FCC Seeks Comment on Video Description Issues for Report to Congress

by Davis Wright Tremaine LLP

The Federal Communications Commission’s (FCC) Media Bureau has issued a Public Notice seeking comment on inquiries related to the video description of video programming delivered via both television and the Internet. The inquiry is designed to help the FCC fulfill obligations imposed by the Twenty-First Century Communications and Video Accessibility Act (CVAA) that it report to Congress by July 1, 2014, on the status, benefits, and costs of video description. The deadline for comments is Sept. 4, 2013, with replies due Oct. 2, 2013.

As discussed in our advisory on FCC reinstatement of video description obligations under the CVAA, Commission rules require 50 hours per calendar quarter of video-described prime-time or children’s programming by commercial TV affiliates of the top 4 broadcast networks in the top 25 markets, and by MVPDs serving 50,000 or more subscribers for each of the top 5 national nonbroadcast networks they carry. The rules also impose “pass through” obligations on all network-affiliated broadcast stations regardless of market size, and on all MVPDs regardless of number of subscribers, and require that any programming aired with video descriptions retain them if re-televised on the same station or MVPD channel. The rules were first adopted in 2000 but invalidated by the D.C. Circuit in 2002 as not authorized by statute, and were reinstated as of October 2011 under the CVAA, with compliance required by July 1, 2012. The FCC also recently adopted rules requiring the availability of secondary audio streams for video description for all apparatus designed to receive, play back, or record programming transmitted simultaneously with sound, as discussed here

The Public Notice recites that the CVAA directs the FCC to inquire about the following specific issues related to video description on TV, and thus seeks comment on:

  • The availability, use, and benefits of video description;
  • The technical and creative issues associated with providing video description; and
  • The financial costs that providers of video programming and program owners face in providing video description.

These inquiries seek to obtain data on the amount and types of video-described programming currently available to consumers (whether done so voluntarily or to comply with FCC rules), as well as data concerning which consumers use video description and the benefits they receive, including consumers without visual disabilities. The FCC also asks whether the availability of video description is indicated in program guides (or elsewhere), and if so, whether audibly and/or through any common industry method. Additionally, the FCC seeks comment on any technical or creative issues involved in providing video-described programming—whether in the production, distribution, or viewing thereof—and on the costs of providing video description. And the Public Notice opens the door to “any other relevant legal and policy issues” pertaining to video descriptions on TV.

The Public Notice further recites that the CVAA directs the FCC to inquire into the technical and operational issues, costs, and benefits of providing video descriptions for IP video programming. It thus asks whether there are technologies or functionalities that must evolve to accommodate video-described programming on the Internet, as well as about the costs and benefits of offering video description in IP-delivered programming. Here, too, the Public Notice solicits input on “any other relevant legal and policy issues” which includes those raised in other FCC requests for comment pertaining to whether MVPDs must comply with the video description rules when permitting subscribers to access linear video programming on tablets, laptops, personal computers, smartphones, or similar devices.

As noted at the outset, the comment and reply deadlines are Sept. 4, 2013 and Oct. 2, 2013, respectively.

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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