Federal Register / Vol. 65, No. 176 / Monday, September 11, 2000 / Rules and Regulations 54805

Federal Communications Commission. Authority: 47 U.S.C. 154, 303, 334. 336. inspection and copying during normal Barbara A. Kreisman, business hours in the FCC Dockets § 73.622 [Amended] Chief, Video Services Division, Mass Media Branch (Room TW–A306), 445 12 St. Bureau. 2. Section 73.622(b), the Table of S.W., Washington, D.C. The complete [FR Doc. 00–23271 Filed 9–8–00; 8:45 am] Digital Television Allotments under text of this R&O may also be purchased BILLING CODE 6712±01±P Oregon, is amended by removing DTV from the Commission’s copy contractor, Channel 40 and adding DTV Channel 13 International Transcription Services at Klamath Falls. (202) 857–3800, 1231 20th St., N.W., FEDERAL COMMUNICATIONS Federal Communications Commission. Washington, D.C. 20036. COMMISSION Barbara A. Kreisman, Synopsis of Report and Order 47 CFR Part 73 Chief, Video Services Division, Mass Media Bureau. I. Introduction [DA 00±2028, MM Docket No. 99±296; RM± [FR Doc. 00–23270 Filed 9–8–00; 8:45 am] 1. In this R&O, we adopt rules 9661] BILLING CODE 6712±01±P designed to bring the benefits of video Digital Television Broadcast Services; description to the commercial video Klamath Falls, OR marketplace but not impose an undue FEDERAL COMMUNICATIONS burden on the video programming AGENCY: Federal Communications COMMISSION production and distribution industries. Commission. Video description is the description of 47 CFR Part 79 ACTION: Final rule. key visual elements in programming, [MM Docket No. 99±339; FCC 00±258] inserted into natural pauses in the audio SUMMARY: The Commission, at the of the programming. It is designed to request of California Oregon Implementation of Video Description of make television programming more Broadcasting, Inc., licensee of Station Video Programming accessible to the many Americans who KOTI–TV, Klamath Falls, Oregon, AGENCY: Federal Communications have visual disabilities. substitutes DTV Channel 13 for Station Commission. 2. As explained further, we conclude KOTI–TV’s assigned DTV Channel 40 at ACTION: Final rule. that we have the authority to adopt Klamath Falls. See 64 FR 54269, video description rules, and require the October 6, 1999. DTV Channel 13 can be SUMMARY: This document adopt rules to top broadcast stations and multichannel allotted to Klamath Falls at coordinates require larger broadcast stations and video programming distributors (42–05–48 N. and 121–37–57 W.) with multichannel programming distributors (MVPDs) to provide programming with a power of 45.3, HAAT of 671 meters (MVPDs) to provide programming with video description on the top and with a DTV service population of video description. This document also programming networks. This will thousand. adopts rules to require all broadcast ensure that the broadcast stations and With this action, this proceeding is stations and MVPDs to pass through any MVPDs that reach the most people will terminated. video description they receive from provide video description for the most DATES: Effective October 23, 2000. their programming suppliers if they watched programming. We also adopt FOR FURTHER INFORMATION CONTACT: Pam have the technical capability necessary rules to enhance the accessibility of Blumenthal, Mass Media Bureau, (202) to do so. This document also adopts emergency information for people with 418–1600. rules to enhance the accessibility of visual disabilities. Specifically, we SUPPLEMENTARY INFORMATION: This is a emergency information. The purpose of adopt rules as follows: synopsis of the Commission’s Report these actions is to enhance the • We require affiliates of the top four and Order, MM Docket No. 99–296, accessibility of video programming to commercial broadcast TV networks in adopted September 6, 2000, and persons with visual disabilities. the top 25 TV markets to provide 50 released September 7, 2000. The full DATES: Section 79.3 is effective April 1, hours per calendar quarter of prime time text of this Commission decision is 2002. Section 79.2 contains information and/or children’s programming with available for inspection and copying collection requirements which have not video description. during normal business hours in the been approved by the Office Of • We also require MVPDs with 50,000 FCC Reference Center, 445 12th Street, Management Budget (‘‘OMB’’). The or more subscribers to provide 50 hours SW., Washington, DC. The complete Commission will publish a document in per calendar quarter of prime time and/ text of this decision may also be the Federal Register announcing the or children’s programming with video purchased from the Commission’s copy effective date of this section. description on each of the top five contractor, International Transcription FOR FURTHER INFORMATION CONTACT: Eric national nonbroadcast networks they Services, Inc., (202) 857–3800, 1231 J. Bash, Policy and Rules Division, Mass carry. 20th Street, NW., Washington, DC Media Bureau, (202) 418–2130 (voice), • In addition, we require any 20036. (202) 418–1169 (TTY), or broadcast station, regardless of its [email protected], or Meryl S. Icove, List of Subjects in 47 CFR Part 73 market size, to ‘‘pass through’’ any Disabilities Rights Office, Consumer video description it receives from a Television, Digital television Information Bureau, (202) 418–2372 programming provider, if the broadcast broadcasting. (voice), 418–0178 (TTY), or station has the technical capability Part 73 of Title 47 of the Code of [email protected]. necessary to do so, and we require any Federal Regulations is amended as SUPPLEMENTARY INFORMATION: This is a MVPD, regardless of its number of follows: summary of the Commission’s Report subscribers, to ‘‘pass through’’ any video PART 73Ð[AMENDED] and Order (‘‘R&O’’), FCC 00–258, description it receives from a adopted July 21, 2000; released August programming provider, if the MVPD has 1. The authority citation for Part 73 7, 2000. The full text of the the technical capability necessary to do continues to read as follows: Commission’s R&O is available for so on the channel on which it

VerDate 112000 12:02 Sep 08, 2000 Jkt 190000 PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 E:\FR\FM\11SER1.SGM pfrm07 PsN: 11SER1 54806 Federal Register / Vol. 65, No. 176 / Monday, September 11, 2000 / Rules and Regulations distributes the programming of the learning-disabled children, pairing their ABC affiliates have the capability to programming provider. more-developed modality with their pass through a second soundtrack on • The first calendar quarter these less-developed modality to reinforce the SAP channel; at least twenty-three rules will be effective will be April–June comprehension of information. Fox affiliates do; and approximately 2002. twenty NBC affiliates do. Some B. Process of Providing Video • We also require broadcast stations Description nonbroadcast networks, such as HBO and MVPDs that provide local and Showtime, also have offered a emergency information through a 6. Current describers of programming Spanish language soundtrack as a regularly scheduled newscast, or an charge between $2000 and $4000 per separate audio program, and, Turner unscheduled newscast that interrupts hour for their service. They begin their Classic Movies has provided a regularly scheduled programming, to process by viewing a program, and soundtrack with video description as a make the critical details of that writing a script to describe key visual separate audio program. Some MVPDs information accessible to persons with elements. The describer times the that carry their programming provide visual disabilities in the affected local placement and length of the description the audio on the SAP channel. area. We also require broadcast stations to fit within natural pauses in the and MVPDs that provide local dialogue. The narration is recorded and III. Entities To Provide Programming emergency information through another mixed with the original program audio With Video Description manner, such as a ‘‘crawl’’ or ‘‘scroll,’’ to create a full audio track with video A. Broadcast Stations in Top 25 DMAs to accompany that information with an description. That audio track is then laid back to the master on a spare 9. We require broadcast stations in the aural tone to alert persons with visual top 25 Designated Market Areas (DMAs, disabilities that they are providing channel if the programming is intended for broadcast, and to a separate master defined by Nielsen Media Research) emergency information. These rules affiliated with the top four commercial relating to emergency information will if it is intended for distribution by home video. When the audio track with video broadcast networks to provide become effective upon approval by the programming with video description. Office of Management and Budget. description is provided on a separate audio channel for broadcast, viewers Our goal in this proceeding is to adopt II. Background decide whether they wish to hear the rules designed to enhance the availability of video description, but not A. Audience for Video Description video description. Viewers who wish to hear the description must activate the impose an undue burden on 3. Video description is designed to Second Audio Program (SAP) channel programming producers and make television programming more on their TV sets or VCRs. ‘‘Closed’’ distributors. Broadcast stations in the accessible to persons with visual video description refers to the process of top 25 DMAs reach approximately 50% disabilities, and enable them to ‘‘hear providing video description on the SAP of U.S. TV households. Those affiliated what they cannot see.’’ Thus, the channel. SAP reception is a standard with the top four broadcast networks primary audience for video description feature of most TV sets and VCRs built provide the highest-rated programming, is persons with visual disabilities. since 1990. SAP-capable TV sets and i.e., the most-watched, and therefore the Estimates of the number of persons with VCRs can be relatively inexpensive— most-advertiser-supported, visual disabilities are as high as twelve less than $150—and converter boxes are programming. Some affiliates of the top million. This estimate includes persons also available for use with TV sets and four networks in the top 25 DMAs with a problem seeing that cannot be VCRs that are not SAP-capable. already have the technical capability corrected with ordinary glasses or 7. Programming providers that wish to necessary to provide programming with contact lenses, with a range in severity. distribute programming on the SAP video description. Those that do not are 4. A disproportionate number of channel typically need the capability to likely to have the resources to acquire persons with visual disabilities are support three audio channels at all that capability without being unduly seniors. The National Center for Health points in the distribution process. This burdened. Statistics reports that eye problems are is because two audio channels are used B. Multichannel Video Programming the third leading cause, after heart to support left and right stereo, so that disease and arthritis, of restricting the a third audio channel is necessary to Distributors With at Least 50,000 normal daily activities of persons 65 support a monaural mix of the main Subscribers years of age or older. While only 2–3% audio and the video description. The 10. We also require larger of the population under 45 years of age programming provider transmits both multichannel video programming has visual disabilities, 9–14% of the audio tracks as part of its main signal. distributors (MVPDs) that serve 50,000 population 75 years of age or older does. Networks, broadcast stations, and or more subscribers to provide This means that as the population ages, MVPDs that do not have the capability programming with video description on more and more people will become to support three channels of audio each of the top five national visually disabled. generally need to upgrade equipment nonbroadcast networks they carry, as 5. Secondary audiences for video and plant wiring to do so. The cost defined by prime time audience share, description exist as well. For example, depends on the amount and nature of as well as the programming of broadcast at least one and a half million children the equipment that needs to be stations and other networks they carry, between the ages of 6 and 14 with upgraded. under certain circumstances, as learning disabilities may benefit from 8. A number of commercial broadcast described. We believe this result is video description. Because the medium and nonbroadcast networks have consistent with our goal of enhancing has both audio description and visual provided programming with Spanish the availability of video description appeal, it has significant potential to language as a second audio program. without imposing an undue burden on capture the attention of learning Each of the top four commercial the programming production and disabled children and enhance their broadcast TV networks has provided a distribution industries. The ‘‘larger information processing skills. Described Spanish language soundtrack as a MVPDs’’ as we define them include video programming capitalizes on the second audio program, on at least an approximately 275 cable systems that different perceptual strengths of occasional basis. At least thirty-three serve approximately 50% of MVPD

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Because MVPDs must have the will not create conflicts between least fifty hours per calendar quarter of Spanish language audio and video capability to support a third audio programming with video description. description for use of the SAP channel. channel for each channel on which they Our goal in this proceeding is to bring intend to provide programming with the benefits of video description to the B. Prime Time vs. Other Types of video description, we have decided to commercial video marketplace, while at Programming limit the number of nonbroadcast the same time not impose an undue 17. We require that the described networks for which ‘‘larger MVPDs’’ burden on the broadcast stations and programming must either be shown must provide video description to five. MVPDs subject to our initial rules. We during prime time or be children’s Given that we require MVPDs to provide believe that requiring these broadcast programming. Prime time programming programming with video description stations and MVPDs to provide fifty or is the most watched programming, and during prime time, we define the top more hours per calendar quarter of so programming provided during this five nonbroadcast networks in terms of programming with video description time will reach more people than prime time audience share, as satisfies this goal. programming provided at any other determined by an average of Nielsen 15. We clarify, as suggested by several time. In addition, the several thousand prime time ratings for the time period commenters, that the broadcast stations dollars per hour cost to describe October 1, 1999–September 30, 2000. and MVPDs may not count toward their programming is a very small portion of 12. The per-channel costs for MVPDs 50-hour quarterly requirement the production budget for the typical also suggests that the cut-off for ‘‘larger programming that they have previously prime time program. At the same time, MVPDs’’ should be based on cable aired with video description, once the programming with video description system size, not on multiple system rules go into effect. In other words, a may provide a benefit not only to operator size. We have decided to apply broadcast station or MVPD may not children who are visually disabled, but our rules to systems with more than count toward its 50-hour quarterly also to those who are learning disabled. 50,000 subscribers. These systems requirement any programming it aired Programming with video description include approximately 275 cable with video description after the effective has both audio description and visual date of the rules when that same systems that reach approximately 50% appeal, and so has the potential to broadcast station or MVPD repeats the of cable subscribers, just as our rules capture the attention of learning same programming later. Broadcast affect broadcast stations that reach disabled children and enhance their stations and MVPDs may, however, approximately 50% of U.S. TV information processing skills. Requiring count any programming they air after households. Our decision to apply our broadcast stations and MVPDs to the effective date in excess of their rules to MVPDs that serve at least provide children’s or prime time quarterly requirements, and that they 50,000 subscribers will also include two programming with video description repeat later. In addition, they may count thus ensures that the programming DBS systems that together reach an any programming with video reaches the greatest portion of the additional 12 million subscribers. description they air before the effective audience it is intended to benefit the C. Equipped Broadcast Stations and date of the rule, and that they later most. Permitting broadcast stations and MVPDs repeat after the effective date. We also MVPDs to select between the two clarify, as suggested by several provides them flexibility without 13. We further require all broadcast commenters, that once a broadcast compromising that goal. stations, including noncommercial station or MVPD has aired a particular 18. In order to help the public identify educational stations, that have the program with video description, all of the broadcast stations and MVPDs that technical capability necessary to ‘‘pass that broadcast station’s or MVPD’s are required to provide programming through’’ any second audio program subsequent airings of that program with video description, and the containing video description that they should contain video description, programming for which they are doing receive from their affiliated networks. unless another use is being made of the so, we encourage broadcast stations and Similarly, we require all MVPDs that SAP channel. We further clarify that MVPDs that provide programming with have the technical capability necessary non-program minutes, however, such as video description to take steps to to ‘‘pass through’’ any secondary audio advertisements and public service educate and inform the public about the program containing video description announcements, aired during a program service. We encourage broadcast that they receive from a broadcast need not be described. stations and MVPDs to promote the station or nonbroadcast network. We 16. We also believe that our decision service in their programming and on believe this requirement is consistent to require that 50 hours per quarter, or their websites, and provide the relevant with our approach to enhance the roughly 4 hours per week, of information to magazines and availability of video description, but not programming with video description newspapers that follow their impose an undue burden on will avoid any conflicts between programming schedules, as some programming producers and competing uses of the SAP channel. commenters suggest. distributors. We will consider broadcast Some networks use the SAP channel to 19. We note the some commenters stations and MVPDs to have the provide Spanish audio or other services. suggest that we should not focus on technical capability necessary to Although as some commenters point out entertainment programming, but rather support video description if they have there is not a technical solution to allow on the accessibility of text information virtually all necessary equipment and two uses of the SAP channel aired on TV, such as emergency infrastructure to do so, except for items simultaneously, as others point out most information, the identity of speakers on that would be of minimal cost. networks that use the SAP channel to news and talk shows, and telephone

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We believe, our initial video description rules, we station or MVPD to respond within 10 however, that a secondary audio decline to exempt, however, any days after being notified of the program may not be the appropriate particular categories of programming or complaint in order to minimize the risk vehicle to provide text-based class of programming providers. of repeat or recurring problems. If, on information. However, we do encourage VII. Enforcement the other hand, a complaint alleges that producers of programming with text a broadcast station or MVPD has not met information to provide that information 22. We adopt enforcement procedures its quarterly requirements, it may not be aurally, by announcing the names of as follows. A complaint alleging a appropriate to require the broadcast speakers. Advertisers should already violation of this section may be station or MVPD to respond until the have a commercial incentive to provide transmitted to the Commission by any end of the quarter that is the subject of contact information aurally. reasonable means, such as letter, the complaint. However, recurring facsimile transmission, telephone V. Effective Date of New Rules complaints or a pattern of such (voice/TRS/TTY), Internet e-mail, complaints against a particular 20. We require the broadcast stations audio-cassette recording, and Braille, or broadcast station or MVPD may warrant in the top 25 DMAs and MVPDs with at some other method that would best a more immediate response to ensure least 50,00 subscribers to begin accommodate a complainant’s that quarterly requirements are being providing programming with video disability. A complaint shall include the addressed by the broadcast station or description during the first calendar name and address of the complainant. MVPD in manner consistent with their quarter that is eighteen months after the The complaint shall include the name of intended purposes. Commission staff adoption date of this R&O, i.e., April the broadcast station or MVPD against will manage our complaint processes to through June 2002. Although we whom the complaint is alleged. A reflect these and other case specific appreciate the desire of many to have complaint against a broadcast station differences. The burden of proof of programming with video description should include the name and address of compliance in response to a complaint earlier, we wish to give the affected the station, and its call letters and is on the broadcast station or MVPD, broadcast stations, MVPDs, and network affiliation. A complaint against and they must maintain records networks the time that may be necessary an MVPD should include the name and sufficient to show their compliance with to make arrangements to describe the address of the MVPD, and the name of our rules. programming, and to upgrade their the network that provides the equipment and infrastructure. We programming that is the subject of the 24. Commission staff will review all believe that giving the affected parties complaint. Complaints should include a relevant information provided by the until April 2002 is ample time. We statement of facts sufficient to show that complainant and defendant broadcast decline to make our effective date the broadcast station or MVPD has station or MVPD and may request coincide with the beginning of the TV violated or is violating the additional information from either or season for broadcast networks because Commission’s rules, and, if applicable, both parties when needed for a full our rules also affect nonbroadcast the date and time of the alleged resolution of the complaint. networks, which may or may not use the violation; the specific relief or Certifications of compliance from same schedule to introduce new satisfaction sought by the complainant; programming suppliers, including programs as broadcast networks do. We and the complainant’s preferred format programming producers, programming encourage parties that seek to make the or method of response to the complaint owners, networks, syndicators and other beginning of their new programming (such as letter, facsimile transmission, distributors, may be relied on by seasons coincide with starting date of telephone (voice/TRS/TTY), Internet e- broadcast stations and MVPDs to defend their providing video description to mail, or some other method that would against claims of noncompliance. As a make the necessary arrangements to do best accommodate a complainant’s general matter, distributors will not be so, within the time frame to meet their disability). Complaints should be sent to held responsible for situations where a first quarterly compliance requirement the Commission’s Consumer program source falsely certifies that in April–June 2002. Information Bureau. That bureau will programming delivered to the forward formal complaints to the distributor meets our video description VI. Exemptions Commission’s Enforcement Bureau, and requirements and the distributor did not 21. We adopt procedures and we delegate authority to the know and could not have reasonably standards to exempt any broadcast Enforcement Bureau to act on and ascertained that the certification was station or MVPD subject to our rules for resolve any complaints in a manner false. However, we expect broadcast which compliance would be an ‘‘undue consistent with this R&O. stations and MVPDs to establish burden.’’ We, therefore, will exempt any 23. Complaints satisfying the appropriate policies and procedures to affected broadcast station or MVPD that requirements described will be safeguard against such false can demonstrate through sufficient promptly forwarded by Commission certifications. Commission staff will evidence that compliance would result staff to the broadcast station or MVPD scrutinize complaints to ensure that in an ‘‘undue burden,’’ which means involved, which shall be called on to broadcast stations and MVPDs vigilantly significant difficulty or expense. We answer the complaint within a specified adhere to our video description will consider the following factors: The time, generally within 30 days. To requirements. If we determine that a nature and cost of providing video ensure fair and meaningful enforcement violation has occurred, we will use our description of the programming; the of our video description requirements, considerable discretion under the Act to impact on the operation of the broadcast we will authorize the staff to either tailor sanctions and remedies to the station or MVPD; the financial resources shorten or lengthen the time required individual circumstances of a particular of the broadcast station or MVPD; the for responding to complaints in violation. For example, in egregious

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As a result of radio communication service. * * *’’ VIII. Emergency Information our rule, persons with visual disabilities (emphasis added). Section 1 also 25. We require any broadcast station will have access to the same critical established the Commission ‘‘for the or MVPD that provides local emergency information to which other viewers purpose of promoting safety of life and information to make the critical details have access. Under this rule, broadcast property through the use of wire and of that information accessible to persons stations and MVPDs are not required to radio communication.’’ Section 2(a) of with visual disabilities. Our rule applies provide in an accessible format all of the the Act (codified as 47 U.S.C. 152(a)) to all broadcast stations and MVPDs that information about an emergency states that ‘‘[t]he provisions of this act provide emergency information, as situation that they are providing to shall apply to all interstate and foreign opposed to just those in the largest TV viewers visually, only the visual communication by wire or radio’’ and markets or with the largest number of information intended to further the ‘‘all persons engaged within the United subscribers. We believe this is protection of life, health, safety, and States in such communication.’’ Section appropriate both because of the property. In determining whether 4(i) (codified as 47 U.S.C. 154(i)) states importance of emergency information particular details need to be made that ‘‘[t]he Commission may perform and because it does not involve the accessible, we will permit programmers any and all acts, make such rules and kinds of technical issues involved in to rely on their own good faith regulations, and issue such orders, not using a SAP channel. We envision that judgments. inconsistent with this Act, as may be affected broadcast stations and MVPDs 27. We believe that our requirement necessary in the execution of its will aurally describe the emergency that broadcast stations and MVPDs functions’’ and section 303(r) (codified information in the main audio as part of make the critical details of emergency as 47 U.S.C. 303(r)) states that ‘‘the their ordinary operations. This would be information available during regularly Commission from time to time, as similar to providing ‘‘open’’ video scheduled newscasts and newscasts that public convenience, interest, or description. We define emergency are sufficiently urgent to interrupt necessity requires shall * * * [m]ake information to be that which is intended regular programming will generally such rules and regulations and prescribe to protect life, health, safety, and ensure that the critical details of such restrictions and conditions, not property, i.e., critical details about an emergency information will be inconsistent with law, as may be emergency and how to respond to the accessible to persons with visual necessary to carry out the provisions of emergency. Examples of the types of disabilities. This is because we expect this Act. * * *’’ emergencies covered include tornadoes, that broadcast stations and MVPDs will 30. Congress has thus authorized the hurricanes, floods, tidal waves, provide emergency information of an Commission to make available to all earthquakes, icing conditions, heavy extremely urgent nature by interrupting Americans a radio and wire snows, widespread fires, discharge of their regularly scheduled programming communication service, and to promote toxic gases, widespread power failures, with a newsbreak, and we require them safety and life through such service, and industrial explosions, civil disorders, to make the critical details of this to make such regulations to carry out school closings and changes in school information accessible. To the extent, that mandate, that are consistent with bus schedules resulting from such however, that a broadcast station or the public interest and not inconsistent conditions, and warnings and watches MVPD does not interrupt its regular with other provisions of the Act or other of impending changes in weather. These programming to provide emergency law. In other words, as the Commission examples are intended to provide information but rather does so through has previously explained, ‘‘[t]he courts guidance as to what is covered by the another manner, such as a ‘‘crawl’’ or have consistently held that the rule and are not intended to be an ‘‘scroll,’’ during that programming, we Commission has broad discretion so exhaustive list. We do not believe an require them to accompany that long as its actions further the legislative exhaustive list of examples is necessary information with an aural tone, as purposes for which the Commission was to convey what is covered by the rule. referenced in the Notice of Proposed created and are not contrary to the basic Our definition of emergency Rule Making (‘‘NPRM’’), 64 FR 67236 statutory scheme.’’ Thus, in considering information will include the provision (December 1, 1999). the Commission’s power to create the of critical details in an accessible 28. The new rules regarding universal service fund (for which at the manner. Critical details could include, emergency information will be effective time there was no explicit statutory among other things, specific details upon approval by the Office of authority), the U.S. Court of Appeals for regarding the areas that will be affected Management and Budget. We adopt an the D.C. Circuit relied, solely, on by the emergency, evacuation orders, earlier effective date for this rule sections 1 and 4(i) of the statute, detailed descriptions of areas to be because of the importance of emergency holding: ‘‘As the Universal Service evacuated, specific evacuation routes, information, and because there should Fund was proposed in order to further approved shelters or the way to take be little if any equipment and the objective of making communication shelter in one’s home, instructions on infrastructure costs associated with service available to all Americans at how to secure personal property, road compliance. reasonable charges, the proposal was closures, and how to obtain relief within the Commission’s statutory assistance. IX. Jurisdiction authority.’’ 26. The rule will require broadcast 29. We conclude that we have the 31. We disagree with those parties stations and MVPDs that provide local authority to adopt video description that contend that video description emergency information to make that rules. Section 1 of the Act (codified as rules would be inconsistent with other information accessible to viewers who 47 U.S.C. 151) established the provisions in the Act or other law.

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Specifically, some parties contend that sections 4(i) and 303(r) of the Act. Had programmer to express what it has video description rules are inconsistent Congress intended to limit our general already chosen to express in an with sections 624 and 713 of the Act, authority, it could have expressly done alternative format to enhance the and the First Amendment. Others so, as it has elsewhere in the Act. accessibility of the message. As such, suggest that the rules interfere with the 34. Section 624(f). Some commenters our rules are comparable to a rights of copyright holders. We address also contend that, absent express requirement to translate one’s speech each of these. authority to conduct a rulemaking on into another language in other contexts. 32. Section 713. Some commenters video description elsewhere in the Act, A requirement to provide programming contend that section 713(f) of the Act, section 624(f) of the Act precludes the with video description is most similar to codified as 47 U.S.C. 613(f), only Commission from adopting video our existing requirements to provide authorizes the Commission to conduct description rules for cable operators. programming with closed captioning, an inquiry, and thus forecloses a Section 624(f) states that ‘‘[a]ny Federal which, as several commenters point out, rulemaking, on video description. agency * * * may not impose has not been challenged on First Section 713(f) of the Act states, in its requirements regarding the provision or Amendment grounds. Indeed, the U.S. entirety: content of cable services, except as Court of Appeals for the D.C. Circuit Within 6 months after the date of expressly provided in [Title VI].’’ The concluded nearly twenty years ago that enactment of the Telecommunications Act of U.S. Court of Appeals for the D.C. any requirement to provide 1996, the Commission shall commence an Circuit has interpreted this section to programming with closed captioning inquiry to examine the use of video forbid ‘‘rules requiring cable companies would not violate the First Amendment. descriptions on video programming in order to carry particular programming.’’ The 37. Given that our video description to ensure the accessibility of video video description rules we adopt today rules are content-neutral regulations, the programming to persons with visual are not content-based, and as such, do applicable test for reviewing their impairments, and report to Congress on its findings. The Commission’s report shall not require cable companies (or any constitutionality is whether the assess the appropriate methods and schedule other distributor of video programming) regulations promote an important for phasing video descriptions into the to carry particular programming. Rather, government purpose, and whether they marketplace, technical and quality standards our rules simply require that, if a do not burden substantially more for video descriptions, a definition of distributor chooses to carry the speech than necessary. As indicated, programming for which video descriptions programming of the largest networks, it our purpose in adopting our rules is to would apply, and other technical and legal must provide a small amount of enhance the accessibility of television issues that the Commission deems programming with video description. programming to persons with visual appropriate. 35. First Amendment. Some disabilities. As we observed in the Section 713(f) is silent with respect commenters argue that requiring video NPRM, television programming shapes to—and thus by itself neither authorizes description is inconsistent with the First American culture and public opinion in nor precludes—a rulemaking. In other Amendment, because it compels speech, myriad ways, because it is our principal words, section 713(f) does not change or otherwise is content-based regulation. source of news and information, and the purpose for which the Commission Other commenters, however, contend provides hours of entertainment weekly. was created, as expressed in section 1 of that our rules are content-neutral Millions of Americans have visual the Act, nor does it derogate the general regulations, similar to time, place, and disabilities and have difficulty rulemaking powers the Commission has, manner regulations, and under the following the visual elements in as expressed in sections 4(i) and 303(r) applicable test, are consistent with the television programming, which can be of the Act. First Amendment. The Supreme Court overcome through video description. 33. We recognize, as some has held that ‘‘[t]he principal inquiry in We believe this is an important commenters point out, that the determining content neutrality, in government purposes in the context of legislative history to section 713 speech cases generally and in time, the First Amendment, and believe that indicates that Congress considered, but place or manner cases in particular, is other legislation designed to enhance did not enact, language explicitly whether the government has adopted a the accessibility of communications to referencing a rulemaking proceeding. regulation of speech because of persons with disabilities supports our The Conference Report indicates that disagreement with the message it conclusion. the House amendment to the Senate bill conveys. The government’s purpose is 38. We also believe that video contained language explicitly the controlling consideration. A description will not burden any more referencing a rulemaking proceeding: regulation that serves purposes speech than necessary. As described, ‘‘Following the completion of this unrelated to free expression is deemed video description is in effect the inquiry the Commission may adopt neutral, even if it has an incidental translation of the visual elements of regulations it deems necessary to effect on some speakers or messages but programming into another language to promote the accessibility of video not others.’’ The purpose of our video provide functional equivalency for the programming to persons with visual description rules is to enhance the blind. Our rules will require only a impairments.’’ The conferees agreed, accessibility of video programming to limited amount of programming to however, to remove such language: persons with disabilities, and is not contain video description. To the extent ‘‘The agreement deletes the House related to content. the video description is distracting to provision referencing a Commission 36. The fact that our rules will viewers who do not wish to hear it, they rulemaking with respect to video require, as opposed to restrict, speech can simply listen to the main audio description.’’ While this history does not change the analysis. As a instead of the SAP channel. indicates that section 713 should not be number of commenters explain, a construed to authorize a Commission mandate to provide video description X. Conclusion rulemaking, the history does not does not require a programmer to 39. Today we adopt rules to enhance indicate that section 713 should be express anything other than what the the accessibility of the important construed to prohibit such a programmer has already chosen to medium of television to persons with rulemaking, given our otherwise broad express in the visual elements of the visual disabilities. We do not impose an powers to make rules, as expressed in program. Our rules simply require a undue burden on the programming

VerDate 112000 12:02 Sep 08, 2000 Jkt 190000 PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 E:\FR\FM\11SER1.SGM pfrm07 PsN: 11SER1 Federal Register / Vol. 65, No. 176 / Monday, September 11, 2000 / Rules and Regulations 54811 production and distribution industries. XIII. Final Regulatory Flexibility Act sent to Congress pursuant to the Small Our rules will require only the largest Certification Business Regulatory Enforcement broadcast stations and MVPDs—which 47. The Regulatory Flexibility Act Fairness Act, see 5 U.S.C. 801(a)(1)(A). provide television programming to the (RFA) requires that an agency prepare a In addition, the Commission will send majority of the public—to provide a regulatory flexibility analysis for notice- a copy of the R&O, including a copy of limited amount of programming with and-comment rulemaking proceedings, this final certification, to the Chief video description. These broadcast unless the agency certifies that ‘‘the rule Counsel for Advocacy of the Small stations and MVPDs will provide will not, if promulgated, have a Business Administration. In addition, a programming with video description on significant economic impact on a copy of the R&O and this final the largest networks they carry—which substantial number of small entities.’’ certification will be published in the provide the most watched television The NPRM published in this proceeding Federal Register. See 5 U.S.C. 605(b). programming. Our rules will thus create proposed rules to provide video List of Subjects in 47 CFR Part 79 a benefit to the greatest number of description on video programming in Cable television. persons with visual disabilities but at order to ensure the accessibility of video the same time impose a cost on the least programming to persons with visual Federal Communications Commission. number of broadcast stations and impairments. Magalie Roman Salas, MVPDs. As the industry and the public 48. In an abundance of caution, the Secretary. gain greater experience with video Commission published an Initial Rules description, we hope that more Regulatory Flexibility Analysis (IRFA) broadcast stations and MVPDs will in the NPRM, even though the Part 79 of Title 47 of the U.S. Code of provide video description, and those Commission was reasonably confident Federal Regulations is amended by that do so will provide more hours of that the proposed rules would not have revising it to read as follows: programming with video description. the requisite ‘‘significant economic XI. Administrative Matters impact’’ on a ‘‘substantial number of PART 79ÐCLOSED CAPTIONING AND small entities.’’ The IRFA sought written VIDEO DESCRIPTION OF VIDEO 40. This document is available to public comment on the proposed rules. PROGRAMMING individuals with disabilities requiring No written comments were received on accessible formats (electronic ASCII 1. The title of part 79 is revised to the IRFA, nor were general comments text, Braille, large print, and read as set forth above: received that raised concerns about the audiocassette) by contacting Brian impact of the proposed rules on small 2. The authority citation for part 79 is Millin at (202) 418–7426 (voice), (202) entities. revised to read as follows: 418–7365 (TTY), or by sending an email 49. The rules adopted in this R&O Authority: 47 U.S.C. 151, 152(a), 154(i), to [email protected]. requiring stations to provide video 303, 307, 309, 310, 613. 41. Final Paperwork Reduction Act descriptions on video programming will Analysis. This R&O contains 3. Section 79.2 is amended by revising affect at most five small broadcasters, information collection requirements that paragraphs (a)(1), (b)(1), and (b)(3) to which are affiliates of the top four the Commission is submitting to the read as follows: networks in the top 25 Nielsen Office of Management and Budget Designated Market Areas, in the amount § 79.2 Accessibility of programming requesting clearance under the of $5,000 to $25,000 each. We recognize providing emergency information. Paperwork Reduction Act of 1995. 42. Final Regulatory Flexibility that the upper end of the possible (a) Definitions. (1) For purposes of Certification. Pursuant to the Regulatory economic impact might constitute a this section, the definitions in §§ 79.1 Flexibility Act of 1980, as amended, 5 significant impact for some small and 79.3 apply. U.S.C. 601 et seq. broadcasters, but, as noted, this impact * * * * * will reach, at most, 10 entities, and we (b) Requirements for accessibility of XII. Ordering Clauses have provided an exemption (upon programming providing emergency 43. Accordingly, pursuant to the application) for those small entities for information. authority contained in sections 1, 2(a), which the cost is burdensome. The pass (1) Video programming distributors 4(i), 303, 307, 309, 310, and 713 of the through of programming will have no must make emergency information, as Communications Act, as amended, 47 significant economic impact on small defined in paragraph (a) of this section, U.S.C. 151, 152(a), 154(i), 303, 307, 309, entities because they are required to accessible as follows: 310, 613, part 79 of the Commission’s pass through the programming with (i) Emergency information that is rules are amended as set forth. video description only if they already provided in the audio portion of the 44. The rules set forth that revise have the technical capability necessary programming must be made accessible § 79.2 of the Commission’s rules, 47 to do so. The Commission believes that to persons with hearing disabilities by CFR 79.2, shall become effective upon the emergency notification requirement using a method of closed captioning or approval from the Office of Management will have a negligible effect on small by using a method of visual and Budget, and the rules set forth that entities as well. In addition, if this presentation, as described in § 79.1 of add § 79.3 to the Commission’s rules, 47 requirement should prove burdensome this part; CFR 79.3, shell become effective on to small entities, they may apply for an (ii) Emergency information that is April 1, 2002. exemption. provided in the video portion of a 45. The Commission’s Consumer 50. The Commission therefore regularly scheduled newscast, or Information Bureau, Reference certifies, pursuant to the RFA, that the newscast that interrupts regular Information Center, shall send a copy of rules adopted in the present R&O will programming, must be made accessible this R&O, including the Final not have a significant economic impact to persons with visual disabilities; and Regulatory Flexibility Certification, to on a substantial number of small (iii) Emergency information that is the Chief Counsel for Advocacy of the entities. The Commission will send a provided in the video portion of Small Business Administration. copy of the R&O, including a copy of programming that is not a regularly 46. This proceeding is terminated. this final certification, in a report to be scheduled newscast, or a newscast that

VerDate 112000 17:27 Sep 08, 2000 Jkt 190000 PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 E:\FR\FM\11SER1.SGM pfrm04 PsN: 11SER1 54812 Federal Register / Vol. 65, No. 176 / Monday, September 11, 2000 / Rules and Regulations interrupts regular programming, must be that are licensed to a community located with the program for a purpose other accompanied with an aural tone. in the top 25 DMAs, as determined by than providing video description. * * * * * Nielsen Media Research, Inc. for the (4) In evaluating whether a video (3) Video programming distributors year 2000, must provide 50 hours of programming distributor has complied must ensure that: video description per calendar quarter, with the requirement to provide video (i) Emergency information should not either during prime time or on programming with video description, block any closed captioning and any children’s programming; the Commission will consider showings closed captioning should not block any (2) Television broadcast stations that that any lack of video description was emergency information provided by are affiliated or otherwise associated de minimis and reasonable under the means other than closed captioning; and with any television network, must pass circumstances. (ii) Emergency information should not through video description when the (d) Procedures for exemptions based block any video description and any network provides video description and on undue burden. video description provided should not the broadcast station has the technical (1) A video programming distributor block any emergency information capability necessary to pass through the may petition the Commission for a full provided by means other than video video description; or partial exemption from the video description. (3) Multichannel video programming description requirements of this section, * * * * * distributors (MVPDs) that serve 50,000 which the Commission may grant upon 4. Part 79 is amended by adding § 79.3 or more subscribers, as of September 30, a finding that the requirements will to read as follows: 2000, must provide 50 hours of video result in an undue burden. description per calendar quarter during (2) The petitioner must support a § 79.3 Video description of video prime time or on children’s programming. petition for exemption with sufficient programming, on each channel on evidence to demonstrate that (a) Definitions. For purposes of this which they carry one of the top five section the following definitions shall compliance with the requirements to national nonbroadcast networks, as provide programming with video apply: defined by an average of the national (1) Designated Market Areas (DMAs). description would cause an undue audience share during prime time of burden. The term ‘‘undue burden’’ Unique, county-based geographic areas nonbroadcast networks, as determined designated by Nielsen Media Research, means significant difficulty or expense. by Nielsen Media Research, Inc., for the The Commission will consider the a television audience measurement time period October 1999 through service, based on television viewership following factors when determining September 2000; and whether the requirements for video in the counties that make up each DMA. (4) Multichannel video programming (2) Second Audio Program (SAP) description impose an undue burden: distributors (MVPDs) of any size: channel. A channel containing the (i) The nature and cost of providing (i) Must pass through video frequency-modulated second audio video description of the programming; description on each broadcast station program subcarrier, as defined in, and (ii) The impact on the operation of the they carry, when the broadcast station subject to, the Commission’s OET video programming distributor; provides video description, and the Bulletin No. 60, Revision A, (iii) The financial resources of the channel on which the MVPD distributes ‘‘Multichannel Television Sound video programming distributor; and the programming of the broadcast Transmission and Processing station has the technical capability (iv) The type of operations of the Requirements for the BTSC System,’’ necessary to pass through the video video programming distributor. February 1986. description; and (3) In addition to these factors, the (3) Video description. The insertion of petitioner must describe any other audio narrated descriptions of a (ii) Must pass through video description on each nonbroadcast factors it deems relevant to the television program’s key visual elements Commission’s final determination and into natural pauses between the network they carry, when the network provides video description, and the any available alternative that might program’s dialogue. constitute a reasonable substitute for the (4) Video programming. Programming channel on which the MVPD distributes the programming of the network has the video description requirements. The provided by, or generally considered Commission will evaluate undue comparable to programming provided technical capability necessary to pass through the video description. burden with regard to the individual by, a television broadcast station that is outlet. distributed and exhibited for residential (c) Responsibility for and (4) The petitioner must file an original use. determination of compliance. (1) The (5) Video programming distributor. Commission will calculate compliance and two (2) copies of a petition Any television broadcast station on a per channel, calendar quarter basis, requesting an exemption based on the licensed by the Commission and any beginning with the calendar quarter undue burden standard, and all multichannel video programming April 1 through June 30, 2002. subsequent pleadings, in accordance distributor (MVPD), and any other (2) Programming with video with § 0.401(a) of this chapter. distributor of video programming for description will count toward a (5) The Commission will place the residential reception that delivers such broadcaster’s or MVPD’s minimum petition on public notice. programming directly to the home and requirement for a particular quarter only (6) Any interested person may file is subject to the jurisdiction of the if that programming has not previously comments or oppositions to the petition Commission. been counted by that broadcaster or within 30 days of the public notice of (b) The following video programming MVPD towards its minimum the petition. Within 20 days of the close distributors must provide programming requirement for any quarter. of the comment period, the petitioner with video description as follows: (3) Once an entity has aired a may reply to any comments or (1) Commercial television broadcast particular program with video oppositions filed. stations that are affiliated with one of description, it is required to include (7) Persons that file comments or the top four commercial television video description with all subsequent oppositions to the petition must serve broadcast networks (ABC, CBS, Fox, and airings of that program, unless the entity the petitioner with copies of those NBC), as of September 30, 2000, and uses the SAP channel in connection comments or oppositions and must

VerDate 112000 17:27 Sep 08, 2000 Jkt 190000 PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 E:\FR\FM\11SER1.SGM pfrm04 PsN: 11SER1 Federal Register / Vol. 65, No. 176 / Monday, September 11, 2000 / Rules and Regulations 54813 include a certification that the petitioner (2) The Commission will promptly comply with OMB Bulletin 97–01 and was served with a copy. Parties filing forward complaints satisfying the makes other changes to NASA’s replies to comments or oppositions requirements to the video programming property reporting requirements. must serve the commenting or opposing distributor involved. The video Specific changes include: Additional party with copies of such replies and programming distributor must respond instructions on how to adjust previously shall include a certification that the to the complaint within a specified reported values; a new definition of party was served with a copy. time, generally within 30 days. The Agency Peculiar Property to exclude (8) Upon a showing of good cause, the Commission may authorize Commission completed end items destined for Commission may lengthen or shorten staff to either shorten or lengthen the permanent operation in space; and a any comment period and waive or time required for responding to new definition of Work in Process to establish other procedural requirements. complaints in particular cases. include completed end items destined (9) Persons filing petitions and (3) The Commission will review all for permanent operation in space which responsive pleadings must include a relevant information provided by the otherwise meet the definition of Agency detailed, full showing, supported by complainant and the video Peculiar Property. affidavit, of any facts or considerations programming distributor and will DATES: Effective Date: September 11, relied on. request additional information from 2000. (10) The Commission may deny or either or both parties when needed for Comment Date: Comments should be approve, in whole or in part, a petition a full resolution of the complaint. submitted to NASA at the address below for an undue burden exemption from (i) The Commission may rely on on or before November 13, 2000. certifications from programming the video description requirements. ADDRESSES: Comments should be sent to (11) During the pendency of an undue suppliers, including programming James H. Dolvin, NASA Headquarters, burden determination, the Commission producers, programming owners, Code HK, Washington, DC 20546, (202) will consider the video programming networks, syndicators and other 358–1279, [email protected]. subject to the request for exemption as distributors, to demonstrate compliance. The Commission will not hold the video FOR FURTHER INFORMATION CONTACT: exempt from the video description James H. Dolvin, (202) 358–1279. requirements. programming distributor responsible for SUPPLEMENTARY INFORMATION: (e) Complaint procedures. (1) A situations where a program source complainant may file a complaint falsely certifies that programming that it A. Background concerning an alleged violation of the delivered to the video programming distributor meets our video description OMB Bulletin 97–01, Form and video description requirements of this Content of Agency Financial section by transmitting it to the requirements if the video programming distributor is unaware that the Statements, prescribes financial Consumer Information Bureau at the accounting and reporting requirements Commission by any reasonable means, certification is false. Appropriate action may be taken with respect to deliberate for Federal agencies. Included are such as letter, facsimile transmission, accounting standards which apply to telephone (voice/TRS/TTY), Internet e- falsifications. (ii) If the Commission finds that a property, plant and equipment. mail, audio-cassette recording, and Comments have been received from Braille, or some other method that video programming distributor has violated the video description contractors regarding NASA’s initial would best accommodate the implementation of the standards complainant’s disability. Complaints requirements of this section, it may impose penalties, including a through the NASA Form 1018 reporting should be addressed to: Consumer format. In addition to changes being Information Bureau, 445 12th Street, requirement that the video programming distributor deliver video programming made to respond to contractors’ SW, Washington, DC 20554. A concerns, changes are needed in complaint must include: containing video description in excess of its requirements. NASA’s reporting requirements to (i) The name and address of the ensure compliance with the accounting complainant; (f) Private rights of action are prohibited. Nothing in this section shall standards and accurate and timely (ii) The name and address of the be construed to authorize any private financial statements. broadcast station against whom the right of action to enforce any complaint is alleged and its call letters B. Regulatory Flexibility Act requirement of this section. The and network affiliation, or the name and Commission shall have exclusive NASA certifies that this interim rule address of the MVPD against whom the jurisdiction with respect to any will not have a significant economic complaint is alleged and the name of the complaint under this section. impact on a substantial number of small network that provides the programming entities within the meaning of the that is the subject of the complaint; [FR Doc. 00–23154 Filed 9–8–00; 8:45 am] Regulatory Flexibility Act (5 U.S.C. 601 (iii) A statement of facts sufficient to BILLING CODE 6712±01±P et seq.) because less than three per cent show that the video programming of NASA contracts with small distributor has violated or is violating businesses have property reporting the Commission’s rules, and, if NATIONAL AERONAUTICS AND requirements. applicable, the date and time of the SPACE ADMINISTRATION alleged violation; C. Paperwork Reduction Act (iv) The specific relief or satisfaction 48 CFR Parts 1845 and 1852 The Paperwork Reduction Act, 44 sought by the complainant; and U.S.C. 3501 et seq., applies to this (v) The complainant’s preferred Property Reporting Requirements proposed rule because it contains format or method of response to the AGENCY: National Aeronautics and information collection requirements. complaint (such as letter, facsimile Space Administration (NASA) Approval for the additional transmission, telephone (voice/TRS/ ACTION: Interim rule. requirements has been obtained under TYY), Internet e-mail, or some other OMB Control No. 2700–0017, approving method that would best accommodate SUMMARY: This interim rule amends the an increase in burden hours from 5,700 the complaint’s disability). NASA FAR Supplement (NFS) to to 8,144.

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