The Federal Communications Commission (FCC) has issued a Notice of Proposed Rulemaking (NPRM) proposing to amend its video description rules to increase the amount of required video described programming as well as the number of programmers who must offer video description. 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 top 5 non-broadcast networks – i.e., cable and satellite channels – must provide 50 hours per calendar quarter of prime-time or children’s programming with video description, with the top 5 networks being reassessed every three years. The key points of the NPRM are as follows:

  • The NPRM proposes that the number of hours of video-described programming required for each covered broadcast station or non-broadcast network increases from 50 hours per quarter to 87.5 hours per quarter, a 75% jump, which is the maximum the FCC is statutorily authorized to require by the enabling statute. In connection with this, the FCC asks whether it should allow some amount of non-prime time/non-children’s programming to count toward the required number of hours.
  • The NPRM proposes to increase the number of broadcast networks whose affiliates must provide video description from the “big four” of ABC, CBS, Fox and NBC, to add the fifth most-popular commercial broadcast network (currently CW, although that could change), and to increase the number cable/satellite networks from the top 5 – currently the Disney Channel, History, TBS, TNT and USA – to the top 10 “most popular” non-broadcast networks.
  • The NPRM proposes a “no backsliding” rule, such that, if a network in the top 5 broadcast or top 10 cable/satellite categories falls out of the top 5 or top 10, respectively, it would nonetheless remain subject to the obligation to provide video descriptions.
  • The NPRM proposes to remove the threshold requirement that non-broadcast networks reach 50 percent of pay-tv households to be subject to video description, since those numbers are declining.
  • The NPRM proposes to require distributors to provide publicly available contact information for a person who can address video description issues and concerns within one business day.
  • The NPRM proposes that any request for exemption from the video description rules, as well as all related filings, be filed electronically with the FCC.
  • The NPRM seeks comment on the timelines over which the above proposed changes should roll out, if adopted, with a tentative conclusion that expansion in the number of networks and of hours of video-described programming should commence on July 18, 2018, the effective date of the next triennial recalculation of top networks. The NPRM suggests that its proposed rule to make company contact information public could be accomplished more quickly.
  • The NPRM also seeks comment – but proposes no specific rule – regarding how video described programming should be identified in programming guides.
  • The NPRM further seeks comment – but proposes no specific rule – on whether a program, once aired by a covered network with video descriptions on a linear channel, must continue to offer video description if and when the program appears as a video-on-demand (VOD) selection.
  • The NPRM seeks comment on whether the FCC should change the nomenclature of this technology from “video description” to the increasingly more commonly used “audio description.”

Finally, the NPRM states that the FCC will consider “comment on any other changes the Commission should consider making to the video description rules.” This opens the door for potential tweaking of the rules in this docket in ways other than those set forth above.

The NPRM sets an opening comment deadline of 30 days after the NPRM appears in the Federal Register, and a reply comment deadline of 30 days after that. Please let us know if you have any questions or would like our assistance in preparing comments.