibility Act of 2010”, is expected to be signed into law by President Obama, possibly as early as today, October 8th. The Act contains a number of changes to improve media accessibility, the most notable of which for broadcasters and cable operators is the reinstatement of the Commission’s defunct Video Description rules. The Act reinstates the FCC’s prior video description rules adopted in 2000 and subsequently struck down by the Court of Appeals in the case of MPAA v. FCC following a challenge to the rules by the Motion Picture Association of America, the National Association of Broadcasters, and the National Cable & Telecommunications Association.  At the time, the Court found that the FCC did not have the authority to adopt  video description rules, but Congress has now eliminated that issue by specifically authorizing the FCC to promulgate such rules and instructing it to reinstate the earlier regulations. 

We are currently in the process of reviewing and summarizing the new legislation and expect to publish shortly a Davis Wright Tremaine advisory with complete details and a time line for implementation. Once that advisory is published, we’ll update this post and provide a link.   In the meantime, some of the highlights and specifics of the Act are detailed below:  

The Act effectively reinstates video description rules adopted in 2000 as 47 CFR § 79.3 and struck down in MPAA v. FCC.  The rules will go into effect within one year after enactment (i.e. by October 2011).  Those rules will initially require that:

  1. Affiliates of the Big 4 Networks (ABC, CBS, Fox, and NBC) in the top 25 DMAs will have to provide 50 hrs./quarter of prime time or children’s programming with video description
  2. The top 5 national nonbroadcast (i.e. cable) networks, must provide 50 hrs./quarter of programming with video description;
  3. Broadcast stations and MVPDs with technical capability to do so generally must pass through video descriptions.

Before the rules go into effect, the FCC will conduct a rule making to make certain modifications to the 2000 rules including:

  1. Updating the list of top 25 DMAs and top 5 cable networks, determining the first calendar quarter in which video description compliance will be required, and the phase-in for compliance;
  2. specifying that the rules apply to television programming in digital format only;
  3. specifying that live or near-live programming is not covered;
  4. creating a way for covered programming providers or owners to seek exemptions
  5. allowing FCC to exempt services, programs, and/or equipment (or classes thereof) based on economic burden

After all the above is complete, the rules as modified may be expanded to require a greater number of hours of video-described programming per quarter and to expand the television markets that must comply.  However, such expansion of the rules would only be after the FCC provides Congress with a report on the financial, technical, and operational costs associated with video descriptions, and the availability, use, and benefits of video descriptions.  According to the Act, the Commission may not issue additional regulations unless the Commission determines, at least two years after completing the required reports, that the need and benefit of the rules outweighs the costs of providing additional programming. 

In addition to Video Description the Act also makes changes to the closed captioning rules.  In particular, the law extends captioning requirements for video programming online.  The Act instructs the FCC to prepare a report to Congress and to commence a rule making proceeding to establish the requirements, standards, and protocols for online closed captions.  As a result, the Commission will revise its regulations to require the provision of closed captioning on video programming delivered using Internet protocol.  This marks an interesting expansion of the closed captioning rules into the Internet realm and could have a significant impact on broadcasters, cable operators, and video programming providers.  While the specific rules have yet to be established — the Act authorizes the FCC to extend the closed captioning rules to the Web and instructs it to commence reporting and rule making proceedings to make it so — all video programming providers should be alert and involved as the Commission conducts its rule makings.

The Act also establishes a new FCC advisory committee called the Video Programming and Emergency Access Advisory Committee, that will be charged with making reports and recommendations to the FCC on technical and operational matters associated with the various new requirements.  Beyond the issues of video description and closed captioning, which are of the greatest interest to television stations, the Act also addresses hearing aides, advanced communications equipment and services, accessibility of navigation devices, Internet browsers in cell phones, and more.  As you can see, the Act contains a lot, and will require the FCC to be active in the area of media accessibility and to implement new regulations that will impact video programming far into the future.  As mentioned above, DWT will be publishing an advisory with further details, and this post will be updated once it is available.