FCC 99-353
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
)
In the Matter of
)
MM Docket No. 99-339
)
Implementation of
)
Video Description of
)
Video Programming
)
)
NOTICE OF PROPOSED RULEMAKING
Adopted: November 18, 1999
Released: November 18, 1999
Comment Date: January 24, 2000
Reply Comment Date: February 23, 2000
By the Commission:
I. INTRODUCTION
1. Television plays a significant role in our society. Television programming shapes public opinion and culture in myriad ways. It
is the principal source of news and information and provides hours of entertainment every week to American homes.(1) For the
millions of Americans with visual disabilities - who watch television in similar numbers and with similar frequency to the general
population - the difficulty of being able to follow the visual action in television programs puts them at a significant
disadvantage.(2) This disadvantage can be overcome through the use of video description, through which narrated descriptions
of a television program's key visual elements are inserted during the natural pauses in the program's dialogue.(3) Video
description is typically provided through the use of the Secondary Audio Programming channel so that it is audible only to those
who wish to hear the narration. The narration generally describes settings and actions that are not otherwise reflected in the
dialogue, such as the movement of a person in the scene. In this Notice of Proposed Rulemaking, we propose to adopt
limited requirements to ensure that video description is more available so that all Americans can enjoy the benefits of television.
We expect to expand these requirements once we have gained greater experience with video description.
2. Public television has been airing described video programming for more than a decade. WGBH's Descriptive Video Service
(DVS) has described more than 1600 PBS programs, and in the fall of 1998 provided video description of three daily
programs, four weekly programs, selected episodes of three other series and several specials.(4) Many commercial
broadcasters also have the technical ability to air described video programming, but few have done so. Many cable systems
have the capability to provide described programming, but do so only on very limited channels, such as the Turner Classic
Movies channel, and none of this programming is available without the assistance of public funding.(5) As a result, less than 1%
of all programming contains video description.
3. The Commission has previously conducted inquiries on video description. The Commission issued its first Notice of Inquiry
on video description in 1995.(6) Section 713(f) of the Act,(7) added by the 1996 Act, directed the Commission to commence
an inquiry on video description, and report to Congress on its findings. Using the record adduced in response to the First NOI,
the Commission issued the required report to Congress in 1996.(8) The Commission then issued a second Notice of Inquiry in
1997,(9) and submitted more information to Congress on video description in its 1997 annual report on competition in the
markets for the delivery of video programming.(10) The availability of video description has not meaningfully improved during
the past several years while these proceedings were ongoing.
4. Various parties have asked the Commission to take steps to enhance the availability of video description. As discussed
below, the Commission has received two specific proposals to implement the service, both of which suggest that we phase in
video description over a number of years.(11) In addition, the President's Advisory Committee on the Public Interest
Obligations of Digital Television Broadcasters has encouraged digital broadcasters to provide video description.(12) The
Commission has also received letters of support from Congress and industry.(13) Through this proceeding, we seek comment
on ways to increase the availability of video description, without imposing an undue burden on industry.
II. BACKGROUND
5. Audience for Video Description. Video description is designed to make television programming more accessible to persons
with visual disabilities, and enable them to "hear what they cannot see."(14) Thus, the primary audience for video description is
persons with visual disabilities. Estimates of the number of persons with visual disabilities range from more than eight million(15)
to nearly twelve million.(16) The group includes persons with a problem seeing that cannot be corrected with ordinary glasses or
contact lenses, with a range in severity.(17)
6. A disproportionate number of persons with visual disabilities are older. The National Center for Health Statistics reports that
eye problems are the third leading cause, after heart disease and arthritis, of restricting the normal daily activities of persons 65
years of age or older.(18) While only 2-3% of the population under 45 years of age has visual disabilities, 9-14% of the
population 75 years of age or older does.(19) This means that as the population ages, more and more people will become
visually disabled.(20)
7. Secondary audiences for video description exist as well. For example, at least one and a half million children between the
ages of 6 and 14 with learning disabilities(21) may benefit from video description. Because the medium has both audio
description and visual appeal, it has significant potential to capture the attention of learning disabled children and enhance their
information processing skills. Described video programming capitalizes on the different perceptual strengths of learning-disabled
children, pairing their more-developed modality with their less-developed modality to reinforce comprehension of
information.(22)
8. The secondary audience may also include persons without disabilities. Just as health club members and sports bar patrons
have become beneficiaries of closed captioning, viewers who are doing several things at once, who need to attend to something
during a program, or who leave the room during a program, may become beneficiaries of video description.(23) In fact, the
Narrative Television Network, which provides video description that is "open" and therefore cannot be turned off, reports that
60% of its audience is not visually disabled.(24)
9. Technology. Video description can be either "open" or "closed." Open description is provided as part of the main
soundtrack of a program. As a result, no special equipment is needed for a broadcaster or multichannel video programming
distributor (MVPD) to transmit the descriptions or for the viewer to receive them. The descriptions cannot, however, be turned
off.
10. Closed description is provided on the Secondary Audio Programming, or SAP, channel. The SAP channel allows for an
additional audio soundtrack for a program, independent of or separate from the monaural and stereophonic soundtracks. A
secondary carrier, or subcarrier, transmits the SAP channel audio soundtrack through a modulator. When the SAP channel is
used, a programming distributor transmits two separate audio tracks. The second audio track is transmitted with the main
program signal. For example, the SAP channel as currently used by PBS for its video description is transmitted with the main
program signal from the network's master control facility and satellite distribution system to the local station's broadcast facility
and through the local transmitter. To accommodate the additional soundtrack, changes may need to be made to some network
and local stations' plant wiring and equipment. At the local transmitter, the broadcast station or cable operator must have the
technical facilities to pass through the subcarrier signal to include the SAP channel information.(25)
11. The CPB-WGBH National Center for Accessible Media (NCAM) reports that, as of 1998, 156 public television stations
reaching 79 million (80%) of TV households had installed the necessary equipment to distribute descriptions via SAP.(26) In
addition, each of the four largest commercial television networks (ABC, CBS, Fox, NBC) offered Spanish audio on the SAP
channel last year.(27) According to NCAM, in the top 25 DMAs, 81% of one major commercial network's affiliates are
SAP-equipped, and, in the top 50 DMAs, 69% of cable systems are.(28) NCAM also reports that SAP has been a standard
feature of stereo broadcasting for the past fifteen years; as of 1997, 650 TV stations broadcast in stereo, amounting to roughly
40% of total TV stations.(29) For those stations that are not yet SAP-equipped, NCAM estimates that the cost to update
equipment to become so is between $5,000 and $25,000, based on the experience of the noncommercial stations that are
SAP-capable.(30)
12. To receive information contained within the SAP channel, a viewer must have a receiver (TV set) capable of delivering it.
According to the Consumer Electronics Manufacturers Association, as of January 1998, 59% of TV sets sold, and 90% of
VCRs sold, have stereo capability, and most of these are SAP-equipped.(31) The Commission observed several years ago that
52% of American households at the time had SAP-compatible TV sets, and 20% had such VCRs.(32) SAP-capable TV sets
and VCRs can be relatively inexpensive, less than $150, and a converter box is also available for use with TV sets and VCRs
that are not SAP-capable.(33)
13. Prior Video Description Inquiries. The Commission first considered video description when it issued a Notice of Inquiry
on closed captioning and video description on December 4, 1995.(34) Several months later, the Telecommunications Act of
1996 became law. Section 305(f) of the 1996 Act added new section 713 to the Communications Act of 1934.(35) Entitled
"Video Programming Accessibility," section 713 addressed closed captioning and video description. With respect to video
description specifically, section 713(f) stated:
VIDEO DESCRIPTIONS INQUIRY. - Within 6 months after the date of enactment of the Telecommunications Act of 1996,
the Commission shall commence an inquiry to examine the use of video descriptions on video programming in order to ensure
the accessibility of video programming to persons with visual impairments, and report to Congress on its findings. The
Commission's report shall assess appropriate methods and schedules for phasing video descriptions into the marketplace,
technical and quality standards for video descriptions, a definition of programming for which video descriptions would apply,
and other technical and legal issues that the Commission deems appropriate.
14. On July 29, 1996, the Commission released the required report,(36) based on the record adduced in response to the NOI.
The Commission did not issue specific guidance on the criteria enumerated in section 713, because "the present record on
which to assess video description . . . is limited, and the emerging nature of the service renders definitive conclusions
difficult."(37) However, the Commission noted that "the development of rules for closed captioning, which is more widely
available, can provide a useful model for the process of phasing in broadened use of video description."(38) Noting that some
programming distributors do not have SAP capability, that funding to support the service remains an issue, and that description
may implicate certain copyright law issues, the Commission stated:
Irrespective of the level and source of funding, it appears desirable to phase in the service over a period of years. We believe
that initial requirements for video description should be applied to new programming that is widely available through national
distribution services and attracts the largest audiences, such as prime time entertainment series. Over a period of several years,
video description should be phased in for programming with more limited availability, including services distributed in limited
areas, and programming that attracts smaller audiences, such as daytime shows. Lower priority for video description should be
given to programming that is primarily aural in nature, including newscasts and sports events. Phasing in video description in this
manner would follow the model of closed captioning.(39)
The Commission concluded that it should monitor the service and seek more information in the context of its annual report on
competition in the market for the delivery of video programming.(40)
15. On January 13, 1998, the Commission released its second report on video description, as part of its annual report to
Congress on competition in the market for video programming.(41) In the Fourth Annual Report, the Commission stated that
"it is certain that 'closed' video description is feasible," given that it is already being provided by some, such as PBS.(42) The
Commission noted the expense of providing the service, citing, for example, information provided by WGBH that the expense
of describing programming was approximately $3,400 per hour, and that the expense of noncommercial broadcasters that have
upgraded equipment to become SAP-capable ranged from $5000 to $25,000.(43) The Commission again noted copyright
issues. Taking these factors into account, the Commission stated:
any requirements for video description should begin with only the largest broadcast stations and programming networks that are
better able to bear the costs involved. The appropriate timeframe for any requirements might take into account DTV
penetration and availability. For example, a minimal amount of video description could be required to be provided by the larger
broadcast stations in the larger markets, and by the larger video programming networks. In any event, any requirement should
have an exemption for smaller broadcasters, MVPDs, and programming networks.(44)
The Commission suggested that "priority should be given to programming where there is significant action not apparent to
persons with visual disabilities."(45) Finally, the Commission stated that, "[w]hether funded through public sources or through a
more direct regulatory requirement, a period of trial and experimentation would be beneficial so that more specific information
would be available as to the types of programming that would most benefit from description, the costs of providing video
description, and other matters."(46)
16. Coalition and NCAM Proposals. Following the Fourth Annual Report, NCAM submitted a proposal to phase in video
description. This proposal was based on an earlier one submitted by the National Coalition of Blind and Visually Impaired
Persons for Increased Video Access (Coalition),(47) but modified and updated to take into account the Commission's closed
captioning rules.
17. NCAM proposes that initial video description requirements apply to the largest broadcast networks (ABC, CBS, Fox,
NBC, and PBS), and national non-broadcast networks, such as cable networks, that serve 50% or more of the total number of
MVPD households. In order to ensure that video description provided by these distributors is capable of being received by
viewers, NCAM proposes local pass-through requirements on a staggered schedule.(48) Thus, NCAM suggests that by the
end of the first year after any Commission rules become effective, affiliates of the broadcast networks identified above in the
top 25 markets would be required to pass through the description provided by the networks, and all cable systems in the top
25 markets would be required to pass through the description provided by those broadcasters and by national non-broadcast
networks serving 50% or more of the total number of MVPD households. By the end of the second year, these requirements
would be extended to the top 50 markets; by the end of the third year, to the top 100 markets; and by the end of the fourth
year, to the top 200 markets.(49)
18. Both the Coalition and NCAM propose that initial video description requirements apply to prime time and children's
programming, and suggest that requirements for other programming be deferred for several years until the infrastructure for
video description has developed more, and the Commission, the industry, and the public have gained more experience with the
technology.(50) Both the Coalition and NCAM propose that the requirements be phased in over a seven-year period. By the
end of the first year after any Commission rules become effective, the distributors would be required to describe four hours of
prime time programming per week.(51) By the end of each succeeding year, they would be required to describe an additional
three hours of prime time programming per week, until all twenty-two hours of prime time programming (excluding live
newscasts) are described.(52) In addition, by the end of the second year, both the Coalition and NCAM propose that the
applicable distributors be required to describe three hours of children's programming per week.(53)
III. PROPOSALS AND REQUEST FOR COMMENT
19. We propose to adopt limited rules to phase "closed" video description into the marketplace. We hope to ensure the more
widespread availability of video description, but to proceed incrementally so as not to impose a significant burden on video
programming distributors. We thus propose that the largest video programming distributors should provide a limited amount of
video description of their prime time and/or children's programming. We believe that requiring these distributors to provide
some video description will not be economically burdensome for them. We further believe that requiring them to provide video
description of a small portion of their prime time and/or children's programming will ensure the widest availability of video
description to audiences that are most likely to benefit from it. We ask for comment on these views.
20. In this section, we outline a particular proposal of the kind that that we envision for the initial implementation of these rules.
The proposal would require broadcasters affiliated with ABC, CBS, Fox, and NBC in Nielsen's top 25 Designated Market
Areas (DMAs), and larger MVPDs, to provide some "closed" video description.(54) We propose that these broadcasters and
MVPDs provide a minimum of 50 hours per calendar quarter (roughly four hours per week) of described prime time and/or
children's programming.(55) Larger MVPDs would be required to carry the described programming of the broadcasters
affiliated with the top 4 networks, and of nonbroadcast networks that reach 50% or more of MVPD households.(56) We also
propose that these broadcasters and MVPDs begin providing the required described programming no later than 18 months
after the effective date of our rules. We further propose to adopt procedures to waive our rules if compliance would be unduly
burdensome, and to adopt enforcement procedures. These proposals are described in more detail below.
21. This approach is generally modeled after our closed captioning rules. Our approach here is more measured, however,
because video description technology is not as developed as closed captioning technology, and all distributors may not have the
technical capability now to provide described programming. As the Commission, the industry, and the public gain greater
experience with video description, we will review the rules we propose to adopt now, and modify them as the public interest
requires. We expect to increase the amount of required described programming over time "in order to ensure the accessibility
of video programming to persons with visual impairments," as envisioned by Congress in the section 713(f) of the Act.
22. We recognize that broadcasters are in the process of converting from analog to digital technology. The flexibility inherent in
digital technology may make the provision of video description even easier and less costly. Given that the need for video
description exists now and that the transition to digital will not occur overnight, however, we do not wish to wait for the
transition to be complete before adopting video description requirements. We are thus proposing to apply the requirements
outlined in this Notice to analog broadcasters. We do intend, however, to extend our video description requirements to digital
broadcasters in the future. We are inclined not to adopt a specific timetable to apply to digital broadcasters in the Report and
Order arising out of this Notice, but rather to address such specifics in a future proceeding. At that time we can craft rules
based upon the experience we have gained as a result of analog broadcasters' implementation of our initial requirements. We
seek comment on this approach. We also seek comment on what technical issues are raised by the provision of video
description by digital broadcasters and on how the conversion to digital affects the costs associated with the provision of video
description.
23. Entities to Describe Programming. We propose to hold programming distributors, as opposed to producers, responsible
for compliance with our video description rules. We recognize that distributors may not actually describe the programming. In
the closed captioning proceeding, the Commission observed that others such as producers might more efficiently caption
programming, but reasoned that the Commission could more easily monitor and enforce the rules by holding distributors
responsible for compliance.(57) We believe this reasoning is equally applicable here, and therefore propose to hold distributors
responsible for complying with video description requirements. We seek comment on these views.
24. We propose to apply our rules to all distributors of video programming over which we have jurisdiction. Video
programming distributors include television broadcast stations, cable operators, direct broadcast satellite (DBS) operators,
home satellite dish (HSD) providers, open video system (OVS) operators, satellite master antenna television (SMATV)
operators, and wireless cable operators using channels in the multichannel multipoint distribution service (MMDS). We believe
that as many distributors as possible should provide video description to enhance the availability of the service, as well as to
ensure a level playing field among distributors. MVPDs are increasingly the primary source of video programming for most
Americans,(58) and noncable MVPDs continue to grow.(59) Some MVPDs may require separate SAP generators for each
channel they wish to distribute with audio on a SAP channel.(60) It does appear, however, that most of the distribution
technologies are capable of transmitting audio on the SAP channel or through other means.(61) We seek comment on this
proposal.
25. We believe, however, that our initial rules should only require the largest distributors to provide video description. As the
Commission stated in the Fourth Annual Report, "any requirements for video description should begin with only the largest
broadcast stations and programming networks that are better able to bear the costs involved . . . . For example, a minimal
amount of video description could be required to be provided by the larger broadcast stations in larger markets, and by the
larger video programming networks."(62) The costs of providing video description include the cost of having programming
described, and, in some instances, the cost of upgrading equipment.(63) We thus propose to require the affiliates of the four
largest broadcast networks (ABC, CBS, Fox, and NBC) in the top 25 DMAs, and the larger MVPDs to provide video
description.(64) Our proposal is consistent with the first phase of NCAM's proposal. We seek comment on our proposal, and
on how to define the larger MVPDs to which our initial rules should apply. We seek to identify those MVPDs that are
comparable to the broadcast stations we have proposed to require to provide described programming. As indicated above, we
acknowledge and expect that programming networks, and not broadcast stations and MVPDs, will actually describe
programming, but we believe, for ease of enforcement and monitoring of compliance with our rules, that we should hold
distributors responsible for compliance. Our proposal would not require any noncommercial stations to provide video
description at this time, given the financial difficulties that many of them face, particularly during the transition to DTV.(65)
26. To help us better evaluate our proposal and realize our goal of maximizing video description without imposing an undue
burden, we also seek further comment on the costs of video description. The Commission has previously noted that the cost of
describing prime time programming may be as much as several thousand dollars per hour, although commenters have pointed
out that the cost of describing prime time programming is but a small fraction of the total budget of such programming.(66) We
seek additional comment on the costs of describing programming, including more information on the costs relative to the
production budgets of programming such as prime time programming. The Commission has also noted that the cost of
upgrading equipment may be between $5,000 and $25,000, although NCAM reports that 81% of one network's affiliates are
SAP-equipped, and 69% of cable systems are. We seek more complete and updated information on the number of
broadcasters and MVPDs that are SAP-equipped. We seek further comment on the cost of upgrading equipment, particularly
from broadcasters that have already done this.
27. We also seek comment on our proposal to require the largest distributors to provide described programming beginning 18
months after the effective date of our rules. We wish to select a beginning date that ensures more widespread video description
is available rapidly, but does not impose an undue burden on distributors.
28. We intend our proposal to require the largest programming distributors to provide a limited amount of video description to
be a starting point for further development of the service. The experience of the largest programming distributors will provide us
with concrete information upon which to propose a schedule to phase in other distributors. We seek comment on an
appropriate timetable for the next phase in.
29. Programming to be Described. We propose that the distributors should initially provide a minimum of 50 hours per quarter
(roughly four hours per week) of video description of prime time and/or children's programming. As the Commission stated in
the Video Accessibility Report, "initial requirements for video description should be applied to new programming that is widely
available through national distribution services and attracts the largest audiences, such as prime time entertainment series."(67)
Our proposal to require distributors to describe roughly four hours per week of prime time programming is consistent with first
phase of the Coalition's and NCAM's proposals. Although four hours per week appears to be a reasonable starting point, we
prefer to express the requirement as 50 hours per quarter in order to grant distributors additional flexibility in selecting the best
programming to describe. We propose also to permit distributors to meet the 50 hour video description requirement by
describing children's programming in order to meet the needs of children with visual disabilities. As indicated above, NCAM
suggests that video description of children's programming would also provide a benefit to children with learning disabilities.
Within these broad categories of programming, the distributors would have flexibility to decide which programming will reach
the largest audience and be most likely to provide the intended benefits of video description. We seek comment on our
proposal, and on any alternatives. Instead of requiring that the minimum number of hours of video description apply to prime
time and children's programming, should we allow distributors complete flexibility to choose which programming to describe?
Should we establish certain parameters to ensure that distributors select programming that has a significant audience that would
benefit from video description?(68) Whether we prescribe prime time and/or children's programming or not, is a minimum of 50
hours per quarter (roughly 4 hours per week) appropriate for the initial requirement? We seek comment on the resources
currently available to describe programming. We also seek comment on how to ensure that the public, and in particular people
with disabilities, know when described video programming is scheduled.(69)
30. Commenters in our earlier NOI proceedings have noted that Spanish-language audio sometimes competes for use of the
SAP channel. We seek comment on the extent to which Spanish or other languages use or plan to use the SAP channel, the
impact, if any, of today's proposals on such services, and how such potential conflicts could be avoided or minimized. Further,
although we believe that adoption of digital technology will eliminate any potential conflict between competing users of the SAP
channel, we seek comment on whether there are any technical solutions to such potential conflicts in the analog environment.
31. In addition, commenters in our earlier NOI proceedings have argued that a second script, which may constitute a
"derivative work" under copyright law, is necessary to provide video description. As noted above, however, many distributors
have provided video description for years, and apparently have not found this to be an obstacle. We seek comment on whether
copyright issues could become an obstacle to video description, and, what could be done to prevent or minimize such a result.
32. The Coalition points out that public safety messages that scroll across the TV screen are totally inaccessible to persons with
visual disabilities, and proposes that an aural tone be required to accompany the messages to alert such persons to turn on a
radio, the SAP channel, or a designated digital channel.(70) We believe that it is of vital importance for these emergency
messages to be accessible to persons with visual disabilities. We seek comment on the Coalition's proposal, how it relates to
the Commission's current standards for broadcasting emergency information,(71) and on any other effective approaches to this
problem. Could these messages be provided via "open" description?
33. Waivers and Enforcement Procedures. We also propose to adopt procedures to enforce our rules, and to waive them if
compliance would result in an undue burden. The Commission adopted such procedures in its closed captioning rules.(72)
Guided by statutory factors, the Commission determined that factors relevant to a showing that compliance with its closed
captioning rules would result in an undue burden are the nature and cost of captioning the programming, the impact on the
operation of the petitioner, the financial resources of the petitioner, and the type of operations of the petitioner. The
Commission also adopted some basic pleading requirements and timetables for petitions for waiver. In terms of enforcement,
the Commission did not adopt any reporting requirements, but rather simply adopted pleading requirements and timetables. We
seek comment on whether these procedures are appropriate for our initial video description rules.
IV. JURISDICTION
34. We seek comment on the question whether we possess statutory authority to adopt the above-proposed video description
rules. We also seek comment on the question whether the existence or relative strength of such authority varies according to the
type of video programming provider - broadcaster, cable operator, or DBS company, for example - potentially subject to the
rules.
35. In connection with this jurisdictional question, we note that section 1 of the Act established the Commission "[f]or the
purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as
possible, to all the people of the United States . . . a rapid, efficient, Nation-wide, and world-wide wire and radio
communication service. . . (73) "(74) Also, section 2(a) grants the Commission jurisdiction over "all interstate and foreign
communication by wire or radio" and "all persons engaged within the United States in such communication. . . (75) "(76) In
addition, section 4(i) of the Act empowers "[t]he Commission [to] perform any and all acts, make such rules and regulations,
and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions(77)"(78) Finally,
section 303(r) directs the Commission, "as the public interest, convenience, and necessity requires," to "[m]ake such rules and
regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the
provisions in this Act . . . (79) "(80)
36. We further observe that Congress has expressed a general legislative preference for the increased accessibility of certain
communications services for persons with disabilities. Section 225 requires the Commission to ensure that "interstate and
intrastate telecommunications relay services are available, to the extent possible and in the most effective manner, to
hearing-impaired and speech-impaired individuals in the United States(81)"(82) Similarly, section 255 requires manufacturers of
telecommunications equipment, and providers of telecommunications services, to make such equipment and services
"accessible to and usable by individuals with disabilities, if readily achievable(83)"(84) Section 303(u) generally requires television
receivers to be equipped with a closed captioning chip.(85) Section 710 provides for compatibility between telephones and
hearing aids.(86) In addition, the 1998 amendments to section 508 of the Rehabilitation Act require federal departments and
agencies to accommodate persons with disabilities, including both employees and members of the public, with respect to the
accessibility of information, technology, and data.(87)
37. Other sections of the Act may also relate to the Commission's authority to adopt video description rules. For example, in
order to grant a Title III license, renew such a license, or permit the assignment or transfer of such a license, sections 309(a),
307(c)(1) and 310(d) of the Act, respectively, require the Commission to find that the "public interest, convenience, and
necessity" will be served thereby.(88)
38. Also potentially relevant to this inquiry is section 713(f). That provision directed the Commission to "commence an inquiry
to examine the use of video descriptions on video programming in order to ensure the accessibility of video programming to
persons with visual impairments, and report to Congress on its findings." As noted above, the report was to address
"appropriate methods and schedules for phasing video descriptions into the marketplace, technical and quality standards for
video descriptions, a definition of programming for which video descriptions would apply, and other technical and legal issues
that the Commission deems appropriate."
39. We seek comment on the question whether these provisions of the Act, taken together, provide sufficient authority to adopt
the proposed video description regulations and on the scope of such authority as it relates to different types of programming
providers.
V. CONCLUSION
40. We adopt this Notice in order to stimulate greater availability of video description, while at the same time not impose an
undue burden on distributors. To meet the needs of the millions of Americans with visual disabilities, many public television
stations and a few cable programmers have voluntarily provided some video described programming, and we applaud these
efforts. Through the limited requirements we propose today, we hope to make this service more widely available to ensure that
all Americans have access to video programming.
VI. ADMINISTRATIVE MATTERS
41. Comments and Reply Comments. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 C.F.R. §§ 1.415,
1.419, interested parties may file comments on or before January 24, 2000 and reply comments on or before February 23,
2000. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.
See Electronic Filing of Documents in Rulemaking Proceedings, 63 Fed. Reg. 24,121 (1998).
42. Comments filed through ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html.
Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should
include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also
submit an electronic comment via e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to
ecfs@fcc.gov, and should include the following words in the body of the message, "get form <your e-mail address>." A sample
form and directions will be sent in reply.
43. Parties who choose to file by paper must file an original and four copies of each filing. All filings must be sent to the
Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 Twelfth
Street, S.W., TW-A325, Washington, D.C. 20554.
44. Parties who choose to file paper should also submit their comments on diskette. These diskettes should be addressed to:
Wanda Hardy, Paralegal Specialist, Mass Media Bureau, Policy and Rules Division, Federal Communications Commission,
445 Twelfth Street, S.W., 2-C221, Washington, D.C. 20554. Such a submission should be on a 3.5 inch diskette formatted in
an IBM compatible format using Word 97 or compatible software. The diskette should be accompanied by a cover letter and
should be submitted in "read only" mode. The diskette should be clearly labeled with the commenter's name, proceeding
(including the lead docket number in this case (MM Docket No. 99-339), type of pleading (comment or reply comment), date
of submission, and the name of the electronic file on the diskette. The label should also include the following phrase "Disk Copy
- Not an Original." Each diskette should contain only one party's pleadings, preferably in a single electronic file. In addition,
commenters must sent diskette copies to the Commission's copy contractor, International Transcription Service, Inc., 445
Twelfth Street, S.W., CY-B402, Washington, D.C. 20554.
45. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference
Center, Federal Communications Commission, 445 Twelfth Street, S.W., CY-A257, Washington, D.C. 20554. Persons with
disabilities who need assistance in the FCC Reference Center may contact Bill Cline at (202) 418-0270, (202) 418-2555
TTY, or bcline@fcc.gov. Comments and reply comments also will be available electronically at the Commission's Disabilities
Issues Task Force web site: www.fcc.gov/dtf. Comments and reply comments are available electronically in ASCII text, Word
97, and Adobe Acrobat.
46. This document is available in alternative formats (computer diskette, large print, audio cassette, and Braille). Persons who
need documents in such formats may contact Martha Contee at (202) 4810-0260, TTY (202) 418-2555, or
mcontee@fcc.gov.
47. Ex Parte Rules. This proceeding will be treated as a "permit-but-disclose" proceeding, subject to the "permit-but-disclose"
requirements under section 1.1206(b) of the rules. 47 C.F.R. § 1.1206(b), as revised. Ex parte presentations are permissible
if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or
otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing
a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed.
More than a one or two sentence description or the views and arguments presented is generally required. See 47 C.F.R. §
1.1206(b)(2), as revised. Additional rules pertaining to oral and written presentations are set forth in section 1.1206(b).
48. Initial Regulatory Flexibility Analysis. With respect to this Notice, an Initial Regulatory Flexibility Analysis ("IRFA") is
contained in Appendix A. As required by the Regulatory Flexibility Act, see 5 U.S.C. § 603, the Commission has prepared an
IRFA of the possible economic impact on small entities of the proposals contained in this Notice. Written public comments are
requested on the IFRA. In order to fulfill the mandate of the Contract with America Advancement Act of 1996 regarding the
Final Regulatory Flexibility Analysis, we ask a number of questions in our IRFA regarding the prevalence of small businesses in
the television broadcasting industry. Comments on the IRFA must be filed in accordance with the same filing deadlines as
comments on the Notice, and must have a distinct heading designating them as a response to the IRFA. The Reference
Information Center, Consumer Information Bureau, will send a copy of this Notice, including the IRFA, to the Chief Counsel
for Advocacy of the Small Business Administration.
49. Initial Paperwork Reduction Act Analysis. This Notice may contain either proposed or modified information collections. As
part of our continuing effort to reduce paperwork burdens, we invite the general public to take this opportunity to comment on
the information collections contained in this Notice, as required by the Paperwork Reduction Act of 1996. Public and agency
comments are due at the same time as other comments on the Notice. Comments should address: (a) whether the proposed
collection of information is necessary for the proper performance of the functions of the Commission, including whether the
information shall have practical utility; (b) ways to enhance the quality, utility, and clarity of the information collected; and (c)
ways to minimize the burden of the collection of information on the respondents, including the use of automated collection
techniques or other forms of information technology. In addition to filing comments with the Secretary, a copy of any comments
on the information collections contained herein should be submitted to Judy Boley, Federal Communications Commission, 445
Twelfth Street, S.W., Room C-1804, Washington, DC 20554, or via the Internet to jboley@fcc.gov and to Timothy Fain,
OMB Desk Officer, 10236 NEOB, 725 17th Street, NW, Washington, DC 20503 or via the Internet to fain_t@al.eop.gov.
50. Additional Information. For additional information on this proceeding, please contact Eric Bash, Policy and Rules Division,
Mass Media Bureau, (202) 418-2130, (202) 418-1169 TTY.
VII. ORDERING CLAUSES
51. Accordingly, IT IS ORDERED that, pursuant to the authority contained in sections 1, 2(a), 4(i), 303, 307, 309, 310, and
713 of the Communications Act, as amended, 47 U.S.C. §§ 151, 152(a), 154(i), 303, 307, 309, 310, 613, this Notice of
Proposed Rulemaking is ADOPTED.
52. IT IS FURTHER ORDERED that the Commission's Reference Information Center, Consumer Information Bureau, shall
send a copy of this Notice, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration in accordance with the Regulatory Flexibility Act.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
APPENDIX A
INITIAL REGULATORY FLEXIBILITY ANALYSIS
As required by the Regulatory Flexibility Act, see 5 U.S.C. § 603 ("RFA"), the Commission has prepared this present Initial
Regulatory Flexibility Analysis (IRFA) of the possible economic impact on small entities by the policies and rules proposed in
this Notice of Proposed Rulemaking (Notice). Written public comments are requested on this IRFA. Comments must be
identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice provided above in
paragraph 38. The Commission will send a copy of the Notice, including this IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration. See 5 U.S.C. § 603(a). In addition, the Notice and the IRFA (or summaries thereof) will be
published in the Federal Register. See id.
Need for, and Objectives of, the Proposed Rules
Section 713(f) of the Communications Act of 1934, as amended ("Act"), 47 U.S.C. § 613, directed the Commission, within six
months of its enactment, to "commence an inquiry on video descriptions on video programming in order to ensure the
accessibility of video programming to persons with visual impairments, and report to Congress on its findings." Section 713(f)
required the report to "assess appropriate methods and schedules for phasing video descriptions into the marketplace, technical
and quality standards for video descriptions, a definition of programming for which video descriptions would apply, and other
technical and legal issues that the Commission deems appropriate."
Legal Basis
This Notice is adopted pursuant to sections 1, 2(a), 4(i), 303, 307, 309, 310, and 713 of the Act, 47 U.S.C. §§ 151, 152(a),
154(i), 303, 307, 309, 310, 613.
Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply
The Regulatory Flexibility Act defines the term "small entity" as having the same meaning as the terms "small business," "small
organization," and "small business concern" under section 3 of the Small Business Act.(89) A small business concern is one
which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional
criteria established by the SBA.(90)
Small TV Broadcast Stations. The SBA defines small television broadcasting stations as television broadcasting stations with
$10.5 million or less in annual receipts.(91)
The Notice proposes to limit the TV broadcast stations that must provide described programming to the TV broadcast stations
affiliated with the top four commercial networks in the top 25 Nielsen Designated Market Areas (DMAs). According to
Commission staff review of the BIA Publications, Inc., Master Access Television Analyzer Database, less than five commercial
TV broadcast stations subject to our proposal have revenues of less than $10.5 million dollars. We note, however, that under
SBA's definition, revenues of affiliates that are not television stations should be aggregated with the television station revenues in
determining whether a concern is small. Our estimate may thus overstate the number of small entities since the revenue figure on
which it is based does not include or aggregate revenues from nontelevision affiliated companies.
Small MVPDs. The Notice proposes to limit the MVPDs that must provide described programming to larger MVPDs. The
Notice seeks comment on how to define the MVPDs to which the initial rules should apply, and seeks to identify those
MPVDs that are comparable to the broadcast stations affiliated with the top 4 commercial networks in the top 25 DMAs. The
Notice thus proposes not to apply the initial rules to smaller MVPDs.
It is possible, however, that the MVPDs we ultimately decide to require to provide described programming may constitute a
"small business" under some definitions. For that reason, we review below the definition of "small business" for various MVPDs.
SBA has developed a definition of a small entity for cable and other pay television services, which includes all such companies
generating $11 million or less in annual receipts.(92) This definition includes cable system operators, closed circuit television
services, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems and subscription
television services. According to the Bureau of the Census, there were 1423 such cable and other pay television services
generating less than $11 million in revenue that were in operation for at least one year at the end of 1992.(93) We will address
each service individually to provide a more succinct estimate of small entities. We seek comment on the tentative conclusions
below.
Cable Systems: The Commission has developed its own definition of a small cable company for the purposes of rate regulation.
Under the Commission's rules, a "small cable company," is one serving fewer than 400,000 subscribers nationwide.(94) We
estimate that there were 1439 cable operators that qualified as small cable companies at the end of 1995.(95) Since then, some
of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that
caused them to be combined with other cable operators. Consequently, we estimate that there are fewer than 1439 small entity
cable system operators under this definition.
The Communications Act also contains a definition of a small cable system operator, which is "a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than 1% of all subscribers in the United States and is not affiliated with any
entity or entities whose gross annual revenues in the aggregate exceed $250,000,000."(96) The Commission has determined that
there are 61,700,000 subscribers in the United States. Therefore, we found that an operator serving fewer than 617,000
subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its
affiliates, does not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators
serving 617,000 subscribers or less totals 1,450. Although it seems certain that some of these cable system operators are
affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater
precision the number of cable system operators that would qualify as small cable operators under the definition in the
Communications Act.
MMDS: The Commission refined the definition of "small entity" for the auction of MMDS as an entity that together with its
affiliates has average gross annual revenues that are not more than $40 million for the proceeding three calendar years.(97) This
definition of a small entity in the context of the Commission's Report and Order concerning MMDS auctions that has been
approved by the SBA.(98)
The Commission completed its MMDS auction in March, 1996 for authorizations in 493 basic trading areas ("BTAs"). Of 67
winning bidders, 61 qualified as small entities. Five bidders indicated that they were minority-owned and four winners indicated
that they were women-owned businesses. MMDS is an especially competitive service, with approximately 1,573 previously
authorized and proposed MMDS facilities. Information available to us indicates that no MDS facility generates revenue in
excess of $11 million annually. We tentatively conclude that for purposes of this IRFA, there are approximately 1,634 small
MMDS providers as defined by the SBA and the Commission's auction rules.
ITFS: There are presently 2,032 ITFS licensees. All but one hundred of these licenses are held by educational instructions.
Educational institutions are included in the definition of a small business.(99) However, we do not collect annual revenue data for
ITFS licensees and are not able to ascertain how many of the 100 non-educational licensees would be categorized as small
under the SBA definition. Thus, we tentatively conclude that at least 1,932 licensees are small businesses.
DBS: As of December, 1996, there were eight DBS licensees. However, the Commission does not collect annual revenue data
for DBS and, therefore, is unable to ascertain the number of small DBS licensees that could be impacted by these proposed
rules. Although DBS service requires a great investment of capital for operation, we acknowledge that there are several new
entrants in this field that may not yet have generated $11 million in annual receipts, and therefore may be categorized as a small
business, if independently owned and operated.
HSD: The market for HSD service is difficult to quantify. Indeed, the service itself bears little resemblance to other MVPDs.
HSD owners have access to more than 265 channels of programming placed on C-band satellites by programmers for receipt
and distribution by MVPDs, of which 115 channels are scrambled and approximately 150 are unscrambled.(100) HSD owners
can watch unscrambled channels without paying a subscription fee. To receive scrambled channels, however, an HSD owner
must purchase an integrated receiver-decoder from an equipment dealer and pay a subscription fee to an HSD programming
package. Thus, HSD users include: (1) viewers who subscribe to a packaged programming service, which affords them access
to most of the same programming provided to subscribers of other MVPDs; (2) viewers who receive only non-subscription
programming; and (3) viewers who receive satellite programming services illegally without subscribing. Because scrambled
packages of programming are most specifically intended for retail consumers, these are the services most relevant to this
discussion.(101)
According to the most recently available information, there are approximately 30 program packages nationwide offering
packages of scrambled programming to retail consumers.(102) These program packages provide subscriptions to approximately
2,314,900 subscribers nationwide.(103) This is an average of about 77,163 subscribers per program package. This is
substantially smaller than the 400,000 subscribers used it the commission's definition of a small MSO. Furthermore, because
this is an average, it is likely that some program packages may be substantially smaller.
OVS: The Commission has certified three OVS operators. On October 17, 1996, Bell Atlantic received approval for its
certification to convert its Dover, New Jersey Video Dialtone ("VDT") system to OVS.(104) Bell Atlantic subsequently
purchased the division of Futurevision which had been the only operating program package provider on the Dover system, and
has begun offering programming on this system using these resources.(105) Metropolitan Fiber Systems was granted
certifications on December 9, 1996, for the operation of OVS systems in Boston and New York, both of which are being used
to provide programming.(106) On October 10, 1996, Digital Broadcasting Open Video Systems received approval to offer
OVS service in southern California.(107) Because these services have been introduced so recently, little financial information is
available. Bell Atlantic and Metropolitan Fiber systems have sufficient revenues to assure us that they do not qualify as small
business entities. Digital Broadcasting Open Video Systems, however, is a general partnership just beginning operations.
Accordingly, we tentatively conclude that one OVS licensee qualifies as a small business concern.
SMATVs: Industry sources estimate that approximately 5,200 SMATV operators were providing service as of December,
1995.(108) Other estimates indicate that SMATV operators serve approximately 1.05 million residential subscribers as of
September, 1996.(109) The ten largest SMATV operators together pass 815,740 units.(110) If we assume that these SMATV
operators serve 50% of the units passed, the ten largest SMATV operators serve approximately 40% of the total number of
SMATV subscribers. Because these operators are not rate regulated, they are not required to file financial data with the
Commission. Furthermore, we are not aware of any privately published financial information regarding these operators. Based
on the estimated number of operators and the estimated number of units served by the largest ten SMATVs, we tentatively
conclude that a substantial number of SMATV operators qualify as small entities.
Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements
The Notice proposes to hold certain TV broadcast stations and MVPDs responsible for providing 50 hours per quarter of
described prime time and/or children's programming. Those broadcast stations and MVPDs must keep sufficient records to
show that they are providing and have provided at least the required amount of described programming.
Steps Taken to Minimize Significant Impact on Small Entities, and Significant Alternatives Considered
As indicated above, the Notice proposes to limit the TV broadcast stations and MVPDs that must provide described
programming to larger TV broadcast stations (specifically, commercial TV broadcast stations affiliated with the four largest
commercial broadcast networks in the top 25 DMAs) and larger MVPDs. The Notice seeks comment on how to define the
MVPDs to which the initial rules should apply, and seeks to identify those MVPDs that are comparable to the broadcast
stations affiliated with the top four networks in the top 25 DMAs. The Commission, therefore, has taken steps to minimize the
impact of the proposed rules on small business.
Although the Notice proposes to hold the larger broadcast stations and MVPDs responsible for compliance with the initial
rules, the Commission acknowledges that the broadcast and nonbroadcast networks that supply programming to the broadcast
stations and MVPDs will most likely provide the actual video description of the programming. The Notice proposes, however,
to limit the programming that must be described to that shown on the four largest commercial broadcast networks, and on
nonbroadcast networks that reach 50% or more of MVPD households. The Commission has, therefore, taken steps to
minimize the impact of the proposed rules on small business.
Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rules
None.
1. See, e.g., Roper Starch, America's Watching: Public Attitudes Toward Television at 1-2 (1997) (reporting
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