[Federal Register Volume 65, Number 90 (Tuesday, May 9, 2000)]
[Rules and Regulations]
[Pages 26757-26762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11483]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MM Docket No. 95-176; FCC 00-136]


Implementation of Section 305 of the Telecommunications Act of 
1996, Closed Captioning and Video Description of Video Programming: 
Accessibility of Emergency Programming

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document adopts regulations requiring emergency 
information that is provided to viewers be made accessible to persons 
with hearing disabilities. This action is necessary in order to comply 
with section 305 of the Telecommunications Act of 1996. This action is 
intended to further the protection of life, health, safety, and 
property, of persons with hearing disabilities.

DATES: The rule in this document contains information collection 
requirements that are not effective until approved by the Office of 
Management and Budget. The Commission will publish a document in the 
Federal Register announcing the effective date of this rule. Written 
comments by the public on the new information collection are due July 
10, 2000.

ADDRESSES: In addition to filing comments with the Office of the 
Secretary, a copy of any comments on the information collection 
contained herein should be submitted to Judy Boley, Federal 
Communications Commission, Room 1-C804, 445 12th Street, SW, 
Washington, DC 20554, or via the Internet to <a href="/cdn-cgi/l/email-protection#dfb5bdb0b3baa69fb9bcbcf1b8b0a9"><span class="__cf_email__" data-cfemail="d8b2bab7b4bda198bebbbbf6bfb7ae">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Marcia Glauberman (202) 418-7200, TTY 
(202) 418-7172, or via Internet at <a href="/cdn-cgi/l/email-protection#d5b8b2b9b4a0b7b0a795b3b6b6fbb2baa3"><span class="__cf_email__" data-cfemail="9ff2f8f3feeafdfaeddff9fcfcb1f8f0e9">[email protected]</span></a>. For additional 
information concerning the information collection(s) contained in this 
document, contact Judy Boley at (202) 418-0214, or via the Internet at 
<a href="/cdn-cgi/l/email-protection#1379717c7f766a537570703d747c65"><span class="__cf_email__" data-cfemail="b2d8d0ddded7cbf2d4d1d19cd5ddc4">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order, FCC 00-136, adopted April 13, 2000; released April 
14, 2000. The full text of the Commission's Second Report and Order is 
available for inspection and copying during normal business hours in 
the FCC Reference Center (Room CY-A257) at its headquarters, 445 12th 
Street, SW, Washington, DC 20554, or may be purchased from the 
Commission's copy contractor, International Transcription Service, 
Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036, or 
may be reviewed via Internet at http://www.fcc.gov/csb/ or http://www.fcc.gov/cib/dro.
    The Second Report and Order contains a new information collection 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. It will be submitted to the Office of Management and Budget (OMB) 
for review under section 3507(d) of the PRA. OMB, the general public, 
and other Federal agencies are invited to comment on the new 
information collection contained in this proceeding.

Paperwork Reduction Act

    The Second Report and Order contains a new information collection. 
The Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public to comment on the information 
collection contained in this Second Report and Order as required by the 
Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency 
comments are due July 10, 2000. Comments should address: (a) Whether 
the new collection of information is necessary for the proper 
performance of the functions of

[[Page 26758]]

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.
    OMB Control Number: 3060-XXXX.
    Title: Accessibility of Programming Providing Emergency 
Information--Section 79.2.
    Form No.: Not Applicable.
    Type of Review: New collection.
    Respondents: Individuals or households; business or other for-
profit; not-for-profit institutions; and/or state, local or tribal 
governments.
    Number of Respondents: 100 viewers and 100 video program 
distributors = 200 Total Respondents.
    Estimated Time per Response: 1 and 2 hours, respectively.
    Total Annual Burden: 300 hours.
    Cost to Respondents: $ 16,200.
    Needs and Uses: The information will be used by the Commission to 
enforce new Sec. 79.2. Viewers may file complaints alleging violation 
of this rule with the Commission. The Commission will notify video 
programming distributors of the complaint, and the distributor will 
provide the Commission with a response to the complaint.

Synopsis of the Second Report and Order

    1. The Second Report and Order (``Order'') adopts a rule requiring 
that emergency information that is provided to viewers be made 
accessible to persons with hearing disabilities throughout the 
transition period established as part of the closed captioning rules. 
See 47 CFR 79.1. Such information may be made accessible either through 
closed captioning or by using a method of visual presentation. 
Emergency information is information, about a current emergency, that 
is intended to further the protection of life, health, safety, and 
property, i.e., critical details regarding the emergency and how to 
respond to the emergency. In determining which particular details about 
the emergency need to be made accessible, programmers may rely on their 
own good faith judgments.
    2. Definition of emergency information. We find that it is 
appropriate to define emergency information as information, about a 
current emergency, provided to viewers that is intended to further the 
protection of life, health, safety, and property, i.e., critical 
details regarding the emergency and how to respond to the emergency. 
Examples of the types of emergencies covered could include tornadoes, 
hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy 
snows, widespread fires, discharge of toxic gases, widespread power 
failures, industrial explosions, civil disorders, school closings and 
changes in school bus schedules resulting from such conditions, and 
warnings and watches of impending changes in weather. These examples 
are intended to provide guidance as to what is covered by the rule and 
are not intended to be an exhaustive list.
    3. Our definition of emergency information will include the 
provision of critical details in an accessible manner. Critical details 
could include, among other things, specific details regarding the areas 
that will be affected by the emergency, evacuation orders, detailed 
descriptions of areas to be evacuated, specific evacuation routes, 
approved shelters or the way to take shelter in one's home, 
instructions on how to secure personal property, road closures, and how 
to obtain relief assistance. In determining whether particular details 
need to be made accessible, we will permit programmers to rely on their 
own good faith judgments. Under this rule, distributors are not 
required to provide in an accessible format all of the information 
about an emergency situation that they are providing to viewers 
aurally, only the aural information intended to further the protection 
of life, health, safety, and property.
    4. Accessibility of Emergency Information. The rule we are adopting 
requires that emergency information that is provided in the audio 
portion of the programming must be accessible to persons with hearing 
disabilities, either through closed captioning or by using a method of 
visual presentation. Such methods include, but are not limited to, open 
captioning, crawls or scrolls. These rules apply regardless of whether 
the provision of information regarding an emergency occurs during a 
regularly scheduled newscast, an unscheduled break-in during regular 
programming, as part of continuing coverage of a situation, or in any 
other fashion. We will adopt the suggestion of some commenters that we 
restrict the application of the rule to the provision of emergency 
information that is primarily intended for distribution to an audience 
in the geographic area in which the emergency is occurring.
    5. As was noted in the June 1999 Fact Sheet on Closed Captioning, 
the Commission has received numerous reports of the loss of captioning 
during otherwise captioned programs. The requirement that video 
distributors ``pass through'' to viewers all captions they receive is 
intended to ensure that captioned programs are distributed with 
captions from beginning to end without exception. The Fact Sheet 
reminded video distributors that when providing other information, such 
as school closings or weather warnings, readable captions should 
continue to be provided. We endorse this interpretation and amend our 
rules to require that emergency information provided by means other 
than closed captioning should not block any closed captioning, and vice 
versa.
    6. Exemptions. Because we are not mandating the use of closed 
captioning as the sole means for making emergency information 
accessible, we find that exemptions to this rule are unnecessary. 
Consistent with this conclusion, with respect to entities that are 
exempt from any aspect of the closed captioning rules, we find that 
such exemption does not extend to the obligation to provide accessible 
emergency information. Expenses for complying with this rule shall not 
be counted when making calculations of expenditures under 47 CFR 
79.1(d)(11). All entities, therefore, must comply with the rule adopted 
in this Order.
    7. Responsibility for and determination of compliance. As with the 
closed captioning rules, video programming distributors will be 
responsible for compliance with the rule and video programming 
distributors will not be responsible for video programming that is by 
law not subject to their editorial control, including but not limited 
to the signals of television broadcast stations distributed by 
multichannel video programming distributors. A local broadcast station 
licensee, as the video programming distributor, will be responsible for 
its compliance with the rule regardless of the delivery technology used 
to deliver its signals to consumers (e.g., cable, direct broadcast 
satellite service). We note that many local or regional nonbroadcast 
networks are owned by the multichannel video programming distributors. 
Where the network is not owned by the multichannel video programming 
distributor, as we noted in the closed captioning rules, we expect that 
distributors will incorporate the requirement into their contracts with 
producers and owners, and that parties will negotiate for an efficient 
allocation of responsibilities.
    8. Those entities that are permitted to count captions created 
using the electronic newsroom technique still must comply with this 
rule. Where they

[[Page 26759]]

cannot provide the required emergency information using this technique, 
they must use another method of visual presentation to ensure the same 
accessibility for persons with hearing disabilities as for any other 
viewer, as required by the rule.
    9. In the Order on Reconsideration in this proceeding, 63 FR 55959 
(October 20, 1998), we limited those entities for which the electronic 
newsroom technique may count towards compliance with the closed 
captioning rules. We stated that, as we move through the transition 
period, we will continue to review and expand the class of providers 
that cannot count the electronic newsroom technique towards compliance 
with the closed captioning rules, and that we expect that the ability 
to use the electronic newsroom technique will by far be the exception 
rather than the general rule, and that only those entities that are so 
small or who present unusual circumstances will be permitted to 
continue to use the electronic newsroom technique because live closed 
captioning would be an economic burden. To the extent we continue to 
permit entities to use the electronic newsroom technique, we will 
determine whether these entities will be permitted to continue to use 
means other than closed captioning for emergency information in the 
context of reviewing and expanding the limitation on the use of the 
electronic newsroom technique.
    10. In recognition of this problem and viewers' frustration when 
captions are lost during a program, the current rules require video 
program distributors to transmit the original closed captions of a 
captioned program to viewers intact unless the program is edited and 
the captions would have to be reformatted. Video distributors also are 
responsible for making sure that their equipment is working properly to 
ensure the accurate transmission of the closed captions. Any loss of 
captions prior to the end of a program or scrambling of captions would 
be a violation of this rule.
    11. Enforcement. Complaints may be filed with the Commission and 
viewers do not have to wait until after the end of the current calendar 
quarter before filing, or receiving a response to, their complaints. A 
complaint alleging a violation of this section may be transmitted to 
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. The complaint should include 
the name of the video programming distributor against whom the 
complaint is alleged, the date and time of the omission of emergency 
information, and the type of emergency. The Commission will notify the 
video programming distributor of the complaint, and the distributor 
will reply to the complaint within 30 days.
    12. Effective Date. The rule will be effective upon OMB approval.

Final Regulatory Flexibility Analysis

    13. As required by the Regulatory Flexibility Act (``RFA''), 5 
U.S.C. 603. The RFA, 5 U.S.C. 601 et seq., has been amended by the 
Contract with America Advancement Act of 1996, Public Law No. 104-121, 
110 Stat. 847 (1996) (``CWAAA''). Title II of the CWAAA is the Small 
Business Regulatory Enforcement Fairness Act of 1996 (``SBREFA''). An 
initial Regulatory Flexibility Analysis (``IRFA'') was incorporated in 
the Further Notice of Proposed Rulemaking (``FNPRM'') in this 
proceeding. Closed Captioning and Video Description of Video 
Programming, Implementation of Section 305 of the Telecommunications 
Act of 1996, Video Programming Accessibility, MM Docket No. 95-176, 
Further Notice of Proposed Rulemaking, 63 FR 3070 (January 21, 1998). 
The Commission sought written public comment on the proposals in the 
FNPRM, including comment on the IRFA. This Final Regulatory Flexibility 
Analysis (``FRFA'') conforms to the RFA.

A. Need for, and Objectives of, This Second Report and Order

    14. Section 713 of the Communications Act, which was added by the 
Telecommunications Act of 1996, required the Commission to make new 
video programming fully accessible to persons with hearing 
disabilities. 47 U.S.C. 613. In the course of adopting rules to 
implement this section of the Act, the Commission noted its concern 
that viewers with hearing disabilities may not always have access to 
the same emergency information as is currently available to other 
viewers and decided to further examine ways to make this programming 
accessible. See Report and Order, 62 FR 48487 (September 16, 1997). 
This Second Report and Order adopts rules to ensure that emergency 
information is available to persons with hearing disabilities either 
through closed captioning or by using a method of visual presentation.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    15. Telecommunications for the Deaf, Inc. (``TDI'') filed the only 
comment on the IRFA in the context of its general comments. It proposes 
that all video programming providers be required to contribute to a 
Commission administered fund based on their gross revenues. This fund 
would be used for rebates to small entities (e.g., low power television 
stations, small cable operators) for the costs incurred when providing 
captioned emergency information. We decline to adopt this proposal 
since our rule does not require the closed captioning of emergency 
information. The rule imposes modest obligations on video programming 
distributors and provides each entity sufficient flexibility to 
determine the most feasible and affordable method for making emergency 
information accessible to persons with hearing disabilities.
    16. TDI also states that we should not adopt a reporting 
requirement, except where a specified number of complaints have been 
logged for non-compliance, because a reporting requirement would impose 
an undue burden. TDI Comments at 4. The Commission decided that no 
reporting requirement was necessary to implement the rule, but rather 
to rely on a complaint process to ensure compliance. Therefore, we will 
not adopt TDI's suggestion to minimize reporting requirements.

C. Description and Estimate of the Number of Small Entities to Which 
the Rule Will Apply

    17. The RFA directs agencies to provide a description of, and, 
where feasible, an estimate of the number of small entities that may be 
affected by the rules. 5 U.S.C. 603(b)(3). The RFA generally defines 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction'' and ``the same meaning as the term `small business 
concern' under the Small Business Act'' unless the Commission has 
developed one or more definitions that are appropriate for its 
activities. 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632). 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''). 15 U.S.C. 632. Pursuant to 5 U.S.C. 601(3), the statutory 
definition of

[[Page 26760]]

a small business applies ``unless an agency after consultation with the 
Office of Advocacy of the SBA 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.'' Below we address the video programming distributors 
(i.e., multichannel video programming distributors (``MVPDs'') and 
broadcast stations) subject to the rule adopted in this Order and 
provide estimates of the affected small entities.
    18. Small MVPDs. The SBA has developed a definition of small 
entities for cable and other pay television services under Standard 
Industrial Classification 4841 (SIC 4841), which covers subscription 
television services, which includes all such companies with annual 
gross revenues of $11 million or less. 13 CFR 121.201. This definition 
includes cable systems operators, closed circuit television services, 
direct broadcast satellite services, multipoint distribution systems, 
satellite master antenna systems and subscription television services. 
According to the Census Bureau, there were 1,423 such cable and other 
pay television services generating less than $11 million in revenue 
that were in operation for at least one year at the end of 1992. The 
following provides a more precise estimate for each MVPD service 
individually.
    19. Cable Services or Systems. The Commission has developed, with 
SBA's approval, its own definition of a ``small cable company'' and 
``small system'' for the purposes of rate regulation. Under the 
Commission's rules, a ``small cable company,'' is one serving fewer 
than 400,000 subscribers nationwide. 47 CFR 76.901(e). The Commission 
developed this definition based on its determinations that a small 
cable company is one with annual revenues of $100 million or less. 
Based on our most recent information, we estimate that there were 1,439 
cable companies that qualified as small cable companies at the end of 
1995. Since then, some of those companies may have grown to serve over 
400,000 subscribers, and others may have been involved in transactions 
that caused them to be combined with other cable companies. 
Consequently, we estimate that there are fewer than 1,439 small entity 
cable companies that may be affected by the proposal adopted in this 
Second Report and Order. The Commission's rules also define a ``small 
system,'' for the purposes of cable rate regulation, as a cable system 
with 15,000 or fewer subscribers. 47 CFR 76.901(c). We do not request 
nor do we collect information concerning cable systems serving 15,000 
or fewer subscribers and thus are unable to estimate at this time the 
number of small cable systems nationwide.
    20. The Communications Act also contains a definition of a ``small 
cable operator,'' 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.'' 47 U.S.C. 543(m)(2). The Commission has determined that 
there are 61,700,000 subscribers in the United States. Therefore, we 
found that an operator serving fewer than 617,000 subscribers is deemed 
a small operator, if its annual revenues, when combined with the total 
annual revenues of all of its affiliates, do not exceed $250 million in 
the aggregate. 47 CFR 76.1403(b). Based on available data, we find that 
the number of cable operators serving 617,000 subscribers or less 
totals 1,450. Although it seems certain that some of these cable system 
operators are affiliated with entities whose gross annual revenues 
exceed $250,000,000, we are unable at this time to estimate with 
greater precision the number of cable system operators that would 
qualify as small cable operators under the definition in the 
Communications Act.
    21. Multichannel Multipoint Distribution Service (``MMDS''). In its 
IFRA in this proceeding, the Commission included an analysis of local 
multipoint distribution systems (``LMDS''). At that time, there was one 
video programming distributor using LMDS frequencies to provide video 
services. Since the FNPRM, that distributor ceased operation and it 
appears that LMDS licensees will use these frequencies for services 
other than video distribution. MMDS systems, often referred to as 
``wireless cable,'' transmit video programming to subscribers using the 
microwave frequencies of the Multipoint Distribution Service (``MDS'') 
and Instructional Television Fixed Service (``ITFS''). The Commission 
has defined ``small entity'' for purposes of the auction of MDS 
frequencies as an entity that, together with its affiliates, has 
average gross annual revenues that are not more than $40 million for 
the preceding three calendar years. 47 CFR 21.961(b)(1).
    This definition of a small entity in the context of MDS auctions 
has been approved by the SBA. The Commission completed its MDS auction 
in March 1996 for authorizations in 493 basic trading areas (``BTAs''). 
Of 67 winning bidders, 61 qualified as small entities. One of these 
small entities, O'ahu Wireless Cable, Inc., was subsequently acquired 
by GTE Media Ventures, Inc., which did not qualify as a small entity 
for purposes of the MDS auction.
    22. MDS also includes licensees of stations authorized prior to the 
auction. As noted, the SBA has developed a definition of small entities 
for pay television services, which includes all such companies 
generating $11 million or less in annual receipts. 13 CFR 121.201. This 
definition includes multipoint distribution systems, and thus applies 
to MDS licensees and wireless cable operators that did not participate 
in the MDS auction. Information available to us indicates that there 
are 832 of these licensees and operators that do not generate revenue 
in excess of $11 million annually. Therefore, for purposes of the FRFA, 
we find there are approximately 892 small MDS providers as defined by 
the SBA and the Commission's auction rules.
    23. The SBA definition of small entities for pay television 
services, which includes such companies generating $11 million in 
annual receipts, appears applicable to ITFS. 13 CFR 121.201. There are 
presently 2,032 ITFS licensees. All but 100 of these licenses are held 
by educational institutions. Educational institutions are included in 
the definition of a small business. SBREFA also applies to nonprofit 
organizations and governmental organizations such as cities, counties, 
towns, townships, villages, school districts, or special districts, 
with populations of less than 50,000. 5 U.S.C. 601(5). However, we do 
not collect annual revenue data for ITFS licensees, and are not able to 
ascertain how many of the 100 non-educational licensees would be 
categorized as small under the SBA definition. Thus, we tentatively 
conclude that at least 1,932 licensees are small businesses.
    24. Satellite Master Antenna Television (``SMATV'') Systems. The 
SBA definition of small entities for cable and other pay television 
services specifically includes SMATV services and, thus, small entities 
are defined as all such companies generating $11 million or less in 
annual receipts. 13 CFR 121.201. Industry sources estimate that 
approximately 5,200 SMATV operators were providing service as of 
December 1995. Other estimates indicate that SMATV operators serve 
approximately 1.05 million residential subscribers as of September 
1996. The ten largest SMATV operators together pass 815,740 units. If 
we assume that

[[Page 26761]]

these SMATV operators serve 50% of the units passed, the ten largest 
SMATV operators serve approximately 40% of the total number of SMATV 
subscribers. Because these operators are not rate regulated, they are 
not required to file financial data with the Commission. Furthermore, 
we are not aware of any privately published financial information 
regarding these operators. Based on the estimated number of operators 
and the estimated number of units served by the largest ten SMATVs, we 
believe that a substantial number of SMATV operators qualify as small 
entities.
    25. Direct Broadcast Satellite (``DBS'') Service. The SBA includes 
DBS service in its classification of cable and other pay television 
services. Therefore, a small DBS service is defined as a company 
generating $11 million or less in annual receipts. 13 CFR 121.201. As 
of November 1999, there were four DBS licensees, one of which was not 
in operation. Providing DBS service requires a great investment of 
capital to build, launch, and operate satellite systems. Typically, 
small businesses do not have the financial ability to become DBS 
licensees because of the high implementation costs associated with 
launching satellites. Most recent industry statistics suggest that the 
revenue attributed to DBS subscribers for EchoStar was $682.8 million 
for the year of 1998 and $1.55 billion for DirecTV. We do not have 
similar revenue information for the third operating licensee, Dominion 
Video Satellite, Inc. However, we do not believe that any DBS licensees 
could be categorized as a small business.
    26. Home Satellite Dish (``HSD'') Service. The market for HSD 
service is difficult to quantify. HSD owners have access to more than 
500 channels of programming placed on C-band satellites by programmers 
for receipt and distribution by MVPDs, of which 350 channels are 
scrambled and approximately 150 channels are unscrambled. To receive 
scrambled channels, an HSD owner must purchase an integrated receiver-
decoder from an equipment dealer and pay a subscription fee to an HSD 
programming packager. Thus, those HSD users that subscribe to a 
programming package are similar to consumers that subscribe to cable 
and other pay television services. Accordingly, it appears that the 
definition of small entity under SIC 4841 (i.e., all such companies 
generating $11 million or less in annual receipts), 13 CFR 121.201, 
would be applicable to this service.
    27. According to the most recently available information, there are 
approximately 20 to 25 program packagers nationwide offering packages 
of scrambled programming to retail consumers. As of June 1999, these 
program packagers provide subscriptions to approximately 1,783,411 
subscribers nationwide. This is an average of about 90,000 subscribers 
per program packager. This is substantially smaller than the 400,000 
subscribers used in the Commission's definition of a small multiple 
system operator (``MSO''). Furthermore, because this is an average, it 
is likely that some program packagers may be substantially smaller.
    28. Open Video System (``OVS'') Service. As part of the 
Telecommunications Act of 1996, Congress established the OVS framework 
for the delivery of multichannel video programming service. 47 U.S.C. 
571. This new service is similar to cable television and other pay 
television services. Although OVS is not specifically enumerated under 
SIC 4841, it is appropriate to include OVS in this classification and 
to apply the SBA definition of small entity, which includes all such 
companies generating $11 million or less in annual receipts, to OVS 
service. 13 CFR 121.201. The Commission has issued 37 certifications to 
operate OVS systems. Of these 37 certifications, MFS has withdrawn its 
two certifications for New York City and Boston because it does not 
intend to operate open video systems in these areas and Bell Atlantic 
shut down its Dover, New Jersey, system in favor of its distribution 
agreement with DirecTV. Of these 37 certifications, only one OVS 
operator, RCN, is providing service in various service areas across the 
United States. Little financial information is available for the other 
entities authorized to provide OVS that are not yet operational. We 
believe that one OVS licensee may qualify as a small business concern. 
Given that other entities have been authorized to provide OVS service 
but have not yet begun to generate revenues, we conclude that at least 
some of the OVS operators qualify as small entities.
    29. Small Broadcast Stations. The SBA defines small television 
broadcasting stations as television broadcasting stations with $10.5 
million or less in annual receipts. 13 CFR 121.201, SIC 4833. 
Television broadcasting stations consist of establishments primarily 
engaged in broadcasting visual programs by television to the public, 
except cable and other pay television services. Included in this 
industry are commercial, religious, educational, and other television 
stations. Also included are establishments primarily engaged in 
television broadcasting and which produce taped television program 
materials.
    30. There were 1,509 full-service television stations operating in 
the nation in 1992. That number has remained fairly constant as 
indicated by the approximately 1,616 operating full-service television 
broadcasting stations in the nation as of September 1999. For 1992, the 
number of television stations that produced less than $10 million in 
revenue was 1,155 establishments. The amount of $10 million was used to 
estimate the number of small business establishments because the 
relevant Census categories stopped at $9,999,999 and began at 
$10,000,000. No category for $10.5 million existed. Thus, the number is 
as accurate as it is possible to calculate with the available 
information. Thus, the rule will affect approximately 1,616 television 
stations; approximately 77%, or 1,244, of those stations are considered 
small businesses. We use the 77% figure of television stations 
operating at less than $10 million for 1992 and apply it to the 1999 
total of 1,616 television stations to arrive at stations categorized as 
small businesses. These estimates may overstate the number of small 
entities since the revenue figures on which they are based do not 
include or aggregate revenues from non-television affiliated companies.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    31. This Second Report and Order does not adopt any required 
reporting or recordkeeping. However, when a video programming 
distributor is notified by the Commission that a complaint alleging 
violation of the rule has been received, the distributor may submit 
records, certifications, or other documentation that demonstrate 
compliance with the rule.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    32. In the FNPRM, the Commission sought information and comment 
regarding the appropriate rules and policies to promote and ensure the 
accessibility of emergency information to persons with hearing 
disabilities. We requested comment on whether separate transitional 
closed captioning requirements are needed for emergency information or 
whether there are other methods of providing accessibility for this 
type of programming.

[[Page 26762]]

    33. In this Second Report and Order, the Commission defines 
emergency information and adopts a requirement that video programming 
distributors must make emergency information accessible to persons with 
hearing disabilities either through closed captioning or by using a 
method of visual presentation. Such methods include, but are not 
limited to, open captioning, crawls or scrolls. We concluded that a 
rule requiring closed captioning or a method of visual presentations 
achieves the goal of ensuring that the same critical information about 
an emergency is accessible to persons with hearing disabilities as is 
available to other viewers. The rule also provides significant 
flexibility to the video programming distributor by allowing it to 
determine the most feasible and affordable method for making such 
information accessible. Therefore, the rule will not impose an economic 
burden on video programming distributors, including small entities.

F. Report to Congress

    34. The Commission will send a copy of this Second Report and 
Order, including this FRFA, in a report to Congress pursuant to the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
801(a)(1)(A). A copy of this Second Report and Order and FRFA (or 
summary thereof) will also be published in the Federal Register, 
pursuant to 5 U.S.C.A. 604(b), and will be sent to the Chief Counsel 
for Advocacy of the Small Business Administration.

Ordering Clauses

    35. Pursuant to the authority contained in sections 4(i), 303(r), 
and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), 303(r), and 613, the Commission's rules are amended by adding a 
new Sec. 79.2 as shown in the rule changes. The amendments set forth in 
the rule changes shall become effective upon approval from the Office 
of Management and Budget.
    36. The Commission's Consumer Information Bureau, Reference 
Information Center, shall send a copy of this Second Report and Order, 
including the Final Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 79

    Closed captioning of video programming.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 79 as follows:

PART 79--CLOSED CAPTIONING OF VIDEO PROGRAMMING

    1. The authority citation for Part 79 continues to read as follows:

    Authority: 47 U.S.C. 613.


    2. Add Sec. 79.2 to read as follows:


Sec. 79.2  Accessibility of programming providing emergency 
information.

    (a) Definitions. (1) For purposes of this section, the definitions 
in Sec. 79.1 apply.
    (2) Emergency information. Information, about a current emergency, 
that is intended to further the protection of life, health, safety, and 
property, i.e., critical details regarding the emergency and how to 
respond to the emergency. Examples of the types of emergencies covered 
include tornadoes, hurricanes, floods, tidal waves, earthquakes, icing 
conditions, heavy snows, widespread fires, discharge of toxic gases, 
widespread power failures, industrial explosions, civil disorders, 
school closings and changes in school bus schedules resulting from such 
conditions, and warnings and watches of impending changes in weather.

    Note to paragraph (a)(2): Critical details include, but are not 
limited to, specific details regarding the areas that will be 
affected by the emergency, evacuation orders, detailed descriptions 
of areas to be evacuated, specific evacuation routes, approved 
shelters or the way to take shelter in one's home, instructions on 
how to secure personal property, road closures, and how to obtain 
relief assistance.

    (b) Requirements for accessibility of programming providing 
emergency information. (1) Video programming distributors must make 
emergency information, as defined in paragraph (a) of this section, 
that is provided in the audio portion of the programming accessible to 
persons with hearing disabilities, either through closed captioning or 
by using a method of visual presentation.
    (2) This rule applies to emergency information primarily intended 
for distribution to an audience in the geographic area in which the 
emergency is occurring.
    (3) Emergency information provided by means other than closed 
captioning should not block any closed captioning and any closed 
captioning provided should not block any emergency information provided 
by means other than closed captioning.
    (c) Complaint procedures. A complaint alleging a violation of this 
section may be transmitted to 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. The 
complaint should include the name of the video programming distributor 
against whom the complaint is alleged, the date and time of the 
omission of emergency information, and the type of emergency. The 
Commission will notify the video programming distributor of the 
complaint, and the distributor will reply to the complaint within 30 
days.

[FR Doc. 00-11483 Filed 5-8-00; 8:45 am]
BILLING CODE 6712-01-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>