33642 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Proposed Rules

FEDERAL COMMUNICATIONS contained in this document, contact tentatively conclude that the substantial COMMISSION Cathy Williams at (202) 418–2918 or benefits for individuals who are blind or send an email to [email protected]. visually impaired outweigh the likely 47 CFR Part 79 SUPPLEMENTARY INFORMATION: This is a minimal costs of the proposals we make [MB Docket No. 11–43; FCC 16–37] summary of the Commission’s Notice of in this NPRM. Proposed Rulemaking (NPRM), FCC 16– 2. Specifically, we propose the Video Description: Implementation of 37, adopted on March 31, 2016, and following revisions to our video the Twenty-First Century released on April 1, 2016. The full text description rules: Communications and Video of this document is available • An increase in the amount of Accessibility Act of 2010 electronically via the FCC’s Electronic described programming on each Document Management System included network (a network carried on AGENCY: Federal Communications (EDOCS) Web site at http:// a programming stream or channel on Commission. fjallfoss.fcc.gov/edocs_public/ or via the which a broadcaster or MVPD is ACTION: Proposed rule. FCC’s Electronic Comment Filing required to provide video description) System (ECFS) Web site at http:// carried by a covered broadcast station or SUMMARY: In this document, the fjallfoss.fcc.gov/ecfs2/. Documents will multichannel video programming Commission seeks comment on be available electronically in ASCII, distributor (‘‘MVPD’’), from 50 hours proposals to expand the amount of and Microsoft Word, and/or Adobe Acrobat. per calendar quarter to 87.5; access to video described programming, This document is also available for • An increase in the number of for the benefit of consumers who are public inspection and copying during included networks carried by covered blind or visually impaired. regular business hours in the FCC distributors, from four broadcast and DATES: Comments are due on or before Reference Information Center, Federal five nonbroadcast networks to five June 27, 2016; reply comments are due Communications Commission, 445 12th broadcast and ten nonbroadcast on or before July 26, 2016. Street SW., CY–A257, Washington, DC networks; ADDRESSES: You may submit comments, 20554. Alternative formats are available • Adoption of a no-backsliding rule, identified by MB Docket No. 11–43, by for persons with disabilities (Braille, which would ensure that once a any of the following methods: large print, electronic files, audio network is designated an ‘‘included • Federal Communications format), by sending an email to fcc504@ network’’ required to provide Commission (FCC) Electronic Comment fcc.gov or calling the Commission’s description, it would remain an Filing System (ECFS) Web site: http:// Consumer and Governmental Affairs ‘‘included network’’ even if it falls out fjallfoss.fcc.gov/ecfs2/. Follow the Bureau at (202) 418–0530 (voice), (202) of the top five or top ten ranking; instructions for submitting comments. 418–0432 (TTY). • Removal of the threshold • requirement that nonbroadcast networks Mail: U.S. Postal Service first-class, I. Introduction Express, and Priority Mail must be reach 50 percent of pay-TV (or MVPD) addressed to the FCC Secretary, Office 1. Since the video description rules households in order to be subject to of the Secretary, Federal were reinstated, they have provided inclusion; Communications Commission, 445 12th substantial benefits to persons who are • A requirement that covered Street SW., Washington, DC 20554. blind or visually impaired by making distributors provide dedicated customer Commercial overnight mail (other than television programming more service contacts who can answer U.S. Postal Service Express Mail and accessible. Through video description, questions about video description; and Priority Mail) must be sent to 9300 East individuals who are blind or visually • A requirement that petitions for Hampton Drive, Capitol Heights, MD impaired can independently enjoy and exemptions from the video description follow popular television programs and 20743. requirements, together with comments be more fully included in the shared • Hand or Messenger Delivery: All on or objections to such petitions, be cultural experience that television hand-delivered or messenger-delivered filed with the Commission offers. The Federal Communications paper filings for the FCC Secretary must electronically. Commission (‘‘FCC’’ or ‘‘the be delivered to FCC Headquarters at 445 Commission’’) is now proposing We seek comment on our tentative 12th Street SW., Room TW–A325, revisions to our rules that would expand conclusion regarding the costs and Washington, DC 20554. the availability of, and support benefits of these proposed rules, on the • People with Disabilities: Contact the consumer access to, video described proposed rules themselves, on FCC to request reasonable programming. In 2011, the Commission appropriate timelines for the proposed accommodations (accessible format took the initial step in expanding access rules, and on other possible changes to documents, sign language interpreters, to video description, by reinstating the the rules to ensure that blind and CART, etc.) by email: [email protected] 2000 rules as directed by Section 202 of visually impaired consumers have or phone: 202–418–0530; or TTY: 202– the Twenty-First Century access to television programming. 418–0432. Communications and Video II. Background For detailed instructions for Accessibility Act of 2010 (‘‘CVAA’’).1 submitting comments and additional The CVAA gives the Commission 3. The CVAA was enacted on October information on the rulemaking process, authority, subject to certain limitations, 8, 2010 for the purpose of ensuring that see the ‘‘PROCEDURAL MATTERS’’ to issue additional regulations, if the individuals with disabilities are able to heading of the SUPPLEMENTARY benefits of doing so outweigh the costs.2 fully utilize modern communications INFORMATION section of this document. As discussed in greater detail below, we services and equipment and to better FOR FURTHER INFORMATION CONTACT: Lyle access video programming.3 As part of Elder, [email protected], of the Media 1 Video Description: Implementation of the Bureau, Policy Division, (202) 418– Twenty-First Century Communications and Video 3 Twenty-First Century Communications and Accessibility Act of 2010, Report and Order, 26 FCC Video Accessibility Act of 2010, Public Law 111– 2120. For additional information Rcd 11847, 11849, para. 3 (2011) (‘‘2011 Order’’). 260, 124 Stat. 2751 (2010). See H.R. Rep. No. 111– concerning the Paperwork Reduction 2 Public Law 111–260, 124 Stat. 2751, sec. 202 563, 111th Cong., 2d Sess. at 19 (2010); S. Rep. No. Act information collection requirements (2010). See 47 U.S.C. 613(f)(4). 111–386, 111th Cong., 2d Sess. at 1 (2010).

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this legislation, Congress mandated that systems.7 The nonbroadcast networks 7. Pursuant to the direction of the the Commission reinstate its previously currently subject to these video CVAA, not more than two years after the adopted video description rules for description requirements are USA, TNT, completion of the phase-in of the television programming, required TBS, History, and Disney Channel.8 Any reinstated video description rules, the periodic reports on issues related to programming initially aired with video Commission submitted a report to video description, and granted the description must include video Congress with findings relating to the Commission continuing authority to description if it is re-aired on the same costs and benefits of video description adopt additional regulations so long as station or MVPD channel, unless the ‘‘in television programming’’ and ‘‘in the benefits of those new regulations station or MVPD is using the technology video programming distributed on the outweigh their costs. Video description for another program-related purpose. Internet.’’ 10 With regard to the video makes video programming accessible to 6. The rules also impose video description rules that are currently in individuals who are blind or visually description ‘‘pass through’’ obligations place, the report concluded that ‘‘[t]he impaired through ‘‘[t]he insertion of on all network-affiliated broadcast availability of video description on audio narrated descriptions of a stations regardless of market size, and television programming has provided television program’s key visual elements on all MVPDs regardless of the number substantial benefits for individuals who into natural pauses between the of subscribers. Specifically, any are blind or visually impaired.’’ program’s dialogue,’’ and is typically broadcast station affiliated or otherwise Notably, the report found that video provided through the use of a secondary associated with a television network description greatly enhances the audio stream, which allows the must pass through video description experience of viewing video consumer to choose whether to hear the when it is provided by the network, if programming because viewers who are narration by switching from the main the station has the technical capability blind or visually impaired no longer program audio. necessary to do so 9 and if that miss critical visual elements of television programming and, therefore, 4. In August 2011, the Commission technology is not being used for another purpose related to the programming. can fully understand and enjoy the reinstated the video description program without having to rely on their regulations that previously had been Similarly, MVPD systems of any size must pass through video description sighted family members and friends to adopted in 2000, requiring certain provided by a broadcast station or narrate these visual elements. television broadcast stations and nonbroadcast network, if the channel on Commenters expressed that this ability MVPDs to provide video description for which the MVPD distributes the station to watch video programming a portion of the video programming that or programming has the technical independently is an incredibly they offer to consumers on television.4 capability necessary to do so and if that important benefit of video description. These covered broadcasters and MVPDs technology is not being used for another In addition, the report found that are required to provide video described purpose related to the programming. ‘‘industry appears to have largely programming only on certain networks, Broadcasters and MVPDs were required complied with their responsibilities as defined by our rules. The to be in compliance with the video under the Commission’s 2011 rules,’’ Commission’s rules play a key role in description requirements beginning on and that the rules have been affording better access to television July 1, 2012. The rules permit covered implemented without exceptional or programs for individuals who are blind entities to seek a full or partial unexpected costs. It also found, or visually impaired, ‘‘enabling millions exemption based on economic burden; however, that ‘‘consumers report the more Americans to enjoy the benefits of we have received no such exemption need for increased availability of and television service and participate more requests to date. easier access to video-described fully in the cultural and civic life of the programming.’’ With respect to video nation.’’ 5 7 For purposes of the rules, the top five national programming distributed on the 5. The Commission’s video nonbroadcast networks are defined by an average of Internet, the report found that there description rules require commercial the national audience share during prime time of would be substantial benefits to wider television broadcast stations that are nonbroadcast networks that reach 50 percent or availability, but that there were more of MVPD households and have at least 50 affiliated with ABC, CBS, Fox, or NBC hours per quarter of prime time programming that potential technical challenges and and are located in the top 60 television is not live or near-live or otherwise exempt under insufficient information to analyze markets to provide 50 hours per the video description rules. 47 CFR 79.3(b)(4). costs. In February of 2016, the Video calendar quarter of video described 8 Video Description: Implementation of the Description Working Group of the Video 6 Twenty-First Century Communications and Video prime time or children’s programming. Accessibility Act of 2010, Order and Public Notice, Programming Subcommittee of the In addition, MVPD systems that serve 30 FCC Rcd 2071, 2071, para. 1 (2015) (‘‘Update FCC’s Disability Advisory Committee 50,000 or more subscribers must Order’’). The list of the top five networks is updated released a list of recommended issues provide 50 hours of video description every three years in response to any changes in for our consideration; those issues are ratings. 47 CFR 79.3(b)(4). The Update Order was 11 per calendar quarter during prime time the first of these periodic updates. Absent any addressed throughout the item. or children’s programming on each of revision to our rules, the next update will be in III. Authority the top five national nonbroadcast effect on July 1, 2018 based on the ratings for the networks that they carry on those time period from October 2016 to September 2017, 8. Additional Regulations and Cost/ and will be announced earlier in 2018. Benefit Analysis. As discussed in more 9 A station or MVPD system is technically capable 4 detail below, we tentatively conclude 47 CFR 79.3. See generally 2011 Order. See also of passing through video description if it has Video Description: Implementation of the Twenty- virtually all necessary equipment and infrastructure First Century Communications and Video to do so, except for items that would be of minimal 10 Video Description: Implementation of the Accessibility Act of 2010, Notice of Proposed cost. 2011 Order, 26 FCC Rcd at 11861, para. 27. Twenty-First Century Communications and Video Rulemaking, 26 FCC Rcd 2975 (2011) See also 2000 Order, 15 FCC Rcd at 15243, para. Accessibility Act of 2010, Report to Congress, 29 (‘‘Reinstatement NPRM’’). 30. We expect that all stations and MVPDs now FCC Rcd 8011 (2014) (‘‘2014 Report’’). See 47 U.S.C. 5 2011 Order, 26 FCC Rcd at 11848, para. 1. have this capability, because of the requirement to 613(f)(3). 6 Although the reinstated rules originally applied provide audible emergency information to persons 11 Recommendation of the FCC Disability to the top 25 television markets, as of July 1, 2015, who are blind or visually impaired, which is also Advisory Committee, Video Description Working the rules were extended to the top four broadcasters accomplished by means of a secondary audio Group of the Video Programming Subcommittee, in the top 60 television markets. 47 CFR 79.3(b)(2). stream. MB Docket 11–43 (Feb. 23, 2016) (‘‘DAC Letter’’).

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that the statutory requirement for the greater independence to persons who programming. According to the National Commission to issue additional video are blind or visually impaired. Association of Broadcasters (‘‘NAB’’), description regulations is satisfied Commenters made clear the immense the one-time cost to have an hour of because ‘‘the need for and benefits of’’ value of not having to rely on spouses, programming video described can range providing video described programming family members, or friends to keep them from $2,500 to $4,100. The 2014 Report as proposed here would be ‘‘greater than ‘‘up to speed’’ on television also observed that there had been no the technical and economic costs’’ if the programming. They talked about the petitions for exemption based on rules are adopted. The statute grants the value of being able to enjoy a program economic burden, and that has Commission ‘‘continuing authority’’ to without waiting for someone else to continued to be the case even after the regulate the provision of video want to watch the same thing, and requirements were extended to described programming. Our continuing ‘‘interrupt their own viewing pleasure to broadcasters in smaller television authority, however, is contingent on a try to tell [them] what was going on.’’ markets. Since the initial rules were finding that the benefits of additional As Mr. Rodgers’ comment makes clear, adopted, some distributors have video described programming outweigh the benefits of this independence accrue provided video description in live and the costs. Specifically, we may issue not just to viewers who are blind or other marquee events.13 In the 2014 ‘‘additional regulations’’ if we visually impaired, but to the members of Report, industry commenters noted that determine that ‘‘the need for and their households as well. We seek some included networks provide more benefits of’’ any video described comment on whether there are any other hours than are required, and anticipate programming required by the new rules studies or data points about the use and that the amount of described ‘‘are greater than the technical and benefits of video description that should programming by some networks would economic costs.’’ Furthermore, Congress inform our deliberations. grow even in the absence of additional directed us not to make such a 10. While the benefits of video regulation. determination until at least two years description are extensive, video 12. When the Commission reinstated after release of the 2014 Report; as a description itself remains in relatively the video description rules in 2011, it result, the earliest the Commission can limited supply, and can be difficult to anticipated that the reinstated rules issue additional regulations is June 30, access even where it exists. The 2014 would ‘‘enabl[e] millions more 2016. We therefore will take full Report noted that consumers Americans to enjoy the benefits of consideration of the Report’s findings, ‘‘[o]verwhelmingly . . . desire an television service and participate more as well as the comments in this increased amount of video description fully in the cultural and civic life of the proceeding, when determining the in television programming’’; have nation,’’ and considered it ‘‘unlikely relative costs and benefits of adopting ‘‘concerns regarding the availability of that the modest requirement of 50 hours additional requirements. information about which television per quarter will be economically burdensome.’’ Our experience to date 9. The 2014 Report found that programs are video-described’’; and has confirmed the soundness of those ‘‘[v]ideo description provides significant ‘‘express frustration with the quality of predictions. As discussed below, we are benefits to individuals who are blind or customer support service for video proposing to increase the amount of visually impaired’’ by allowing ‘‘them description.’’ described programming and make it greater independence and the ability to 11. The 2014 Report also found that more accessible. Given the extensive follow and understand television there were ‘‘no significant issues with benefits to consumers of the existing programs.’’ One commenter to the regard to the technical or creative requirements, we believe that they will proceeding expressed that she enjoys aspects’’ of providing video description, benefit further from the proposed new video description immensely when it is and that requirements. We also have no evidence available because ‘‘[m]ost television [t]he costs of video description are consistent that the total cost of the additional shows are pointless to me unless I have with the expectations of industry at the time description requirements or our other description.’’ Commenters who of rule adoption, and covered entities do not proposals will impose substantial provided input for the Report described indicate that the costs of video description how video description allows them to have impeded their ability to comply with the video description rules. 13 For example, people who are blind or visually directly follow the visual elements of impaired were able to join ‘‘millions of Americans television programming, including At the time of the 2014 Report, these enjoying [the December 3, 2015] live broadcast of ‘‘expressions, scene changes, visual costs included the ‘‘start-up’’ costs of The Wiz on NBC, thanks to video description of the developing the technical capability to production.’’ Alix Hackett, Perkins Students Enjoy jokes, and even things like visual clues Accessible Broadcast of ‘The Wiz Live!’, Dec. 4, in a murder mystery.’’ For example, one provide video description, but, as 2015, http://www.perkins.org/stories/news/perkins- commenter noted that without video explained in the Report, every students-enjoy-accessible-broadcast-of-the-wiz-live. description ‘‘I’d just hear exciting music distributor should now have that Carl Augusto, CEO of the American Foundation for technical capacity.12 The costs also the Blind, called the live description of The Wiz a and have to guess what was happening, ‘‘godsend to people with vision loss.’’ Comcast, but now I can hear how the good guys include the actual description of video NBC Add Video Descriptions to ‘The Wiz Live!’, caught the bad guys, or about the Multichannel News, Dec. 2, 2015, http:// significant looks exchanged by two 12 As of May 26, 2015, covered broadcasters and www.multichannel.com/news/content/comcast-nbc- MVPDs are required to have the necessary add-video-descriptions-wiz-live/395671 (‘‘This characters, or how the good guy escaped equipment and infrastructure to deliver a secondary nationally described television broadcast will not from some impossible situation. It’s audio stream in order to provide timely, audible only be a godsend to people with vision loss, but great!’’ Commenters explained that this emergency information to consumers who are blind also to those who describe action to people with information is essential for providing or visually impaired, which is required by our rules vision loss, and the general public, who will learn without exception for technical capability. Since about the importance of audio description.’’). CBS access to the storytelling in what is a video description is also provided via the secondary broadcast a two-hour special called ‘‘Stevie fundamentally visual medium, audio stream, compliance with the emergency Wonder: Songs in the Key of Life—An All-Star including for viewers who are not blind information requirement will give covered Grammy Salute’’ with video description. See CBS’ but who still can have difficulty with broadcasters and MVPDs the technical capability to Stevie Wonder Special to Air with Video comply with the video description requirements. 47 Description for Visually Impaired, Feb. 11, 2015, small visual details. Of arguably even CFR 79.2(b)(2)(ii) (implementing 47 U.S.C. 613(g)). http://www.broadwayworld.com/bwwtv/article/ more significance is the way this direct See also 2014 Report, 29 FCC Rcd at 8028–29, para. CBS-Stevie-Wonder-Special-to-Air-with-Video- access to video programming provides 37. Description-for-Visually-Impaired-20150211.

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economic burdens. Given the alternative reading would import an ‘‘transmitted for display on television.’’ information currently in the record in aggregate calculation that is simply The 2014 Report did consider the this proceeding, we tentatively conclude foreign to the statute and regulations. issues, costs, and benefits of ‘‘[v]ideo that ‘‘the need for and benefits of’’ the Second, the Commission cannot control description in video programming increased availability and accessibility the aggregate number of hours of distributed on the Internet,’’ per the of video described programming would described programming carried by a directive of the CVAA. The report be ‘‘greater than the technical and given distributor, because that depends discussed a range of comments economic costs’’ if the rules we propose on the networks they choose to carry. supportive and skeptical of our are adopted. We seek comment on this For example, one MVPD might choose authority to impose video description tentative conclusion and the analysis set to carry a large number of covered requirements on programming forth above. To the extent possible, networks, while another might carry few distributed on the Internet. We do not commenters should provide specific of them, making an aggregate limitation propose taking any action at this time data and information, such as actual or apply differently to different MVPDs. with regard to video description on estimated dollar figures for each specific For this reason, we believe an approach Internet programming. that focuses on the hours required for cost or benefit addressed, including a IV. Increased Availability of Video individual included networks, rather description of how the data or Described Programming information was calculated or obtained, than on a theoretical aggregate number and any supporting documentation or of hours that a distributor may or may 17. We propose to increase the other evidentiary support. not carry, better effectuates Congress’s quarterly requirement for video 13. Limitation. If the Commission goals. We read the phrase ‘‘in total’’ in described programming to 87.5 hours decides to issue additional regulations, the statute to mean that if the and to require six additional networks the CVAA places a restriction on any Commission increases the required to provide such programing. The increase in the number of hours hours per-network of video-described existing requirements have proven to be required to be video described. programming in increments, the total highly beneficial to persons who are Paragraph (4)(B) of the CVAA, entitled increase cannot exceed 75 percent. blind or visually impaired, and we ‘‘Limitation,’’ reads: Finally, we think that if Congress believe that these proposals will yield intended to restrict the Commission similar benefits. At the same time, we If the Commission makes the do not anticipate that the marginal cost determination under subparagraph (A) and from increasing the number of included issues additional regulations, the entities, it would have done so of additional described programming Commission may not increase, in total, the explicitly, just as it did by specifying would be higher than it is under the hour requirement for additional described the maximum number of covered DMAs current rules or that the total cost of the programming by more than 75 percent of the that the rule could be revised to reach requirements would be economically requirement in the regulations reinstated over time. We seek comment on our burdensome. As discussed above, in the under paragraph (1). analysis of the statute’s hourly 2014 Report we noted that the one-time The requirement in the reinstated limitation. cost to have an hour of programming regulations is the same for all included 15. Additional Designated Market video described can range from $2,500 networks—50 hours of video Areas. In addition, the CVAA lays out to $4,100. This would constitute description, per calendar quarter.14 75 a clear timeline for phasing in the video roughly 0.08–0.20 percent of the budget percent of those 50 hours is 37.5 hours. description regulations in designated of an episode of an hour-long television We therefore read this provision to grant market areas (‘‘DMAs’’) beyond the 25 drama, which regularly costs between the Commission continuing authority to included in the initial reinstated rules. $2.0 and $3.0 million.15 We seek increase the per-network requirement by A DMA is a Nielsen-defined television comment on whether there will be any 37.5 hours (i.e., up to 87.5 hours per market consisting of a unique group of other costs associated with the proposed quarter), but no more than this amount. counties. The United States is divided increase. Accordingly, as noted above, 14. We find unpersuasive an into 210 DMA markets. Nielsen we tentatively conclude that the benefits alternative reading that suggests this identifies television markets by placing of our proposal will outweigh the costs, provision caps the number of hours of each U.S. county (except for certain and we seek input on this tentative video description a distributor must counties in Alaska) in a market based on conclusion. provide across all covered networks it measured viewing patterns and by A. Hours per Included Network carries. First, the CVAA’s ‘‘Limitation’’ MVPD distribution. The expansion to provision says nothing about any the top 60 DMAs occurred in 2015, 18. As discussed above, the CVAA increase in the hour requirement being pursuant to the existing rules. We may gives us authority to increase the constrained by the number of included not expand beyond these 60 television number of hours of described networks. The CVAA and reinstated markets, however, until 2020 at the programming required to be aired on rules imposed the ‘‘hour requirement’’ earliest, and then only after completion each included broadcast and on MVPDs on a per-channel basis, and of an additional study and report to nonbroadcast network carried by an on broadcasters on a per-programming Congress. The explicit timeline entity subject to the rules, from 50 per stream basis. Thus, we believe that the established by the CVAA does not quarter to no more than 87.5. Given the continuing authority limitation is best contemplate any alternative approach to extensive benefits and reasonable costs interpreted as applying on a per-channel expanding the number of covered of video described programming, we and per-programming stream basis; the DMAs. As a result, it limits the propose to revise our rules to require the Commission’s authority to issue video full 87.5 hours per quarter, per included 14 The rules as reinstated require distributors— description rules, at this time, to the top network. Consumers have supported an broadcast stations and covered MVPDs—to provide 60 television markets currently covered. increase in available video described video description. As a practical matter, however, We seek comment on this programming. Although we propose to the included networks themselves, rather than the understanding of the scope of our broadcast stations and MVPDs, generally bear the increase the total number of hours to the efforts of preparing and providing video authority. description, which the distributors pass through. 16. Television Programming. Finally, 15 See Bill Carter, Cable TV, the Home of High 2011 Order, 26 FCC Rcd at 11851–52, para. 8. we limit our proposals to programming Drama, N.Y. Times, Apr. 5, 2010, at B1.

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maximum extent permissible under the time? We seek comment on these the Commission to reinstate specifically CVAA, the total amount of hours questions. identified ABC, CBS, Fox, and NBC as subject to the description requirement. required per covered network will B. Covered Networks remain relatively small (i.e., 87.5 hours We propose to revise our rules to per quarter amounts to approximately 6 20. We propose to extend the include those four networks, as well as hours and 45 minutes per week in a 13 requirement to provide video any others in the top five nationally, week calendar quarter). As discussed description to additional networks. It determined triennially.16 Barring any above in paragraph 11, we have no currently applies when a covered significant changes to the marketplace, evidence of compliance difficulties for broadcast station carries one of four we anticipate this rule change would named commercial broadcast networks covered distributors or the currently- result in one additional broadcast (ABC, CBS, Fox, and NBC) or when a included networks, and we do not network being aired with 87.5 hours per covered MVPD carries one of five believe any would arise if a limited quarter (or approximately 6 hours and popular nonbroadcast networks. We amount of additional programming were 45 minutes per week in a 13 week propose to increase these to five calendar quarter) of video described required. Comments filed in the 2014 broadcast, and ten nonbroadcast, Report proceeding indicate that at least programming. networks. The benefits of video 23. In addition, we propose to revise some networks are already offering as described programming are abundant, our rules to require any MVPD system much described programming as would and experience to date has borne out that serves 50,000 or more subscribers to be required under the proposed revision predictions regarding the reasonable provide 87.5 hours of video description to the rules. As discussed above, we costs of adding description to per calendar quarter during prime time anticipate that ‘‘the need for and programming. or children’s programming on each benefits of’’ the increased availability of 21. Given the obvious parallels to channel on which they carry one of the video described programming would be closed captioning, which is required on top ten national nonbroadcast ‘‘greater than the technical and virtually all television programming, it networks.17 In adopting the current economic costs’’ of providing this is not surprising that commenters have video description rules, the Commission additional video described called for expanding the requirement for recognized that the popularity of programming. We seek comment on this video description, with some going so programming networks shifts over time, proposal. far as to suggest that we echo the closed and therefore adopted a requirement 19. Commenters in this docket captioning requirement to extend the that we review network ratings every previously have expressed concern rules to virtually all programming. In three years to determine the top five. We about having sufficient eligible prime the CVAA, however, Congress directed propose to continue the existing review time and children’s programming to us to expand the video description rules process, but to expand the number of meet the requirement. In the 2011 in a measured fashion. Any proposed included networks from five to ten. Order, the Commission ‘‘note[d] and expansion must satisfy the statutory test Because the number of nonbroadcast that asks whether ‘‘the need for and acknowledge[d] NCTA’s point that due networks is much larger than the benefits of’’ the additional video 18 to special circumstances, a covered number of broadcast networks, we described programming would be network could theoretically have fewer ‘‘greater than the technical and 16 than 50 hours of scheduled prime-time The ‘‘top five’’ commercial broadcast networks economic costs’’ of providing it. In will be determined in the same fashion as the or children’s programming that can recognition of this directive for a nonbroadcast networks under the existing and count toward the requirement in a given measured approach, we propose a proposed rules. Thus, every three years they will be the top five as determined by an average of the quarter.’’ However, the Commission limited increase in the number of ‘‘anticipate[d] that these instances national audience share during prime time of included broadcast and nonbroadcast broadcast networks, as calculated by Nielsen for the [would] be exceedingly rare’’ because networks on which covered preceding ratings year, and that has at least 50 included networks ‘‘air many, many broadcasters and MVPDs must provide hours per quarter of prime time programming that is not live or near-live or otherwise exempt under hours of prime-time and children’s video description. We believe that this programming each quarter.’’ The the video description rules. As discussed above, the approach will have a significant benefit ‘‘top five’’ will include ABC, CBS, Fox, and NBC, Commission suggested that, if such a to viewers who are blind or visually regardless of their relative rankings. In the event situation arose, a programming impaired, given the popularity of the that one or more of those named networks suffers distributor or provider could seek a a sustained drop below fifth place in relative additional programming networks. We broadcast network rankings, the ‘‘top five’’ waiver for the relevant quarter under the seek comment below on whether we broadcast networks for the purposes of these rules Commission’s general waiver authority. should add more or fewer networks at could consist of more than five networks. No such waivers have been requested this time, and what the grounds would 17 As under the current rules, these ‘‘top ten’’ under the existing rules. However, given be for choosing any specific number of would be determined by an average of the national the proposed increase in described audience share during prime time of nonbroadcast networks. networks, as calculated by Nielsen for the preceding hours, we seek comment on whether we 22. First, we propose to revise our ratings year, and that has at least 50 hours per should make any other changes to the rules to require any commercial quarter of prime time programming that is not live rules to provide more flexibility. For television broadcast station that (i) is or near-live or otherwise exempt under the video instance, should we allow some amount affiliated with ABC, CBS, Fox, and NBC description rules. 18 MVPD subscribers to the most popular tiers of of non-prime time, non-children’s or with any other of the top five service have access to more than six times as many described programming to count toward commercial television broadcast nonbroadcast networks as broadcast networks. the increased requirement? If we do, networks, and (ii) is located in the top Implementation of Section 3 of the Cable Television should we continue to require that at 60 television markets, to provide 87.5 Consumer Protection and Competition Act of 1992; Statistical Report on Average Rates for Basic least 50 hours per quarter be provided hours per calendar quarter of video Service, Cable Programming Service, and in either prime time or children’s described prime time or children’s Equipment, MM Docket No. 92–266, Report on programming? Should we require that programming on each programming Cable Industry Prices, 29 FCC Rcd 14895, 14905– any described programming that is stream on which they carry these 06, Tbls. 4, 5 (MB 2014) (showing an average of 250.8 total available channels on the most counted toward the requirement run networks. The original video subscribed tiers of service, of which an average of between 6 a.m. and Midnight local description rules that Congress directed 31.6 are local broadcast channels; these include

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believe it is appropriate to include a declined to adopt a ‘‘no backsliding’’ relative rankings or overall viewership. larger increase in covered nonbroadcast rule, noting that it did not have We seek comment on this proposal. networks. If adopted, once the new rules authority at that time to go beyond the 28. 50 Percent Threshold Elimination. are in effect, a covered MVPD would be scope of the reinstated rules except to The rules, as reinstated, exempt required to provide 87.5 hours per the extent provided by the CVAA. The nonbroadcast networks from being quarter of video described programming Commission also noted, however, that it included networks if they are not on each of the top ten nonbroadcast would have authority to adopt such a available in 50 percent or more of networks that it carries. Below, we rule ‘‘after the passage of time and a MVPD homes. Thus, for example, even discuss the timing for implementation review of [the rules’] impact.’’ if a network were one of the most of these proposed revisions. 26. Given the passage of time and the popular in prime time, MVPDs would 24. With this proposal, we seek to continuing authority granted to the not be required to provide video ensure that consumers are able to realize Commission in the CVAA to adopt description of any of that network’s the benefits of video description, additional video description programming if it reaches only 40 keeping in mind our Congressional regulations, we believe that we now percent of MVPD households. This directive to proceed judiciously with have authority to adopt a ‘‘no- exemption was initially adopted in 2001 any expansion of the requirements. backsliding’’ rule. In addition, we at the request of HBO, and effectively Should we include more, or fewer, believe that there are substantial policy exempts premium networks from the additional networks at this time? benefits to ensuring that video described video description requirements. Commenters should provide programming continues to be offered on 29. We propose to eliminate the justifications for any specific change in networks currently subject to the rules. exemption for nonbroadcast networks the number of included networks. Once a broadcaster or MVPD begins to that do not reach 50 percent or more of Would an alternative approach to carry video described programming on a MVPD households. Given the increasing determining included networks, such as given network, it creates an expectation number of networks and fragmentation a rule that included networks based on in consumers that they will be able to of the viewing public,21 it is no longer a minimum average viewership level, or rely on that channel for described clear that carriage into a given number gross network revenues, be preferable to programming in the future. A ‘‘no- of homes, even 50 percent, is one based on relative prime time backsliding’’ rule would ensure that sufficiently more important than prime broadcast rankings? We seek comment such consumer expectations are time ratings for the purpose of on the proposed approach and any fulfilled, and would also result in an establishing a threshold for determining alternatives. increased amount of video described which nonbroadcast networks should be programming for individuals who are covered by the video description C. Other Changes blind or visually impaired, as the requirements. Some premium networks 25. No Backsliding. We propose to popularity of networks shifts over time offer very popular programming, adopt a ‘‘no-backsliding’’ requirement. and new networks become subject to the including some of the ‘‘must-watch’’ Such a rule would state that once a rule. Further, we believe that the burden shows that are very highly rated and network is designated an ‘‘included of continued compliance by formerly have made an impact on popular network’’ required to provide covered networks would be limited to culture. The proposed rule change description, it would remain an the actual costs of describing specific would ensure that if any premium ‘‘included network’’ even if it falls out programs, which as discussed above are networks are among the ten most of the top five or top ten ranking. Under low relative to the overall costs of popular they will be covered. We seek the current rules, the covered television production. Since any comment on this proposal. nonbroadcast networks are those in the included network would be broadcast or D. Timing and Coverage top five, recalculated triennially, and carried with video description for at when a network drops from the top five least three years, the processes for 30. We seek comment on the during the applicable ratings period, as including video description in that appropriate effective date of the 87.5 Nickelodeon did between 2012 and networks’ programming will have been hours/quarter requirement and the other 2015,19 MVPDs are no longer required well established by the next time the proposed rules changes. When we to provide video description on that Commission reviews rankings. reinstated the rules in 2011, the time network once the triennial period has 27. For these reasons, along with the from their release to the full compliance ended.20 In 2011, the Commission extensive benefits and reasonable costs date was approximately ten months. If of video describing programming we adopt these proposals, should we standard definition and high definition streams as discussed above, we propose to adopt a allow a similar amount of time for well as secondary programming streams). But see ‘‘no-backsliding’’ requirement. We note distributors to come into compliance? infra note 21 (noting the ‘‘average’’ subscriber as determined by Nielsen actually receives around 180 that networks are not directly covered Under the current rules, July 1, 2018 is channels; assuming the same number of broadcast by the rules. As a practical matter, the date on which the new list of channels in those average lineups, this would however, the included networks included nonbroadcast networks will go reflect roughly five times as many nonbroadcast as themselves, rather than the broadcast into effect, after having been determined broadcast networks). stations and MVPDs, generally prepare by the ratings for the time period 19 Although Nickelodeon is no longer in the top five nonbroadcast networks currently subject to the and provide video description, which October 2016 to September 2017. If the video description rules, it appears that Nickelodeon the distributors pass through. Thus, has continued to provide video description under the current rules, a network that 21 The number of cable channels received by the voluntarily on some of its children’s programming. finds inclusion economically average subscriber has tripled since the original See American Council of the Blind, The Audio video description rules were adopted, from around Description Project, Video Described Shows by burdensome may petition, as a video 60 to more than 180. Sam Ro, Americans Are Network (updated 3/6/16), available at http:// programming provider, for exemption Paying For a Lot of Channels They Don’t Watch, www.acb.org/adp/tv.html#shows. from the effect of the rules. We seek Business Insider, Oct. 25, 2015, http:// 20 However, MVPDs must always pass through comment on whether there should also www.businessinsider.com/number-of-cable- description on any channel if the network or channels-received-vs-viewed-2015-10. See also broadcaster provides description, if they are not be an express exemption from the supra note 18 (noting that as many as 251 channels using that capacity for another program-related proposed no-backsliding rule for are widely available, even if not all are received by purpose. 47 CFR 79.3(b)(5). networks that drop significantly in Nielsen’s ‘‘average’’ 180 channel subscriber).

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proposed rules go into effect earlier than difficulty in finding information in availability of video described July 1, 2018, what ratings period should programming guides, which for many programming. be used to determine the included remain the primary source of 33. Dedicated Customer Service networks? Should the effective date of information about their viewing Contacts. A number of consumers have these rules establish the beginning of a options.23 Industry commenters state expressed significant frustration with new three-year network-list update that at least some information is inadequate MVPD customer support for cycle, or should the existing cycle be provided to guide services by some video description services. The 2014 retained even if the implementation of included networks, but even they Report details instances where these rules requires a mid-cycle acknowledge that the information does consumers would call their provider for addition of some networks? In the not always actually appear in the help with video description and, after spending ‘‘many hours on the phone alternative, what are the benefits and guides.24 We seek comment on whether with ill-informed customer services costs of delaying the effective date of the this situation has improved. Do representatives’’ ultimately discover proposed revisions to the rules until networks provide information about July 1, 2018, and expanding the number that ‘‘not one person knew what [the video description to program guide consumer] was talking about.’’ They of broadcast and nonbroadcast networks services, and if not, why not? If they do that will be determined in reference to would be promised return or follow-up provide such information, do program the 2016–2017 ratings year? We propose calls that never came, or directed to guide services choose to include that that, as in 2015, in each cycle the Media email addresses that proved unhelpful. information in the guides, and if not, Bureau will issue a Public Notice and In some cases it appears that customer undertake a process to formally why not? Would a requirement that support has been so poor that it has establish the updated list of included distributors consistently provide notice essentially denied some consumers the networks. We seek comment on these when a program is going to be described opportunity to access described questions and this proposal. make guide services more likely to programming at all. Recognizing this, include that information in guides? In the 2014 Report encouraged covered V. Improving Consumer Access to the children’s programming context, our distributors to provide proper customer Video Description rules require commercial television service training and a dedicated point of 31. The 2014 Report found significant broadcast licensees to provide to contact so that consumers could get consumer dissatisfaction with the publishers of program guides video-description-specific customer availability of information about which information identifying programming service from knowledgeable programming is video described. This specifically designed to educate and representatives. We seek comment on was contrary to the Commission’s inform children. Has this requirement whether customer service has improved expectation that even without any been effective in informing consumers since adoption of the 2014 Report. In requirements, such information would about the availability of educational and light of previous shortcomings in be made available ‘‘in an accessible informational children’s programming, customer support, we also propose to manner, including on [distributor] Web and if not, why not? Instead of, or in require that covered entities provide sites and to companies that publish addition to the programming guide contact information for a person or office with primary responsibility for television listings information.’’ The information, should distributors create accessibility compliance issues to 2014 Report also found that consumers an easily accessible list of described consumers who have questions about are frustrated with MVPD customer video programming? What are the service when they seek information the availability of and access to video benefits and drawbacks of requiring a description services, or who request about accessing video description. In centralized listing of all described video both cases, we urged industry to take technical support. The point of contact programming? Would the creation of must be able to address consumers’ voluntary action to resolve these such a listing assist in ensuring the concerns. Therefore, we seek comment concerns about video description issues, accuracy and comprehensiveness of on the state of industry efforts, and and would be required to respond to information available to the public? propose requiring covered distributors consumer inquiries within one business Would it be useful toward promoting to provide dedicated customer service day. Alternatively, we seek comment on contacts to assist viewers in accessing best practices for identifying video whether we should adopt rules that their video described programming. We described programming? We seek parallel 47 CFR 79.1(i)(1–3). The rules at tentatively conclude that the benefits of comment on the costs and benefits of a Section 79.1(i)(1–3) are similar to our this proposal would exceed its costs, but requirement that distributors provide proposal in that they require seek comment on that tentative information identifying video described distributors of programming with closed conclusion. We also seek comment on a programming to program guides, and captioning to provide contact requirement that covered distributors whether we should adopt such a rule, or information to consumers and to the notify publishers of programming any other rule to improve consumer Commission, and to assist in resolving guides when a program will be video access to information about the consumers’ technical problems. They described. also, however, establish detailed 32. Programming Guide Information. available online is not always comprehensive or parameters for compliance with those Although fragmented lists of some video kept up to date. See 2014 Report, 29 FCC Rcd at requirements. What would be the costs 8023–24, para. 27. and benefits of either approach? We described programming are available 23 Concerns about not being able to easily locate 22 seek comment on how, specifically, online, some consumers report information on video described programs also were raised by participants at the Commission’s Video contact information should be provided 22 Some covered networks provide information on Description Roundtable Event held on June 22, to consumers under either approach. their Web sites that identifies programming with 2015. 34. Timing. We also seek comment on video description, see 2014 Report, 29 FCC Rcd at 24 2014 Report, 29 FCC Rcd at 8023, para. 26 the timing for implementing the rule 8023, para. 26, and where possible, the Commission (Although NAB claims that broadcast networks changes discussed in this Section. We has provided links to these network Web sites at provide video description information to program believe that implementation of these https://www.fcc.gov/encyclopedia/video- guides, they acknowledge that ‘‘this information description. However, consumers assert that appears not to be published regularly.’’) (citing NAB consumer access and customer service information about video described programming Report Comments at 3–4). rules could be accomplished quickly,

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but we seek input on a reasonable similarly explicit requirement in the described programming. We seek timeframe. video description context? What are the comment on our statutory authority to 35. Are there other changes to the technical and financial costs of such a adopt the changes discussed above, both rules that we should adopt to improve requirement for MVPDs and other the proposed rules and the others on consumer access without imposing distributors? which we seek comment. Are our excessive burdens on regulated parties? 38. Secondary Audio. We seek proposals above consistent with the We seek comment on any such changes. comment on the state of the marketplace CVAA? with regard to the use of multiple audio 41. Other Comments Requested. VI. Other Matters streams. The Commission previously Finally, we invite comment on any 36. Electronic Filing. We propose that has noted that ‘‘digital transmission other changes the Commission should petitions for exemption from the video enables broadcasters and MVPDs to consider making to the video description rules, and filings related to provide numerous audio channels for description rules. For any other changes those requests, be filed exclusively any given video stream,’’ but that in proposed, comments should include electronically. In the 2011 Electronic practice many MVPDs were only potential costs and benefits of such Filing Report and Order,25 the capable of providing two audio streams, changes. Commission amended certain of its and many consumers were only capable VII. Procedural Matters procedural rules to increase the of receiving two audio streams.28 The efficiency of Commission decision- Commission found video description A. Initial Regulatory Flexibility Act making and modernize Commission was thus likely to be provided on the 42. As required by the Regulatory procedures in the digital age, including same secondary audio stream as other Flexibility Act of 1980, as amended adoption of a requirement to use alternate audio uses, like foreign (‘‘RFA’’),29 the Commission has electronic filing whenever technically language audio tracks, but expected prepared this present Initial Regulatory feasible. In the closed captioning ‘‘that at some point in the near future, Flexibility Analysis (‘‘IRFA’’) context, for example, requests for due to voluntary upgrades and concerning the possible economic exemption are filed and available to the equipment obsolescence, broadcasters, impact on small entities by the policies public electronically. Should we amend MVPDs, and the installed base of and rules proposed in the Notice. our rules to require the electronic filing consumer equipment will be sufficiently Written public comments are requested of individual video description advanced to handle a video description on this IRFA. Comments must be exemption requests in machine readable audio track that does not conflict with identified as responses to the IRFA and format, and further revise our rules to any other program-related service.’’ Has must be filed by the deadlines for require that comments on and the marketplace moved toward a comments as specified in the Notice. oppositions to such petitions also be realization of this expectation? Should The Commission will send a copy of the filed electronically in machine readable we revise our rules at this time to reflect Notice, including this IRFA, to the Chief format? We seek comment on the any such changes, and if so, how? Counsel for Advocacy of the Small benefits of this approach, whether there 39. Terminology. During the Business Administration.30 In addition, would be associated costs, and the Commission’s Video Description the Notice and this IRFA (or summaries appropriate timing for implementing Roundtable, consumers observed that thereof) will be published in the Federal this rule change. many other federal agencies use the Register. 37. Described Video-on-Demand. We term ‘‘audio described’’ to reference seek comment on a potential video programming containing audio 1. Need for, and Objectives of, the requirement that Video-On-Demand description, rather than the term ‘‘video Proposed Rule Changes (‘‘VOD’’) programming include video described.’’ We note that the CVAA uses 1. In the Notice, the Commission description if it has been previously the term ‘‘video description,’’ but we seeks comment on a series of proposals carried by that MVPD with video recognize that it may be preferable to to increase the amount of video description. If a program is carried on a use ‘‘audio description’’ if this is the described programming available to linear programming stream with term most common to a majority of consumers, and to make it easier to description and also made available on federal agencies and more widely used access. The NPRM tentatively concludes the MVPD’s VOD service, it is not clear by consumers. We seek comment on that the statutory requirement for the whether MVPDs are making the video whether we should revise our rules and/ Commission to issue additional video description available to the VOD viewer. or change our usage to reflect this description regulations is satisfied We seek comment on whether this different terminology. because ‘‘the need for and benefits of’’ comports with our existing rules.26 In 40. Statutory Authority. As discussed providing video described programming 2014, we confirmed that closed above, we believe the CVAA grants the as proposed here would be ‘‘greater than captioning must be preserved in VOD Commission ‘‘continuing authority’’ to the technical and economic costs’’ if the programming.27 Should we have a regulate the provision of video rules are adopted. The proposed rules would require that each included 25 Amendment of Certain of the Commission’s (‘‘[W]e confirm that all ‘on demand’ programming network provide 75% more described Part 1 Rules of Practice and Procedure and Part 0 not subject to an exemption must comply with the programming, or 87.5 hours per quarter, Rules of Commission Organization, GC Docket No. relevant captioning requirements for new and pre- 10–44, Report and Order, 26 FCC Rcd 1594, 1599– rule programming.’’). and would include six additional 602, paras. 14–21 (2011). 28 2011 Order, 26 FCC Rcd at 11862–63, paras. networks within the rules, while 26 DVR recordings of described programming, for 28–31. See also Emergency Information/Video revising the way included networks are example, must preserve the secondary audio stream Description Order, 28 FCC Rcd at 4882–83, para. 14 determined. It proposes to require that contains video description and make it (‘‘At this time, we do not require covered entities covered parties to provide dedicated available when the recording is later replayed. to provide an audio stream that is dedicated solely 27 Closed Captioning of Video Programming; to aurally accessible emergency information. MVPD Telecommunications for the Deaf and Hard of commenters argue that mandating more than two 29 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601– Hearing, Inc., Petition for Rulemaking, CG Docket audio streams—one for main audio, one for video 612, has been amended by the Small Business No. 05–231, Report and Order, Declaratory Ruling, description, and one for emergency information— Regulatory Enforcement Fairness Act of 1996, and Further Notice of Proposed Rulemaking, 29 would be costly and, in some cases, would pose Public Law 104–121, Title II, 110 Stat. 857 (1996). FCC Rcd 2221, 2290–91, paras. 118–19 (2014) technical difficulties.’’) (footnote omitted). 30 See 5 U.S.C. 603(a).

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consumer service contacts to deal with overstates the number of small entities more employees. Therefore, under this video description issues, and to file any that might be affected by our action size standard, we estimate that the exemption petitions electronically. It because the revenue figure on which it majority of businesses can be also seeks comment on a range of is based does not include or aggregate considered small entities. related issues. revenues from affiliated companies. In 9. Cable Television Distribution addition, an element of the definition of Services. Since 2007, these services 2. Legal Basis ‘‘small business’’ is that the entity not have been defined within the broad 2. The authority for the action be dominant in its field of operation. We economic census category of Wired proposed in this rulemaking is are unable at this time to define or Telecommunications Carriers, which contained in the Twenty-First Century quantify the criteria that would category is defined above. The SBA has Communications and Video establish whether a specific television developed a small business size Accessibility Act of 2010, Pub. L. 111– station is dominant in its field of standard for this category, which is: All 260, 124 Stat. 2751, and Sections 1, 2(a), operation. Accordingly, the estimate of such businesses having 1,500 or fewer 4(i), 303, 307, 309, 310, and 713 of the small businesses to which rules may employees. Census data for 2007 shows Communications Act of 1934, as apply does not exclude any television that there were 3,188 firms that operated amended, 47 U.S.C. 151, 152, 154(i), station from the definition of a small for the entire year. Of this total, 3,144 303, 307, 309, 310, and 613. business on this basis and is therefore firms had fewer than 1,000 employees, 3. Description and Estimate of the possibly over-inclusive to that extent. and 44 firms had 1,000 or more Number of Small Entities to Which the 6. In addition, the Commission has employees. Therefore, under this size Proposed Rules Will Apply estimated the number of licensed standard, we estimate that the majority noncommercial educational (‘‘NCE’’) of businesses can be considered small 3. The RFA directs the Commission to television stations to be 395. These entities. provide a description of and, where stations are non-profit, and therefore 10. Cable Companies and Systems. feasible, an estimate of the number of considered to be small entities. The Commission has developed its own small entities that will be affected by the 7. There are also 2,344 LPTV stations, small business size standards for the proposed rules, if adopted. The RFA including Class A stations, and 3689 TV purpose of cable rate regulation. Under generally defines the term ‘‘small translator stations. Given the nature of the Commission’s rules, a ‘‘small cable entity’’ as having the same meaning as these services, we will presume that all company’’ is one serving 400,000 or the terms ‘‘small business,’’ small of these entities qualify as small entities fewer subscribers nationwide. Industry organization,’’ and ‘‘small government under the above SBA small business data shows that there are currently 660 jurisdiction.’’ In addition, the term size standard. cable operators. Of this total, all but ten ‘‘small business’’ has the same meaning 8. Wired Telecommunications cable operators nationwide are small as the term ‘‘small business concern’’ Carriers. The North American Industry under this size standard. In addition, under the Small Business Act. A small Classification System (‘‘NAICS’’) defines under the Commission’s rate regulation business concern is one which: (1) Is ‘‘Wired Telecommunications Carriers’’ rules, a ‘‘small system’’ is a cable system independently owned and operated; (2) as follows: ‘‘This industry comprises serving 15,000 or fewer subscribers. is not dominant in its field of operation; establishments primarily engaged in Current Commission records show 4,629 and (3) satisfies any additional criteria operating and/or providing access to cable systems nationwide. Of this total, established by the SBA. transmission facilities and infrastructure 4,057 cable systems have less than 4. Television Broadcasting. This that they own and/or lease for the 20,000 subscribers, and 572 systems economic census category ‘‘comprises transmission of voice, data, text, sound, have 20,000 or more subscribers, based establishments primarily engaged in and video using wired on the same records. Thus, under this broadcasting images together with telecommunications networks. standard, we estimate that most cable sound. These establishments operate Transmission facilities may be based on systems are small entities. television broadcasting studios and a single technology or a combination of 11. Cable System Operators (Telecom facilities for the programming and technologies. Establishments in this Act Standard). The Communications transmission of programs to the public.’’ industry use the wired Act of 1934, as amended, also contains The SBA has created the following telecommunications network facilities a size standard for small cable system small business size standard for that they operate to provide a variety of operators, which is ‘‘a cable operator Television Broadcasting firms: Those services, such as wired telephony that, directly or through an affiliate, having $14 million or less in annual services, including VoIP services; wired serves in the aggregate fewer than 1 receipts. The Commission has estimated (cable) audio and video programming percent of all subscribers in the United the number of licensed commercial distribution; and wired broadband States and is not affiliated with any television stations to be 1,390. In Internet services. By exception, entity or entities whose gross annual addition, according to Commission staff establishments providing satellite revenues in the aggregate exceed review of the BIA Advisory Services, television distribution services using $250,000,000.’’ There are approximately LLC’s Media Access Pro Television facilities and infrastructure that they 54 million cable video subscribers in the Database on March 28, 2012, about 950 operate are included in this industry.’’ United States today. Accordingly, an of an estimated 1,300 commercial The SBA has developed a small operator serving fewer than 540,000 television stations (or approximately 73 business size standard for wireline firms subscribers shall be deemed a small percent) had revenues of $14 million or for the broad economic census category operator if its annual revenues, when less. We therefore estimate that the of ‘‘Wired Telecommunications combined with the total annual majority of commercial television Carriers.’’ Under this category, a revenues of all its affiliates, do not broadcasters are small entities. wireline business is small if it has 1,500 exceed $250 million in the aggregate. 5. We note, however, that in assessing or fewer employees. Census data for Based on available data, we find that all whether a business concern qualifies as 2007 shows that there were 3,188 firms but ten incumbent cable operators are small under the above definition, that operated for the entire year. Of this small entities under this size standard. business (control) affiliations must be total, 3,144 firms had fewer than 1,000 We note that the Commission neither included. Our estimate, therefore, likely employees, and 44 firms had 1,000 or requests nor collects information on

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whether cable system operators are description questions. In particular, it the proposed increase in the amount of affiliated with entities whose gross would require covered entities to video description required and annual revenues exceed $250 million. provide contact information for a person expansion of the video description Although it seems certain that some of or office with primary responsibility for requirements to additional included these cable system operators are accessibility compliance issues to networks will impose no direct burden affiliated with entities whose gross consumers who have questions about on small broadcasters or small MVPDs. annual revenues exceed $250,000,000, the availability of or access to video Although the rules currently impose we are unable at this time to estimate description services, or who request ‘‘pass through’’ obligations on all with greater precision the number of technical support. The Notice also network-affiliated broadcast stations cable system operators that would proposes to require all covered regardless of market size and on all qualify as small cable operators under broadcasters and MVPDs to file MVPDs regardless of the number of the definition in the Communications petitions for exemption electronically. subscribers, most all stations and Act. 14. With regard to other compliance MVPDs, including small entities, now 12. Direct Broadcast Satellite (DBS) requirements, the Notice proposes to have this capability. As such, we Service. DBS service is a nationally revise the video description rules by anticipate that these proposals will have distributed subscription service that requiring an increase in the amount of little to no impact on small entities. delivers video and audio programming described programming on each 19. The proposed requirement to file via satellite to a small parabolic ‘‘dish’’ included network carried by a covered exemption petitions electronically will antenna at the subscriber’s location. broadcast station or MVPD, from 50 not impose an additional burden on DBS, by exception, is now included in hours per calendar quarter to 87.5, as small entities, and may reduce the the SBA’s broad economic census well as an increase in the number of burden. The proposed requirement that category, Wired Telecommunications included networks carried by covered covered broadcasters and MVPDs Carriers, which was developed for small distributors to five broadcast and ten provide dedicated customer service wireline businesses. Under this nonbroadcast networks. contacts to answer video description category, the SBA deems a wireline 15. Finally, the Notice seeks comment questions may not require significant business to be small if it has 1,500 or on requiring distributors to notify additional resources for small entities. fewer employees. Census data for 2007 program guides about the presence of Even if it requires additional resources, shows that there were 3,188 firms that video description, and to include video however, we believe it would provide operated for that entire year. Of this description with Video-on-Demand benefits to consumers that outweigh any total, 2,940 firms had fewer than 100 programming when that programming costs, and that those benefits would be employees, and 248 firms had 100 or has been previously provided with undermined if the requirement were not more employees. Therefore, under this descriptions. universal. The item seeks comment on size standard, the majority of such 16. While the economic impact of the timing for implementing the businesses can be considered small these proposed rules on small entities is requirements. Finally, we invite entities. However, the data we have not quantifiable at this time, they are comment on any other changes the available as a basis for estimating the not likely to be burdensome for small Commission should consider making to number of such small entities were entities or to affect small entities the video description rules. For any gathered under a superseded SBA small disproportionately. other changes proposed, comments business size standard formerly titled 5. Steps Taken To Minimize Significant should include potential costs and ‘‘Cable and Other Program Impact on Small Entities and Significant benefits of such changes. Distribution.’’ As of 2002, the SBA Alternatives Considered defined a small Cable and Other 6. Federal Rules That May Duplicate, Program Distribution provider as one 17. The RFA requires an agency to Overlap, or Conflict With the Proposed with $12.5 million or less in annual describe any significant alternatives that Rule receipts. Currently, only two entities it has considered in reaching its 20. None. provide DBS service, which requires a proposed approach, which may include great investment of capital for operation: the following four alternatives (among B. Paperwork Reduction Act DIRECTV and DISH Network. Each others): (1) The establishment of 21. This document contains proposed currently offers subscription services. differing compliance or reporting new information collection DIRECTV and DISH Network each requirements or timetables that take into requirements. The Commission, as part report annual revenues that are in account the resources available to small of its continuing effort to reduce excess of the threshold for a small entities; (2) the clarification, paperwork burdens, invites the general business. Because DBS service requires consolidation, or simplification of public and the Office of Management significant capital, we believe it is compliance or reporting requirements and Budget (OMB) to comment on the unlikely that a small entity as defined under the rule for small entities; (3) the information collection requirements under the superseded SBA size standard use of performance, rather than design, contained in this document, as required would have the financial wherewithal to standards; and (4) an exemption from by the Paperwork Reduction Act of become a DBS service provider. coverage of the rule, or any part thereof, 1995. In addition, pursuant to the Small for small entities. Business Paperwork Relief Act of 2002, 4. Description of Projected Reporting, 18. The Notice proposes rules we seek specific comment on how we Recordkeeping, and Other Compliance intended to expand consumer access to might ‘‘further reduce the information Requirements video described programming. The collection burden for small business 13. The Notice proposes the following existing requirement to provide video concerns with fewer than 25 new or revised reporting or description applies to commercial employees.’’ recordkeeping requirements that would television broadcast stations that are be applicable to small entities. First, it affiliated with ABC, CBS, Fox, or NBC C. Ex Parte Rules proposes that all covered broadcasters and are located in the top 60 television 22. This proceeding will be treated as and MVPDs provide dedicated customer markets, as well as MVPD systems that a ‘‘permit-but-disclose’’ proceeding service contacts to answer video serve 50,000 or more subscribers. Thus, subject to the ‘‘permit-but-disclose’’

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requirements under Section 1.1206(b) of addressed to 445 12th Street SW., PART 79—ACCESSIBILITY OF VIDEO the Commission’s rules. Ex parte Washington, DC 20554. PROGRAMMING presentations are permissible if 24. People with Disabilities: To ■ 1. The authority for part 79 continues disclosed in accordance with request materials in accessible formats to read as follows: Commission rules, except during the for people with disabilities (braille, Sunshine Agenda period when large print, electronic files, audio Authority: 47 U.S.C. 151, 152(a), 154(i), presentations, ex parte or otherwise, are format), send an email to [email protected] 303, 307, 309, 310, 330, 544a, 613, 617. generally prohibited. Persons making or call the Consumer & Governmental ■ oral ex parte presentations are reminded 2. Amend § 79.3 by: Affairs Bureau at 202–418–0530 (voice), ■ that a memorandum summarizing a a. Adding paragraphs (a)(9) and (10), presentation must contain a summary of 202–418–0432 (tty). (b)(6) and (7) and, ■ the substance of the presentation and 25. Availability of Documents. b. Revising paragraphs (b) not merely a listing of the subjects Comments and reply comments will be introductory text, (b)(1), (2) and (5), discussed. More than a one- or two- publically available online via ECFS. (c)(2), (3) and (4) introductory text. sentence description of the views and These documents will also be available The additions and revisions read as arguments presented is generally for public inspection during regular follows: required. Additional rules pertaining to business hours in the FCC Reference § 79.3 Video description of video oral and written presentations are set Information Center, which is located in programming. forth in Section 1.1206(b). Room CY–A257 at FCC Headquarters, (a) * * * D. Filing Requirements 445 12th Street SW., Washington, DC (9) Top commercial television 20554. The Reference Information broadcast networks. ABC, CBS, Fox, 23. Pursuant to Sections 1.415 and Center is open to the public Monday NBC, and any other commercial 1.419 of the Commission’s rules, through Thursday from 8:00 a.m. to 4:30 television broadcast network in the top interested parties may file comments p.m. and Friday from 8:00 a.m. to 11:30 five as determined by an average of the and reply comments on or before the a.m. national audience share during prime dates indicated on the first page of this time of broadcast networks and that has document. All comments are to VIII. Ordering Clauses at least 50 hours per quarter of prime reference MB Docket No. 11–43 and time programming that is not live or may be filed using: (1) the Commission’s 26. Accordingly, it is ordered that, near-live or otherwise exempt under Electronic Comment Filing System pursuant to the Twenty-First Century these rules. Initially, the top five (ECFS) or (2) by filing paper copies. Communications and Video D Electronic Filers: Comments may be Accessibility Act of 2010, Public Law networks are those determined by The filed electronically using the Internet by 111–260, 124 Stat. 2751, and the Nielsen Company, based on the ratings accessing the ECFS: http:// authority found in and Sections 1, 2(a), for the time period October 2016– fjallfoss.fcc.gov/ecfs2/. 4(i), 303, and 713 of the September 2017, and will update at D Paper Filers: Parties who choose to Communications Act of 1934, as three year intervals. The first update file by paper must file an original and amended, 47 U.S.C. 151, 152, 154(i), will be July 1, 2021, based on the ratings one copy of each filing. If more than one 303, and 613, comment is hereby sought for the time period October 2019– docket or rulemaking number appears in on the proposals described and rules set September 2020; the second will be July the caption of this proceeding, filers forth in this Notice of Proposed 1, 2024, based on the ratings for the time must submit two additional copies for Rulemaking. period October 2022–September 2023; and so on. Also, any commercial each additional docket or rulemaking 27. It is further ordered that the number. television broadcast network that the Commission’s Consumer and Commission identified as having met Filings can be sent by hand or Governmental Affairs Bureau, Reference messenger delivery, by commercial this definition as of 2018 or later, even Information Center, shall send a copy of if it is no longer in the top five based overnight courier, or by first-class or this Notice of Proposed Rulemaking in overnight U.S. Postal Service mail. All on subsequent ratings. MB Docket No. 11–43, including the (10) Top national nonbroadcast filings must be addressed to the Initial Regulatory Flexibility Analysis, Commission’s Secretary, Office of the television networks. Any nonbroadcast to the Chief Counsel for Advocacy of the television network in the top ten, as Secretary, Federal Communications Small Business Administration. Commission. determined by an average of the D All hand-delivered or messenger- List of Subjects in 47 CFR 79 national audience share during prime delivered paper filings for the time of nonbroadcast networks that have Commission’s Secretary must be Cable television operators, at least 50 hours per quarter of prime delivered to FCC Headquarters at 445 Communications equipment, time programming that is not live or 12th Street SW., Room TW–A325, Multichannel video programming near-live or otherwise exempt under Washington, DC 20554. The filing hours distributors (MVPDs), Satellite these rules. Initially, the top ten are 8:00 a.m. to 7:00 p.m. All hand television service providers. networks are those determined by The deliveries must be held together with Federal Communications Commission. Nielsen Company, based on the ratings for the time period October 2016– rubber bands or fasteners. Any Gloria J. Miles, envelopes and boxes must be disposed September 2017, and will update at of before entering the building. Federal Register Liaison Officer, Office of the three year intervals. The first update D Commercial overnight mail (other Secretary. will be July 1, 2021, based on the ratings than U.S. Postal Service Express Mail Proposed Rules for the time period October 2019– and Priority Mail) must be sent to 9300 September 2020; the second will be July East Hampton Drive, Capitol Heights, For the reasons discussed in the 1, 2024, based on the ratings for the time MD 20743. preamble, the Federal Communications period October 2022–September 2023; D U.S. Postal Service first-class, Commission proposes to amend 47 CFR and so on. Also, any nonbroadcast Express, and Priority mail must be part 79 as follows: television network that the Commission

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identified as having met this definition requirements no later than three months primary responsibility for accessibility as of 2018 or later, even if it is no longer after the affiliation agreement is compliance issues to consumers who in the top ten based on subsequent finalized; have questions about the availability of ratings. * * * * * or access to video description services, (b) The following video programming (5) Beginning July 1, 2018, or who request technical support. The distributors must provide programming multichannel video programming point of contact must be able to address with video description and customer distributor (MVPD) systems that serve consumers’ concerns about video support as follows: 50,000 or more subscribers must description issues, and must respond to (1) Beginning July 1, 2015, provide 87.5 hours of video description consumer inquiries within one business commercial television broadcast stations per calendar quarter during prime time day. that are affiliated with one of the top or children’s programming, on each (c) * * * four commercial television broadcast channel on which they carry one of the networks (ABC, CBS, Fox, and NBC), top national nonbroadcast television (2) In order to meet its quarterly and that are licensed to a community networks; and requirement, a broadcaster or MVPD located in the top 60 DMAs, as (6) Multichannel video programming may count each program it airs with determined by The Nielsen Company as distributor (MVPD) systems of any size: video description no more than a total of January 1, 2015, must provide 50 (i) Must pass through video of two times on each channel on which hours of video description per calendar description on each broadcast station it airs the program. A broadcaster or quarter, either during prime time or on they carry, when the broadcast station MVPD may count the second airing in children’s programming, on each provides video description, and the the same or any one subsequent quarter. programming stream on which they channel on which the MVPD distributes A broadcaster may only count programs carry one of the top four commercial the programming of the broadcast aired on its primary broadcasting stream television broadcast networks. If a station has the technical capability towards its quarterly requirement. A station in one of these markets becomes necessary to pass through the video broadcaster carrying one of the top affiliated with one of these networks description, unless it is using the commercial television broadcast after July 1, 2015, it must begin technology used to provide video networks on a secondary stream may compliance with these requirements no description for another purpose related count programs aired on that stream later than three months after the to the programming that would conflict toward its quarterly requirement for that affiliation agreement is finalized; with providing the video description; network only. (2) Beginning July 1, 2018, and (3) Once a commercial television commercial television broadcast stations (ii) Must pass through video broadcast station as defined under that are affiliated with one of the top description on each nonbroadcast paragraph (b)(1) or (b)(2) of this section commercial television broadcast network they carry, when the network has aired a particular program with networks and licensed to a community provides video description, and the video description, it is required to located in the top 60 DMAs, as channel on which the MVPD distributes include video description with all determined by The Nielsen Company as the programming of the network has the subsequent airings of that program on of January 1, 2015, must provide 87.5 technical capability necessary to pass that same broadcast station, unless it is hours of video description per calendar through the video description, unless it using the technology used to provide quarter, either during prime time or on is using the technology used to provide video description for another purpose children’s programming, on each video description for another purpose related to the programming that would programming stream on which they related to the programming that would conflict with providing the video carry one of the top commercial conflict with providing the video description. television broadcast networks. If a description. station in one of these markets becomes (7) Each video programming (4) Once an MVPD as defined under affiliated with one of one of the top distributor subject to paragraphs (b)(1), paragraph (b)(4) or (b)(5) of this section: commercial television broadcast (2), (4), and/or (5) of this section shall * * * * * networks after July 1, 2018, it must make readily available contact [FR Doc. 2016–10816 Filed 5–26–16; 8:45 am] begin compliance with these information for a person or office with BILLING CODE 6712–01–P

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