Implementation of Video Description of Video Programming

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 99-339; FCC 99-353]

Implementation of Video Description of Video Programming

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document proposes to adopt limited requirements for

television video description. The Commission seeks comment on ways to

increase the availability of video

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description. This action is intended to ensure the availability of

video description for the benefit of all Americans with visual

disabilities in accordance with the Telecommunications Act of 1996.

DATES: Comments are due on or before January 24, 2000; reply comments

are due on or before February 23, 2000.

ADDRESSES: Federal Communications Commission, 445 12th Street, Room TW-

A306, SW, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Eric Bash, Policy and Rules Division,

Mass Media Bureau, (202) 418-2130.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice

of Proposed Rulemaking (``NPRM''), FCC 99-339, adopted November 18,

1999; released November 18, 1999. The full text of the Commission's

NPRM is available for inspection and copying during normal business

hours in the FCC Dockets Branch (Room TW-A306), 445 12 St. SW,

Washington, DC. The complete text of this NPRM may also be purchased

from the Commission's copy contractor, International Transcription

Services, (202) 857-3800, 1231 20th St., NW, Washington, DC 20036.

Synopsis of Notice of Proposed Rulemaking

I. Introduction

1. Television plays a significant role in our society. Television

programming shapes public opinion and culture in myriad ways. It is the

principal source of news and information and provides hours of

entertainment every week to American homes. For the millions of

Americans with visual disabilities--who watch television in similar

numbers and with similar frequency to the general population--the

difficulty of being able to follow the visual action in television

programs puts them at a significant disadvantage. This disadvantage can

be overcome through the use of video description, through which

narrated descriptions of a television program's key visual elements are

inserted during the natural pauses in the program's dialogue. Video

description is typically provided through the use of the Secondary

Audio Programming channel so that it is audible only to those who wish

to hear the narration. The narration generally describes settings and

actions that are not otherwise reflected in the dialogue, such as the

movement of a person in the scene. In this NPRM, we propose to adopt

limited requirements to ensure that video description is more available

so that all Americans can enjoy the benefits of television. We expect

to expand these requirements once we have gained greater experience

with video description.

2. Public television has been airing described video programming

for more than a decade. WGBH's Descriptive Video Service (DVS) has

described more than 1600 PBS programs, and in the fall of 1998 provided

video description of three daily programs, four weekly programs,

selected episodes of three other series and several specials. Many

commercial broadcasters also have the technical ability to air

described video programming, but few have done so. Many cable systems

have the capability to provide described programming, but do so only on

very limited channels, such as the Turner Classic Movies channel, and

none of this programming is available without the assistance of public

funding. As a result, less than 1% of all programming contains video

description.

3. The Commission has previously conducted inquiries on video

description. The Commission issued its first Notice of Inquiry

(``NOI'') on video description in 1995, 60 FR 65052 (December 18,

1995). Section 713(f) of the Act, added by the 1996 Act, directed the

Commission to commence an inquiry on video description, and report to

Congress on its findings. Using the record adduced in response to the

First NOI, the Commission issued the required report to Congress in

1996, 61 FR 42249 (August 14, 1996). The Commission then issued a

second NOI in 1997, 62 FR 38088 (July 16, 1997), and submitted more

information to Congress on video description in its 1997 annual report

on competition in the markets for the delivery of video programming, 63

FR 10222 (March 2, 1998). The availability of video description has not

meaningfully improved during the past several years while these

proceedings were ongoing.

4. Various parties have asked the Commission to take steps to

enhance the availability of video description. As discussed, the

Commission has received two specific proposals to implement the

service, both of which suggest that we phase in video description over

a number of years. In addition, the President's Advisory Committee on

the Public Interest Obligations of Digital Television Broadcasters has

encouraged digital broadcasters to provide video description. The

Commission has also received letters of support from Congress and

industry. Through this proceeding, we seek comment on ways to increase

the availability of video description, without imposing an undue burden

on industry.

II. Background

5. Audience for Video Description. Video description is designed to

make television programming more accessible to persons with visual

disabilities, and enable them to ``hear what they cannot see.'' Thus,

the primary audience for video description is persons with visual

disabilities. Estimates of the number of persons with visual

disabilities range from more than eight million to nearly twelve

million. The group includes persons with a problem seeing that cannot

be corrected with ordinary glasses or contact lenses, with a range in

severity.

6. A disproportionate number of persons with visual disabilities

are older. The National Center for Health Statistics reports that eye

problems are the third leading cause, after heart disease and

arthritis, of restricting the normal daily activities of persons 65

years of age or older. While only 2-3% of the population under 45 years

of age has visual disabilities, 9-14% of the population 75 years of age

or older does. This means that as the population ages, more and more

people will become visually disabled.

7. Secondary audiences for video description exist as well. For

example, at least one and a half million children between the ages of 6

and 14 with learning disabilities may benefit from video description.

Because the medium has both audio description and visual appeal, it has

significant potential to capture the attention of learning disabled

children and enhance their information processing skills. Described

video programming capitalizes on the different perceptual strengths of

learning-disabled children, pairing their more-developed modality with

their less-developed modality to reinforce comprehension of

information.

8. The secondary audience may also include persons without

disabilities. Just as health club members and sports bar patrons have

become beneficiaries of closed captioning, viewers who are doing

several things at once, who need to attend to something during a

program, or who leave the room during a program, may become

beneficiaries of video description. In fact, the Narrative Television

Network, which provides video description that is ``open'' and

therefore cannot be turned off, reports that 60% of its audience is not

visually disabled.

9. Technology. Video description can be either ``open'' or

``closed.'' Open description is provided as part of the main soundtrack

of a program. As a result, no special equipment is needed for a

broadcaster or multichannel video

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programming distributor (MVPD) to transmit the descriptions or for the

viewer to receive them. The descriptions cannot, however, be turned

off.

10. Closed description is provided on the Secondary Audio

Programming, or SAP, channel. The SAP channel allows for an additional

audio soundtrack for a program, independent of or separate from the

monaural and stereophonic soundtracks. A secondary carrier, or

subcarrier, transmits the SAP channel audio soundtrack through a

modulator. When the SAP channel is used, a programming distributor

transmits two separate audio tracks. The second audio track is

transmitted with the main program signal. For example, the SAP channel

as currently used by PBS for its video description is transmitted with

the main program signal from the network's master control facility and

satellite distribution system to the local station's broadcast facility

and through the local transmitter. To accommodate the additional

soundtrack, changes may need to be made to some network and local

stations' plant wiring and equipment. At the local transmitter, the

broadcast station or cable operator must have the technical facilities

to pass through the subcarrier signal to include the SAP channel

information.

11. The CPB-WGBH National Center for Accessible Media (NCAM)

reports that, as of 1998, 156 public television stations reaching 79

million (80%) of TV households had installed the necessary equipment to

distribute descriptions via SAP. In addition, each of the four largest

commercial television networks (ABC, CBS, Fox, NBC) offered Spanish

audio on the SAP channel last year. According to NCAM, in the top 25

DMAs, 81% of one major commercial network's affiliates are SAP-

equipped, and, in the top 50 DMAs, 69% of cable systems are. NCAM also

reports that SAP has been a standard feature of stereo broadcasting for

the past fifteen years; as of 1997, 650 TV stations broadcast in

stereo, amounting to roughly 40% of total TV stations. For those

stations that are not yet SAP-equipped, NCAM estimates that the cost to

update equipment to become so is between $5,000 and $25,000, based on

the experience of the noncommercial stations that are SAP-capable.

12. To receive information contained within the SAP channel, a

viewer must have a receiver (TV set) capable of delivering it.

According to the Consumer Electronics Manufacturers Association, as of

January 1998, 59% of TV sets sold, and 90% of VCRs sold, have stereo

capability, and most of these are SAP-equipped. The Commission observed

several years ago that 52% of American households at the time had SAP-

compatible TV sets, and 20% had such VCRs. SAP-capable TV sets and VCRs

can be relatively inexpensive, less than $150, and a converter box is

also available for use with TV sets and VCRs that are not SAP-capable.

13. Prior Video Description Inquiries. The Commission first

considered video description when it issued a NOI on closed captioning

and video description on December 4, 1995. Several months later, the

Telecommunications Act of 1996 became law. Section 305(f) of the 1996

Act added new section 713 to the Communications Act of 1934. Entitled

``Video Programming Accessibility,'' section 713 addressed closed

captioning and video description.

14. On July 29, 1996, the Commission released the required report,

based on the record adduced in response to the NOI. The Commission did

not issue specific guidance on the criteria enumerated in section 713,

because ``the present record on which to assess video description * * *

is limited, and the emerging nature of the service renders definitive

conclusions difficult.'' However, the Commission noted that ``the

development of rules for closed captioning, which is more widely

available, can provide a useful model for the process of phasing in

broadened use of video description.'' The Commission concluded that it

should monitor the service and seek more information in the context of

its annual report on competition in the market for the delivery of

video programming.

15. On January 13, 1998, the Commission released its second report

on video description, as part of its annual report to Congress on

competition in the market for video programming. In the Fourth Annual

Report, the Commission stated that ``it is certain that `closed' video

description is feasible,'' given that it is already being provided by

some, such as PBS. The Commission noted the expense of providing the

service, citing, for example, information provided by WGBH that the

expense of describing programming was approximately $3,400 per hour,

and that the expense of noncommercial broadcasters that have upgraded

equipment to become SAP-capable ranged from $5000 to $25,000.

16. Coalition and NCAM Proposals. Following the Fourth Annual

Report, NCAM submitted a proposal to phase in video description. This

proposal was based on an earlier one submitted by the National

Coalition of Blind and Visually Impaired Persons for Increased Video

Access (Coalition), but modified and updated to take into account the

Commission's closed captioning rules.

17. NCAM proposes that initial video description requirements apply

to the largest broadcast networks (ABC, CBS, Fox, NBC, and PBS), and

national non-broadcast networks, such as cable networks, that serve 50%

or more of the total number of MVPD households. In order to ensure that

video description provided by these distributors is capable of being

received by viewers, NCAM proposes local pass-through requirements on a

staggered schedule. Thus, NCAM suggests that by the end of the first

year after any Commission rules become effective, affiliates of the

broadcast networks identified in the top 25 markets would be required

to pass through the description provided by the networks, and all cable

systems in the top 25 markets would be required to pass through the

description provided by those broadcasters and by national non-

broadcast networks serving 50% or more of the total number of MVPD

households. By the end of the second year, these requirements would be

extended to the top 50 markets; by the end of the third year, to the

top 100 markets; and by the end of the fourth year, to the top 200

markets.

18. Both the Coalition and NCAM propose that initial video

description requirements apply to prime time and children's

programming, and suggest that requirements for other programming be

deferred for several years until the infrastructure for video

description has developed more, and the Commission, the industry, and

the public have gained more experience with the technology. Both the

Coalition and NCAM propose that the requirements be phased in over a

seven-year period. By the end of the first year after any Commission

rules become effective, the distributors would be required to describe

four hours of prime time programming per week. By the end of each

succeeding year, they would be required to describe an additional three

hours of prime time programming per week, until all twenty-two hours of

prime time programming (excluding live newscasts) are described. In

addition, by the end of the second year, both the Coalition and NCAM

propose that the applicable distributors be required to describe three

hours of children's programming per week.

III. Proposals and Request for Comment

19. We propose to adopt limited rules to phase ``closed'' video

description into the marketplace. We hope to ensure the more widespread

availability of video description, but to proceed incrementally so as

not to impose a

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significant burden on video programming distributors. We thus propose

that the largest video programming distributors should provide a

limited amount of video description of their prime time and/or

children's programming. We believe that requiring these distributors to

provide some video description will not be economically burdensome for

them. We further believe that requiring them to provide video

description of a small portion of their prime time and/or children's

programming will ensure the widest availability of video description to

audiences that are most likely to benefit from it. We ask for comment

on these views.

20. In this section, we outline a particular proposal of the kind

that we envision for the initial implementation of these rules. The

proposal would require broadcasters affiliated with ABC, CBS, Fox, and

NBC in Nielsen's top 25 Designated Market Areas (DMAs), and larger

MVPDs, to provide some ``closed'' video description. We propose that

these broadcasters and MVPDs provide a minimum of 50 hours per calendar

quarter (roughly four hours per week) of described prime time and/or

children's programming. Larger MVPDs would be required to carry the

described programming of the broadcasters affiliated with the top 4

networks, and of nonbroadcast networks that reach 50% or more of MVPD

households. We also propose that these broadcasters and MVPDs begin

providing the required described programming no later than 18 months

after the effective date of our rules. We further propose to adopt

procedures to waive our rules if compliance would be unduly burdensome,

and to adopt enforcement procedures. These proposals are described in

more detail.

21. This approach is generally modeled after our closed captioning

rules. Our approach here is more measured, however, because video

description technology is not as developed as closed captioning

technology, and all distributors may not have the technical capability

now to provide described programming. As the Commission, the industry,

and the public gain greater experience with video description, we will

review the rules we propose to adopt now, and modify them as the public

interest requires. We expect to increase the amount of required

described programming over time ``in order to ensure the accessibility

of video programming to persons with visual impairments,'' as

envisioned by Congress in the section 713(f) of the Act.

22. We recognize that broadcasters are in the process of converting

from analog to digital technology. The flexibility inherent in digital

technology may make the provision of video description even easier and

less costly. Given that the need for video description exists now and

that the transition to digital will not occur overnight, however, we do

not wish to wait for the transition to be complete before adopting

video description requirements. We are thus proposing to apply the

requirements outlined in this Notice to analog broadcasters. We do

intend, however, to extend our video description requirements to

digital broadcasters in the future. We are inclined not to adopt a

specific timetable to apply to digital broadcasters in the Report and

Order arising out of this Proposed Rule, but rather to address such

specifics in a future proceeding. At that time we can craft rules based

upon the experience we have gained as a result of analog broadcasters'

implementation of our initial requirements. We seek comment on this

approach. We also seek comment on what technical issues are raised by

the provision of video description by digital broadcasters and on how

the conversion to digital affects the costs associated with the

provision of video description.

23. Entities to Describe Programming. We propose to hold

programming distributors, as opposed to producers, responsible for

compliance with our video description rules. We recognize that

distributors may not actually describe the programming. In the closed

captioning proceeding, the Commission observed that others such as

producers might more efficiently caption programming, but reasoned that

the Commission could more easily monitor and enforce the rules by

holding distributors responsible for compliance. We believe this

reasoning is equally applicable here, and therefore propose to hold

distributors responsible for complying with video description

requirements. We seek comment on these views.

24. We propose to apply our rules to all distributors of video

programming over which we have jurisdiction. Video programming

distributors include television broadcast stations, cable operators,

direct broadcast satellite (DBS) operators, home satellite dish (HSD)

providers, open video system (OVS) operators, satellite master antenna

television (SMATV) operators, and wireless cable operators using

channels in the multichannel multipoint distribution service (MMDS). We

believe that as many distributors as possible should provide video

description to enhance the availability of the service, as well as to

ensure a level playing field among distributors. MVPDs are increasingly

the primary source of video programming for most Americans, and

noncable MVPDs continue to grow. Some MVPDs may require separate SAP

generators for each channel they wish to distribute with audio on a SAP

channel. It does appear, however, that most of the distribution

technologies are capable of transmitting audio on the SAP channel or

through other means. We seek comment on this proposal.

25. We believe, however, that our initial rules should only require

the largest distributors to provide video description. As the

Commission stated in the Fourth Annual Report, ``any requirements for

video description should begin with only the largest broadcast stations

and programming networks that are better able to bear the costs

involved * * *. For example, a minimal amount of video description

could be required to be provided by the larger broadcast stations in

larger markets, and by the larger video programming networks.'' The

costs of providing video description include the cost of having

programming described, and, in some instances, the cost of upgrading

equipment. We thus propose to require the affiliates of the four

largest broadcast networks (ABC, CBS, Fox, and NBC) in the top 25 DMAs,

and the larger MVPDs to provide video description. Our proposal is

consistent with the first phase of NCAM's proposal. We seek comment on

our proposal, and on how to define the larger MVPDs to which our

initial rules should apply. We seek to identify those MVPDs that are

comparable to the broadcast stations we have proposed to require to

provide described programming. As indicated, we acknowledge and expect

that programming networks, and not broadcast stations and MVPDs, will

actually describe programming, but we believe, for ease of enforcement

and monitoring of compliance with our rules, that we should hold

distributors responsible for compliance. Our proposal would not require

any noncommercial stations to provide video description at this time,

given the financial difficulties that many of them face, particularly

during the transition to DTV.

26. To help us better evaluate our proposal and realize our goal of

maximizing video description without imposing an undue burden, we also

seek further comment on the costs of video description. The Commission

has previously noted that the cost of

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describing prime time programming may be as much as several thousand

dollars per hour, although commenters have pointed out that the cost of

describing prime time programming is but a small fraction of the total

budget of such programming. We seek additional comment on the costs of

describing programming, including more information on the costs

relative to the production budgets of programming such as prime time

programming. The Commission has also noted that the cost of upgrading

equipment may be between $5,000 and $25,000, although NCAM reports that

81% of one network's affiliates are SAP-equipped, and 69% of cable

systems are. We seek more complete and updated information on the

number of broadcasters and MVPDs that are SAP-equipped. We seek further

comment on the cost of upgrading equipment, particularly from

broadcasters that have already done this.

27. We also seek comment on our proposal to require the largest

distributors to provide described programming beginning 18 months after

the effective date of our rules. We wish to select a beginning date

that ensures more widespread video description is available rapidly,

but does not impose an undue burden on distributors.

28. We intend our proposal to require the largest programming

distributors to provide a limited amount of video description to be a

starting point for further development of the service. The experience

of the largest programming distributors will provide us with concrete

information upon which to propose a schedule to phase in other

distributors. We seek comment on an appropriate timetable for the next

phase in.

29. Programming to be Described. We propose that the distributors

should initially provide a minimum of 50 hours per quarter (roughly

four hours per week) of video description of prime time and/or

children's programming. As the Commission stated in the Video

Accessibility Report, ``initial requirements for video description

should be applied to new programming that is widely available through

national distribution services and attracts the largest audiences, such

as prime time entertainment series.'' Our proposal to require

distributors to describe roughly four hours per week of prime time

programming is consistent with first phase of the Coalition's and

NCAM's proposals. Although four hours per week appears to be a

reasonable starting point, we prefer to express the requirement as 50

hours per quarter in order to grant distributors additional flexibility

in selecting the best programming to describe. We propose also to

permit distributors to meet the 50 hour video description requirement

by describing children's programming in order to meet the needs of

children with visual disabilities. As indicated, NCAM suggests that

video description of children's programming would also provide a

benefit to children with learning disabilities. Within these broad

categories of programming, the distributors would have flexibility to

decide which programming will reach the largest audience and be most

likely to provide the intended benefits of video description. We seek

comment on our proposal, and on any alternatives. Instead of requiring

that the minimum number of hours of video description apply to prime

time and children's programming, should we allow distributors complete

flexibility to choose which programming to describe? Should we

establish certain parameters to ensure that distributors select

programming that has a significant audience that would benefit from

video description? Whether we prescribe prime time and/or children's

programming or not, is a minimum of 50 hours per quarter (roughly 4

hours per week) appropriate for the initial requirement? We seek

comment on the resources currently available to describe programming.

We also seek comment on how to ensure that the public, and in

particular people with disabilities, know when described video

programming is scheduled.

30. Commenters in our earlier NOI proceedings have noted that

Spanish-language audio sometimes competes for use of the SAP channel.

We seek comment on the extent to which Spanish or other languages use

or plan to use the SAP channel, the impact, if any, of today's

proposals on such services, and how such potential conflicts could be

avoided or minimized. Further, although we believe that adoption of

digital technology will eliminate any potential conflict between

competing users of the SAP channel, we seek comment on whether there

are any technical solutions to such potential conflicts in the analog

environment.

31. In addition, commenters in our earlier NOI proceedings have

argued that a second script, which may constitute a ``derivative work''

under copyright law, is necessary to provide video description. As

noted, however, many distributors have provided video description for

years, and apparently have not found this to be an obstacle. We seek

comment on whether copyright issues could become an obstacle to video

description, and, what could be done to prevent or minimize such a

result.

32. The Coalition points out that public safety messages that

scroll across the TV screen are totally inaccessible to persons with

visual disabilities, and proposes that an aural tone be required to

accompany the messages to alert such persons to turn on a radio, the

SAP channel, or a designated digital channel. We believe that it is of

vital importance for these emergency messages to be accessible to

persons with visual disabilities. We seek comment on the Coalition's

proposal, how it relates to the Commission's current standards for

broadcasting emergency information, and on any other effective

approaches to this problem. Could these messages be provided via

``open'' description?

33. Waivers and Enforcement Procedures. We also propose to adopt

procedures to enforce our rules, and to waive them if compliance would

result in an undue burden. The Commission adopted such procedures in

its closed captioning rules. Guided by statutory factors, the

Commission determined that factors relevant to a showing that

compliance with its closed captioning rules would result in an undue

burden are the nature and cost of captioning the programming, the

impact on the operation of the petitioner, the financial resources of

the petitioner, and the type of operations of the petitioner. The

Commission also adopted some basic pleading requirements and timetables

for petitions for waiver. In terms of enforcement, the Commission did

not adopt any reporting requirements, but rather simply adopted

pleading requirements and timetables. We seek comment on whether these

procedures are appropriate for our initial video description rules.

IV. Jurisdiction

34. We seek comment on the question whether we possess statutory

authority to adopt the proposed video description rules. We also seek

comment on the question whether the existence or relative strength of

such authority varies according to the type of video programming

provider--broadcaster, cable operator, or DBS company, for example--

potentially subject to the rules.

35. In connection with this jurisdictional question, we note that

section 1 of the Act established the Commission ``[f]or the purpose of

regulating interstate and foreign commerce in communication by wire and

radio so as to make available, so far as possible, to all the people of

the United States * * * a rapid, efficient,

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Nation-wide, and world-wide wire and radio communication service * *

*.'' Also, section 2(a) grants the Commission jurisdiction over ``all

interstate and foreign communication by wire or radio'' and ``all

persons engaged within the United States in such communication * * *.''

In addition, section 4(i) of the Act empowers ``[t]he Commission [to]

perform any and all acts, make such rules and regulations, and issue

such orders, not inconsistent with this Act, as may be necessary in the

execution of its functions.'' Finally, section 303(r) directs the

Commission, ``as the public interest, convenience, and necessity

requires,'' to ``[m]ake such rules and regulations and prescribe such

restrictions and conditions, not inconsistent with law, as may be

necessary to carry out the provisions in this Act * * *.''

36. We further observe that Congress has expressed a general

legislative preference for the increased accessibility of certain

communications services for persons with disabilities. Section 225

requires the Commission to ensure that ``interstate and intrastate

telecommunications relay services are available, to the extent possible

and in the most effective manner, to hearing-impaired and speech-

impaired individuals in the United States.'' Similarly, section 255

requires manufacturers of telecommunications equipment, and providers

of telecommunications services, to make such equipment and services

``accessible to and usable by individuals with disabilities, if readily

achievable.'' Section 303(u) generally requires television receivers to

be equipped with a closed captioning chip. Section 710 provides for

compatibility between telephones and hearing aids. In addition, the

1998 amendments to section 508 of the Rehabilitation Act require

federal departments and agencies to accommodate persons with

disabilities, including both employees and members of the public, with

respect to the accessibility of information, technology, and data.

37. Other sections of the Act may also relate to the Commission's

authority to adopt video description rules. For example, in order to

grant a Title III license, renew such a license, or permit the

assignment or transfer of such a license, sections 309(a), 307(c)(1)

and 310(d) of the Act, respectively, require the Commission to find

that the ``public interest, convenience, and necessity'' will be served

thereby.

38. Also potentially relevant to this inquiry is section 713(f).

That provision directed the Commission to ``commence an inquiry to

examine the use of video descriptions on video programming in order to

ensure the accessibility of video programming to persons with visual

impairments, and report to Congress on its findings.'' As noted, the

report was to address ``appropriate methods and schedules for phasing

video descriptions into the marketplace, technical and quality

standards for video descriptions, a definition of programming for which

video descriptions would apply, and other technical and legal issues

that the Commission deems appropriate.''

39. We seek comment on the question whether these provisions of the

Act, taken together, provide sufficient authority to adopt the proposed

video description regulations and on the scope of such authority as it

relates to different types of programming providers.

V. Conclusion

40. We adopt this Notice in order to stimulate greater availability

of video description, while at the same time not impose an undue burden

on distributors. To meet the needs of the millions of Americans with

visual disabilities, many public television stations and a few cable

programmers have voluntarily provided some video described programming,

and we applaud these efforts. Through the limited requirements we

propose today, we hope to make this service more widely available to

ensure that all Americans have access to video programming.

VI. Administrative Matters

41. Comments and Reply Comments. Pursuant to sections 1.415 and

1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested

parties may file comments on or before January 24, 2000 and reply

comments on or before February 23, 2000. Comments may be filed using

the Commission's Electronic Comment Filing System (ECFS) or by filing

paper copies, 63 FR 24121 (May 1, 1998).

42. Comments filed through ECFS can be sent as an electronic file

via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally,

only one copy of an electronic submission must be filed. In completing

the transmittal screen, commenters should include their full name,

Postal Service mailing address, and the applicable docket or rulemaking

number. Parties may also submit an electronic comment via e-mail. To

get filing instructions for e-mail comments, commenters should send an

e-mail to [email protected], and should include the following words in the

body of the message, ``get form .'' A sample form

and directions will be sent in reply.

43. Parties who choose to file by paper must file an original and

four copies of each filing. All filings must be sent to the

Commission's Secretary, Magalie Roman Salas, Office of the Secretary,

Federal Communications Commission, 445 Twelfth Street, SW, TW-A325,

Washington, DC 20554.

44. Parties who choose to file paper should also submit their

comments on diskette. These diskettes should be addressed to: Wanda

Hardy, Paralegal Specialist, Mass Media Bureau, Policy and Rules

Division, Federal Communications Commission, 445 Twelfth Street, SW, 2-

C221, Washington, DC 20554. Such a submission should be on a 3.5 inch

diskette formatted in an IBM compatible format using Word 97 or

compatible software. The diskette should be accompanied by a cover

letter and should be submitted in ``read only'' mode. The diskette

should be clearly labeled with the commenter's name, proceeding

(including the lead docket number in this case (MM Docket No. 99-353),

type of pleading (comment or reply comment), date of submission, and

the name of the electronic file on the diskette. The label should also

include the following phrase ``Disk Copy--Not an Original.'' Each

diskette should contain only one party's pleadings, preferably in a

single electronic file. In addition, commenters must sent diskette

copies to the Commission's copy contractor, International Transcription

Service, Inc., 445 Twelfth Street, SW, CY-B402, Washington, DC 20554.

45. Comments and reply comments will be available for public

inspection during regular business hours in the FCC Reference Center,

Federal Communications Commission, 445 Twelfth Street, SW, CY-A257,

Washington, DC 20554. Persons with disabilities who need assistance in

the FCC Reference Center may contact Bill Cline at (202) 418-0270,

(202) 418-2555 TTY, or [email protected]. Comments and reply comments also

will be available electronically at the Commission's Disabilities

Issues Task Force web site: www.fcc.gov/dtf. Comments and reply

comments are available electronically in ASCII text, Word 97, and Adobe

Acrobat.

46. This document is available in alternative formats (computer

diskette, large print, audio cassette, and Braille). Persons who need

documents in such formats may contact Martha Contee at (202) 4810-0260,

TTY (202) 418-2555, or [email protected].

[[Page 67242]]

47. Ex Parte Rules. This proceeding will be treated as a ``permit-

but-disclose'' proceeding, subject to the ``permit-but-disclose''

requirements under Sec. 1.1206(b) of the rules. 47 CFR 1.1206(b), as

revised. Ex parte presentations are permissible if disclosed in

accordance with Commission rules, except during the Sunshine Agenda

period when presentations, ex parte or otherwise, are generally

prohibited. Persons making oral ex parte presentations are reminded

that a memorandum summarizing a presentation must contain a summary of

the substance of the presentation and not merely a listing of the

subjects discussed. More than a one or two sentence description or the

views and arguments presented is generally required. 47 CFR

1.1206(b)(2), as revised. Additional rules pertaining to oral and

written presentations are set forth in Sec. 1.1206(b).

48. Initial Regulatory Flexibility Analysis (``IRFA''). As required

by the Regulatory Flexibility Act, 5 U.S.C. 603, the Commission has

prepared an IRFA of the possible economic impact on small entities of

the proposals contained in this Notice. Written public comments are

requested on the IFRA. In order to fulfill the mandate of the Contract

with America Advancement Act of 1996 regarding the Final Regulatory

Flexibility Analysis, we ask a number of questions in our IRFA

regarding the prevalence of small businesses in the television

broadcasting industry. Comments on the IRFA must be filed in accordance

with the same filing deadlines as comments on the Notice, and must have

a distinct heading designating them as a response to the IRFA. The

Reference Information Center, Consumer Information Bureau, will send a

copy of this Notice, including the IRFA, to the Chief Counsel for

Advocacy of the Small Business Administration.

49. Initial Paperwork Reduction Act Analysis. This Notice may

contain either proposed or modified information collections. As part of

our continuing effort to reduce paperwork burdens, we invite the

general public to take this opportunity to comment on the information

collections contained in this Notice, as required by the Paperwork

Reduction Act of 1996. Public and agency comments are due at the same

time as other comments on the Notice. Comments should address: (a)

Whether the proposed collection of information is necessary for the

proper performance of the functions of the Commission, including

whether the information shall have practical utility; (b) ways to

enhance the quality, utility, and clarity of the information collected;

and (c) ways to minimize the burden of the collection of information on

the respondents, including the use of automated collection techniques

or other forms of information technology. In addition to filing

comments with the Secretary, a copy of any comments on the information

collections contained herein should be submitted to Judy Boley, Federal

Communications Commission, 445 Twelfth Street, SW, Room C-1804,

Washington, DC 20554, or via the Internet to [email protected] and to

Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 17th Street, NW,

Washington, DC 20503 or via the Internet to [email protected].

50. Additional Information. For additional information on this

proceeding, please contact Eric Bash, Policy and Rules Division, Mass

Media Bureau, (202) 418-2130, (202) 418-1169 TTY.

VII. Ordering Clauses

51. Accordingly, pursuant to the authority contained in sections 1,

2(a), 4(i), 303, 307, 309, 310, and 713 of the Communications Act, as

amended, 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 613, this

Notice of Proposed Rulemaking is adopted.

52. The Commission's Reference Information Center, Consumer

Information Bureau, shall send a copy of this Notice, including the

Initial Regulatory Flexibility Analysis, to the Chief Counsel for

Advocacy of the Small Business Administration in accordance with the

Regulatory Flexibility Act.

VIII. Initial Regulatory Flexibility Analysis

53. As required by the Regulatory Flexibility Act, 5 U.S.C. 603

(``RFA''), the Commission has prepared this present Initial Regulatory

Flexibility Analysis (IRFA) of the possible economic impact on small

entities by the policies and rules proposed in this Notice. Written

public comments are requested on this IRFA. Comments must be identified

as responses to the IRFA and must be filed by the deadlines for

comments on the Notice provided in paragraph 38. The Commission will

send a copy of the Notice, including this IRFA, to the Chief Counsel

for Advocacy of the Small Business Administration, 5 U.S.C. 603(a). In

addition, the Notice and the IRFA (or summaries thereof) will be

published in the Federal Register.

Need for, and Objectives of, the Proposed Rules

54. Section 713(f) of the Communications Act of 1934, as amended

(``Act''), 47 U.S.C. 613, directed the Commission, within six months of

its enactment, to ``commence an inquiry on video descriptions on video

programming in order to ensure the accessibility of video programming

to persons with visual impairments, and report to Congress on its

findings.'' Section 713(f) required the report to ``assess appropriate

methods and schedules for phasing video descriptions into the

marketplace, technical and quality standards for video descriptions, a

definition of programming for which video descriptions would apply, and

other technical and legal issues that the Commission deems

appropriate.''

Legal Basis

55. This Notice is adopted pursuant to sections 1, 2(a), 4(i), 303,

307, 309, 310, and 713 of the Act, 47 U.S.C. 151, 152(a), 154(i), 303,

307, 309, 310, 613.

Description and Estimate of the Number of Small Entities to Which

the Proposed Rules Will Apply

56. The Regulatory Flexibility Act defines the term ``small

entity'' as having the same meaning as the terms ``small business,''

``small organization,'' and ``small business concern'' under section 3

of the Small Business Act, 5 U.S.C. 601(3) (1980). A small business

concern is one which: (1) Is independently owned and operated; (2) is

not dominant in its field of operation; and (3) satisfies any

additional criteria established by the SBA, 15 U.S.C. 632.

57. Small TV Broadcast Stations. The SBA defines small television

broadcasting stations as television broadcasting stations with $10.5

million or less in annual receipts, 13 CFR 121.201.

58. The Notice proposes to limit the TV broadcast stations that

must provide described programming to the TV broadcast stations

affiliated with the top four commercial networks in the top 25 Nielsen

Designated Market Areas (DMAs). According to Commission staff review of

the BIA Publications, Inc., Master Access Television Analyzer Database,

less than five commercial TV broadcast stations subject to our proposal

have revenues of less than $10.5 million dollars. We note, however,

that under SBA's definition, revenues of affiliates that are not

television stations should be aggregated with the television station

revenues in determining whether a concern is small. Our estimate may

thus overstate the number of small entities since the revenue figure on

which it is based does not include or aggregate revenues from

nontelevision affiliated companies.

[[Page 67243]]

59. Small MVPDs. The Notice proposes to limit the MVPDs that must

provide described programming to larger MVPDs. The Notice seeks comment

on how to define the MVPDs to which the initial rules should apply, and

seeks to identify those MPVDs that are comparable to the broadcast

stations affiliated with the top 4 commercial networks in the top 25

DMAs. The Notice thus proposes not to apply the initial rules to

smaller MVPDs.

60. It is possible, however, that the MVPDs we ultimately decide to

require to provide described programming may constitute a ``small

business'' under some definitions. For that reason, we review the

definition of ``small business'' for various MVPDs.

61. SBA has developed a definition of a small entity for cable and

other pay television services, which includes all such companies

generating $11 million or less in annual receipts. This definition

includes cable system operators, closed circuit television services,

direct broadcast satellite services, multipoint distribution systems,

satellite master antenna systems and subscription television services.

According to the Bureau of the Census, there were 1423 such cable and

other pay television services generating less than $11 million in

revenue that were in operation for at least one year at the end of

1992. We will address each service individually to provide a more

succinct estimate of small entities. We seek comment on the tentative

conclusions.

62. Cable Systems: The Commission has developed its own definition

of a small cable company for the purposes of rate regulation. Under the

Commission's rules, a ``small cable company,'' is one serving fewer

than 400,000 subscribers nationwide. We estimate that there were 1439

cable operators that qualified as small cable companies at the end of

1995. Since then, some of those companies may have grown to serve over

400,000 subscribers, and others may have been involved in transactions

that caused them to be combined with other cable operators.

Consequently, we estimate that there are fewer than 1439 small entity

cable system operators under this definition.

63. The Communications Act also contains a definition of a small

cable system operator, which is ``a cable operator that, directly or

through an affiliate, serves in the aggregate fewer than 1% of all

subscribers in the United States and is not affiliated with any entity

or entities whose gross annual revenues in the aggregate exceed

$250,000,000.'' The Commission has determined that there are 61,700,000

subscribers in the United States. Therefore, we found that an operator

serving fewer than 617,000 subscribers shall be deemed a small

operator, if its annual revenues, when combined with the total annual

revenues of all of its affiliates, does not exceed $250 million in the

aggregate. Based on available data, we find that the number of cable

operators serving 617,000 subscribers or less totals 1,450. Although it

seems certain that some of these cable system operators are affiliated

with entities whose gross annual revenues exceed $250,000,000, we are

unable at this time to estimate with greater precision the number of

cable system operators that would qualify as small cable operators

under the definition in the Communications Act.

64. MMDS: The Commission refined the definition of ``small entity''

for the auction of MMDS as an entity that together with its affiliates

has average gross annual revenues that are not more than $40 million

for the proceeding three calendar years. This definition of a small

entity in the context of the Commission's Report and Order concerning

MMDS auctions that has been approved by the SBA.

65. The Commission completed its MMDS auction in March, 1996 for

authorizations in 493 basic trading areas (``BTAs''). Of 67 winning

bidders, 61 qualified as small entities. Five bidders indicated that

they were minority-owned and four winners indicated that they were

women-owned businesses. MMDS is an especially competitive service, with

approximately 1,573 previously authorized and proposed MMDS facilities.

Information available to us indicates that no MDS facility generates

revenue in excess of $11 million annually. We tentatively conclude that

for purposes of this IRFA, there are approximately 1,634 small MMDS

providers as defined by the SBA and the Commission's auction rules.

66. ITFS: There are presently 2,032 ITFS licensees. All but one

hundred of these licenses are held by educational institutions.

Educational institutions are included in the definition of a small

business. However, we do not collect annual revenue data for ITFS

licensees and are not able to ascertain how many of the 100 non-

educational licensees would be categorized as small under the SBA

definition. Thus, we tentatively conclude that at least 1,932 licensees

are small businesses.

67. DBS: As of December, 1996, there were eight DBS licensees.

However, the Commission does not collect annual revenue data for DBS

and, therefore, is unable to ascertain the number of small DBS

licensees that could be impacted by these proposed rules. Although DBS

service requires a great investment of capital for operation, we

acknowledge that there are several new entrants in this field that may

not yet have generated $11 million in annual receipts, and therefore

may be categorized as a small business, if independently owned and

operated.

68. HSD: The market for HSD service is difficult to quantify.

Indeed, the service itself bears little resemblance to other MVPDs. HSD

owners have access to more than 265 channels of programming placed on

C-band satellites by programmers for receipt and distribution by MVPDs,

of which 115 channels are scrambled and approximately 150 are

unscrambled. HSD owners can watch unscrambled channels without paying a

subscription fee. To receive scrambled channels, however, an HSD owner

must purchase an integrated receiver-decoder from an equipment dealer

and pay a subscription fee to an HSD programming package. Thus, HSD

users include: (1) Viewers who subscribe to a packaged programming

service, which affords them access to most of the same programming

provided to subscribers of other MVPDs; (2) viewers who receive only

non-subscription programming; and (3) viewers who receive satellite

programming services illegally without subscribing. Because scrambled

packages of programming are most specifically intended for retail

consumers, these are the services most relevant to this discussion.

69. According to the most recently available information, there are

approximately 30 program packages nationwide offering packages of

scrambled programming to retail consumers. These program packages

provide subscriptions to approximately 2,314,900 subscribers

nationwide. This is an average of about 77,163 subscribers per program

package. This is substantially smaller than the 400,000 subscribers

used in the commission's definition of a small MSO. Furthermore,

because this is an average, it is likely that some program packages may

be substantially smaller.

70. OVS: The Commission has certified three OVS operators. On

October 17, 1996, Bell Atlantic received approval for its certification

to convert its Dover, New Jersey Video Dialtone (``VDT'') system to

OVS. Bell Atlantic subsequently purchased the division of Futurevision

which had been the only operating program package provider on the Dover

system, and has begun offering programming on this system using these

resources. Metropolitan Fiber Systems was granted certifications

[[Page 67244]]

on December 9, 1996, for the operation of OVS systems in Boston and New

York, both of which are being used to provide programming. On October

10, 1996, Digital Broadcasting Open Video Systems received approval to

offer OVS service in southern California. Because these services have

been introduced so recently, little financial information is available.

Bell Atlantic and Metropolitan Fiber Systems have sufficient revenues

to assure us that they do not qualify as small business entities.

Digital Broadcasting Open Video Systems, however, is a general

partnership just beginning operations. Accordingly, we tentatively

conclude that one OVS licensee qualifies as a small business concern.

71. SMATVs: Industry sources estimate that approximately 5,200

SMATV operators were providing service as of December, 1995. Other

estimates indicate that SMATV operators serve approximately 1.05

million residential subscribers as of September, 1996. The ten largest

SMATV operators together pass 815,740 units. If we assume that these

SMATV operators serve 50% of the units passed, the ten largest SMATV

operators serve approximately 40% of the total number of SMATV

subscribers. Because these operators are not rate regulated, they are

not required to file financial data with the Commission. Furthermore,

we are not aware of any privately published financial information

regarding these operators. Based on the estimated number of operators

and the estimated number of units served by the largest ten SMATVs, we

tentatively conclude that a substantial number of SMATV operators

qualify as small entities.

Description of Projected Reporting, Recordkeeping, and Other

Compliance Requirements

72. The Notice proposes to hold certain TV broadcast stations and

MVPDs responsible for providing 50 hours per quarter of described prime

time and/or children's programming. Those broadcast stations and MVPDs

must keep sufficient records to show that they are providing and have

provided at least the required amount of described programming.

Steps Taken To Minimize Significant Impact on Small Entities, and

Significant Alternatives Considered

73. As indicated, the Notice proposes to limit the TV broadcast

stations and MVPDs that must provide described programming to larger TV

broadcast stations (specifically, commercial TV broadcast stations

affiliated with the four largest commercial broadcast networks in the

top 25 DMAs) and larger MVPDs. The Notice seeks comment on how to

define the MVPDs to which the initial rules should apply, and seeks to

identify those MVPDs that are comparable to the broadcast stations

affiliated with the top four networks in the top 25 DMAs. The

Commission, therefore, has taken steps to minimize the impact of the

proposed rules on small business.

74. Although the Notice proposes to hold the larger broadcast

stations and MVPDs responsible for compliance with the initial rules,

the Commission acknowledges that the broadcast and nonbroadcast

networks that supply programming to the broadcast stations and MVPDs

will most likely provide the actual video description of the

programming. The Notice proposes, however, to limit the programming

that must be described to that shown on the four largest commercial

broadcast networks, and on nonbroadcast networks that reach 50% or more

of MVPD households. The Commission has, therefore, taken steps to

minimize the impact of the proposed rules on small business.

Federal Rules That May Duplicate, Overlap, or Conflict With the

Proposed Rules

None.

List of Subjects in 47 CFR Part 73

Television broadcasting.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 99-31116 Filed 11-30-99; 8:45 am]

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