[Federal Register Volume 64, Number 230 (Wednesday, December 1, 1999)]
[Proposed Rules]
[Pages 67236-67244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31116]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 99-339; FCC 99-353]
Implementation of Video Description of Video Programming
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This document proposes to adopt limited requirements for
television video description. The Commission seeks comment on ways to
increase the availability of video
[[Page 67237]]
description. This action is intended to ensure the availability of
video description for the benefit of all Americans with visual
disabilities in accordance with the Telecommunications Act of 1996.
DATES: Comments are due on or before January 24, 2000; reply comments
are due on or before February 23, 2000.
ADDRESSES: Federal Communications Commission, 445 12th Street, Room TW-
A306, SW, Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Eric Bash, Policy and Rules Division,
Mass Media Bureau, (202) 418-2130.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (``NPRM''), FCC 99-339, adopted November 18,
1999; released November 18, 1999. The full text of the Commission's
NPRM is available for inspection and copying during normal business
hours in the FCC Dockets Branch (Room TW-A306), 445 12 St. SW,
Washington, DC. The complete text of this NPRM may also be purchased
from the Commission's copy contractor, International Transcription
Services, (202) 857-3800, 1231 20th St., NW, Washington, DC 20036.
Synopsis of Notice of Proposed Rulemaking
I. Introduction
1. Television plays a significant role in our society. Television
programming shapes public opinion and culture in myriad ways. It is the
principal source of news and information and provides hours of
entertainment every week to American homes. For the millions of
Americans with visual disabilities--who watch television in similar
numbers and with similar frequency to the general population--the
difficulty of being able to follow the visual action in television
programs puts them at a significant disadvantage. This disadvantage can
be overcome through the use of video description, through which
narrated descriptions of a television program's key visual elements are
inserted during the natural pauses in the program's dialogue. Video
description is typically provided through the use of the Secondary
Audio Programming channel so that it is audible only to those who wish
to hear the narration. The narration generally describes settings and
actions that are not otherwise reflected in the dialogue, such as the
movement of a person in the scene. In this NPRM, we propose to adopt
limited requirements to ensure that video description is more available
so that all Americans can enjoy the benefits of television. We expect
to expand these requirements once we have gained greater experience
with video description.
2. Public television has been airing described video programming
for more than a decade. WGBH's Descriptive Video Service (DVS) has
described more than 1600 PBS programs, and in the fall of 1998 provided
video description of three daily programs, four weekly programs,
selected episodes of three other series and several specials. Many
commercial broadcasters also have the technical ability to air
described video programming, but few have done so. Many cable systems
have the capability to provide described programming, but do so only on
very limited channels, such as the Turner Classic Movies channel, and
none of this programming is available without the assistance of public
funding. As a result, less than 1% of all programming contains video
description.
3. The Commission has previously conducted inquiries on video
description. The Commission issued its first Notice of Inquiry
(``NOI'') on video description in 1995, 60 FR 65052 (December 18,
1995). Section 713(f) of the Act, added by the 1996 Act, directed the
Commission to commence an inquiry on video description, and report to
Congress on its findings. Using the record adduced in response to the
First NOI, the Commission issued the required report to Congress in
1996, 61 FR 42249 (August 14, 1996). The Commission then issued a
second NOI in 1997, 62 FR 38088 (July 16, 1997), and submitted more
information to Congress on video description in its 1997 annual report
on competition in the markets for the delivery of video programming, 63
FR 10222 (March 2, 1998). The availability of video description has not
meaningfully improved during the past several years while these
proceedings were ongoing.
4. Various parties have asked the Commission to take steps to
enhance the availability of video description. As discussed, the
Commission has received two specific proposals to implement the
service, both of which suggest that we phase in video description over
a number of years. In addition, the President's Advisory Committee on
the Public Interest Obligations of Digital Television Broadcasters has
encouraged digital broadcasters to provide video description. The
Commission has also received letters of support from Congress and
industry. Through this proceeding, we seek comment on ways to increase
the availability of video description, without imposing an undue burden
on industry.
II. Background
5. Audience for Video Description. Video description is designed to
make television programming more accessible to persons with visual
disabilities, and enable them to ``hear what they cannot see.'' Thus,
the primary audience for video description is persons with visual
disabilities. Estimates of the number of persons with visual
disabilities range from more than eight million to nearly twelve
million. The group includes persons with a problem seeing that cannot
be corrected with ordinary glasses or contact lenses, with a range in
severity.
6. A disproportionate number of persons with visual disabilities
are older. The National Center for Health Statistics reports that eye
problems are the third leading cause, after heart disease and
arthritis, of restricting the normal daily activities of persons 65
years of age or older. While only 2-3% of the population under 45 years
of age has visual disabilities, 9-14% of the population 75 years of age
or older does. This means that as the population ages, more and more
people will become visually disabled.
7. Secondary audiences for video description exist as well. For
example, at least one and a half million children between the ages of 6
and 14 with learning disabilities may benefit from video description.
Because the medium has both audio description and visual appeal, it has
significant potential to capture the attention of learning disabled
children and enhance their information processing skills. Described
video programming capitalizes on the different perceptual strengths of
learning-disabled children, pairing their more-developed modality with
their less-developed modality to reinforce comprehension of
information.
8. The secondary audience may also include persons without
disabilities. Just as health club members and sports bar patrons have
become beneficiaries of closed captioning, viewers who are doing
several things at once, who need to attend to something during a
program, or who leave the room during a program, may become
beneficiaries of video description. In fact, the Narrative Television
Network, which provides video description that is ``open'' and
therefore cannot be turned off, reports that 60% of its audience is not
visually disabled.
9. Technology. Video description can be either ``open'' or
``closed.'' Open description is provided as part of the main soundtrack
of a program. As a result, no special equipment is needed for a
broadcaster or multichannel video
[[Page 67238]]
programming distributor (MVPD) to transmit the descriptions or for the
viewer to receive them. The descriptions cannot, however, be turned
off.
10. Closed description is provided on the Secondary Audio
Programming, or SAP, channel. The SAP channel allows for an additional
audio soundtrack for a program, independent of or separate from the
monaural and stereophonic soundtracks. A secondary carrier, or
subcarrier, transmits the SAP channel audio soundtrack through a
modulator. When the SAP channel is used, a programming distributor
transmits two separate audio tracks. The second audio track is
transmitted with the main program signal. For example, the SAP channel
as currently used by PBS for its video description is transmitted with
the main program signal from the network's master control facility and
satellite distribution system to the local station's broadcast facility
and through the local transmitter. To accommodate the additional
soundtrack, changes may need to be made to some network and local
stations' plant wiring and equipment. At the local transmitter, the
broadcast station or cable operator must have the technical facilities
to pass through the subcarrier signal to include the SAP channel
information.
11. The CPB-WGBH National Center for Accessible Media (NCAM)
reports that, as of 1998, 156 public television stations reaching 79
million (80%) of TV households had installed the necessary equipment to
distribute descriptions via SAP. In addition, each of the four largest
commercial television networks (ABC, CBS, Fox, NBC) offered Spanish
audio on the SAP channel last year. According to NCAM, in the top 25
DMAs, 81% of one major commercial network's affiliates are SAP-
equipped, and, in the top 50 DMAs, 69% of cable systems are. NCAM also
reports that SAP has been a standard feature of stereo broadcasting for
the past fifteen years; as of 1997, 650 TV stations broadcast in
stereo, amounting to roughly 40% of total TV stations. For those
stations that are not yet SAP-equipped, NCAM estimates that the cost to
update equipment to become so is between $5,000 and $25,000, based on
the experience of the noncommercial stations that are SAP-capable.
12. To receive information contained within the SAP channel, a
viewer must have a receiver (TV set) capable of delivering it.
According to the Consumer Electronics Manufacturers Association, as of
January 1998, 59% of TV sets sold, and 90% of VCRs sold, have stereo
capability, and most of these are SAP-equipped. The Commission observed
several years ago that 52% of American households at the time had SAP-
compatible TV sets, and 20% had such VCRs. SAP-capable TV sets and VCRs
can be relatively inexpensive, less than $150, and a converter box is
also available for use with TV sets and VCRs that are not SAP-capable.
13. Prior Video Description Inquiries. The Commission first
considered video description when it issued a NOI on closed captioning
and video description on December 4, 1995. Several months later, the
Telecommunications Act of 1996 became law. Section 305(f) of the 1996
Act added new section 713 to the Communications Act of 1934. Entitled
``Video Programming Accessibility,'' section 713 addressed closed
captioning and video description.
14. On July 29, 1996, the Commission released the required report,
based on the record adduced in response to the NOI. The Commission did
not issue specific guidance on the criteria enumerated in section 713,
because ``the present record on which to assess video description * * *
is limited, and the emerging nature of the service renders definitive
conclusions difficult.'' However, the Commission noted that ``the
development of rules for closed captioning, which is more widely
available, can provide a useful model for the process of phasing in
broadened use of video description.'' The Commission concluded that it
should monitor the service and seek more information in the context of
its annual report on competition in the market for the delivery of
video programming.
15. On January 13, 1998, the Commission released its second report
on video description, as part of its annual report to Congress on
competition in the market for video programming. In the Fourth Annual
Report, the Commission stated that ``it is certain that `closed' video
description is feasible,'' given that it is already being provided by
some, such as PBS. The Commission noted the expense of providing the
service, citing, for example, information provided by WGBH that the
expense of describing programming was approximately $3,400 per hour,
and that the expense of noncommercial broadcasters that have upgraded
equipment to become SAP-capable ranged from $5000 to $25,000.
16. Coalition and NCAM Proposals. Following the Fourth Annual
Report, NCAM submitted a proposal to phase in video description. This
proposal was based on an earlier one submitted by the National
Coalition of Blind and Visually Impaired Persons for Increased Video
Access (Coalition), but modified and updated to take into account the
Commission's closed captioning rules.
17. NCAM proposes that initial video description requirements apply
to the largest broadcast networks (ABC, CBS, Fox, NBC, and PBS), and
national non-broadcast networks, such as cable networks, that serve 50%
or more of the total number of MVPD households. In order to ensure that
video description provided by these distributors is capable of being
received by viewers, NCAM proposes local pass-through requirements on a
staggered schedule. Thus, NCAM suggests that by the end of the first
year after any Commission rules become effective, affiliates of the
broadcast networks identified in the top 25 markets would be required
to pass through the description provided by the networks, and all cable
systems in the top 25 markets would be required to pass through the
description provided by those broadcasters and by national non-
broadcast networks serving 50% or more of the total number of MVPD
households. By the end of the second year, these requirements would be
extended to the top 50 markets; by the end of the third year, to the
top 100 markets; and by the end of the fourth year, to the top 200
markets.
18. Both the Coalition and NCAM propose that initial video
description requirements apply to prime time and children's
programming, and suggest that requirements for other programming be
deferred for several years until the infrastructure for video
description has developed more, and the Commission, the industry, and
the public have gained more experience with the technology. Both the
Coalition and NCAM propose that the requirements be phased in over a
seven-year period. By the end of the first year after any Commission
rules become effective, the distributors would be required to describe
four hours of prime time programming per week. By the end of each
succeeding year, they would be required to describe an additional three
hours of prime time programming per week, until all twenty-two hours of
prime time programming (excluding live newscasts) are described. In
addition, by the end of the second year, both the Coalition and NCAM
propose that the applicable distributors be required to describe three
hours of children's programming per week.
III. Proposals and Request for Comment
19. We propose to adopt limited rules to phase ``closed'' video
description into the marketplace. We hope to ensure the more widespread
availability of video description, but to proceed incrementally so as
not to impose a
[[Page 67239]]
significant burden on video programming distributors. We thus propose
that the largest video programming distributors should provide a
limited amount of video description of their prime time and/or
children's programming. We believe that requiring these distributors to
provide some video description will not be economically burdensome for
them. We further believe that requiring them to provide video
description of a small portion of their prime time and/or children's
programming will ensure the widest availability of video description to
audiences that are most likely to benefit from it. We ask for comment
on these views.
20. In this section, we outline a particular proposal of the kind
that we envision for the initial implementation of these rules. The
proposal would require broadcasters affiliated with ABC, CBS, Fox, and
NBC in Nielsen's top 25 Designated Market Areas (DMAs), and larger
MVPDs, to provide some ``closed'' video description. We propose that
these broadcasters and MVPDs provide a minimum of 50 hours per calendar
quarter (roughly four hours per week) of described prime time and/or
children's programming. Larger MVPDs would be required to carry the
described programming of the broadcasters affiliated with the top 4
networks, and of nonbroadcast networks that reach 50% or more of MVPD
households. We also propose that these broadcasters and MVPDs begin
providing the required described programming no later than 18 months
after the effective date of our rules. We further propose to adopt
procedures to waive our rules if compliance would be unduly burdensome,
and to adopt enforcement procedures. These proposals are described in
more detail.
21. This approach is generally modeled after our closed captioning
rules. Our approach here is more measured, however, because video
description technology is not as developed as closed captioning
technology, and all distributors may not have the technical capability
now to provide described programming. As the Commission, the industry,
and the public gain greater experience with video description, we will
review the rules we propose to adopt now, and modify them as the public
interest requires. We expect to increase the amount of required
described programming over time ``in order to ensure the accessibility
of video programming to persons with visual impairments,'' as
envisioned by Congress in the section 713(f) of the Act.
22. We recognize that broadcasters are in the process of converting
from analog to digital technology. The flexibility inherent in digital
technology may make the provision of video description even easier and
less costly. Given that the need for video description exists now and
that the transition to digital will not occur overnight, however, we do
not wish to wait for the transition to be complete before adopting
video description requirements. We are thus proposing to apply the
requirements outlined in this Notice to analog broadcasters. We do
intend, however, to extend our video description requirements to
digital broadcasters in the future. We are inclined not to adopt a
specific timetable to apply to digital broadcasters in the Report and
Order arising out of this Proposed Rule, but rather to address such
specifics in a future proceeding. At that time we can craft rules based
upon the experience we have gained as a result of analog broadcasters'
implementation of our initial requirements. We seek comment on this
approach. We also seek comment on what technical issues are raised by
the provision of video description by digital broadcasters and on how
the conversion to digital affects the costs associated with the
provision of video description.
23. Entities to Describe Programming. We propose to hold
programming distributors, as opposed to producers, responsible for
compliance with our video description rules. We recognize that
distributors may not actually describe the programming. In the closed
captioning proceeding, the Commission observed that others such as
producers might more efficiently caption programming, but reasoned that
the Commission could more easily monitor and enforce the rules by
holding distributors responsible for compliance. We believe this
reasoning is equally applicable here, and therefore propose to hold
distributors responsible for complying with video description
requirements. We seek comment on these views.
24. We propose to apply our rules to all distributors of video
programming over which we have jurisdiction. Video programming
distributors include television broadcast stations, cable operators,
direct broadcast satellite (DBS) operators, home satellite dish (HSD)
providers, open video system (OVS) operators, satellite master antenna
television (SMATV) operators, and wireless cable operators using
channels in the multichannel multipoint distribution service (MMDS). We
believe that as many distributors as possible should provide video
description to enhance the availability of the service, as well as to
ensure a level playing field among distributors. MVPDs are increasingly
the primary source of video programming for most Americans, and
noncable MVPDs continue to grow. Some MVPDs may require separate SAP
generators for each channel they wish to distribute with audio on a SAP
channel. It does appear, however, that most of the distribution
technologies are capable of transmitting audio on the SAP channel or
through other means. We seek comment on this proposal.
25. We believe, however, that our initial rules should only require
the largest distributors to provide video description. As the
Commission stated in the Fourth Annual Report, ``any requirements for
video description should begin with only the largest broadcast stations
and programming networks that are better able to bear the costs
involved * * *. For example, a minimal amount of video description
could be required to be provided by the larger broadcast stations in
larger markets, and by the larger video programming networks.'' The
costs of providing video description include the cost of having
programming described, and, in some instances, the cost of upgrading
equipment. We thus propose to require the affiliates of the four
largest broadcast networks (ABC, CBS, Fox, and NBC) in the top 25 DMAs,
and the larger MVPDs to provide video description. Our proposal is
consistent with the first phase of NCAM's proposal. We seek comment on
our proposal, and on how to define the larger MVPDs to which our
initial rules should apply. We seek to identify those MVPDs that are
comparable to the broadcast stations we have proposed to require to
provide described programming. As indicated, we acknowledge and expect
that programming networks, and not broadcast stations and MVPDs, will
actually describe programming, but we believe, for ease of enforcement
and monitoring of compliance with our rules, that we should hold
distributors responsible for compliance. Our proposal would not require
any noncommercial stations to provide video description at this time,
given the financial difficulties that many of them face, particularly
during the transition to DTV.
26. To help us better evaluate our proposal and realize our goal of
maximizing video description without imposing an undue burden, we also
seek further comment on the costs of video description. The Commission
has previously noted that the cost of
[[Page 67240]]
describing prime time programming may be as much as several thousand
dollars per hour, although commenters have pointed out that the cost of
describing prime time programming is but a small fraction of the total
budget of such programming. We seek additional comment on the costs of
describing programming, including more information on the costs
relative to the production budgets of programming such as prime time
programming. The Commission has also noted that the cost of upgrading
equipment may be between $5,000 and $25,000, although NCAM reports that
81% of one network's affiliates are SAP-equipped, and 69% of cable
systems are. We seek more complete and updated information on the
number of broadcasters and MVPDs that are SAP-equipped. We seek further
comment on the cost of upgrading equipment, particularly from
broadcasters that have already done this.
27. We also seek comment on our proposal to require the largest
distributors to provide described programming beginning 18 months after
the effective date of our rules. We wish to select a beginning date
that ensures more widespread video description is available rapidly,
but does not impose an undue burden on distributors.
28. We intend our proposal to require the largest programming
distributors to provide a limited amount of video description to be a
starting point for further development of the service. The experience
of the largest programming distributors will provide us with concrete
information upon which to propose a schedule to phase in other
distributors. We seek comment on an appropriate timetable for the next
phase in.
29. Programming to be Described. We propose that the distributors
should initially provide a minimum of 50 hours per quarter (roughly
four hours per week) of video description of prime time and/or
children's programming. As the Commission stated in the Video
Accessibility Report, ``initial requirements for video description
should be applied to new programming that is widely available through
national distribution services and attracts the largest audiences, such
as prime time entertainment series.'' Our proposal to require
distributors to describe roughly four hours per week of prime time
programming is consistent with first phase of the Coalition's and
NCAM's proposals. Although four hours per week appears to be a
reasonable starting point, we prefer to express the requirement as 50
hours per quarter in order to grant distributors additional flexibility
in selecting the best programming to describe. We propose also to
permit distributors to meet the 50 hour video description requirement
by describing children's programming in order to meet the needs of
children with visual disabilities. As indicated, NCAM suggests that
video description of children's programming would also provide a
benefit to children with learning disabilities. Within these broad
categories of programming, the distributors would have flexibility to
decide which programming will reach the largest audience and be most
likely to provide the intended benefits of video description. We seek
comment on our proposal, and on any alternatives. Instead of requiring
that the minimum number of hours of video description apply to prime
time and children's programming, should we allow distributors complete
flexibility to choose which programming to describe? Should we
establish certain parameters to ensure that distributors select
programming that has a significant audience that would benefit from
video description? Whether we prescribe prime time and/or children's
programming or not, is a minimum of 50 hours per quarter (roughly 4
hours per week) appropriate for the initial requirement? We seek
comment on the resources currently available to describe programming.
We also seek comment on how to ensure that the public, and in
particular people with disabilities, know when described video
programming is scheduled.
30. Commenters in our earlier NOI proceedings have noted that
Spanish-language audio sometimes competes for use of the SAP channel.
We seek comment on the extent to which Spanish or other languages use
or plan to use the SAP channel, the impact, if any, of today's
proposals on such services, and how such potential conflicts could be
avoided or minimized. Further, although we believe that adoption of
digital technology will eliminate any potential conflict between
competing users of the SAP channel, we seek comment on whether there
are any technical solutions to such potential conflicts in the analog
environment.
31. In addition, commenters in our earlier NOI proceedings have
argued that a second script, which may constitute a ``derivative work''
under copyright law, is necessary to provide video description. As
noted, however, many distributors have provided video description for
years, and apparently have not found this to be an obstacle. We seek
comment on whether copyright issues could become an obstacle to video
description, and, what could be done to prevent or minimize such a
result.
32. The Coalition points out that public safety messages that
scroll across the TV screen are totally inaccessible to persons with
visual disabilities, and proposes that an aural tone be required to
accompany the messages to alert such persons to turn on a radio, the
SAP channel, or a designated digital channel. We believe that it is of
vital importance for these emergency messages to be accessible to
persons with visual disabilities. We seek comment on the Coalition's
proposal, how it relates to the Commission's current standards for
broadcasting emergency information, and on any other effective
approaches to this problem. Could these messages be provided via
``open'' description?
33. Waivers and Enforcement Procedures. We also propose to adopt
procedures to enforce our rules, and to waive them if compliance would
result in an undue burden. The Commission adopted such procedures in
its closed captioning rules. Guided by statutory factors, the
Commission determined that factors relevant to a showing that
compliance with its closed captioning rules would result in an undue
burden are the nature and cost of captioning the programming, the
impact on the operation of the petitioner, the financial resources of
the petitioner, and the type of operations of the petitioner. The
Commission also adopted some basic pleading requirements and timetables
for petitions for waiver. In terms of enforcement, the Commission did
not adopt any reporting requirements, but rather simply adopted
pleading requirements and timetables. We seek comment on whether these
procedures are appropriate for our initial video description rules.
IV. Jurisdiction
34. We seek comment on the question whether we possess statutory
authority to adopt the proposed video description rules. We also seek
comment on the question whether the existence or relative strength of
such authority varies according to the type of video programming
provider--broadcaster, cable operator, or DBS company, for example--
potentially subject to the rules.
35. In connection with this jurisdictional question, we note that
section 1 of the Act established the Commission ``[f]or the purpose of
regulating interstate and foreign commerce in communication by wire and
radio so as to make available, so far as possible, to all the people of
the United States * * * a rapid, efficient,
[[Page 67241]]
Nation-wide, and world-wide wire and radio communication service * *
*.'' Also, section 2(a) grants the Commission jurisdiction over ``all
interstate and foreign communication by wire or radio'' and ``all
persons engaged within the United States in such communication * * *.''
In addition, section 4(i) of the Act empowers ``[t]he Commission [to]
perform any and all acts, make such rules and regulations, and issue
such orders, not inconsistent with this Act, as may be necessary in the
execution of its functions.'' Finally, section 303(r) directs the
Commission, ``as the public interest, convenience, and necessity
requires,'' to ``[m]ake such rules and regulations and prescribe such
restrictions and conditions, not inconsistent with law, as may be
necessary to carry out the provisions in this Act * * *.''
36. We further observe that Congress has expressed a general
legislative preference for the increased accessibility of certain
communications services for persons with disabilities. Section 225
requires the Commission to ensure that ``interstate and intrastate
telecommunications relay services are available, to the extent possible
and in the most effective manner, to hearing-impaired and speech-
impaired individuals in the United States.'' Similarly, section 255
requires manufacturers of telecommunications equipment, and providers
of telecommunications services, to make such equipment and services
``accessible to and usable by individuals with disabilities, if readily
achievable.'' Section 303(u) generally requires television receivers to
be equipped with a closed captioning chip. Section 710 provides for
compatibility between telephones and hearing aids. In addition, the
1998 amendments to section 508 of the Rehabilitation Act require
federal departments and agencies to accommodate persons with
disabilities, including both employees and members of the public, with
respect to the accessibility of information, technology, and data.
37. Other sections of the Act may also relate to the Commission's
authority to adopt video description rules. For example, in order to
grant a Title III license, renew such a license, or permit the
assignment or transfer of such a license, sections 309(a), 307(c)(1)
and 310(d) of the Act, respectively, require the Commission to find
that the ``public interest, convenience, and necessity'' will be served
thereby.
38. Also potentially relevant to this inquiry is section 713(f).
That provision directed the Commission to ``commence an inquiry to
examine the use of video descriptions on video programming in order to
ensure the accessibility of video programming to persons with visual
impairments, and report to Congress on its findings.'' As noted, the
report was to address ``appropriate methods and schedules for phasing
video descriptions into the marketplace, technical and quality
standards for video descriptions, a definition of programming for which
video descriptions would apply, and other technical and legal issues
that the Commission deems appropriate.''
39. We seek comment on the question whether these provisions of the
Act, taken together, provide sufficient authority to adopt the proposed
video description regulations and on the scope of such authority as it
relates to different types of programming providers.
V. Conclusion
40. We adopt this Notice in order to stimulate greater availability
of video description, while at the same time not impose an undue burden
on distributors. To meet the needs of the millions of Americans with
visual disabilities, many public television stations and a few cable
programmers have voluntarily provided some video described programming,
and we applaud these efforts. Through the limited requirements we
propose today, we hope to make this service more widely available to
ensure that all Americans have access to video programming.
VI. Administrative Matters
41. Comments and Reply Comments. Pursuant to sections 1.415 and
1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested
parties may file comments on or before January 24, 2000 and reply
comments on or before February 23, 2000. Comments may be filed using
the Commission's Electronic Comment Filing System (ECFS) or by filing
paper copies, 63 FR 24121 (May 1, 1998).
42. Comments filed through ECFS can be sent as an electronic file
via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally,
only one copy of an electronic submission must be filed. In completing
the transmittal screen, commenters should include their full name,
Postal Service mailing address, and the applicable docket or rulemaking
number. Parties may also submit an electronic comment via e-mail. To
get filing instructions for e-mail comments, commenters should send an
e-mail to [email protected], and should include the following words in the
body of the message, ``get form .'' A sample form
and directions will be sent in reply.
43. Parties who choose to file by paper must file an original and
four copies of each filing. All filings must be sent to the
Commission's Secretary, Magalie Roman Salas, Office of the Secretary,
Federal Communications Commission, 445 Twelfth Street, SW, TW-A325,
Washington, DC 20554.
44. Parties who choose to file paper should also submit their
comments on diskette. These diskettes should be addressed to: Wanda
Hardy, Paralegal Specialist, Mass Media Bureau, Policy and Rules
Division, Federal Communications Commission, 445 Twelfth Street, SW, 2-
C221, Washington, DC 20554. Such a submission should be on a 3.5 inch
diskette formatted in an IBM compatible format using Word 97 or
compatible software. The diskette should be accompanied by a cover
letter and should be submitted in ``read only'' mode. The diskette
should be clearly labeled with the commenter's name, proceeding
(including the lead docket number in this case (MM Docket No. 99-353),
type of pleading (comment or reply comment), date of submission, and
the name of the electronic file on the diskette. The label should also
include the following phrase ``Disk Copy--Not an Original.'' Each
diskette should contain only one party's pleadings, preferably in a
single electronic file. In addition, commenters must sent diskette
copies to the Commission's copy contractor, International Transcription
Service, Inc., 445 Twelfth Street, SW, CY-B402, Washington, DC 20554.
45. Comments and reply comments will be available for public
inspection during regular business hours in the FCC Reference Center,
Federal Communications Commission, 445 Twelfth Street, SW, CY-A257,
Washington, DC 20554. Persons with disabilities who need assistance in
the FCC Reference Center may contact Bill Cline at (202) 418-0270,
(202) 418-2555 TTY, or [email protected]. Comments and reply comments also
will be available electronically at the Commission's Disabilities
Issues Task Force web site: www.fcc.gov/dtf. Comments and reply
comments are available electronically in ASCII text, Word 97, and Adobe
Acrobat.
46. This document is available in alternative formats (computer
diskette, large print, audio cassette, and Braille). Persons who need
documents in such formats may contact Martha Contee at (202) 4810-0260,
TTY (202) 418-2555, or [email protected].
[[Page 67242]]
47. Ex Parte Rules. This proceeding will be treated as a ``permit-
but-disclose'' proceeding, subject to the ``permit-but-disclose''
requirements under Sec. 1.1206(b) of the rules. 47 CFR 1.1206(b), as
revised. Ex parte presentations are permissible if disclosed in
accordance with Commission rules, except during the Sunshine Agenda
period when presentations, ex parte or otherwise, are generally
prohibited. Persons making oral ex parte presentations are reminded
that a memorandum summarizing a presentation must contain a summary of
the substance of the presentation and not merely a listing of the
subjects discussed. More than a one or two sentence description or the
views and arguments presented is generally required. 47 CFR
1.1206(b)(2), as revised. Additional rules pertaining to oral and
written presentations are set forth in Sec. 1.1206(b).
48. Initial Regulatory Flexibility Analysis (``IRFA''). As required
by the Regulatory Flexibility Act, 5 U.S.C. 603, the Commission has
prepared an IRFA of the possible economic impact on small entities of
the proposals contained in this Notice. Written public comments are
requested on the IFRA. In order to fulfill the mandate of the Contract
with America Advancement Act of 1996 regarding the Final Regulatory
Flexibility Analysis, we ask a number of questions in our IRFA
regarding the prevalence of small businesses in the television
broadcasting industry. Comments on the IRFA must be filed in accordance
with the same filing deadlines as comments on the Notice, and must have
a distinct heading designating them as a response to the IRFA. The
Reference Information Center, Consumer Information Bureau, will send a
copy of this Notice, including the IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration.
49. Initial Paperwork Reduction Act Analysis. This Notice may
contain either proposed or modified information collections. As part of
our continuing effort to reduce paperwork burdens, we invite the
general public to take this opportunity to comment on the information
collections contained in this Notice, as required by the Paperwork
Reduction Act of 1996. Public and agency comments are due at the same
time as other comments on the Notice. Comments should address: (a)
Whether the proposed collection of information is necessary for the
proper performance of the functions of the Commission, including
whether the information shall have practical utility; (b) ways to
enhance the quality, utility, and clarity of the information collected;
and (c) ways to minimize the burden of the collection of information on
the respondents, including the use of automated collection techniques
or other forms of information technology. In addition to filing
comments with the Secretary, a copy of any comments on the information
collections contained herein should be submitted to Judy Boley, Federal
Communications Commission, 445 Twelfth Street, SW, Room C-1804,
Washington, DC 20554, or via the Internet to [email protected] and to
Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 17th Street, NW,
Washington, DC 20503 or via the Internet to [email protected].
50. Additional Information. For additional information on this
proceeding, please contact Eric Bash, Policy and Rules Division, Mass
Media Bureau, (202) 418-2130, (202) 418-1169 TTY.
VII. Ordering Clauses
51. Accordingly, pursuant to the authority contained in sections 1,
2(a), 4(i), 303, 307, 309, 310, and 713 of the Communications Act, as
amended, 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 613, this
Notice of Proposed Rulemaking is adopted.
52. The Commission's Reference Information Center, Consumer
Information Bureau, shall send a copy of this Notice, including the
Initial Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration in accordance with the
Regulatory Flexibility Act.
VIII. Initial Regulatory Flexibility Analysis
53. As required by the Regulatory Flexibility Act, 5 U.S.C. 603
(``RFA''), the Commission has prepared this present Initial Regulatory
Flexibility Analysis (IRFA) of the possible economic impact on small
entities by the policies and rules proposed in this Notice. Written
public comments are requested on this IRFA. Comments must be identified
as responses to the IRFA and must be filed by the deadlines for
comments on the Notice provided in paragraph 38. The Commission will
send a copy of the Notice, including this IRFA, to the Chief Counsel
for Advocacy of the Small Business Administration, 5 U.S.C. 603(a). In
addition, the Notice and the IRFA (or summaries thereof) will be
published in the Federal Register.
Need for, and Objectives of, the Proposed Rules
54. Section 713(f) of the Communications Act of 1934, as amended
(``Act''), 47 U.S.C. 613, directed the Commission, within six months of
its enactment, to ``commence an inquiry on video descriptions on video
programming in order to ensure the accessibility of video programming
to persons with visual impairments, and report to Congress on its
findings.'' Section 713(f) required the report to ``assess appropriate
methods and schedules for phasing video descriptions into the
marketplace, technical and quality standards for video descriptions, a
definition of programming for which video descriptions would apply, and
other technical and legal issues that the Commission deems
appropriate.''
Legal Basis
55. This Notice is adopted pursuant to sections 1, 2(a), 4(i), 303,
307, 309, 310, and 713 of the Act, 47 U.S.C. 151, 152(a), 154(i), 303,
307, 309, 310, 613.
Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
56. The Regulatory Flexibility Act defines the term ``small
entity'' as having the same meaning as the terms ``small business,''
``small organization,'' and ``small business concern'' under section 3
of the Small Business Act, 5 U.S.C. 601(3) (1980). A small business
concern is one which: (1) Is independently owned and operated; (2) is
not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA, 15 U.S.C. 632.
57. Small TV Broadcast Stations. The SBA defines small television
broadcasting stations as television broadcasting stations with $10.5
million or less in annual receipts, 13 CFR 121.201.
58. The Notice proposes to limit the TV broadcast stations that
must provide described programming to the TV broadcast stations
affiliated with the top four commercial networks in the top 25 Nielsen
Designated Market Areas (DMAs). According to Commission staff review of
the BIA Publications, Inc., Master Access Television Analyzer Database,
less than five commercial TV broadcast stations subject to our proposal
have revenues of less than $10.5 million dollars. We note, however,
that under SBA's definition, revenues of affiliates that are not
television stations should be aggregated with the television station
revenues in determining whether a concern is small. Our estimate may
thus overstate the number of small entities since the revenue figure on
which it is based does not include or aggregate revenues from
nontelevision affiliated companies.
[[Page 67243]]
59. Small MVPDs. The Notice proposes to limit the MVPDs that must
provide described programming to larger MVPDs. The Notice seeks comment
on how to define the MVPDs to which the initial rules should apply, and
seeks to identify those MPVDs that are comparable to the broadcast
stations affiliated with the top 4 commercial networks in the top 25
DMAs. The Notice thus proposes not to apply the initial rules to
smaller MVPDs.
60. It is possible, however, that the MVPDs we ultimately decide to
require to provide described programming may constitute a ``small
business'' under some definitions. For that reason, we review the
definition of ``small business'' for various MVPDs.
61. SBA has developed a definition of a small entity for cable and
other pay television services, which includes all such companies
generating $11 million or less in annual receipts. This definition
includes cable system operators, closed circuit television services,
direct broadcast satellite services, multipoint distribution systems,
satellite master antenna systems and subscription television services.
According to the Bureau of the Census, there were 1423 such cable and
other pay television services generating less than $11 million in
revenue that were in operation for at least one year at the end of
1992. We will address each service individually to provide a more
succinct estimate of small entities. We seek comment on the tentative
conclusions.
62. Cable Systems: The Commission has developed its own definition
of a small cable company for the purposes of rate regulation. Under the
Commission's rules, a ``small cable company,'' is one serving fewer
than 400,000 subscribers nationwide. We estimate that there were 1439
cable operators that qualified as small cable companies at the end of
1995. Since then, some of those companies may have grown to serve over
400,000 subscribers, and others may have been involved in transactions
that caused them to be combined with other cable operators.
Consequently, we estimate that there are fewer than 1439 small entity
cable system operators under this definition.
63. The Communications Act also contains a definition of a small
cable system operator, which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than 1% 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.'' The Commission has determined that there are 61,700,000
subscribers in the United States. Therefore, we found that an operator
serving fewer than 617,000 subscribers shall be deemed a small
operator, if its annual revenues, when combined with the total annual
revenues of all of its affiliates, does not exceed $250 million in the
aggregate. Based on available data, we find that the number of cable
operators serving 617,000 subscribers or less totals 1,450. Although it
seems certain that some of these cable system operators are affiliated
with entities whose gross annual revenues exceed $250,000,000, we are
unable at this time to estimate with greater precision the number of
cable system operators that would qualify as small cable operators
under the definition in the Communications Act.
64. MMDS: The Commission refined the definition of ``small entity''
for the auction of MMDS as an entity that together with its affiliates
has average gross annual revenues that are not more than $40 million
for the proceeding three calendar years. This definition of a small
entity in the context of the Commission's Report and Order concerning
MMDS auctions that has been approved by the SBA.
65. The Commission completed its MMDS auction in March, 1996 for
authorizations in 493 basic trading areas (``BTAs''). Of 67 winning
bidders, 61 qualified as small entities. Five bidders indicated that
they were minority-owned and four winners indicated that they were
women-owned businesses. MMDS is an especially competitive service, with
approximately 1,573 previously authorized and proposed MMDS facilities.
Information available to us indicates that no MDS facility generates
revenue in excess of $11 million annually. We tentatively conclude that
for purposes of this IRFA, there are approximately 1,634 small MMDS
providers as defined by the SBA and the Commission's auction rules.
66. ITFS: There are presently 2,032 ITFS licensees. All but one
hundred of these licenses are held by educational institutions.
Educational institutions are included in the definition of a small
business. However, we do not collect annual revenue data for ITFS
licensees and are not able to ascertain how many of the 100 non-
educational licensees would be categorized as small under the SBA
definition. Thus, we tentatively conclude that at least 1,932 licensees
are small businesses.
67. DBS: As of December, 1996, there were eight DBS licensees.
However, the Commission does not collect annual revenue data for DBS
and, therefore, is unable to ascertain the number of small DBS
licensees that could be impacted by these proposed rules. Although DBS
service requires a great investment of capital for operation, we
acknowledge that there are several new entrants in this field that may
not yet have generated $11 million in annual receipts, and therefore
may be categorized as a small business, if independently owned and
operated.
68. HSD: The market for HSD service is difficult to quantify.
Indeed, the service itself bears little resemblance to other MVPDs. HSD
owners have access to more than 265 channels of programming placed on
C-band satellites by programmers for receipt and distribution by MVPDs,
of which 115 channels are scrambled and approximately 150 are
unscrambled. HSD owners can watch unscrambled channels without paying a
subscription fee. To receive scrambled channels, however, an HSD owner
must purchase an integrated receiver-decoder from an equipment dealer
and pay a subscription fee to an HSD programming package. Thus, HSD
users include: (1) Viewers who subscribe to a packaged programming
service, which affords them access to most of the same programming
provided to subscribers of other MVPDs; (2) viewers who receive only
non-subscription programming; and (3) viewers who receive satellite
programming services illegally without subscribing. Because scrambled
packages of programming are most specifically intended for retail
consumers, these are the services most relevant to this discussion.
69. According to the most recently available information, there are
approximately 30 program packages nationwide offering packages of
scrambled programming to retail consumers. These program packages
provide subscriptions to approximately 2,314,900 subscribers
nationwide. This is an average of about 77,163 subscribers per program
package. This is substantially smaller than the 400,000 subscribers
used in the commission's definition of a small MSO. Furthermore,
because this is an average, it is likely that some program packages may
be substantially smaller.
70. OVS: The Commission has certified three OVS operators. On
October 17, 1996, Bell Atlantic received approval for its certification
to convert its Dover, New Jersey Video Dialtone (``VDT'') system to
OVS. Bell Atlantic subsequently purchased the division of Futurevision
which had been the only operating program package provider on the Dover
system, and has begun offering programming on this system using these
resources. Metropolitan Fiber Systems was granted certifications
[[Page 67244]]
on December 9, 1996, for the operation of OVS systems in Boston and New
York, both of which are being used to provide programming. On October
10, 1996, Digital Broadcasting Open Video Systems received approval to
offer OVS service in southern California. Because these services have
been introduced so recently, little financial information is available.
Bell Atlantic and Metropolitan Fiber Systems have sufficient revenues
to assure us that they do not qualify as small business entities.
Digital Broadcasting Open Video Systems, however, is a general
partnership just beginning operations. Accordingly, we tentatively
conclude that one OVS licensee qualifies as a small business concern.
71. SMATVs: Industry sources estimate that approximately 5,200
SMATV operators were providing service as of December, 1995. Other
estimates indicate that SMATV operators serve approximately 1.05
million residential subscribers as of September, 1996. The ten largest
SMATV operators together pass 815,740 units. If we assume that these
SMATV operators serve 50% of the units passed, the ten largest SMATV
operators serve approximately 40% of the total number of SMATV
subscribers. Because these operators are not rate regulated, they are
not required to file financial data with the Commission. Furthermore,
we are not aware of any privately published financial information
regarding these operators. Based on the estimated number of operators
and the estimated number of units served by the largest ten SMATVs, we
tentatively conclude that a substantial number of SMATV operators
qualify as small entities.
Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
72. The Notice proposes to hold certain TV broadcast stations and
MVPDs responsible for providing 50 hours per quarter of described prime
time and/or children's programming. Those broadcast stations and MVPDs
must keep sufficient records to show that they are providing and have
provided at least the required amount of described programming.
Steps Taken To Minimize Significant Impact on Small Entities, and
Significant Alternatives Considered
73. As indicated, the Notice proposes to limit the TV broadcast
stations and MVPDs that must provide described programming to larger TV
broadcast stations (specifically, commercial TV broadcast stations
affiliated with the four largest commercial broadcast networks in the
top 25 DMAs) and larger MVPDs. The Notice seeks comment on how to
define the MVPDs to which the initial rules should apply, and seeks to
identify those MVPDs that are comparable to the broadcast stations
affiliated with the top four networks in the top 25 DMAs. The
Commission, therefore, has taken steps to minimize the impact of the
proposed rules on small business.
74. Although the Notice proposes to hold the larger broadcast
stations and MVPDs responsible for compliance with the initial rules,
the Commission acknowledges that the broadcast and nonbroadcast
networks that supply programming to the broadcast stations and MVPDs
will most likely provide the actual video description of the
programming. The Notice proposes, however, to limit the programming
that must be described to that shown on the four largest commercial
broadcast networks, and on nonbroadcast networks that reach 50% or more
of MVPD households. The Commission has, therefore, taken steps to
minimize the impact of the proposed rules on small business.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
None.
List of Subjects in 47 CFR Part 73
Television broadcasting.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 99-31116 Filed 11-30-99; 8:45 am]
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