**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | MM Docket No. 99-339         |
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**WAIVER ORDER**

**Adopted:** October 26, 2001 **Released:** November 2, 2001

By the Commission:

1\. With this *Order*, we clarify that the Commission's emergency
information rules, 47 C.F.R. § 79.2(b)(1)(iii), require that
broadcasters or multichannel video programming distributors (MVPDs)
accompany *each* "crawl" or "scroll" of emergency information with an
aural tone. We grant a limited waiver of this aural tone requirement to
MVPDs that receive emergency information warnings from The Weather
Channel (TWC) via Weather Star III and Weather Star Jr. computers.

2\. On August 7, 2000, the Commission released its *Video Description*
*Report and Order* in which it adopted rules requiring broadcasters and
other video programming distributors to provide video description and to
make emergency information more accessible to visually impaired
viewers.[^1] The Commission's emergency information rules provide, among
other requirements, that "\[e\]mergency information that is provided in
the video portion of programming that is not a regularly scheduled
newscast, or a newscast that interrupts regular programming, must be
accompanied with an aural tone."[^2]

3\. On December 20, 2000, TWC filed a letter requesting that we clarify
that, in certain circumstances, it is in compliance with our emergency
information rules when it provides an aural tone prior to the first time
that it provides a particular crawl or scroll containing emergency
information.[^3] TWC thus seeks clarification that it need not accompany
*each* otherwise identical crawl or scroll with an aural tone. In the
alternative, TWC seeks an exemption from the rules because it asserts
that accompanying each crawl or scroll with an aural tone would require
replacing equipment on some of their systems at a cost of over \$34
million. This, it contends, would constitute an undue burden, exempting
it from any video description requirements pursuant to Section 79.3(d)
of our rules.

4\. TWC is a national weather service that provides text-only
reproductions of emergency weather bulletins released by the National
Weather Service and certain state emergency management agencies. TWC
distributes these warnings to MVPDs through its Weather Stars, a system
of more than 9,000 fully automated, graphic and/or text computers
located at cable headends throughout the United States that download and
display the bulletins to the relevant geographic audiences.[^4] TWC
reports that it issues approximately 150,000 weather warnings and
advisories each year, "far more than any local broadcaster or other
MVPD." It notes, however, that its viewers often switch to their local
broadcast stations for information regarding emergency weather
situations because they know that these stations provide local details
about safety and the protection of property.[^5]

5\. TWC states that it uses four different generations of Weather Stars.
It reports that the Weather Stars that cover more than 93% of its
subscribers produce an aural tone each time a crawl or scroll containing
emergency information is provided. However, for a small percentage (4%,
or 2.9 million) of its subscribers, where the older Weather Star IIIs
are in use, TWC is only able to provide an aural tone the first time a
particular crawl or scroll containing emergency information is aired. It
states that by 2003/2004 all Star IIIs will be replaced by more advanced
products that will produce an aural tone with each warning.[^6] For an
even smaller percentage (2.5% or 1.8 million) of its subscribers, the
Weather Star Jrs. in use cannot provide an aural tone.[^7] TWC states
that it is able to upgrade the Star Jrs. to provide a tone before the
first time a particular crawl or scroll is transmitted, which will cost
approximately \$1 million[^8] and take six to ten months to
accomplish.[^9] TWC requests a short term waiver of our emergency
information rules until such time as it can complete the upgrades.[^10]
TWC contends, however, that it is unable to modify the Weather Star IIIs
or the Star Jrs. to provide an aural tone *each* time a crawl or scroll
is transmitted, and that replacing these two systems to provide an aural
tone with each transmission of an emergency warning would cost more than
\$34 million.[^11] By way of comparison, TWC notes that the National
Cable Television Association (NCTA) has estimated that the cost of
complying with our *video description* rules for a typical cable network
would be between \$100,000 and \$200,000.[^12]

6\. On February 7, 2001, we released a Public Notice seeking comment on
TWC's request for clarification. We received two e-mail comments
opposing its request.[^13] One commenter (Butler) contends that TWC
should provide an aural tone every time that it provides a scroll or
crawl that provides emergency information, arguing that producing a tone
the second time the same scroll or crawl is aired should not be an undue
burden.[^14] The other commenter (Fenster) contends that allowing two to
three years for replacing the Star IIIs is excessive in light of the
safety needs of the 2.9 million people served by the Star IIIs. Fenster
argues that compliance with existing Commission regulations is part of
the cost of doing business, suggesting that the Commission should limit
TWC to a period of one year to 18 months to comply with the emergency
information rules.[^15]

7.  As an initial matter, we clarify that we interpret our emergency
    information rules as requiring that *each* "crawl" or "scroll" of
    emergency information that is provided in the video portion of
    programming that is not a regularly scheduled newscast, or a
    newscast that interrupts regular programming, be accompanied with an
    aural tone. Although we believe that this interpretation is implicit
    in our rules, we take this opportunity to forestall any confusion
    regarding the requirements of our emergency information rules.

8.  Secondly, we note that our Video Description decision held
    programming distributors, rather than programming networks or
    producers, responsible for rule compliance.[^16] Because it is a
    programming network rather than a program distributor, TWC is not
    directly responsible for compliance with the video description
    rules, including the provision on emergency announcements. However,
    we also stated that we expected that program distributors would
    incorporate video description requirements into their contracts with
    program producers and that the parties would negotiate for an
    efficient allocation of video description responsibilities.[^17]
    Accordingly, based upon TWC's representations, we issue this *Order*
    to provide program distributors equipped by TWC with Weather Star
    III and Star Jr. equipment with a waiver of the aural tone
    requirement of the emergency information rules to the extent set
    forth below.

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9.  TWC's description of the difficulty and expense that would be
    involved in providing an aural tone with every crawl or scroll of
    emergency information that it transmits to subscribers served by
    Weather Star IIIs and Star Jrs. is uncontroverted.[^18] When the
    Commission adopted the emergency information rules, it did not
    envision that any parties would have to make large capital
    expenditures to comply with the rules.[^19] Expecting TWC to provide
    its MVPDs with a tone with every transmission within one year to 18
    months would, according to TWC, require an expenditure of \$34
    million, a figure that has not been disputed by any party. This
    would constitute a large capital expenditure, especially as it plans
    to replace all Star IIIs by 2003/2004. We therefore believe that it
    would be an undue burden to require MVPDs equipped with Weather Star
    IIIs to comply with the aural tone requirement of the emergency
    information rules before those computers are replaced by TWC in
    2003/2004. With respect to the Star Jrs., TWC is willing to expend
    \$1 million to give them the functionality of the Star IIIs, which
    provide a tone the first time a crawl or scroll of emergency
    information is transmitted. Based upon TWC's representations
    concerning the costs of complying with our aural tone requirement,
    its intention to replace the Star IIIs in 2003/2004, and its
    intention to upgrade the Star Jrs. to provide an initial aural tone,
    we believe that it is reasonable to grant the MVPDs that carry TWC
    via Star IIIs or Star Jrs. a limited waiver of our emergency
    information rules, which became effective on February 1, 2001, to
    accomplish these upgrades and replacements.

10. We therefore grant MVPDs that receive emergency information from TWC
    via Weather Star IIIs a waiver of the requirement of our emergency
    information rules that they provide an aural tone before each crawl
    or scroll of emergency information until December 31, 2004, by which
    time TWC states that it will have replaced the Weather Star IIIs
    with computers that provide an aural tone prior to every scroll or
    crawl containing emergency information. In addition, we grant MVPDs
    that receive emergency information from TWC via Weather Star Jrs. a
    six-month waiver of our emergency information rules, dating from
    release of this *Order*, to allow TWC to upgrade its Star Jr.
    computers to provide an aural tone the first time a particular crawl
    or scroll of emergency information is transmitted.

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11. Upgraded Weather Star Jr. computers will have the functionality of
    the Star IIIs, providing an aural tone the first time a particular
    scroll or crawl containing emergency information is transmitted. We
    find it reasonable to grant MVPDs that receive emergency information
    from TWC via upgraded Weather Star Jrs. the same waiver, until
    December 31, 2004, as those MVPDs that receive their information via
    Star IIIs. If TWC does not intend to replace the Star Jrs. by this
    date, either TWC or MVPDs equipped with Star Jrs. may request an
    extension of this waiver.

12. It will be incumbent upon MVPDs equipped with Star IIIs or Star Jrs.
    to apprise us of any need for extension of these waivers.

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13. ACCORDINGLY, IT IS ORDERED that a limited waiver of the aural tone
    requirement of the Commission's emergency information rules, as set
    forth herein, IS GRANTED to multichannel video programming
    distributors that receive emergency information warnings from The
    Weather Channel via Weather Star III and Weather Star Jr. computers.
    For additional information concerning this proceeding, please
    contact Jane Gross, Mass Media Bureau, (202) 418-2130.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

# 

[^1]: Implementation of Video Description of Video Programming, MM
    Docket No. 99-339, *Video Description* *Report and Order*, 15 FCC
    Rcd 15230, 15251 at ¶ 51 (2000), *on recon.*, 16 FCC Rcd 1251
    (2001), *appeal pend*., *Motion Picture Association of America et
    al. v. FCC*, No. 01-1149 (D.C. Cir. filed Mar. 28, 2001); *National
    Federation of the Blind v. FCC*, No. 01-1155 (D.C. Cir. filed Apr.
    2, 2001) (consolidated). No parties sought reconsideration of the
    rules regarding emergency information.

[^2]: 47 C.F.R. § 79.2(b)(1)(iii). Our amended emergency information
    rules were effective upon approval of the Office of Management and
    Budget (OMB) on February 1, 2001 (OMB No. 3060-0967). *See* Public
    Notice, DA 01-799 (rel. March 30, 2001).

[^3]: Letter on behalf of The Weather Channel (TWC) to Roy J. Stewart,
    Chief, Mass Media Bureau, Federal Communications Commission (filed
    December 20, 2000).

[^4]: Letter of TWC at 1-2.

[^5]: Letter of TWC at 4.

[^6]: Letter of TWC at 2

[^7]: Letter of TWC at 2.

[^8]: Letter of TWC at 3-4.

[^9]: Letter of TWC at 3, n. 4.

[^10]: Letter of TWC at 3, n. 4.

[^11]: Letter of TWC at 3.

[^12]: Letter of TWC at 4, *citing* Comments of NTCA at 14-15, in *Video
    Description* *Report and Order*, 15 FCC Rcd 15230, 15236 n. 37 (NCTA
    estimates that it would cost between \$100,000 and \$200,000 for
    cable networks that cannot currently support a third audio channel
    to upgrade their facilities to do so).

[^13]: E-mail letter to the FCC Consumer Information Bureau Disability
    Rights Office from Carol-Lynn M. Fenster (February 9,
    2001)(Fenster); E-mail letter to the FCC Consumer Information Bureau
    Disability Rights Office from Mary Butler, Advocacy & Outreach
    Coordinator of the Linking Employment Abilities & Potential program,
    Center for Independent Living, Elyria, Ohio (February 27,
    2001)(Butler).

[^14]: Letter of Butler, *supra*.

[^15]: Letter of Fenster, *supra*.

[^16]: Specifically, distributors responsible for rule compliance
    include broadcast stations in the top 25 Nielsen Designated Market
    Areas (DMAs) affiliated with the top four commercial broadcast
    networks, ABC, CBS, Fox and NBC, as well as MVPDs that serve 50,000
    or more subscribers. *Video Description Report and Order*, *supra*
    at 15238, n. 52; *Video Description Memorandum Opinion and Order*,
    *supra* at 1254.

[^17]: *Video Description Memorandum Opinion and Order*, *supra* at
    1254.

[^18]: Although Butler questions TWC's assertions, she offers no
    evidence to contradict them. Letter of Butler, *supra*.

[^19]: *Video Description* *Report and Order*, 15 FCC Rcd 15320, 15251
    at ¶ 52 (2000) (adoption of an earlier effective date for the
    emergency information rules because of the importance of emergency
    information, and because there should be little if any equipment and
    infrastructure costs associated with compliance).