FCC looks to resuscitate rules rejected by Court in 2002 – but unlike last time, the rules now have Congress’s explicit blessing
They’re baaaaack . . . almost. The video description rules, dealt a death blow by a federal appeals court nearly a decade ago, are one step closer to resurrection with the release of a Notice of Proposed Rulemaking (NPRM) looking to their reimposition.
As we reported previously, the FCC’s original video description rules were struck down by the U.S. Court of Appeals for the D.C. Circuit in 2002. According to the Court, the FCC did not have the requisite statutory authority to impose such rules. (Quick refresher course on video description: it’s a process that gives blind and visually impaired people a way to “watch” video programming by adding a spoken narrative describing the visual elements of a scene during natural pauses in dialog. Example: “Workers throw Kane’s belongings into a burning furnace. One item is a sled with the word ‘Rosebud’ stenciled on it.”)
In light of the 2002 decision, only Congress has the power to rescue the rules by granting the Commission the authority it was (and has since been) lacking. Congress did so last October, in a sweeping omnibus disabilities law: the “21st Century Communications and Video Accessibility Act of 2010.” (Back then we coined the abbreviation “21CenComVidAccAct”, but the FCC has since opted for “CVAA”. Even though the FCC’s choice of abbreviation seems a bit too abbreviated – what century are we talking about again? – we’ll bow to their will and use “CVAA”. )
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.
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.