[Federal Register Volume 82, Number 153 (Thursday, August 10, 2017)]
[Rules and Regulations]
[Pages 37345-37354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15526]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket No. 11-43; FCC 17-88]


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 Commission adopts rules pursuant to 
Section 202 of the Twenty-First Century Communications and Video 
Accessibility Act of 2010 (CVAA) to expand the availability of video 
described programming on top-rated broadcast and nonbroadcast networks. 
Specifically, the document adopts the proposal to increase the amount 
of described programming on each ``included network'' carried by a 
covered broadcast station or multichannel video programming distributor 
(MVPD), from 50 hours per calendar quarter to 87.5 hours per quarter. 
Covered broadcast stations and MVPDs must start providing the 
additional hours of video described programming on ``included 
networks'' in the calendar quarter beginning on July 1, 2018. The 
document also provides more flexibility than exists under the 
Commission's current rules regarding when the additional hours of 
described programming may be aired. This update to the Commission's 
video description rules will help ensure that Americans who are blind 
or visually impaired can be connected, informed, and entertained by 
television.

DATES: Effective September 11, 2017.

FOR FURTHER INFORMATION CONTACT: Maria Mullarkey, 
[email protected], or Lyle Elder, [email protected], of the 
Media Bureau, Policy Division, (202) 418-2120. For additional 
information concerning the Paperwork Reduction Act information 
collection requirements contained in this document, contact Cathy 
Williams at (202) 418-2918 or send an email to [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, FCC 17-88, adopted on July 11, 2017, and released on July 
12, 2017. The full text of this document is available electronically 
via the FCC's Electronic Document Management System (EDOCS) Web site at 
http://fjallfoss.fcc.gov/edocs_public/ or via the FCC's Electronic 
Comment Filing System (ECFS) Web site at http://fjallfoss.fcc.gov/ecfs2/. Documents will be available electronically in ASCII, Microsoft 
Word, and/or Adobe Acrobat. This document is also available for public 
inspection and copying during regular business hours in the FCC 
Reference Information Center, Federal Communications Commission, 445 
12th Street SW., CY-A257, Washington, DC 20554. 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), (202) 418-0432 (TTY).

I. Introduction

    1. In this Report and Order, we expand the availability of video 
described programming on top-rated broadcast and nonbroadcast networks. 
Specifically, we adopt the proposal to increase the amount of described 
programming on each ``included network'' \1\ carried by a covered 
broadcast station or multichannel video programming distributor (MVPD), 
from 50 hours per calendar quarter to 87.5 hours per quarter. Covered 
broadcast stations and MVPDs must start providing the additional hours 
of video described programming on ``included networks'' in the calendar 
quarter beginning on July 1, 2018. We also provide more flexibility 
than exists under our current rules regarding when the additional hours 
of described programming may be aired. This update to our rules will 
help ensure that Americans who are blind or visually impaired can be 
connected, informed, and entertained by television.
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    \1\ An ``included network'' is a network carried on a 
programming stream or channel on which a broadcaster or MVPD is 
required to provide video description. Video Description: 
Implementation of the Twenty-First Century Communications and Video 
Accessibility Act of 2010, Notice of Proposed Rulemaking, 81 FR 
33642, May 27, 2016, 31 FCC Rcd 2463, 2464, n.4 (2016) (NPRM).

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[[Page 37346]]

II. Background

    1. In 2011, the Commission reinstated the video description 
regulations that previously were adopted in 2000, requiring certain 
television broadcast stations and MVPDs to provide video description on 
top-rated networks.\2\ Video description makes video programming 
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.'' \3\ These rules play a key role in affording 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.''
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    \2\ 47 CFR 79.3. See generally Video Description: Implementation 
of the Twenty-First Century Communications and Video Accessibility 
Act of 2010, Report and Order, 26 FCC Rcd 11847 (2011) 
(Reinstatement Order). See also Video Description: Implementation of 
the Twenty-First Century Communications and Video Accessibility Act 
of 2010, Notice of Proposed Rulemaking, 26 FCC Rcd 2975 (2011). 
Video description rules were initially adopted in 2000, but were 
struck down due to lack of authority. Implementation of Video 
Description of Video Programming, MM Docket No. 99-339, Report and 
Order, 15 FCC Rcd 15230 (2000), recon. granted in part and denied in 
part, Implementation of Video Description of Video Programming, MM 
Docket No. 99-339, Memorandum Opinion and Order on Reconsideration, 
16 FCC Rcd 1251 (2001), vacated sub nom, Motion Picture Ass'n of 
Am., Inc. v. FCC, 309 F.3d 796 (D.C. Cir. 2002). The history of the 
Commission's video description rules and their reinstatement under 
the CVAA, as well as the current requirements under those rules, are 
discussed in depth in both the 2014 Report to Congress and the 
Notice of Proposed Rulemaking in this proceeding. Twenty-First 
Century Communications and Video Accessibility Act of 2010, Public 
Law 111-260, 124 Stat. 2751 (2010) (CVAA); H.R. Rep. No. 111-563, 
111th Cong., 2d Sess. at 19 (2010); S. Rep. No. 111-386, 111th 
Cong., 2d Sess. at 1 (2010); Video Description: Implementation of 
the Twenty-First Century Communications and Video Accessibility Act 
of 2010, Report to Congress, 29 FCC Rcd 8011 (2014) (2014 Report); 
47 U.S.C. 613(f)(3); NPRM, paras. 3-7.
    \3\ 47 CFR 79.3(a)(3).
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    2. Currently, the Commission's video description rules require 
commercial broadcast television stations that are affiliated with ABC, 
CBS, Fox, or NBC and are located in the top 60 television markets to 
provide 50 hours per calendar quarter of video described prime time or 
children's programming.\4\ In addition, MVPD systems 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 of 
the top five national nonbroadcast networks that they carry on those 
systems.\5\ The nonbroadcast networks currently subject to these video 
description requirements are USA, TNT, TBS, History, and Disney 
Channel.\6\ Any programming initially aired with video description must 
include video description if it is re-aired on the same station or MVPD 
channel, unless the station or MVPD is using the technology for another 
program-related purpose.\7\
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    \4\ Id. Sec.  79.3(b)(1)-(2).
    \5\ Id. Sec.  79.3(b)(4).
    \6\ Video Description: Implementation of the Twenty-First 
Century Communications and Video Accessibility Act of 2010, Order 
and Public Notice, 30 FCC Rcd 2071, 2071, para. 1 (2015). The list 
of the top five networks is updated every three years in response to 
any changes in ratings. 47 CFR 79.3(b)(4). The next update will be 
in effect on July 1, 2018 based on the ratings for the time period 
from October 2016 to September 2017.
    \7\ 47 CFR 79.3(c)(3), 79.3(c)(4)(i)-(ii).
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    3. In the Notice of Proposed Rulemaking in this proceeding (NPRM) 
(81 FR 33642, May 27, 2016), we proposed revisions to our rules that 
would expand the availability of, and support consumer access to, video 
described programming.\8\ Among other proposals, we proposed to 
increase the amount of described programming on each included network 
carried by a covered broadcast station or MVPD, from 50 hours per 
calendar quarter to 87.5, and we sought comment on whether to provide 
more flexibility to covered entities by allowing some amount of non-
prime time, non-children's described programming to count toward the 
increased hours. We also sought comment on our tentative conclusion 
that the benefits of the proposed rules outweigh the costs, and on 
other issues such as appropriate timelines for the proposals. We take 
no action on our other NPRM proposals at this time.\9\
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    \8\ See generally NPRM.
    \9\ We also sought comment in the NPRM on proposals to increase 
the number of included networks carried by covered distributors, 
from four broadcast and five nonbroadcast networks to five broadcast 
and ten nonbroadcast networks; adopt a no-backsliding rule; remove 
the threshold requirement that nonbroadcast networks reach 50 
percent of pay-TV (or MVPD) households in order to be subject to 
inclusion; require that covered distributors provide dedicated 
customer service contacts who can answer questions about video 
description; and require that petitions for exemptions from the 
video description requirements, together with comments on or 
objections to such petitions, be filed with the Commission 
electronically.
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III. Authority

    4. We conclude that we have the authority under the Twenty-First 
Century Communications and Video Accessibility Act of 2010 (CVAA) to 
increase the number of hours of described programming on each included 
network by 75 percent, from 50 hours per calendar quarter to 87.5 hours 
per quarter. This conclusion is consistent with Section 713(f)(4) of 
the Communications Act of 1934, as amended (``Continuing Commission 
Authority''),\10\ Section 713(f)(4) states that the Commission may not 
issue additional video description rules unless their benefits outweigh 
their costs, and ``may not increase, in total, the hour requirement for 
additional described programming by more than 75 percent of the 
requirement in the regulations reinstated under'' Section 713(f)(1).
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    \10\ Section 713 of the Act was amended by Section 202(a) of the 
CVAA and is codified at 47 U.S.C. 613.
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    5. In the NPRM, we explained that our continuing authority is 
limited by the express requirement in Section 713(f)(4)(A) that the 
need for and benefits of any new or expanded regulations outweigh their 
costs, as well as by the express limitations set out in subsection 
(f)(4)(B) with respect to total described hours and subsection 
(f)(4)(C) regarding the expansion of video description requirements to 
additional designated market areas (DMAs).\11\ As noted in the NPRM, 
the statute provides that any new requirements must be limited to 
programming transmitted for display on television (that is, by 
broadcasters and MVPDs).\12\ In this Order, we conclude that the new 
requirements we adopt herein are consistent with the limitations in the 
statute. We note that, as required in subsection (f)(4)(A), more than 
two years have passed since the completion of the CVAA-mandated report 
to Congress on video description ``in television programming'' and ``in 
video programming distributed on the Internet.'' \13\ Further, the 
additional regulations adopted today apply only to ``programming . . . 
transmitted for display on television.'' \14\ As discussed below, we 
also find that ``the need for and benefits of'' the regulations ``are 
greater than the[ir] technical and economic costs'' for the rules we 
adopt herein. Finally, consistent with subsection (f)(4)(B), the 
additional regulations do not increase the hour requirement ``by more 
than 75 percent

[[Page 37347]]

of the requirement in the regulations reinstated.'' \15\
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    \11\ NPRM, paras. 8, 13-15. The CVAA prohibits the Commission, 
until October 8, 2020, from phasing in additional DMAs outside the 
top 60. 47 U.S.C. 613(f)(4)(C)(iii)-(iv).
    \12\ NPRM, para. 16; 47 U.S.C. 613(f)(4)(A).
    \13\ 47 U.S.C. 613(f)(4)(A). In particular, on June 30, 2014, 
the Commission submitted a report to Congress presenting its 
findings on the technical and creative issues, benefits, and 
financial costs of video description in television programming, as 
well as on the technical and operational issues, benefits, and costs 
of providing video description for IP-delivered video programming. 
See generally 2014 Report. See also NPRM, para. 7.
    \14\ 47 U.S.C. 613(f)(4)(A).
    \15\ The requirement in the reinstated regulations is 50 hours 
of video description on each programming stream or channel per 
calendar quarter. 47 CFR 79.3(b)(1)-(2), (4). 75 percent of those 50 
hours is 37.5 hours. Accordingly, 87.5 hours per quarter represents 
a 75 percent increase in the number of hours of video description 
(50 + 37.5 = 87.5). We have not expanded the number of DMAs, which 
we conclude we may not do until 2020 at the earliest. 47 U.S.C. 
613(f)(4)(C)(iii)-(iv).
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IV. Increased Availability of Video Described Programming

A. Additional Hours

    6. The CVAA provides that the Commission may increase ``in total'' 
the hour requirement by no more than 75 percent, up to a total of 87.5 
hours per quarter, and we proposed to adopt such an increase in the 
NPRM.\16\ Based on our analysis of the benefits and costs of the 
proposal as required under Section 713(f)(4)(A) of the Communications 
Act, we adopt our proposed increase in this Order.\17\ Thus, we will 
require each covered broadcast station and MVPD, on each stream or 
channel on which it carries an ``included network,'' to provide 87.5 
hours of described programming, per quarter.\18\ Our decision to 
increase the number of required hours of video description per included 
network is supported by the record. Almost every commenter who 
addressed this issue supports the proposed increase to 87.5 hours per 
quarter,\19\ and only one commenter opposes it.\20\ Although this is 
the maximum increase permissible under the CVAA, the total number of 
hours required per included network will be limited, averaging less 
than one hour per day.\21\ We find that implementing the maximum 
increase at this time, rather than a partial increase, will provide the 
most benefit to consumers without resulting in excessive costs. As 
discussed below, we also provide more flexibility than exists under our 
current rules regarding when the additional hours of described 
programming may be aired.
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    \16\ NPRM, para. 18. See also 47 U.S.C. 613(f)(4)(B).
    \17\ Absent Congressional action, the Commission does not have 
authority to further increase the number of hours of video described 
programming required per quarter on any specific network beyond the 
87.5 hours adopted today. NPRM, para. 13. However, we encourage all 
networks to continue to expand their video described offerings.
    \18\ We also delete what was formerly Sec.  79.3(b)(1) of the 
rules, which specified the video description requirements that were 
in effect prior to July 1, 2015, and were superseded on that date. 
This rule is obsolete and has no current effect, and its substance 
is now covered by the new paragraph (b)(1) (what was formerly 
paragraph (b)(2)).
    \19\ See, e.g., MPAA Comments at 1; ACB Comments at 3; AFB 
Comments at 1; MCB Reply at 1; ABVI Reply at 1; Barlow Comments at 
1; Grossman Comments at 1; Merriweather Comments at 1; Pinto 
Comments at 1; Zodrow Comments at 1; Swartz Reply at 1.
    \20\ See NAB Reply at 3-9.
    \21\ Thirteen weeks per calendar quarter, seven days per week, 
means an average of 91 days per quarter. Given that the updated 
requirement calls for only 87.5 hours of described programming per 
quarter, this averages out to less than one hour per day of 
described programming on any given included network.
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    7. On any given day, the average American can choose to watch any 
program on any one of approximately 264 channels.\22\ That adds up to 
roughly 6,000 hours of linear television options, from which that 
average American chooses about five hours of programming to watch over 
the course of the day.\23\ Ideally, viewers who are blind or visually 
impaired would have the same range of options, including the same 
freedom to select and independently view and follow any of the 
programming for which they pay.\24\ Instead, many find that ``the 
current amount of available audio-described content [is] significantly 
below demand'' and indicate that they have difficulty finding programs 
with video description.\25\ Television programming is a shared piece of 
American culture \26\ that the blind and visually impaired community is 
unable to fully experience without video description.\27\ For people 
with blindness and visual impairments, video description has been shown 
not only to increase comprehension of television programming, but also 
to increase opportunities to discuss television programs with sighted 
people.\28\ As a result of increased video description requirements, 
persons who are blind or visually impaired will be able to engage more 
fully in television viewing, increasing their social inclusion within 
community life. Nonetheless, as we noted in the NPRM, we must ``seek to 
ensure that consumers are able to realize the benefits of video 
description'' while ``keeping in mind our Congressional directive to 
proceed judiciously with any expansion of the requirements.''
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    \22\ Implementation of Section 3 of the Cable Television 
Consumer Protection and Competition Act of 1992; Statistical Report 
on Average Rates for Basic Service, Cable Programming Service, and 
Equipment, MM Docket No. 92-266, Report on Cable Industry Prices, 31 
FCC Rcd 11498, 11508-09, Tbls. 4, 5 (2016) (showing an increased 
average of 264.4 total available channels on the most subscribed 
tiers of service). Close to 90 percent of American television 
households subscribe to MVPD service. Annual Assessment of the 
Status of Competition in the Market for the Delivery of Video 
Programming, MB Docket No. 15-158, Seventeenth Report, 31 FCC Rcd 
4472, 4514, para. 102 (2016).
    \23\ John Koblin, How Much Do We Love TV? Let Us Count the Ways, 
N.Y. Times, June 30, 2016, available at http://www.nytimes.com/2016/07/01/business/media/nielsen-survey-media-viewing.html.
    \24\ Although over-the-air viewers have access to a smaller 
range of options, that is true regardless of whether they are blind 
or visually impaired. The virtue of equivalent access remains the 
same.
    \25\ ACB October 26, 2016 Ex Parte, ACB Survey Finds Need for 
Increased Audio Description, at 1 (ACB Survey) (reporting that over 
75% of survey respondents ``strongly agree that a greater amount of 
audio-described programming is needed,'' and that 45% of survey 
respondents ``have difficulty in finding programs with audio 
description'').
    \26\ See David Carr, Barely Keeping Up in TV's New Golden Age, 
N.Y. Times, Mar. 9, 2014, available at http://www.nytimes.com/2014/03/10/business/media/fenced-in-by-televisions-excess-of-excellence.html.
    \27\ See 2014 Report, para. 2. See also ACB Survey at 1 
(reporting that over 75% of survey respondents ``strongly agree that 
a greater amount of audio-described programming is needed'').
    \28\ Emilie Schmeidler and Corinne Kirchner, Ph.D., Adding Audio 
Description: Does it Make a Difference?, 95 Journal of Visual 
Impairment & Blindness 197 (2001).
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    8. As required by the statute, we find that the benefits of 
increasing the required number of hours of described programming by 
37.5 hours per quarter are greater than the costs. The costs are 
minimal and represent a very small percentage of total programming 
expenses and network revenues.\29\ Although the price for adding 
description to television programming can vary, based on filings in the 
docket we estimate that the maximum cost per hour is $4,202.50.\30\ 
Because a given hour of described programming can be counted twice 
toward the requirements of the rules (once when initially aired, and 
once when rerun), any given included network would need a total of 175 
hours of first-run described programming on that network per year to 
comply with the expanded video description requirement adopted 
today.\31\ For the nine networks required

[[Page 37348]]

to provide 50 hours of video description per quarter, we estimate the 
cost of increasing the number of hours of described programming to 87.5 
hours per quarter is approximately $315,000 per year.\32\
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    \29\ Moreover, such costs might be partially offset by increases 
in advertising revenue due to additional audience reach.
    \30\ NAB, in a 2013 submission, estimated that the cost of one 
hour of video description lies between $2,500 and $4,100. NAB Sept. 
4, 2013 Comments at 4. Because producing video described programming 
is a labor intensive task, we adjust the reported costs to reflect 
the change in wages in the media industry. See The Described and 
Captioned Media Program, DCMP's Description Tip Sheet (rev. Jan. 
2012), available at https://dcmp.org/ai/227/ (visited Oct. 17, 
2016). We adjust this cost estimate by 2.5 percent because the mean 
wage in media occupations increased by 2.5 percent between 2013 and 
2015. Adjusting the NAB estimates yields a range of $2,562.50 to 
$4,202.50, and we use this upper bound in our calculations 
throughout this item. See United States Department of Labor, Bureau 
of Labor Statistics, Occupational Employment Statistics (2013, 
2015), available at http://www.bls.gov/oes/tables.htm. On the other 
hand, one commenter noted that production costs have fallen in the 
past five years and are expected to continue to fall due to entry by 
firms into the video description industry because of increased 
demand for video description services, and therefore the estimates 
given above may be high. See Dicapta Comments at 1.
    \31\ 87.5 hours per quarter x times; 4 quarters = 350 hours, 
divided in half (175) because each described hour can be counted 
twice.
    \32\ 37.5 additional hours per quarter x 4 quarters = 150, 
divided in half (75) because each described hour can be counted 
twice. 75 hours x $4,202.50 per hour = $315,187.5. For the currently 
included broadcast networks, the cost of the additional 37.5 hours 
of described programming per quarter would approximate one hundredth 
of one percent of their programming costs and net revenues. For the 
currently included nonbroadcast networks, the cost of the additional 
37.5 hours of described programming per quarter would range from 
0.02 to 0.08 percent of their programming costs, and from 0.01 to 
0.04 percent of their net revenues. Programming expenses and net 
operating revenue come from SNL Kagan, TV Network Profile and 
Economics (2017). Programming expenses are defined by SNL Kagan as 
the direct cost of creating, acquiring, and distributing content and 
services. Programming expenses and net operating revenue are 
available for each of the four broadcast networks (ABC, NBC, CBS, 
and Fox) and the five nonbroadcast networks (USA, TNT, TBS, Disney 
Channel, and History) required to provide video description under 
the current rules. Programming expenses range from $2.5 billion to 
$3.9 billion for the broadcast networks and from $394 million to 
$1.6 billion for the nonbroadcast networks. Net operating revenue 
ranges from $3.4 billion to $5.2 billion for the broadcast networks 
and from $870 million to $3.4 billion for the nonbroadcast networks. 
Based on this data, we conclude that the costs of increasing the 
required number of hours of described programming by 37.5 hours will 
not impose an undue burden on regulatees.
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    9. The benefits of additional description, while less easy to 
quantify than the relatively low costs of providing it, are nonetheless 
substantial. Longstanding evidence indicates that persons who are blind 
or visually impaired have television viewing habits that are comparable 
to those who are not.\33\ Studies have also shown that persons who are 
blind or visually impaired subscribe to MVPD services in roughly the 
same proportion as other Americans.\34\ Nothing in the current record 
suggests otherwise and, indeed, there is no reason to believe that 
those who are blind or visually impaired would not seek to access a 
medium of communications as central to American life and culture as 
television in the same way, and at the same rates, as other Americans. 
Estimates of the number of Americans who are blind or visually impaired 
range from seven million to over 23 million.\35\ Thus, the number of 
Americans who could benefit from video description is substantial.
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    \33\ Jaclyn Packer, Ph.D. & Corinne Kirchner, Ph.D., Who's 
Watching? A Profile of the Blind and Visually Impaired Audience for 
Television and Video (1997), available at http://www.afb.org/info/programs-and-services/public-policy-center/technology-and-information-accessibility/whos-watching-a-profile-of-the-blind-and-visually-impaired-audience-for-television-and-video/1235 (Who's 
Watching? Report).
    \34\ Id. (``Blind and visually impaired people . . . subscribe 
to cable television, to the same extent as other households.'').
    \35\ The Census Bureau estimates the total blind or visually 
impaired population is 7,333,805. United States Census Bureau, 
American Community Survey, Table B18103 (2015), available at http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_15_1YR_B18103&prodType=table. According to 
the Centers for Disease Control and Prevention (CDC), 23.7 million 
Americans age 18 and older reported experiencing vision loss. 
American Foundation for the Blind, Blindness Statistics, Facts and 
Figures on Adults with Vision Loss (updated Jan. 2017), available at 
www.afb.org/info/blindness-statistics/adults/facts-and-figures/235 
(citing CDC, National Center for Health Statistics, 2015 National 
Health Interview Survey). Of these 23.7 million, 14.4 million women 
and 9.3 million men report experiencing significant vision loss. Id. 
The National Eye Institute (NEI) estimates the blind or visually 
impaired population over 40 years old is 12,440,000. Varma et al., 
Visual Impairment and Blindness in Adults in the United States: 
Demographic and Geographic Variations from 2015 to 2050, 134 (7) 
JAMA Ophthalmology 802-809 (2016).
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    10. Commenters who are blind or visually impaired emphasize the 
need for greater amounts of video described programming,\36\ as well as 
the substantial benefits of this service.\37\ There is considerable 
evidence that video description of television programming significantly 
enhances the value of television programming to individuals who are 
blind or visually impaired. Many television programs contain visual 
elements that are crucial to understanding what is happening, and are 
missed by those who are blind or visually impaired.\38\ The 
Commission's 2014 Report found that video description greatly enhances 
the experience of viewing video programming because viewers who are 
blind or visually impaired no longer miss critical visual elements of 
television programming and, therefore, can fully understand and enjoy 
the program without having to rely on their sighted family members and 
friends to narrate these visual elements.\39\ Commenters express that 
this ability to watch video programming independently is an incredibly 
important benefit of video description.\40\

[[Page 37349]]

The Described and Captioned Media Program (DCMP) and the American 
Council of the Blind (ACB) also note the benefits of video description 
to children and individuals on the autism spectrum, because it can help 
with the development of vocabulary.\41\
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    \36\ See AFB Comments at 2 (``[D]emand for, and interest in, 
described TV is overwhelming and can only be expected to grow.''); 
ACB Comments at 1 (noting that, as the ``incidence of blindness'' 
continues to significantly increase, this will ``continue[] to 
create an increase in demand for accessible video programming''); 
ACB Reply at 4 (explaining that, while a wide breadth of programming 
is closed captioned for individuals who are deaf or hard of hearing, 
``the blindness community is relegated[sic] to a handful of hours 
each week during prime-time, or at odd intervals''). See also, e.g., 
Brack Reply at 1 (offering support for expanding the amount of video 
description because only ``[a] relatively small portion of shows has 
description''); Correia Reply at 1 (stating that ``many of my most 
favorite shows are still not available with audio description'' and 
that the proposed increase ``will mean that I will be able to enjoy 
many more of my favorite programs''); Crawford Reply at 1 (``There 
is no question that the amount of programming I watch would increase 
if I had a larger selection of choices [that are video 
described].''); Crumley Reply at 1 (stating that video description 
``should be expanded as much as possible''); Huffman Reply at 1 
(``The number of audio-described programs remains low.''); Hunsinger 
Reply at 1 (urging the FCC to make more video description 
available); Getz Reply at 1 (``I very much enjoy the television 
programming [that] is currently being described, however, the shows 
I am able to fully enjoy is[sic] much too limited at this time.''); 
ABVI Reply at 1 (``Currently, only a small fraction of all 
television programming is required to be audio described.''); 
Lieberg Reply at 1 (``[W]e who rely on description have very few 
hours per week and very few programs from which to choose.''); 
Pimley Reply at 1 (noting that there are ``only very, very, few 
hours of video description''); Swartz Reply at 1 (imploring the FCC 
``[i]n the strongest possible terms'' to increase the number of 
programs with video description); Zaken Reply at 1 (requesting that 
the FCC make more video description available on television so 
``that I will be able to listen to more programs'').
    \37\ See, e.g., Brack Reply at 1 (explaining that ``[t]he added 
value of description to television shows . . . for a person who is 
blind is immeasurable'' and ``it offers a night-and-day difference 
in both understanding and enjoying programming''); Doane Reply at 1 
(``[V]ideo description gives blind and visually impaired people 
knowledge that we can share with others in conversation and allows 
us to make informed opinions on the programming.''); Edwards Reply 
at 1 (noting that ``[t]here is clearly a huge benefit to be gained'' 
by increasing the number of hours of video description by 75 
percent); Grenevitch Reply at 1 (``It is hard for me to put into 
words what audio description adds to programming for a visually 
impaired individual. You do not realize how many important details 
you have been missing until you hear a program described.''); Hasley 
Reply at 1 (``Increasing availability of such description will allow 
greater access to the entertainment, education, and information 
provided by television programming, for a large population of 
viewers.''); Strzalkowski Reply at 1 (``Audio description makes it 
possible to understand what is happening and to feel a part of the 
cultural experience that is television.''); Tobin Reply at 1 
(stating that the ``importance of audio description in my life 
cannot be overstated'' and ``the impact . . . is profound, as the 
narrative elements of the description make television . . . come 
alive for me'').
    \38\ Who's Watching? Report (``People who have experienced video 
description feel that it affords important benefits, which fall into 
the categories of enhanced viewing, learning, and social 
experiences.''; ``The vast majority of blind and visually impaired 
people who have experienced description say that it is important to 
their enjoyment of programming.'').
    \39\ 2014 Report, paras. 14-15. See also NPRM, paras. 9-10.
    \40\ 2014 Report, para. 15. See, e.g., Smith Comments at 1 
(explaining that video description benefits individuals who are 
blind because it gives them greater independence and the ability to 
understand television programs); Zodrow Comments at 1 (``Having 
video description now is very beneficial for me as a totally blind 
person because now I don't have to rely on someone else that's 
sighted [to] explain to me what is happening on the screen. . . . I 
can now understand what's going on during a TV program and know what 
the characters are doing.''); ABVI Reply at 1 (``It means enjoying a 
program or movie with your spouse or family as an equal rather than 
someone who needs an explanation of what is happening.''); Sorenson 
Reply at 1 (``Watching tv with audio description gives me more 
understanding about the action on the screen.'').
    \41\ DCMP and ACB, Listening Is Learning, How Does Description 
Benefit Students Without Visual Impairments?, http://listeningislearning.org/background_description-no-bvi.html (last 
visited Oct. 12, 2016).
---------------------------------------------------------------------------

    11. Through its enactment of the CVAA, Congress acknowledged the 
value of video description. Indeed, the importance of accessibility of 
video programming to persons who are blind or visually impaired 
underlies several provisions of the CVAA. Congress mandated not only 
that the Commission require video description, but also that emergency 
information contained in video programming, as well as the user 
interfaces on navigation devices and other digital apparatus that allow 
users to navigate video programming, be made accessible to those who 
are blind or visually impaired.\42\ Furthermore, in addition to its 
considerable benefits to the millions of individuals who are blind or 
visually impaired today, television programming that is produced with 
video description now will continue to benefit the growing population 
of people with blindness or a visual impairment when it is shown again 
in the future, thus increasing its value. The National Eye Institute 
estimates that the blind or visually impaired population will double by 
2050.\43\
---------------------------------------------------------------------------

    \42\ Twenty-First Century Communications and Video Accessibility 
Act of 2010, Public Law 111-260, 124 Stat. 2751, secs. 202, 204-205 
(2010).
    \43\ Varma et al.
---------------------------------------------------------------------------

    12. Although we do not assign a specific monetary value to the 
benefits these additional hours of described programming will provide 
to the millions of persons who are blind or visually impaired,\44\ we 
find that the benefits exceed the relatively low costs.\45\
---------------------------------------------------------------------------

    \44\ It is difficult to quantify in monetary terms the intrinsic 
benefits of video description for people who are blind or visually 
impaired, and there are no quantitative estimates of the value of an 
additional hour of video described television programming for a 
blind or visually impaired individual. See, e.g., Brack Reply at 1 
(``The added value of description to television shows . . . for a 
person who is blind is immeasurable.''). Even very low estimates of 
the value indicate that it would take only a small number of viewers 
who are blind or visually impaired to get more benefit from 
described programming than the cost of describing it. NCTA promotes 
on its Web site an estimate of the ``viewing value by the hour'' of 
cable programming. This estimate--$0.26 per hour--reflects the price 
for enjoying each hour of cable video service, which presumably is 
an estimate of its value. See NCTA, Industry Data, https://www.ncta.com/industry-data. Viewers who are blind or visually 
impaired get some value from television programming even without 
video description. Assuming conservatively that, without the benefit 
of video description, such viewers get 75 percent of the enjoyment 
of a sighted viewer (or $0.195 per hour), adding video description 
might add $0.065 of value per hour, per viewer (to equal $0.26, 
NCTA's estimate of the total value of an hour of programming). As 
discussed above, we estimate the highest potential cost for 
describing an hour of programming to be $4,202.50. At $0.065 per 
person, 64,654 viewers equal $4,202.51. Various governmental 
estimates place the number of persons who are blind or visually 
impaired at between 7,333,805 and 23,700,000. Thus, even accepting 
NCTA's low estimate of the value of an hour of programming for the 
sake of argument, benefits that reached only a fraction of citizens 
who are blind or visually impaired -0.3 to 0.9 percent depending on 
the estimate--would nonetheless outweigh costs. And this calculation 
does not even take into account the benefits to the friends and 
family of persons who are blind or visually impaired, or the 
benefits to networks and distributors of increases in viewership.
    \45\ NAB argues that the preliminary cost-benefit analysis in 
the NPRM forms an insufficient basis for the adoption of any new 
rules. NAB Reply at 3-9. As always, however, we do not adopt any 
rules based on the analysis in the NPRM. As discussed throughout 
this Order, our finding that ``the need for and benefits of'' the 
new rules ``are greater than the technical and economic costs'' is 
based on a comprehensive analysis of the available facts in the 
record. NAB has submitted no sound basis to reach a different 
conclusion here. As stated above, the total number of described 
hours required under our revised rules is modest (requiring an 
average of less than one hour of described programming per day) and 
accordingly will not impose a significant burden on included 
networks. We have designed our rules to further minimize the burden 
on included networks by providing flexibility on when the additional 
hours of described programming may be aired and allowing a given 
hour of described programming to be counted twice, once when 
initially aired and once when rerun. We thus reject NAB's argument 
that the new rules are not sufficiently supported by a cost-benefit 
analysis.
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B. Increased Flexibility

    13. In addition to increasing the required hours of video described 
programming, we also provide more flexibility than exists under our 
current rules regarding when the additional hours of described 
programming may be aired. Several industry commenters argue without 
opposition that ``[t]he Commission should incorporate flexibility into 
any rules increasing the number of hours.'' \46\ MPAA argues that we 
should consider ``whether to allow additional types of programming to 
count toward the hourly video description requirement if the 
requirement is moved from 50 hours to 87.5 hours per quarter.'' \47\ 
Time Warner ``agrees with other commenters that additional flexibility 
is essential'' if the Commission adopts such an increase.\48\ While 
commenters generally did not respond to the Commission's inquiry about 
changing the rule to allow some or all described programming to air 
between 6 a.m. and midnight, industry commenters agreed that ``the 
Commission should [ ] consider allowing additional types of programming 
to count towards the rule.'' \49\
---------------------------------------------------------------------------

    \46\ NCTA Comments at 14-15.
    \47\ MPAA Comments at 12.
    \48\ Time Warner Reply at 4. See also NAB Reply at 18.
    \49\ NAB Reply at 19.
---------------------------------------------------------------------------

    14. We will provide flexibility regarding when the additional 
required hours may be aired, but retain our current rule with respect 
to the existing hour requirement. Specifically, although we will 
continue to require included networks to provide 50 hours per quarter 
of video described programming during prime time or children's 
programming,\50\ we will permit the additional 37.5 hours per quarter 
to be provided at any time between 6 a.m. and midnight.\51\ We noted in 
the NPRM that, while ``we have no evidence of compliance difficulties 
for covered distributors or the currently-included networks'' operating 
under the current rules, we recognize that some parties may not have 
sufficient eligible prime time and children's programming to meet our 
increased hour requirement.\52\ Commenters provide some examples of 
situations in which, they claim, certain programmers would be unable to 
comply with the expanded hour obligation by describing prime time or 
children's programming, even if they described all such non-exempt 
programming.\53\ The added flexibility provided under our new rules 
should alleviate this concern.\54\
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    \50\ 50 hours/quarter in prime time or children's programming is 
the amount required under the current rules. 47 CFR 79.3(b).
    \51\ To avoid ambiguity, the rule refers to 11:59 p.m. rather 
than midnight. See National Institute of Standards and Technology, 
Times of Day FAQs, available at https://www.nist.gov/pml/time-and-frequency-division/times-day-faqs.
    \52\ NPRM, paras. 18-19.
    \53\ See, e.g., Time Warner Reply at 4 (a significant amount of 
programming was aired with description, but had been previously 
aired with description and counted toward the requirements more than 
once); NAB Reply at 18-19 (a broadcast network carries ``relatively 
fewer hours of children's programming''); NCTA September 19, 2016 Ex 
Parte (all programming was described reruns).
    \54\ To the extent that any individual network has problems 
satisfying the new hour requirement even with this flexibility, it 
may file a waiver request with the Media Bureau. 47 CFR 1.3, 0.283.
---------------------------------------------------------------------------

    15. Commenters suggest a number of additional ways to provide 
included networks with more flexibility to satisfy the increased hour 
requirement. We find that these suggested measures are unnecessary in 
light of the timing flexibility we are providing, as well as ill-
advised. NCTA suggests permitting distributors to average their 
compliance

[[Page 37350]]

across multiple quarters.\55\ Although unlikely, this could mean, in 
practice, that a network could air a year's worth of described 
programming in one quarter, and none at all the rest of the year. We 
find that the ability to vary compliance with the hour requirement in 
this manner would have the potential to upset consumer expectations and 
significantly undermine the value of video description to those who 
rely upon it. It would not serve the needs of individuals who are blind 
or visually impaired to have no video described programming on a 
channel for an entire quarter. NAB suggests increasing the number of 
times a program and its reruns can be counted toward the hour 
requirement, from twice to ``three or four or more'' times.\56\ This 
would ultimately reduce the overall amount of described programming 
available to consumers, because some networks might rerun the same 
described programming over and over. At the same time, the majority of 
top networks that air primarily first-run programming in prime time 
would continue to need to produce the same amount of new described 
programming, meaning this change would not give them additional 
flexibility. Time Warner proposes that we permit networks to count 
described hours provided on affiliated networks to satisfy the hour 
requirement for the primary network.\57\ This, too, would undermine the 
purpose of the rules, which are designed to ensure that programming on 
the most popular networks is described.\58\ While we appreciate the 
desire for flexibility reflected in these proposals, we decline to 
adopt them for the reasons explained above.
---------------------------------------------------------------------------

    \55\ NCTA Comments at 15. See also Time Warner Reply at 5.
    \56\ NAB Reply at 18.
    \57\ Time Warner Reply at 5.
    \58\ Other proposals are less problematic but are rendered 
unnecessary given the approach we have adopted. For instance, NCTA 
proposes to create a categorical exemption if all eligible 
programming in a quarter is described. NCTA Comments at 15. This 
does not seem likely to occur now that 18 hours a day of programming 
are eligible to count toward the description requirement, but, as 
discussed below, if it does occur we will consider that circumstance 
when deciding whether to grant a waiver.
---------------------------------------------------------------------------

    16. We recognize, however, that some networks may have a difficult 
time meeting the new hour requirement in specific calendar quarters, 
even with the additional flexibility we are providing. For example, 
Time Warner argues that TNT, an included network, carried a significant 
amount of live programming in prime time in the second quarter of 2016, 
and as a result just barely met the existing 50 hour quarterly 
requirement.\59\ In addition to the increased flexibility we provide to 
programmers to meet our hour requirement, distributors and included 
networks continue to be permitted to petition for waivers if needed. 
Some commenters argue that ``potentially frequent waiver requests'' 
under an ``ad hoc waiver process'' are insufficient to resolve certain 
problems that need to be considered ``at the outset'' to avoid 
impacting program scheduling.\60\ Parties made the same arguments prior 
to the reinstatement of the video description rules.\61\ As we observed 
in the NPRM, however, not a single waiver request has been filed in the 
more than five years since the rules became effective, and under the 
rules we adopt today, included networks will not need to provide any 
more description during prime time or children's programming than they 
do under the reinstated rules. Therefore, we do not foresee that the 
new rules will create any problems with program scheduling or that 
regulatees will have difficulty complying with our revised rules. 
Nonetheless, we continue to emphasize that waiver requests may be filed 
if our requirements are infeasible or prove to be unduly burdensome 
under particular circumstances.
---------------------------------------------------------------------------

    \59\ Time Warner Reply at 4.
    \60\ See, e.g., NCTA Comments at 14; Time Warner Reply at 6. See 
also NCTA July 5, 2017 Ex Parte at 1 (proposing ``that the 
Commission provide additional flexibility in its rules--either 
through providing a safe harbor or an appropriately-framed 
exemption'').
    \61\ Reinstatement Order, para. 46.
---------------------------------------------------------------------------

    17. Although the record does not suggest that either broadcast 
stations or MVPDs will typically have difficulty complying with our 
revised rules, it does suggest that compliance problems could arise in 
two atypical circumstances.\62\ First, a network may be carrying an 
unusually large amount of live or near-live programming due to special 
events during a single calendar quarter (the Olympics, March Madness, 
etc.).\63\ Second, a network may be airing an unusually large number of 
video-described reruns during a particular quarter. Bearing these 
concerns in mind, we will look favorably upon waiver requests 
demonstrating that:
---------------------------------------------------------------------------

    \62\ See, e.g., Time Warner Reply at 4-5; NCTA Comments at 14; 
NCTA September 19, 2016 Ex Parte.
    \63\ See Time Warner Reply at 4. However, we note that some live 
programming has been provided with video description. See, e.g., 
NPRM, n.47 (citing articles about NBC's video-described production 
of `The Wiz Live!').
---------------------------------------------------------------------------

     All pre-recorded programming between 6 a.m. and midnight 
in the relevant calendar quarter is being described, even if not all of 
it can be counted toward the rules \64\; and
---------------------------------------------------------------------------

    \64\ Although we received no comments on this issue, we 
recognize that broadcast networks do not program a broadcast 
station's full day. Broadcast stations also program part of the 
broadcast day independently of their network, airing locally 
originated programming and syndicated programming. Therefore, in the 
case of waiver requests from broadcasters or broadcast networks, we 
will also look favorably on waiver requests demonstrating that all 
non-``live or near-live'' programs provided in hours programmed by 
the broadcast network are described. Also, for all covered networks 
filing waiver requests, to the extent they have not provided video 
description on all pre-recorded programming they are, of course, 
free to make a showing that reasonable circumstances prevent their 
having done so.
---------------------------------------------------------------------------

     The petitioner commits to provide additional hours of 
video description in calendar quarters other than the one for which it 
is seeking the waiver,\65\ or commits to provide the additional hours 
of video description in the same calendar quarter but on an affiliated 
network.\66\
---------------------------------------------------------------------------

    \65\ If a waiver were granted, the petitioners would shift some 
hours of video described programming to a different quarter than the 
one in which they would otherwise be counted. As a result, there 
should be no additional burden on covered parties. Although 
description is most beneficial when it is consistently available, 
additional description always provides value to consumers, both in 
the quarter when it airs and whenever the programming is rerun with 
description. 47 CFR 79.3(c)(3), (4). Finally, this potential waiver 
condition is distinguishable from the NCTA proposal to permit 
distributors to average their compliance across multiple quarters, 
both because it will be of limited duration and because it depends 
on Commission review and approval rather than the discretion of 
regulatees, and will consequently be easier to monitor and enforce. 
It also is distinguishable from the NCTA proposal because it is 
unlikely to lead to a scenario where a network airs no or very 
little video described programming during a quarter, which could 
happen under NCTA's proposal. That proposal would place no limits on 
the circumstances in which a network could move video described 
programming to a different calendar quarter, and would not require 
that any video described programming at all be aired in a particular 
quarter.
    \66\ The Commission will evaluate whether the affiliated network 
receives MVPD coverage and viewership sufficient to make it an 
adequate substitute for the network on which video description is 
required to be provided.
---------------------------------------------------------------------------

    If both of these conditions are met, we believe that it is more 
likely than not that consumer needs will still be met at the level 
contemplated by these rules without unduly burdening the industry.

C. Timing

    18. The revised rule will be effective 30 days after publication in 
the Federal Register, and covered broadcast stations and MVPDs must 
start providing the additional hours of video described programming on 
``included networks'' in the calendar quarter beginning on July 1, 
2018. We sought comment in the NPRM on an appropriate compliance 
deadline for the rule. In particular, we

[[Page 37351]]

noted that when we reinstated the video description rules in 2011, the 
time from their release to the full compliance date was approximately 
ten months, and we asked whether we should allow a similar amount of 
time for distributors to come into compliance.\67\ We also noted that 
July 1, 2018 is the date on which the updated list of included 
nonbroadcast networks will go into effect, based on the ratings period 
from October 2016 to September 2017, and we inquired whether the 
compliance deadline for the rules should coincide with this date.\68\ 
Some commenters argue for compliance to be required as soon as 
possible,\69\ while others either support a longer period to come into 
compliance or were silent on the issue.\70\ To provide sufficient time 
for distributors to ensure that included networks provide an additional 
37.5 hours of described programming per quarter, we will give covered 
entities until July 1, 2018, the date of the next three-year network 
list update, to come into compliance.\71\ Given that currently covered 
networks already have processes in place for creating and complying 
with the video description requirements, we believe that giving them a 
one-year period to provide an additional 37.5 hours of video described 
programming per quarter is reasonable.\72\ We therefore will require 
that the additional hours of described programming be provided by the 
four broadcast and five nonbroadcast networks covered by the rules in 
the calendar quarter beginning July 1, 2018.
---------------------------------------------------------------------------

    \67\ NPRM, para. 30.
    \68\ Id. See AT&T Comments at 1 (stating that July 1, 2018 
should be the ``effective date for the modified video description 
network and hours requirements'' to coincide with the start of the 
next three-year cycle for covered non-broadcast networks).
    \69\ See, e.g., Zodrow Comments at 2; Grossman Comments at 1.
    \70\ See, e.g., NAB Reply at 16-17 (suggesting a compliance 
period of two years from the effective date of the rules); NCTA 
Comments at 19 (requesting an 18-month compliance period). See also 
MPAA Comments at 14 (stating that ``any significant changes in the 
video description rules will require additional time to 
implement''). Of note, the compliance timeframes cited in the 
aforementioned comments are based on the assumption that the 
Commission would adopt all of the proposals set forth in the NPRM, 
including the proposed expansion to new networks. Because the 
Commission has chosen to take an incremental approach, and this 
Order adopts only one of those proposals--an increased hours 
requirement for currently covered broadcast stations and MVPDs--we 
do not agree that an extended compliance period of 18 months to two 
years is necessary.
    \71\ Some commenters suggest a shorter compliance deadline of 
less than one year. See, e.g., Dicapta Comments at 5 (arguing for 
the hours increase to go into effect within one month for currently 
included networks). In addition, as we noted in the NPRM, the 
reinstated rules gave newly covered networks less than one year 
(approximately ten months) to begin the process of providing video 
description and to fully comply with the Commission's new 
requirements. See NPRM, para. 30. However, we believe that it is 
better for the compliance deadline to coincide with the next three-
year update of the list of covered nonbroadcast networks than to 
have a shorter time frame. In particular, any of the currently 
covered nonbroadcast networks may fall out of the top-five based on 
network ratings and, if so, will no longer be subject to the 
requirement to provide video description as of July 1, 2018. Under 
such circumstances, a covered nonbroadcast network would have to 
take steps to increase its video described hours, only to find 
itself a few months later not to be subject to the video description 
requirement at all. This may also create an expectation in consumers 
that they can rely on that network for increased video described 
programming, only to have such requirement last for a few short 
months. For these reasons, we believe that it is reasonable to align 
the compliance deadline with the network update so that only those 
networks responsible for compliance as of July 1, 2018 are required 
to provide the additional hours of video description, though we 
encourage any network that falls off the list to continue to provide 
video description.
    \72\ Because a given hour of described programming can be 
counted twice toward the requirements of the rules (once when 
initially aired, and once when rerun), the total number of new hours 
of described programming per year needed to comply with the expanded 
video description requirement is actually 75.
---------------------------------------------------------------------------

V. Procedural Matters

A. Final Regulatory Flexibility Analysis

    1. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA) \73\ an Initial Regulatory Flexibility Analysis (IRFA) 
was incorporated in the NPRM in this proceeding. The Commission sought 
written public comment on the proposals in the NPRM, including comment 
on the IRFA. The Commission received no comments on the IRFA. This 
present Final Regulatory Flexibility Analysis (FRFA) conforms to the 
RFA.\74\
---------------------------------------------------------------------------

    \73\ See 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. 847 (1996). 
The SBREFA was enacted as Title II of the Contract With America 
Advancement Act of 1996 (CWAAA).
    \74\ See 5 U.S.C. 604.
---------------------------------------------------------------------------

1. Need for, and Objectives of, the Report and Order
    2. This Report and Order, adopts the proposal to increase the 
amount of video described programming on each ``included network'' 
carried by a covered broadcast station or multichannel video 
programming distributor (MVPD), from 50 hours per calendar quarter to 
87.5 hours per quarter. Covered broadcast stations and MVPDs must start 
providing the additional hours of described programming on ``included 
networks'' in the calendar quarter beginning on July 1, 2018. The 
Report and Order also provides more flexibility than exists under the 
current rules regarding when the additional hours of described 
programming may be aired. In particular, the additional 37.5 hours per 
quarter of described programming can be provided at any time between 6 
a.m. and midnight. This update to our rules will help ensure that 
Americans who are blind or visually impaired can be connected, 
informed, and entertained by television.
    3. Legal Basis. The authority for the action taken 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 Section 713 of the Communications Act of 1934, as amended, 47 
U.S.C. 613.
2. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA
    4. No comments were filed in response to the IRFA.
    5. Pursuant to the Small Business Jobs Act of 2010, the Commission 
is required to respond to any comments filed by the Chief Counsel for 
Advocacy of the Small Business Administration (SBA), and to provide a 
detailed statement of any change made to the proposed rules as a result 
of those comments. The Chief Counsel did not file any comments in 
response to the proposed rules in this proceeding.
3. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply
    6. 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 rules adopted in the Report and Order.\75\ The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' small organization,'' and ``small 
government jurisdiction.'' \76\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\77\ 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

[[Page 37352]]

additional criteria established by the SBA.
---------------------------------------------------------------------------

    \75\ Id. sec. 603(a)(3).
    \76\ Id. sec. 601(6).
    \77\ Id. sec. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 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.'' 5 U.S.C. 601(3).
---------------------------------------------------------------------------

    7. Television Broadcasting. This Economic Census category 
``comprises establishments primarily engaged in broadcasting images 
together with sound.'' These establishments operate television 
broadcast 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 the public on a 
predetermined schedule. Programming may originate in their own studio, 
from an affiliated network, or from external sources. The SBA has 
created the following small business size standard for such businesses: 
Those having $38.5 million or less in annual receipts. The 2012 
Economic Census reports that 751 firms in this category operated in 
that year. Of that number, 656 had annual receipts of $25,000,000 or 
less, 25 had annual receipts between $25,000,000 and $49,999,999, and 
70 had annual receipts of $50,000,000 or more. Based on this data we 
therefore estimate that the majority of commercial television 
broadcasters are small entities under the applicable SBA size standard.
    8. The Commission has estimated the number of licensed commercial 
television stations to be 1,384. Of this total, 1,264 stations (or 
about 91 percent) had revenues of $38.5 million or less, according to 
Commission staff review of the BIA Kelsey Inc. Media Access Pro 
Television Database (BIA) on February 24, 2017, and therefore these 
licensees qualify as small entities under the SBA definition. In 
addition, the Commission has estimated the number of licensed 
noncommercial educational (NCE) television stations to be 394. 
Notwithstanding, 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.
    9. We note, however, that in assessing whether a business concern 
qualifies as ``small'' under the above definition, business (control) 
affiliations 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. In addition, 
another element of the definition of ``small business'' requires that 
an 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 broadcast station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which rules may apply does not exclude any television station from the 
definition of a small business on this basis and is therefore possibly 
over-inclusive.
    10. There are also 1,965 LPTV stations, 417 Class A stations, and 
3,778 TV translator stations. Given the nature of these services, we 
will presume that all of these entities qualify as small entities under 
the above SBA small business size standard.
    11. Wired Telecommunications Carriers. The U.S. Census Bureau 
defines this industry as ``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 communications 
networks. Transmission facilities may be based on a single technology 
or a combination of technologies. Establishments in this industry use 
the wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services, wired (cable) audio and video programming 
distribution, and wired broadband internet services. By exception, 
establishments providing satellite television distribution services 
using facilities and infrastructure that they operate are included in 
this industry.'' The SBA has developed a small business size standard 
for Wired Telecommunications Carriers, which consists of all such 
companies having 1,500 or fewer employees. Census data for 2012 show 
that there were 3,117 firms that operated that year. Of this total, 
3,083 operated with fewer than 1,000 employees. Thus, under this size 
standard, the majority of firms in this industry can be considered 
small.
    12. Cable and Other Subscription Programming. This industry 
comprises establishments primarily engaged in operating studios and 
facilities for the broadcasting of programs on a subscription or fee 
basis. The broadcast programming is typically narrowcast in nature 
(e.g., limited format, such as news, sports, education, or youth-
oriented). These establishments produce programming in their own 
facilities or acquire programming from external sources. The 
programming material is usually delivered to a third party, such as 
cable systems or direct-to-home satellite systems, for transmission to 
viewers. The SBA has established a size standard for this industry 
stating that a business in this industry is small if it has 1,500 or 
fewer employees. The 2012 Economic Census indicates that 367 firms were 
operational for that entire year. Of this total, 357 operated with less 
than 1,000 employees. Accordingly we conclude that a substantial 
majority of firms in this industry are small under the applicable SBA 
size standard.
    13. Cable Companies and Systems (Rate Regulation). 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. 
Industry data indicate that there are currently 4,600 active cable 
systems in the United States. Of this total, all but eleven cable 
operators nationwide are small under the 400,000-subscriber size 
standard. In addition, under the Commission's rate regulation rules, a 
``small system'' is a cable system serving 15,000 or fewer subscribers. 
Current Commission records show 4,600 cable systems nationwide. Of this 
total, 3,900 cable systems have fewer than 15,000 subscribers, and 700 
systems have 15,000 or more subscribers, based on the same records. 
Thus, under this standard as well, we estimate that most cable systems 
are small entities.
    14. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, 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.'' There are approximately 52,403,705 
cable video subscribers in the United States today. Accordingly, an 
operator serving fewer than 524,037 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. Based on available data, we find that all but nine incumbent 
cable operators are small entities under this size standard. 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. 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.

[[Page 37353]]

    15. 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 is now included in SBA's economic census 
category ``Wired Telecommunications Carriers.'' The Wired 
Telecommunications Carriers 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 combination of technologies. Establishments in this industry use the 
wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services, wired (cable) audio and video programming 
distribution; and wired broadband internet services. By exception, 
establishments providing satellite television distribution services 
using facilities and infrastructure that they operate are included in 
this industry. The SBA determines that a wireline business is small if 
it has fewer than 1500 employees. Census data for 2012 indicate that 
3,117 wireline companies were operational during that year. Of that 
number, 3,083 operated with fewer than 1,000 employees. Based on that 
data, we conclude that the majority of wireline firms are small under 
the applicable standard. However, currently only two entities provide 
DBS service, which requires a great deal of capital for operation: 
DIRECTV (owned by AT&T) and DISH Network. DIRECTV and DISH Network each 
report annual revenues that are in excess of the threshold for a small 
business. Accordingly, we must conclude that internally developed FCC 
data are persuasive that in general DBS service is provided only by 
large firms.
4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    16. In this section, we describe the reporting, recordkeeping, and 
other compliance requirements adopted in the Report and Order and 
consider whether small entities are affected disproportionately by 
these requirements.
    17. Reporting Requirements. The Report and Order does not adopt 
reporting requirements.
    18. Recordkeeping Requirements. The Report and Order does not adopt 
recordkeeping requirements.
    19. Other Compliance Requirements. The Report and Order does adopt 
other compliance requirements. Specifically, the new rules require each 
covered broadcast station and MVPD, on each stream or channel on which 
it carries an ``included network,'' to provide 87.5 hours of described 
programming, per quarter. Covered broadcast stations and MVPDs must 
start providing the additional hours of described programming on 
``included networks'' in the calendar quarter beginning on July 1, 
2018. Currently, the Commission's video description rules require 
commercial television broadcast stations that are affiliated with ABC, 
CBS, Fox, or NBC and are located in the top 60 television markets to 
provide 50 hours per calendar quarter of video described prime time or 
children's programming. In addition, MVPD systems 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 of 
the top five national nonbroadcast networks that they carry on those 
systems. We do not believe that this compliance requirement will 
disproportionately affect small entities, but we have described ways in 
which the Commission's rules will minimize the impact on such entities 
(see discussion below).
5. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    20. 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.\78\
---------------------------------------------------------------------------

    \78\ 5 U.S.C. 603(c)(1)-(c)(4).
---------------------------------------------------------------------------

    21. The obligation to provide 87.5 hours of video described 
programming per quarter applies to commercial television broadcast 
stations that are affiliated with ABC, CBS, Fox, or NBC and are located 
in the top 60 television markets, as well as MVPD systems that serve 
50,000 or more subscribers. Thus, the rules adopted in this Report and 
Order may have an economic impact on small entities. In formulating the 
final rules, however, the Commission has considered methods to minimize 
the economic impact on small entities. In particular, the Report and 
Order provides more flexibility than exists under the current rules 
regarding when the additional hours of described programming may be 
aired to reduce any potential burden that covered entities may 
encounter in scheduling video described programming. The new rule 
allows covered broadcast stations and MVPDs to provide the additional 
37.5 hours per quarter of described programming at any time between 6 
a.m. and midnight. The Report and Order also emphasizes that waiver 
requests may be filed if our requirements are infeasible or prove to be 
unduly burdensome under particular circumstances. This process will 
allow the Commission to address the impact of the rules on individual 
entities, including smaller entities, on a case-by-case basis and to 
modify the application of the rules to accommodate individual 
circumstances, which can reduce the costs of compliance for these 
entities.
    22. Overall, we believe we have appropriately considered both the 
interests of individuals with disabilities and the interests of the 
entities who will be subject to the rules, including those that are 
smaller entities, consistent with Congress' goal to ``update the 
communications laws to help ensure that individuals with disabilities 
are able to fully utilize communications services and equipment and 
better access video programming.'' \79\
---------------------------------------------------------------------------

    \79\ H.R. Rep. No. 111-563, 111th Cong., 2d Sess. at 19 (2010); 
S. Rep. No. 111-386, 111th Cong., 2d Sess. at 1 (2010).
---------------------------------------------------------------------------

6. Report to Congress
    23. The Commission will send a copy of the Report and Order, 
including this FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act.\80\ In addition, the Commission will send a 
copy of the Report and Order, including this FRFA, to the Chief Counsel 
for Advocacy of the SBA. The Report and Order and FRFA (or summaries 
thereof) will also be published in the Federal Register.\81\
---------------------------------------------------------------------------

    \80\ See 5 U.S.C. 801(a)(1)(A).
    \81\ See id. sec. 604(b).
---------------------------------------------------------------------------

B. Final Paperwork Reduction Act of 1995 Analysis

    24. This Report and Order does not contain information collections 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. In addition, pursuant to the Small Business Paperwork Relief Act of 
2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4),

[[Page 37354]]

the Commission previously sought specific comment on how we might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.''

VI. Ordering Clauses

    1. 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 Report and 
Order is hereby adopted.
    2. It is further ordered that part 79 of the Commission's rules, 47 
CFR part 79, is amended as set forth herein, and such rule amendments 
shall be effective September 11, 2017.
    3. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.
    4. It is further ordered that the Commission shall send a copy of 
this 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

    Cable television operators, Multichannel video programming 
distributors (MVPDs), Satellite television service providers.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 79 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), removing and 
reserving paragraph (b)(2), and revising paragraphs (b)(4), (c)(2), and 
(c)(4) introductory text.
    The revisions read as follows:


Sec.  79.3  Video description of video programming.

* * * * *
    (b) * * *
    (1) Beginning July 1, 2015, 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 60 DMAs, as determined by 
The Nielsen Company as of January 1, 2015, must provide 50 hours of 
video description per calendar quarter, either during prime time or on 
children's programming, and, beginning July 1, 2018, 37.5 additional 
hours of video 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 
station in one of these markets becomes affiliated with one of these 
networks after July 1, 2015, it must begin compliance with these 
requirements no later than three months after the affiliation agreement 
is finalized;
* * * * *
    (4) Multichannel video programming distributor (MVPD) systems that 
serve 50,000 or more subscribers must provide 50 hours of video 
description per calendar quarter during prime time or children's 
programming, and, beginning July 1, 2018, 37.5 additional hours of 
video description per calendar quarter between 6 a.m. and 11:59 p.m. 
local time, 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 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. Initially, the top five networks 
are those determined by The Nielsen Company, for the time period 
October 2009-September 2010, and will update at three year intervals. 
The first update will be July 1, 2015, based on the ratings for the 
time period October 2013-September 2014; the second will be July 1, 
2018, based on the ratings for the time period October 2016-September 
2017; and so on; and
* * * * *
    (c) * * *
    (2) In order to meet its quarterly requirement, a broadcaster or 
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 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 quarterly requirement for that network only.
* * * * *
    (4) Once an MVPD as defined under paragraph (b)(4) of this section:
* * * * *

[FR Doc. 2017-15526 Filed 8-9-17; 8:45 am]
 BILLING CODE 6712-01-P