Sec.  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 Nielsen Media Research, a television audience measurement
   service, based on television viewership in the counties that make up each
   DMA.

   (2)  Second  Audio  Program  (SAP)  channel.  A channel containing the
   frequency-modulated second audio program subcarrier, as defined in, and
   subject to, the Commission's OET Bulletin No. 60, Revision A, “Multichannel
   Television Sound Transmission and Processing Requirements for the BTSC
   System,” February 1986.

   (3) Video 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 that
   is distributed and exhibited for residential use.

   (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 11:00 p.m. Monday through Saturday, and
   7 to 11:00 p.m. on Sunday local time, except that in the central time zone
   the relevant period shall be between the hours of 7 and 10:00 p.m. Monday
   through Saturday, and 6 and 10:00 p.m. on Sunday, and in the mountain time
   zone each station shall elect whether the period shall be 8 to 11:00 p.m.
   Monday through Saturday, and 7 to 11:00 p.m. on Sunday, or 7 to 10:00 p.m.
   Monday through Saturday, and 6 to 10:00 p.m. on Sunday.

   (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), as of September 30, 2000, and that are licensed to a community located
   in the top 25 DMAs, as determined by Nielsen Media Research, Inc. for the
   year 2000, must provide 50 hours of video description per calendar quarter,
   either during prime time or on children's programming;

   (2)  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 using the technology for providing video description in connection
   with the program for another purpose that is related to the programming
   would conflict with providing the video description;

   (3) Multichannel video programming distributors (MVPDs) that serve 50,000 or
   more subscribers, as of September 30, 2000, must provide 50 hours of video
   description  per  calendar  quarter during prime time or on 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, as determined by
   Nielsen Media Research, Inc., for the time period October 1999–September
   2000, that reach 50 percent or more of MVPD households; and

   (4) Multichannel video programming distributors (MVPDs) 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 using the technology for providing video description in
   connection with the program for another purpose that is related to the
   programming 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 using the
   technology for providing video description in connection with the program
   for another purpose that is related to the programming would conflict with
   providing the video description.

   (c) Responsibility for and determination of compliance. (1) The Commission
   will  calculate  compliance  on a per channel, calendar quarter basis,
   beginning with the calendar quarter April 1 through June 30, 2002.

   (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.

   (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 using the
   technology for providing video description in connection with the program
   for another purpose that is related to the programming 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 they carry, it is required to include video description with all
   subsequent airings of that program on that same broadcast station, unless
   using the technology for providing video description in connection with the
   program  for  another purpose that is related to the programming would
   conflict with providing the video description; or

   (ii) has aired a particular program with video description on a nonbroadcast
   station they carry, it is required to include video description with all
   subsequent airings of that program on that same nonbroadcast station, unless
   using the technology for providing video description in connection with the
   program  for  another purpose that is related to the programming 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 undue 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 will result in an undue burden.

   (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 cause an undue burden. The term
   “undue burden” means significant difficulty or expense. The Commission will
   consider the following factors when determining whether the requirements for
   video description impose an undue burden:

   (i) The nature and cost of providing video description of the programming;

   (ii) The impact on the operation of the video programming distributor;

   (iii) The financial resources of the video programming distributor; and

   (iv) The type of operations of the video programming distributor.

   (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 undue 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 undue burden standard, and all
   subsequent pleadings, in accordance with  Sec. 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 showing 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 undue burden exemption from the video description requirements.

   (11) During the pendency of an undue 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 Information Bureau at the Commission by
   any reasonable means, such as letter, facsimile transmission, telephone
   (voice/TRS/TTY), Internet 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 Information 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 e-mail, or some other method that would best
   accommodate the complaint'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.

   [ 65 FR 54812 , Sept. 11, 2000, as amended at  66 FR 8529 , Feb. 1, 2001;  66 FR 16618 , Mar. 27, 2001]
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                        Last updated: July 27, 2005