FCC Reinstates Video Description Rules, But More To Come

[Editor’s Note: Robert Primosch is a Partner with the Washington, D.C.-based, communications law firm Wilkinson Barker Knauer, LLP]

Providers of video, voice and/or data services (and their vendors) should be tracking the FCC’s implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 (“Accessibility Act”).   Congress passed this legislation to provide the disabled community (including those who are visually or hearing-impaired) with improved access to modern communications services and technologies.

The Accessibility Act directed the FCC to take a variety of actions over time, including reinstatement of its video description rules for television stations and providers of Multichannel Video Provider Distributors or “MVPDs.” Video description is “the insertion of audio narrated descriptions of a television program’s key visual elements into natural pauses in the program’s dialogue.”  In effect, video description attempts to do for visually impaired subscribers what closed captioning does for those who are hearing-impaired.

The FCC has now formally reinstated the rules (a copy of the decision and a subsequent erratum are available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2011/db0825/FCC-11-126A1.pdf  and http://transition.fcc.gov/Daily_Releases/Daily_Business/2011/db0901/DOC-309387A1.pdf).   Smaller MVPDs should note that the rules focus primarily on the largest television markets and on the largest MVPDs.  Thus, absent technical issues, the rules should have little near term effect on the day-to-day operations of smaller operators.

There are, however, a few issues that still merit some attention.  And, this is only the first chapter of the story – there is more to come.

From the perspective of smaller operators, the most significant rules are as follows:

• Beginning July 1, 2012, all MVPDs (regardless of size or market) will be required to pass through any video description provided by any broadcast station or non-broadcast network, if they have the technical capability to do so on the channel over which they distribute the station or network in question, and if such technical capability is not being used for another purpose related to the programming (i.e. , the “other purpose” exception).  Any programming aired with video description must continue to include video description if it is re-aired on the same channel.

• Full-power broadcast television affiliates of the top four national networks (ABC, NBC, CBS and Fox) located in the top 25 television markets must provide 50 hours per calendar quarter of video-described prime time and/or children’s programming. Likewise, MVPDs that operate systems with 50,000 or more subscribers (regardless of market size) must provide 50 hours per calendar quarter of video-described prime time and/or children’s programming on each of the top five non-broadcast networks that they carry.  The Commission has identified the following as the top five: USA, the Disney Channel, TNT, Nickelodeon, and TBS (the list will be updated every three years).

• Any viewer may file a video description complaint with the FCC  by “any reasonable means,” such as through the main FCC web portal, letter, facsimile transmission, telephone (voice/TRS/TTY), e-mail, audio-cassette recording, Braille, or some other method that would best accommodate the viewer.

For smaller operators, the most important issue may be how the FCC defines “technical capability” for purposes of the pass-through requirement.  The FCC has stated that it will deem an MVPD to have the required technical capability if it has virtually all necessary equipment and infrastructure to comply with the rules, except for items that would be of minimal cost.  By the same token, the FCC expects that “as equipment prices drop over time and older architectures are upgraded, this exception will apply to fewer and fewer stations and systems.”  In other words, non-compliant systems should think carefully before relying on a “technical capability” argument before the FCC.

The “other purpose” exception, however, is worth noting.  For example, when a secondary audio program (“SAP”) channel and associated equipment are being used to provide another program-related service, such as foreign language audio, an MVPD system may not have to discontinue that service to accommodate video description.  The FCC indicated that it will revisit the “other purpose” exception at a later time, perhaps with a view towards eliminating it.

In addition, some MVPDs had been concerned that they may have difficulty identifying video-described programming provided by television stations that do not include the ISO-639 language descriptor (and are not required to do so).  Nonetheless, the FCC refused to mandate that television stations use IS0-639, instead leaving it to each station’s discretion.

In summary, smaller MVPDs should be evaluating whether they will be in a position to comply with the pass-through requirement beginning July 1, 2012, and, if not, whether it would be economically burdensome to do so. The Commission will permit systems to petition for exemptions based on economic burden, although no one should assume that those exemptions will be easy to obtain.

Finally, as noted above, video description is just one portion of the larger menu of tasks the FCC must complete in order to implement the Accessibility Act.  Per a Report issued July 13, 2011 by its Video Programming Accessibility Advisory Committee, the FCC is slated to adopt rules that will require closed captioning of online video programming.  The Accessibility Act requires that those rules be in place within six months of the Report.

Also, the Accessibility Act requires that “advanced communications services” (“ACS”) be accessible to persons with disabilities, to the extent accessibility is “achievable.”  In this context, ACS includes interconnected VoIP service; non-interconnected VoIP service; electronic messaging service; and interoperable video conferencing service. These rules must be in place by October 8, 2011.

The Viodi View will continue to monitor these items closely and report on new developments as they occur.