§ 79.3   Video description of video programming.

   (a) Definitions. For purposes of this section the following definitions
   shall apply:

   (1) Designated Market Areas (DMAs). Unique, county-based geographic
   areas designated by The Nielsen Company, a television audience
   measurement service, based on television viewership in the counties
   that make up each DMA.

   (2) Video programming provider. Any video programming distributor and
   any other entity that provides video programming that is intended for
   distribution to residential households including, but not limited to,
   broadcast or nonbroadcast television networks and the owners of such
   programming.

   (3) Video description/Audio Description. The insertion of audio
   narrated descriptions of a television program's key visual elements
   into natural pauses between the program's dialogue.

   (4) Video programming. Programming provided by, or generally considered
   comparable to programming provided by, a television broadcast station,
   but not including consumer-generated media.

   (5) Video programming distributor. Any television broadcast station
   licensed by the Commission and any multichannel video programming
   distributor (MVPD), and any other distributor of video programming for
   residential reception that delivers such programming directly to the
   home and is subject to the jurisdiction of the Commission.

   (6) Prime time. The period from 8 to 11 p.m. Monday through Saturday,
   and 7 to 11 p.m. on Sunday local time, except that in the central time
   zone the relevant period shall be between the hours of 7 and 10 p.m.
   Monday through Saturday, and 6 and 10 p.m. on Sunday, and in the
   mountain time zone each station shall elect whether the period shall be
   8 to 11 p.m. Monday through Saturday, and 7 to 11 p.m. on Sunday, or 7
   to 10 p.m. Monday through Saturday, and 6 to 10 p.m. on Sunday.

   (7) Live or near-live programming. Programming performed either
   simultaneously with, or recorded no more than 24 hours prior to, its
   first transmission by a video programming distributor.

   (8) Children's Programming. Television programming directed at children
   16 years of age and under.

   (b) The following video programming distributors must provide
   programming with video 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
   25 DMAs, as determined by The Nielsen Company as of January 1, 2011,
   must provide 50 hours of video description per calendar quarter, either
   during prime time or on children's programming, on each programming
   stream on which they carry one of the top four commercial television
   broadcast networks. If a station in one of these markets becomes
   affiliated with one of these networks after the effective date of these
   rules, it must begin compliance with these requirements no later than
   three months after the affiliation agreement is finalized;

   (2) Beginning July 1, 2015, 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, 2015, must provide 50 hours of video
   description per calendar quarter, either during prime time or on
   children's programming, on each programming stream on which they carry
   one of the top four commercial television broadcast networks. If a
   station in one of these markets becomes affiliated with one of these
   networks after July 1, 2015, it must begin compliance with these
   requirements no later than three months after the affiliation agreement
   is finalized;

   (3) Television broadcast stations that are affiliated or otherwise
   associated with any television network must pass through video
   description when the network provides video description and the
   broadcast station has the technical capability necessary to pass
   through the video description, unless it is using the technology used
   to provide video description for another purpose related to the
   programming that would conflict with providing the video description;

   (4) Multichannel video programming distributor (MVPD) systems that
   serve 50,000 or more subscribers must provide 50 hours of video
   description per calendar quarter during prime time or children's
   programming, 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 these rules. 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) Multichannel video programming distributor (MVPD) systems of any
   size:

   (i) Must pass through video description on each broadcast station they
   carry, when the broadcast station provides video description, and the
   channel on which the MVPD distributes the programming of the broadcast
   station has the technical capability necessary to pass through the
   video description, unless it is using the technology used to provide
   video description for another purpose related to the programming that
   would conflict with providing the video description; and

   (ii) Must pass through video description on each nonbroadcast network
   they carry, when the network provides video description, and the
   channel on which the MVPD distributes the programming of the network
   has the technical capability necessary to pass through the video
   description, unless it is using the technology used to provide video
   description for another purpose related to the programming that would
   conflict with providing the video description.

   (c) Responsibility for and determination of compliance. (1) The
   Commission will calculate compliance on a per channel, and, for
   broadcasters, a per stream, calendar quarter basis, beginning with the
   calendar quarter July 1 through September 30, 2012.

   (2) In order to meet its fifty-hour quarterly requirement, a
   broadcaster or MVPD may count each program it airs with video
   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
   fifty-hour 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 fifty-hour 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
   video description, it is required to include video description with all
   subsequent airings of that program on that same broadcast station,
   unless it is using the technology used to provide video description for
   another purpose related to the programming that would conflict with
   providing the video description.

   (4) Once an MVPD as defined under paragraph (b)(3) of this section:

   (i) Has aired a particular program with video description on a
   broadcast station it carries, it is required to include video
   description with all subsequent airings of that program on that same
   broadcast station, unless it is using the technology used to provide
   video description for another purpose related to the programming that
   would conflict with providing the video description; or

   (ii) Has aired a particular program with video description on a
   nonbroadcast network it carries, it is required to include video
   description with all subsequent airings of that program on that same
   nonbroadcast network, unless it is using the technology used to provide
   video description for another purpose related to the programming that
   would conflict with providing the video description.

   (5) In evaluating whether a video programming distributor has complied
   with the requirement to provide video programming with video
   description, the Commission will consider showings that any lack of
   video description was de minimis and reasonable under the
   circumstances.

   (d) Procedures for exemptions based on economic burden. (1) A video
   programming provider may petition the Commission for a full or partial
   exemption from the video description requirements of this section,
   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 video 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 video description would be economically burdensome:

   (i) The nature and cost of providing video 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.

   (3) In addition to these factors, 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 video description requirements. The Commission will
   evaluate economic burden with regard to the individual outlet.

   (4) The petitioner must file an original and two (2) copies of a
   petition requesting an exemption based on the economically burdensome
   standard in this paragraph, and all subsequent pleadings, in accordance
   with § 0.401(a) of this chapter.

   (5) The Commission will place the petition on public notice.

   (6) Any interested person may file comments or oppositions to the
   petition within 30 days of the public notice of the petition. Within 20
   days of the close of the comment period, the petitioner may reply to
   any comments or oppositions filed.

   (7) Persons that file comments or oppositions to the petition must
   serve the petitioner with copies of those comments or oppositions and
   must include a certification that the petitioner was served with a
   copy. Parties filing replies to comments or oppositions must serve the
   commenting or opposing party with copies of such replies and shall
   include a certification that the party was served with a copy.

   (8) Upon a finding of good cause, the Commission may lengthen or
   shorten any comment period and waive or establish other procedural
   requirements.

   (9) Persons filing petitions and responsive pleadings must include a
   detailed, full showing, supported by affidavit, of any facts or
   considerations relied on.

   (10) The Commission may deny or approve, in whole or in part, a
   petition for an economic burden exemption from the video 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 video description requirements.

   (e) Complaint procedures. (1) A complainant may file a complaint
   concerning an alleged violation of the video 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), e-mail,
   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, 445 12th
   Street, SW., Washington, DC 20554. A complaint must include:

   (i) The name and address of the complainant;

   (ii) The name and address of the broadcast station against whom the
   complaint is alleged and its call letters and network affiliation, or
   the name and address of the MVPD against whom the complaint is alleged
   and the name of the network that provides the programming that is the
   subject of the complaint;

   (iii) A statement of facts sufficient to show that the video
   programming distributor has violated or is violating the Commission's
   rules, and, if applicable, the date and time of the alleged violation;

   (iv) The specific relief or satisfaction sought by the complainant;

   (v) The complainant's preferred format or method of response to the
   complaint (such as letter, facsimile transmission, telephone
   (voice/TRS/TTY), Internet email, or some other method that would best
   accommodate the complainant's disability); and

   (vi) A certification that the complainant attempted in good faith to
   resolve the dispute with the broadcast station or MVPD against whom the
   complaint is alleged.

   (2) The Commission will promptly forward complaints satisfying the
   above requirements to the video programming distributor involved. The
   video programming distributor must respond to the complaint within a
   specified time, generally within 30 days. The Commission may authorize
   Commission staff either to shorten or lengthen the time required for
   responding to complaints in particular cases. The answer to a complaint
   must include a certification that the video programming distributor
   attempted in good faith to resolve the dispute with the complainant.

   (3) The Commission will review all relevant information provided by the
   complainant and the video programming distributor and will request
   additional information from either or both parties when needed for a
   full resolution of the complaint.

   (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 our video description requirements 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 video description requirements of this section, it may
   impose penalties, including a requirement that the video programming
   distributor deliver video programming containing video description in
   excess of its requirements.

   (f) Private rights of action are prohibited. Nothing in this section
   shall be construed to authorize any private right of action to enforce
   any requirement of this section. The Commission shall have exclusive
   jurisdiction with respect to any complaint under this section.

   [ 76 FR 55604 , Sept. 8, 2011, as amended at  76 FR 68118 , Nov. 3, 2011]

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