Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, 76480-76486 [2020-24897]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 85, Number 230 (Monday, November 30, 2020)]
[Rules and Regulations]
[Pages 76480-76486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24897]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 79

[MB Docket No. 11-43; FCC 20-155; FRS 17215]


Video Description: Implementation of the Twenty-First Century 
Communications and Video Accessibility Act of 2010

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission expands its video description 
requirements by phasing them in for an additional 10 designated market 
areas (DMAs) each year for the next four years. This action is based on 
a finding that the costs of expanding the video description regulations 
to DMAs 61 through 100 are reasonable for program owners, providers, 
and distributors. In addition, the Commission modernizes the 
terminology in its rules to use the more common and widely understood 
term ``audio description'' rather than ``video description.'' Finally, 
the Commission adopts its proposal to delete from the rules outdated 
references to compliance deadlines that have passed.

DATES: Effective December 30, 2020.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Diana Sokolow, [email protected], of the Policy 
Division, Media Bureau, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, FCC 20-155, adopted and released on October 27, 2020. This 
document will be available via ECFS at https://www.fcc.gov/ecfs/. 
Documents will be available electronically in ASCII, Microsoft Word, 
and/or Adobe Acrobat. Alternative formats are available for people with 
disabilities (braille, large print, electronic files, audio format), by 
sending an email to [email protected] or calling the Commission's Consumer 
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY).

Synopsis

    1. In this Report and Order, we take the unopposed action of 
expanding our video description requirements by phasing them in for an 
additional 10 designated market areas (DMAs) each year for the next 
four years. Consistent with the Twenty-First Century Communications and 
Video Accessibility Act of 2010 (CVAA),\1\ we find that the costs of 
expanding the video description regulations to DMAs 61 through 100 are 
reasonable for program owners, providers, and distributors. Our action 
in this document will help ensure that a greater number of individuals 
who are blind or visually impaired can be connected, informed, and 
entertained by television programming. In addition, we modernize the 
terminology in part 79 of the Commission's rules to use the more common 
and widely understood term ``audio description'' rather than ``video 
description.'' \2\ Finally, we adopt our proposal to delete from the 
rules outdated references to compliance deadlines that have passed.
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    \1\ Specifically, pursuant to the ``continuing Commission 
authority'' provision of the CVAA, the Commission has authority ``to 
phase in the video description regulations for up to an additional 
10 [DMAs] each year (I) if the costs of implementing the video 
description regulations to program owners, providers, and 
distributors in those additional markets are reasonable, as 
determined by the Commission; and (II) except that the Commission 
may grant waivers to entities in specific [DMAs] where it deems 
appropriate.''
    \2\ Throughout the remainder of this document, we will use the 
term ``audio description'' instead of ``video description.''

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[[Page 76481]]

    2. Audio description \3\ makes video programming \4\ more 
accessible to individuals who are blind or visually impaired through 
``[t]he insertion of audio narrated descriptions of a television 
program's key visual elements into natural pauses between the program's 
dialogue.'' \5\ To access audio description, consumers generally switch 
from the main program audio to the secondary audio stream on which 
audio description is typically provided. In 2011, pursuant to section 
202 of the CVAA, the Commission adopted rules requiring certain 
television broadcast stations and multichannel video programming 
distributors (MVPDs) to provide audio description for a portion of the 
video programming that they offer to consumers on television.
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    \3\ We note that although the CVAA uses the term ``video 
description'' in this context, the Commission has long considered 
the terms ``video description'' and ``audio description'' to be 
synonymous.
    \4\ ``Video programming'' refers to programming provided by, or 
generally considered comparable to programming provided by, a 
television broadcast station but does not include consumer-generated 
media.
    \5\ 47 CFR 79.3(a)(3).
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    3. Specifically, the audio description rules currently require 
commercial television broadcast stations that are affiliated with one 
of the top four commercial television broadcast networks (ABC, CBS, 
Fox, and NBC) and are located in the top 60 television markets to 
provide 50 hours of audio-described programming per calendar quarter 
during prime time or on children's programming, as well as an 
additional 37.5 hours of audio-described programming per calendar 
quarter at any time between 6 a.m. and midnight.\6\ In addition, MVPD 
systems that serve 50,000 or more subscribers must provide 50 hours of 
audio description per calendar quarter during prime time or on 
children's programming, as well as an additional 37.5 hours of audio 
description per calendar quarter at any time between 6 a.m. and 
midnight, on each of the top five national nonbroadcast networks that 
they carry on those systems.\7\ The top five nonbroadcast networks 
currently subject to the audio description requirements are USA 
Network, HGTV, TBS, Discovery, and History.\8\
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    \6\ The rules also require ``[t]elevision broadcast stations 
that are affiliated or otherwise associated with any television 
network [to] pass through [audio] description when the network 
provides [audio] description and the broadcast station has the 
technical capability necessary to pass through the [audio] 
description, unless it is using the technology used to provide 
[audio] description for another purpose related to the programming 
that would conflict with providing the [audio] description.'' 47 CFR 
79.3(b)(3).
    \7\ For purposes of the audio description rules, the top five 
national nonbroadcast networks include only those that reach 50 
percent or more of MVPD households and have at least 50 hours per 
quarter of prime-time programming that is not live or near-live or 
otherwise exempt under the audio description rules. The list of the 
top five networks is updated every three years based on changes in 
ratings and was last updated on July 1, 2018 (remaining in effect 
until June 30, 2021). The rules also require MVPD systems of any 
size to pass through audio description provided by a broadcast 
station or nonbroadcast network, if the channel on which the MVPD 
distributes the station or programming has the technical capability 
necessary to do so and if that technology is not being used for 
another purpose related to the programming.
    \8\ On October 7, 2019, the Media Bureau (Bureau) released an 
order that granted a limited waiver of the audio description rules 
with respect to USA Network for the remainder of the current ratings 
period ending on June 30, 2021, but it declined to grant a safe 
harbor from the audio description requirements for other similarly 
situated, top five nonbroadcast networks. As a condition of the 
waiver, USA Network must air at least 1,000 hours of described 
programming each quarter without regard to the number of repeats and 
must describe at least 75 percent of any newly produced, non-live 
programming that is aired between 6:00 a.m. and midnight per 
quarter.
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    4. The CVAA required the Commission to submit two reports to 
Congress related to audio description. In the First Report, submitted 
to Congress in June 2014, the Bureau found that ``[t]he availability of 
[audio] description on television programming has provided substantial 
benefits for individuals who are blind or visually impaired, and the 
industry appears to have largely complied with their responsibilities 
under the Commission's 2011 rules.'' The Bureau also found, however, 
that ``consumers report the need for increased availability of and 
easier access to [audio]-described programming, both on television and 
online.''
    5. In the Second Report, submitted to Congress in October 2019, the 
CVAA required the Commission to assess, among other topics, ``the 
potential costs to program owners, providers, and distributors in 
[DMAs] outside of the top 60 of creating [audio-described] 
programming'' and ``the need for additional described programming in 
[DMAs] outside the top 60.'' The Second Report stated that commenters 
did not offer ``detailed or conclusive information'' as to the costs of 
such an expansion or a station's ability to bear those costs. It thus 
deferred issuing a determination regarding whether any costs associated 
with the expansion would be reasonable, explaining that, ``[s]hould the 
Commission seek to expand the [audio] description requirements to DMAs 
outside the top 60, it will need to utilize the information contained 
in this Second Report, and any further information available to it at 
the time, to determine that `the costs of implementing the [audio] 
description regulations to program owners, providers, and distributors 
in those additional markets are reasonable.' '' \9\
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    \9\ Second Report (quoting 47 U.S.C. 613(f)(4)(C)(iv)(I)).
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    6. The CVAA provides the Commission with authority ``to phase in 
the [audio] description regulations for up to an additional 10 [DMAs] 
each year (I) if the costs of implementing the [audio] description 
regulations to program owners, providers, and distributors in those 
additional markets are reasonable, as determined by the Commission; and 
(II) except that the Commission may grant waivers to entities in 
specific [DMAs] where it deems appropriate.'' Accordingly, in April 
2020, in accordance with the CVAA, the Commission proposed to expand 
its audio description regulations to an additional 10 DMAs per year for 
four years, thus covering DMAs 61 through 100, and it invited comment 
on whether the costs of such an expansion would be reasonable.\10\ The 
Commission also sought to refresh the record on its 2016 proposal to 
revise its rules to use the newer and more commonly used term ``audio 
description,'' rather than ``video description.'' Finally, the 
Commission proposed to delete outdated references in the audio 
description rules to compliance deadlines that had passed. The 2020 
Audio Description Notice of Proposed Rulemaking (NPRM) (85 FR 30917, 
May 21, 2020) elicited 11 comments and two replies, all of which 
supported the Commission's proposals, including the expansion of audio 
description requirements to an additional 10 DMAs per year for four 
years until DMAs 61 through 100 are covered.
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    \10\ The Commission also proposed that in 2023, ``the Commission 
will determine whether to continue expanding to an additional 10 
DMAs per year, with any further expansion to be undertaken only 
following a future determination of the reasonableness of the 
associated costs.''
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    7. Expanding the Number of Markets Subject to Audio Description 
Requirements. We adopt our proposal to phase in the audio description 
requirements for an additional 10 DMAs each year for four years, 
beginning on the later of January 1, 2021, or the effective date of 
this Order. Commenters unanimously support the expansion of the 
Commission's audio description rules to additional markets. As stated, 
the CVAA provides the Commission with authority for this phase-in, 
``based upon the findings, conclusions, and recommendations contained 
in the [Second Report],'' ``(I) if the costs of implementing the 
[audio] description

[[Page 76482]]

regulations to program owners, providers, and distributors in those 
additional markets are reasonable, as determined by the Commission; and 
(II) except that the Commission may grant waivers to entities in 
specific [DMAs] where it deems appropriate.''
    8. The record confirms our conclusion that the costs of 
implementing the audio description regulations in markets 61 through 
100 are reasonable. The costs of adding description to television 
programming have held steady since 2017, indicating that the costs are 
at a level the Commission previously deemed ``minimal.'' Covered 
broadcasters already are required to have the equipment and 
infrastructure necessary to deliver a secondary audio stream for 
purposes of the emergency information requirements, without exception 
for technical capability or market size. As NAB acknowledges, stations 
in compliance with the requirement to deliver audible emergency 
information via the secondary audio stream ``should be able to provide 
audio description without significant additional cost.'' \11\ Further, 
network affiliates in all DMAs are already required to pass through the 
audio description they receive via a network feed, which will mitigate 
any costs associated with the rule expansion.\12\ For all of these 
reasons, we conclude that the costs of expanding the audio description 
regulations to DMAs 61 through 100 are reasonable. To the extent a 
broadcaster finds itself in an unusual situation that makes the costs 
of compliance unreasonable, it may avail itself of the exemption 
procedures discussed below.\13\ However, based on our expertise and the 
record compiled in this proceeding, we expect such instances to be 
exceedingly rare.
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    \11\ We note that the Commission asked in the 2020 Audio 
Description NPRM whether we should account for the current 
coronavirus pandemic in evaluating the reasonableness of costs of 
expanding audio description requirements to markets 61 through 100. 
No commenters except NAB addressed this issue. Although NAB 
initially noted that concerns about costs to broadcasters are 
potentially exacerbated by the pandemic, it subsequently indicated, 
as described above, that the compliance costs were feasible.
    \12\ In addition, the First Report concluded that the costs of 
complying with the audio description requirements were consistent 
with industry's expectations at the time the rules were adopted and 
had not impeded industry's ability to comply, and the record for the 
Second Report did not alter that conclusion. The 2020 Audio 
Description NPRM sought comment on several additional issues related 
to analyzing the costs, including information on the differing costs 
faced by network affiliates that receive programming via a network 
feed as compared to other network affiliates; whether there are any 
network affiliates in any DMA that do not receive programming via a 
network feed; whether network affiliated stations in markets 61 
through 100 would be able to satisfy the audio description 
requirements entirely by using the programming they receive via a 
network feed; and whether there are differing costs incurred by 
stations owned by large station group owners as compared to smaller 
station group owners or single stations. Commenters did not address 
these issues. Nonetheless, as explained herein, we believe the 
record provides sufficient information to determine, as required 
under the CVAA, that the costs of implementing the audio description 
regulations to program owners, providers, and distributors in the 
additional markets are ``reasonable.''
    \13\ Although the Commission requested additional information 
regarding specific costs that broadcasters in DMAs 61 through 100 
might face as a result of the proposed expansion, commenters 
generally did not provide detailed information on costs. Nor did 
they provide any information that undermines our conclusion 
regarding the reasonableness of costs.
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    9. The significant benefits of expanding the audio description 
requirements to DMAs 61 through 100, when weighed against the minimal 
costs, further support expansion to these markets. Consumers desire an 
expansion of the audio description requirements outside the top 60 
DMAs, and consumers who are blind or visually impaired and live in 
those markets will benefit from the increased video programming 
accessibility that the expansion will provide. In addition, the record 
indicates that consumers who are not blind or visually impaired and 
live in those markets also would benefit from the expansion, such as 
consumers with other sensory or cognitive impairments, individuals 
learning the language, and those who listen to video programming while 
multitasking. Commenters contend that the importance of access to news 
and entertainment programming during the current COVID-19 pandemic 
provides further evidence of the need for the expansion. Although 
commenters did not provide specific data on the amount of audio-
described programming currently available in DMAs 61 through 100, as 
compared to the amount that would be available if the Commission were 
to expand the audio description requirements to such DMAs, it is clear 
that any expansion of described programming in these additional markets 
will benefit consumers.\14\
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    \14\ Nielsen data from 2020 indicate that expanding the audio 
description requirements to DMAs 61-70 on January 1, 2021, would 
cover more than an additional 4.22 million households, with more 
than an additional 3.63 million households covered by expanding to 
DMAs 71-80, more than an additional 3.25 million households covered 
by expanding to DMAs 81-90, and more than an additional 2.86 million 
households covered by expanding to DMAs 91-100. In total, expanding 
the video description rules from the top 60 DMAs to the top 100 DMAs 
would increase the share of TV households covered by these rules 
from 74 percent to 87 percent of TV households. See MediaTracks 
Communications, Nielsen DMA Rankings 2020, available at https://mediatracks.com/resources/nielsen-dma-rankings-2020/ (last visited 
Aug. 21, 2020).
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    10. We therefore expand the audio description requirements to DMAs 
61 through 70 as of the later of January 1, 2021, or the effective date 
of this Order.\15\ This approach is necessary to ensure that the first 
compliance deadline does not occur prior to the Order's effective date. 
The Commission's audio description rules will extend to DMAs 71 to 80 
on January 1, 2022, DMAs 81 to 90 on January 1, 2023, and DMAs 91 to 
100 on January 1, 2024.\16\
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    \15\ The 2020 Audio Description NPRM proposed to expand the 
requirements to DMAs 61 through 70 as of January 1, 2021, to provide 
entities with sufficient time for compliance. While NAB initially 
requested that the expansion commence on October 1, 2021 for DMAs 61 
through 70, it subsequently withdrew the request, indicating that it 
``share[s] the FCC's goal of ensuring access to video programming'' 
and will ``support stations who are unable to meet the deadline on a 
case-by-case basis'' rather than pursuing a blanket delay.
    \16\ We recognize that there will be less time between the 
adoption of the instant Order and the compliance deadline than there 
was when the Commission reinstated the audio description rules in 
2011. However, we expect that less time should be needed to comply 
with the extension, given that covered broadcasters are already 
required to have the equipment and infrastructure necessary to 
deliver a secondary audio stream for purposes of the emergency 
information requirements. We note that no commenter has demonstrated 
that there would not be sufficient time to comply with audio 
description requirements in these additional DMAs. In any event, to 
the extent any broadcaster finds that it is unable to comply with 
the deadline, it may file an economic burden exemption petition in 
accordance with the processes found in section 79.3(d) or seek a 
waiver under section 1.3. We expect that stations in DMAs 71 through 
100 will not need relief from the applicable compliance deadline 
since they should be aware of that deadline well in advance.
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    11. We also adopt our proposal to base the extension to additional 
DMAs on an updated Nielsen determination of market rankings. The only 
commenter that addressed this issue, American Council of the Blind 
(ACB), supports the proposal, explaining that it ``will help ensure 
that the greatest number of consumers can access audio-described 
programming.'' We find that using updated Nielsen data will facilitate 
the efficient roll out of audio description obligations to more 
television households. Our approach is consistent with the Commission's 
prior expansion of the rules from the top 25 markets to the top 60 
markets. The audio description rules currently apply to stations 
``licensed to a community located in the top 60 DMAs, as determined by 
The Nielsen Company as of January 1, 2015.'' The revised rules, as set 
forth in the Final Rules below, will apply to the relevant DMAs ``as 
determined by The Nielsen Company as of January 1, 2020.'' The updated 
figures will apply to determine the top 60 DMAs, as well as the phase-
in for DMAs

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61 through 100. In the 2020 Audio Description NPRM, we sought comment 
on the appropriate compliance deadline for stations in a DMA that was 
not in the top 60 markets as of January 1, 2015, but is in the top 60 
markets as of January 1, 2020. Commenters did not address this issue. 
We expect any such station to come into compliance with the audio 
description rules by the compliance deadline for DMAs 61 through 
70.\17\
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    \17\ We note that there is only a single market that was in the 
top 60 DMAs as of January 1, 2015, and is not in the top 60 DMAs as 
of January 1, 2020 (Little Rock-Pine Bluff, which moved from number 
56 to number 62), and there is only a single market that was not in 
the top 60 DMAs as of January 1, 2015, and is in the top 60 DMAs as 
of January 1, 2020 (Ft. Myers-Naples, which moved from number 62 to 
number 53). Thus, Little Rock-Pine Bluff is currently subject to the 
audio description requirements because it was in the top 60 DMAs as 
of January 1, 2015, and it will remain subject to those requirements 
as the rules covering DMAs 61 through 70 go into effect. Ft. Myers-
Naples is not currently subject to the requirements since it was in 
DMA 62 as of January 1, 2015, but it is now in DMA 53 and will 
become subject to the requirements as of the later of January 1, 
2021, or the effective date of this Order, which is also when the 
rules extend to DMAs 61 through 70. Stations in the Ft. Myers-Naples 
DMA thus would have been subject to the same compliance deadline, 
even if we did not utilize updated Nielsen data, since they were 
previously in DMA 62.
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    12. We affirm our tentative conclusion in the 2020 Audio 
Description NPRM that ``[Sec. Sec.  ] 79.3(d) and 1.3 provide a 
sufficient mechanism for entities seeking relief from any expansion of 
the [audio] description rules to additional DMAs.'' Specifically, Sec.  
79.3 of the Commission's rules will continue to govern any petitions 
for exemption due to economic burden, and Sec.  1.3 will continue to 
govern waivers of the Commission's rules generally. The only commenter 
that addressed this issue, ACB, supports the proposal to use Sec.  
79.3(d) to govern any petitions for exemption due to economic burden, 
and explains further that this should apply ``rather than adopting any 
other governing authority over petitions for exemption, such as section 
1.3 of its rules, which allows for exemptions simply by a showing of 
`good cause.' '' \18\ Section 79.3(d) permits covered entities to 
petition the Commission for a full or partial exemption from the audio 
description requirements upon a showing that they are economically 
burdensome.\19\ The CVAA also provides that if an expansion of the 
audio description rules to additional DMAs occurs, ``the Commission may 
grant waivers to entities in specific [DMAs] where it deems 
appropriate.'' Although Sec.  79.3(d) will apply to instances in which 
an entity seeks to demonstrate that the extension to additional DMAs is 
economically burdensome, we recognize that the CVAA specifically 
references waivers as a means of relief, which differs from the 
exemptions available under Sec.  79.3(d). Accordingly, to the extent a 
broadcaster subject to the extension believes it needs relief due to 
some reason other than economic burden, it may seek a waiver under 
Sec.  1.3.
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    \18\ Although it does not provide specific information about the 
number of affected stations or costs, NAB generally asserts that 
stations in DMAs 61 through 100 may have smaller viewership and 
advertising revenues as compared to those in larger markets, 
compliance costs may be more burdensome for some stations in smaller 
markets to accommodate, and these costs may be arising in the middle 
of stations' budget cycle. As explained above, however, NAB concedes 
that stations in compliance with the requirement to deliver audible 
emergency information via the secondary audio stream already should 
be able to provide audio description without significant compliance 
costs.
    \19\ The term ``economically burdensome'' means imposing 
significant difficulty or expense, and the Commission considers the 
following factors in determining whether the requirements for audio 
description would be economically burdensome: (i) The nature and 
cost of providing audio description of the programming; (ii) the 
impact on the operation of the video programming provider; (iii) the 
financial resources of the video programming provider; and (iv) the 
type of operations of the video programming provider. In addition, 
the Commission considers any other factors the petitioner deems 
relevant to the determination and any available alternative that 
might constitute a reasonable substitute for the audio description 
requirements, and it evaluates economic burden with regard to the 
individual outlet. In the First Report, the Bureau stated its belief 
``that the ability to seek an exemption on the basis of economic 
burden should alleviate the potential for undue cost burdens on 
covered entities, particularly when the rules go into effect for 
broadcast stations in television markets ranked 26 through 60 in 
2015.''
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    13. Finally, we adopt our proposal to revisit expansion beyond the 
top 100 DMAs at a later date. Specifically, in 2023, the Commission 
will determine whether to continue expanding our audio description 
requirements to an additional 10 DMAs per year. Any further expansion 
will be undertaken only following a future determination of the 
reasonableness of the associated costs. Although some commenters 
request that the Commission include DMAs beyond the top 100 in the 
extension at this time, we find that consideration of the 
reasonableness of the costs for the smallest markets at the appropriate 
time will best enable us to consider the unique circumstances that may 
be applicable to them. Additionally, in 2023, we will have the 
additional benefit of having implemented the extension to DMAs beyond 
the top 60 and will be able to consider any additional information 
gleaned from that practical experience.\20\
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    \20\ We note that commenters raise additional issues that are 
outside the scope of this Order and thus not addressed here. Such 
proposals include those related to the availability of audio 
description online and in movie theaters, the accessibility of audio 
description, and the threshold for cable audio description 
requirements.
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    14. Modernizing Terminology. We adopt our proposal to make a non-
substantive amendment to the rules to substitute the term ``audio 
description'' for the term ``video description'' for purposes of part 
79. Commenters nearly universally support this terminology change.\21\ 
The term ``audio description'' is used by other Federal agencies, in 
television and movie listings, and by the Worldwide Web Consortium. We 
are concerned that the Commission's use of an inconsistent term, 
``video description,'' may be confusing both for consumers and 
industry. In 2019, both ACB and the Commission's Disability Advisory 
Committee advocated for the use of the term ``audio description,'' 
which ACB and NAB had proposed to the Commission as early as 2011.
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    \21\ In addition, NAB indicates that it does not object to this 
terminology change. Only a single consumer whose position was 
included in the appendix to the ACB Comments indicates that ``video 
description'' is a more accurate term because the video is what is 
being described. We remain persuaded that the Commission should use 
the more commonly accepted term, ``audio description,'' which is 
logical given that the description is provided via audio.
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    15. Since the Commission's definition of video description already 
references both ``video description'' and ``audio description,'' 
modernizing the terminology as discussed herein does not change the 
substance of any regulations.\22\ Although the underlying statute uses 
the term ``video description,'' we reiterate our statement in the 2020 
Audio Description NPRM that we have authority to update our terminology 
as part of our ``continuing authority'' to regulate audio description. 
Modernizing our terminology to use the more common and widely 
understood phrase ``audio description'' is consistent with other 
instances in which agencies have made non-substantive modifications to 
regulations to reflect newer terminology, even if the pertinent statute 
itself may not have been amended. Accordingly, we revise our rules as 
reflected in the Final Rules below to use the term ``audio 
description'' rather than ``video description.''
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    \22\ Consistent with our proposal, because the current 
definition in the Commission's rules treats the terms ``video 
description'' and ``audio description'' as synonymous, we will 
retain the statutory term ``video description'' in the definition 
while using the more commonly understood term ``audio description'' 
elsewhere in the rule.
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    16. Technical Update to the Rules. Finally, we adopt our proposal 
to delete from the audio description rules the outdated references in 
Sec.  79.3(b)(1) and (4) to the compliance deadlines of July

[[Page 76484]]

1, 2015, and July 1, 2018, which have passed. No commenter addressed 
this issue, and we find that it is an appropriate update to our rules 
to reflect the passage of time.
    17. Final Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission 
has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to 
the Report and Order. In summary, the Report and Order expands the 
video description requirements by phasing them in for an additional 10 
designated market areas (DMAs) each year for the next four years. In 
addition, the Order modernizes the terminology in part 79 of the 
Commission's rules to use the more common and widely understood term 
``audio description'' rather than ``video description.'' Finally, it 
adopts the Commission's proposal to delete from the rules outdated 
references to compliance deadlines that have passed. The action is 
authorized pursuant to the Twenty-First Century Communications and 
Video Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751, 
and section 713 of the Communications Act of 1934, as amended, 47 
U.S.C. 613. The types of small entities that may be affected by the 
action fall within the following categories: Television Broadcasting, 
Wired Telecommunications Carriers, Cable and Other Subscription 
Programming, Cable Television Distribution Services, Cable Companies 
and Systems (Rate Regulation Standard), Cable System Operators 
(Telecommunications Act Standard), and Direct Broadcast Satellite (DBS) 
Service.
    18. The projected reporting, recordkeeping, and other compliance 
requirements include phasing in the audio description requirements for 
an additional 10 DMAs each year for four years, beginning on the later 
of January 1, 2021 or the effective date of the Order. The extension to 
additional DMAs will be based on an updated Nielsen determination, with 
the revised rules applying to the relevant DMAs as determined by the 
Nielsen company as of January 1, 2020. The order also makes two changes 
that will not have any impact on small entities or others. First, it 
revises the Commission's rules to substitute the term ``audio 
description'' for the term ``video description'' for purposes of part 
79. Second, it deletes outdated references in Sec.  79.3(b)(1) and (4) 
to compliance deadlines that have passed. The SBA did not file 
comments.
    19. In considering the impact on small entities, the Commission 
emphasizes that the extension of the audio description requirements to 
DMAs 61 through 100 is based on a cost-benefit analysis. Specifically, 
the Commission concludes that the costs of implementing the audio 
description regulations in markets 61 through 100 are reasonable. In 
addition, the Commission states that the significant benefits of 
expanding the audio description requirements to DMAs 61 through 100, 
when weighed against the minimal costs, further support expansion to 
these markets.
    20. Further, the Commission has adopted certain proposals that will 
ease burdens on broadcasters that are small entities, as well as other 
broadcasters. First, to the extent any station in DMAs 61 through 100 
finds that it is unable to comply with the expansion due to economic 
burden, it may file a petition for an exemption due to economic burden 
in accordance with Sec.  79.3(d). Stations may also seek a waiver under 
section 1.3. Additionally, although the Commission has authority to 
extend the audio description requirements to 10 additional DMAs per 
year until all DMAs are covered, it has only extended the requirements 
to DMAs 61 through 100 at this time. In 2023, the Commission will 
determine whether to continue expanding its audio description 
requirements to an additional 10 DMAs per year. This approach will 
ensure that any further expansion is undertaken only following a future 
determination of the reasonableness of the associated costs outside DMA 
100. The Commission finds that consideration of the reasonableness of 
the costs for the smallest markets at the appropriate time will best 
enable it to consider the unique circumstances that may be applicable 
to them. Additionally, in 2023, the Commission will have the additional 
benefit of having implemented the extension to DMAs beyond the top 60 
and will be able to consider any additional information gleaned from 
that practical experience.
    21. Paperwork Reduction Act. The Report and Order does not contain 
new or revised information collection requirements subject to the 
Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-
3520).\23\ In addition, therefore, it does not contain any new or 
modified ``information collection burden for small business concerns 
with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).
---------------------------------------------------------------------------

    \23\ The Commission will file a non-substantive modification to 
the information collection that contains Sec.  79.3 (OMB 3060-1148), 
and to the information collection that contains Sec. Sec.  79.105 
and 79.106 (OMB 3060-0967), to indicate the change in terminology 
from ``video description'' to ``audio description.'' The non-
substantive modification for OMB 3060-1148 also will clarify that 
the audio description requirements have been extended to DMAs 61 
through 100.
---------------------------------------------------------------------------

    22. Ordering Clauses. Accordingly, it is ordered that, pursuant to 
the Twenty-First Century Communications and Video Accessibility Act of 
2010, Public Law 111-260, 124 Stat. 2751, and the authority contained 
in Section 713 of the Communications Act of 1934, as amended, 47 U.S.C. 
613, this Report and Order is hereby adopted.
    23. It is further ordered that part 79 of the Commission's rules, 
47 CFR part 79, is amended as set forth in the Final Rules below, and 
such rule amendments shall be effective thirty (30) days after the date 
of publication in the Federal Register.
    24. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.
    25. It is further ordered that the Commission shall send a copy of 
this Report and Order in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 79

    Communications equipment, Television broadcasters.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 79 as follows:

PART 79--ACCESSIBILITY OF VIDEO PROGRAMMING

0
1. The authority citation for part 79 continues to read as follows:

    Authority:  47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 
330, 544a, 613, 617.


0
2. Amend Sec.  79.2 by revising paragraph (b)(5) to read as follows:


Sec.  79.2  Accessibility of programming providing emergency 
information.

* * * * *
    (b) * * *
    (5) Video programming distributors and video programming providers 
must ensure that aural emergency information provided in accordance 
with paragraph (b)(2)(ii) of this section supersedes all

[[Page 76485]]

other programming on the secondary audio stream, including audio 
description, foreign language translation, or duplication of the main 
audio stream, with each entity responsible only for its own actions or 
omissions in this regard.
* * * * *

0
3. Amend Sec.  79.3 by revising the section heading and paragraphs 
(a)(3), (b) introductory text, (b)(1), (3), and (4), (b)(5)(i) through 
(ii), (c)(2) and (3), (c)(4)(i) and (ii), (c)(5), (d)(1), (d)(2) 
introductory text, (d)(2)(i), (d)(3), (10), and (11), (e)(1) 
introductory text, and (e)(3)(i) and (ii) to read as follows:


Sec.  79.3  Audio description of video programming.

    (a) * * *
    (3) Audio description/video description. The insertion of audio 
narrated descriptions of a television program's key visual elements 
into natural pauses between the program's dialogue.
* * * * *
    (b) Audio description requirements. The following video programming 
distributors must provide programming with audio description as 
follows:
    (1) Commercial television broadcast stations that are affiliated 
with one of the top four commercial television broadcast networks (ABC, 
CBS, Fox, and NBC), and that are licensed to a community located in the 
top 60 DMAs, as determined by The Nielsen Company as of January 1, 
2020, must provide 50 hours of audio description per calendar quarter, 
either during prime time or on children's programming, and 37.5 
additional hours of audio description per calendar quarter between 6 
a.m. and 11:59 p.m. local time, on each programming stream on which 
they carry one of the top four commercial television broadcast 
networks. If a previously unaffiliated station in one of these markets 
becomes affiliated with one of these networks, it must begin compliance 
with these requirements no later than three months after the 
affiliation agreement is finalized. On January 1, 2021, and on January 
1 each year thereafter until January 1, 2024, the requirements of this 
paragraph (b)(1) shall extend to the next 10 largest DMAs as determined 
by The Nielsen Company as of January 1, 2020, as follows: On January 1, 
2021, the requirements shall extend to DMAs 61 through 70; on January 
1, 2022, the requirements shall extend to DMAs 71 through 80; on 
January 1, 2023, the requirements shall extend to DMAs 81 through 90; 
and on January 1, 2024, the requirements shall extend to DMAs 91 
through 100;
* * * * *
    (3) Television broadcast stations that are affiliated or otherwise 
associated with any television network must pass through audio 
description when the network provides audio description and the 
broadcast station has the technical capability necessary to pass 
through the audio description, unless it is using the technology used 
to provide audio description for another purpose related to the 
programming that would conflict with providing the audio description;
    (4) Multichannel video programming distributor (MVPD) systems that 
serve 50,000 or more subscribers must provide 50 hours of audio 
description per calendar quarter during prime time or children's 
programming, and 37.5 additional hours of audio description per 
calendar quarter between 6 a.m. and 11:59 p.m. local time, on each 
channel on which they carry one of the top five national nonbroadcast 
networks, as defined by an average of the national audience share 
during prime time of nonbroadcast networks that reach 50 percent or 
more of MVPD households and have at least 50 hours per quarter of prime 
time programming that is not live or near-live or otherwise exempt 
under this part. Initially, the top five networks are those determined 
by The Nielsen Company, for the time period October 2009-September 
2010, and will update at three year intervals. The first update will be 
July 1, 2015, based on the ratings for the time period October 2013-
September 2014; the second will be July 1, 2018, based on the ratings 
for the time period October 2016-September 2017; and so on; and
    (5) * * *
    (i) Must pass through audio description on each broadcast station 
they carry, when the broadcast station provides audio description, and 
the channel on which the MVPD distributes the programming of the 
broadcast station has the technical capability necessary to pass 
through the audio description, unless it is using the technology used 
to provide audio description for another purpose related to the 
programming that would conflict with providing the audio description; 
and
    (ii) Must pass through audio description on each nonbroadcast 
network they carry, when the network provides audio description, and 
the channel on which the MVPD distributes the programming of the 
network has the technical capability necessary to pass through the 
audio description, unless it is using the technology used to provide 
audio description for another purpose related to the programming that 
would conflict with providing the audio description.
    (c) * * *
    (2) In order to meet its quarterly requirement, a broadcaster or 
MVPD may count each program it airs with audio description no more than 
a total of two times on each channel on which it airs the program. A 
broadcaster or MVPD may count the second airing in the same or any one 
subsequent quarter. A broadcaster may only count programs aired on its 
primary broadcasting stream towards its quarterly requirement. A 
broadcaster carrying one of the top four commercial television 
broadcast networks on a secondary stream may count programs aired on 
that stream toward its quarterly requirement for that network only.
    (3) Once a commercial television broadcast station as defined under 
paragraph (b)(1) of this section has aired a particular program with 
audio description, it is required to include audio description with all 
subsequent airings of that program on that same broadcast station, 
unless it is using the technology used to provide audio description for 
another purpose related to the programming that would conflict with 
providing the audio description.
    (4) * * *
    (i) Has aired a particular program with audio description on a 
broadcast station it carries, it is required to include audio 
description with all subsequent airings of that program on that same 
broadcast station, unless it is using the technology used to provide 
audio description for another purpose related to the programming that 
would conflict with providing the audio description; or
    (ii) Has aired a particular program with audio description on a 
nonbroadcast network it carries, it is required to include audio 
description with all subsequent airings of that program on that same 
nonbroadcast network, unless it is using the technology used to provide 
audio description for another purpose related to the programming that 
would conflict with providing the audio description.
    (5) In evaluating whether a video programming distributor has 
complied with the requirement to provide video programming with audio 
description, the Commission will consider showings that any lack of 
audio description was de minimis and reasonable under the 
circumstances.
    (d) * * *
    (1) A video programming provider may petition the Commission for a 
full or partial exemption from the audio description requirements of 
this section,

[[Page 76486]]

which the Commission may grant upon a finding that the requirements 
would be economically burdensome.
    (2) The petitioner must support a petition for exemption with 
sufficient evidence to demonstrate that compliance with the 
requirements to provide programming with audio description would be 
economically burdensome. The term ``economically burdensome'' means 
imposing significant difficulty or expense. The Commission will 
consider the following factors when determining whether the 
requirements for audio description would be economically burdensome:
    (i) The nature and cost of providing audio description of the 
programming;
* * * * *
    (3) In addition to the factors in paragraph (d)(2) of this section, 
the petitioner must describe any other factors it deems relevant to the 
Commission's final determination and any available alternative that 
might constitute a reasonable substitute for the audio description 
requirements. The Commission will evaluate economic burden with regard 
to the individual outlet.
* * * * *
    (10) The Commission may deny or approve, in whole or in part, a 
petition for an economic burden exemption from the audio description 
requirements.
    (11) During the pendency of an economic burden determination, the 
Commission will consider the video programming subject to the request 
for exemption as exempt from the audio description requirements.
    (e) * * *
    (1) A complainant may file a complaint concerning an alleged 
violation of the audio description requirements of this section by 
transmitting it to the Consumer and Governmental Affairs Bureau at the 
Commission by any reasonable means, such as letter, facsimile 
transmission, telephone (voice/TRS/TTY), email, audio-cassette 
recording, and Braille, or some other method that would best 
accommodate the complainant's disability. Complaints should be 
addressed to: Consumer and Governmental Affairs Bureau, located at the 
address of the FCC's main office indicated in 47 CFR 0.401(a). A 
complaint must include:
* * * * *
    (3) * * *
    (i) The Commission may rely on certifications from programming 
suppliers, including programming producers, programming owners, 
networks, syndicators and other distributors, to demonstrate 
compliance. The Commission will not hold the video programming 
distributor responsible for situations where a program source falsely 
certifies that programming that it delivered to the video programming 
distributor meets the audio description requirements of this section if 
the video programming distributor is unaware that the certification is 
false. Appropriate action may be taken with respect to deliberate 
falsifications.
    (ii) If the Commission finds that a video programming distributor 
has violated the audio description requirements of this section, it may 
impose penalties, including a requirement that the video programming 
distributor deliver video programming containing audio description in 
excess of its requirements.
* * * * *

0
4. Amend Sec.  79.105 by revising the section heading and paragraphs 
(a)(1) and (b)(3)(i) to read as follows:


Sec.  79.105  Audio description and emergency information accessibility 
requirements for all apparatus.

    (a) * * *
    (1) The transmission and delivery of audio description services as 
required by Sec.  79.3; and
* * * * *
    (b) * * *
    (3)(i) Apparatus that use a picture screen of less than 13 inches 
in size must comply with the provisions of this section only if doing 
so is achievable as defined in this section. Manufacturers of apparatus 
that use a picture screen of less than 13 inches in size may petition 
the Commission for a full or partial exemption from the audio 
description and emergency information requirements of this section 
pursuant to Sec.  1.41 of this chapter, which the Commission may grant 
upon a finding that the requirements of this section are not 
achievable, or may assert that such apparatus is fully or partially 
exempt as a response to a complaint, which the Commission may dismiss 
upon a finding that the requirements of this section are not 
achievable.
* * * * *

0
5. Amend Sec.  79.106 by revising the section heading and paragraph (b) 
to read as follows:


Sec.  79.106  Audio description and emergency information accessibility 
requirements for recording devices.

* * * * *
    (b) All apparatus subject to this section must enable the 
presentation or the pass through of the secondary audio stream, which 
will facilitate the provision of audio description signals and 
emergency information (as that term is defined in Sec.  79.2) such that 
viewers are able to activate and de-activate the audio description as 
the video programming is played back on a picture screen of any size.
* * * * *

0
6. Amend Sec.  79.107 by revising paragraph (a)(4)(viii) to read as 
follows:


Sec.  79.107  User interfaces provided by digital apparatus.

    (a) * * *
    (4) * * *
    (viii) Configuration--audio description control. Function that 
allows the user to enable or disable the output of audio description 
(i.e., allows the user to change from the main audio to the secondary 
audio stream that contains audio description, and from the secondary 
audio stream back to the main audio).
* * * * *

0
7. Amend Sec.  79.108 by revising paragraph (a)(2)(vi) to read as 
follows:


Sec.  79.108  Video programming guides and menus provided by navigation 
devices.

    (a) * * *
    (2) * * *
    (vi) Configuration--audio description control. Function that allows 
the user to enable or disable the output of audio description (i.e., 
allows the user to change from the main audio to the secondary audio 
stream that contains audio description, and from the secondary audio 
stream back to the main audio).
* * * * *

0
8. Amend Sec.  79.109 by revising paragraph (a)(2) to read as follows:


Sec.  79.109  Activating accessibility features.

    (a) * * *
    (2) Manufacturers of digital apparatus designed to receive or play 
back video programming transmitted in digital format simultaneously 
with sound, including apparatus designed to receive or display video 
programming transmitted in digital format using internet protocol, with 
built-in audio description capability must ensure that audio 
description can be activated through a mechanism that is reasonably 
comparable to a button, key, or icon. Digital apparatus do not include 
navigation devices as defined in Sec.  76.1200 of this chapter.
* * * * *
[FR Doc. 2020-24897 Filed 11-27-20; 8:45 am]
BILLING CODE 6712-01-P