§ 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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