**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

) MM Docket No. 99-339

Implementation of Video Description of )

Video Programming )

**PETITION FOR RECONSIDERATION**

> Daniel L. Brenner

Diane B. Burstein

Jill Luckett

Vice President National Cable Television

Program Network Policy Association

1724 Massachusetts Avenue, N.W.

October 11, 2000 Washington, D.C. 20036

#  {#section .TOC-1}

# INTRODUCTION [1](#introduction) {#introduction-1 .TOC-1}

# ARGUMENT [2](#argument) {#argument-2 .TOC-1}

# I. The Commission LACKS STATUTORY Authority to Impose Video Description Rules on Cable Operators or Programmers [2](#the-commission-lacks-statutory-authority-to-impose-video-description-rules-on-cable-operators-or-programmers) {#i.-the-commission-lacks-statutory-authority-to-impose-video-description-rules-on-cable-operators-or-programmers-2 .TOC-1}

# II. The Commission Should Revise its Rules Regarding Repeats of Video-Described Programming [7](#the-commission-should-revise-its-rules-regarding-repeats-of-video-described-programming) {#ii.-the-commission-should-revise-its-rules-regarding-repeats-of-video-described-programming-7 .TOC-1}

## A. Reruns on the Same Network [8](#reruns-on-the-same-network) {#a.-reruns-on-the-same-network-8 .TOC-2}

## B. Reruns on Other Networks [11](#reruns-on-other-networks) {#b.-reruns-on-other-networks-11 .TOC-2}

# III. The Commission Should Modify its Complaint Procedures [12](#the-commission-should-modify-its-complaint-procedures) {#iii.-the-commission-should-modify-its-complaint-procedures-12 .TOC-1}

# IV. The Commission Should Modify Its "Subsequent Airing" Requirement [15](#the-commission-should-modify-its-subsequent-airing-requirement) {#iv.-the-commission-should-modify-its-subsequent-airing-requirement-15 .TOC-1}

# V. Program Networks Should Be Permitted to File Undue Burden Waivers [16](#program-networks-should-be-permitted-to-file-undue-burden-waivers) {#v.-program-networks-should-be-permitted-to-file-undue-burden-waivers-16 .TOC-1}

# CONCLUSION [18](#conclusion) {#conclusion-18 .TOC-1}

**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

) MM Docket No. 99-339

Implementation of Video Description of )

Video Programming )

**PETITION FOR RECONSIDERATION**

The National Cable Television Association ("NCTA"), pursuant to Section
1.429 of the Commission's rules, hereby Petitions for Reconsideration of
the Report and Order in the above-captioned proceeding.[^1]

# INTRODUCTION {#introduction .unnumbered}

The cable industry is not opposed to the concept of video description.
In fact, a cable network -- Turner Classic Movies -- has been at the
forefront of voluntary efforts to provide some video-described cable
network programming. However, the provision of video description is best
left to voluntary industry efforts based on determinations about the
extent to which there is an audience for such programming and whether it
can be provided in a cost-effective manner.

We continue to object to the Commission's attempt to impose video
description mandates. Most fundamentally, the [Report and
Order]{.underline}'s legal rationale cannot overcome the language of
Section 713 of the 1996 Telecommunications Act and its legislative
history, which give the FCC power to conduct an inquiry and report, but
reserve to Congress the decision whether to take additional measures to
encourage -- or mandate -- video description. Even if Congress had not
expressly spoken to the issue, the Commission could not ignore a
separate provision of the Cable Act that restricts its ability to
regulate the provision or content of cable service.

Jurisdictional questions aside, the video description rules unreasonably
restrict a program network's ability to count repeats of video-described
programs toward meeting the quarterly benchmark. This limitation will
increase the burdens on cable networks and remove the intended
flexibility to choose which programs to video describe.

The procedural aspects of the rules should be reconsidered as well.
While modeled on the closed captioning rules, the video description
rules depart from those rules in ways that make the complaint
proceedings more cumbersome and "undue burden" waiver requests less
workable.

# ARGUMENT {#argument .unnumbered}

# The Commission LACKS STATUTORY Authority to Impose Video Description Rules on Cable Operators or Programmers 

The Commission finds no bar to imposing video description rules on the
cable industry. The [Report and Order]{.underline} claims support for
this action under the FCC's "ancillary" jurisdiction under sections 1
and 4(i) of the Communications Act.[^2]

But, as Commissioner Powell explained, "because ... Congress spoke to
video description in section 713(f) of the Act, and purposely limited
the Commission to studying the issue and reporting to Congress,"[^3] the
FCC lacks authority under which to proceed to a rulemaking.

This conclusion is evident from the differences between the closed
captioning and video description provisions of Section 713. The closed
captioning provision required the FCC to [adopt rules]{.underline}
within a prescribed time period,[^4] while the video description
language required the FCC to [conduct an inquiry and report to
Congress]{.underline}.[^5] The [Report and Order]{.underline} dismisses
these contrasting mandates, claiming that "\[t\]he difference in
treatment between closed captioning and video description simply means
that Congress intended the Commission not to have any discretion on
whether to adopt closed captioning rules, but left it to the Commission
to decide whether to adopt video description rules."[^6] But Congress
specifically rejected language that would have given the Commission
precisely the discretion it now claims. The House bill would have
[permitted]{.underline} -- but not [required]{.underline} -- a
rulemaking on video description.[^7] Thus, Congress made clear that it
did not intend for the Commission to have such rulemaking authority --
and the [Report and Order]{.underline} offers no other explanation for
the deletion of the House provision.

In any event, the thrust of the majority's reasoning is that it makes no
difference what Congress said about video description. In fact, the
[Report and Order]{.underline} acknowledges that the legislative history
"indicates that Section 713 should not be construed to authorize a
Commission rulemaking...."[^8] But the majority rationalizes that the
FCC already had the authority to conduct a rulemaking to impose video
description, even prior to the 1996 Telecommunications Act, and that
Congress would be required to [expressly]{.underline}
[prohibit]{.underline} the FCC from adopting rules under its general
rulemaking authority if it did not want the FCC to proceed. But as
Commissioner Powell's dissent explained, "This view turns the notion of
a delegated agency on its head. The Commission can act only where it is
[authorized]{.underline} to do so. It is not free to act unless
expressly [prohibited]{.underline} from doing so."[^9]

Regardless of the breadth of the FCC's ancillary jurisdiction, or the
validity of its arguments as to its general rulemaking power, Section
624(f) provides independent ground for finding the Commission's
authority here lacking as to cable. Congress removed the FCC's ability
to rely on ancillary authority -- under Sections 1, 4(i) or elsewhere in
the Communications Act -- to regulate the content or provision of cable
service.[^10] It provided that "any Federal Agency, State, or
franchising authority may not impose requirements regarding the
provision or content of cable services, except as
[expressly]{.underline} provided in this title."[^11] The FCC thus
cannot adopt new cable regulations unless Congress
[expressly]{.underline} granted the FCC that authority in Title VI --
and Congress has not done so.

The [Report and Order's]{.underline} answer is to argue that the video
description rule falls outside this prohibition because it somehow does
not regulate "the provision or content of cable services." It claims,
based on [United Video v. FCC]{.underline},[^12] that:

> the U. S. Court of Appeals for the D.C. Circuit has interpreted this
> section to forbid "rules requiring cable companies to carry particular
> programming." The video description rules we adopt today are not
> content-based, and as such, do not require cable companies (or any
> other distributor of video programming) to carry particular
> programming. Rather, our rules simply require that, if a distributor
> chooses to carry the programming of the largest networks, it must
> provide a small amount of programming with video description.[^13]

But the video description rules are unlike the syndex rules upheld in
[United Video]{.underline} precisely because they [do]{.underline}
require cable operators to provide particular program content --
specifically, the video descriptions of certain cable programming.

The [United Video]{.underline} court found that syndex rules did not run
afoul of Section 624(f) because "\[t\]he basis on which syndex forbids
carriage of certain programs is not their content, but ownership of the
right to present them."[^14] Here, the rules [do]{.underline} forbid
carriage of particular program networks if they fail to contain
FCC-mandated program content. Cable operators can only avoid application
of the video description rules if they

cease carrying altogether the five most popular cable networks.[^15] And
unlike syndex, where the government interest was related to enforcing
[property rights]{.underline}, the government interest here is directly
tied to ensuring that [particular content]{.underline} is provided to
cable customers.[^16] As the [Report and Order]{.underline} elsewhere
acknowledges, it is undeniable that the rules "will require ...
speech...."[^17] These rules, then, are a far cry from syndex which, as
the D.C. Circuit noted, "does not require carriage of any particular
program or type of program, nor does it prevent a cable company from
acquiring the right to present, and presenting, any program."[^18] They
require carriage of supplemental program content that a program network
would not otherwise choose to provide. And they require cable operators
to pass that content on to their customers.

The language and legislative history of Sections 713 and 624(f) bar the
Commission from adopting video description rules. Even if the FCC's
authority were at all ambiguous, the serious First Amendment issues
raised by compelling program networks and cable operators to speak
warrant adopting a more narrow, rather than expansive, view of the FCC's
power. We respectfully urge the Commission to reconsider, and withdraw,
its assertion of jurisdiction here.

# The Commission Should Revise its Rules Regarding Repeats of Video-Described Programming 

The rules require multichannel video programming distributors ("MVPDs")
to provide fifty hours of video-described programming during prime
time[^19] or children's programming each calendar quarter on the top
five cable networks.[^20] Beyond the fifty-hour-per-quarter requirement,
the rules say little else. For example, unlike closed captioning, the
rules *do not* exempt categories of programs for which video description
would serve little or no purpose or would be highly burdensome. The
rules *do not* differentiate between programming (so-called "pre-rule"
programming in the captioning context) created *before* the video
description obligation and programming created *after* adoption of the
rules. The rules *do not* exempt networks that make significant other
uses of the secondary audio program (SAP).

The Commission presumably did not feel it necessary to adopt these
measures because it considered the rules to be of a "limited
nature,"[^21] designed to "\[e\]nhance the availability of video
description [without imposing an undue burden]{.underline} on the
television programming production and distribution industries."[^22] And
the Commission believed that the costs of describing programming would
be "[a very small portion of the production budget]{.underline} for the
typical prime time program."[^23] But the limited burden that the
Commission envisioned is undercut significantly by the rules' unfair and
unjustified treatment of reruns.

Under the rules, "broadcast stations and MVPDs may not count toward
their 50-hour quarterly requirement programming that they have
previously aired with video description, once the rules go into
effect."[^24] Thus, once a cable network has aired a video-described
program, it cannot be counted toward meeting that network's benchmark
again -- either during that same quarter or any other quarter. The
[Report and Order]{.underline} contains no explanation of why the
Commission adopted this restriction. Nor was there any notice that it
was under consideration. But its inclusion in the rules imposes a
significant hardship on cable program networks in several respects.

## [Reruns on the Same Network]{.underline} 

To meet its obligation, a cable network would need to provide, on
average, four [new]{.underline} hours of described programming every
week of the year. While the amount of original programming on cable
networks has been increasing over the years, cable networks routinely
re-air that programming and other programming throughout the year. The
decision to restrict cable networks' ability to count reruns containing
video description toward reaching the quarterly benchmark will therefore
adversely impact networks in several ways. It will force networks either
to include video description in programs for which it makes little
practical or economic sense or to modify their programming practices
solely to accommodate the video description rules. Neither option makes
sense.

Because the rules limit video-described programs to be counted to
children's or prime time programming, program networks already have
little flexibility in choosing which programs to video describe. That
flexibility is further limited because most cable networks covered by
the rules do not provide children's programming. And most prime time or
children's programming offered on the top five cable networks is not
first-run programming or the type of programming for which video
description is practical.

For example, during one representative week in September 2000, sports
programming accounted for much of the new prime time programming airing
on several of the top cable networks.[^25] Providing video description
for programming of this nature would be costly, burdensome, and
unnecessary. But if repeat video-described programming cannot be counted
toward reaching the benchmark, a cable network would have little other
choice. Moreover, any other programming that premieres on a cable
network would likely be aired on that network again in the future.

Contrary to what appears to have been the Commission's assumption, with
rerun restrictions in place, a network may have little choice but to pay
to include video description in [licensed]{.underline} product. Few
programs currently exist that are video-described.[^26] The decision to
restrict counting of reruns of original product, therefore, means that
program networks likely would be forced to pay to video-describe
programming that they do [not]{.underline} own.

The Commission apparently believed that the costs of video description
would represent only a small fraction of the total
[production]{.underline} cost of programming.[^27] It is one thing to
compare the \$10,000 cost of video-describing a new movie[^28] to the
cost of producing that motion picture. It is quite another, though, to
compare those costs to the relative cost for a cable network to
[license]{.underline} that motion picture from a movie studio. As
licensees of previously-produced programming, networks would not likely
be able to reap the rewards of that investment through subsequent
licensing of that movie. Thus, the economic calculus underlying the
relative costs of video description would change if the restriction on
reruns meant that cable networks would be forced to absorb the costs of
video describing programming for which they have only limited rights.
And that formula would change even more adversely if a cable network
could only count that airing [once]{.underline} towards meeting its
benchmark.[^29]

Furthermore, as cable networks rerun programming that they already have
video- described, their options for reaching the 50 hour per quarter
benchmark will quickly decrease. The relatively few programming hours in
which to place [new]{.underline} video-described programming will fill
up. The flexibility the Commission believes that it gave programmers to
decide which programs to video describe will thus disappear.

## [Reruns on Other Networks]{.underline}

A further problem is caused by the requirement that if a MVPD counts a
program with video description toward its minimum requirement for any
quarter on [any]{.underline} program network, it may never be counted by
that MVPD again.[^30] This would mean, for example, if a video-described
movie aired on TNT after the rules' effective date, a subsequent airing
of that same movie by USA Network could not be counted toward the video
description obligation for USA Network. And an original, made-for-cable
program aired on TNT that is later aired on TBS could not be counted
toward satisfying the video description obligation for TBS, either. The
[Report and Order]{.underline} contains no explanation for such a
restriction.

\* \* \*

In short, the Commission did not appear to intend that the requirement
on the top five cable networks to provide some limited amount of
video-described programming would so severely interfere with scheduling
their lineups. The limitations on counting video-described programming
when it is rerun, however, will unfairly impact programming choices, and
will raise the costs of complying with this new requirement by limiting
subsequent showings of that programming.

The Commission has not imposed this limitation in the captioning arena.
The captioning rules generally set forth a benchmark based on an hourly
target and do not further differentiate between original airings and
repeats of a program.[^31] The record contains no evidence that the
failure to exclude reruns from the captioning hourly benchmark has
subverted the purpose of its rules. There is no reason to make that
assumption here.

In light of the difficulties caused by the rerun restriction, the
Commission should eliminate it. Doing so will present little if any risk
of harming customers with visual disabilities, as video-described
programming will still be available during 50 hours each quarter on each
of the covered cable networks. And a programmer's interest in providing
quality programming to the widest possible audience will ensure a steady
flow of new programming containing video description.

# The Commission Should Modify its Complaint Procedures

The [Report and Order]{.underline} adopts a different regime for filing
video description complaints than applies to closed captioning
complaints. We urge the Commission to reconsider it. Under the new
rules, a complainant may file informally with the Commission at any time
alleging a video description rule violation. This procedure will
unnecessarily embroil the Commission in non-meritorious disputes.

The closed captioning complaint procedures provide a useful model for
resolving disputes outside formal FCC processes. Those rules permit a
complaint to be filed with the Commission only [after]{.underline} the
complaint has been sent to the cable operator responsible for delivering
the cable program network and the operator has had an opportunity to
respond.[^32] This initial step facilitates the resolution of any
factual disputes over whether a particular program was captioned, and if
not, whether it should have been captioned, prior to Commission
involvement. And any needed corrective action can be handled in a more
expedited fashion, "eliminating any unnecessary administrative burden
for consumers and video programming distributors."[^33]

The benefits of this approach are well-known to the Commission. In fact,
the agency considered and [rejected]{.underline} on reconsideration of
the closed captioning rules a request to adopt the procedure it has now
put in place here. It understood "that in many cases requiring the
complainant to go to the video programming distributor first will allow
the parties to more quickly and satisfactorily resolve the dispute.
Indeed, the direct relationship between the video programming
distributor and the consumer was, in part, our justification for holding
the video programming distributor responsible for compliance with the
captioning rules."[^34] The same holds true in this case.

By contrast, the video description complaint process could have the
unintended consequence of increasing, rather than minimizing, disputes.
For example, complaints may be filed at any time; no notice is even
required to be given to the MVPD about which a complaint is being
lodged; and no standards are established for determining what would be
"sufficient to show that the broadcast station or MVPD has violated or
is violating the Commission's rules...."[^35] This loose, standardless
complaint process is particularly troubling insofar as the rules operate
on a quarterly basis, leaving ample opportunity for complaints that have
no merit to be filed at some point before the end of that quarter.
Again, the Commission anticipated these issues in its captioning rules,
where at the very least complainants were required to provide some
"basis for believing that a violation has taken place and not simply
allege that an individual program lacks captions. Thus, any complaint
should, at a minimum, state with specificity the Commission rules
violated and should provide some information which supports the alleged
rule violation."[^36]

The Commission provides no explanation for its abrupt departure from the
closed captioning precedent. Yet, we are unaware of any evidence of
widespread non-compliance by cable program networks and cable operators
with the captioning rules -- and unaware of any need for the Commission
to fear any such action with respect to video description. Under these
circumstances, it makes little sense to create any entirely new
complaint procedure. It makes less sense to subject cable operators to
complaint proceedings without first giving them the opportunity to
obtain the facts from program networks and informally resolve disputes
with their customers. The Commission should reconsider its decision.

# The Commission Should Modify Its "Subsequent Airing" Requirement 

Section 97.3(c)(3) provides that "once an entity has aired a particular
program with video description, it is required to include video
description with all subsequent

airings of that program, unless the entity uses the SAP channel in
connection with the program for a purpose other than providing video
description." This requirement would impose a significant -- and
seemingly unintended -- burden on multichannel providers and cable
program networks.

The [Report and Order]{.underline} explains that this requirement
"\[s\]hould not impose any burden on any broadcast station or
[MVPD]{.underline} subject to our rules, or on their programming
suppliers. This is because the cost of both describing programming, and
upgrading equipment and infrastructure to distribute it, generally
should be a one-time fixed cost."[^37] But this assumption does not hold
true if this obligation applies to cable operators.[^38]

It would mean instead that if a broadcast station carried by the cable
operator airs a video-described program, and a cable program network
later airs that same program, that cable network would have to create
the entire infrastructure necessary to provide that one program with
video description -- even if that network would not be otherwise subject
to the video description rules. And an operator distributing that
network would not be permitted to air that program without including
video description. This provision would thus force cable operators to
obtain equipment for that new network, as well as for the five cable
networks covered by the rule.

The Commission surely did not intend to expand video description
obligations this way. Nor would it make any sense to apply the rule in
this manner. Accordingly, the Commission should clarify that MVPDs are
not subject to this requirement.

In addition, cable networks have limited experience with the provision
of video-described programming. The costs and difficulties attendant to
creating additional capacity to offer video description in the SAP are
not well-known. Therefore, it is premature to conclude that this
obligation, even if limited to repeat airings of video-described
programming on the [same]{.underline} network, would be "cost-free."
Providing the infrastructure to offer video description throughout the
entire day may impose costs not considered by the Commission.
Accordingly, where additional costs would be imposed, the Commission
should not require video description to follow the program at all times.

# Program Networks Should Be Permitted to File Undue Burden Waivers

The Commission intended to "adopt the 'undue burden' exemption
procedures and standards that we use in the closed captioning
context."[^39] But the rules fail to mirror the captioning rules. The
captioning rules permit a video programming provider, video programming
producer, or video programming owner to file for a waiver.[^40] In
contrast,

Section 79.3(d) permits "a [video programming distributor]{.underline}
\[to\] petition the Commission for a full or partial exemption from the
video description requirements of this section, which the Commission may
grant upon a finding that the requirements will result in an undue
burden." And the factors to be considered in a video description undue
burden request include the impact on the operation of the [video
programming distributor]{.underline}, the financial resources of the
[video programming distributor]{.underline}, and the type of operations
of the [video programming distributor]{.underline}.[^41]

The rules thus confine undue burden waivers to a "video programming
distributor" -- which Part 79 defines as a television station licensee,
[cable operator]{.underline} or other MVPD "and any other distributor of
video programming for residential reception that delivers such
programming directly to the home and is subject to the jurisdiction of
the Commission."[^42]

Under the definition, then, cable program networks or program owners are
[not]{.underline} considered to be video programming distributors. But
these entities, rather than the cable operator, would be the appropriate
entities to file undue burden waivers in most cases. They would have
financial and operational information about video description that their
distributors would lack. Thus, just as in the case of closed captioning
undue burden waivers, the rules should be amended to permit both
distributors [and]{.underline} programmers to file requests for waiver.

#  {#section-1 .unnumbered}

# CONCLUSION {#conclusion .unnumbered}

The Commission lacks the statutory authority to impose video description
requirements. We urge the Commission to reconsider the rules'
applicability to cable. If the Commission nevertheless pushes forth with
its video description initiative, the rules as adopted miss the mark in
several respects. We respectfully urge the Commission to reconsider
them.

Respectfully submitted,

Daniel L. Brenner

Diane B. Burstein

Jill Luckett

Vice President National Cable Television

Program Network Policy Association

1724 Massachusetts Avenue, N.W.

October 11, 2000 Washington, D.C. 20036

[^1]: [Implementation of Video Description of Video
    Programming]{.underline}, 65 Fed. Reg. 54805 (Sept. 11, 2000.)

[^2]: [Report and Order]{.underline} at ¶58.

[^3]: Separate Statement of Commissioner Michael K. Powell, Concurring
    in Part and Dissenting in Part at 1 (hereinafter "Powell Dissent").

[^4]: 47 U.S.C. § 613(b) ("Within 18 months after such date of
    enactment, the Commission shall prescribe such regulations as are
    necessary to implement this section.")

[^5]: [Id]{.underline}., § 613(f) ("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.")

[^6]: [Report and Order]{.underline} at ¶60.

[^7]: H. R. 1555, § 204(f) ("Following the completion of \[the video
    description\] inquiry, the Commission [may adopt]{.underline}
    regulation it deems necessary to promote the accessibility of video
    programming to persons with visual impairments.")

[^8]: [Report and Order]{.underline} at ¶58.

[^9]: Powell Dissent at 3; [see]{.underline} [also]{.underline}
    Statement of Commissioner Harold Furchtgott-Roth, Concurring in Part
    and Dissenting in Part at 2.

[^10]: [See]{.underline} Dissenting Statement of Commissioner
    Furchgott-Roth at 2 n. 3 ("With respect to cable operators, there
    may indeed be a provision of the Communications Act that prohibits
    video description rules.... Whether or not video description rules
    concern 'content', they surely regulate the 'provision of cable
    services.'")

[^11]: 47 U.S.C.§ 544(f) (emphasis supplied.)

[^12]: 890 F.2d 1173, 1188 (D.C. Cir. 1989).

[^13]: [Report and Order]{.underline} at ¶61.

[^14]: [United Video]{.underline}, 890 F.2d at 1189.

[^15]: The FCC seems to suggest that Section 624(f) does not apply
    because the rule is only triggered when a cable operator chooses
    voluntarily to offer customers one of the top five cable networks.
    But the FCC cannot escape application of this provision by claiming
    that a cable operator could choose not to provide this service
    altogether. [See]{.underline} [MediaOne Group, Inc. v. County of
    Henrico, Virginia]{.underline}, 97 F. Supp. 712, 716 (E.D.Va. 2000)
    (Forced access ordinance violates Section 624(f) because cable
    operators voluntarily providing cable modem service trigger
    ordinance's forced access requirement and because ordinance requires
    operators to transmit the content of other ISPs. "Accordingly, the
    Ordinance's imposition of requirements regarding both the
    'provision' and the 'content' of cable services violated Section
    544(f)(1).").

[^16]: [See]{.underline} [Horton v. City of Houston, Texas]{.underline},
    179 F.3d 188 (5^th^ Cir. 1999) ("Whether regulation is content
    neutral depends on whether it is justified without reference to the
    content of the speech or serves purposes unrelated to the
    content....") Here, video description by definition is related to
    the content of a program; it requires the creation of content to
    supplement that which the operator would otherwise choose to offer
    and compels speech.

[^17]: [Report and Order]{.underline} at ¶63. [See]{.underline} 47
    C.F.R. § 79.3(b)(MVPDs that serve 50,000 or more subscribers "must
    provide" 50 hours of video description per calendar quarter "on each
    channel on which they carry one of the top five national
    nonbroadcast networks"); [id]{.underline}., §
    79.3(e)(3)(ii)(penalties for violations may include "a requirement
    that the video programming distributor deliver video programming
    containing video description in excess of its requirements").

[^18]: [United Video, Inc.]{.underline}, 890 F.2d at 1189.

[^19]: The rules do not delineate which hours constitute "prime time"
    for these purposes. The cable rules define "prime time" to mean 6-11
    p.m. local time; between 5-10 p.m. C.S.T., and between 5-10 p.m. or
    6-11 p.m. Mountain time. 47 C.F.R. § 76.5 (n)(definition of prime
    time). This definition differs from the common industry definition
    of prime time (from 8-11 p.m. Monday -- Saturday, and 7-11 p.m.
    Sunday.) The Commission should clarify which hours it considers to
    be "prime time" for purposes of its rule.

    > In addition, certain cable networks -- "single feed" networks --
    > transmit only one signal by satellite nationwide. The Commission
    > should clarify that "prime time" for single feed networks will be
    > considered "prime time" in the Eastern time zone.

[^20]: Those networks are determined based on Nielsen prime time ratings
    for October 1, 1999 -- September 30, 2000. The rules, which were
    adopted prior to the end of that period, do not delineate the cable
    networks to which this requirement applies.

[^21]: [Report and Order]{.underline} at ¶43 ("Given the limited nature
    of our initial video description rules, we decline to exempt any
    particular categories of programming or class of programming
    providers.")

[^22]: [Id]{.underline}. at ¶26 (emphasis supplied).

[^23]: [Id]{.underline}. at ¶36 (emphasis supplied).

[^24]: [Id]{.underline}. at ¶33.

[^25]: Baseball and wrestling accounted for 10 of the 11 hours of prime
    time, non-repeat original programming on TBS during the week
    September 12 -- September 19; wrestling was aired during two of the
    three hours of prime time, non-repeat original programming on TNT,
    and during two out of the five hours of prime time, non-repeat
    original programming on USA Network during that same period.

[^26]: [Id.]{.underline} at ¶ 2.

[^27]: [Report and Order]{.underline} at ¶ 36.

[^28]: [See]{.underline} [generally]{.underline} [Video Accessibility
    Report]{.underline}, 11 FCC Rcd. 19214, 19258-59 (1997.)

[^29]: Some cable networks that produce and own the programming aired on
    their networks generally offer that programming exclusively and do
    not license it to others. Therefore, the efficiencies enjoyed by
    some program producers who create product for wide distribution are
    not enjoyed by these cable networks.

[^30]: 47 C.F.R.§ 79.3(c)(2) ("programming with video description will
    count toward a broadcaster's or MVPD's minimum requirement for a
    particular quarter only if that programming has not previously been
    counted by that broadcaster of MVPD toward its minimum requirement
    for any quarter.")

[^31]: [Id.]{.underline}, § 79.1(b) (defining captioning benchmarks
    based on number of hours per quarter).

[^32]: [Id]{.underline}., § 79.1(g).

[^33]: [Closed Captioning and Video Description of Video Programming,
    Implementation of Section 305 of the Telecommunications Act of 1996;
    Video Programming Accessibility]{.underline}, 13 FCC Rcd. 3272, 3381
    (1997) (hereinafter "Captioning Order").

[^34]: [Captioning Order on Reconsideration]{.underline}, 13 FCC Rcd.
    19973, 20025 (1998).

[^35]: [Id.]{.underline}

[^36]: [Captioning Order]{.underline}, 13 FCC Rcd. at 3381.

[^37]: [Report and Order]{.underline} at ¶33 (emphasis supplied).

[^38]: The rule applies to "an entity" that has "aired a particular
    program" with video descriptions. While the entity to which the rule
    applies is ambiguous, the [Report and Order]{.underline} suggests
    that this provision would apply to the cable operator or other MVPD.
    [Id.]{.underline}

[^39]: [Id.]{.underline} at ¶42.

[^40]: 47 C.F.R. § 79(1)(f).

[^41]: [Id]{.underline}., § 79.3(d)(2).

[^42]: [Id.]{.underline}, § 79.1(a)(2).