FCC Expands Video Description Requirements, but Only on Quarterly Hour Requirements

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP

In a Report and Order released July 12, 2017, the Federal Communications Commission (FCC) increased the amount of video described programming required for affiliates of the top four broadcast networks and top five non-broadcast networks – i.e., cable and satellite channels – each calendar quarter, from 50 hours to 87.5 hours, a 75 percent increase. Significantly, while 50 hours per calendar quarter must still be video described prime-time or children’s television programming, the additional 37.5 hours may be transmitted any time between 6:00 a.m. and midnight, and may include any type of programming. Covered programmers will continue to be allowed to count one rerun (either in the same calendar quarter, or a subsequent calendar quarter) of video described programming toward the quota, and all broadcast television stations and multichannel video programming distributors (“MVPDs,” i.e., cable and satellite providers) will continue to be required to pass through video descriptions when they have the technical capability to do so and are not using the technology needed for video description for another purpose related to the video described program.

Video description is the audio narration of key visual elements in video programming using a secondary audio channel as an aid to blind and vision-impaired viewers. Presently, ABC, CBS, Fox and NBC-affiliated TV stations in the top 60 broadcast markets, and the current top five non-broadcast networks, Disney Channel, History, TBS, TNT and USA, must provide video description. The top five non-broadcast networks for purposes of video description obligations are reassessed every three years, based on Nielsen ratings. The additional 37.5 hours of video-described programming will be required starting July 1, 2018, which is also when the next update for top five non-broadcast networks takes effect.

As outlined in our advisory on the Notice of Proposed Rulemaking that preceded the Report and Order, the FCC had also considered increasing the number of covered programmers to include the fifth most popular commercial broadcast network and five more non-broadcast networks (i.e., numbers 6-10 in the top 10), a “no-backsliding” rule that would mean once a network was covered it would always be covered, even if it fell in the rankings, and removing the threshold requirement that non-broadcast networks reach 50 percent of pay-tv households to be subject to video description. It also proposed to have distributors post a publicly available contact for a person who can address video description issues and concerns, and that requests to the FCC for exemption from video description, as well as related submissions, be filed electronically. However, the Report and Order did not adopt any of those proposals, though it did state they “remain pending.”

The additional 75 percent increase to add 37.5 hours of video described programming each calendar quarter is the maximum allowed under the statute that authorizes FCC video description rules, the Twenty-First Century Communications and Video Accessibility Act (“CVAA”).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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