Yesterday, the reinstatement of the FCC’s “video description” rules finally became official with their publication in the Federal Register. It has been a long time coming, given that the rules were originally created by the FCC in 2000. In short, the reinstated rules require large-market broadcast affiliates of the top four national networks, and cable/satellite systems (MVPDs) with a large number of subscribers, to provide programming with video descriptions to their viewers.
“Video description” is defined by the FCC as the “insertion of audio narrated descriptions of a television program’s key visual elements into natural pauses in the program’s dialogue with the goal of making video programming more accessible to individuals who are blind or visually impaired.” The FCC’s original adoption of the rules in 2000 was challenged by the Motion Picture Association of America, among others, in the United States Court of Appeals for the District of Columbia Circuit. In its 2002 decision, the Court vacated the FCC’s rules, holding that the FCC had “insufficient authority” to enact such rules.
In a very slow but deliberate response to the Court’s decision, Congress gave the FCC explicit authority to adopt video description rules in the Twenty-First Century Communications and Video Accessibility Act of 2010 (TCCVAA), which became law in October of 2010. As we reported previously here, the TCCVAA mandated that the FCC take a number of steps to ensure that new communications technologies are accessible to individuals with vision or hearing impairment, including reinstating the video description rules that had been vacated by the D.C. Circuit.
As required by Congress, the FCC issued an Order late last month announcing the reinstatement of its video description rules. According to the FCC, the most important aspects of its reinstated rules are:
- Full-power affiliates of the ABC, CBS, NBC and Fox networks located in the top 25 television markets must provide 50 hours of video-described prime time and/or children’s programming each quarter;
- MVPDs that operate systems with 50,000 or more subscribers must provide 50 hours of video-described prime time and/or children’s programming each quarter on each of the top five non-broadcast networks that they carry; and
- All broadcast stations affiliated with any network (including non-commercial stations) and all MVPD systems must pass through video descriptions contained in programming that they distribute as long as they have the technical capability to do so. “Technical capability” means having all the necessary equipment except for items that would be of minimal cost.
The TCCVAA also requires the FCC to eventually expand the broadcast requirement to the 60 largest markets, and the Commission has designated July 1, 2015 as the date when ABC, CBS, NBC and Fox affiliates in markets 26-60 (based on the Nielsen market rankings as of January 1, 2015) will be required to provide video description on 50 hours of prime time and/or children’s programming each quarter.
While the video description rules will technically become effective on October 8, 2011, the FCC indicates that broadcast stations and MVPDs will not be required to begin full compliance with the rules until July 1, 2012. Even though July 2012 sounds like the distant future now, broadcasters and MVPDs should acquaint themselves with the new rules as soon as possible. The FCC’s Order reinstates dozens of rule provisions, some of which are highly technical and will require significant effort on the part of broadcasters and MVPDs to ensure that they can comply in time or obtain waivers where necessary.