Cinnamon Mueller Client Updates

 

FCC Proposes to Expand Video Description Accessibility Requirements

On April 1, 2016, the FCC released a Notice of Proposed Rulemaking (“NPRM”) proposing to amend its video description rules by expanding the availability of and access to video described programming. 

Under the FCC’s video description rules, multichannel video programming distributors (“MVPDs”) and broadcast stations must offer audio narration of the action depicted in television programming (“video description”).  Video description aids people who are blind or visually impaired by providing an oral narration of visual images present on screen.

Background.  Since July 1, 2012, all MVPDs have been required, regardless of size, to “pass through” video description provided on both broadcast and non-broadcast programming.  This requirement only applies if the MVPD has the “technical capability” to pass through the video description and that technical capacity is not being used for another purpose.  Once an MVPD airs a program with video description it generally must include the video description on all subsequent airings.

In addition, MVPD systems with 50,000 subscribers or more must offer 50 hours of video description, per calendar quarter, for each of the top five non-broadcast channels (USA, TNT, TBS, Disney Channel, and History).  Broadcast affiliates of the top four national networks (ABC, CBS, Fox and NBC) located in the top 60 markets must also provide 50 hours per calendar quarter of programming with video description. 

Proposed Rules.  Key changes proposed in the NPRM to the current video description rules include: 

  • Increasing the required amount of video described programming for each covered broadcast station or non-broadcast channel from 50 to 87.5 hours per quarter.
  • Extending the requirement to provide video description from affiliates of the top-four broadcast networks to the fifth most popular broadcast network (currently CW) and from the top five non-broadcast channels to the top-10 non-broadcast channels. 
  • Adopting a “no-backsliding” rule.  In other words, were a top-five broadcast network or top-10 non-broadcast channel to fall out of the rankings, it would remain subject to the obligation to provide video description.
  • Removing the current threshold requirement that non-broadcast networks reach 50% of pay-tv households in order to be subject to inclusion;
  • Requiring covered distributors (including MVPDs) to provide dedicated customer service contacts for questions about video description similar to how they are currently required to provide contact information for closed captioning questions.
  • Requiring petitions for exemptions, along with comments or objections to petitions, to be filed electronically with the FCC.

Comments.  The FCC seeks comment on the proposed changes and timing for their implementation.  The NPRM reaches a tentative conclusion that the proposed network expansion and quarterly-hour increase rules should have an effective date of July 1, 2018, which is also the date under the current rules when the new list of included non-broadcast channels would go into effect.  A July 1, 2018 effective date would allow network rankings for the time period October 2016 to September 2017 to be used in determining the list of included channels.

In addition to these proposed changes, the NPRM also seeks comment on several other areas, without proposing specific rules, including:

  • How to identify video described programming in programming guides, and whether distributors should be required to provide information identifying described programming.
  • Whether VOD programming should be required to include video description, if the linear stream has been previously carried by an MVPD with video descriptions.
  • The state of the marketplace for delivery of more than two audio streams (Secondary Audio).  The NPRM acknowledges that video description is likely provided on the secondary audio stream and questions whether, due to voluntary upgrades and equipment obsolescence, operators now have a sufficiently advanced installed base of equipment to handle a video description soundtrack such that video description audio will not conflict with any other program-related service.  It asks whether, if this is true, the FCC should amend its rules to reflect any such changes.

Comments are due 30 days after publication of the NPRM in the Federal Register, and reply comments are due 60 days after publication.  The NPRM has not yet been published.

If you have questions about the CVAA or accessibility rules in general, please contact Barbara Esbin at (202) 872-6811 or besbin@cinnamonmueller.com or Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com.

Enforcement Bureau Chief Signals Intent to More Vigorously Enforce

Cable Consumer Protection Requirements

            Last week, in a presentation at the Practicing Law Institute in New York, FCC Enforcement Bureau Chief Travis LeBlanc outlined his top enforcement priorities for 2016.  Among these, LeBlanc specifically pointed to cable consumer protection enforcement as an area that he plans to focus the Bureau’s attention on.

            LeBlanc explained that the Enforcement Bureau is receiving cable subscriber complaints at a high rate and that the Bureau has not focused on cable consumer protection in some time.

            Some examples of consumer protection requirements that LeBlanc pointed to include:

  • Subscriber bills, which under FCC rules must be clear, concise and understandable.
  • Debt collection practices, which, in addition to requirements imposed by the Federal Trade Commission (“FTC”), often vary on a state-by-state basis, and which can form the basis of a deceptive act or practice under Section 5 of the FTC Act.  The FCC and FTC last November entered into a Memorandum of Understanding covering the agencies continued cooperation on consumer protection issues. 
  • Quality of service issues.  The FCC has technical quality standards that define a basic quality of service that cable subscribers are entitled to receive.
  • Personally identifiable information, which cable operators must protect under the privacy requirements of the Cable Act.

In light of LeBlanc’s comments, cable operators should review their policies and internal procedures to ensure that they are complying with these, and other, consumer protection requirements.

            If you have questions about cable consumer protection issues, please contact Bruce Beard at (314) 394-1535 or bbeard@cinnamonmueller.com or Scott Friedman at (312) 372-3930 or sfriedman@cinnamonmueller.com.