CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Use of the secondary audio stream

The possible complications attending the proposed use of the secondary audio stream are somewhat daunting.  How many TV stations and MVPDs have an activated secondary audio channel?  And should those that do not be treated differently?  Do cable and satellite MVPDs have bandwidth constraints that impair their ability to add audio streams; and if not, might a secondary stream carriage requirement impair DBS local-into-local service in small markets?  If a station has two audio streams in addition to its primary stream, how will visually impaired viewers know to which stream they should tune, particularly for stations providing both foreign language and video description services and given constraints on naming protocols that affect how TV remote controls access different audio streams? 

Those questions involve only the current allocation scheme.  What’s going to happen if and when the TV band is repacked?  What will be the impact on available bandwidth for TV stations that elect to share channels after the proposed reverse auction and consequent spectrum repacking? 

And at the nitty-gritty station level, who’s going to be providing the audio for the emergency information on the secondary audio stream?  For stations without sufficient staff, should automated text-to-speech technology be permitted, even if there is an accompanying risk of errors that might distort the information?  Should the aural information have to be identical to the video content, or would it be enough to provide only “critical details” about an emergency?  If the same audio stream is used for both visual description and emergency information, how can we be sure that video description service will not be unduly interrupted?  Is a change needed in the rule that prohibits emergency information from blocking video description or video description from blocking emergency information?

Who exactly should be subject to the new rules?  For the time being, the FCC is planning to leave IP-based services alone, given the lack of a uniform technical standard for additional aural carriers.  But the CVAA requires that “program owners” comply.  The FCC’s rules define video programming provider and video programming distributor, but what is a “program owner”?

Apparatus regulation

The CVAA requires that “apparatus designed to receive or play back video programming transmitted simultaneously with sound” must have certain capabilities to provide information (including particularly emergency information) to the blind and visually impaired. 

The statute’s goal may be clear, but it’s a bit lacking in implementational details.  When it comes to apparatus for displaying programs, just what types of gear should be included?  The statute covers picture screens of any size, no matter how small.  The FCC tentatively proposes to include DVD and Blu-Ray players, but only to the extent that they receive, play back, or record TV broadcast or MVPD services.  But what about DBS set-top boxes, recording devices, and other devices that may process signals differently from how a TV receiver processes them?  Should there be any minimum performance standards?  Is there a way to insert the main channel audio on the secondary stream when no emergency information is being provided, so that the secondary stream is not silent, misleading users into thinking that the stream is not working?

Oh, yes – the statute allows the FCC to grant waivers to equipment manufacturers for devices that may be able to receive and play back video programming but are designed primarily for another purpose.  One basis for waiver: whether the purposes of the VCAA are “achievable” with the particular apparatus.   That’s all well and good, but how is the FCC supposed to figure out what’s “achievable”?  The statute provides some general guidance on that issue – considerations include the nature and cost of steps that would be necessary to meet the statutory requirements, the technical and economic impact on the manufacturer, the “type of operations” of the manufacturer and the extent of its product line.  But it’s now up to the FCC to develop some more concrete guidelines.

And finally, the FCC asks, if all of the above ideas fall into hopeless confusion or impracticality, is there some other way to achieve compliance with the CVAA?  Are there “alternate means” of fulfilling the statutory purpose; and if so, what standards should be applied to requests to use alternate means?

The questions posed in the NPRM are many and complicated, particularly with respect to the logistics of implementation.  So it’s something of a surprise that the Commission is allowing only 20 days for comments and half that for reply comments (and note that Christmas Day falls right in the middle of the reply comment period).  Comments are currently due December 18, 2012, with Reply Comments due December 28.  With such abbreviated commenting opportunities, spanning the Christmas holiday, does the FCC really contemplate no controversy over these proposals?

•  ABC, CBS, Fox, and NBC affiliates located in the top 25 television markets (as of January 1, 2011) must provide 50 hours per calendar quarter of video-described prime time or children’s television. (Fuzzy on exactly current TV market rankings? Click here for the 2010-2011 Nielsen listings.) When the list of top 25 markets will be updated remains to be determined. Note that by the end of 2016, the 50-hour rule will apply to the top 60 television markets.

To count toward the 50-hour requirement, the programming must not have been previously aired with video description, on that particular channel or station, more than once. Only programming on the primary stream of digital broadcasters counts toward the 50-hour requirement. If another top-four network is carried on a secondary stream, however, it also must meet the 50-hour requirement, as though it were carried by a separate station. 

• Multichannel video programming distributors (MVPDs) with more than 50,000 subscribers must also provide 50 hours per calendar quarter of video-described prime time or children’s television on the five most popular cable channels: USA, the Disney Channel, TNT, Nickelodeon, and TBS. (The list of “top five popular cable channels” will be revised at three year intervals, if ratings change.)  ESPN and Fox News are not on the list because they provide fewer than 50 hours per quarter of programming that is not live or near-live (i.e.,broadcast within 24 hours of recording).  Live and near-live programming is exempted from the rules due to the difficulty in furnishing video description in such a short time frame.

• All network-affiliated broadcasters and all MVPDs must “pass through” video described-programming to their viewers if the network provides it, so long as it has the technical capability to do so and that capability is not being used for another purpose related to the programming (such as an audio stream in another language). “Technical capability” means having all the necessary equipment except for items that would be of minimal cost. This requirement extends to secondary digital streams and to low power broadcast stations. Any programming aired with description must always include description if re-aired on the same station or channel.

If a station or MVPD becomes newly-obligated to provide video description (through a new affiliation or by gaining more than 50,000 subscribers), it will have three months to come into compliance.

The Commission declined to carve out any special exemptions from the above obligations for local programming, news programming, and the like. The rationale: since only four hours of programming a week must be video described, and stations and systems can choose what programming to describe, they can simply choose not to describe any programming that poses any particular difficulty. However, if a video described program is interrupted by a breaking news bulletin, it will still count toward the 50 hours.

The rules are not without additional complexities, subtleties and possible surprises. They spread over six single-space pages, after all. So TV licensees and MVPDs would be well-advised to spend the next several months familiarizing themselves with the ins and outs of the new rules. Their requirements are likely to be with us with us for some time.

In the CVAA, Congress directed the Commission to reinstate its rules more or less exactly as they were in 2000, with certain mandated changes. One might ask, why go through a rulemaking at all, if all the agency has to do is find a copy of the old rules, cut-and-paste them into a new order, and insert the necessary changes? It turns out, though, that the Commission does have some discretion this time around. In particular, the CVAA leaves it to the FCC to decide what entities – broadcast stations, multichannel video programming distributors (MVPDs), networks – are to be subject to the video description rules. Accordingly, the Commission would like public input on a limited number of points.

So, if you’re a broadcaster or an MVPD, you may want to refresh your memory of the original rules and consider commenting if you might be affected by the proposed modifications.

The Basics

As in the first go-round with video description, the rules this time around will have two main components: the “50-Hour Rule” and the “Pass-Through Rule”.

The “50-Hour Rule” will apply to broadcast stations that are: (a) affiliated with the top four national commercial networks (ABC, CBS, Fox, and NBC); and (b) located in the top 25 markets (per the 2011 Nielson rankings). Such stations must provide 50 hours per calendar quarter of video-described programming during prime time – although any children’s programming can also be included in the 50 hours, regardless of when it happens to be aired. A program can be counted twice – but only twice – if it is re-run. A station can count a program even if the program has previously been telecast elsewhere, so long as the program is airing for the first or second time on that station. [Note: the CVAA requires the Commission to expand this requirement to the top 60 markets by October 2016].

MVPDs (cable, satellite, etc) with 50,000 or more subscribers must also provide 50 hours per calendar quarter of video-described prime time and/or children’s programming on each channel on which they carry one of the top five national non-broadcast networks.  (FYI: the FCC figures that the top five currently are USA, the Disney Channel, ESPN, TNT, and Nickelodeon’s Nick at Nite.  But heads up – Fox News, TBS, A&E, History, the Cartoon Network’s Adult Swim, the Family Channel, and HGTV could also be contenders if any of the top five come up short on the non-exempt programming front.)

Under the “pass-through” rule, broadcasters affiliated with any network and all MVPDs will have to pass through any video description that they receive from a broadcast station or network or a cable network channel, including re-airings, so long as they have the technical capability to do so. And yes, providers subject to the 50-hour rule must also pass through video description programming.

Questions For Comment

These two basic requirements are not up for discussion. However, the FCC would like input on a number of questions regarding their implementation:

• What is “near-live” programming? The CVAA exempts “live” and “near-live” programming from the new rules. This exemption seems superfluous given that video providers already have latitude in selecting which 50 hours will have video description.  Presumably, the exemption would mainly come into play if a top five cable channel had so much live programming that there weren’t 50 hours left over for video description. The FCC logically proposes, in that case, to exclude the channel from the top five list. It also proposes that “near-live” programming would mean programming produced no more than 24 hours prior to its telecast.
• How often, if at all, should the list of top 25 markets be updated? As the FCC aptly notes, while market rankings routinely change over time, constant revision of the list would burden and aggravate everyone concerned. Therefore it seeks comment on whether, and how often, to reconsider the top 25 rankings.
• What equipment would be needed to comply with the pass-through requirement, and how much it would cost?
• How much would the 50-hour rule cost, per program or hour described? The FCC would like to hear from both the purchasers and producers of video description on this point.
• Under what circumstances would the rules become so “economically burdensome” to providers to warrant an exemption? The prior version of the rules allowed exemptions when the rules posed an “undue burden.” The CVAA changed the exemption standard to “economically burdensome.” The FCC is not fazed by this change and proposes to use the same factors it used in the previous version.
• Should the 50-hour and pass-through rules apply to commercial low power stations?
• Is there a continuing need for the previous “another program-related service” exception?  The former version of the pass-through rule did not apply in situations where the second audio program (SAP) equipment and channel were being used to provide some other program-related service. But a digital universe permits numerous audio channels for any video stream – meaning that there may be no continuing need for an exception. The Commission seeks comments on that question.
• What digital stream should the rules apply to? For the 50-hour rule, the Commission would for sure count programming carried on the primary stream. But it also proposes to apply the rule to each separate stream which carries another top-four network’s programming. The pass-through rule would apply to all network-provided programming on all digital streams.
• Should the Commission adopt quality standards for video description?
• How should programs be selected and advertised?
• Should the new ATSC standard be incorporated to ensure that video description can be received by all DTV receivers?
• Should children’s programming mean programming directed at children 16 years old and under?

Finally, the FCC proposes to require compliance with the video description rules (subject, of course, to any OMB approval that may be required for any of the rules) starting January 1, 2012, 85 days after they are scheduled to be adopted and published.

The proposed video description requirements present virtually all of the serious practical difficulties, as well as potential First Amendment arguments, that the earlier version did. The last time around, though, the Court didn’t have to address those considerations because the wholesale lack of statutory authority eliminated the need to do so. Now that the CVAA has plugged that hole, it will be interesting to see whether any appellant(s) raise other, still undecided, issues.

Comments will be due 30 days after publication in the Federal Register. Check back here for updates on that front.

According to the Court, the fatal flaw in the video description regulations was lack of authority. The Commission, of course, is a creature of Congress and, as such, the Commission can do only what Congress has authorized it to do. The Court held that the 1996 Act fell short because that Act didn’t explicitly authorize the FCC to prescribe video description regulations; rather, it merely instructed the Commission to look into video description and provide a report to Congress. By contrast, the Act was very clear in authorizing the Commission to impose closed captioning requirements. The Court also observed that the legislative history indicated that the idea was considered and deliberately rejected.

And as far as the FCC’s general regulatory authority goes, the Court concluded that that authority stopped short of rules “that significantly implicate program content.”   The Court held that video description is “content” because, unlike closed captioning, it is not automatically generated and requires some artistic input. (In fact, some content providers have claimed that video description creates copyright issues as it creates a “derivative work” of the original—but that’s a story for another day).

The FCC, noted the Court, was not able to cite one case in which a content regulation based on the FCC’s general authority to regulate broadcasting survived court scrutiny – thanks mainly to the First Amendment. Specific instances where the FCC does regulate content, such as indecency and elections, have explicit statutory support. Without such support, the FCC is not at liberty to impose regulations on content.

Now, a decade later, the FCC has received the authority it lacked in 2000. It does not have carte blanche, however. After one year and a rulemaking, it must reinstate only its original rules, with certain modifications that appear designed to lighten the burden on broadcasters.  For example, the Act requires the FCC to consider extending the original “technical capability” exemption – which previously applied only to “pass though” stations – to all providers and owners of video programming. It also allows the FCC to exempt any provider (or category of provider) who shows that compliance would be “economically burdensome.” Given the potential controversy of such issues, this reinstatement may turn out to be more complicated than it looks.

The Act provides a mandate separate and apart – and in addition to – the Commission’s general regulatory authority over telecommunications common carriers, broadcasters, and cable services.  As a result, the FCC will now be able to regulate many different types of entities and activities, but only to the extent that they entail communications for the disabled. Could this trailblazing measure open the door for other types of broadband regulation not necessarily tied to disability? That remains to be seen, but the potential cannot be denied.

Don’t look for any changes to happen right away, though – even the changes specifically addressed in the Act. The statute lays out a number of timelines for the Commission, all of which expect the FCC to get started right away, but most of which do not contemplate final action for at least a year (and in many cases, several years).

Virtually every segment of the broadcasting and telecommunications industries that has anything to do with broadband or video programming will be affected. Key provisions include:

• Manufacturers and service providers of “advanced communications services and equipment” – that is, interconnected and non-interconnected VoIP, electronic messaging services (e-mail, text messaging), and video conferencing – must ensure that their equipment or service is accessible to individuals with disabilities. 
• Internet browsers provided by a manufacturer or provider of mobile phones must be usable by the blind or visually impaired, including the ability to launch the browser.
• TV programs that are re-broadcast over the Internet must retain closed captioning. This provision may be more feasible now that software is becoming available to automatically convert existing closed-captioning for webcast versions of television shows. Internet-only TV shows and user-generated content are not required to have closed captioning. As an aside, however, it is getting easier for users to voluntarily provide closed captioning. Google has just introduced a YouTube feature that will enable content creators to add voice-recognition closed-captioning (we note that viewers can also use this feature to translate captions into various languages – extending its usefulness well beyond the disabled community). Google closed-captioning and translation functions are fresh out of beta and amusingly glitchy, but are a glimpse of things to come.
• Hearing aid compatibility requirements are extended to anything that remotely resembles a telephone—that is, equipment “designed to provide 2-way voice communication via a built-in speaker intended to be held to the ear in a manner functionally equivalent to a telephone”.  (It will be interesting to see how the Commission squares this provision with its own proposed method of extending HAC to VoIP: i.e. defining a “telephone” as “anything that is commonly understood to be a telephone”.)
• The Commission is required to reinstate its video description regulations (which were struck down by the D.C. Circuit in 2002).  Video description is a service that provides a voice-over description of the visual components of a video program (“as Bambi stands alone in the forest, a light snow starts to fall.”). The Commission’s initial video description rules, adopted in 2000 and tossed by the Court in 2002, were ginned up by the FCC without Congressional authorization. The lack of such authorization was fatal, according to the Court. That should not be a problem this time around, as the 21CenComVidAcc expressly provides the FCC all the authority it should need.
• The Commission must require video programmers and distributors to convey emergency information to the blind and visually impaired. The FCC is also authorized to promulgate regulations to ensure access by individuals with disabilities to an IP emergency network.  
• Video display apparatus must be able to display closed captioning, video description, and emergency information.  Devices that record video must enable the pass-through of such information.
• Accessibility functions, including those on navigation devices such as converter boxes, must be easier to activate. Advocates of the legislation cited circumstances in which a blind user, for example, would have to navigate multiple (visual) menus before being able to activate a voice feature.
• Telecommunications Relay Service funding will be available to support programs to distribute equipment designed to make telecommunications service, Internet access service, and advanced communications services accessible by individuals who are deaf-blind.

An ambitious array of administrative errands, to be sure. But don’t worry – the FCC will have some help, because Congress has ordered it to establish a couple of “advisory committees” to assist in the development of the regulations mandated by the Act. The FCC’s first order of business will be to form the committees, dubbed (ruh roh – Potential Confusion Ahead!) the “Emergency Access Advisory Committee” and the separate and distinct “Video Programming and Emergency Access Advisory Committee”. Both must be established by December 8, 2010. They will then proceed to investigate and survey and do the kinds of things that advisory committees do, including especially making recommendations.

As far as substantive rule changes go, 21CenComVidAccAct specifies that the video description rules must be reinstated by October 8, 2011 (although compliance will be phased-in over a period of several years). The closed captioning decoding regs are due within six months of the Advisory Committee report on closed captioning (estimate somewhere between October, 2011 and April, 2012 for those rules). Additional rules will be developed in due course.

With all these irons in the fire, we can expect a slew of documents to come out of the FCC in the relatively near-term as it works its way through the honey-do list that Congress has thoughtfully passed along. Check back here for updates.