Video description returns

As required by Congress in the “21st Century Communications and Video Accessibility Act of 2010,” the FCC, effective Oct. 8, 2011, adopted rules requiring the provision of “video description” for the hearing impaired. Video description generally involves voice-overs describing a program's key visual elements. The FCC tried to impose such rules 10 years ago, but it was struck down by the U.S. Court of Appeals for the D.C. Circuit. At the time, the court concluded that Congress had not given the FCC the necessary authority to adopt such rules.

Video description was officially reinstated as of Oct. 8, but the new regulatory regime must first be approved under the Paperwork Reduction Act. In any event, broadcasters and MVPDs have until July 1, 2012, to come into full compliance.

Broadcasters and MVPDs will have the following obligations:

  • ABC, CBS, Fox and NBC affiliates located in the top 25 Nielsen television markets (as of Jan. 1, 2012) must provide 50 hours per calendar quarter of video-described prime time or children's television. Be careful; Nielsen's top-25 market list could change before July 1, 2012. Note that by the end of 2016, the 50-hour rule will apply to the top 60 television markets.

  • To count toward the 50-hour requirement, the programming must not have been previously aired with video description, on that particular channel or station, more than once. Only programming on the primary stream of digital broadcasters counts toward the 50-hour requirement. If another top-four network is carried on a secondary stream, however, it also must meet the 50-hour requirement, as though it were carried by a separate station.

  • MVPDs with more than 50,000 subscribers must also provide 50 hours per calendar quarter of video-described prime time or children's television on the five most popular cable channels: USA, the Disney Channel, TNT, Nickelodeon and TBS. (The list of “top five popular cable channels” will be revised at three-year intervals, if ratings change.) ESPN and Fox News are not on the list because they provide fewer than 50 hours per quarter of programming that is not live or near-live (i.e., broadcast within 24 hours of recording). Live and near-live programming is exempt from the rules due to the difficulty in furnishing video description in such a short time frame.

  • All network-affiliated broadcasters and all MVPDs must “pass through” video described programming to their viewers if the network provides it, so long as they have the technical capability to do so and that capability is not being used for another purpose related to the programming (such as an audio stream in another language). “Technical capability” means having all the necessary equipment except for items that would be of minimal cost. This requirement extends to secondary digital streams and to low-power broadcast stations. Any programming aired with description must always include description if re-aired on the same station or channel.

The FCC declined to carve out any special exemptions from these obligations for local programming, news programming and the like. The rationale: Since only four hours of programming per week must be video described, and stations and systems can choose what programming to describe, they can simply choose not to describe any programming that poses any particular difficulty. However, if a video-described program is interrupted by a breaking news bulletin, it will still count toward the 50 hours.

This is only a summary of the most important parts of the new rules, which cover six single-spaced pages and have many other provisions. A thorough reading is necessary to ensure compliance.

  • On or before Dec. 1, 2011, noncommercial TV and Class A stations in Alabama and Georgia must file their biennial ownership reports.
  • On or before Dec. 1, 2011, all commercial TV stations as well as all LPTV and Class A television stations must file biennial reports reflecting their ownership as of Oct. 1, 2011.
  • By Dec. 1, TV and Class A TV stations in the following locations must place their 2011 EEO reports in their public files and post them on their websites: Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont.

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Harry C. Martin is a member of Fletcher, Heald and Hildreth, PLC.