FCC Proposes to Expand Video Description Requirements to 40 New Television Markets by January 1, 2024 and to Rename the Service “Audio Description”

On April 23, 2020, the Federal Communications Commission (“FCC”) released a Notice of Proposed Rulemaking (“NPRM”), proposing to gradually expand its video description rules to local affiliates of the top four broadcast networks (ABC, CBS, NBC, and Fox) in 40 additional television markets, as well as to multichannel video programming distributors (“MVPDs”) that carry the affected stations, by January 1, 2024. The first phase of this expansion would be complete by January 1, 2021. The current rules mandate video description of broadcast network programming in the top 60 designated market areas (“DMAs”) only, though as a practical matter, they have a much broader reach. The proposed expansion aims to “help ensure that a greater number of individuals who are blind or visually impaired can be connected, informed, and entertained by television programming.”

The NPRM also seeks comments on replacing the term “video description” with “audio description,” which is much more popular, throughout the rules. The deadline for filing public comments in this proceeding is 30 days after the proposed rules are published in the Federal Register, and reply comments are due 15 days later.

Video description makes video programming more accessible to the blind and visually impaired through “the insertion of audio narrated descriptions of a television program’s key visual elements into natural pauses between the program’s dialogue.” It is typically delivered through a secondary audio track that is often also used for foreign language audio, which viewers may enable through their TV set or set-top box.

In 2010, Congress passed the 21st Century Communications and Video Accessibility Act (“CVAA”), which, among other things, authorized the FCC to require the top four broadcast networks and the top five non-broadcast networks to provide the service for a portion of their programming. As of July 1, 2018, the top four broadcast networks and the top five non-broadcast networks must each provide at least 87.5 hours of video-described programming per calendar quarter. Fifty of those hours must be during prime time or on children’s programming, while the additional 37.5 hours must be between 6:00 AM and midnight. These minimum requirements also apply to MVPD systems (e.g., cable and satellite TV providers) with at least 50,000 subscribers. A summary of the key issues discussed in the NPRM follows.

Phasing Video Description into 40 Additional Markets

Commercial TV broadcast stations that are affiliated with ABC, CBS, Fox, or NBC must currently provide at least 87.5 hours of video-described programming as described above if they are located in the top 60 DMAs, as determined by the Nielsen Company. The FCC proposes to phase in 40 additional DMAs as follows:

Covered DMAs

Proposed Compliance Date

61-70

January 1, 2021

71-80

January 1, 2022

81-90

January 1, 2023

91-100

January 1, 2024

Any expansion of video description requirements beyond the top 100 DMAs would be “undertaken only following a future determination of the reasonableness of the associated costs.” The NPRM tentatively concludes that the costs of implementing video description in DMAs 61-100 are “reasonable” and seeks comments on this conclusion. Apart from seeking comments on any issues with the proposed expansion generally, the NPRM specifically invites comments on the following:

  • Technical Capability to Comply– The NPRN assumes that covered broadcast affiliates in DMAs 61-100 already have the equipment necessary to offer video description because they are already required to deliver a secondary audio stream to provide timely, audible emergency alerts to blind and visually impaired viewers. However, this assumption could be inaccurate. For example, as of July 2018, WAND, one of NBC’s central Illinois affiliates, did not have this equipment. Instead, it delivered audible emergency alerts via the primary audio stream and did not pass through video description at all.
  • Compliance Costs– The FCC invites comments on the costs of creating video-described programming for affiliates in markets 61-100, including whether large and small stations would incur different costs, and whether and how the adopted rules should account for the coronavirus pandemic.
  • Benefits to Consumers– Would expand the video description requirements to DMAs 61 through 100 substantially increase the availability of video description to consumers in these areas, thus providing a significant benefit to such consumers? Commenters are encouraged to provide specific data on the amount of video-described programming currently available in DMAs 61 through 100, as compared to the amount that would be available if the FCC were to expand the video description requirements to such DMAs.
  • Compliance Deadline– The FCC plans to decide whether to continue expanding into DMAs beyond the top 100 in 2023 and seeks comments on this timeline. Additionally, it wants to know whether stations in markets 61-70 have enough time to comply by January 1, 2021, and whether the coronavirus pandemic should affect the phase-in in any way.
  • Determining Covered Markets– The NPRM logically proposes that any extension of the rules to additional DMAs should be based on updated Nielsen rankings. If updated rankings are used, should they apply to the top 60 markets also? If so, what should be the compliance deadline for stations in a DMA that was not in the top 60 markets as of January 1, 2015 (when the FCC expanded video description from 25 to 60 DMAs), but is within the top 60 markets as of January 1, 2020?
  • Petitions for Exemption– The video description rules allow covered entities to petition the Commission for a full or partial exemption from the requirements upon a showing that the requirements are economically burdensome. The CVAA also provides that if an expansion of the video description rules to additional DMAs occurs, “the Commission may grant waivers to entities in specific [DMAs] where it deems appropriate.” Finally, FCC rules governing waiver generally also apply to requests for relief from CVAA obligations. The FCC believes that these waiver mechanisms are sufficient and seeks comments on its preliminary conclusion.

Renaming Video Description “Audio Description”

In a long-anticipated move, the NPRM proposes to rename video description “audio description” in its rules. The FCC recognizes that as early as 2011, consumer and industry advocates suggested using the term “audio description.” Moreover, no other federal agency uses the term “video description.” Accordingly, the Commission’s Disability Advisory Committee recommends renaming the service “audio description” to promote consistency and eliminate confusion, even though the CVAA uses “video description.” To reconcile the statute with popular demand, the FCC proposes to retain “video description” in the definition while using “audio description” everywhere else.

Our firm stands by ready to answer your questions about these proposed changes and to prepare and file public comments on your behalf. The video description rules are particularly complex when it comes to calculating hours for purposes of complying with the quarterly requirements: especially when subsequent airings of a described film or TV show come into play). For questions, please contact Michal J. Nowicki, Esq. at (703) 714-1311 or mjn@commlawgroup.com or Robert H. Jackson, Esq. at (703) 714-1316 or rhj@commlawgroup.com. Mr. Nowicki has extensive personal experience with video description. Even before joining Marashlian & Donahue, he has worked closely with Comcast and DirecTV on ensuring that these companies pass through video descriptions where available. He has also advised clients on various accessibility matters, including compliance with closed-captioning CVAA rules and best disability outreach practices.

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