WGBH Comments, MM Docket No. 99-339 page 1
[This electronic version of WGBH's comments is being posted without an appendix
consisting of a three-page legal memo unavailable in electronic form. That appendix is
available attached to the scanned version of WGBH's comments, also posted on the FCC
website.]
)
In the Matter of ) MM Docket No. 99-339
)
Implementation of )
Video Description of )
Video Programming )
)
COMMENTS OF
THE WGBH EDUCATIONAL FOUNDATION
MEDIA ACCESS DIVISION
REGARDING
NOTICE OF PROPOSED RULEMAKING
ON VIDEO DESCRIPTION
February 23, 2000
Introduction
The WGBH Educational Foundation and its Media Access division are pleased to be
able to make the following comments regarding the Federal Communications
Commission's Notice of Proposed Rulemaking in the Matter of Implementation of
Video Description of Video Programming, MM Docket No. 99-339 (the "Notice"). The
Federal Communications Commission ("the Commission") has crafted a pragmatic and
fair proposal which will serve as the basis for a comprehensive public interest
proceeding that will finally extend access to our nation's most pervasive and influential
medium to a population long ignored by the television industry.
The Commission's decision to base much of its Notice on the precedent set by previous
closed-captioning requirements is a rational next step under the provisions of the
Telecommunications Act of 1996. Producers, distributors and others in the television
field have now comfortably accommodated the closed-captioning requirements and
WGBH Comments, MM Docket No. 99-339 page 2
have accepted not only the mandates but also the opportunities presented by a service
useful to many more people than the originally intended population. We believe the
same will hold true for video description, that the television field will come not only to
accept the importance of video description to people who are blind or visually
impaired, but will come to embrace the service and its intrinsic technologies and
techniques for a myriad of other uses and additional consumers.
Background
The WGBH Educational Foundation is one of the country's leading public broadcasters
and has long considered one of its central missions to be increasing access to media for
people with disabilities. In 1971, WGBH established The Caption Center, the world's
first captioning agency, to produce captions for TV programs so that deaf and hard-of-hearing
viewers could gain equal access to those programs.
In 1990, WGBH launched Descriptive Video Service® (DVS®). DVS is a free national
service, established to provide access to TV programs, home videos and theatrical motion
pictures for blind and visually impaired people. Prior to 1990, in the early development
stage of DVS, WGBH worked with The Metropolitan Washington Ear, Inc. which had been
providing live audio-description of stage performances since 1981.
DVS has described more than 2,000 PBS programs including Mystery!, Nature, Arthur,
Masterpiece Theatre, The American Experience and more than 80 films for the Turner Classic
Movies cable channel including Casablanca, Citizen Kane, National Velvet and King Kong. The
DVS narration is available on the SAP channel which allows sighted viewers to turn off the
description. Secondary Audio Program reception and playback is a standard feature on
most television sets and VCRs built since 1990. DVS also provides more than 185 openly
described home videos including Schindler's List, Toy Story, The Sound of Music, Unforgiven,
Singing in the Rain and Forrest Gump through funding by the U.S. Department of Education
and arrangements with most of the major Hollywood studios.
In 1993, in partnership with the Corporation for Public Broadcasting, the CPB/WGBH
National Center for Accessible Media (NCAM) was established at WGBH as an research
and development facility designed to extend the Boston public television station's previous
media access efforts into new media and to further the uses of captioning and descriptive
video in the home, classroom, workplace, and community.
Major support for video description comes from the U.S. Department of Education. DVS
also raises funds from foundations, corporations and individuals.
Phase-in and Application to Distributors
In ¶19 of the Notice, the Commission proposes to adopt limited rules to phase video
description into the marketplace, with applicability to the largest video programming
distributors and their prime time and/or children's programming. We agree with the
WGBH Comments, MM Docket No. 99-339 page 3
Commission that these limitations will not be economically burdensome and will
ensure the widest availability of video description to audiences that are most likely to
benefit from it.
We address the specifics of the phase-in amounts and period and designation of
appropriate distributors below, but would like to first suggest that an extended
schedule for additional amounts of programming, next-step timelines and designation
of further distributors be part of the Commission's rulemaking. As in the Closed
Captioning Report & Order
1
, a multi-year schedule for implementation not only serves
the needs and expectations of consumers but also allows distributors to plan for the
future. As it states in ¶21 ("We expect to increase the amount of required described
programming over time…"), the Commission did not intend that a rule which required
only four hours per week or 50 hours per quarter was going to be the final or sole action
it takes to address the needs of people who are blind or visually impaired. If the
Commission, through this or subsequent proceedings, is intending to increase the
amount and distribution of programming accessible to people who are blind or visually
impaired, this is the time to set out such a schedule. Such plans for the mid- and long-term
future should also be explicit about the transition to digital television as well as
expansion to additional geographical markets.
Covered Broadcast and Cable Networks
In ¶20 of the Notice, the Commission proposes to apply its rules to "broadcasters
affiliated with ABC, CBS, Fox, and NBC in Nielsen's top 25 Designated Market Areas
(DMAs), and larger MVPDs…"
MVPDs, as defined in ¶24 of the Notice, are to include "cable operators, direct broadcast
satellite (DBS operators, home satellite dish (HSD) operators, open video system (OVS)
operators, satellite master antenna (SMATV) operators, and wireless cable operators
using channels in the multichannel, multipoint distribution service (MMDS). We agree
with the Commission's assertion that these MVPDs are "increasingly the primary source
of video programming for most Americans" and that "most of the distribution
technologies are capable of transmitting audio" in support of video description.
We support the Commission's proposed rules requiring the larger MVPDs to carry the
described programming of the affected broadcasters and, in principle, of nonbroadcast
networks that reach 50% or more of MVPD households.
UPN, WB, PBS
However, for the reasons discussed below ("Distributors to be Covered"), we support
the expansion of the list of broadcast networks to include UPN, WB and PBS; expansion
of the initial list of effected broadcasters to include the top 33 DMAs; and expansion of
1
FCC 97-279
WGBH Comments, MM Docket No. 99-339 page 4
these rules to nonbroadcast networks reaching more than 50% of their targeted MVPD
market.
The additional commercial broadcast networks (UPN and WB) have demonstrated their
strength in the marketplace through a full slate of original programs, a large group of
affiliated stations and parent corporations with ready access to highly desirable
programming and sufficient financial resources to assure that no economic burden will
befall them if included in this proceeding.
A different situation pertains to PBS, where the first described programming appeared
and where the great majority of described programming appears today. While PBS can
easily meet a threshold of 50 hours per quarter and could also meet any next-step
threshold as may be indicated for the next few years, funding vagaries and changes in
focus or management should not permit this excellent record to falter. As the described
programming threshold rises (through an extended roll-out schedule such as that
suggested below), PBS should be expected to meet those rising levels along with their
commercial counterparts.
While the Commission recognizes that PBS stations are feeling the financial pressures of
the transition to digital TV, it should be noted that the description of PBS programming
today is almost 100% funded by U.S. Department of Education grants and a large
number of PBS member stations are already SAP-equipped. Since the cost of many if
not most noncommercial stations' transition to DTV will be taxpayer-financed, it is
perhaps even more incumbent upon these stations to assure that their programming is
accessible to all viewers. Additional resources exist to assist PBS member stations in
their DTV transition, especially regarding the closed captioning and video description
technology needed. Both the Department of Commerce's National Telecommunications
and Information Administration and the Corporation for Public Broadcasting are
helping ease these burdens to such an extent that PBS stations should be able to meet
FCC video description requirements.
In addition, when rules governing cable and satellite carriage of the description signal
in today's analog and tomorrow's digital television systems are written, those rules
should insure that the descriptions embedded in PBS programming will be protected
and delivered to consumers intact and without disruption along with those delivered
by the commercial broadcast networks listed above.
In fact, all program video descriptions, whether or not produced under the mandate of
any Commission ruling, should be guaranteed of proper delivery at all times, whether
broadcast, cablecast, satellite-fed or otherwise delivered to the home. This principle has
already been embodied in closed-captioning regulations; the technology exists to assure
proper delivery at all times.
WGBH Comments, MM Docket No. 99-339 page 5
Designated Market Areas
Also in ¶20, the Commission proposes that its rules initially cover Nielsen's top 25
Designated Market Areas (DMAs). As we outline below in our discussion of "larger
MVPDs" and parallels to broadcast markets, we feel this should be expanded to the top
33 DMAs.
While a designation of the top 25 (or 33) DMAs may be a reasonable starting point, the
Commission should also determine a schedule for coverage of all 210 Designated
Market Areas (DMAs) over the coming four years. A reasonable roll-out of additional
broadcast and nonbroadcast markets would include the top 50 markets by the end of
the second year, the top 100 by the end of year three and all 210 markets by the end of
year four.
Based on the substantial experience of PBS stations, this should not represent an undue
burden to the affiliated or member stations since the necessary upgrade equipment is
not costly and the costs to describe the programming will likely be born by the
networks and their program suppliers, not by the local stations. In this suggested
seven-to-eight-year timespan, many stations will be upgrading to digital transmission
(with its inherent capacity to deliver multiple ancillary audio tracks); these upgraded
stations should be required to deliver described programming as well and therefore
need to know now that there will be such an expectation.
There are many affiliated broadcast stations outside the top 25 markets that are already
equipped with SAP equipment. Since these stations will have available to them
described programming from their network supplier under proposed Commission
rules, they should be required to pass those descriptions to their viewers and to their
local cable carriers. Such a no-cost pass-through is common sense and should be
accomplishable at little to no cost to these additional stations.
Amount of Described Programming
The proposed benchmark for the amount of described programming is stated in the
Notice (¶20) as, "a minimum of 50 hours per calendar quarter (roughly four hours per
week) of described prime time and/or children's programming." A footnote in that
section indicates that this amount was derived from information provided by NCAM
and by the Movie Access Coalition ("the Coalition"), a group of leaders of organizations
dedicated to issues of concern to people who are blind or visually impaired. We remain
convinced that this is an appropriate and achievable amount of described
programming, for the first year of a mandate. However, it is essential that as the
Commission considers its rulemaking, it take this opportunity to lay out the plans for
subsequent years.
The proposed schedule previously presented by the Coalition was a carefully
considered and reasonable approach to a phase-in period over a number of years and
remains a schedule worth including in rules emerging out of this, and not future,
WGBH Comments, MM Docket No. 99-339 page 6
rulemaking procedures. The Coalition's proposal regarding prime time programming
states:
Prime time
It took approximately eight years from the time of the first closed-captioned
broadcast until all prime-time commercial network television programming was
closed-captioned. In addition, by the time the Commission announced its captioning
mandates, the major networks had already achieved a level of 80% or more of
captioned programming.
It would therefore be a modest proposal to require video description of the prime-time
programming […] to be phased in over a seven-year period. At the end of the
first year of a video description mandate, distributors would be required to have at
least four hours per week of described prime time programming. An additional
three hours per week should be added each year for six years until all 22 hours of
primetime (excluding live news broadcasts) are described.
For the area of children's programming, the Coalition's proposal is also reasonable for
the initial years of an FCC rule:
Children's Programming
In addition to primetime programs, the Coalition asserted that children's
programming should carry a very high priority for description. This priority is
consistent with recent Congressional and Commission policy statements in the field
of children's television
2
. Therefore it is appropriate that within two years,
distributors as defined above should provide three hours per week of described
educational children's programming.
Finally, as regards other programming, not included above, the Coalition pragmatically
states:
Additional Programming
Once the infrastructure for video description is fully functional and the value of the
service is appreciated, we anticipate that a strong demand for description of non-prime
time programs will develop as well. We recommend that the Commission
defer for two to three years a determination as to what other categories of
programming should bear the highest priorities for description. After the initial two-to-
three-year period, as description services are more established and greater
audience feedback is available, it will be more practical to make priority choices. The
2
Children's Television Report and Policy Statement, 50 FCC 2d 1 (1974), aff'd Action for Children's
Television v. FCC, 564 F.2d 458 (D.C. Cir 1977); Policies and Rules Concerning Children's Television
Programming, FCC 96-335, 3 CR 1385 (1996).
WGBH Comments, MM Docket No. 99-339 page 7
communications field is changing so rapidly that at this time we do not exempt any
classification from being described. … In addition, sports and news were given a
lower priority by the Coalition, with the exception of special events such as the
inauguration of the President and the Olympics.
We have heard well-reasoned and strong arguments within the community of people
who are blind or visually impaired that the requirements for described prime time
programming and children's programming be clearly and separately delineated with
separate schedules as noted above. This requirement would of course be different for
the covered nonbroadcast networks that program exclusively for children (e.g., Disney,
Nickelodeon, Fox Family, etc.). In these cases, the children's programming
requirements would simply be added to the prime-time requirements.
Start-up Date
Paragraph 20 of the Notice proposes that, "broadcasters and MVPDs begin providing
the required described programming no later than 18 months after the effective date of
our rules."
This phase-in schedule is intended to allow program producers and distributors as well
as video description agencies time to prepare their technology, train staffs and ready
their distribution chain for assured delivery of described programs to consumers. Our
research into the technical infrastructure of programming networks and projections of
our own production capacity argue that a start date as soon as 12 months after the
effective date of rules would allow ample time to meet the requirements. Certainly no
more than 18 months would be needed, nor should people who are blind or visually
impaired be asked to wait any longer than that for a service that has long been out of
the experimental stage.
Digital Technology
In ¶22, the Commission raises the question of digital technology and its potential effect
on the proposed rules. We agree with the Commission's following statement from ¶22
that waiting for full-scale roll-out of digital television before adopting video description
requirements would be unwise, with the stated need for accessible programming being
immediate:
"Given that the need for video description exists now and that the transition to
digital will not occur overnight, however, we do not wish to wait for the
transition to be complete before adopting video description requirements."
Though the Commission states its intention to, "extend our video description
requirements to digital broadcasters in the future," ¶22 goes on to explain that, "We are
inclined not to adopt a specific timetable to apply to digital broadcasters in the Report
and Order arising out of this Notice, but rather to address such specifics in a future
proceeding."
WGBH Comments, MM Docket No. 99-339 page 8
NCAM feels strongly that technical and programmatic requirements for DTV
broadcasting and cablecasting are needed now while these technologies are still
developing, to assure that video description is considered an inherent component of
DTV. Right now as these comments are being written, standards committees continue
to meet, program providers continue to craft digital program schedules and equipment
manufacturers are trying to decide on feature sets for their DTV receivers and set-top
boxes. Without a clear and immediate signal from the Commission that video
description will be required in the digital environment, perhaps not in 12-18 months but
soon thereafter, decisions will be made in each of the above sectors that could operate to
the detriment of video description.
One example of the kind of problems we anticipate in the future is the recent discovery
that no menu item was designated for video description in the on-screen menu of a
particular digital set-top box. While video described movies from the Turner Classic
Movie channel are being provided, this particular digital delivery system neglected to
recognize the availability of the video descriptions. The solution is an almost totally
inaccessible workaround – if the user selects "Spanish" during a described movie, the
video descriptions will be heard. Of course, if this option is selected, all the on-screen
menus (which are already inaccessible to blind consumers) turn into Spanish as well.
With a clear signal from the Commission that video description for DTV is imminent,
and with explicit schedules published, the links in the program production and delivery
chain will begin to design their technology to readily accommodate video description
when fully implemented in DTV.
The Commission also asks for comment on "what technical issues are raised by the
provision of video description by digital broadcasters and on how the conversion to
digital affects the costs associated with the provision of video description." Some of
these issues continue to be discussed in the various production, routing transmission,
and reception working groups within the ATSC, SMPTE, CEA and elsewhere. These
discussions have been ongoing for at least five years and are likely to continue for
another five years if the Commission does not "light a fire" under these groups. The
work of these groups has been productive and fair to all interests but lag far behind the
actual availability of DTV broadcasts.
It is known at this time however that certain cost-savings are likely as the conversion to
digital nears completion. The ATSC standard allows the provision of ancillary audio
without the need for a separate SAP-like channel to the home from the broadcaster or
cablecaster. Therefore, SAP exciters for audio subcarriers will no longer be needed at
the transmission sites. Routing of extra audio channels within a production or
distribution facility will no longer be reliant upon extra wires and switchers for third or
fourth audio channels in plants that only have the capacity for two or three audio
channels. All audio (and video and ancillary data) will be part of the same digital signal
WGBH Comments, MM Docket No. 99-339 page 9
and while data formats are still being argued over, the resolution to these questions are
based in software, not hardware.
The cost of the provision of video description is not likely to be seriously affected by the
conversion to digital. Video description will continue to be a relatively labor-intensive
process involving scripting and voicing well-timed pieces of narrative. Embedding
these bits of narrative in the digital signal will require the same industry tools used for
other digital audio production and will not add any more complexity or expense than
the existing overall digital audio production process.
In addition, since much of the early described digital programming will consist of
upconverted analog programming, a simple transfer and encoding of the analog video
descriptions will be possible and won't require an entirely new video description track.
Entities to Describe Programming
In ¶23 of the Notice, the Commission proposes to, "hold programming distributors, as
opposed to producers, responsible for compliance with our video description rules."
This proposal, and the subsequent acknowledgement that, "distributors may not
actually describe the programming," appropriately recognizes the realities of the nature
of the video production and distribution process. The Commission's existing oversight
of the distribution process reasons that distributors are the best party to be responsible
for compliance with video description requirements. It has certainly been an effective
means of instituting the closed-captioning requirements now in their third year.
Types of Distributors (MVPDs)
The Commission rightly argues in ¶24 that fairness dictates that all program distribution types
be equally responsible for provision of described programming. As the use of non-broadcast,
non-cable distribution grows, the newer entrants to this filed should not have the competitive
advantage of automatic exemption from video description or captioning rules. Provisions for
"undue burden" exceptions will be available to any distributor that can make such a case so
that video description requirements will not be considered a barrier to entry into the
distribution marketplace.
The Commission is attempting to make forward-thinking rules in today's rapidly changing
television world, rules that need to be relevant 10 or 20 years from now. It's possible that in
just a few short years a means of distribution that may be a minority player today could easily
emerge as the preferred customer choice. People who are blind or visually impaired should be
offered these competitive consumer choices and know that video description will be equally
available on all of them.
Though the specific means of delivering ancillary audio channels may be different for
broadcasters or home satellite dish providers or others, the technological means exist for
successful transmission and reception of described programming for each of the distribution
means indicated in the Notice and under the jurisdiction of the Commission:
WGBH Comments, MM Docket No. 99-339 page 10
"television broadcast stations, cable operators, direct broadcast satellite (DBS) operators,
home satellite dish (HSD) providers, open video system (OVS) operators, satellite
master antenna television (SMATV) operators, and wireless cable operators using
channels in the multichannel multipoint distribution service (MMDS)."
Distributors to be Covered
In ¶25 of the Notice, the Commission restates its proposal to initially only require, "the
affiliates of the four largest broadcast networks (ABC, CBS, Fox, and NBC) in the top 25
DMAs" to provide described programming.
In our comments above, "Covered Broadcast and Cable Networks," we argue for the
expansion of this list to the top 33 DMAs, that affiliates or member stations of PBS, WB
and UPN networks also be covered in this first phase of the rules and that all SAP-equipped
stations be required to pass through to the consumer the video descriptions of
programming they air.
The Notice appropriately protects stations with legitimate economic concerns:
distributors that believe such requirements pose an undue burden will have ample
opportunity to make such a case before the Commission.
Larger MVPDs
In an effort to further define a reasonable roll-out of described programming equally
applied to broadcasters and other larger MVPD distributors, we would begin with a
definition of "larger MVPDs." We feel these should be defined as those MVPDs which
do not qualify as "small businesses" under the Small Business Administration,
Commission rules and Telecommunications Act definitions clearly spelled out in
Appendix A of the Notice.
3
The following table, taken from the Commission's recent "Sixth Annual Assessment of
the Status of Competition in Markets for the Delivery of Video Programming"
4
illustrates the current reach of MVPDs.
3
FCC 99-339, Appendix A, pp. 18-22
4
FCC 99-418, Released January 14, 2000
WGBH Comments, MM Docket No. 99-339 page 11
Sixth Competition Report, Appendix C, Table C-1
June 99 Total % of TV Households % of MVPD Total
Total TV Households 99,400,000
MVPD Households 80,882,411 81.37
Cable Subscribers 66,690,000 67.09 82.45
MMDS Subscribers 821,000 8.26 1.02
SMATV Subscribers 1,450,000 1.46 1.79
HSD Subscribers 1,783,411 1.79 2.20
DBS Subscribers 10,078,000 10.14 12.46
OVS Subscribers 60,000 .06 .07
VDT Subscribers 0 0 0
Since the overwhelming majority of MVPD households remain cable households (82%),
and since the large majority of program services carried by the other MVPDs remain
broadcast signals or cable program services, our main focus here remains on broadcast
and cable. However, we would expect that as other MVPDs gain market share, the same
rules for description would apply.
In the case of DBS, where there is a quickly expanding subscriber base dominated by
two major players, we feel the Commission's rules on video description should apply
immediately, particularly since so many DBS channels consist of carriage of the effected
broadcast and nonbroadcast networks.
Cable System Operators
To determine the list of "larger MVPDs" that will be effected by the proposed rules, it is
useful to look at the existing criteria used to determine "small" MVPDs.
We suggest that smaller MVPDs be defined as those serving fewer than 500,000
subscribers in the aggregate nationwide, an average of the figures defined by the
Commission's rate regulation rules (those "serving fewer than 400,000 subscribers
nationwide"
5
) and by the Commission's numbers stemming from the Communications
Act definition ("in the aggregate fewer than 1% of all subscribers in the United States"
6
,
or 617,000).
Under this definition, all systems run by cable operators serving more than 500,000
subscribers nationwide would be required to provide video description under the initial
rules.
5
Notice, p. 19.
6
Notice, p. 20.
WGBH Comments, MM Docket No. 99-339 page 12
According to recent figures from Cablevision Magazine
7
, MSOs of this size include the
Top 18 companies (see table below), reaching roughly 87% of total cable households:
7 Cablevision Online Database, February 2000: http://www.cvmag.com/database/
WGBH Comments, MM Docket No. 99-339 page 13
Rank MSO Subscribers Date
1 AT&T Broadband & Internet Services 11,818,721 (12/99)
2 Time Warner Cable 6,504,900 (12/99)
3 Comcast 5,387,659 (12/99)
4 Charter Communications 5,113,273 (11/99)
5 MediaOne 5,099,548 (12/99)
6 Adelphia Communications 4,643,188 (12/99)
7 Time Warner Entertainment-Advance/
Newhouse
4,500,000 (12/99)
8 Cox Communications 4,126,570 (12/99)
9 Cablevision Systems 3,437,377 (11/99)
10 Lenfest Group 1,104,255 (11/99)
11 AT&T Broadband/Time Warner 1,080,000 (12/99)
12 TCA Group 883,232 (12/99)
13 AT&T Broadband/Insight 750,000 (12/99)
14 Cable One 744,543 (12/99)
15 Mediacom 710,800 (11/99)
16 Bresnan Communications 648,300 (12/99)
17 Cablecomm 636,200 (12/99)
18 Multimedia Cablevision 508,849 (12/99)
57,697,415
or 87% of the
66,690,000
basic Cable
Subscribers
Broadcast Markets Affected By These Rules
The Commission should determine the number of broadcast DMAs initially affected by
these rules on a comparable scale. Since cable television penetration nationwide
averages 67% (two-thirds) of total television households, the minimum size of a covered
broadcast market should be 750,000 households (extrapolating from the 500,000 figure
for the definition of a small cable system). In order to provide equivalent coverage
under these rules, and based on current figures from the Television Bureau of
Advertising (TVBA)
8
, initially these rules should effect the Top 33 DMAs.
It is interesting to note that within this group of broadcast markets, PBS member
stations regularly provide video description via SAP broadcasts in all but one market,
and often have multiple stations offering description. The table below lists the top 33
DMAs:
8 TVBA online: http://www.tvb.org/tvfacts/householdmarket/appendix.html
WGBH Comments, MM Docket No. 99-339 page 14
Rank DMA TTH PBS station w/description via SAP
1 New York 6,812,540 WNET-13, WEDW-49
2 Los A ngeles 5,135,140 KCET-28
3 Chicago 3,164,150 WTTW-11, WYIN-56
4 Philadelphia 2,667,520 WHYY-12, WLVT-39
5 San Francisco-Oakland-San Jose 2,368,970 KQED-9
6 Boston 2,186,100 WGBH-2, WENH-11, WEKW-52
7 Dallas-Ft. Worth 1,959,680 KERA-13
8 Washington, DC 1,956,160 WETA-26, WFPT-62, WWPB-31
9 Detroit 1,846,950 WTVS-56
10 Atlanta 1,722,130 WPBA-30
11 Houston 1,665,550 KUHT-8
12 Seattle-Tacoma 1,548,200 KCTS-9
13 Cleveland 1,475,820 WVIZ-25, WEAQ-49
14 Tampa-St. Petersburg 1,463,090 WEDU-3, WUSF-16
15 Minneapolis-St. Paul 1,457,130 KTCA-2, WHWC-28
16 Miami-Ft. Lauderdale 1,418,940 WPBT-2
17 Phoenix 1,343,040 KAET-8
18 Denver 1,230,440 KRMA-6
19 Pittsburgh 1,136,230 WQED-13, WGPT-36, WNPB-24
20 Sacramento-Stockton-Modesto 1,131,300 KVIE-6
21 St. Louis 1,110,290 KETC-9
22 Orlando-Daytona Beach-Melbourne 1,072,150
23 Portland, OR 993,540 KOPB-10, KTVR-13
24 Baltimore 991,610 WMPB-67, WMPT-22
25 Indianapolis 955,800 WFYI-20, WTIU-30
26 San Diego 945,170 KPBS-15
27 Hartford-New Haven 909,930 WEDH-24, WEDN-53, WEDY-65
28 Charlotte 859,670 WTVI-42, WUNG-58
29 Raleigh-Durham 834,260 WUNC-4, WUNP-36
30 Nashville 811,870 WDCN-8
31 Milwaukee 809,040 WMVS-10
32 Cincinnati 805,990 WCET-48
33 Kansas City 802,290 KCPT-19
Nonbroadcast Networks
Since cable households remain the dominant share of the MVPD market, we feel it
would be appropriate to apply the Commission's proposed rule to those nonbroadcast
networks reaching at least 50 % of their targeted market (in the case of basic cable
networks, 33 million of approximately 67 million total subscribers).
The following table
9
from Cablevision Magazine would suggest at least the following
basic cable networks would be affected by the Commission's proposed rules. We note
that there are a number of major program services not included in this table, since their
9 Cablevision Magazine Online Database, February 2000: http://www.cvmag.com/database/
WGBH Comments, MM Docket No. 99-339 page 15
subscriber counts were not reported or were not available. We also note that there may
be exceptions granted to those program services primarily consisting of news, as we
discuss below.
Basic Cable Network Affiliates Subscribers Date
TBS Superstation 11,233 78,618,000 (11/99)
Discovery Channel 10,884 77,788,000 (11/99)
Cable News Network 11,137 77,410,000 (11/99)
ESPN 12,017 77,204,000 (11/99)
USA Network 12,500 77,181,000 (11/99)
TNT 10,579 77,142,000 (11/99)
Nickelodeon/Nick at Nite 11,788 76,304,000 (11/99)
C-SPAN 6,114 76,100,000 (11/99)
Fox Family Channel 13,750 75,791,000 (11/99)
A&E Network 11,436 75,692,000 (11/99)
TNN 14,382 75,538,820 (11/99)
Lifetime 11,467 75,349,000 (11/99)
The Weather Channel 6,500 74,304,000 (11/99)
MTV 8,927 73,294,000 (11/99)
Headline News 7,084 72,446,000 (11/99)
The Learning Channel 6,401 72,048,000 (11/99)
American Movie Classics 4,100 71,985,000 (11/99)
CNBC 4,300 71,036,000 (11/99)
ESPN2 5,663 65,437,000 (11/99)
QVC 6,427 65,386,000 (11/99)
VH1 6,088 63,666,000 (11/99)
The Cartoon Network 4,125 60,036,000 (11/99)
E! Entertainment Television 6,900 60,000,000 (11/99)
Comedy Central 2,300 59,300,000 (11/99)
The History Channel 3,266 57,615,000 (11/99)
Black Entertainment Television 2,622 57,000,000 (11/99)
C-SPAN II 1,688 55,500,000 (11/99)
The Disney Channel 1,255 53,170,000 (11/99)
Home Shopping Network 3,165 52,565,749 (11/99)
Home & Garden TV Network 2,040 51,300,000 (11/99)
Animal Planet 3,681 50,900,000 (11/99)
The Sci-Fi Channel 3,000 46,911,000 (11/99)
WGN 9,554 46,451,758 (11/99)
Bravo 1,535 44,850,000 (11/99)
Fox News Channel 2,200 41,800,000 (11/99)
Trinity Broadcasting Network 4,915 41,724,912 (11/99)
Country Music Television 7,167 41,363,000 (11/99)
FX 2,201 40,190,000 (11/99)
Food Network 1,652 39,676,877 (11/99)
MSNBC 2,000 39,650,000 (11/99)
Court TV 1,490 36,075,000 (11/99)
Turner Classic Movies 3,737 34,180,000 (11/99)
WGBH Comments, MM Docket No. 99-339 page 16
Pay Cable Services
In the arena of pay cable services, there are major players that dominate the
marketplace. However, even the largest pay cable services do not reach the proposed
threshold of 50% of MVPD households. The Commission gave no indication of its intent
to exclude these services from the rules, therefore it would be appropriate to apply the
proposed video description rules to at least the following pay cable networks based on
their relative position in the effected market.
10
Since there are some services not
reporting subscriber counts in the source cited, there may be additional services that
should be included.
Pay Cable Network Affiliates Subscribers Date
Home Box Office 9,300 26,659,000 (11/99)
Cinemax 5,900 14,820,000 (11/99)
Showtime 6,000 13,554,000 (11/99)
Encore 1,145 13,179,000 (11/99)
Movieplex 493 9,519,000 (11/99)
Starz! 877 9,160,000 (11/99)
The Movie Channel 3,249 7,987,000 (11/99)
News, Sports, Shopping Channels
The Commission will need to consider how its initial rules will be applied to popular
cable news and sports channels (e.g., CNN, CNBC, CSPAN, ESPN, MSNBC, and
others). Formal and informal surveys of people who are blind or visually impaired have
indicated that these types of programs are further down the list of priorities for
described programming. People who are blind or visually impaired have also noted
that home shopping channels are lower priorities for video description. Consumer
choice and opinions should be heeded when determining channels by content type.
MVPDs and Broadcast Stations
When trying to create an analogy between broadcast networks, affiliates and MVPDs,
fairness and common sense dictate that the rules should apply to any cable system or
other type of MVPD operating in those same DMAs. If the range of DMAs is expanded
over the years (for example, to the top 50 or 100 or all 210), then comparable MVPDs
must also be included in the expansion.
These MVPDs will need to adjust or upgrade their networks so that the descriptions of
described video programming can be passed from their program providers to their
network distribution centers to their cable or other type of head-ends to their customers
in these DMAs. They will also need to notify the group of affected nonbroadcast
program providers which are carried by their system of the requirement for provision
of a minimum number of hours of described prime-time and/or children's programs.
10 Cablevision Magazine Online, February 2000: http://www.cvmag.com/database/
WGBH Comments, MM Docket No. 99-339 page 17
The Notice doesn't raise the further question of the means to be used for counting these
50 hours/quarter. The count of described programs should not include the re-broadcast
or re-transmission of previously distributed described programming. That is,
these should be 50 new hours of described programming each quarter and not, for
example, 25 hours each transmitted twice. Or, for example, 50 hours which consist of 25
newly available described hours and 25 hours of described programming which were
distributed in the previous quarters. In addition, when examining the compliance by
MVPDs, the described programming provided by local broadcast stations and carried
by MVPDs and their local operators should not be counted as part of their quarterly
commitments.
Noncommercial Stations
The Notice's ¶25 makes reference to the exclusion of noncommercial stations from this
rulemaking procedure at this time for two reasons: the financial burdens they face due
to DTV conversion and other matters and the good record they already have in
providing described programming. As a division of a public broadcasting station, this
commenter thanks the Commission for its special consideration of public broadcasting
but reiterates the reasons detailed above for the inclusion of PBS and its top member
stations at this time. First, proper broadcast and cable carriage and delivery of
described programming from noncommercial broadcasters to consumers must be
enshrined in the Commission's rules. And second, though PBS member stations will
have no problem meeting a threshold of 50 hours per quarter now and in the next few
years, if the Commission agrees to delineate a schedule for additional hours over the
coming years, the publicly funded television network should be as accessible as the
private, commercial ones. A third point that can be added here is that there is a distinct
need for clear directions from the Commission as to the place for video description in
the digital environment. Public broadcasters are among the many in the television
industry that need guidance as to how their digital infrastructure should be designed
and built in order to anticipate eventual requirements for carriage and delivery of
described programming.
Number of SAP-equipped Stations
In ¶26 of the Notice, the Commission seeks comment about the number of broadcasters
and MVPDs that are SAP-equipped. We have made similar inquiries as to the size of
the SAP-equipped population of commercial stations and cable operators and look
forward to the results of the member survey referred to in the request for extension filed
by National Association of Broadcasters. The number of SAP-equipped PBS member
stations has risen to 169 since our last report, including PTV stations in 32 of the top 33
DMAs. This represents coverage of nearly 85% of U.S. TV households.
Cost of Producing Descriptions
The Commission also seeks comment on the costs of "describing programming,
including more information on the costs relative to the production budgets of
WGBH Comments, MM Docket No. 99-339 page 1
[This electronic version of WGBH's comments is being posted without an appendix
consisting of a three-page legal memo unavailable in electronic form. That appendix is
available attached to the scanned version of WGBH's comments, also posted on the FCC
website.]
)
In the Matter of ) MM Docket No. 99-339
)
Implementation of )
Video Description of )
Video Programming )
)
COMMENTS OF
THE WGBH EDUCATIONAL FOUNDATION
MEDIA ACCESS DIVISION
REGARDING
NOTICE OF PROPOSED RULEMAKING
ON VIDEO DESCRIPTION
February 23, 2000
Introduction
The WGBH Educational Foundation and its Media Access division are pleased to be
able to make the following comments regarding the Federal Communications
Commission's Notice of Proposed Rulemaking in the Matter of Implementation of
Video Description of Video Programming, MM Docket No. 99-339 (the "Notice"). The
Federal Communications Commission ("the Commission") has crafted a pragmatic and
fair proposal which will serve as the basis for a comprehensive public interest
proceeding that will finally extend access to our nation's most pervasive and influential
medium to a population long ignored by the television industry.
The Commission's decision to base much of its Notice on the precedent set by previous
closed-captioning requirements is a rational next step under the provisions of the
Telecommunications Act of 1996. Producers, distributors and others in the television
field have now comfortably accommodated the closed-captioning requirements and
WGBH Comments, MM Docket No. 99-339 page 2
have accepted not only the mandates but also the opportunities presented by a service
useful to many more people than the originally intended population. We believe the
same will hold true for video description, that the television field will come not only to
accept the importance of video description to people who are blind or visually
impaired, but will come to embrace the service and its intrinsic technologies and
techniques for a myriad of other uses and additional consumers.
Background
The WGBH Educational Foundation is one of the country's leading public broadcasters
and has long considered one of its central missions to be increasing access to media for
people with disabilities. In 1971, WGBH established The Caption Center, the world's
first captioning agency, to produce captions for TV programs so that deaf and hard-of-hearing
viewers could gain equal access to those programs.
In 1990, WGBH launched Descriptive Video Service® (DVS®). DVS is a free national
service, established to provide access to TV programs, home videos and theatrical motion
pictures for blind and visually impaired people. Prior to 1990, in the early development
stage of DVS, WGBH worked with The Metropolitan Washington Ear, Inc. which had been
providing live audio-description of stage performances since 1981.
DVS has described more than 2,000 PBS programs including Mystery!, Nature, Arthur,
Masterpiece Theatre, The American Experience and more than 80 films for the Turner Classic
Movies cable channel including Casablanca, Citizen Kane, National Velvet and King Kong. The
DVS narration is available on the SAP channel which allows sighted viewers to turn off the
description. Secondary Audio Program reception and playback is a standard feature on
most television sets and VCRs built since 1990. DVS also provides more than 185 openly
described home videos including Schindler's List, Toy Story, The Sound of Music, Unforgiven,
Singing in the Rain and Forrest Gump through funding by the U.S. Department of Education
and arrangements with most of the major Hollywood studios.
In 1993, in partnership with the Corporation for Public Broadcasting, the CPB/WGBH
National Center for Accessible Media (NCAM) was established at WGBH as an research
and development facility designed to extend the Boston public television station's previous
media access efforts into new media and to further the uses of captioning and descriptive
video in the home, classroom, workplace, and community.
Major support for video description comes from the U.S. Department of Education. DVS
also raises funds from foundations, corporations and individuals.
Phase-in and Application to Distributors
In ¶19 of the Notice, the Commission proposes to adopt limited rules to phase video
description into the marketplace, with applicability to the largest video programming
distributors and their prime time and/or children's programming. We agree with the
WGBH Comments, MM Docket No. 99-339 page 3
Commission that these limitations will not be economically burdensome and will
ensure the widest availability of video description to audiences that are most likely to
benefit from it.
We address the specifics of the phase-in amounts and period and designation of
appropriate distributors below, but would like to first suggest that an extended
schedule for additional amounts of programming, next-step timelines and designation
of further distributors be part of the Commission's rulemaking. As in the Closed
Captioning Report & Order
1
, a multi-year schedule for implementation not only serves
the needs and expectations of consumers but also allows distributors to plan for the
future. As it states in ¶21 ("We expect to increase the amount of required described
programming over time…"), the Commission did not intend that a rule which required
only four hours per week or 50 hours per quarter was going to be the final or sole action
it takes to address the needs of people who are blind or visually impaired. If the
Commission, through this or subsequent proceedings, is intending to increase the
amount and distribution of programming accessible to people who are blind or visually
impaired, this is the time to set out such a schedule. Such plans for the mid- and long-term
future should also be explicit about the transition to digital television as well as
expansion to additional geographical markets.
Covered Broadcast and Cable Networks
In ¶20 of the Notice, the Commission proposes to apply its rules to "broadcasters
affiliated with ABC, CBS, Fox, and NBC in Nielsen's top 25 Designated Market Areas
(DMAs), and larger MVPDs…"
MVPDs, as defined in ¶24 of the Notice, are to include "cable operators, direct broadcast
satellite (DBS operators, home satellite dish (HSD) operators, open video system (OVS)
operators, satellite master antenna (SMATV) operators, and wireless cable operators
using channels in the multichannel, multipoint distribution service (MMDS). We agree
with the Commission's assertion that these MVPDs are "increasingly the primary source
of video programming for most Americans" and that "most of the distribution
technologies are capable of transmitting audio" in support of video description.
We support the Commission's proposed rules requiring the larger MVPDs to carry the
described programming of the affected broadcasters and, in principle, of nonbroadcast
networks that reach 50% or more of MVPD households.
UPN, WB, PBS
However, for the reasons discussed below ("Distributors to be Covered"), we support
the expansion of the list of broadcast networks to include UPN, WB and PBS; expansion
of the initial list of effected broadcasters to include the top 33 DMAs; and expansion of
1
FCC 97-279
WGBH Comments, MM Docket No. 99-339 page 4
these rules to nonbroadcast networks reaching more than 50% of their targeted MVPD
market.
The additional commercial broadcast networks (UPN and WB) have demonstrated their
strength in the marketplace through a full slate of original programs, a large group of
affiliated stations and parent corporations with ready access to highly desirable
programming and sufficient financial resources to assure that no economic burden will
befall them if included in this proceeding.
A different situation pertains to PBS, where the first described programming appeared
and where the great majority of described programming appears today. While PBS can
easily meet a threshold of 50 hours per quarter and could also meet any next-step
threshold as may be indicated for the next few years, funding vagaries and changes in
focus or management should not permit this excellent record to falter. As the described
programming threshold rises (through an extended roll-out schedule such as that
suggested below), PBS should be expected to meet those rising levels along with their
commercial counterparts.
While the Commission recognizes that PBS stations are feeling the financial pressures of
the transition to digital TV, it should be noted that the description of PBS programming
today is almost 100% funded by U.S. Department of Education grants and a large
number of PBS member stations are already SAP-equipped. Since the cost of many if
not most noncommercial stations' transition to DTV will be taxpayer-financed, it is
perhaps even more incumbent upon these stations to assure that their programming is
accessible to all viewers. Additional resources exist to assist PBS member stations in
their DTV transition, especially regarding the closed captioning and video description
technology needed. Both the Department of Commerce's National Telecommunications
and Information Administration and the Corporation for Public Broadcasting are
helping ease these burdens to such an extent that PBS stations should be able to meet
FCC video description requirements.
In addition, when rules governing cable and satellite carriage of the description signal
in today's analog and tomorrow's digital television systems are written, those rules
should insure that the descriptions embedded in PBS programming will be protected
and delivered to consumers intact and without disruption along with those delivered
by the commercial broadcast networks listed above.
In fact, all program video descriptions, whether or not produced under the mandate of
any Commission ruling, should be guaranteed of proper delivery at all times, whether
broadcast, cablecast, satellite-fed or otherwise delivered to the home. This principle has
already been embodied in closed-captioning regulations; the technology exists to assure
proper delivery at all times.
WGBH Comments, MM Docket No. 99-339 page 5
Designated Market Areas
Also in ¶20, the Commission proposes that its rules initially cover Nielsen's top 25
Designated Market Areas (DMAs). As we outline below in our discussion of "larger
MVPDs" and parallels to broadcast markets, we feel this should be expanded to the top
33 DMAs.
While a designation of the top 25 (or 33) DMAs may be a reasonable starting point, the
Commission should also determine a schedule for coverage of all 210 Designated
Market Areas (DMAs) over the coming four years. A reasonable roll-out of additional
broadcast and nonbroadcast markets would include the top 50 markets by the end of
the second year, the top 100 by the end of year three and all 210 markets by the end of
year four.
Based on the substantial experience of PBS stations, this should not represent an undue
burden to the affiliated or member stations since the necessary upgrade equipment is
not costly and the costs to describe the programming will likely be born by the
networks and their program suppliers, not by the local stations. In this suggested
seven-to-eight-year timespan, many stations will be upgrading to digital transmission
(with its inherent capacity to deliver multiple ancillary audio tracks); these upgraded
stations should be required to deliver described programming as well and therefore
need to know now that there will be such an expectation.
There are many affiliated broadcast stations outside the top 25 markets that are already
equipped with SAP equipment. Since these stations will have available to them
described programming from their network supplier under proposed Commission
rules, they should be required to pass those descriptions to their viewers and to their
local cable carriers. Such a no-cost pass-through is common sense and should be
accomplishable at little to no cost to these additional stations.
Amount of Described Programming
The proposed benchmark for the amount of described programming is stated in the
Notice (¶20) as, "a minimum of 50 hours per calendar quarter (roughly four hours per
week) of described prime time and/or children's programming." A footnote in that
section indicates that this amount was derived from information provided by NCAM
and by the Movie Access Coalition ("the Coalition"), a group of leaders of organizations
dedicated to issues of concern to people who are blind or visually impaired. We remain
convinced that this is an appropriate and achievable amount of described
programming, for the first year of a mandate. However, it is essential that as the
Commission considers its rulemaking, it take this opportunity to lay out the plans for
subsequent years.
The proposed schedule previously presented by the Coalition was a carefully
considered and reasonable approach to a phase-in period over a number of years and
remains a schedule worth including in rules emerging out of this, and not future,
WGBH Comments, MM Docket No. 99-339 page 6
rulemaking procedures. The Coalition's proposal regarding prime time programming
states:
Prime time
It took approximately eight years from the time of the first closed-captioned
broadcast until all prime-time commercial network television programming was
closed-captioned. In addition, by the time the Commission announced its captioning
mandates, the major networks had already achieved a level of 80% or more of
captioned programming.
It would therefore be a modest proposal to require video description of the prime-time
programming […] to be phased in over a seven-year period. At the end of the
first year of a video description mandate, distributors would be required to have at
least four hours per week of described prime time programming. An additional
three hours per week should be added each year for six years until all 22 hours of
primetime (excluding live news broadcasts) are described.
For the area of children's programming, the Coalition's proposal is also reasonable for
the initial years of an FCC rule:
Children's Programming
In addition to primetime programs, the Coalition asserted that children's
programming should carry a very high priority for description. This priority is
consistent with recent Congressional and Commission policy statements in the field
of children's television
2
. Therefore it is appropriate that within two years,
distributors as defined above should provide three hours per week of described
educational children's programming.
Finally, as regards other programming, not included above, the Coalition pragmatically
states:
Additional Programming
Once the infrastructure for video description is fully functional and the value of the
service is appreciated, we anticipate that a strong demand for description of non-prime
time programs will develop as well. We recommend that the Commission
defer for two to three years a determination as to what other categories of
programming should bear the highest priorities for description. After the initial two-to-
three-year period, as description services are more established and greater
audience feedback is available, it will be more practical to make priority choices. The
2
Children's Television Report and Policy Statement, 50 FCC 2d 1 (1974), aff'd Action for Children's
Television v. FCC, 564 F.2d 458 (D.C. Cir 1977); Policies and Rules Concerning Children's Television
Programming, FCC 96-335, 3 CR 1385 (1996).
WGBH Comments, MM Docket No. 99-339 page 7
communications field is changing so rapidly that at this time we do not exempt any
classification from being described. … In addition, sports and news were given a
lower priority by the Coalition, with the exception of special events such as the
inauguration of the President and the Olympics.
We have heard well-reasoned and strong arguments within the community of people
who are blind or visually impaired that the requirements for described prime time
programming and children's programming be clearly and separately delineated with
separate schedules as noted above. This requirement would of course be different for
the covered nonbroadcast networks that program exclusively for children (e.g., Disney,
Nickelodeon, Fox Family, etc.). In these cases, the children's programming
requirements would simply be added to the prime-time requirements.
Start-up Date
Paragraph 20 of the Notice proposes that, "broadcasters and MVPDs begin providing
the required described programming no later than 18 months after the effective date of
our rules."
This phase-in schedule is intended to allow program producers and distributors as well
as video description agencies time to prepare their technology, train staffs and ready
their distribution chain for assured delivery of described programs to consumers. Our
research into the technical infrastructure of programming networks and projections of
our own production capacity argue that a start date as soon as 12 months after the
effective date of rules would allow ample time to meet the requirements. Certainly no
more than 18 months would be needed, nor should people who are blind or visually
impaired be asked to wait any longer than that for a service that has long been out of
the experimental stage.
Digital Technology
In ¶22, the Commission raises the question of digital technology and its potential effect
on the proposed rules. We agree with the Commission's following statement from ¶22
that waiting for full-scale roll-out of digital television before adopting video description
requirements would be unwise, with the stated need for accessible programming being
immediate:
"Given that the need for video description exists now and that the transition to
digital will not occur overnight, however, we do not wish to wait for the
transition to be complete before adopting video description requirements."
Though the Commission states its intention to, "extend our video description
requirements to digital broadcasters in the future," ¶22 goes on to explain that, "We are
inclined not to adopt a specific timetable to apply to digital broadcasters in the Report
and Order arising out of this Notice, but rather to address such specifics in a future
proceeding."
WGBH Comments, MM Docket No. 99-339 page 8
NCAM feels strongly that technical and programmatic requirements for DTV
broadcasting and cablecasting are needed now while these technologies are still
developing, to assure that video description is considered an inherent component of
DTV. Right now as these comments are being written, standards committees continue
to meet, program providers continue to craft digital program schedules and equipment
manufacturers are trying to decide on feature sets for their DTV receivers and set-top
boxes. Without a clear and immediate signal from the Commission that video
description will be required in the digital environment, perhaps not in 12-18 months but
soon thereafter, decisions will be made in each of the above sectors that could operate to
the detriment of video description.
One example of the kind of problems we anticipate in the future is the recent discovery
that no menu item was designated for video description in the on-screen menu of a
particular digital set-top box. While video described movies from the Turner Classic
Movie channel are being provided, this particular digital delivery system neglected to
recognize the availability of the video descriptions. The solution is an almost totally
inaccessible workaround – if the user selects "Spanish" during a described movie, the
video descriptions will be heard. Of course, if this option is selected, all the on-screen
menus (which are already inaccessible to blind consumers) turn into Spanish as well.
With a clear signal from the Commission that video description for DTV is imminent,
and with explicit schedules published, the links in the program production and delivery
chain will begin to design their technology to readily accommodate video description
when fully implemented in DTV.
The Commission also asks for comment on "what technical issues are raised by the
provision of video description by digital broadcasters and on how the conversion to
digital affects the costs associated with the provision of video description." Some of
these issues continue to be discussed in the various production, routing transmission,
and reception working groups within the ATSC, SMPTE, CEA and elsewhere. These
discussions have been ongoing for at least five years and are likely to continue for
another five years if the Commission does not "light a fire" under these groups. The
work of these groups has been productive and fair to all interests but lag far behind the
actual availability of DTV broadcasts.
It is known at this time however that certain cost-savings are likely as the conversion to
digital nears completion. The ATSC standard allows the provision of ancillary audio
without the need for a separate SAP-like channel to the home from the broadcaster or
cablecaster. Therefore, SAP exciters for audio subcarriers will no longer be needed at
the transmission sites. Routing of extra audio channels within a production or
distribution facility will no longer be reliant upon extra wires and switchers for third or
fourth audio channels in plants that only have the capacity for two or three audio
channels. All audio (and video and ancillary data) will be part of the same digital signal
WGBH Comments, MM Docket No. 99-339 page 9
and while data formats are still being argued over, the resolution to these questions are
based in software, not hardware.
The cost of the provision of video description is not likely to be seriously affected by the
conversion to digital. Video description will continue to be a relatively labor-intensive
process involving scripting and voicing well-timed pieces of narrative. Embedding
these bits of narrative in the digital signal will require the same industry tools used for
other digital audio production and will not add any more complexity or expense than
the existing overall digital audio production process.
In addition, since much of the early described digital programming will consist of
upconverted analog programming, a simple transfer and encoding of the analog video
descriptions will be possible and won't require an entirely new video description track.
Entities to Describe Programming
In ¶23 of the Notice, the Commission proposes to, "hold programming distributors, as
opposed to producers, responsible for compliance with our video description rules."
This proposal, and the subsequent acknowledgement that, "distributors may not
actually describe the programming," appropriately recognizes the realities of the nature
of the video production and distribution process. The Commission's existing oversight
of the distribution process reasons that distributors are the best party to be responsible
for compliance with video description requirements. It has certainly been an effective
means of instituting the closed-captioning requirements now in their third year.
Types of Distributors (MVPDs)
The Commission rightly argues in ¶24 that fairness dictates that all program distribution types
be equally responsible for provision of described programming. As the use of non-broadcast,
non-cable distribution grows, the newer entrants to this filed should not have the competitive
advantage of automatic exemption from video description or captioning rules. Provisions for
"undue burden" exceptions will be available to any distributor that can make such a case so
that video description requirements will not be considered a barrier to entry into the
distribution marketplace.
The Commission is attempting to make forward-thinking rules in today's rapidly changing
television world, rules that need to be relevant 10 or 20 years from now. It's possible that in
just a few short years a means of distribution that may be a minority player today could easily
emerge as the preferred customer choice. People who are blind or visually impaired should be
offered these competitive consumer choices and know that video description will be equally
available on all of them.
Though the specific means of delivering ancillary audio channels may be different for
broadcasters or home satellite dish providers or others, the technological means exist for
successful transmission and reception of described programming for each of the distribution
means indicated in the Notice and under the jurisdiction of the Commission:
WGBH Comments, MM Docket No. 99-339 page 10
"television broadcast stations, cable operators, direct broadcast satellite (DBS) operators,
home satellite dish (HSD) providers, open video system (OVS) operators, satellite
master antenna television (SMATV) operators, and wireless cable operators using
channels in the multichannel multipoint distribution service (MMDS)."
Distributors to be Covered
In ¶25 of the Notice, the Commission restates its proposal to initially only require, "the
affiliates of the four largest broadcast networks (ABC, CBS, Fox, and NBC) in the top 25
DMAs" to provide described programming.
In our comments above, "Covered Broadcast and Cable Networks," we argue for the
expansion of this list to the top 33 DMAs, that affiliates or member stations of PBS, WB
and UPN networks also be covered in this first phase of the rules and that all SAP-equipped
stations be required to pass through to the consumer the video descriptions of
programming they air.
The Notice appropriately protects stations with legitimate economic concerns:
distributors that believe such requirements pose an undue burden will have ample
opportunity to make such a case before the Commission.
Larger MVPDs
In an effort to further define a reasonable roll-out of described programming equally
applied to broadcasters and other larger MVPD distributors, we would begin with a
definition of "larger MVPDs." We feel these should be defined as those MVPDs which
do not qualify as "small businesses" under the Small Business Administration,
Commission rules and Telecommunications Act definitions clearly spelled out in
Appendix A of the Notice.
3
The following table, taken from the Commission's recent "Sixth Annual Assessment of
the Status of Competition in Markets for the Delivery of Video Programming"
4
illustrates the current reach of MVPDs.
3
FCC 99-339, Appendix A, pp. 18-22
4
FCC 99-418, Released January 14, 2000
WGBH Comments, MM Docket No. 99-339 page 11
Sixth Competition Report, Appendix C, Table C-1
June 99 Total % of TV Households % of MVPD Total
Total TV Households 99,400,000
MVPD Households 80,882,411 81.37
Cable Subscribers 66,690,000 67.09 82.45
MMDS Subscribers 821,000 8.26 1.02
SMATV Subscribers 1,450,000 1.46 1.79
HSD Subscribers 1,783,411 1.79 2.20
DBS Subscribers 10,078,000 10.14 12.46
OVS Subscribers 60,000 .06 .07
VDT Subscribers 0 0 0
Since the overwhelming majority of MVPD households remain cable households (82%),
and since the large majority of program services carried by the other MVPDs remain
broadcast signals or cable program services, our main focus here remains on broadcast
and cable. However, we would expect that as other MVPDs gain market share, the same
rules for description would apply.
In the case of DBS, where there is a quickly expanding subscriber base dominated by
two major players, we feel the Commission's rules on video description should apply
immediately, particularly since so many DBS channels consist of carriage of the effected
broadcast and nonbroadcast networks.
Cable System Operators
To determine the list of "larger MVPDs" that will be effected by the proposed rules, it is
useful to look at the existing criteria used to determine "small" MVPDs.
We suggest that smaller MVPDs be defined as those serving fewer than 500,000
subscribers in the aggregate nationwide, an average of the figures defined by the
Commission's rate regulation rules (those "serving fewer than 400,000 subscribers
nationwide"
5
) and by the Commission's numbers stemming from the Communications
Act definition ("in the aggregate fewer than 1% of all subscribers in the United States"
6
,
or 617,000).
Under this definition, all systems run by cable operators serving more than 500,000
subscribers nationwide would be required to provide video description under the initial
rules.
5
Notice, p. 19.
6
Notice, p. 20.
WGBH Comments, MM Docket No. 99-339 page 12
According to recent figures from Cablevision Magazine
7
, MSOs of this size include the
Top 18 companies (see table below), reaching roughly 87% of total cable households:
7 Cablevision Online Database, February 2000: http://www.cvmag.com/database/
WGBH Comments, MM Docket No. 99-339 page 13
Rank MSO Subscribers Date
1 AT&T Broadband & Internet Services 11,818,721 (12/99)
2 Time Warner Cable 6,504,900 (12/99)
3 Comcast 5,387,659 (12/99)
4 Charter Communications 5,113,273 (11/99)
5 MediaOne 5,099,548 (12/99)
6 Adelphia Communications 4,643,188 (12/99)
7 Time Warner Entertainment-Advance/
Newhouse
4,500,000 (12/99)
8 Cox Communications 4,126,570 (12/99)
9 Cablevision Systems 3,437,377 (11/99)
10 Lenfest Group 1,104,255 (11/99)
11 AT&T Broadband/Time Warner 1,080,000 (12/99)
12 TCA Group 883,232 (12/99)
13 AT&T Broadband/Insight 750,000 (12/99)
14 Cable One 744,543 (12/99)
15 Mediacom 710,800 (11/99)
16 Bresnan Communications 648,300 (12/99)
17 Cablecomm 636,200 (12/99)
18 Multimedia Cablevision 508,849 (12/99)
57,697,415
or 87% of the
66,690,000
basic Cable
Subscribers
Broadcast Markets Affected By These Rules
The Commission should determine the number of broadcast DMAs initially affected by
these rules on a comparable scale. Since cable television penetration nationwide
averages 67% (two-thirds) of total television households, the minimum size of a covered
broadcast market should be 750,000 households (extrapolating from the 500,000 figure
for the definition of a small cable system). In order to provide equivalent coverage
under these rules, and based on current figures from the Television Bureau of
Advertising (TVBA)
8
, initially these rules should effect the Top 33 DMAs.
It is interesting to note that within this group of broadcast markets, PBS member
stations regularly provide video description via SAP broadcasts in all but one market,
and often have multiple stations offering description. The table below lists the top 33
DMAs:
8 TVBA online: http://www.tvb.org/tvfacts/householdmarket/appendix.html
WGBH Comments, MM Docket No. 99-339 page 14
Rank DMA TTH PBS station w/description via SAP
1 New York 6,812,540 WNET-13, WEDW-49
2 Los A ngeles 5,135,140 KCET-28
3 Chicago 3,164,150 WTTW-11, WYIN-56
4 Philadelphia 2,667,520 WHYY-12, WLVT-39
5 San Francisco-Oakland-San Jose 2,368,970 KQED-9
6 Boston 2,186,100 WGBH-2, WENH-11, WEKW-52
7 Dallas-Ft. Worth 1,959,680 KERA-13
8 Washington, DC 1,956,160 WETA-26, WFPT-62, WWPB-31
9 Detroit 1,846,950 WTVS-56
10 Atlanta 1,722,130 WPBA-30
11 Houston 1,665,550 KUHT-8
12 Seattle-Tacoma 1,548,200 KCTS-9
13 Cleveland 1,475,820 WVIZ-25, WEAQ-49
14 Tampa-St. Petersburg 1,463,090 WEDU-3, WUSF-16
15 Minneapolis-St. Paul 1,457,130 KTCA-2, WHWC-28
16 Miami-Ft. Lauderdale 1,418,940 WPBT-2
17 Phoenix 1,343,040 KAET-8
18 Denver 1,230,440 KRMA-6
19 Pittsburgh 1,136,230 WQED-13, WGPT-36, WNPB-24
20 Sacramento-Stockton-Modesto 1,131,300 KVIE-6
21 St. Louis 1,110,290 KETC-9
22 Orlando-Daytona Beach-Melbourne 1,072,150
23 Portland, OR 993,540 KOPB-10, KTVR-13
24 Baltimore 991,610 WMPB-67, WMPT-22
25 Indianapolis 955,800 WFYI-20, WTIU-30
26 San Diego 945,170 KPBS-15
27 Hartford-New Haven 909,930 WEDH-24, WEDN-53, WEDY-65
28 Charlotte 859,670 WTVI-42, WUNG-58
29 Raleigh-Durham 834,260 WUNC-4, WUNP-36
30 Nashville 811,870 WDCN-8
31 Milwaukee 809,040 WMVS-10
32 Cincinnati 805,990 WCET-48
33 Kansas City 802,290 KCPT-19
Nonbroadcast Networks
Since cable households remain the dominant share of the MVPD market, we feel it
would be appropriate to apply the Commission's proposed rule to those nonbroadcast
networks reaching at least 50 % of their targeted market (in the case of basic cable
networks, 33 million of approximately 67 million total subscribers).
The following table
9
from Cablevision Magazine would suggest at least the following
basic cable networks would be affected by the Commission's proposed rules. We note
that there are a number of major program services not included in this table, since their
9 Cablevision Magazine Online Database, February 2000: http://www.cvmag.com/database/
WGBH Comments, MM Docket No. 99-339 page 15
subscriber counts were not reported or were not available. We also note that there may
be exceptions granted to those program services primarily consisting of news, as we
discuss below.
Basic Cable Network Affiliates Subscribers Date
TBS Superstation 11,233 78,618,000 (11/99)
Discovery Channel 10,884 77,788,000 (11/99)
Cable News Network 11,137 77,410,000 (11/99)
ESPN 12,017 77,204,000 (11/99)
USA Network 12,500 77,181,000 (11/99)
TNT 10,579 77,142,000 (11/99)
Nickelodeon/Nick at Nite 11,788 76,304,000 (11/99)
C-SPAN 6,114 76,100,000 (11/99)
Fox Family Channel 13,750 75,791,000 (11/99)
A&E Network 11,436 75,692,000 (11/99)
TNN 14,382 75,538,820 (11/99)
Lifetime 11,467 75,349,000 (11/99)
The Weather Channel 6,500 74,304,000 (11/99)
MTV 8,927 73,294,000 (11/99)
Headline News 7,084 72,446,000 (11/99)
The Learning Channel 6,401 72,048,000 (11/99)
American Movie Classics 4,100 71,985,000 (11/99)
CNBC 4,300 71,036,000 (11/99)
ESPN2 5,663 65,437,000 (11/99)
QVC 6,427 65,386,000 (11/99)
VH1 6,088 63,666,000 (11/99)
The Cartoon Network 4,125 60,036,000 (11/99)
E! Entertainment Television 6,900 60,000,000 (11/99)
Comedy Central 2,300 59,300,000 (11/99)
The History Channel 3,266 57,615,000 (11/99)
Black Entertainment Television 2,622 57,000,000 (11/99)
C-SPAN II 1,688 55,500,000 (11/99)
The Disney Channel 1,255 53,170,000 (11/99)
Home Shopping Network 3,165 52,565,749 (11/99)
Home & Garden TV Network 2,040 51,300,000 (11/99)
Animal Planet 3,681 50,900,000 (11/99)
The Sci-Fi Channel 3,000 46,911,000 (11/99)
WGN 9,554 46,451,758 (11/99)
Bravo 1,535 44,850,000 (11/99)
Fox News Channel 2,200 41,800,000 (11/99)
Trinity Broadcasting Network 4,915 41,724,912 (11/99)
Country Music Television 7,167 41,363,000 (11/99)
FX 2,201 40,190,000 (11/99)
Food Network 1,652 39,676,877 (11/99)
MSNBC 2,000 39,650,000 (11/99)
Court TV 1,490 36,075,000 (11/99)
Turner Classic Movies 3,737 34,180,000 (11/99)
WGBH Comments, MM Docket No. 99-339 page 16
Pay Cable Services
In the arena of pay cable services, there are major players that dominate the
marketplace. However, even the largest pay cable services do not reach the proposed
threshold of 50% of MVPD households. The Commission gave no indication of its intent
to exclude these services from the rules, therefore it would be appropriate to apply the
proposed video description rules to at least the following pay cable networks based on
their relative position in the effected market.
10
Since there are some services not
reporting subscriber counts in the source cited, there may be additional services that
should be included.
Pay Cable Network Affiliates Subscribers Date
Home Box Office 9,300 26,659,000 (11/99)
Cinemax 5,900 14,820,000 (11/99)
Showtime 6,000 13,554,000 (11/99)
Encore 1,145 13,179,000 (11/99)
Movieplex 493 9,519,000 (11/99)
Starz! 877 9,160,000 (11/99)
The Movie Channel 3,249 7,987,000 (11/99)
News, Sports, Shopping Channels
The Commission will need to consider how its initial rules will be applied to popular
cable news and sports channels (e.g., CNN, CNBC, CSPAN, ESPN, MSNBC, and
others). Formal and informal surveys of people who are blind or visually impaired have
indicated that these types of programs are further down the list of priorities for
described programming. People who are blind or visually impaired have also noted
that home shopping channels are lower priorities for video description. Consumer
choice and opinions should be heeded when determining channels by content type.
MVPDs and Broadcast Stations
When trying to create an analogy between broadcast networks, affiliates and MVPDs,
fairness and common sense dictate that the rules should apply to any cable system or
other type of MVPD operating in those same DMAs. If the range of DMAs is expanded
over the years (for example, to the top 50 or 100 or all 210), then comparable MVPDs
must also be included in the expansion.
These MVPDs will need to adjust or upgrade their networks so that the descriptions of
described video programming can be passed from their program providers to their
network distribution centers to their cable or other type of head-ends to their customers
in these DMAs. They will also need to notify the group of affected nonbroadcast
program providers which are carried by their system of the requirement for provision
of a minimum number of hours of described prime-time and/or children's programs.
10 Cablevision Magazine Online, February 2000: http://www.cvmag.com/database/
WGBH Comments, MM Docket No. 99-339 page 17
The Notice doesn't raise the further question of the means to be used for counting these
50 hours/quarter. The count of described programs should not include the re-broadcast
or re-transmission of previously distributed described programming. That is,
these should be 50 new hours of described programming each quarter and not, for
example, 25 hours each transmitted twice. Or, for example, 50 hours which consist of 25
newly available described hours and 25 hours of described programming which were
distributed in the previous quarters. In addition, when examining the compliance by
MVPDs, the described programming provided by local broadcast stations and carried
by MVPDs and their local operators should not be counted as part of their quarterly
commitments.
Noncommercial Stations
The Notice's ¶25 makes reference to the exclusion of noncommercial stations from this
rulemaking procedure at this time for two reasons: the financial burdens they face due
to DTV conversion and other matters and the good record they already have in
providing described programming. As a division of a public broadcasting station, this
commenter thanks the Commission for its special consideration of public broadcasting
but reiterates the reasons detailed above for the inclusion of PBS and its top member
stations at this time. First, proper broadcast and cable carriage and delivery of
described programming from noncommercial broadcasters to consumers must be
enshrined in the Commission's rules. And second, though PBS member stations will
have no problem meeting a threshold of 50 hours per quarter now and in the next few
years, if the Commission agrees to delineate a schedule for additional hours over the
coming years, the publicly funded television network should be as accessible as the
private, commercial ones. A third point that can be added here is that there is a distinct
need for clear directions from the Commission as to the place for video description in
the digital environment. Public broadcasters are among the many in the television
industry that need guidance as to how their digital infrastructure should be designed
and built in order to anticipate eventual requirements for carriage and delivery of
described programming.
Number of SAP-equipped Stations
In ¶26 of the Notice, the Commission seeks comment about the number of broadcasters
and MVPDs that are SAP-equipped. We have made similar inquiries as to the size of
the SAP-equipped population of commercial stations and cable operators and look
forward to the results of the member survey referred to in the request for extension filed
by National Association of Broadcasters. The number of SAP-equipped PBS member
stations has risen to 169 since our last report, including PTV stations in 32 of the top 33
DMAs. This represents coverage of nearly 85% of U.S. TV households.
Cost of Producing Descriptions
The Commission also seeks comment on the costs of "describing programming,
including more information on the costs relative to the production budgets of
WGBH Comments, MM Docket No. 99-339 page 19
of-hearing viewers. If the experience of the largest programming distributors in the top
25 markets (or 33 as we have argued) indicates a scaling back is appropriate, then the
Commission can take such action to delay the next phase-in at that time.
Programming to be Described
The Notice's ¶29 requests comment on distributor flexibility regarding the type of
programming (prime time and/or children's or distributor's choice), establishment of
parameters to assure selection of programs that have significant audiences, adequacy of
suggested minimums, resources available to provide description, and audience
notification procedures. We have already commented on many of these issues above,
but would like to emphasize the following points and add the following suggestions.
While common sense and available program production funds would argue that the
highest rated, most popular and successful programs would be selected by distributors
and program providers to be the first made accessible to blind and visually impaired
people, the Commission is right to clearly specify prime time and children's programs.
What must be avoided are program selection decisions based on expediency, longer-than-
usual lead times and more generous production deadlines, all of which may lead
certain distributors to select programs not of interest or of immediate use to video
description users. For example, while live description of news or sports programs
could be less expensive to produce, blind and visually impaired people have clearly
stated that this type of programming is of far less interest or utility to them than
dramas, comedies, movies and narrative documentaries.
Start-up and Extended Phase-in Schedule
The proposal for an initial requirement of approximately four hours per week of newly
described programs is a modest, fair and achievable one. However, the Commission
should decide in this proceeding a schedule for increasing this number at a steady and
achievable rate to eventually provide a fully accessible prime-time schedule, a complete
schedule of children's programs and a consideration of other types and times of
programs. We refer to the schedule suggested by the Coalition which achieves such a
level of described programming within seven years.
Description Production Capacity
At present, experienced and professional organizations exist which describe television
programs, movies and live events; these organizations handle existing demand, often
with funding provided by the federal government. Like any business, these
organizations can and will grow to meet expanded demand, but cannot hire new staff,
rent new production space and expand production capacity until the demand is
apparent and tangible. It is therefore disingenuous for arguments to be made, in
opposition to the requirements proposed in the Notice, that description resources are
not available today. Upon establishment of rules which clearly indicate the production
demand to be met, the supply of services will assuredly be expanded by existing
agencies and new entrants anxious to participate in this newly opened marketplace.
WGBH Comments, MM Docket No. 99-339 page 20
The history of the captioning business proves this to be true, where at one time three or
four agencies handled 99% of the workload now hundreds of companies exist to meet
the national and local captioning requirements.
Audience Notification
Adequate and timely notification about programming available with descriptions is an
important issue raised in the Notice. Prior to air, in television guides, newspaper
listings and promotional advertisements, and in the starting minutes and during
programs, audiences will need to be made aware of the newly accessible programs.
Television program providers and distributors are very adept at reaching out to
audiences to promote new services. The Commission needn't be overly specific in
stating how such notifications be made, but its rules should clearly state that audiences
for video description should be well informed of availability of programs via both
traditional and innovative means; via avenues such as press and promotional activities,
on-air announcements, notification tones and tag lines that lead into programs.
Described PBS programs have long included such announcements in their press
materials, in program guides and in online information. Recently, a logo, tone and
announcement – "The following program has been described for visually impaired
audiences" – have been displayed at the top of many PBS programs. As a service
provider, WGBH's Descriptive Video Service maintains a toll-free 800 number,
publishes a program guide and provides schedules via e-mail and the Web
(www.wgbh.org/dvs) for the programs it describes. Similar techniques can be used by
other description agencies and by the program distributors themselves.
Spanish-language Ancillary Audio
While it is true that today's SAP-channel technology can only provide a single alternate
audio service at one time, the instances of conflict between video description and
Spanish-language tracks are so few as to be almost non-existent. The primary reason
for such a lack of conflict is that, except for an occasional sports event or series, the
commercial broadcast networks, and most cable networks, have aired virtually no
programming with Spanish tracks destined for the SAP channel in the entire history of
the SAP channel and the stereo television standard. As has been stated previously,
sports events are not the desired program types for people who are blind or visually
impaired. We have heard of no plans for any broadcast network to dramatically
increase their non-sports ancillary audio services for Spanish-speaking viewers, but we
do know of various solutions should such conflicts arise.
On rare occasions on PBS programs, video description has competed with an alternate
language for use of the SAP channel. The solution on these occasions has been for local
stations to air the program more than once, with each SAP service being made available for
at least one airing. This practice was followed for the Ken Burns Baseball documentary
where both a video description and a Spanish track was available. HBO has exploited the
SAP channel for alternate Spanish audio with growing frequency in recent years. HBO and
other cable networks often repeat their movies and other programming at various times, soWGBH Comments, MM Docket No. 99-339 page 21
alternating cablecasts of each SAP-carried audio service would avoid or minimize the rare
conflict. Addressable cable converter boxes would also allow nonbroadcast program
providers and MVPDs to target the particular ancillary audio service to those homes which
desire a choice of alternate language or video description.
The digital television standard will enable multiple ancillary or alternate audio channels so
that such conflicts will be non-existent once DTV becomes pervasive among consumers.
However, the eventual widespread availability of DTV and its numerous audio channels is
not a valid reason to suspend video description mandates for the years, if not decades,
before commonplace use of DTV is a reality. Simple solutions exist for the rare conflict,
and DTV is too distant in time and beyond the means of the average, sighted or blind
viewer, for such delays to be acceptable.
Copyright Issues
The Notice's ¶31 seeks comment on any possible conflict between the mandated
provision of video described programs and copyright law. In the more than ten years
that DVS has been describing television programs and movies for public and
commercial distributors for broadcast, cablecast and home video, not one such conflict
has arisen.
A mandate for description, like the mandate for captioning, does not imply or require a
copyright holder to give up any ownership rights. All captioning takes place under the
aegis and control of the program owner and no conflict has arisen even with the new
captioning requirements in place. Some people have raised the concern that description
could be considered a "derivative work;" even if it can be considered as such, that
(description) work can and will still be under the control and ownership of the
copyright holder, particularly if that owner is paying for the descriptions.
Based on WGBH's experience in providing thousands of public television and cable
program hours with video description and hundreds of described home videos from
numerous Hollywood studios, WGBH continues to have no difficulties with copyright
protection of the original rights holders. Copyright holders have been more than willing
to permit description to be added to their works since they continue to own the
copyright on the described version of the work and the description adds value to the
work.
If the Commission deems this issue to be of sufficient concern, it can require that any
video description provider first obtain permission from the copyright holder before
commencing any work. Since the description process requires that the program
provider supply a video copy of the program to be described, clearly the work is being
performed with the tacit and explicit permission of the owner of the work. Contractual
relationships can and have relieved any copyright concerns for both captioning and
description; we believe strongly that this issue is of no consequence to any eventual
rule.
WGBH Comments, MM Docket No. 99-339 page 22
Emergency Messages
In ¶32 of the Notice, the Commission raises an important lifeline issue regarding public
safety messages and emergency announcements. These are crucial questions that
should be solved through further inquiry and proposed solutions. The complexity and
effectiveness of adding signaling tones and triggering open descriptions or directing
people who are blind or visually impaired to turn to alternate media are not well-enough
known or studied to suggest rules within the context of this proceeding. We
recommend that the Commission take up this issue in a separate proceeding that
includes consumer input, reports and information from the Federal Emergency
Management Agency, from other FCC emergency messaging rules and from the parties
that have attempted to resolve these questions for deaf and hard-of-hearing people.
Waivers and Enforcement Procedures
The Notice's ¶33 raises the questions of enforcement of the rules, means of applying for
and offering waivers based on undue burden and institution of complaint procedures.
We agree that with the statement that, "factors relevant to a showing that compliance
with its [video description] rules would result in an undue burden are the nature and
cost of [describing] the programming, the impact on the operation of the petitioner, the
financial resources of the petitioner, and the type of operations of the petitioner." The
procedures for applying for a waiver, for receiving a hearing and for offering the public
a chance to comment are all reflected in the Closed Captioning rules: 47 C.F.R. § 79.1(f)
(procedures for waiver).
However, at 47 C.F.R. § 79.1(g), the procedures for enforcement constitute a significant
burden on consumers, particularly ones with limited or no vision. These procedures
read, in part:
(g) Complaint Procedures.
(1) No complaint concerning an alleged violation of the closed captioning
requirements of this section shall be filed with the Commission unless such
complaint is first sent to the video programming distributor responsible for
delivery and exhibition of the video programming. A complaint must be in
writing, must state with specificity the alleged Commission rule violated and
must include some evidence of the alleged rule violation. In the case of an
alleged violation by a television broadcast station or other programming for
which the video programming distributor is exempt from closed captioning
responsibility pursuant to paragraph (e)(9) of this section, the complaint shall be
sent directly to the station or owner of the programming. A video programming
distributor receiving a complaint regarding such programming must forward the
complaint within seven days of receipt to the programmer or send written
instructions to the complainant on how to refile with the programmer.
WGBH Comments, MM Docket No. 99-339 page 23
The procedures go on to spell out a complicated schedule for notifications of the
programmer, return documentation to the complainant, and eventual appeal to the
Commission. These requirements are all onerous to a person with limited sight and
knowledge of the television industry. How would a blind person look up the address
of a TV station, locate its general manager and read the response from the station?
Would we require all communications back to the complainant be in accessible formats
(i.e., Braille, audio tape, electronic mail)?
With the establishment of the Commission's new Disability Rights Office of the
Consumer Information Bureau, a less onerous complaint and enforcement procedure
should be established. Perhaps use of phone interviews, even in an automated voice
response telephone system, could enable people who are blind or visually impaired to
register their complaints. These complaints could be immediately directed to the
allegedly offending distributor for their investigation and response rather than asking
the consumer to be the detective for failures to comply.
Enforcement of the rules should be timely and just. It will be in no one's interest to
allow a backlog of complaints to build up without resolution. In its closed captioning
enforcement rules, the Commission states:
(8) If the Commission finds that a violation has occurred, penalties may be
imposed, including a requirement that the video programming distributor
deliver video programming containing closed captioning in an amount
exceeding that specified in paragraph (b) of this section in a future time
period.
This approach would work equally as well for video description rule enforcement.
Delineation at this time of the specific type and size of penalties the Commission
contemplates for intentional violations would help assure compliance and would
reduce the number of complaints.
Statutory Authority
The Commission seeks comment in ¶34 of its Notice about its statutory authority to
adopt video description rules. We have made inquiries regarding this question to an
outside attorney at the communications law firm of Covington & Burling. The response
from their attorney, Harold Feld, has previously been submitted to the Commission for
the record and is available on the Commission's web site as an appendix to the report
submitted by the CPB/WGBH National Center for Accessible Media (NCAM) on
November 19, 1999.
In its analysis, Mr. Feld states,
"…we conclude that, although Congress did not require the Commission to hold
a video description rulemaking in the same fashion that it required the
Commission to hold a closed captioning rulemaking, the authority for such aWGBH Comments, MM Docket No. 99-339 page 24
rulemaking falls within the Commission's broad grant of authority based on the
Communications Act of 1934. Furthermore, such a rulemaking would further
Congress' clearly expressed intention that video services become accessible to the
visually impaired."
Rather than repeat the citations and arguments presented by Mr. Feld, we have
appended his legal brief to these comments. The precedents are strong for Commission
action on this matter as Mr. Feld concludes,
"For the reasons stated above, the Commission has jurisdiction and authority to
mandate video description through its rulemaking procedures."
Accessibility of Reception Equipment
A final issue not raised in the Notice is the problem people who are blind or visually
impaired have in navigating through the on-screen menus of most SAP-equipped
receivers and VCRs in order to turn on the SAP channel and hear video descriptions.
Only rarely does consumer reception equipment include such facile modes of accessing
the SAP channel as a physical button or switch or a dedicated, physically differentiated
button on the remote control. More often than not, the means of turning on the SAP
channel involve multiple inaccessible on-screen menus, leading one after another
deeper into the menu system, which is often poorly labeled even for sighted people. In
its authority to regulate consumer reception equipment, the Commission should
consider a requirement to assure ease-of-access to the video description service via any
one of many simple approaches. Such a decision would guarantee user-friendliness and
would complete the regulatory structure necessary to assure that people who are blind
or visually impaired truly will have access to television programming.
WGBH Comments, MM Docket No. 99-339 page 25
Summary
Since the Commission began considering how it could meet the mandate of the
Telecommunications Act of 1996 regarding service to blind and visually impaired people,
much has changed. Cost of technology and description services have dropped. Digital
television development has advanced, but lingering engineering and consumer acceptance
concerns make it likely that we will be relying on our analog system for quite a while,
possibly another decade or more.
At the same time, blind and visually impaired people continue to wait, not always
patiently, for access to our most pervasive and influential medium. The marketplace has
not, and will not serve this group which has been assured of its rights of equal access by
numerous legislative and societal acts over the past decade. Advances in technology have
paved the way for a more rapid, affordable, and reliable video description system which
can bring the benefits of today's analog and tomorrow's digital television systems to all
Americans. Through a fair and practical application of its authority, the Commission can
play its most essential role - that of assuring equal access to communications for all. A set
of video description rules, decided upon in a timely fashion, and which assure a robust and
growing service for today's and tomorrow's media, will be a great step toward
accomplishing this goal.
Respectfully submitted,
Larry Goldberg
Director, Media Access
WGBH Educational Foundation
125 Western Avenue
Boston, MA 02134
e-mail: NCAM@wgbh.org
617-300-3400 (voice)
617-300-1035 (Fax)
617-300-2489 (TTY)
February 22, 2000
Attachment: Memorandum from Harold Feld, Covington & Burling,
to Ray Joyce, August 31, 1998 – NOT AVAILABLE IN THIS VERSION.