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[Federal Register Volume 88, Number 207 (Friday, October 27, 2023)]
[Rules and Regulations]
[Pages 73758-73762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23760]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket No. 11-43; FCC 23-82; FR ID 181039]

Video Description: Implementation of the Twenty-First Century 
Communications and Video Accessibility Act of 2010

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) expands its audio description requirements by phasing them 
in for an additional 10 designated market areas (DMAs) each year until 
all DMAs are included. This action is based on a finding that the costs 
of expanding the audio description regulations to DMAs 101 through 210 
are reasonable for program owners, providers, and distributors.

DATES: Effective November 27, 2023.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Diana Sokolow, [email protected], of the Policy 
Division, Media Bureau, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order, FCC 23-82, adopted and released on October 17, 2023. 
The full test of this document will be available at https://docs.fcc.gov/public/attachments/FCC-23-82A1.pdf and via ECFS at https://www.fcc.gov/ecfs/. Documents will be available electronically in 
ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are 
available for people with disabilities (Braille, large print, 
electronic files, audio format), by sending an email to [email protected] 
or calling the Commission's Consumer and Governmental Affairs Bureau at 
(202) 418-0530 (voice), 1-844-4-FCC-ASL (1-844-432-2275) (videophone).

Synopsis

    1. In this Second Report and Order (Order), we expand our audio 
description requirements by phasing them in for an additional 10 
designated market areas (DMAs) each year until all DMAs are included. 
Such an expansion will help ensure that a greater number of individuals 
who are blind or visually impaired can be connected, informed, and 
entertained by television programming. Consistent with the requirements 
of the Twenty-First Century Communications and Video Accessibility Act 
of 2010 (CVAA), we find that the costs of expanding the audio 
description regulations to DMAs 101 through 210 are reasonable for 
program owners, providers, and distributors. No commenters oppose this 
action.
    2. Audio description makes video programming \1\ more accessible to 
individuals who are blind or visually impaired through ``[t]he 
insertion of audio narrated descriptions of a television program's key 
visual elements into natural pauses between the program's dialogue.'' 
\2\ To access audio description, consumers generally switch from the 
main program audio to the secondary audio stream on which audio 
description is typically provided. In 2011, pursuant to section 202 of 
the CVAA, the Commission adopted rules requiring certain television 
broadcast stations and multichannel video programming distributors 
(MVPDs) to provide audio description for a portion of the video 
programming that they offer to consumers. The current audio description 
rules require certain commercial television broadcast stations to 
provide 50 hours of audio-described programming per calendar quarter 
during prime time or on children's programming, as well as an 
additional 37.5 hours of audio-described programming per calendar 
quarter at any time between 6 a.m. and 11:59 p.m.\3\ The commercial 
television broadcast stations that are subject to this requirement are 
those that are affiliated with one of the top four commercial 
television broadcast networks (ABC, CBS, Fox, and NBC) and are located 
in the top television markets.\4\
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    \1\ ``Video programming'' refers to programming provided by, or 
generally considered comparable to programming provided by, a 
television broadcast station but does not include consumer-generated 
media.
    \2\ 47 CFR 79.3(a)(3).
    \3\ 47 CFR 79.3(b)(1). The rules also require ``[t]elevision 
broadcast stations that are affiliated or otherwise associated with 
any television network [to] pass through audio description when the 
network provides audio description and the broadcast station has the 
technical capability necessary to pass through the audio 
description, unless it is using the technology used to provide audio 
description for another purpose related to the programming that 
would conflict with providing the audio description.'' Id. 
79.3(b)(3). In addition, MVPD systems that serve 50,000 or more 
subscribers must provide 50 hours of audio description per calendar 
quarter during prime time or on children's programming, as well as 
an additional 37.5 hours of audio description per calendar quarter 
at any time between 6 a.m. and 11:59 p.m., on each of the top five 
national nonbroadcast networks that they carry on those systems. Id. 
79.3(b)(4). The rules also require MVPD systems of any size to pass 
through audio description provided by a broadcast station or 
nonbroadcast network, if the channel on which the MVPD distributes 
the station or programming has the technical capability necessary to 
do so and if that technology is not being used for another purpose 
related to the programming. Id. 79.3(b)(5)(i)-(ii).
    \4\ Id. 79.3(b)(1).
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    3. The 2011 Audio Description Order applied the audio description 
requirements to certain television broadcast stations in DMAs 1 through 
60.\5\ Pursuant to the requirements of the CVAA, the Commission 
submitted a report to Congress (the Second Report) to assess, among 
other topics, ``the potential costs to program owners, providers, and 
distributors in [DMAs] outside of the top 60 of creating [audio-
described] programming'' and ``the need for additional described 
programming in [DMAs] outside the top 60.'' \6\ The Media Bureau 
submitted the Second Report to Congress in October 2019, describing the 
consumer desire for application of the audio description rules outside 
the top 60 DMAs but stating that commenters did not offer ``detailed or 
conclusive information'' as to the costs of such an expansion or a 
station's ability to bear those costs. It thus deferred issuing a 
determination

[[Page 73759]]

regarding whether any costs associated with the expansion would be 
reasonable, explaining that, ``[s]hould the Commission seek to expand 
the [audio] description requirements to DMAs outside the top 60, it 
will need to utilize the information contained in this Second Report, 
and any further information available to it at the time, to determine 
that `the costs of implementing the [audio] description regulations to 
program owners, providers, and distributors in those additional markets 
are reasonable.' '' \7\
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    \5\ Video Description: Implementation of the Twenty-First 
Century Communications and Video Accessibility Act of 2010, 76 FR 
55585, para. 16 (Sept. 8, 2011) (``The rules extend the requirement 
. . . to major network affiliates in the 60 largest markets 
beginning on July 1, 2015.'') (2011 Audio Description Order).
    \6\ 47 U.S.C. 613(f)(4)(C)(iii)(IV), (VII). In the 2020 Audio 
Description Order, the Commission modernized the terminology in its 
rules by replacing the term ``video description'' with the ``more 
common and widely understood'' term ``audio description.'' Video 
Description: Implementation of the Twenty-First Century 
Communications and Video Accessibility Act of 2010, 85 FR 76480, 
paras. 14-15 (Nov. 30, 2020) (2020 Audio Description Order). When 
discussing items that use the prior terminology, we have updated the 
terminology accordingly.
    \7\ Second Report (quoting 47 U.S.C. 613(f)(4)(C)(iv)(I)).
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    4. The CVAA provides the Commission with authority ``to phase in 
the [audio] description regulations for up to an additional 10 [DMAs] 
each year,'' ``based upon the findings, conclusions, and 
recommendations contained in the [Second Report],'' ``(I) if the costs 
of implementing the [audio] description regulations to program owners, 
providers, and distributors in those additional markets are reasonable, 
as determined by the Commission; and (II) except that the Commission 
may grant waivers to entities in specific [DMAs] where it deems 
appropriate.'' \8\ Exercising this authority, the Commission adopted a 
phased expansion of the audio description rules, finding that the costs 
of the expansion to DMAs 61 through 100 are reasonable for program 
owners, providers, and distributors.\9\ The audio description 
requirements extended to DMAs 61 through 70 on January 1, 2021, to DMAs 
71 through 80 on January 1, 2022, and to DMAs 81 through 90 on January 
1, 2023. The requirements will extend to DMAs 91 through 100 on January 
1, 2024. Thus far, the timetable for the phased expansion has been 
successful, with no requests for relief under either the rule governing 
exemptions due to economic burden or the more general waiver rule.
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    \8\ 47 U.S.C. 613(f)(4)(C)(iv).
    \9\ The Commission's audio description rules define a ``video 
programming distributor'' as ``[a]ny television broadcast station 
licensed by the Commission and any [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.'' 47 CFR 79.3(a)(5). The rules also define a 
``video programming provider'' as ``[a]ny 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.'' Id. 79.3(a)(2). The 
Commission's audio description rules do not separately define the 
term ``owner.''
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    5. The 2020 Audio Description Order also indicated that the 
Commission would consider in 2023 whether to continue expanding the 
audio description requirements to an additional 10 DMAs per year, after 
assessing the reasonableness of the associated costs. The Commission 
explained that deferring a determination on the application of the 
audio description rules beyond DMA 100 ``will best enable us to 
consider the unique circumstances that may be applicable'' to the 
smallest markets, and provides ``the additional benefit of . . . any 
additional information gleaned from [the] practical experience'' of 
expansion beyond DMA 60. To foster this determination, in March 2023 
the Commission proposed to continue expanding the audio description 
requirements through a phased schedule applicable to DMAs 101 through 
210.\10\ The 2023 Audio Description FNPRM elicited four comments and 
two replies, all of which supported the Commission's proposal.
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    \10\ Video Description: Implementation of the Twenty-First 
Century Communications and Video Accessibility Act of 2010, 88 FR 
18505 (Mar. 29, 2023) (2023 Audio Description FNPRM).
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    6. We adopt the proposal contained in the 2023 Audio Description 
FNPRM to continue phasing in the audio description requirements for an 
additional 10 DMAs each year until all 210 DMAs are covered. Commenters 
unanimously support the expansion of the Commission's audio description 
rules to all remaining DMAs. As stated above, the CVAA provides the 
Commission with authority for this phase-in, ``based upon the findings, 
conclusions, and recommendations contained in the [Second Report],'' 
``(I) if the costs of implementing the [audio] description regulations 
to program owners, providers, and distributors in those additional 
markets are reasonable, as determined by the Commission; and (II) 
except that the Commission may grant waivers to entities in specific 
[DMAs] where it deems appropriate.'' \11\
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    \11\ 47 U.S.C. 613(f)(4)(C)(iv).
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    7. The record demonstrates that the costs of implementing the audio 
description regulations in markets 101 through 210 are reasonable. 
Commenters did not specify the current costs of adding description to 
television programming. However, the Commission previously found that 
such costs held steady between 2017 and 2019, indicating that they were 
at a level the Commission previously deemed ``minimal,'' and no 
commenter reported that costs have increased or objected to the 
proposal on the basis that it would impose an unreasonable cost. We 
expect that the costs of extending the audio description requirements 
to all remaining market areas should be minimal. This is because 
covered broadcasters already are required to have the equipment and 
infrastructure necessary to deliver a secondary audio stream for 
purposes of the emergency information requirements, without exception 
for technical capability or market size. Further, network affiliates in 
all DMAs are already required to pass through the audio description 
they receive via a network feed, which will mitigate any costs 
associated with the rule expansion.\12\ For all of these reasons, we 
conclude that the costs of expanding the audio description regulations 
to DMAs 101 through 210 are reasonable. To the extent a broadcaster 
finds itself in an unusual situation that makes the costs of compliance 
unreasonable, it may avail itself of the exemption procedures discussed 
below.\13\ However, based on our expertise and the record compiled in 
this proceeding, we expect such instances to be exceedingly rare.
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    \12\ In addition, as stated in the 2020 Audio Description Order, 
the Media Bureau's first report to Congress on audio description 
``concluded that the costs of complying with the audio description 
requirements were consistent with industry's expectations at the 
time the rules were adopted and had not impeded industry's ability 
to comply, and the record for the Second Report did not alter that 
conclusion.''
    \13\ As with the 2020 expansion, comments on the 2023 Audio 
Description FNPRM did not provide detailed analysis of the current 
costs of audio description, or the costs that entities in the 
additional DMAs might face as a result of the proposed expansion. 
Nonetheless, as explained herein, we believe that like 2020, the 
current record provides sufficient information to determine, as 
required under the CVAA, that the costs of implementing the audio 
description regulations to program owners, providers, and 
distributors in the additional markets are ``reasonable.'' We note 
that commenters did not provide any information that undermines our 
conclusion regarding the reasonableness of costs.
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    8. The significant benefits of expanding the audio description 
requirements to DMAs 101 through 210, when weighed against the minimal 
costs, further support expansion to these markets. The Second Report 
indicated that consumers desired an expansion of the audio description 
requirements outside the top 60 DMAs, and we believe that consumers 
will benefit from an expansion even in the smallest DMAs. In fact, 
there may be even greater benefits to applying the audio description 
rules to smaller DMAs, given American Foundation for the Blind's (AFB) 
assertion that ``there is evidence that less urbanized communities 
experience higher rates of disability, including blindness.'' AFB 
explains that the expansion should also benefit video programming 
providers, whose programming and advertising

[[Page 73760]]

will reach additional consumers. When the Commission previously 
expanded the audio description requirements to DMAs 61 through 100, the 
record indicated there would also be benefits for consumers who are not 
blind or visually impaired, such as consumers with other sensory or 
cognitive impairments, individuals learning the language, and those who 
listen to video programming while multitasking. We believe the same 
would be true with regard to expanding to DMAs 101 through 210. 
Although commenters did not provide specific data on the amount of 
audio-described programming currently available in DMAs 101 through 
210--including comparing that data to the amount that would be 
available if the Commission were to expand the audio description 
requirements to such DMAs--it is clear that expanding the audio 
description requirements to these additional markets will benefit a 
significant number of consumers.
    9. We adopt the proposal in 2023 Audio Description FNPRM to 
continue the phase-in with DMAs 101 through 110 on January 1, 2025, 
extending to 10 additional DMAs per year until the phase-in concludes 
with DMAs 201 through 210 on January 1, 2035, consistent with the 
expansion allowable under the CVAA.\14\ The Commission sought comment 
on whether it should consider phasing in the audio description 
requirements to a smaller subset of DMAs, or to a smaller number of 
DMAs per year. ACB explains that adopting an even slower expansion 
``would increase the equity gap experienced by residents of smaller 
communities, which are often rural and/or at an economic 
disadvantage.'' The record does not contain any support for a slower 
phase-in, and thus we adopt the proposed timeline contained in the 2023 
Audio Description FNPRM, which we expect will provide covered 
broadcasters with ample time to comply.
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    \14\ The CVAA does not permit the Commission to expand the audio 
description requirements to more than an additional 10 DMAs per 
year. We recognize, however, American Council of the Blind (ACB) and 
AFB's assertions that to the extent broadcasters voluntarily pass 
through audio description at an earlier date, doing so would benefit 
consumers. The National Association of Broadcasters (NAB) has 
responded that it ``will heed the disability community's requests to 
encourage television stations in markets outside the top 100 DMAs to 
implement audio description earlier than the FCC may require in 
accordance with the CVAA.'' Accordingly, while we adopt the phase-in 
schedule as proposed and consistent with the CVAA, we encourage 
television stations in markets outside the top 100 DMAs to implement 
audio description earlier to the extent they are able to do so.
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    10. We also adopt the proposal contained in the 2023 Audio 
Description FNPRM to base the extension to additional DMAs on an 
updated Nielsen determination of market rankings. We find that using 
updated Nielsen data will facilitate the efficient roll out of audio 
description obligations to all remaining DMAs, and will be consistent 
with the Commission's prior expansion of the rules from the top 25 
markets to the top 60 markets and from the top 60 markets to the top 
100 markets. The audio description rules currently utilize DMA rankings 
``as determined by The Nielsen Company as of January 1, 2020.'' \15\ 
The revised rules will utilize DMA rankings ``as determined by The 
Nielsen Company as of January 1, 2023.'' Under existing rules, the 
audio description requirements apply to the top 90 DMAs as of January 
1, 2023, and they will next extend to DMAs 91 through 100 on January 1, 
2024. We note that utilizing updated Nielsen market rankings will 
affect two DMAs that are in the top 90 DMAs utilizing the Nielsen 
figures as of January 1, 2020, that will fall within the later deadline 
for DMAs 91 through 100 utilizing the Nielsen figures as of January 1, 
2023.\16\ Conversely, there are two DMAs that are within the later 
deadline for DMAs 91 through 100 utilizing the Nielsen figures as of 
January 1, 2020, that will fall within the earlier deadline for DMAs 81 
through 90 utilizing the Nielsen figures as of January 1, 2023.\17\ ACB 
is the only commenter that addresses application of updated Nielsen 
figures, and it indicates that it ``feels strongly that regardless of 
the most recent data, once audio description has been required of a 
DMA, that mandate should not change, even if the market's ranking 
does.'' To avoid any consumer confusion, and given that ACB's request 
is unopposed, we find that stations that are currently subject to the 
deadline for DMAs 81 through 90 (January 1, 2023), but will become 
subject to the deadline for DMAs 91 through 100 (January 1, 2024) once 
the new rule takes effect, must continue complying with the audio 
description requirements during any gap between the effective date of 
the new rules and the January 1, 2024 application of the rules to DMAs 
91 through 100.\18\ In other words, stations that are already subject 
to the rules should continue their provision of this service, 
regardless of a change in their DMA status, in order to prevent 
disruption during the gap period to consumers who have come to rely on 
audio description. Consistent with the approach in the 2020 Audio 
Description Order, we expect stations in a DMA that was not in the top 
90 markets as of January 1, 2020, but is in the top 90 markets as of 
January 1, 2023, to come into compliance with the audio description 
rules by the compliance deadline for DMAs 91 through 100.\19\
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    \15\ 47 CFR 79.3(b)(1).
    \16\ The two DMAs are (1) Paducah-Cape Girardeau-Harrisburg 
(moved from DMA 84 to DMA 92) and (2) Cedar Rapids-Waterloo-Iowa 
City and Dubuque (moved from DMA 90 to DMA 93).
    \17\ The two DMAs are (1) Chattanooga (moved from DMA 92 to DMA 
84) and (2) Charleston, SC (moved from DMA 91 to DMA 88).
    \18\ We find that this approach is necessary here, whereas it 
was not utilized in the 2020 Audio Description Order, because of the 
earlier timing of the adoption of this Order (October 17, 2023 as 
compared to October 27, 2020), pursuant to which there may be a 
slightly longer time period between the effective date of the new 
rules and the next compliance deadline of January 1, 2024.
    \19\ We note that this January 1, 2024 compliance deadline is 
the date on which such stations already would have expected to 
become subject to the requirements, had we not adopted the use of 
updated Nielsen figures, so there should be no difficulty with 
complying.
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    11. Finally, we affirm the tentative conclusion in the 2023 Audio 
Description FNPRM that ``sections 79.3(d) and 1.3 provide a sufficient 
mechanism for entities seeking relief from any expansion of the audio 
description rules to additional DMAs.'' ACA Connects--America's 
Communications Association states that its support for the proposed 
expansion of the audio description requirements is conditioned upon the 
Commission adopting its proposals regarding exemption petitions and 
waivers. According to ACA Connects, ``the costs of compliance with the 
audio description rules may be most difficult to absorb by small MVPDs 
and/or MVPDs operating in the smallest market areas,'' and thus, such 
entities may need relief in the form of either an exemption due to 
economic burden or a waiver for a different reason.\20\ We find that 
the

[[Page 73761]]

existing exemption and waiver procedures will be sufficient to address 
this concern. Specifically, section 79.3 of the Commission's rules 
governs petitions for exemption due to economic burden, and section 1.3 
governs waivers of the Commission's rules generally. Under section 
79.3(d), a video programming provider \21\ may petition the Commission 
for a full or partial exemption from the audio description requirements 
upon a showing that they are economically burdensome.\22\ The CVAA 
provides that if an expansion of the audio description rules to 
additional DMAs occurs, ``the Commission may grant waivers to entities 
in specific [DMAs] where it deems appropriate.'' \23\ While section 
79.3(d) applies to instances in which an entity seeks to demonstrate 
that the extension to additional DMAs is economically burdensome, the 
CVAA specifically references waivers as a means of relief, which 
differs from the exemptions available under section 79.3(d). Hence, if 
an entity impacted by the extension believes it needs relief for some 
reason other than economic burden, it may seek a waiver under section 
1.3.\24\
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    \20\ While today we expand the number of broadcasters subject to 
the audio description requirements, we recognize that our action 
also impacts MVPDs, given that MVPDs of any size ``[m]ust pass 
through audio description on each broadcast station they carry, when 
the broadcast station provides audio description, and the channel on 
which the MVPD distributes the programming of the broadcast station 
has the technical capability necessary to pass through the audio 
description, unless it is using the technology used to provide audio 
description for another purpose related to the programming that 
would conflict with providing the audio description.'' 47 CFR 
79.3(b)(5)(i). We find that the costs of the expansion for impacted 
MVPDs are reasonable. MVPDs in the expanded markets that serve 
50,000 or more subscribers are already subject to the separate audio 
description requirements that apply directly to MVPDs. We expect 
that even small MVPDs in small markets already have the capability 
to provide audio description via a secondary audio stream, because 
video programming distributors and providers already are required to 
have the equipment and infrastructure necessary to deliver a 
secondary audio stream for purposes of the emergency information 
requirements, without exception for technical capability or market 
size. ACA Connects states that there are ``some practical 
limitations'' even where the audio description rules already apply, 
including ``the amount of programming encoded with audio 
description'' and ``the availability of a secondary audio 
programming (SAP) channel to carry the audio description.'' ACA 
Connects acknowledges that MVPDs are making progress in this area 
``as they replace legacy equipment and as the industry finds new 
solutions to facilitate distribution of multiple audio streams.'' In 
the rare instance that an MVPD in the expanded markets finds that it 
is unable to comply with the requirements by the time the relevant 
market is subject to the applicable phased compliance deadline, we 
agree with ACA Connects that the existing exemption and waiver 
procedures will suffice.
    \21\ The term ``video programming provider'' includes MVPDs.
    \22\ The term ``economically burdensome'' means imposing 
significant difficulty or expense, and the Commission considers the 
following factors in determining whether the requirements for audio 
description would be economically burdensome: (i) the nature and 
cost of providing audio 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. In addition, 
the Commission considers any other factors the petitioner deems 
relevant to the determination and any available alternative that 
might constitute a reasonable substitute for the audio description 
requirements, and it evaluates economic burden with regard to the 
individual outlet. In the First Report, the Bureau stated its belief 
``that the ability to seek an exemption on the basis of economic 
burden should alleviate the potential for undue cost burdens on 
covered entities, particularly when the rules go into effect for 
broadcast stations in television markets ranked 26 through 60 in 
2015.'' We support this finding.
    \23\ 47 U.S.C. 613(f)(4)(C)(iv)(II).
    \24\ We note that commenters raise additional issues that are 
outside the scope of this Order and thus not addressed here. Such 
proposals include the availability of customer service agents with 
knowledge of audio description, the idea of ``encourag[ing] entities 
to support the success of the expansion by informing viewers of the 
new availability of audio description and how to access it,'' and a 
requested increase in the amount of audio-described content. See ACB 
Comments at 3; AFB Comments at 4; Arona Rosegold Reply; 2020 Audio 
Description Order.
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    12. Final Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission 
has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to 
the Second Report and Order. In summary, the Second Report and Order 
expands the audio description requirements by phasing them in for an 
additional 10 designated market areas (DMAs) each year until all DMAs 
are included. The action is authorized pursuant to the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Public Law 
111-260, 124 Stat. 2751, and section 713 of the Communications Act of 
1934, as amended, 47 U.S.C. 613. The types of small entities that may 
be affected by the action fall within the following categories: 
Television Broadcasting, Wired Telecommunications Carriers, Cable and 
Other Subscription Programming, Cable Companies and Systems (Rate 
Regulation), Cable System Operators (Telecom Act Standard), and Direct 
Broadcast Satellite (DBS) Service.
    13. The projected reporting, recordkeeping, and other compliance 
requirements include phasing in the audio description requirements for 
an additional 10 DMAs each year, beginning with DMAs 101 through 110 on 
January 1, 2025 and continuing until all 210 DMAs are covered, which 
will be on January 1, 2035. The substance of the audio description 
requirements will not change, but rather, this will be an expansion of 
the DMAs in which broadcast television stations in those additional 
markets are required to comply with the requirements. The extension to 
additional DMAs will be based on an updated Nielsen determination, with 
the revised rules applying to the relevant DMAs as determined by the 
Nielsen company as of January 1, 2023. There are two DMAs that are in 
the top 90 DMAs utilizing the Nielsen figures as of January 1, 2020, 
that will fall within the later deadline for DMAs 91 through 100 
utilizing the Nielsen figures as of January 1, 2023.\25\ To avoid any 
consumer confusion, stations in those DMAs must continue complying with 
the audio description requirements during any gap between the effective 
date of the new rules and the January 1, 2024 application of the rules 
to DMAs 91 through 100.
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    \25\ The two DMAs are (1) Paducah-Cape Girardeau-Harrisburg 
(moved from DMA 84 to DMA 92) and (2) Cedar Rapids-Waterloo-Iowa 
City and Dubuque (moved from DMA 90 to DMA 93).
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    14. The Chief Counsel for Advocacy of the Small Business 
Administration (SBA) did not file any comments in response to the 
proposed rules in this proceeding.
    15. The Commission considered alternatives and adopted certain 
proposals that will minimize the impact of the rules on small entities. 
First, by continuing the phase-in by extending the requirements to an 
additional 10 DMAs per year, the Commission will ensure that the 
smallest DMAs have the longest timeframe for compliance. In the 2023 
Audio Description FNPRM, the Commission sought comment on whether it 
should phase in a smaller subset of DMAs, and whether the Commission 
should consider expanding to a smaller number of DMAs each year, such 
as five. While either such alternate approach could have mitigated the 
costs of the expansion, no commenter supports the alternate approaches, 
and one commenter expresses concern that a slower expansion would 
increase the equity gap that exists in smaller communities. Second, to 
the extent any entity in DMAs 101 through 210 finds that it is unable 
to comply with the expansion due to economic burden, it may file a 
petition for an exemption due to economic burden in accordance with 
section 79.3(d). Stations and MVPDs, including small entities, that 
need relief for some reason other than an economic burden may also 
request a waiver under section 1.3. We conclude that sections 79.3(d) 
and 1.3 provide a sufficient mechanism for entities, including smaller 
entities, seeking relief from the expansion of the audio description 
rules to additional DMAs.
    16. Paperwork Reduction Act. The Second Report and Order does not 
contain new or substantively revised information collection 
requirements subject to the Paperwork Reduction Act of 1995, Public Law 
104-13 (44 U.S.C. 3501-3520).\26\ In addition, therefore, it does not 
contain any new or modified ``information collection burden for small 
business concerns with fewer than 25 employees,'' pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4). This document may contain

[[Page 73762]]

non-substantive modifications to approved information collection(s). 
Any such modifications will be submitted to OMB for review pursuant to 
OMB's non-substantive modification process.
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    \26\ The Commission will file a non-substantive modification to 
the information collection that contains Sec.  79.3 (OMB 3060-1148), 
to clarify that the audio description requirements have been 
extended to DMAs 101 through 210.
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    17. Ordering Clauses. Accordingly, 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 the authority contained 
in Section 713 of the Communications Act of 1934, as amended, 47 U.S.C. 
613, this Second Report and Order is hereby adopted.
    18. It is further ordered that part 79 of the Commission's rules, 
47 CFR part 79, is amended as set forth in the Final Rules below, and 
such rule amendments shall be effective thirty (30) days after the date 
of publication in the Federal Register. The amendments to part 79 may 
contain non-substantive modifications to information collection 
requirements that will be submitted to the Office of Management and 
Budget for approval.
    19. It is further ordered that the Commission's Office of the 
Secretary, 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.
    20. It is further ordered that the Commission shall send a copy of 
this Second Report and Order in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 79

    Communications equipment, Television broadcasters.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rules

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

PART 79--ACCESSIBILITY OF VIDEO PROGRAMMING

0
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, 
330, 544a, 613, 617.

0
2. Amend Sec.  79.3 by revising paragraph (b)(1) to read as follows:

Sec.  79.3  Audio description of video programming.

* * * * *
    (b) * * *
    (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 90 DMAs, as determined by The Nielsen Company as of January 1, 
2023, must provide 50 hours of audio description per calendar quarter, 
either during prime time or on children's programming, and 37.5 
additional hours of audio description per calendar quarter between 6 
a.m. and 11:59 p.m. local time, on each programming stream on which 
they carry one of the top four commercial television broadcast 
networks. If a previously unaffiliated station in one of these markets 
becomes affiliated with one of these networks, it must begin compliance 
with these requirements no later than three months after the 
affiliation agreement is finalized. On January 1, 2024, and on January 
1 each year thereafter until January 1, 2035, the requirements of this 
paragraph (b)(1) shall extend to the next 10 largest DMAs as determined 
by The Nielsen Company as of January 1, 2023, as follows: On January 1, 
2024, the requirements shall extend to DMAs 91 through 100; on January 
1, 2025, the requirements shall extend to DMAs 101 through 110; on 
January 1, 2026, the requirements shall extend to DMAs 111 through 120; 
on January 1, 2027, the requirements shall extend to DMAs 121 through 
130; on January 1, 2028, the requirements shall extend to DMAs 131 
through 140; on January 1, 2029, the requirements shall extend to DMAs 
141 through 150; on January 1, 2030, the requirements shall extend to 
DMAs 151 through 160; on January 1, 2031, the requirements shall extend 
to DMAs 161 through 170; on January 1, 2032, the requirements shall 
extend to DMAs 171 through 180; on January 1, 2033, the requirements 
shall extend to DMAs 181 through 190; on January 1, 2034, the 
requirements shall extend to DMAs 191 through 200; and on January 1, 
2035, the requirements shall extend to DMAs 201 through 210;
* * * * *
[FR Doc. 2023-23760 Filed 10-26-23; 8:45 am]
BILLING CODE 6712-01-P
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