Video Description Rules and Regulations

The 1996 Act required the Commission to report to Congress on appropriate methods and schedules for phasing video description into the marketplace and other technical and legal issues related to the widespread deployment of video description.⁽¹⁾ In our Video Accessibility Report to Congress, we reported on the current status and possible future of video description service but concluded that the record before us was insufficient to assess appropriate methods and schedules for phasing in video description.⁽²⁾ Thus, in the Notice on video competition, we requested information regarding video description that will permit us to provide Congress with additional findings. We specifically solicited data on: the number of broadcast television stations and MVPDs currently capable of transmitting and decoding a secondary audio programming ("SAP") signal and the costs of adding this capability; the cost of providing video description and possible funding mechanisms; whether the implementation of digital technologies will provide additional audio channels that will increase the feasibility of video description; specific methods and schedules for ensuring that video programming includes descriptions; technical and quality standards; any current efforts to coordinate new technology standard-setting and funding mechanisms; and other relevant legal and policy issues.⁽³⁾
Video description is an aural description of a program's key visual elements that is inserted during natural pauses in program dialogue.⁽⁴⁾ It generally describes actions that are not otherwise reflected in the dialogue, such as the movement of a person in a scene. Since consumers may find the additional narrative intrusive or distracting, programmers typically use technology designed to allow the viewer to choose whether or not to receive video description. The most widespread video description technology uses the SAP channel, a subcarrier that allows each video programming distributor to transmit a second soundtrack.⁽⁵⁾ Use of a SAP channel allows the viewer to choose between the primary soundtrack and an alternative soundtrack.⁽⁶⁾ Each SAP-equipped broadcast signal has only one SAP channel.
Video description using the SAP channel is only one of several methods that can be used to make video programming more accessible to persons with visual disabilities. Other methods include simultaneous transmission of the descriptive audio over a radio reading service⁽⁷⁾ and "open" video description, in which the descriptions are included in the primary soundtrack used by all viewers.⁽⁸⁾
WGBH reports that 144 PBS member stations have SAP capability, reaching more than 78% of American households,⁽⁹⁾ and that SAP-based audio services are available to 44% of all television households through SAP-equipped affiliates of at least one of the major commercial networks.⁽¹⁰⁾ WGBH reports that the cost of installing SAP capability for PBS stations which have added SAP capability ranges from $5000 to $25,000 depending on the size of the station.⁽¹¹⁾ RP reports that installation of SAP equipment would cost approximately $50,000 per broadcast station.⁽¹²⁾ RP also notes that cable operators would need to install equipment for each channel requiring SAP capability.⁽¹³⁾ NCTA notes that while many cable operators already carry SAP signals, SAP is being used to provide other services, including Spanish language audio.⁽¹⁴⁾ Cable operators that did not already have it would need to install SAP capable equipment at their headends in order to transmit the SAP channel to subscribers.⁽¹⁵⁾ WGBH estimates that the cost for MVPDs to add SAP capability ranges from $500 to $5,000.⁽¹⁶⁾ Any programmer providing video description would also have to have SAP capable equipment to deliver the video description to cable headends and other MVPDs.⁽¹⁷⁾
According to the National Center for Health Statistics, 8.6 million persons in the U.S. have visual disabilities.⁽¹⁸⁾ Video description makes video services more accessible to these persons and allows the people with visual disabilities to more fully participate in the social and cultural benefits offered by video programming.⁽¹⁹⁾ ACB estimates that as many as 500,000 children with visual disabilities under the age of 18 may benefit from improved access to video service.⁽²⁰⁾ Several commenters representing the people with visual disabilities assert that video description offers benefits beyond the visually disabled community, estimating that as many as 12 million people may benefit from video description, and that this figure may increase as the population ages.⁽²¹⁾ However, MPAA suggests that video description is of limited utility regardless of the number of persons with visual disabilities, and that some people with congenital blindness find video description to be a nuisance.⁽²²⁾ Other commenters dispute this assertion, arguing that there is no evidence to support it and, even if true, video description can simply be turned off.⁽²³⁾ RP argues that video description should not be subject to a cost-benefit analysis, asserting that such services are a civil right.⁽²⁴⁾
We previously reported that video description costs range from $1000 per program hour to $10,000 for a full length feature film.⁽²⁵⁾ NCTA states that the cost of video describing a full length feature film can range as high as $10,000.⁽²⁶⁾ MPAA cites Turner Classic Movies' estimate of $3,500 an hour, excluding the cost to synchronize and lay the video description onto the audio track, tape costs and edit room operator costs.⁽²⁷⁾ WGBH states that the cost of video description has dropped from $4,000 per hour to $3,400 per hour,⁽²⁸⁾ and that this cost amounts to as little as .26% of the budget of a single episode of a prime time program.⁽²⁹⁾ Other commenters report that they have been able to produce accessible programming using in-house resources and alternative technologies. For example, Kaleidoscope asserts that the rates previously cited by the Commission are overstated due to reliance on outside contractors, noting that it is able to hold the cost of description down by in-house production.⁽³⁰⁾ Kaleidoscope does not provide specific cost figures for video description noting that video description is incorporated into the production budget as part of the overall writing and editing figures, which it claims "do not amount to much more than a program without video description."⁽³¹⁾ NTN states that it routinely provides video description for between $1,000 and $1,200 an hour, a cost that NTN claims is likely to be reduced through the use of digital technology.⁽³²⁾ The services provided by Kaleidoscope and NTN, however, use "open" video description.⁽³³⁾
According to National Coalition, the market will not provide adequate incentives for video description, and increased availability of the service is dependent upon action by the Commission.⁽³⁴⁾ Similarly, WGBH notes that while SAP-capable television receivers are increasingly available, the market has failed to respond with increased availability of video description as promised by the programming industry.⁽³⁵⁾ According to WGBH, no commercial television programming has offered video description without public funding.⁽³⁶⁾ WGBH also asserts that there are currently sufficient video description resources in existence to begin a phase-in schedule.⁽³⁷⁾ RP asserts that video description represents a virtually untapped potential market for both video producers and equipment providers. RP claims that video description represents between $5 billion and $21 billion in potential revenue for the cable industry alone.⁽³⁸⁾
In the Video Accessibility Report, the Commission found that any schedule for expanding the use of video description depends, in part, on implementation of advanced digital television, which may make the distribution of additional audio channels feasible and facilitate implementation of video description.⁽³⁹⁾ Commenters recognize that, in the current analog environment, SAP channel capacity is a limited resource and video description must compete with other possible uses of the SAP channel.⁽⁴⁰⁾ The video programming industry notes that it has developed a profitable niche market by providing second language audio to serve the Spanish-speaking community.⁽⁴¹⁾ We previously concluded that funding will also affect any schedule for the widespread use of video description, as it appears that advertising support alone is unlikely to be sufficient to fund this service given the costs involved.⁽⁴²⁾ Funding remains a major concern. For example, MPAA notes that currently available sources of public funding for video description are becoming increasingly scarce.⁽⁴³⁾ Other commenters suggest that public funding should not be the criteria for additional Commission action, because such funding was only intended to "prime the pump" by demonstrating the viability of the service and allowing a market to develop.⁽⁴⁴⁾
With respect to specific methods and schedules for video description, National Coalition proposes a seven-year implementation schedule for video description of prime time and children's programming, comparing this phase in period to the eight years schedule for closed captioning of prime time television.⁽⁴⁵⁾ National Coalition places special emphasis on describing prime time and children's programming. Under this proposal, broadcasters would be required to provide at least four hours of prime time video description per week beginning in the fall of 1998,⁽⁴⁶⁾ and another three hours per week would be added each year until all 22 hours of prime time were described.⁽⁴⁷⁾ National Coalition further proposes that within two years television broadcasters be required to provide video description for the three hours per week of children's educational programming required by the children's educational television programming requirements.⁽⁴⁸⁾ National Coalition also recommends that the Commission defer establishing implementation schedules for other types of programming to allow for the development of video description resources and vendors. For instance, National Coalition recognizes the special demands of describing live events, including news and sports. National Coalition also recognizes that in some cases programming such as sporting events are simultaneously carried on radio which may function as an effective substitute for a video described audio track.⁽⁴⁹⁾ In developing video description requirements for programming other than prime time and children's programming, National Coalition recommends the Commission reserve sufficient regulatory flexibility to accommodate programming whose nature or financing does not lend itself to video description.⁽⁵⁰⁾ National Coalition also suggests that the Commission develop an undue burden exemption similar to that developed for closed captioning. It further recommends that the Commission require public safety announcements to include an aural tone to alert the blind to turn on a radio or use the SAP channel for an aural message.⁽⁵¹⁾
In the Video Accessibility Report, the Commission noted that copyright liability poses a significant hurdle to a widely applicable video description requirement.⁽⁵²⁾ NCTA and other video programming industry commenters continue to cite potential copyright issues as an obstacle to more widespread deployment of video description.⁽⁵³⁾ These commenters argue that video description requires the addition of original narration, thus creating a derivative work and copyright liability. Entities currently creating video description indicate that they have had no difficulty with copyright issues. WGBH, for example, claims that copyright holders have been quite willing to permit video description of their works because they continue to hold the copyright to the described version of the work, and the description adds value to the original work.⁽⁵⁴⁾ Kaleidoscope provides video description for originally produced material or material already in the public domain in order to avoid any potential copyright problems.⁽⁵⁵⁾ Kaleidoscope also suggests that if the Commission adopts mandatory video description requirements, copyright liability could be waived for a video programming provider if the provider could demonstrate that it had made good faith efforts to obtain the rights to video describe a particular product.⁽⁵⁶⁾
Based on the information received in response to this and earlier requests for information, it is certain that "closed" video description is feasible. The necessary technology exists, and, as noted by commenters, some video description is already being provided, both on cable and broadcast television.⁽⁵⁷⁾ Many televisions are equipped with SAP capability, and the number continues to increase. With respect to digital television, we note that the provision of video description is entirely consistent with our regulations regarding digital television. As we previously stated, the DTV standard can accommodate video description, even though there is no data capacity reserved exclusively for video description.⁽⁵⁸⁾ In that order, we found that the DTV standard provides a method of including video descriptions, and stated that, if, in the future, video description capability were to be required, we expect the Advanced Television Systems Committee ("ATSC") to consider appropriate changes to the ATSC DTV standard and that we would consider appropriate changes to our rules.⁽⁵⁹⁾ In the digital environment, video description will not have to compete with foreign language audio for use of one SAP channel.
On the other hand, the costs of providing video description are substantial. Video description can cost $3,400 per program hour.⁽⁶⁰⁾ In addition, each programming network must have SAP capable equipment in order to deliver the video description. MVPDs may need to add SAP capability to the headend equipment for each channel used to provide video description, which may cost from $500 to $5,000.⁽⁶¹⁾ A broadcaster wishing to produce programming that will have video description needs additional equipment. WGBH reports that for the public television stations which have added SAP capability, upgrading has cost between $5,000 and $25,000. The costs of providing video description are still quite high, significantly higher than those associated with closed captioning.
There is evidence that video description is a valuable addition to television programming for persons with visual disabilities and that it helps the viewer experience the totality of the programming. The research described in Who's Watching demonstrates that video description enables families to watch television together, and enhances their enjoyment. Continued public funding could foster the development of video description services to the point where widespread implementation of video description could become feasible, and could ultimately create a commercial market for video description independent of public funding. Closed captioning has been in existence longer than video description, and has had the benefit of a long history of government support, which has encouraged its growth and widespread implementation. The advances of the digital age, combined with continued federal funding, could allow the development and expansion of video description to occur more quickly than occurred in the case of closed captioning.
In response to Congress' request that we report on appropriate methods and schedules for phasing video descriptions into the marketplace,⁽⁶²⁾ any requirements for video description should begin with only the largest broadcast stations and programming networks that are better able to bear the costs involved. The appropriate timeframe for any requirements might take into account DTV penetration and availability. For example, a minimal amount of video description could be required to be provided by the larger broadcast stations in the larger markets, and by the larger video programming networks. In any event, any requirement should have an exemption for smaller broadcasters, MVPDs, and programming networks. With respect to Congress' request for a definition of programming for which video descriptions would apply,⁽⁶³⁾ we believe that priority should be given to programming where there is significant action not apparent to persons with visual disabilities. We note that National Coalition recommends beginning with prime time television and also emphasizes video description for children's educational programming.⁽⁶⁴⁾ In Who's Watching, survey results showed that dramas or mysteries, nature or science, news and information, comedies, and music programs or videos topped the lists of television programs that respondents would like to have described.⁽⁶⁵⁾ Whether funded through public sources or through a more direct regulatory requirement, a period of trial and experimentation would be beneficial so that more specific information would be available as to the types of programming that would most benefit from description, the costs of providing video descriptions, and other matters.

1. 47 U.S.C. § 613(f). Specifically, Section 713(f) of the Communications Act states that the Commission must "commence an inquiry to examine the use of video descriptions on video programming in order to ensure the accessibility of video programming to persons with visual impairments, and report to Congress on its findings. The Commission's report shall assess appropriate methods and schedules for phasing video descriptions into the marketplace, technical and quality standards for video descriptions, a definition of programming for which video descriptions would apply, and other technical and legal issues that the Commission deems appropriate."
2. Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Video Programming Accessibility, MM Docket No. 95-176, Report ("Video Accessibility Report"), 11 FCC Rcd 19214, 19270-19271 ¶¶ 138-142 (1996).
3. Notice, 12 FCC Rcd at 7844-7845, ¶¶ 21-23.
4. 47 U.S.C. § 613(g) (video description means the insertion of audio narrated descriptions of a television program's key visual elements into natural pauses between the program's dialogue).
5. Providing video description through the SAP channel is also referred to as "closed description." Jaclyn Packer and Corinne Kirchner, Who's Watching: A Profile of the Blind and Visually Impaired Audience for Television and Video ("Who's Watching"), American Foundation for the Blind, 1997, at vii. This study analyzes the needs and television viewing habits of persons with visual disabilities as well as their perceptions of television and video description. Who's Watching at v-vii.
6. Video Accessibility Report, 11 FCC Rcd at 19253-19254 ¶ 94.
7. ACB Comments Cover Letter.
8. Kaleidoscope Comments at 6; see also National Coalition Comments at 15. Kaleidoscope estimates that its current programming, interstitials and commercials are 88% fully accessible and 12% partially accessible. Kaleidoscope Comments at 5. RP urges that future hardware be designed with persons with visual disabilities in mind, suggesting that all menus should "talk" and all access buttons for other audio channels be "brailled" or otherwise touch identifiable. RP Reply Comments at 3.
9. WGBH Comments at 2; WGBH Reply Comments at 1.
10. WGBH Reply Comments at 1.
11. WGBH Comments at 2.
12. RP Comments at 7-8.
13. Id. at 8; see also NCTA Comments at 48 (cable operators must incur costs to add SAP capability).
14. NCTA Comments at 48.
15. Id.
16. WGBH Comments at 2.
17. NCTA Comments at 48.
18. Video Accessibility Report, 11 FCC Rcd at 19254 ¶ 96, citing National Center for Health Statistics, Current Estimates from the National Health Interview Survey, 1994, Series 10, No. 193, at 93, Table 62. Other estimates range between eight and 12 million persons. Id.
19. Who's Watching at 23.
20. ACB Comments at 3-4.
21. ACB Comments at 4 (persons with learning or cognitive disabilities may benefit from video description); RP Reply Comments at 2 (total number of potential beneficiaries approaches 30 million); Metropolitan Washington Ear Reply Comments at 4 (number of people with visual disabilities is closer to 12 million; millions more will benefit from video description, including relatives of the visually disabled, people learning English as a second language, and people with learning disabilities).
22. MPAA Comments at 7.
23. Metropolitan Washington Ear Reply Comments at 6; see also WGBH Reply Comments at 5. AFB also disputes the claim that video description is of limited utility, citing its own study of attitudes towards video description. See AFB Reply Comments at 2-3, citing Who's Watching at 23.
24. RP Comments at 2.
25. Video Accessibility Report, 11 FCC Rcd at 19258-19259 ¶¶ 106-109.
26. NCTA Comments at 47.
27. MPAA Comments at 3.
28. WGBH Comments at 2. See also RP Comments at 22 (cost of video description ranges from $3,000 to $5,000 per hour).
29. WGBH Comments at 3. WGBH maintains that this small increase should be borne by broadcasters in return for their use of the public airways. Id.
30. Kaleidoscope Comments at 6. NTN also maintains that estimates of the cost of video description have been dramatically overestimated. NTN Reply Comments at 1-2.
31. Kaleidoscope Comments at 5-6.
32. NTN Reply Comments at 1-2. NTN notes that it has achieved this rate as a profitable, commercial tax-paying entity.
33. Kaleidoscope Comments at 6; NTN Comments Attachment. Kaleidoscope also notes that "open" video description is significantly less complex and allows for additional savings in distribution.
34. Metropolitan Washington Ear Reply Comments at 4.
35. WGBH Reply Comments at 3.
36. Id.
37. Id. at 4.
38. RP Reply Comments at 2.
39. Video Accessibility Report, 11 FCC Rcd at 19270 ¶ 139.
40. See, e.g., AFB Reply Comments at 3; Metropolitan Washington Ear Reply Comments at 4-5; HBO Reply Comments at 2.
41. See, e.g., MPAA Comments at 3; HBO Reply Comments at 2.
42. Video Accessibility Report at 19270 ¶ 140. We also reported that the primary source of funding for video description has been grants administered by PBS, National Endowment for the Arts, National Science Foundation and especially the Department of Education ("DOE") At the time of the Video Accessibility Report, DOE allocated $1.5 million for video description, or about $0.19 per American with visual disability. Id. at 19259 ¶ 110.
43. MPAA Comments at 6. See also HBO Reply Comments at 7.
44. See, e.g., WGBH Comments at 3.
45. National Coalition Comments at 10-11.
46. Id. at 11.
47. Id.
48. Id. at 10-11. The children's educational programming requirements only apply to broadcast licensees. 47 C.F.R. § 73.661.
49. Id. at 11.
50. Id. at 12.
51. Id.
52. Video Accessibility Report, 11 FCC Rcd at 19270-71 ¶ 141.
53. NCTA Comments at 48; Lifetime Reply Comments at 7; MPAA Comments at 6-7. See also HBO Reply Comments at 6 (copyright liability posed by video description creates an additional expense that is difficult to predict and is largely ignored by advocates of video description).
54. WGBH Comments at 3; WGBH Reply Comments at 4-5. See also National Coalition Comments at 13; AFB Comments at 5 (the desire to obtain carriage will resolve copyright disputes if the Commission were to mandate video description).
55. Kaleidoscope Comments at 9.
56. Id.
57. See, e.g., MPAA Comments at 2; NCTA Comments at 47; WGBH Comments at 1.
58. Fourth Report and Order, 11 FCC Rcd at 17795 ¶ 58.
59. Id. The audio system of the DTV standard allows data to be specifically identified as an associated audio service for persons with visual disabilities. In addition, the DTV standard allows a separate complete audio service that includes video description. Id. 60. WGBH Comments at 2.
61. Id.
62. 47 U.S.C. § 613(f).
63. Id.
64. We note that some programming services, most notably smaller cable programming networks, have very limited viewership, even during prime time. We also note that the children's programming requirements only apply to broadcast licensees.
65. Who's Watching at 26.

last reviewed/updated on 3/7/2003

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