All you TV broadcasters and MVPDs – mark your calendars! July 1, 2012 is the current deadline for full compliance.

Let’s have a big “welcome back” for the video description rules – they’ve been gone for years, but as we reported last March, Congress figured it was time to bring them back and now, voilà!

As required by the behemoth “21st Century Communications and Video Accessibility Act of 2010,” the FCC has adopted rules requiring the provision of video description.  (“Video description” involves voice-overs describing a program’s key visual elements. Check out our earlier post for a quick refresher course on video description.) The FCC tried almost ten years ago to impose such rules on broadcasters and certain multichannel video programming distributors (MVPDs), but the rules were struck down by the U.S. Court of Appeals for the D.C. Circuit. The court concluded that Congress hadn’t given the Commission the necessary authority.  That was then, this is now: the FCC now has authority in spades, with explicit instructions from Congress to reinstate the original rules – with a few tweaks.

The new rules are nominally “reinstated” as of October 8, 2011 – that’s what Congress required, and the Commission timed Federal Register publication of the rules accordingly. (One exception: Section 79.3(d) and (e) have to be run through the Paperwork Reduction Act drill before they can become effective.) But take heart – broadcasters and MVPDs have until July 1, 2012, to come into full compliance.

Broadcaster and MVPD obligations under the new rules include the following:

  •  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.