Msnbc for Further Exemption from List of Top Five Non-Broadcast Networks
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Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of: ) ) Video Description: Implementation of the ) Twenty-First Century Communications and ) MB Docket No. 11-43 Video Accessibility Act of 2010 ) ) ) ) REQUEST OF MSNBC FOR FURTHER EXEMPTION FROM LIST OF TOP FIVE NON-BROADCAST NETWORKS NBCUniversal, LLC (“NBCUniversal”) hereby submits this request (“Request”) on behalf of its wholly owned non-broadcast programming network, MSNBC (“MSNBC” or the “Network”), to extend MSNBC’s existing exemption1 from the list of top five national non-broadcast networks subject to the audio description rules of the Federal Communications Commission (“FCC” or “Commission”).2 In the 2018 Order, the Commission concluded that MSNBC provided less than 50 hours per calendar quarter of prime-time programming that is not live or near-live, and therefore 1 See Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Order & Public Notice, 33 FCC Rcd 4915 (2018) (“2018 Order”) (exempting MSNBC, Fox News and ESPN from the Commission’s video description requirements applicable to the top five national non-broadcast networks). 2 See 47 C.F.R. § 79.3; see also Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Report & Order, 26 FCC Rcd 11847 (2011) (“2011 Order”) (establishing quantitative requirements); Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Report and Order, 32 FCC Rcd. 5962 (“2017 Order”) (expanding the quantitative requirements imposed by the 2011 Order). was exempt from the top-five non-broadcast network requirements for the period of July 1, 2018 through June 30, 2021.3 As further demonstrated herein, the Network still does not broadcast at least 50 hours per quarter of programming that is not live or near-live to bring the Network within the scope of the rules.4 Accordingly, the Commission should grant the instant Request to extend MSNBC’s exemption from the audio description rules for purposes of the third triennial update of the list of top five networks as determined by The Nielsen Company, which will take effect on July 1, 2021, based on the 2019-2020 ratings year.5 The Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”)6 and the FCC’s implementing rules currently require that multichannel video programming distributors with 50,000 or more subscribers provide 50 hours per calendar quarter of audio-described prime-time and/or children's programming, as well as an additional 37.5 hours of audio description per calendar quarter between six a.m. and midnight, on each of the top five non-broadcast networks that they carry.7 In the 2011 Order, the FCC adopted its earlier proposal to “explicitly exclude from the top five 3 See 33 FCC Rcd 4915, para. 8. 4 See id. at § 79.3(b)(4). 5 See Media Bureau Announces National Nonbroadcast Network Rankings for Purposes of the July 1, 2021 Update to Audio Description Requirements, Public Notice, MB Docket No. 11-43 (rel. Nov. 2, 2020); see also § 79.3(b)(4). 6 Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111- 260, 124 Stat. 2751 (2010) (as codified in various sections of Title 47 of the United States Code); see also id. 7 See id. at § 79.3(b)(4). any non-broadcast network that does not provide, on average, at least 50 hours per quarter of prime-time non-exempt programming, i.e., programming that is not live or near-live.”8 The FCC defines “live or near-live programming” as “programming performed either simultaneously with, or recorded no more than 24 hours prior to, its first transmission.”9 MSNBC’s programming is well-known for offering around the clock substantially live news coverage, including breaking news, commentary and live interview programs, particularly during prime time hours. MSNBC’s award-winning live prime-time programming includes The Rachel Maddow Show, All In with Chris Hayes and The Last Word with Lawrence O’Donnell. In light of the volume of the Network’s live programs (which rarely offer any visual elements other than seated in-studio hosts and guests), MSNBC is precisely the type of network that should be excluded from the FCC’s audio description rules under the Commission’s established procedures. In preparing this Request, NBCUniversal reviewed MSNBC’s recent and proposed prime-time programming line-ups for a total of six quarters, from April 1, 2019, through September 30, 2020. Based on this review, and as further detailed in the attached Affidavit, NBCUniversal determined that over this six quarter period, MSNBC averages only 42 hours of non-exempt (i.e., neither live nor near-live) programming during prime- time. Additionally, attached are programming schedules from the month of October 2020, 8 26 FCC Rcd 11847 at ¶ 12. 9 47 C.F.R. § 79.3(a)(7). which provide greater details with respect to MSNBC’s extensive live programming offered throughout each day, seven days a week. CONCLUSION As demonstrated herein and in the attached Affidavit, MSNBC continues to meet the Commission’s criteria for exemption from the audio description rules. Accordingly, NBCUniversal respectfully asks the Commission to grant this Request. Respectfully submitted, NBCUNIVERSAL, LLC Margaret L. Tobey Senior Vice President, Regulatory Affairs Angela Y. Ball Vice President, Regulatory Affairs NBCUniversal 300 New Jersey Ave., N.W. Washington, D.C. 20001 (202) 524-6401 (202) 524-6413 Its Attorneys December 9, 2020 ATTACHMENTS AFFIDAVIT OF ANGELA Y. BALL I, Angela Y. Ball, serve as Vice President, Regulatory Affairs, for NBCUniversal. In this capacity, I recently reviewed MSNBC’s programming grids for a total of six quarters (from April 1, 2019, through September 30, 2020) to confirm MSNBC’s eligibility for exempt status under the FCC's audio description rules. I asked NBCUniversal employees with MSNBC programming responsibilities to review the Network’s prime-time schedule1 during this period to determine the average quarterly hours of non-exempt (i.e., neither live nor near-live) prime-time programming. Based on this review of MSNBC’s schedule, it is apparent that MSNBC did not broadcast more than 50 hours of non-exempt prime-time programming over the six quarters. NBCUniversal’s analysis found that the number of hours of non-exempt prime-time programming ranged from 19 hours per quarter to 43 hours per quarter, from which an average of 33 hours was calculated. The specific findings by quarter are set forth below: Hours of Non-Exempt Quarter Prime-Time Programming Q2 2019 42 Q3 2019 41 Q4 2019 43 Q1 2020 29 Q2 2020 19 Q3 2020 23 1 The FCC defines “primetime” as the period from 8 to 11 p.m. Monday through Saturday, and 7 to 11 p.m. on Sunday local time, in the eastern time zone. 47 C.F.R. § 79.3(a)(6). I hereby declare, under penalty of perjury, that, to the best of my knowledge, information and belief, all of the factual information contained herein is accurate and complete. /s/ Angela Y. Ball Vice President, Regulatory Affairs, NBCUniversal .