July 2017 FCC Meeting Recap: FCC Expands Video Described Programming Requirement

by Kelley Drye & Warren LLP
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In advance of its July Open Meeting, the Federal Communications Commission (Commission) unanimously adopted a Report and Order (Order) that revises the rules requiring certain video programming providers to make video described programming available for access by Americans who are blind or visually impaired. The new rules expand the Commission’s existing requirements by increasing the required amount of video described programming while affording providers more flexibility about the type of programming that can be used to meet the requirement.

Video descriptions make video programming accessible to individuals who are blind or visually impaired by aurally describing a program’s key visual elements during pauses in the program’s dialogue. The 21st Century Communications and Video Accessibility Act of 2010 (CVAA) authorizes the Commission to require video programming providers to provide video descriptions for programming that is “transmitted for display on television in digital format.” In 2012, the Commission adopted video description obligations for video programming distributors defined as “any television broadcast station licensed by the Commission and any multichannel video programming distributor (MVPD), and any other distributor of video programming for residential reception that delivers such programming directly to the home and is subject to the jurisdiction of the Commission.”

Under the current rules, commercial broadcast television stations affiliated with ABC, CBS, Fox, and NBC that are located in the top 60 television markets, as identified by the Nielsen Company, are required to offer 50 hours per calendar quarter of video descriptions during prime time or on children’s programming. MVPD systems must provide this same type and amount of described programming for each of the top five national non-broadcast networks that they carry. The non-broadcast networks currently subject to the rules are USA, TNT, TBS, History, and Disney. Prime time is defined as the period from 8-11 p.m., Monday through Saturday, and 7-11 p.m. on Sunday.

The CVAA also provides for continuing Commission authority to reassess whether additional regulations are needed after at least two years since its last rules if it finds that the need and benefits outweigh any technical and economic costs. In the Order, the Commission found that the benefits of new rules outweigh the costs, which it described as “minimal and represent[ing] a very small percentage of total programming expenses and network revenues.” The new rules increase the required amount of video described programming that programming distributors must offer on each stream or channel where they carry the included networks from 50 to 87.5 hours per quarter beginning in January 2018.

In addition, the Order affords distributors more flexibility in meeting the description requirements regarding when the additional hours of described programming may be aired. Programming distributors can now include video descriptions for any programming that occurs between 6 A.M. and midnight, which is broader in scope than prime time and children’s programming. However, the rule still requires that at least 50 hours of described programming consist of prime time and children’s programming.

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