14856 Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 

§ 73.622(i) [Amended] 

2. Section 73.622(i), the PostTransition Table of DTV Allotments 

under Tennessee, is amended by adding 

channel 25 and removing channel 5 at 

Nashville. 

[FR Doc. 2011–5097 Filed 3–17–11; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 73 and 79 

[MB Docket No. 11–43; FCC 11–36] 

Video Description: Implementation of 

the Twenty-First Century 

Communications and Video 

Accessibility Act of 2010 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission takes an initial step to 

implement the Twenty-First Century 

Communications and Video 

Accessibility Act of 2010, by seeking 

comment on the mandated 

reinstatement of video description rules 

that would apply to MVPDs and 

network-affiliated broadcasters. 

DATES: Comments must be submitted by 

interested parties on or before April 18, 

2011. Reply comments must be 

submitted no later than May 17, 2011. 

Written PRA comments on the proposed 

information collection requirements 

contained herein must be submitted by 

the public, Office of Management and 

Budget (OMB), and other interested 

parties on or before May 17, 2011. 

ADDRESSES: You may submit comments, 

identified by MB Docket No. 11–43, FCC 

11–36, by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web site:http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• Mail: Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although the Commission continues to 

experience delays in receiving U.S. 

Postal Service mail). All filings must be 

addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

• People With Disabilities: Contact 

the FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

In addition to filing comments with 

the Secretary, a copy of any PRA 

comments on the proposed collection 

requirements contained herein should 

be submitted to the Federal 

Communications Commission via e-mail 

to PRA@fcc.gov and to Nicholas A. 

Fraser, Office of Management and 

Budget, via e-mail to 

nfraser@omb.eop.gov or via fax at 202– 

395–5167. For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: For 

additional information, contact Lyle 

Elder, Lyle.Elder@fcc.gov, of the Media 

Bureau, Policy Division, at (202) 418– 

2120. For additional information 

concerning the information collection 

requirements contained in this 

document, send an e-mail to 

PRA@fcc.gov or contact Cathy Williams, 

(202) 418–2918. To view or obtain a 

copy of this information collection 

request (ICR) submitted to OMB: (1) Go 

to this OMB/GSA Web page: http:// 

www.reginfo.gov/public/do/PRAMain, 

(2) look for the section of the Web page 

called ‘‘Currently Under Review,’’ (3) 

click on the downward-pointing arrow 

in the ‘‘Select Agency’’ box below the 

‘‘Currently Under Review’’ heading, (4) 

select ‘‘Federal Communications 

Commission’’ from the list of agencies 

presented in the ‘‘Select Agency’’ box, 

(5) click the ‘‘Submit’’ button to the right 

of the ‘‘Select Agency’’ box, and (6) 

when the list of FCC ICRs currently 

under review appears, look for the OMB 

control number of this ICR as shown in 

the Supplementary Information section 

below (or its title if there is no OMB 

control number) and then click on the 

ICR Reference Number. A copy of the 

FCC submission to OMB will be 

displayed. 

SUPPLEMENTARY INFORMATION: This is a 

summary of document FCC 11–36, 

adopted March 2, 2011 and released 

March 3, 2011. The full text is available 

for public inspection and copying 

during regular business hours in the 

FCC Reference Center, Federal 

Communications Commission, 445 12th 

Street, SW., CY–A257, Washington, DC, 

20554. These documents will also be 

available via ECFS (http://www.fcc.gov/ 

cgb/ecfs/). Documents will be available 

electronically in ASCII, Word 97, and/ 

or Adobe Acrobat. The complete text 

may be purchased from the 

Commission’s copy contractor, 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an e-mail 

to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

This document contains proposed 

information collection requirements. As 

part of its continuing effort to reduce 

paperwork burden and as required by 

the Paperwork Reduction Act (PRA) of 

1995 (44 U.S.C. 3501–3520), the Federal 

Communications Commission invites 

the general public and other Federal 

agencies to comment on the following 

information collection(s). Public and 

agency comments are due May 17, 2011. 

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) the accuracy of the Commission’s 

burden estimates; (c) ways to enhance 

the quality, utility, and clarity of the 

information collected; and (d) 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, 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

we seek specific comment on how we 

might ‘‘further reduce the information 

collection burden for small business 

concerns with fewer than 25 

employees.’’ 

OMB Control Number: 3060–xxxx. 

Title: Video Description of Video 

Programming. 

Form Number: N/A. 

Type of Review: New collection. 

Respondents: Individuals or 

households; Businesses or other forprofit entities; Not-for-profit 

institutions. 

Number of Respondents and 

Responses: 76 respondents; 80 

responses. 

Estimated Time per Response: 1–5 

hours. 

Frequency of Response: On occasion 

reporting requirement. 

Obligation to Respond: Voluntary and 

required to obtain or retain benefits. The 

statutory authority for this collection of 

information is contained in 47 U.S.C. 

613(f). 

Total Annual Burden: 144 hours. 

Total Annual Costs: $26,250. 

Privacy Act Impact Assessment: Yes. 

The Privacy Impact Assessment (PIA) 

was completed on June 28, 2007. It may 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 14857 

1Twenty-First Century Communications and 

Video Accessibility Act of 2010, Public Law 111– 

260, 124 Stat. 2751 (2010). 

2CVAA 202(a), Public Law 111–260, 124 Stat. 

2751(2010) (to be codified at 47 U.S.C. 613). The 

regulations were promulgated in Implementation of 

Video Description of Video Programming, MM 

Docket No. 99–339, Report and Order, 15 FCC Rcd 

15230 (2000) (‘‘2000 Report and Order’’), recon. 

granted in part and denied in part, 16 FCC Rcd 1251 

(2001) (‘‘Recon’’) (attached at Appendix C) and were 

codified at 47 CFR 79.3. 

3CVAA at Title II, sec. 202(a), 713(h)(1). 

4 Motion Picture Ass’n of America, Inc. v. Federal 

Communications Comm., 309 F.3d 796 (D.C. Cir. 

2002). 5CVAA at Title II, sec. 202(a), 713(f)(1–2). 

6 47 CFR 79.3(b). 

7 Id. at § 79.3(b)(1), (3). 

8 Id. at § 79.3(b)(2), (4). 

be reviewed at: http://www.fcc.gov/ 

omd/privacyact/ 

Privacy_Impact_Assessment.html. The 

Commission is in the process of 

updating the PIA to incorporate various 

revisions made to the SORN. 

Nature and Extent of Confidentiality: 

Confidentiality is an issue to the extent 

that individuals and households 

provide personally identifiable 

information, which is covered under the 

FCC’s system of records notice (SORN), 

FCC/CGB–1, ‘‘Informal Complaints and 

Inquiries.’’ As required by the Privacy 

Act, 5 U.S.C. 552a, the Commission also 

published a SORN, FCC/CGB–1 

‘‘Informal Complaints and Inquiries’’, in 

the Federal Register on December 15, 

2009 (74 FR 66356) which became 

effective on January 25, 2010. 

Needs and Uses: The Commission is 

seeking approval for this proposed 

information collection from the Office of 

Management and Budget (OMB). On 

March 3, 2011, the Commission released 

a Notice of Proposed Rulemaking, MB 

Docket No. 11–43; FCC 11–36. This 

rulemaking proposed information 

collection requirements that support the 

Commission’s video description rules 

that would be codified at 47 CFR 79.3, 

as required by the Twenty-First Century 

Communications and Video 

Accessibility Act of 2010 (‘‘CVAA’’). In 

2000, the Commission adopted rules 

requiring certain broadcasters and 

multichannel video program 

distributors (MVPDs) to carry 

programming with video description. 

The United States Court of Appeals for 

the District of Columbia Circuit vacated 

the rules due to insufficient authority 

soon after their initial adoption. The 

CVAA directs the Commission to 

reinstate those rules, with certain 

modifications, on October 8, 2011. 

The proposed information collection 

requirements consist of: 

Petitions for exemption based on 

‘‘economic burden.’’ 

Pursuant to proposed 47 CFR 79.3(d), 

a video programming provider may 

petition the Commission for a full or 

partial exemption from the video 

description requirements based upon a 

showing that they would be 

economically burdensome. 

Petitions for exemption must by filed 

with the Commission, placed on Public 

Notice, and be subject to comment from 

the public. 

Complaints alleging violations of the 

video description rules. 

Section 79.3(e) of the proposed rules 

provides that a complaint alleging a 

violation of the video description rules 

may be transmitted to the Commission 

by ‘‘any reasonable means’’ that would 

best accommodate the complainant’s 

disability, and that each complaint must 

include: 

The name and address of the 

complainant; 

The name and address of the 

broadcast station against whom the 

complaint is alleged and its call letters 

and network affiliation, or the name and 

address of the MVPD against whom the 

complaint is alleged and the name of the 

network that provides the programming 

that is the subject of the complaint; 

A statement of facts sufficient to show 

that the video programming distributor 

has violated or is violating the 

Commission’s rules, and, if applicable, 

the date and time of the alleged 

violation; 

The specific relief or satisfaction 

sought by the complainant; 

The complainant’s preferred format or 

method of response to the complaint 

(such as letter, facsimile transmission, 

telephone (voice/TRS/TTY), Internet email, or some other method that would 

best accommodate the complainant’s 

disability); and 

A certification that the complainant 

attempted in good faith to resolve the 

dispute with the broadcast station or 

MVPD against whom the complaint is 

alleged. 

The Commission is seeking OMB 

approval for the proposed information 

collection requirements. 

Summary of the Notice of Proposed 

Rulemaking 

I. Introduction 

1. In compliance with the recently 

enacted Twenty-First Century 

Communications and Video 

Accessibility Act of 2010 (the 

‘‘Communications and Video 

Accessibility Act’’ or ‘‘CVAA’’),1 the 

Notice of Proposed Rulemaking 

(‘‘NPRM’’) proposes and seeks comment 

on reinstatement of the video 

description rules adopted by the 

Commission in 2000. The CVAA directs 

us to ‘‘reinstate [our] video description 

regulations’’ with certain modifications.2

‘‘Video description,’’ sometimes referred 

to as ‘‘audio description,’’ which is the 

insertion of audio narrated descriptions 

of a television program’s key visual 

elements into natural pauses in the 

program’s dialogue,3 makes video 

programming more accessible to 

individuals who are blind or visually 

impaired. The United States Court of 

Appeals for the District of Columbia 

Circuit vacated the Commission’s video 

description rules due to insufficient 

authority soon after their initial 

adoption.4 The CVAA now directs the 

Commission to reinstate those rules 

with certain modifications.5 We 

anticipate that the revised and 

reinstated rules will afford better access 

to television programs for individuals 

who are blind or visually impaired, 

enabling millions more Americans to 

enjoy the benefits of television service 

and participate more fully in the 

cultural and civic life of the nation. 

2. The Commission’s rules required 

large-market broadcast affiliates of the 

top four national networks and 

multichannel video programming 

distributors (‘‘MVPDs’’) with more than 

50,000 subscribers to provide video 

description.6 Covered broadcasters were 

required to provide 50 hours of videodescribed prime time or children’s 

programming, per quarter, and covered 

MVPDs were required to provide the 

same number of hours on each of the 

five most popular nonbroadcast 

networks.7 The rules also required that 

all network-affiliated broadcasters 

(commercial or non-commercial) and all 

MVPDs pass through any video 

description provided with programming 

they carried, to the extent that they are 

technically capable of doing so.8 As 

required under the CVAA, we propose 

to reinstate these rules, with the 

modifications required by the law, on 

October 8, 2011, and to require 

broadcast stations and MVPDs subject to 

our rules to begin providing the 

requisite number of hours of 

programming with video description 

beginning in the first quarter of 2012. 

3. We seek comment on the 

modifications to the rules required by 

the CVAA. Notably, these modifications 

include the exemption of ‘‘live or nearlive’’ programming from the rules. We 

seek comment on the definition of 

‘‘near-live,’’ and propose that programs 

produced within 24 hours of their first 

airing be considered ‘‘near-live’’ under 

the rules. We also seek information 

about the number of hours of nonexempt programming provided by the 

top nonbroadcast programming 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
14858 Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 

9 47 U.S.C. 613 (this section, Video Programming 

Accessibility, was added to the Communications 

Act by Section 305 of the Telecommunications Act 

of 1996); see also Implementation of Section 305 of 

the Telecommunications Act of 1996—Video 

Programming Accessibility, MM Docket No. 95–176, 

Report, 11 FCC Rcd 19214 (1996) (‘‘Report’’). The 

Commission had initiated the inquiry in 1995, 

before enactment of the 1996 Act. Closed 

Captioning and Video Description of Video 

Programming, MM Docket No. 95–176, Notice of 

Inquiry,11 FCC Rcd 4912 (1995). 

10 2000 Report and Order, supra note 2. 

11 2000 Report and Order, supra note 2, at para. 

4 (internal citations omitted). 

12 Motion Picture Ass’n of America, Inc. v. 

Federal Communications Comm., 309 F.3d 796 

(D.C. Cir. 2002). 

13Communications and Video Accessibility Act, 

supra note 1. 

14 Id. at Title II, sec. 202(a), 713(f)(1) (requiring 

reinstatement of the rules one year after the date of 

enactment of the CVAA). 

15 Id. at 713(f)(3). 

16 Id. at 713(f)(4)(C)(iii). 

17 Id. at 713(f)(4)(A), (B), (C)(i), (iv). 

18 Id. at 713(f)(1). See also id. at 713(f)(2) (‘‘Such 

regulations shall be modified only as follows 

***’’). 

19 See generally 2000 Report and Order and 

Recon, supra note 2. We incorporate the discussion 

of these rules in the 2000 Report and Order and 

Reconsideration Order into the record of this 

proceeding. 

20For the purpose of the video description rules, 

these are ABC, CBS, Fox, and NBC. 47 CFR 

79.3(b)(1). 

21Markets are ranked by Nielsen based on their 

total number of television households. TVB Market 

Profiles at http://www.tvb.org/market_profiles/ 

131627. Nielsen Media Research, Inc. (‘‘Nielsen’’) is 

now known as The Nielsen Company. 

22 47 CFR 79.3(c)(2); see also Recon, supra note 

2, at fn. 74 (‘‘Broadcast stations and MVPDs can 

count a repeat of a previously aired program in the 

same quarter or in a later quarter, but only once 

altogether’’). 

networks to enable us to identify which 

networks will be subject to our rules. 

II. Background 

4. In 1996, at Congress’s direction, the 

Commission issued a report on the use 

of video description in video 

programming.9 In 2000, the Commission 

adopted rules requiring certain 

broadcasters and MVPDs to carry 

programming with video description.10

The Commission found that the record 

demonstrated the importance of video 

description, stating, for example, that 

[t]he comments of the American Council of 

the Blind contained more than 250 e-mails 

and letters of support for rules, which 

explained how video description enhances 

the understanding of blind and low vision 

people of television programming and 

cultural behavior such as body language, and 

gives them a feeling of independence. One 

commenter said that * * * ‘‘[w]hether 

entertaining, educational or cultural, 

television has become an integral part of 

American life. I, and other blind and visually 

impaired people, have always participated in 

television viewing, but with [video 

description], we are finally participating 

equally.’’ Helen Harris, founder of a 

description service, says that ‘‘[v]ideo 

description effectively bridges the gap 

between the blind and mainstream society by 

creating a shared experience which leaves 

the blind with an increased sense of 

normalcy in their lives.’’ 11

Five months after the rules went into 

effect, they were vacated by the United 

States Court of Appeals for the District 

of Columbia Circuit on the ground that 

the Commission lacked sufficient 

authority to promulgate video 

description rules.12 Nonetheless, some 

broadcast and nonbroadcast networks 

have voluntarily continued to provide 

this important service; for instance, 

CBS, Fox, PBS, TCM, and TNT all 

provide description of selected 

programming. We commend these 

networks and all others that are 

voluntarily offering described 

programming, for recognizing the 

importance of video description to the 

members of their audiences who are 

blind or visually impaired. 

5. On October 8, 2010, President 

Obama signed the CVAA,13 which 

increases the access of persons with 

disabilities to modern communications 

services and technologies and gives the 

Commission express authority to adopt 

video description rules. The statute 

directs the Commission, as an initial 

step, to reinstate the previously adopted 

video description rules, with certain 

modifications.14 To fulfill our statutory 

mandate, we begin the process with 

requests for comment in this Notice of 

Proposed Rulemaking. The CVAA 

imposes other requirements with 

respect to video description. For 

example, we are required to submit a 

report within two years of phasing in 

the reinstated rules, discussing the 

status, benefits, and costs of video 

description on television and Internetprovided video programming.15 We 

must file a second report, nine years 

after the enactment of the CVAA, that 

provides a detailed review of the video 

description market and the potential 

need for expansion of the description 

mandates.16 The CVAA also gives us 

authority to expand the video 

description hour requirements and the 

number of markets in which 

broadcasters are required to provide 

description if we determine that the 

benefits of televised description 

outweigh its costs.17 We will address 

these additional requirements and 

potential expansions in a separate 

proceeding. 

III. Discussion 

A. Reinstated Rules 

6. Section 713(f)(1) of the 

Communications Act, as added by the 

CVAA, states that the Commission shall, 

after a rulemaking, reinstate its video 

description regulations contained in the 

Implementation of Video Description of 

Video Programming Report and Order 

(15 F.C.C.R. 15,230 (2000)), recon. 

granted in part and denied in part, (16 

F.C.C.R. 1251 (2001)), modified as 

provided in paragraph (2).18

Consistent with Congress’ directive, 

we will reinstate the Commission’s 2000 

rules on October 8, 2011 with the 

modifications required by the CVAA.19

The most significant elements of those 

rules are: 

• Affiliates of the top four national 

networks 20 located in the top 25 

television markets 21 must provide 50 

hours per calendar quarter of videodescribed prime time and/or children’s 

programming. For this purpose, prime 

time means 8–11 pm Monday through 

Saturday, and 7–11 pm on Sunday, 

except that these times are an hour 

earlier in the central time zone, and 

stations in the mountain time zone may 

choose which ‘‘prime time’’ period to 

adopt for the purpose of these rules. 

47 CFR 79.3(a)(6). In this item, we 

propose to define children’s 

programming as being directed at 

children 16 years of age and younger. 

See paragraph 32, below, and Appendix 

A. MVPDs with 50,000 or more 

subscribers must provide 50 hours per 

calendar quarter of video-described 

prime time and/or children’s 

programming on each of the top five 

nonbroadcast networks that they carry. 

Our ranking of the Top 5 networks will 

be based on Nielsen national prime time 

audience share, the number of 

subscribers reached, and amount of nonexempt programming. See paragraph 12, 

below. 

• To count toward the requirement, 

the programming must not have been 

previously aired with video description, 

on that particular MVPD channel or 

broadcast station, more than once.22 The 

CVAA defines ‘‘video programming’’ in 

the video description context as 

‘‘programming by, or generally 

considered comparable to programming 

provided by a television broadcast 

station, but not including consumergenerated media (as defined in section 

3).’’ CVAA at Title II, sec. 202(a), 

713(h)(2). Section 3 of the 

Communications Act, as amended in the 

CVAA, defines consumer-generated 

media as ‘‘content created and made 

available by consumers to online Web 

sites and services on the Internet, 

including video, audio, and multimedia 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 14859 

23 47 CFR 79.3(b)(2); see infra paras. 14–16. 

24 47 CFR 79.3(b)(4); see infra paras. 14–16. 

25 47 CFR 79.3(c)(3); see also Recon, supra note 

2, at para. 27 and fn. 83. 

26 47 CFR 79.3(e). 

27 47 CFR 79.3(b)(1), (3) (requirement to provide 

description). 

28 47 CFR 79.3(b)(1). 

29 Id. 

30CVAA, Title II, sec. 202(a), 713(f)(2)(B). 

31See infra para. 14. 32 Id. at 713(f)(4)(C)(i–ii). See supra para. 5. 33CVAA, Title II, sec. 202(a), 713(f)(2)(B). 

‘‘Exempt’’ programming includes ‘‘live or near-live 

programming.’’ See infra para. 21. 34 47 CFR 79.3(b)(3). 

content.’’ CVAA at Title I, sec. 101(1), 3 

(54). The proposed rules adopt the 

CVAA definition of video programming. 

• Any broadcast station, regardless of 

its market size, affiliated or otherwise 

associated with any television network, 

must ‘‘pass through’’ video description 

when the network provides it and the 

station has the technical capability 

necessary to do so.23 Similarly, any 

MVPD, regardless of its number of 

subscribers, must ‘‘pass through’’ video 

description when a broadcast station or 

nonbroadcast network provides it, if it 

has the technical capability necessary to 

do so on the channel on which it 

distributes the broadcast station or 

nonbroadcast network programming.24

Any programming aired with 

description must always include 

description if re-aired on the same 

station or MVPD channel.25

• Complaints alleging a failure to 

comply with these rules may be filed 

with the Commission by any viewer, 

and the Commission will act to resolve 

such complaints in consultation with 

the video programming distributor.26

B. Identifying Stations Required To 

Provide Video Description 

7. As discussed above, under the 

reinstated rules, certain broadcast 

stations and MVPDs will have an 

obligation to provide video description 

of some of the programming they 

provide. Specifically, affiliates of ABC, 

CBS, Fox, and NBC that are located in 

the 25 television markets with the 

largest number of television households 

must provide 50 hours per calendar 

quarter of video-described programming 

during prime time, or at any time if it 

is children’s programming. To count 

toward this 50-hour requirement, videodescribed programming must be airing 

either the first or second time on the 

station; that is, a video described 

program may be counted toward the 50 

hours when it is originally aired and 

once more when it is re-run. Although 

we anticipate that much of the 

programming aired with video 

description will be newly produced, we 

propose that the reinstated rules permit 

stations to count any program that they 

are airing for the first or second time 

with video description after the 

reinstated rules become effective, even 

if the program has previously been aired 

on that station. Similarly, a station may 

count programming toward its 50 hour 

obligation even if that programming has 

aired elsewhere with description, so 

long as it is airing with description for 

the first or second time on that station. 

The rules are identical for MVPDs with 

50,000 or more subscribers, except that 

they apply to the programming of each 

of the top five national non-broadcast 

networks carried by the MVPDs. 

8. Although the CVAA requires 

reinstatement of the rules largely as 

adopted by the Commission in 2000, the 

Commission does have some discretion 

in determining the stations, MVPDs, and 

networks to which they apply. We 

therefore seek comment on these issues, 

as discussed below. 

1. Broadcast Stations 

9. As established in the 2000 rules, 

the broadcast stations subject to the 

requirement to provide video 

description 27 were those ‘‘[c]ommercial 

television broadcast stations that [were] 

affiliated with one of the top four 

commercial television broadcast 

networks (ABC, CBS, Fox, and NBC), as 

of September 30, 2000, and that [were] 

licensed to a community located in the 

top 25 DMAs, as determined by Nielsen 

Media Research, Inc. for the year 

2000.’’ 28 We propose to reinstate the 

rules insofar as they designate ABC, 

CBS, Fox, and NBC as the broadcast 

networks affected.29 Although the 

original rule refers only to ‘‘commercial 

television broadcast stations,’’ the 2000 

Report and Order is unclear about 

whether this requirement was intended 

to be limited to full-power commercial 

stations, or to apply to commercial low 

power stations as well. We seek 

comment on the appropriate scope of 

the requirement to provide description. 

The CVAA directs us to ‘‘update the list 

of the top 25 designated market 

areas.’’ 30 We propose to apply the rules 

to the Top 25 markets as determined by 

Nielsen as of January 1, 2011 (i.e., the 

2010–2011 DMA rankings), and, within 

those markets, to require stations 

affiliated with ABC, CBS, Fox, or NBC 

to provide video description, regardless 

of when the affiliation begins. We seek 

comment on this proposal. 

10. The relative size of markets often 

changes over time. We want to ensure 

that the rules apply to the top 25 

markets, as required by the CVAA. At 

the same time, we seek to ensure that 

regulatees and the public at large have 

adequate advance notice regarding 

which broadcast stations will be subject 

to the requirement to provide video 

description, and to avoid undue 

disruption for audiences who come to 

rely upon video described 

programming. Further, we recognize 

that a significant amount of video 

described programming (potentially all 

the programming required under the 

rules) will be provided by national 

network programmers and passed 

through by local stations, even in the 

top 25 markets. Because of the ‘‘passthrough’’ obligations of network stations 

outside the top 25 markets, discussed 

below, there may be little to no 

difference in the amount of video 

described programming available from 

affiliates of the top 4 networks in larger 

and smaller markets.31 In light of these 

considerations, we seek comment on 

whether we should reconsider the 

ranking of the top 25 markets at certain 

intervals to reflect current market 

conditions better and, if so, what those 

intervals should be. 

11. The CVAA mandates that the 

Commission extend the video 

description requirements to the top 60 

markets after filing a report to Congress 

on the state of the video description 

market, as discussed above,32 and no 

later than six years after the enactment 

date of the CVAA (i.e., October 8, 2016). 

If, as we propose in this Notice, the first 

phase is complete on January 1, 2012, 

the Report will be submitted to Congress 

no later than January 1, 2014. Should 

we identify now the date to be used to 

determine the top 60 markets and a 

compliance deadline for stations in 

markets 26–60, or should we set those 

dates following the required report to 

Congress? 

2. Top Five National Nonbroadcast 

Networks 

12. In order to implement the 

requirement that MVPDs provide video 

description, we must also update the 

‘‘top 5 national nonbroadcast networks 

that have at least 50 hours per quarter 

of prime time programming that is not 

exempt.’’ 33 The prior rules determined 

the top nonbroadcast networks using 

‘‘an average of the national audience 

share during prime time of 

nonbroadcast networks, as determined 

by Nielsen Media Research, Inc., for the 

time period October 1999–September 

2000, that reach 50 percent or more of 

MVPD households.’’ 34 Those rules did 

not contemplate that any programming 

would be exempt, which made 

identification of those networks more 


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35See infra para. 20, et seq. 

36See infra para. 21. 

37See infra note 51. 

38 3847 CFR 79.3(b)(2), (4). 

39 3947 U.S.C. 534(b)(3), 47 CFR 76.62(e), (f) 

(cable); 47 U.S.C. 338(j), 47 CFR 76.66(j) (DBS). See 

also Carriage of Digital Television Broadcast 

Signals; Amendments to Part 76 of the 

Commission’s Rules and Implementation of the 

Satellite Home Viewer Improvement Act of 1999, 

First Report and Order and Further Notice of 

Proposed Rulemaking, 16 FCC Rcd 2598, paras. 60– 

61 (2001). 

40 2000 Report and Order, supra note 2, at para. 

30. 

41Recon, supra note 2, at para. 14 (The National 

Association of Broadcasters recognized that entities 

that had met their 50 hour obligation were still 

required to pass description through to viewers). 

42 2000 Report and Order, supra note 2, at para. 

30. 

43 Id. 

straightforward than under the new 

statutory requirements.35 We propose to 

update the definition’s time period to 

October 2009—September 2010 (These 

dates cover the 2009–2010 television 

season, which will be the most recent 

full television season from which 

ratings will have been calculated and be 

available when the rules are adopted). 

We also propose to explicitly exclude 

from the top five any non-broadcast 

network that does not provide, on 

average, at least 50 hours per quarter of 

prime time non-exempt programming, 

i.e., programming that is not live or 

near-live.36 We seek comment regarding 

this proposal, and particularly seek 

detailed information from any network 

that believes it should be excluded from 

the top five covered networks due to an 

insufficient amount of non-exempt 

programming. We note that Nielsen 

treats some nonbroadcast ‘‘channels’’ as 

more than one ‘‘network’’ for ratings 

purposes; for example, Nickelodeon/ 

Nick at Nite and Cartoon Network/Adult 

Swim. We seek comment as to how we 

should take this into account when 

determining which networks are subject 

to the requirement to provide video 

description for 50 hours per quarter of 

prime time or children’s programming. 

According to staff analysis of Nielsen 

data for the 2009–2010 television 

season, the top 5 national nonbroadcast 

networks, based on an average of the 

national audience share during prime 

time of nonbroadcast networks, are 

USA, the Disney Channel, ESPN, TNT, 

and Nickelodeon’s Nick at Nite. FCC 

Staff Analysis based on data provided 

by Nielsen. Additional networks, some 

of which are tied for audience share 

during the 2009–2010 television season, 

which have the potential to be covered 

under the statute if any of the top 5 do 

not provide the requisite hours of nonexempt programming, include Fox 

News, TBS, A&E, History, the Cartoon 

Network’s Adult Swim, the Family 

Channel, and HGTV. Any network that 

believes it should be excluded from the 

top five due to an insufficient amount 

of nonexempt programming should 

provide notice in the Record before the 

close of the Comment period. The 

network’s Comments should be 

accompanied by an affidavit stating how 

many hours of nonexempt programming 

it typically airs per quarter (including 

how many hours of live programming 

and how many hours of near-live 

programming, as we propose to define 

those terms), as well as supporting 

documentation such as program 

schedules. Parties that wish to challenge 

any such claims may do so in their 

Reply Comments. If the Media Bureau 

determines that the information 

submitted is insufficient to determine 

whether a particular network has at 

least 50 hours per quarter of non-exempt 

prime time programming, we authorize 

the Bureau to seek additional 

information from the network or 

networks, consistent with the 

requirements of the Paperwork 

Reduction Act.37

13. Ratings of nonbroadcast networks 

often change over time. We want to 

ensure that the rules apply to the top 

five national nonbroadcast networks, as 

required by the CVAA. At the same 

time, we also want to ensure that 

regulatees and the public at large have 

adequate advance notice regarding 

which networks will be subject to the 

rules, and to avoid undue disruption for 

audiences who will come to rely upon 

video described programming. In light 

of these considerations, we seek 

comment on whether we should 

reconsider the ranking of the top five 

nonbroadcast networks at certain 

intervals to better reflect current market 

conditions and, if so, what those 

intervals should be. 

C. Pass-Through of Video Described 

Programming 

14. As noted above, under our 

previous video description rule, 

broadcasters affiliated with any network 

and all MVPDs were required to pass 

through any video description that they 

received from a broadcast or cable 

network or, in the case of MVPDs, from 

a broadcast station they carried, 

whenever they had the technical 

capability on the relevant channel to 

pass through the video description, 

unless they were using the technology 

necessary to provide such video 

description for another purpose related 

to the programming that would conflict 

with providing the video description.38

We propose to reinstate this rule 

without revision. We also note that the 

must carry provision of the 

Communications Act requires cable 

operators to carry ‘‘the primary video, 

accompanying audio, and line 21 closed 

caption transmission of each of the local 

commercial television stations carried 

on the cable system and, to the extent 

technically feasible, program-related 

material carried in the vertical blanking 

interval or on subcarriers.’’ 39 Although 

the original rule refers to all ‘‘television 

broadcast stations,’’ the 2000 Report and 

Order is unclear about whether this 

requirement was intended to include 

low power stations. We seek comment 

on the appropriate scope of the 

obligation to pass through description. 

This obligation is distinct from the 

requirement to provide video 

description that we propose to impose 

on certain broadcasters and MVPDs. 

First, it applies to all MVPDs and 

network-affiliated broadcast stations 

(including non-commercial stations), 

rather than a subset of large-market 

entities.40 Second, broadcast stations 

and MVPDs with the obligation to 

provide 50 hours of description must 

continue to pass through any video 

description that they receive even after 

they have provided the 50 required 

hours of description.41 Broadcast 

stations and MVPDs that pass through 

video-described programming from a 

network can count that programming 

toward their 50 hour obligation, so long 

as it is either aired during prime time or 

is children’s programming, and has not 

been previously aired more than once 

since the adoption of our rules. We note 

that, historically, most video described 

programming has been provided by the 

broadcast and non-broadcast networks 

to the broadcast stations and MVPDs, 

which pass it through and make it 

available to consumers. 

15. In the 2000 Report and Order, the 

Commission required any station or 

MVPD with the ‘‘technical capability’’ to 

do so to pass through video 

description.42 We said that we would 

‘‘consider broadcast stations and MVPDs 

to have the technical capability 

necessary to support video description 

if they have virtually all necessary 

equipment and infrastructure to do so, 

except for items that would be of 

minimal cost.’’ 43 On reconsideration, 

the Commission adopted an exception 

to this requirement. When the 

secondary audio program (‘‘SAP’’) 

equipment and channel was being used 

to provide another program-related 

service, a station or MVPD did not have 

to stop providing that service in order 

to pass through the video description. 

This was based on the fact that the SAP 


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44 Id. at para. 15. 

45 47 CFR 79.3(c)(3), (4). 

46See MPEG Compression Standard ISO/IEC 

13818–1; Advanced Television Systems Committee 

A/53, A/52 Standards. 

47CVAA, Title II, sec. 202(a), 713(f)(1). 

48 Id. at 713(f)(2)(F). 

49 Id. at 713(f)(2)(B). 

50The Administrative Procedure Act requires that 

‘‘[t]he required publication or service of a 

substantive rule shall be made not less than 30 days 

before its effective date,’’ with certain exceptions. 5 

U.S.C. 553(d). 

51The Paperwork Reduction Act requires that any 

new regulation imposing a paperwork burden be 

reviewed and approved by OMB before it becomes 

effective. The Paperwork Reduction Act of 1995 

(‘‘PRA’’), Pub. L. No. 104–13, 109 Stat 163 (1995) 

(codified in Chapter 35 of title 44 U.S.C.). 

52The effective date of rules requiring OMB 

approval may be later. 

53The effective date of rules requiring OMB 

approval may be later. 

54The first quarter of measured compliance with 

any rules requiring OMB approval may be later. 

55See supra paras. 14–16. 

56CVAA, Title II, sec. 202(a), 713(f)(2)(B), (E). 

57 Id. at 713(f)(2)(E). 

58See, e.g., Merriam-Webster Dictionary available 

at http://www.merriam-webster.com/dictionary/live 

(‘‘broadcast directly at the time of production’’). 

channel could not be used to provide 

two services simultaneously.44 For the 

same reason, the Commission also 

adopted this ‘‘other program-related 

service’’ exception in subsections (c)(3) 

and (4) of the video description rules 

(subsequent airings of described 

programming).45 In the analog world, 

the SAP channel gave an entity the 

technical capability to pass through 

video description, but the inherent 

limitations of the technology meant that 

the entity could not provide video 

description simultaneously with 

another secondary audio track. Digital 

transmission, however, enables 

broadcasters and MVPDs to provide 

numerous audio channels for any given 

video stream. Unlike with SAP, 

therefore, digital technology allows 

simultaneous transmission of a variety 

of program-related secondary audio 

tracks. Digital video signals can have an 

enormous number of alternative audio 

tracks; although as a practical matter 

that number may be limited by the 

amount of bandwidth allocated to the 

programming stream, digital 

programming can technically include 

more than three audio tracks.46 Given 

this flexibility, is it necessary or 

appropriate to apply the ‘‘other programrelated service’’ exception to digital 

transmissions? 

16. Transmission of multiple audio 

tracks, even digitally, may require the 

use of additional equipment by 

broadcasters and MVPDs. We seek 

comment on what is needed for 

broadcast stations and MVPDs to have 

the ‘‘technical capability necessary’’ to 

pass through video description of digital 

programming, the extent to which 

affected entities already have any 

necessary equipment or have incentives 

to upgrade to this equipment for other 

purposes, and the cost of such 

equipment and any other necessary 

upgrades. Specifically, we seek 

comment on the costs of providing 

additional audio tracks once an entity is 

technically capable of providing a 

secondary digital audio track. What 

standards should we use to take these 

costs into account when determining 

whether a distributor has ‘‘the technical 

capability necessary to pass through the 

video description’’? 

D. Phase-In 

17. The CVAA requires us to reinstate 

the revised video description rules ‘‘on 

the day that is 1 year after the date of 

enactment,’’ 47 to provide ‘‘an 

appropriate phased schedule of 

deadlines for compliance,’’ 48 and to 

determine ‘‘the beginning calendar 

quarter for which compliance shall be 

calculated.’’ 49 We propose to adopt and 

publish modified rules before October 8, 

2011 (the date one year after enactment) 

that will be effective thirty days after 

publication,50 except for those 

requirements subject to Office of 

Management and Budget (OMB) 51

approval or that are phased-in as 

described below. We seek comment on 

this proposed timeline. 

18. We propose that on January 1, 

2012, 85 days after the reinstatement of 

the rules,52 affiliates of the top four 

networks located in the top 25 markets 

begin providing 50 hours per calendar 

quarter of video-described prime time 

and/or children’s programming. 

Similarly, we propose that on January 1, 

2012,53 MVPDs with 50,000 or more 

subscribers begin providing 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. 

We propose that, should any MVPD not 

serving at least 50,000 subscribers on 

the effective date of the rules begin to 

do so at a later date, it must provide 

video description on the top five nonbroadcast networks, in the same manner 

as MVPDs currently serving 50,000 or 

more subscribers, beginning no more 

than three months after reaching 50,000 

subscribers. Given that an MVPD should 

be aware in advance that it is 

approaching the 50,000 subscriber 

threshold, we believe three months is 

adequate time to ensure that it will be 

able to comply with this requirement. 

We further propose that compliance 

with the ‘‘50-described hours’’ 

requirement be calculated for these 

broadcasters and MVPDs beginning in 

the first calendar quarter of 2012.54 We 

also propose that broadcasters and 

MVPDs comply with the pass-through 

requirement 55 commencing January 1, 

2012. 

19. We seek comment on these phasein proposals. Will this compliance 

schedule provide sufficient time for 

covered entities to begin providing and 

passing through video described 

programming? Given the limited 

number of hours of video description 

required at this stage, we do not expect 

any significant delay in compliance as 

a result of a need to negotiate with 

rights holders. We seek comment on this 

conclusion. We note that although the 

CVAA deferred certain implementation 

issues to the Commission, to a great 

extent the entities that will be subject to 

our reinstated rules have been aware of 

the pending requirements since at least 

the enactment of the CVAA on October 

8, 2010. 

E. Exemptions 

20. The CVAA recognizes the unique 

difficulties of providing video 

description for programming that is 

produced live or shortly before it is first 

aired, i.e., programming that is ‘‘live or 

near-live.’’ As a result, the statute 

explicitly states that the regulations we 

adopt ‘‘shall not apply to live or nearlive programming,’’ and directs us to 

take this exemption into consideration 

when determining whether a nonbroadcast network is covered by the 

video description rules.56 The CVAA 

also gives the Commission authority to 

provide certain other categorical or 

individual exemptions, and we seek 

comment on whether and how such 

exemptions should be provided. 

1. Live or Near-Live Programming 

21. Section 713(f)(2)(E) of the 

Communications Act, as added by the 

CVAA, states that: ‘‘[t]he regulations 

shall not apply to live or near-live 

programming.’’ 57 We believe that ‘‘live’’ 

programming is, self-evidently, 

programming aired substantially 

simultaneously with its performance. 

This programming is often non-scripted, 

and would include, for example, many 

sporting events and news programs.58

We are, however, unaware of an 

accepted definition of ‘‘near-live 

programming.’’ Some television 

programs, even if not aired ‘‘live,’’ are 

filmed and produced just hours before 

they are first aired. In addition, we 

understand that some programs aired 

live on the East Coast are aired three 

hours later on the West Coast. By 


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59 Id. at 713(f)(2)(C). We note that Section 

713(f)(2)(C) is expressed in permissive terms (e.g., 

‘‘the regulations may permit’’), rather than the 

mandatory language that appears in other 

subsections of the legislation. Compare 713(f)(2)(A) 

(‘‘the regulations shall apply’’). Accordingly, under 

subsection (C), the Commission may permit 

exemptions based on the ‘‘economically 

burdensome’’ standard, but is not required to do so. 

60Closed Captioning and Video Description of 

Video Programming, et al, MM Docket No. 95–176, 

Report and Order, 13 FCC Rcd 3272, para. 143 

(1997); but see para. 168 (noting the paucity of 

useful legislative history). 

61 47 CFR 79.1(f)(2). See also 47 U.S.C. 613(e) and 

supra note 68. 

62For the purposes of this proceeding, we 

consider Internet Protocol delivery only to the 

extent it is used by an MVPD. The Act directs the 

Commission to initiate a future inquiry about video 

description in video programming distributed via 

the Internet. CVAA, Title II, sec. 202(a), 713(f)(3)(B). 

63 Id. at 713(f)(2)(D). 

including ‘‘near-live’’ programming 

within the exemption, Congress 

apparently wished to exempt programs 

produced such a short time before airing 

that there is not sufficient time for the 

creation of video descriptions. We 

therefore seek comment on a definition 

of ‘‘near-live programming’’ that will 

ensure that programming is not covered 

by the reinstated rules unless there is 

ample time to create and insert video 

descriptions in the programming before 

it is aired. We propose that 

programming performed and recorded 

less than 24 hours prior to the time it 

is first aired be deemed ‘‘near-live,’’ and 

seek comment on this proposal. We seek 

comment on how long it takes to 

produce video descriptions, and request 

that those who prefer a shorter or longer 

window for near-live programming 

support their alternative proposals with 

information regarding the length of time 

needed to produce video descriptions. 

How should our rule address the 

situation where a program is 

substantially completed before the 

beginning of the ‘‘near-live’’ window, 

but edited during that window in ways 

which do not change the basic content? 

How commonly does this occur in the 

production of major network prime time 

programming? We note that we may 

modify our definition of ‘‘near-live 

programming’’ in the future as 

broadcasters, MVPDs, and programming 

producers gain experience with 

integrating video description into their 

production and transmission cycle and 

it becomes feasible to incorporate video 

descriptions closer to the time of 

transmission of the programming. 

2. Other Exemptions 

22. Section 713(f)(2)(C) of the 

Communications Act, as added by the 

CVAA, states that 

[t]he regulations may permit a provider of 

video programming or a program owner to 

petition the Commission for an exemption 

from the requirements of [the video 

description provisions] upon a showing that 

the requirements contained in this section 

be[sic] economically burdensome.59

We propose to reinstate the previously 

adopted process for requesting an 

exemption from our rules. We also 

propose to replace the term ‘‘undue 

burden’’ in the rules with ‘‘economically 

burdensome,’’ as described in the 

CVAA, and propose that we use the 

same factors as applied to the undue 

burden standard. In the closed 

captioning context, the Commission has 

previously found the standards to be 

quite ‘‘closely related.’’ 60 This will allow 

the video description rules to mirror the 

‘‘economically burdensome’’ standard 

currently used in the closed captioning 

context. In the CVAA, Congress revised 

Section 713(d)(3) of the 

Communications Act, dealing with 

closed captioning exemptions, to 

remove the reference to the ‘‘undue 

burden’’ standard and replace it with a 

reference to the ‘‘economically 

burdensome’’ standard. CVAA, Title II, 

sec. 202(c). The Senate Commerce 

Committee report, in discussing this 

provision of the CVAA, states that the 

Committee ‘‘encourages the 

Commission, in its determination of 

‘economically burdensome’ to use the 

factors listed in section 713(e).’’ S. Rep. 

111–386, at 14 (2010). Section 713(e) of 

the Communications Act, which was 

not amended by the CVAA, lists the 

factors to be considered when 

determining if the closed captioning 

rules create an ‘‘undue burden’’ on a 

party (these factors are repeated in the 

Commission’s rules at 47 CFR 79.1(f)(2); 

see paragraph 23, below). Thus, the 

Committee appears to consider the two 

standards to be interchangeable, at least 

in the closed captioning context. We 

seek comment on this proposal. 

23. The Commission previously 

determined in the closed captioning 

context that compliance would 

constitute an ‘‘undue burden’’ for an 

entity, therefore justifying an individual 

exemption from the rule, upon a 

showing that the captioning 

requirements would result in 

‘‘significant difficulty or expense’’ for 

the petitioner. Commission rules 

explain that such exemptions may be 

granted for ‘‘a channel of video 

programming, a category or type of 

video programming, an individual video 

service, a specific video program or a 

video programming provider.’’ 47 CFR 

79.1(f)(1). The factors to be taken into 

consideration when making an 

exemption determination under this 

section are: (1) The nature and cost of 

the closed captions for the 

programming; (2) the impact on the 

operation of the provider or program 

owner; (3) the financial resources of the 

provider or program owner; and (4) the 

type of operations of the provider or 

program owner.61 What are the 

circumstances under which the video 

description rules might be, or might 

become, ‘‘economically burdensome’’ for 

covered entities? What are the necessary 

costs for broadcasters, MVPDs, and the 

producers of programming to begin 

providing 50 hours per calendar quarter 

of video described programming? How 

are these costs different in digital than 

in analog transmission? Specifically, are 

there any considerations unique to 

particular MVPD delivery technologies, 

such as DBS or IPTV, that might justify 

a partial exemption or delay? 62

24. What are the anticipated ongoing 

costs, per program or hour described? 

What, on average, is the total cost to 

produce a single program or hour of 

prime time programming on the major 

networks covered by the requirement to 

provide video description? Will this 

requirement add any ongoing costs 

other than the description itself? 

Comments from both the purchasers and 

producers of video description would be 

of great value in understanding these 

costs. 

25. For those entities subject to the 

requirement to provide (and not merely 

pass through) video description, we find 

it unlikely that the modest requirement 

of 50 hours per quarter will be 

economically burdensome; as discussed 

above, in the first phase this 

requirement only applies to the top 

broadcast network affiliates in the 

biggest markets, MVPDs serving more 

than 50,000 subscribers, and the most 

popular nonbroadcast networks. Are 

there any particular concerns regarding 

the economic burden of pass-through 

obligations, which will apply to a much 

larger number of entities than the 

requirement to provide video 

description? We seek comment on these 

issues. 

26. Section 713(f)(2)(D) of the 

Communications Act, as added by the 

CVAA, provides that 

[t]he Commission may exempt from the 

regulations * * * a service, class of services, 

program, class of programs, equipment, or 

class of equipment for which the 

Commission has determined that the 

application of such regulations would be 

economically burdensome for the provider of 

such service, program, or equipment.63

We are unaware of a need to exempt any 

such categories at this time, beyond the 


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64 Id. at 713(f)(3), (4)(C)(iii). 

65 Id. at 713(f)(2)(A). See also id. at 713(h)(2) 

(‘‘The term ‘video programming’ means 

programming by, or generally considered 

comparable to programming provided by a 

television broadcast station, but not including 

consumer-generated media (as defined in section 

3).’’); see also id. at Title I, sec. 101, § 3(54) (‘‘The 

term ‘consumer generated media’ means content 

created and made available by consumers to online 

Web sites and services on the Internet, including 

video, audio, and multimedia content.’’). 

66 2000 Report and Order, supra note 2, at para. 

7; Recon, supra note 2, at para. 18. 

67 Id. 

68Press Release, Federal Communications 

Commission, Full-Power TV Broadcasters Go AllDigital (June 13, 2009). 

69See supra para. 4. 

70 47 CFR 73.682(d). 

71ATSC Digital Television Standard, Document 

A/53 Part 5: 2010 (July 6, 2010). 

72As the Commission explained in the 2000 

Report and Order, Prime time programming is the 

most watched programming, and so programming 

provided during this time will reach more people 

than programming provided at any other time. In 

addition, as we noted in the Notice, the several 

thousand dollars per hour cost to describe 

programming is a very small portion of the 

production budget for the typical prime time 

program. At the same time, as we noted in the 

Notice, programming with video description may 

provide a benefit not only to children who are 

visually disabled, but also to those who are learning 

Continued 

exemption for ‘‘live or near-live’’ 

programming discussed above. The 

Commission will be actively studying 

the impact of our video description 

rules over the next several years, as part 

of our continuing Congressional 

reporting obligations.64 As a result, we 

anticipate that there will be ample 

opportunity to resolve any problems 

that impact an entire class of ‘‘service, 

program, or equipment’’ in future Orders 

in this proceeding. We seek comment on 

our proposal not to adopt new 

categorical exemptions, and on whether 

there are any classes of ‘‘service, 

program, or equipment’’ that should be 

so exempted. 

F. Digital Format 

27. Section 713(f)(2)(A) of the 

Communications Act, as added by the 

CVAA, states that ‘‘[t]he regulations 

shall apply to video programming, as 

defined in subsection (h), insofar as 

such programming is transmitted for 

display on television in digital 

format.’’ 65 When the video description 

rules were originally adopted in 2000, 

digital television was in its relative 

infancy, and those rules explicitly did 

not extend to digital transmission of 

programming.66 At the time, the 

Commission indicated that it expected 

to extend the rules to cover digital 

broadcasting ‘‘after there has been 

further experience with both digital 

broadcasting and video description.’’ 67

On June 12, 2009 full-power television 

broadcasters nationwide completed 

their transition to digital-only 

broadcasting,68 and a number of digital 

broadcasters and digitally transmitted 

nonbroadcast networks have been 

providing video description to viewers 

for even longer.69 We propose, 

therefore, to extend the reinstated rules 

to cover all video programming, 

including that transmitted for display 

on television in digital format. We seek 

comment on this proposal. 

28. A separate issue, exclusive to 

digital broadcasting, is the ability of 

digital television broadcasters to 

transmit multiple streams of 

programming on a single channel. We 

propose to consider only programming 

on the primary programming stream 

when measuring a broadcast station’s 

compliance with the ‘‘50 described 

hours’’ requirement, unless the station 

carries a top-four national network on 

another stream. How should we apply 

the rules when a station is affiliated 

with more than one network? In 

situations in which a broadcast station 

carries another top-four network’s 

programming on a secondary stream, we 

propose to apply the rules in the same 

manner as if the network programming 

were carried by a separate station. We 

seek comment on this proposal. We also 

propose to impose the pass-through 

requirement, discussed above, on all 

network-provided programming carried 

on all of an affiliated station’s 

programming streams. This approach 

would ensure the availability of 

described programming to the widest 

possible audience. In particular, this 

requirement would ensure that those 

who subscribe to an MVPD service that 

only carries the broadcast station’s 

primary stream would have access to 

described programming. We seek 

comment on these proposals. 

G. Other Issues 

29. Quality Standards. We seek 

comment on whether we should adopt 

quality standards for video description. 

Although some quality issues might be 

subjective (dealing with the content of 

the narration) and therefore difficult to 

enforce, others might be addressed in an 

objective standard. For example, the 

Commission could adopt a standard 

requiring that video description not 

conflict with dialogue or other 

important audio in the program. 

Additionally, the Commission could 

require video description to be 

synchronous with the action it is 

describing. Is it necessary for the 

Commission to adopt these or other 

standards? If so, what standards would 

be necessary or appropriate? Does the 

Commission have authority to adopt 

such standards and could we do so 

consistent with the First Amendment? 

Commenters who support adoption of 

such quality standards should also 

propose either standards or existing 

sources that could serve as the basis for 

standards. Whether or not the 

Commission adopts mandatory 

standards, are there existing sources of 

such standards? Should the industry 

develop a list of best practices? We 

solicit input on what some of these 

practices might be. 

30. Program Selection. For 

informational purposes, we also seek 

comment on how programs are likely to 

be chosen for description. Do entities 

plan to determine which shows to 

describe based on popularity or input 

from community advisory groups, or the 

degree to which a particular program 

would be enhanced by video 

description, or do they anticipate taking 

a different approach to choosing 

programs for video description? Do the 

costs or benefits of description change 

with different types or formats of 

program? How do entities intend to 

publicize the availability of video 

description? Only a subset of 

programming will contain video 

description. Therefore, should the 

Commission require that the availability 

of video description on certain programs 

be publicized in a certain manner, and 

if so, what is the best way to do so and 

does the Commission have authority to 

require the covered entities to publicize 

this information? We seek comment on 

these questions. 

31. Updated A/53 Standard. The 

Commission’s Rules incorporate the 

ATSC digital broadcast standard by 

reference, but have not been updated to 

reflect the 2010 revisions to the A/53 

standard.70 The 2007 standard currently 

in effect under our rules includes two 

options for transmission of the Visually 

Impaired (‘‘VI’’) audio service that would 

typically carry video descriptions. The 

first option is compatible with all DTV 

receivers. The second option requires 

support in DTV receivers that is rarely 

implemented. In the latest version of A/ 

53 Part 5 adopted by ATSC, the second 

option has been eliminated.71 We 

propose to update our rules to 

incorporate A/53 Part 5: 2010 in order 

to ensure that video description can be 

received by all DTV receivers. We seek 

comment on this proposal. 

32. Children’s Programming. Under 

the proposed rules, broadcast stations 

and MVPDs required to provide 50 

hours of video described programming 

per quarter may do so during prime time 

or children’s programming.72 The 


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disabled. Programming with video description has 

both audio description and visual appeal, and so 

has the potential to capture the attention of learning 

disabled children and enhance their information 

processing skills. Requiring broadcast stations and 

MVPDs to provide children’s or prime time 

programming with video description thus ensures 

that the programming reaches the greatest portion 

of the audience it is intended to benefit the most. 

Permitting broadcast stations and MVPDs to select 

between the two provides them flexibility without 

compromising that goal. 

2000 Report and Order, supra note 2, at para. 36 

(internal citations omitted). 

73Supra para. 6; see also Appendix A. 

74 47 CFR 73.670, note 2. 

75 47 CFR 73.671(c). 

76CVAA, Title II, sec. 202(a), 713(f)(2)(G). 

77 47 CFR 79.3(a). At a minimum, this will 

include a definition of ‘‘Live or Near-live 

Programming.’’ 

78 47 CFR 79.3(d)(2). 

79The Recon changed the scope of the undue 

burden exemption so that it applied to ‘‘providers’’ 

rather than just to ‘‘distributors,’’ but while 47 CFR 

79.3(d)(1) was updated to reflect this change, 47 

CFR 79.3(d)(2) was not. 

80 47 CFR 79.3(e). 

81See 47 CFR 1.1206(b); see also 47 CFR 1.1202, 

1.1203. 

82See 47 CFR 1.1206(b)(2). 

proposed rules define ‘‘prime time’’ for 

video description purposes.73 The 

Commission’s rules define ‘‘children’s 

programming’’ differently in different 

contexts. For instance, we impose limits 

on commercial advertising in 

programming ‘‘produced and broadcast 

primarily for an audience of children 12 

years old and younger.’’ 74 Our 

processing guidelines regarding 

‘‘educational and informational’’ 

programming for children, on the other 

hand, apply to programming that 

‘‘furthers the educational and 

informational needs of children 16 years 

of age and under.’’ 75 Because older 

children with vision or other 

impairments can benefit from video 

description, we propose to define 

children’s programming in this context 

as programming directed at children 16 

years of age and under. We seek 

comment on this proposal. 

33. Subsection G. Section 713(f)(2)(G) 

of the Communications Act, as added by 

the CVAA, says that 

[t]he Commission shall consider extending 

the exemptions and limitations in the 

reinstated regulations for technical capability 

reasons to all providers and owners of video 

programming.76

We propose not to take any action under 

this provision. We seek comment on 

this proposal. 

34. Non-Substantive Revisions. In 

addition to the proposals above, we 

intend to make necessary nonsubstantive revisions to the rules. These 

include revisions and additions to the 

Definitions section of the prior rules,77

changes to the second paragraph of the 

Procedures for Exemptions section 78 to 

reflect that they apply to video 

programming ‘‘providers’’ rather than 

just video programming ‘‘distributors,’’ 79

updates to the Complaint Procedures 80

to reflect the valid current address and 

name of the Consumer and 

Governmental Affairs Bureau, and nonsubstantive wording changes intended 

to make the meaning of the rules clearer. 

We seek comment on any other 

necessary technical revisions to the 

reinstated rules. 

35. Other Comments Requested. 

Finally, we invite comment on any 

other issues relating to the reinstatement 

and modification of our Video 

Description rules. 

IV. Procedural Matters 

A. Initial Paperwork Reduction Act of 

1995 Analysis 

36. This document contains proposed 

new information collection 

requirements. The Commission, as part 

of its continuing effort to reduce 

paperwork burdens, invites the general 

public and the Office of Management 

and Budget (OMB) to comment on the 

information collection requirements 

contained in this document, as required 

by the Paperwork Reduction Act of 

1995. In addition, pursuant to the Small 

Business Paperwork Relief Act of 2002, 

we seek specific comment on how we 

might ‘‘further reduce the information 

collection burden for small business 

concerns with fewer than 25 

employees.’’ 

B. Ex Parte Rules 

37. Permit-But-Disclose. This 

proceeding will be treated as a ‘‘permitbut-disclose’’ proceeding subject to the 

‘‘permit-but-disclose’’ requirements 

under section 1.1206(b) of the 

Commission’s rules.81 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 twosentence description of the views and 

arguments presented is generally 

required.82 Additional rules pertaining 

to oral and written presentations are set 

forth in Section 1.1206(b). 

C. Filing Requirements 

38. Pursuant to sections 1.415 and 

1.419 of the Commission’s rules, 47 CFR 

1.415, 1.419, interested parties may file 

comments and reply comments on or 

before the dates indicated on the first 

page of this document. Comments may 

be filed using: (1) The Commission’s 

Electronic Comment Filing System 

(ECFS), (2) the Federal Government’s 

eRulemaking Portal, or (3) by filing 

paper copies. See Electronic Filing of 

Documents in Rulemaking Proceedings, 

63 FR 24121 (1998). 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http:// 

fjallfoss.fcc.gov/ecfs2/ or the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. If more than 

one docket or rulemaking number 

appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. 

• Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

• Effective December 28, 2009, all 

hand-delivered or messenger-delivered 

paper filings for the Commission’s 

Secretary must be delivered to FCC 

Headquarters at 445 12th St., SW., Room 

TW–A325, Washington, DC 20554. All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. The filing hours 

are 

8 a.m. to 7 p.m. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

• U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street, SW., 

Washington, DC 20554. 

People With Disabilities: To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202– 

418–0432 (TTY). 

39. Availability of Documents. 

Comments, reply comments, and ex 

parte submissions will be available for 

public inspection during regular 

business hours in the FCC Reference 

Center, Federal Communications 

Commission, 445 12th Street, SW., 


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83 See 5 U.S.C. 603(a). In addition, the Notice of 

Proposed Rulemaking and the IRFA (or summaries 

thereof) will be published in the Federal Register. 

84See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601– 

612, has been amended by the Small Business 

Regulatory Enforcement Fairness Act of 1996 

(‘‘SBREFA’’), Public Law 104–121, Title II, 110 Stat. 

857 (1996). 

85See 5 U.S.C. 603(a). 

86See id. 

87 Motion Picture Ass’n of America, Inc. v. 

Federal Communications Comm., 309 F.3d 796 

(D.C. Cir. 2002). 

88Twenty-First Century Communications and 

Video Accessibility Act of 2010, Public Law 111– 

260, 124 Stat. 2751 (2010) (‘‘CVAA’’) at Title II, sec. 

202(a), 713(f)(1–2). 

89 47 CFR 79.3(b). 

90 Id. at § 79.3(b)(1), (3). 

91 Id. at § 79.3(b)(2), (4). 

92 5 U.S.C. 603(b)(3). 

93 5 U.S.C. 601(b). 

94 5 U.S.C. 601(3) (incorporating by reference the 

definition of ‘‘small-business concern’’ in the Small 

Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 

601(3), the statutory definition of a small business 

applies ‘‘unless an agency, after consultation with 

the Office of Advocacy of the Small Business 

Administration and after opportunity for public 

comment, establishes one or more definitions of 

such term which are appropriate to the activities of 

the agency and publishes such definition(s) in the 

Federal Register.’’ 

95 15 U.S.C. 632. 

96 See 13 CFR 121.201, NAICS Code 515120 

(2007). 

97 Id. This category description continues, ‘‘These 

establishments operate television broadcasting 

studios and facilities for the programming and 

transmission of programs to the public. These 

establishments also produce or transmit visual 

programming to affiliated broadcast television 

stations, which in turn broadcast the programs to 

Continued 

CY–A257, Washington, DC 20554. 

These documents will also be available 

via ECFS. Documents will be available 

electronically in ASCII, Microsoft Word, 

and/or Adobe Acrobat. 

40. Accessibility Information. To 

request information in accessible 

formats (computer diskettes, large print, 

audio recording, and Braille), send an 

e-mail to fcc504@fcc.gov or call the 

FCC’s Consumer and Governmental 

Affairs Bureau at (202) 418–0530 

(voice), (202) 418–0432 (TTY). This 

document can also be downloaded in 

Word and Portable Document Format 

(PDF) at: http://www.fcc.gov. 

41. Additional Information. For 

additional information on this 

proceeding, contact John Norton, 

John.Norton@fcc.gov, or Lyle Elder, 

Lyle.Elder@fcc.gov, of the Media 

Bureau, Policy Division, (202) 418– 

2120. 

D. Initial Regulatory Flexibility Analysis 

42. With respect to the NPRM, an 

Initial Regulatory Flexibility Analysis 

(‘‘IRFA’’), see generally 5 U.S.C. 603, 

follows. Comments must be identified 

as responses to the IRFA and must be 

filed by the deadlines for comments on 

the NPRM specified supra. The 

Commission will send a copy of the 

NPRM, including the IRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration.83

Initial Regulatory Flexibility Analysis 

43. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(‘‘RFA’’) 84 the Commission has prepared 

this Initial Regulatory Flexibility 

Analysis (‘‘IRFA’’) of the possible 

economic impact on a substantial 

number of small entities by the policies 

and rules proposed in this Notice of 

Proposed Rulemaking (‘‘NPRM’’). 

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 NPRM as indicated on 

its first page. The Commission will send 

a copy of the NPRM, including this 

IRFA, to the Chief Counsel for Advocacy 

of the Small Business Administration 

(‘‘SBA’’).85 In addition, the NPRM and 

IRFA (or summaries thereof) will be 

published in the Federal Register.86

E. Need for, and Objectives of, the 

Proposals 

44. This NPRM proposes and seeks 

comment on reinstatement of the 

Commission’s video description rules, 

which make television programming 

more accessible to persons with visual 

disabilities. The United States Court of 

Appeals for the District of Columbia 

Circuit vacated the rules due to 

insufficient authority soon after initial 

adoption.87 With its enactment, the 

CVAA now directs the Commission to 

reinstate the rules with certain 

modifications.88 The proposed rules 

require large-market broadcast affiliates 

of the top four national networks and 

multichannel video programming 

distributors (‘‘MVPDs’’) with more than 

50,000 subscribers to provide video 

description.89 Covered broadcasters are 

required to provide 50 hours of videodescribed prime time or children’s 

programming, per quarter, and covered 

MVPDs are required to provide the same 

number of hours on each of the five 

most popular nonbroadcast networks.90

This requirement to provide description 

will effect few, if any, small entities. 

The rules also require, to the extent 

technically possible, that all networkaffiliated broadcasters (commercial or 

non-commercial) and all MVPDs pass 

through any video description provided 

with programming they carried.91 This 

pass-through requirement will effect any 

small MVPDs and network-affiliated 

broadcasters. As required under the 

CVAA, we propose to reinstate these 

rules on October 8, 2011, and to require 

broadcast stations and MVPDs subject to 

our rules to begin full compliance in the 

first quarter of 2012. We also propose to 

make certain modifications to the rules, 

as directed by the CVAA. Notably, these 

modifications include the exemption of 

‘‘live or near-live’’ programming from 

consideration under the rules. We seek 

comment on the definition of ‘‘nearlive,’’ propose that programs produced 

within 24 hours of their first airing be 

considered ‘‘near-live’’ in the context of 

video description, and also seek 

comment on other possible grounds for 

exemption from the rules. 

F. Legal Basis 

45. The authority for the action 

proposed in this rulemaking is 

contained in the Twenty-First Century 

Communications and Video 

Accessibility Act of 2010, Public Law 

111–260, 124 Stat. 2751, and Sections 

1, 2(a), 4(i), 303, 307, 309, 310, and 713 

of the Communications Act of 1934, as 

amended, 47 U.S.C. 151, 152, 154(i), 

303, 307, 309, 310, and 613. 

G. Description and Estimate of the 

Number of Small Entities to Which the 

Proposals Will Apply 

46. The RFA directs the Commission 

to provide a description of and, where 

feasible, an estimate of the number of 

small entities that will be affected by the 

proposed rules if adopted.92 The RFA 

generally defines the term ‘‘small entity’’ 

as having the same meaning as the terms 

‘‘small business,’’ ‘‘small organization,’’ 

and ‘‘small governmental 

jurisdiction.’’ 93 In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’ 

under the Small Business Act.94 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 

Small Business Administration (SBA).95

The rule changes proposed herein will 

directly affect small television broadcast 

stations and small multichannel video 

program distributors (MVPDs), which 

include cable operators and satellite 

video providers. A description of these 

small entities, as well as an estimate of 

the number of such small entities, is 

provided below. 

47. Television Broadcasting. The SBA 

defines a television broadcasting station 

as a small business if such station has 

no more than $14.0 million in annual 

receipts.96 Business concerns included 

in this industry are those ‘‘primarily 

engaged in broadcasting images together 

with sound.’’ 97 The Commission has 


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the public on a predetermined schedule. 

Programming may originate in their own studios, 

from an affiliated network, or from external 

sources.’’ Separate census categories pertain to 

businesses primarily engaged in producing 

programming. See Motion Picture and Video 

Production, NAICS code 512110; Motion Picture 

and Video Distribution, NAICS Code 512120; 

Teleproduction and Other Post-Production 

Services, NAICS Code 512191; and Other Motion 

Picture and Video Industries, NAICS Code 512199. 

98See News Release, ‘‘Broadcast Station Totals as 

of December 31, 2009,’’ 2010 WL 676084 (F.C.C.) 

(dated Feb. 26, 2010) (‘‘Broadcast Station Totals’’); 

also available at http://hraunfoss.fcc.gov/edocs

_public/attachmatch/DOC-296538A1.pdf. 

99We recognize that this total differs slightly from 

that contained in Broadcast Station Totals, supra, 

note 15; however, we are using BIA’s estimate for 

purposes of this revenue comparison. 

100See Broadcast Station Totals, supra, note 15. 

101 ‘‘[Business concerns] are affiliates of each 

other when one concern controls or has the power 

to control the other or a third party or parties 

controls or has to power to control both.’’ 13 CFR 

121.103(a)(1). 

102See 13 CFR 121.201, NAICS code 517410. 

103 Id. 

104See 13 CFR 121.201, NAICS code 517919. 

105U.S. Census Bureau, 2007 NAICS Definitions, 

‘‘517410 Satellite Telecommunications’’. 

106See http://factfinder.census.gov/servlet/

IBQTable?_bm=y&-geo_id=&-_skip=900&- 

ds_name=EC0751SSSZ4&-_lang=en. 

107 Id. 

108U.S. Census Bureau, 2007 NAICS Definitions, 

‘‘517919 Other Telecommunications’’, http:// 

www.census.gov/naics/2007/def/ND517919.HTM. 

109See 13 CFR 121.201, NAICS code 517919. 

110U.S. Census Bureau, 2007 Economic Census, 

Subject Series: Information, Table 5, ‘‘Establishment 

and Firm Size: Employment Size of Firms for the 

United States: 2007 NAICS Code 517919’’ (issued 

Nov. 2010). 

111See 13 CFR 121.201, NAICS code 517110 

(2007). The 2007 NAICS definition of the category 

of ‘‘Wired Telecommunications Carriers’’ is in 

paragraph 7, above. 

112 13 CFR 121.201, NAICS code 517110 (2007). 

113See http://www.factfinder.census.gov/servlet/

IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1

&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en. 

114See Annual Assessment of the Status of 

Competition in the Market for the Delivery of Video 

estimated the number of licensed 

commercial television stations to be 

1,392.98 According to Commission staff 

review of the BIA/Kelsey, MAPro 

Television Database (‘‘BIA’’) as of April 

7, 2010, about 1,015 of an estimated 

1,380 commercial television stations 99

(or about 74 percent) have revenues of 

$14 million or less and, thus, qualify as 

small entities under the SBA definition. 

The Commission has estimated the 

number of licensed noncommercial 

educational (NCE) television stations to 

be 390.100 We note, however, that, in 

assessing whether a business concern 

qualifies as small under the above 

definition, business (control) 

affiliations 101 must be included. Our 

estimate, therefore, likely overstates the 

number of small entities that might be 

affected by our action, because the 

revenue figure on which it is based does 

not include or aggregate revenues from 

affiliated companies. The Commission 

does not compile and otherwise does 

not have access to information on the 

revenue of NCE stations that would 

permit it to determine how many such 

stations would qualify as small entities. 

48. In addition, an element of the 

definition of ‘‘small business’’ is that the 

entity not be dominant in its field of 

operation. We are unable at this time to 

define or quantify the criteria that 

would establish whether a specific 

television station is dominant in its field 

of operation. Accordingly, the estimate 

of small businesses to which rules may 

apply do not exclude any television 

station from the definition of a small 

business on this basis and are therefore 

over-inclusive to that extent. Also, as 

noted, an additional element of the 

definition of ‘‘small business’’ is that the 

entity must be independently owned 

and operated. We note that it is difficult 

at times to assess these criteria in the 

context of media entities and our 

estimates of small businesses to which 

they apply may be over-inclusive to this 

extent. 

49. Satellite Telecommunications. 

Since 2007, the SBA has recognized 

satellite firms within this revised 

category, with a small business size 

standard of $15 million.102 The most 

current Census Bureau data are from the 

economic census of 2007, and we will 

use those figures to gauge the 

prevalence of small businesses in this 

category. Those size standards are for 

the two census categories of ‘‘Satellite 

Telecommunications’’ and ‘‘Other 

Telecommunications.’’ Under the 

‘‘Satellite Telecommunications’’ 

category, a business is considered small 

if it had $15 million or less in average 

annual receipts.103 Under the ‘‘Other 

Telecommunications’’ category, a 

business is considered small if it had 

$25 million or less in average annual 

receipts.104

50. The first category of Satellite 

Telecommunications ‘‘comprises 

establishments primarily engaged in 

providing point-to-point 

telecommunications services to other 

establishments in the 

telecommunications and broadcasting 

industries by forwarding and receiving 

communications signals via a system of 

satellites or reselling satellite 

telecommunications.’’ 105 For this 

category, Census Bureau data for 2007 

show that there were a total of 512 firms 

that operated for the entire year.106 Of 

this total, 464 firms had annual receipts 

of under $10 million, and 18 firms had 

receipts of $10 million to 

$24,999,999.107 Consequently, we 

estimate that the majority of Satellite 

Telecommunications firms are small 

entities that might be affected by rules 

adopted pursuant to the NPRM. 

51. The second category of Other 

Telecommunications consists of firms 

‘‘primarily engaged in providing 

specialized telecommunications 

services, such as satellite tracking, 

communications telemetry, and radar 

station operation. This industry also 

includes establishments primarily 

engaged in providing satellite terminal 

stations and associated facilities 

connected with one or more terrestrial 

systems and capable of transmitting 

telecommunications to, and receiving 

telecommunications from, satellite 

systems. Establishments providing 

Internet services or voice over Internet 

protocol (VoIP) services via clientsupplied telecommunications 

connections are also included in this 

industry.’’ 108 For this category, Census 

Bureau data for 2007 show that there 

were a total of 2,383 firms that operated 

for the entire year.109 Of this total, 2,346 

firms had annual receipts of under $25 

million.110 Consequently, we estimate 

that the majority of Other 

Telecommunications firms are small 

entities that might be affected by our 

action. 

52. Direct Broadcast Satellite (‘‘DBS’’) 

Service. DBS service is a nationally 

distributed subscription service that 

delivers video and audio programming 

via satellite to a small parabolic ‘‘dish’’ 

antenna at the subscriber’s location. 

DBS, by exception, is now included in 

the SBA’s broad economic census 

category, ‘‘Wired Telecommunications 

Carriers,’’ 111 which was developed for 

small wireline firms. Under this 

category, the SBA deems a wireline 

business to be small if it has 1,500 or 

fewer employees.112 To gauge small 

business prevalence for the DBS service, 

the Commission relies on data currently 

available from the U.S. Census for the 

year 2007. According to that source, 

there were 3,188 firms that in 2007 were 

Wired Telecommunications Carriers. Of 

these, 3,144 operated with less than 

1,000 employees, and 44 operated with 

more than 1,000 employees. However, 

as to the latter 44 there is no data 

available that shows how many 

operated with more than 1,500 

employees. Based on this data, the 

majority of these firms can be 

considered small.113 Currently, only two 

entities provide DBS service, which 

requires a great investment of capital for 

operation: DIRECTV and EchoStar 

Communications Corporation 

(‘‘EchoStar’’) (marketed as the DISH 

Network).114 Each currently offers 


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Programming, Thirteenth Annual Report,, 24 FCC 

Rcd 542, 580, para. 74 (2009) (‘‘13th Annual 

Report’’). We note that, in 2007, EchoStar purchased 

the licenses of Dominion Video Satellite, Inc. 

(‘‘Dominion’’) (marketed as Sky Angel). See Public 

Notice, ‘‘Policy Branch Information; Actions 

Taken,’’ Report No. SAT–00474, 22 FCC Rcd 17776 

(IB 2007). 

115As of June 2006, DIRECTV is the largest DBS 

operator and the second largest MVPD, serving an 

estimated 16.20% of MVPD subscribers nationwide. 

See 13th Annual Report, 24 FCC Rcd at 687, Table 

B–3. 

116As of June 2006, DISH Network is the second 

largest DBS operator and the third largest MVPD, 

serving an estimated 13.01% of MVPD subscribers 

nationwide. Id. As of June 2006, Dominion served 

fewer than 500,000 subscribers, which may now be 

receiving ‘‘Sky Angel’’ service from DISH Network. 

See id. at 581, para. 76. 

117See 47 CFR 101 et seq. (formerly, Part 21 of 

the Commission’s Rules) for common carrier fixed 

microwave services (except Multipoint Distribution 

Service). 

118Persons eligible under parts 80 and 90 of the 

Commission’s Rules can use Private OperationalFixed Microwave services. See 47 CFR parts 80 and 

90. Stations in this service are called operationalfixed to distinguish them from common carrier and 

public fixed stations. Only the licensee may use the 

operational-fixed station, and only for 

communications related to the licensee’s 

commercial, industrial, or safety operations. 

119Auxiliary Microwave Service is governed by 

Part 74 of Title 47 of the Commission’s Rules. See 

47 CFR part 74. This service is available to licensees 

of broadcast stations and to broadcast and cable 

network entities. Broadcast auxiliary microwave 

stations are used for relaying broadcast television 

signals from the studio to the transmitter, or 

between two points such as a main studio and an 

auxiliary studio. The service also includes mobile 

television pickups, which relay signals from a 

remote location back to the studio. 

120See 13 CFR 121.201, NAICS code 517210. 

121U.S. Census Bureau, 2007 NAICS Definitions, 

‘‘517110 Wired Telecommunications Carriers’’ 

(partial definition), http://www.census.gov/naics/ 

2007/def/ND517110.HTM#N517110. 

122 13 CFR 121.201, NAICS code 517110 (2007). 

123U.S. Census Bureau, 2007 Economic Census, 

Subject Series: Information, Table 5, Employment 

Size of Firms for the United States: 2007, NAICS 

code 5171102 (issued Nov. 2010). 

124See id. 

125See 47 CFR 76.901(e). The Commission 

determined that this size standard equates 

approximately to a size standard of $100 million or 

less in annual revenues. See Implementation of 

Sections of the 1992 Cable Television Consumer 

Protection and Competition Act: Rate Regulation, 

MM Docket Nos. 92–266, 93–215, Sixth Report and 

Order and Eleventh Order on Reconsideration, 10 

FCC Rcd 7393, 7408 para. 28 (1995). 

126These data are derived from R.R. Bowker, 

Broadcasting & Cable Yearbook 2006, ‘‘Top 25 

Cable/Satellite Operators,’’ pages A–8 & C–2 (data 

current as of June 30, 2005); Warren 

Communications News, Television & Cable 

Factbook 2006, ‘‘Ownership of Cable Systems in the 

United States,’’ pages D–1805 to D–1857. 

127See 47 CFR 76.901(c). 

128Warren Communications News, Television & 

Cable Factbook 2006, ‘‘U.S. Cable Systems by 

Subscriber Size,’’ page F–2 (data current as of Oct. 

2005). The data do not include 718 systems for 

which classifying data were not available. 

129 47 U.S.C. 543(m)(2); see also 47 CFR 76.901(f) 

& nn.1–3. 

130 47 CFR 76.901(f); see FCC Announces New 

Subscriber Count for the Definition of Small Cable 

Operator, Public Notice, 16 FCC Rcd 2225 (Cable 

Services Bureau 2001). 

131These data are derived from R.R. Bowker, 

Broadcasting & Cable Yearbook 2006, ‘‘Top 25 

Cable/Satellite Operators,’’ pages A–8 & C–2 (data 

current as of June 30, 2005); Warren 

Communications News, Television & Cable 

Factbook 2006, ‘‘Ownership of Cable Systems in the 

United States,’’ pages D–1805 to D–1857. 

132The Commission does receive such 

information on a case-by-case basis if a cable 

operator appeals a local franchise authority’s 

Continued 

subscription services. DIRECTV 115 and 

EchoStar 116 each report annual 

revenues that are in excess of the 

threshold for a small business. Because 

DBS service requires significant capital, 

we believe it is unlikely that a small 

entity as defined by the SBA would 

have the financial wherewithal to 

become a DBS service provider. 

53. Fixed Microwave Services. Fixed 

microwave services include common 

carrier,117 private operational-fixed,118

and broadcast auxiliary radio 

services.119 At present, there are 

approximately 22,015 common carrier 

fixed licensees and 61,670 private 

operational-fixed licensees and 

broadcast auxiliary radio licensees in 

the microwave services. The 

Commission has not created a size 

standard for a small business 

specifically with respect to fixed 

microwave services. For purposes of 

this analysis, the Commission uses the 

SBA small business size standard for 

Wireless Telecommunications Carriers 

(except Satellite), which is 1,500 or 

fewer employees.120 The Commission 

does not have data specifying the 

number of these licensees that have 

more than 1,500 employees, and thus is 

unable at this time to estimate with 

greater precision the number of fixed 

microwave service licensees that would 

qualify as small business concerns 

under the SBA’s small business size 

standard. Consequently, the 

Commission estimates that there are up 

to 22,015 common carrier fixed 

licensees and up to 61,670 private 

operational-fixed licensees and 

broadcast auxiliary radio licensees in 

the microwave services that may be 

small and may be affected by the rules 

and policies adopted herein. We note, 

however, that the common carrier 

microwave fixed licensee category 

includes some large entities. 

54. Cable and Other Program 

Distribution. Since 2007, these services 

have been defined within the broad 

economic census category of Wired 

Telecommunications Carriers; that 

category is defined as follows: ‘‘This 

industry comprises establishments 

primarily engaged in operating and/or 

providing access to transmission 

facilities and infrastructure that they 

own and/or lease for the transmission of 

voice, data, text, sound, and video using 

wired telecommunications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies.’’ 121 The SBA has 

developed a small business size 

standard for this category, which is: All 

such firms having 1,500 or fewer 

employees.122 According to Census 

Bureau data for 2007, there were a total 

of 955 firms in this previous category 

that operated for the entire year.123 Of 

this total, 939 firms had employment of 

999 or fewer employees, and 16 firms 

had employment of 1000 employees or 

more.124 Thus, under this size standard, 

the majority of firms can be considered 

small and may be affected by rules 

adopted pursuant to the NPRM. 

55. Cable Companies and Systems. 

The Commission has developed its own 

small business size standards, for the 

purpose of cable rate regulation. Under 

the Commission’s rules, a ‘‘small cable 

company’’ is one serving 400,000 or 

fewer subscribers, nationwide.125

Industry data indicate that, of 1,076 

cable operators nationwide, all but 

eleven are small under this size 

standard.126 In addition, under the 

Commission’s rules, a ‘‘small system’’ is 

a cable system serving 15,000 or fewer 

subscribers.127 Industry data indicate 

that, of 7,208 systems nationwide, 6,139 

systems have under 10,000 subscribers, 

and an additional 379 systems have 

10,000–19,999 subscribers.128 Thus, 

under this second size standard, most 

cable systems are small and may be 

affected by rules adopted pursuant to 

the NPRM. 

56. Cable System Operators. The Act 

also contains a size standard for small 

cable system operators, which is ‘‘a 

cable operator that, directly or through 

an affiliate, serves in the aggregate fewer 

than 1 percent 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.’’ 129 The Commission has 

determined that an operator serving 

fewer than 677,000 subscribers shall be 

deemed a small operator, if its annual 

revenues, when combined with the total 

annual revenues of all its affiliates, do 

not exceed $250 million in the 

aggregate.130 Industry data indicate that, 

of 1,076 cable operators nationwide, all 

but ten are small under this size 

standard.131 We note that the 

Commission neither requests nor 

collects information on whether cable 

system operators are affiliated with 

entities whose gross annual revenues 

exceed $250 million,132 and therefore 


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finding that the operator does not qualify as a small 

cable operator pursuant to § 76.901(f) of the 

Commission’s rules. 

133 47 U.S.C. 571(a)(3)–(4). See Annual 

Assessment of the Status of Competition in the 

Market for the Delivery of Video Programming, MB 

Docket No. 06–189, Thirteenth Annual Report, 24 

FCC Rcd 542, 606 para. 135 (2009) (‘‘Thirteenth 

Annual Cable Competition Report’’). 

134See 47 U.S.C. 573. 

135U.S. Census Bureau, 2007 NAICS Definitions, 

‘‘517110 Wired Telecommunications Carriers’’; 

http://www.census.gov/naics/2007/def/ 

ND517110.HTM#N517110. 

136U.S. Census Bureau, 2007 Economic Census, 

Subject Series: Information, Table 5, Employment 

Size of Firms for the United States: 2007, NAICS 

code 5171102 (issued Nov. 2010). 

137See id. 

138A list of OVS certifications may be found at 

http://www.fcc.gov/mb/ovs/csovscer.html. 

139See Thirteenth Annual Cable Competition 

Report, 24 FCC Rcd at 606–07 para. 135. BSPs are 

newer firms that are building state-of-the-art, 

facilities-based networks to provide video, voice, 

and data services over a single network. 140 5 U.S.C. 603(c)(1)–(c)(4). 

we are unable to estimate more 

accurately the number of cable system 

operators that would qualify as small 

under this size standard. 

57. Open Video Services. The open 

video system (‘‘OVS’’) framework was 

established in 1996, and is one of four 

statutorily recognized options for the 

provision of video programming 

services by local exchange carriers.133

The OVS framework provides 

opportunities for the distribution of 

video programming other than through 

cable systems. Because OVS operators 

provide subscription services,134 OVS 

falls within the SBA small business size 

standard covering cable services, which 

is ‘‘Wired Telecommunications 

Carriers.’’ 135 The SBA has developed a 

small business size standard for this 

category, which is: all such firms having 

1,500 or fewer employees. According to 

Census Bureau data for 2007, there were 

a total of 3,188 firms in this previous 

category that operated for the entire 

year.136 Of this total, 3,144 firms had 

employment of 999 or fewer employees, 

and 44 firms had employment of 1000 

employees or more.137 Thus, under this 

size standard, most cable systems are 

small and may be affected by rules 

adopted pursuant to the NPRM. In 

addition, we note that the Commission 

has certified some OVS operators, with 

some now providing service.138

Broadband service providers (‘‘BSPs’’) 

are currently the only significant 

holders of OVS certifications or local 

OVS franchises.139 The Commission 

does not have financial or employment 

information regarding the entities 

authorized to provide OVS, some of 

which may not yet be operational. Thus, 

again, at least some of the OVS 

operators may qualify as small entities. 

H. Description of Projected Reporting, 

Record Keeping, and Other Compliance 

Requirements for Small Entities 

58. The NPRM seeks comment on 

rules that would affect small television 

broadcast stations and MVPDs by 

requiring them to pass through a 

secondary audio track, containing video 

description, with any described 

programming that is provided by a 

network. The description need not be 

passed through if the station or MVPD 

does not have the technical capability to 

pass it through, or if the entity is already 

using all of the secondary audio 

capacity associated with that program 

for other program-related material. If 

any small entities are subject to the 

separate requirement to ‘‘provide’’ video 

description, we anticipate that they will 

do so by passing description through to 

viewers. This separate requirement will 

thus impose no distinct burden on small 

broadcasters or MVPDs. These 

requirements may in some cases result 

in the need for engineering services. The 

NPRM seeks comment, in part, on 

whether the rules could require the 

purchase of additional equipment. 

I. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

59. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

the following four alternatives (among 

others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities.140 We seek comment 

on the applicability of any of these 

alternatives to affected small entities. 

60. The requirements proposed in the 

NPRM, including those affecting small 

broadcasters and MVPDs, are largely 

mandated by Congress. They would in 

most cases create minimal economic 

impact on small entities, and could 

provide positive economic impact by 

increasing viewership by persons with 

visual impairments. The Commission 

has statutory authority to determine the 

effective date of the rules, and to exempt 

parties or classes from operation of any 

or part of the proposed rules. We invite 

small entities to submit comment on the 

impact of the proposed rules, and on 

how the Commission could further 

minimize potential burdens on small 

entities if the proposals provided in the 

NPRM, or those submitted into the 

record, are ultimately adopted. 

J. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

None. 

V. Ordering Clauses 

61. It is ordered that, pursuant to the 

Twenty-First Century Communications 

and Video Accessibility Act of 2010, 

Public Law 111–260, 124 Stat. 2751, and 

Sections 1, 2(a), 4(i), 303, and 713 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 151, 152, 154(i), 

303, and 613, comment is hereby sought 

on the proposals described and rules set 

forth in this Notice of Proposed 

Rulemaking. 

62. It is ordered that the Reference 

Information Center, Consumer and 

Governmental Affairs Bureau, shall send 

a copy of this Notice of Proposed 

Rulemaking, including the Initial 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

List of Subjects 

47 CFR Part 73 

Civil defense, Communications 

equipment, Defense communications, 

Education, Equal employment 

opportunity, Foreign relations, Mexico, 

Political candidates, Radio, Reporting 

and recordkeeping requirements, 

Television. 

47 CFR Part 79 

Cable television. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Proposed Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission Proposes 47 CFR parts 73 

and 79 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336, 

and 339. 

2. Section 73.682 is amended by 

revising paragraph (d) to read as 

follows: 

§ 73.682 TV Transmission Standards. 

* * * * * 


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(d) Digital broadcast television 

transmission standard. Effective May 

29, 2008 transmission of digital 

broadcast television (DTV) signals shall 

comply with the standards for such 

transmissions set forth in ATSC A/52: 

‘‘ATSC Standard Digital Audio 

Compression (AC–3)’’ (incorporated by 

reference, see § 73.8000), ATSC A/53, 

Parts 1–4 and 6: 2007 ‘‘ATSC Digital 

Television Standard,’’ (January 3, 2007), 

and ATSC A/53, Part 5: 2010 ‘‘ATSC 

Digital Television Standard,’’ (July 6, 

2010), except for section 6.1.2 

(‘‘Compression Format Constraints’’) of 

A/53 Part 4: 2007 (‘‘MPEG–2 Video 

Systems Characteristics’’) and the phrase 

‘‘see Table 6.2’’ in section 6.1.1 Table 6.1 

and section 6.1.3 Table 6.3 

(incorporated by reference, see 

§ 73.8000), and ATSC A/65C: ‘‘ATSC 

Program and System Information 

Protocol for Terrestrial Broadcast and 

Cable, Revision C With Amendment No. 

1 dated May 9, 2006,’’ (January 2, 2006) 

(incorporated by reference, see 

§ 73.8000). Although not incorporated 

by reference, licensees may also consult 

ATSC A/54A: ‘‘Recommended Practice: 

Guide to Use of the ATSC Digital 

Television Standard, including 

Corrigendum No. 1,’’ (December 4, 2003, 

Corrigendum No. 1 dated December 20, 

2006, and ATSC A/69: ‘‘Recommended 

Practice PSIP Implementation 

Guidelines for Broadcasters,’’ (June 25, 

2002) (Secs. 4, 5, 303, 48 Stat., as 

amended, 1066, 1068, 1082 (47 U.S.C. 

154, 155, 303)). ATSC A/54A and ATSC 

A/69 are available from Advanced 

Television Systems Committee (ATSC), 

1750 K Street, NW., Suite 1200, 

Washington, DC 20006, or at the ATSC 

Web site: http://www.atsc.org/ 

standards.html. 

PART 79—CLOSED CAPTIONING AND 

VIDEO DESCRIPTION OF VIDEO 

PROGRAMMING 

1. The authority citation for part 79 

continues to read as follows: 

Authority: 47 U.S.C. 151, 152(a), 154(i), 

303, 307, 309, 310, 613. 

2. Section 79.3 is revised to read as 

follows: 

§ 79.3 Video description of video 

programming. 

(a) Definitions. For purposes of this 

section the following definitions shall 

apply: 

(1) Designated Market Areas (DMAs). 

Unique, county-based geographic areas 

designated by Nielsen Media Research, 

a television audience measurement 

service, based on television viewership 

in the counties that make up each DMA. 

(2) Video programming provider. Any 

video programming distributor and any 

other entity that provides video 

programming that is intended for 

distribution to residential households 

including, but not limited to, broadcast 

or nonbroadcast television networks and 

the owners of such programming. 

(3) Video description. The insertion of 

audio narrated descriptions of a 

television program’s key visual elements 

into natural pauses between the 

program’s dialogue. 

(4) Video programming. Programming 

provided by, or generally considered 

comparable to programming provided 

by, a television broadcast station, but 

not including consumer-generated 

media. 

(5) Video programming distributor. 

Any television broadcast station 

licensed by the Commission and any 

multichannel video programming 

distributor (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. 

(6) Prime time. The period from 8 to 

11 p.m. Monday through Saturday, and 

7 to 11 p.m. on Sunday local time, 

except that in the central time zone the 

relevant period shall be between the 

hours of 7 and 10 p.m. Monday through 

Saturday, and 6 and 10 p.m. on Sunday, 

and in the mountain time zone each 

station shall elect whether the period 

shall be 8 to 11 p.m. Monday through 

Saturday, and 7 to 11 p.m. on Sunday, 

or 7 to 10 p.m. Monday through 

Saturday, and 6 to 10 p.m. on Sunday. 

(7) Live or near-live programming. 

Programming performed either 

simultaneously with, or recorded no 

more than 24 hours prior to, its first 

transmission by a video programming 

distributor. 

(8) Children’s Programming. 

Television programming directed at 

children 16 years of age and under. 

(b) The following video programming 

distributors must provide programming 

with video description as follows: 

(1) Commercial television broadcast 

stations that are affiliated with one of 

the top four commercial television 

broadcast networks (ABC, CBS, Fox, and 

NBC), and that are licensed to a 

community located in the top 25 DMAs, 

as determined by Nielsen Media 

Research, Inc. as of January 1, 2011, 

must provide 50 hours of video 

description per calendar quarter, either 

during prime time or on children’s 

programming, on each programming 

stream on which they carry one of the 

top four commercial television 

broadcast networks; 

(2) Television broadcast stations that 

are affiliated or otherwise associated 

with any television network must pass 

through video description when the 

network provides video description and 

the broadcast station has the technical 

capability necessary to pass through the 

video description, unless it is using the 

technology used to provide video 

description for another purpose related 

to the programming that would conflict 

with providing the video description; 

(3) Multichannel video programming 

distributors (MVPDs) that serve 50,000 

or more subscribers must provide 50 

hours of video description per calendar 

quarter during prime time or children’s 

programming, on each channel on 

which they carry one of the top five 

national nonbroadcast networks, as 

defined by an average of the national 

audience share during prime time of 

nonbroadcast networks, as determined 

by Nielsen Media Research, Inc., for the 

time period October 2009–September 

2010, that reach 50 percent or more of 

MVPD households and have at least 50 

hours per quarter of prime time 

programming that is not live or near-live 

or otherwise exempt under these rules; 

and 

(4) Multichannel video programming 

distributors (MVPDs) of any size: 

(i) Must pass through video 

description on each broadcast station 

they carry, when the broadcast station 

provides video description, and the 

channel on which the MVPD distributes 

the programming of the broadcast 

station has the technical capability 

necessary to pass through the video 

description, unless it is using the 

technology used to provide video 

description for another purpose related 

to the programming that would conflict 

with providing the video description; 

and 

(ii) Must pass through video 

description on each nonbroadcast 

network they carry, when the network 

provides video description, and the 

channel on which the MVPD distributes 

the programming of the network has the 

technical capability necessary to pass 

through the video description, unless it 

is using the technology used to provide 

video description for another purpose 

related to the programming that would 

conflict with providing the video 

description. 

(c) Responsibility for and 

determination of compliance. (1) The 

Commission will calculate compliance 

on a per channel, and, for broadcasters, 

a per stream, calendar quarter basis, 

beginning with the calendar quarter 

January 1 through March 31, 2012. 

(2) In order to meet its fifty-hour 

quarterly requirement, a broadcaster or 


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MVPD may count each program it airs 

with video description no more than a 

total of two times on each channel on 

which it airs the program. A broadcaster 

or MVPD may count the second airing 

in the same or any one subsequent 

quarter. A broadcaster may only count 

programs aired on its primary 

broadcasting stream towards its fiftyhour quarterly requirement. A 

broadcaster carrying one of the top four 

commercial television broadcast 

networks on a secondary stream may 

count programs aired on that stream 

toward its fifty-hour quarterly 

requirement for that network only. 

(3) Once a commercial television 

broadcast station as defined under 

paragraph (b)(1) of this section has aired 

a particular program with video 

description, it is required to include 

video description with all subsequent 

airings of that program on that same 

broadcast station, unless it is using the 

technology used to provide video 

description for another purpose related 

to the programming that would conflict 

with providing the video description. 

(4) Once an MVPD as defined under 

paragraph (b)(3) of this section: 

(i) Has aired a particular program with 

video description on a broadcast station 

it carries, it is required to include video 

description with all subsequent airings 

of that program on that same broadcast 

station, unless it is using the technology 

used to provide video description for 

another purpose related to the 

programming that would conflict with 

providing the video description; or 

(ii) Has aired a particular program 

with video description on a 

nonbroadcast network it carries, it is 

required to include video description 

with all subsequent airings of that 

program on that same nonbroadcast 

network, unless it is using the 

technology used to provide video 

description for another purpose related 

to the programming that would conflict 

with providing the video description. 

(5) In evaluating whether a video 

programming distributor has complied 

with the requirement to provide video 

programming with video description, 

the Commission will consider showings 

that any lack of video description was 

de minimis and reasonable under the 

circumstances. 

(d) Procedures for exemptions based 

on economic burden. (1) A video 

programming provider may 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 would be 

economically burdensome. 

(2) The petitioner must support a 

petition for exemption with sufficient 

evidence to demonstrate that 

compliance with the requirements to 

provide programming with video 

description would be economically 

burdensome. The term ‘‘economically 

burdensome’’ means imposing 

significant difficulty or expense. The 

Commission will consider the following 

factors when determining whether the 

requirements for video description 

would be economically burdensome: 

(i) The nature and cost of providing 

video description of the programming; 

(ii) The impact on the operation of the 

video programming provider; 

(iii) The financial resources of the 

video programming provider; and 

(iv) The type of operations of the 

video programming provider. 

(3) In addition to these factors, the 

petitioner must describe any other 

factors it deems relevant to the 

Commission’s final determination and 

any available alternative that might 

constitute a reasonable substitute for the 

video description requirements. The 

Commission will evaluate economic 

burden with regard to the individual 

outlet. 

(4) The petitioner must file an original 

and two (2) copies of a petition 

requesting an exemption based on the 

economically burdensome standard, and 

all subsequent pleadings, in accordance 

with § 0.401(a) of this chapter. 

(5) The Commission will place the 

petition on public notice. 

(6) Any interested person may file 

comments or oppositions to the petition 

within 30 days of the public notice of 

the petition. Within 20 days of the close 

of the comment period, the petitioner 

may reply to any comments or 

oppositions filed. 

(7) Persons that file comments or 

oppositions to the petition must serve 

the petitioner with copies of those 

comments or oppositions and must 

include a certification that the petitioner 

was served with a copy. Parties filing 

replies to comments or oppositions 

must serve the commenting or opposing 

party with copies of such replies and 

shall include a certification that the 

party was served with a copy. 

(8) Upon a finding of good cause, the 

Commission may lengthen or shorten 

any comment period and waive or 

establish other procedural requirements. 

(9) Persons filing petitions and 

responsive pleadings must include a 

detailed, full showing, supported by 

affidavit, of any facts or considerations 

relied on. 

(10) The Commission may deny or 

approve, in whole or in part, a petition 

for an economic burden exemption from 

the video description requirements. 

(11) During the pendency of an 

economic burden determination, the 

Commission will consider the video 

programming subject to the request for 

exemption as exempt from the video 

description requirements. 

(e) Complaint procedures. (1) A 

complainant may file a complaint 

concerning an alleged violation of the 

video description requirements of this 

section by transmitting it to the 

Consumer and Governmental Affairs 

Bureau at the Commission by any 

reasonable means, such as letter, 

facsimile transmission, telephone 

(voice/TRS/TTY), Internet e-mail, 

audio-cassette recording, and Braille, or 

some other method that would best 

accommodate the complainant’s 

disability. Complaints should be 

addressed to: Consumer and 

Governmental Affairs Bureau, 445 12th 

Street, SW, Washington, DC 20554. A 

complaint must include: 

(i) The name and address of the 

complainant; 

(ii) The name and address of the 

broadcast station against whom the 

complaint is alleged and its call letters 

and network affiliation, or the name and 

address of the MVPD against whom the 

complaint is alleged and the name of the 

network that provides the programming 

that is the subject of the complaint; 

(iii) A statement of facts sufficient to 

show that the video programming 

distributor has violated or is violating 

the Commission’s rules, and, if 

applicable, the date and time of the 

alleged violation; 

(iv) The specific relief or satisfaction 

sought by the complainant; 

(v) The complainant’s preferred 

format or method of response to the 

complaint (such as letter, facsimile 

transmission, telephone (voice/TRS/ 

TTY), Internet e-mail, or some other 

method that would best accommodate 

the complainant’s disability); and 

(vi) A certification that the 

complainant attempted in good faith to 

resolve the dispute with the broadcast 

station or MVPD against whom the 

complaint is alleged. 

(2) The Commission will promptly 

forward complaints satisfying the above 

requirements to the video programming 

distributor involved. The video 

programming distributor must respond 

to the complaint within a specified 

time, generally within 30 days. The 

Commission may authorize Commission 

staff either to shorten or lengthen the 

time required for responding to 

complaints in particular cases. The 

answer to a complaint must include a 

certification that the video programming 


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distributor attempted in good faith to 

resolve the dispute with the 

complainant. 

(3) The Commission will review all 

relevant information provided by the 

complainant and the video 

programming distributor and will 

request additional information from 

either or both parties when needed for 

a full resolution of the complaint. 

(i) The Commission may rely on 

certifications from programming 

suppliers, including programming 

producers, programming owners, 

networks, syndicators and other 

distributors, to demonstrate compliance. 

The Commission will not hold the video 

programming distributor responsible for 

situations where a program source 

falsely certifies that programming that it 

delivered to the video programming 

distributor meets our video description 

requirements if the video programming 

distributor is unaware that the 

certification is false. Appropriate action 

may be taken with respect to deliberate 

falsifications. 

(ii) If the Commission finds that a 

video programming distributor has 

violated the video description 

requirements of this section, it may 

impose penalties, including a 

requirement that the video programming 

distributor deliver video programming 

containing video description in excess 

of its requirements. 

(f) Private rights of action are 

prohibited. Nothing in this section shall 

be construed to authorize any private 

right of action to enforce any 

requirement of this section. The 

Commission shall have exclusive 

jurisdiction with respect to any 

complaint under this section. 

[FR Doc. 2011–6240 Filed 3–17–11; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Chapter I 

[DA 11–412] 

Possible Revision or Elimination of 

Rules 

AGENCY: Federal Communications 

Commission. 

ACTION: Review of regulations; 

comments requested. 

SUMMARY: This document invites 

members of the public to comment on 

the Federal Communication 

Commission’s (FCC’s or Commission’s) 

rules to be reviewed pursuant to section 

610 of the Regulatory Flexibility Act of 

1980, as amended (RFA). The purpose 

of the review is to determine whether 

Commission rules whose ten-year 

anniversary dates are in the year 2009, 

as contained in the Appendix, should be 

continued without change, amended, or 

rescinded in order to minimize any 

significant impact the rules may have on 

a substantial number of small entities. 

Upon receipt of comments from the 

public, the Commission will evaluate 

those comments and consider whether 

action should be taken to rescind or 

amend the relevant rule(s). 

DATES: Comments may be filed on or 

before May 17, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Sharon K. Stewart, Chief of Staff, Office 

of Communications Business 

Opportunities (OCBO), Federal 

Communications Commission, (202) 

418–0990. People with disabilities may 

contact the FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

ADDRESSES: Federal Communications 

Commission, Office of the Secretary, 

445 12th Street, SW., Washington, DC 

20554. 

SUPPLEMENTARY INFORMATION: Each year 

the Commission will publish a list of 

ten-year old rules for review and 

comment by interested parties pursuant 

to the requirements of section 610 of the 

RFA. 

Public Notice 

FCC Seeks Comment Regarding Possible 

Revision or Elimination of Rules Under 

the Regulatory Flexibility Act, 5 U.S.C. 

610 

CB Docket No. 09–229 

Released: 

1. Pursuant to the Regulatory 

Flexibility Act (RFA), see 5 U.S.C. 610, 

the FCC hereby publishes a plan for the 

review of rules adopted by the agency 

in calendar year 1999 which have, or 

might have, a significant economic 

impact on a substantial number of small 

entities. The purpose of the review is to 

determine whether such rules should be 

continued without change, or should be 

amended or rescinded, consistent with 

the stated objective of section 610 of the 

RFA, to minimize any significant 

economic impact of such rules upon a 

substantial number of small entities. 

2. This document lists the FCC 

regulations to be reviewed during the 

next twelve months. In succeeding 

years, as here, the Commission will 

publish a list for the review of 

regulations promulgated ten years 

preceding the year of review. 

3. In reviewing each rule in a manner 

consistent with the requirements of 

section 610 the FCC will consider the 

following factors: 

(a) The continued need for the rule; 

(b) The nature of complaints or 

comments received concerning the rule 

from the public; 

(c) The complexity of the rule; 

(d) The extent to which the rule 

overlaps, duplicates, or conflicts with 

other Federal rules and, to the extent 

feasible, with State and local 

governmental rules; and 

(e) The length of time since the rule 

has been evaluated or the degree to 

which technology, economic conditions, 

or other factors have changed in the area 

affected by the rule. 

4. Appropriate information has been 

provided for each rule, including a brief 

description of the rule and the need for, 

and legal basis of, the rule. The public 

is invited to comment on the rules 

chosen for review by the FCC according 

to the requirements of section 610 of the 

RFA. All relevant and timely comments 

will be considered by the FCC before 

final action is taken in this proceeding. 

Comments may be filed using the 

Commission’s Electronic Comment 

Filing System (‘‘ECFS’’) or by filing 

paper copies. Comments filed through 

the ECFS may be sent as an electronic 

file via the Internet to http:// 

www.fcc.gov/cgb/ecfs/. Generally, only 

one copy of an electronic submission 

must be filed. In completing the 

transmittal screen, commenters should 

include their full name, U.S. Postal 

Service mailing address, and the 

applicable docket (proceeding) and 

‘‘DA’’ number. 

Parties may also submit an electronic 

comment by Internet e-mail. To obtain 

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.’’ A sample form and 

directions will be sent in reply. Parties 

who choose to file by paper must file an 

original and four copies of each filing. 

Again, please include the docket 

(proceeding) and ‘‘DA’’ number. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

hand-delivered or messenger-delivered 

paper filings for the Commission’s 

Secretary must be delivered to FCC 

Headquarters at 445 12th St., SW., Room 

TW–A325, Washington, DC 20554. 

Again, please include the docket 

(proceeding) and ‘‘DA’’ number. 

The filing hours at this location are 

8 a.m. to 7 p.m. 


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