Commission seeks comment on steps to improve, expand accessibility of video-described programming

Way back at the dawn of the century (the 21st Century, that is), the FCC adopted rules requiring video providers to include “video descriptions” in their transmission. “Video description” involves the insertion, into natural pauses in the program’s dialogue, of audio-narrated descriptions of a TV program’s key visual elements. The goal is to make video programming accessible to individuals who are blind or visually impaired.

The Commission’s initial efforts were stymied by the courts, but, as we reported several years back, Congress came to the rescue in 2010 with the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), which took care of the problems the courts had found. As a result, in 2011 the Commission started the process of expanding access to video description by reinstating the 2000 rules (as directed by Section 202).

But that was just the start. In the CVAA Congress also gave the Commission authority, subject to certain limitations, to issue additional regulations if the benefits of doing so outweigh the costs. With that in mind, the Commission is now looking to beef up its video description rules: it has issued a Notice of Proposed Rulemaking (NPRM) seeking comment on proposals to expand the amount of and access to video described programming. Some ideas the Commission is considering:

Amount of programming subject to video description requirements. First, the Commission proposes an increase in the amount of described programming that a covered broadcaster or multichannel video programing distributor (MVPD) is required to provide for each included network. (In this context, an “included network” is a programming stream or channel on which a broadcaster or MVPD is required to provide video description.) Under the FCC’s proposal, the minimum amount of video-described programming would increase from 50 hours per calendar quarter to 87.5 hours. The Commission asks for comments on this increase, and also on whether such an increase may warrant other changes to the rules to provide more flexibility (e.g., allowing some amount of non-prime time, non-children’s described programming to count toward the increased requirement).

Expansion of “included networks”. Second, the FCC is looking at an increase in the number of included networks subject to the rules. Currently, the universe of “included networks” comprises: (a) broadcast TV stations in the Top 60 markets carrying any one of the “Top Four” commercial networks (i.e., according to Congress, ABC, CBS, FOX and NBC); and with respect to MVPDs with at least 50,000 subscribers (b) any of the five most popular nonbroadcast networks as determined triennially by the FCC based on a number of considerations. Under the proposal, this universe would be expanded to (a) stations (again in the Top 60 markets) carrying any of the “Top Five” broadcast networks, and (again for 50,000+ subscriber MVPDS), any of the ten (rather than five) popular nonbroadcast networks.

The “Top Five” broadcast networks would continue to include ABC, CBS, FOX and NBC, but would be expanded to any other broadcast network identified as in the Top Five by the FCC through a triennial review of Nielsen figures. (The Commission notes that it’s at least possible, although unlikely, that one or more of the current Top Four might drop out of that status at some future time. Should that happen, the “Top Five” could actually include more than five networks. That is, ABC, CBS, FOX and NBC will still be viewed as subject to video description requirements; any other network determined to be in the “Top Five” would also be subject to them.) The top ten popular nonbroadcast networks would continue to be identified triennially, using the existing formula. However, the Commission does ask whether it should add more or fewer networks (either broadcast or nonbroadcast) at this time, and also whether some other approach to determining which networks should be included.

No back-sliding. Also on the table, a “no backsliding” rule, which would ensure that once a network is designated an “included network” subject to video description obligations, it would remain an “included network” even if it falls out of the top five or top ten ranking. Among the reasons, the Commission figures that once a broadcaster or MVPD begins to carry video described programming on a given network, consumers have an expectation that they will be able to rely on that channel for described programming in the future. The FCC does, however, seek comment on whether there should also be an express exemption from the proposed “no backsliding” rule for networks that drop significantly in relative rankings or overall viewership.

Elimination of “50 percent threshold”. Under the current rules, nonbroadcast networks that aren’t available in 50 percent or more of MVPD homes aren’t deemed “included networks”. Thus, for example, even if a network were one of the most popular in prime time, MVPDs would not be required to provide video description of any of that network’s programming if the network reaches only 40 percent of MVPD households. The Commission proposes to eliminate this exemption. According to the FCC, because of the increasing number of networks and fragmentation of the viewing public, it’s unclear whether carriage into a given number of homes is a suitable criterion (as opposed, say, to prime time ratings) for the purpose of establishing a threshold for determining which nonbroadcast networks should be covered.

Customer service contacts. In response to consumer frustration over inadequate MVPD customer support, the Commission seeks input on what the industry is doing to getting the word about available video-described programming. It also proposes to require that covered MVPDs provide dedicated customer service contacts who can assist viewers in accessing video described programming, BUT hedges that proposal by observing that it is not currently convinced that the benefits of such a requirement would outweigh the costs. Along the same lines, the Commission asks whether it should require covered distributors to notify programming guide publishers when a program will be video described.

The NPRM includes other proposals addressing even more granular aspects of the video description rules. If you are now – or think somebody you may be – subject to the rules, you should be sure to review the NPRM in detail and be prepared to toss in your two cents’ worth. As announced in the Federal Register, comments are due by June 27, 2016; replies may be filed by July 26. You can submit your comments at this FCC website; enter Proceeding Number 11-43.