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1 Before the FEDERAL COMMUNICATIONS COMMISSION Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of ) ) Video Description: Implementation of the ) MB Docket No. 11-43 Twenty-First Century Communications and ) Video Accessibility Act of 2010 ) ) REQUEST OF TBS FOR LIMITED WAIVER OF AUDIO DESCRIPTION RULE WarnerMedia, LLC (“WarnerMedia”), on behalf of its wholly-owned non-broadcast programming network, TBS, submits this request (“Request”) for a limited waiver of Federal Communications Commission (“Commission”) audio description rules covering the period of April 1, 2021, through June 30, 2024.1 I. INTRODUCTION AND SUMMARY TBS currently is, and will continue to be, a top five nonbroadcast network whose programming is subject to the Commission’s audio description rules. TBS’s programming strategy features a significant amount of repeat programming. Unfortunately, the “repeat rule” allows described programming on a channel to be counted no more than twice toward meeting the Commission’s 87.5-hour audio description minimum threshold (the “Threshold”). This creates challenges to meeting the Threshold for multichannel video programming distributors (“MVPDs”) carrying TBS, which has even fewer hours available for newly-described programming because it 1 The FCC recently modernized its rules to use the term “audio description” in lieu of the term “video description.” Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Report and Order, 35 FCC Rcd 12577 (2020). 1 also carries a significant amount of live or near-live programming but no regular children’s programming. In 2019, faced with a plea from USA Network about similar challenges, the Commission granted a limited waiver of Section 79.3(b)(4) of the audio description rules to MVPDs carrying USA Network programming, allowing them to meet alternative minimum requirements for providing described programming under certain conditions.2 WarnerMedia seeks a similar waiver of Section 79.3(b)(4) of the audio description rules, under more stringent conditions, for MVPDs carrying TBS programming that are unable to meet the current Threshold in any calendar quarter from April 1, 2021, through June 30, 2024. As an alternative to the current Threshold, TBS would (1) air at least 1,000 hours of described programming each quarter (and more than 1,400 hours of described programming on average per quarter over the waiver period) without regard to the number of repeats, and (2) describe 100 percent of newly produced, non-live programming aired between 6:00 a.m. and midnight ET within three (3) business days of its receipt from a production company. WarnerMedia, through its affiliate AT&T, has discussed this Request with, and obtained the support of, representatives of the American Council for the Blind, National Federation for the Blind, American Foundation for the Blind, and American Printing House for the Blind. II. ARGUMENT A. TBS is Subject to the Commission’s Audio Description Rules and Has Aired Thousands of Hours of Described Programming. The Commission’s rules require covered MVPD systems serving 50,000 or more subscribers to provide 87.5 hours of audio described programming per calendar quarter on 2 This request also seeks waiver of Commission Rule Section 79.3(c)(2) if needed to comply with any alternative minimum description requirement. 2 channels carrying each of the top five national nonbroadcast networks.3 This Threshold is subject to the “repeat rule,” under which covered MVPDs may count each described program no more than twice on each channel.4 The Commission updates its list of the top five national nonbroadcast networks that are subject to its audio description rules every three years to account for changing ratings.5 Since the 2011 enactment of the Commission’s audio description rules, TBS has been one of the top five national nonbroadcast networks6 and TBS will continue to be a covered network for the upcoming triennial period.7 TBS’s consistent position as a top-rated nonbroadcast network is largely attributable to its programming strategy, which does not regularly include children’s programming, but features a significant amount of described, repeat (and highly popular) programming during prime time and other programming dayparts. The continued success of this programming model has enabled TBS to develop newly produced programming, including Claws, The Last O.G., and Miracle Workers, all of which are described, as well as live events such as the Screen Actors Guild Awards, March Madness, Major League Baseball, and other live or near-live comedy or topical programming, including Conan and Full Frontal with Samantha Bee. 3 47 CFR § 79.3(b)(4). 4 47 C.F.R. § 79.3(c)(2). 5 47 CFR § 79.3(b)(4). 6 See Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Report and Order, 26 FCC Rcd 11847, 11854, ¶12 (2011); Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Order and Public Notice, 30 FCC Rcd 2071, 2073, ¶10 (2015); Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Order and Public Notice, 33 FCC Rcd 4915, 4919, ¶10 (2018). 7 Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Order and Public Notice, MB Docket No. 11-43, DA 21-281 ¶ 1 (MB rel. Mar. 8, 2021) (“Beginning July 1, 2021, the top five national nonbroadcast networks will be TLC, HGTV, Hallmark, History, and TBS.”). 3 TBS is an established leader among nonbroadcast networks in providing audio-described content, offering thousands of hours of described non-live programming8 that consistently exceeds the Commission’s audio description Threshold, and in developing a multi-year legacy of providing an ever-increasing library of audio-described programming. From 2018 through 2020, TBS averaged more than 5,000 hours of described programming annually (without regard to repeats), more than ten times the annual total required by the audio description rules, and that annual amount increased year-to-year.9 During 2020 alone, TBS aired described programming at an annual rate of more than 6,000 hours and a quarterly rate of more than 1500 hours on average,10 including for a majority of the non-live newly produced programming that aired between 6 a.m. and 11:59 p.m.11 These numbers are even more significant given that TBS aired significant live and near-live programming, which further limited the available hours of programming that could be described, both in prime time and overall. Lastly, TBS described 100% of its newly produced programming in the first and fourth quarters of 2020.12 Going forward, TBS anticipates continuing its strategy of offering original and repeat non- live programming and live/near-live programming and continuing its commitment to offer audio 8 “Non-live programming” means programming that is neither live nor near-live. See 47 C.F.R.§ 79.3(a)(7) (“Live or near-live programming” means “[p]rogramming performed either simultaneously with, or recorded no more than 24 hours prior to, its first transmission by a video programming distributor.”). 9 Declaration of Brad Kramer, TBS Senior Director, Programming Operation (“Declaration”) ¶ 2. 10 Id. ¶¶ 2-3. 11 Id. ¶ 4. 12 Id. The category of “newly produced” includes original programming exclusively produced and broadcast by the relevant network, or original titles acquired from a third-party programmer and premiered exclusively by the relevant network. See USA Petition at note 5. 4 description for a substantial amount of the non-live programming. Yet, the “repeat rule” presents a significant and growing challenge to TBS’s highly successful programming strategy.13 By preventing MVPDs from counting a described program more than twice toward meeting the Threshold, the “repeat rule” recognizes only a small fraction of the hours of described programming that TBS provides each calendar quarter and significantly impacts the programming discretion of TBS (and networks with a similar programming strategy). And, because TBS routinely airs considerable live or near-live programming both inside and outside of prime time, TBS has even fewer hours in which to schedule described programming that has not already been counted twice toward meeting the Threshold. Thus, despite TBS’s intent to continue airing thousands of hours of described programming, the “repeat rule” will likely prevent MVPDs airing TBS programming from meeting the 87.5-hour Threshold in one or more future calendar quarters from April 1, 2021, through June 30, 2024. For that reason, TBS seeks this limited waiver of Section 79.3(b)(4) of the audio description rules for MVPDs carrying its programming. B. The Requested Waiver for TBS Programming is Consistent with Recent Commission Precedent and With the Commission’s Goal to Increase Audio Description. The Commission may at any time waive a rule requirement for good cause shown by explaining how the waiver serves the public interest and the nature of special circumstances.14 13 TBS has consistently been challenged with meeting the Threshold since the 37.5 hours increase. TBS seeks greater flexibility to account for expected future changes in the programming mix, which could include more repeat programming, less newly produced programing, and more live and near live programming, including during prime time, such as a new Major League Baseball game on Tuesday nights (see https://pressroom.warnermedia.com/ca/media-release/turner- sports/mlb-tbs/turner-sports-and-major-league-baseball-reach-seven-year-media-rights- extension). 14 47 C.F.R. § 1.3; Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Memorandum Opinion and Order, 34 FCC Rcd 9335, 9337-38, ¶7 (2019) (“USA Order”) 5 And, the Media Bureau has provided guidance on the application of that criteria to requests like this one.
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