The FCC's original Video Description Rules were vacated by the U.S. Court of Appeals for the District of Columbia on the grounds that the FCC did not have the authority to make those rules. On October 8, 2010, Congress passed the Twenty-First Century Communications and Video Accessibility Act of 2010 ("CVAA") which directed the FCC to reinstate the previous video description rules, with certain modifications within one year of the CVAA effective date. (See TV TechCheck from October 11, 2010).

On March 3, 2011, the FCC released a Notice of Proposed Rulemaking seeking comment on a number of issues regarding how to reinstate the 2000 Video Description rules. The R&O released last week reinstates these rules effective October 8, 2011 (as required under the CVAA). Broadcast stations and multichannel video programming distributors ("MVPDs") must be fully compliant with the new rules and begin sending Video Descriptions on July 1, 2012.

The R&O states that:

• Full-power affiliates of the top four national networks (ABC, CBS, Fox and NBC) located in the top 25 television markets must provide 50 hours per calendar quarter (approximately 4 hours/week) of video-described prime time and/or children's programming. The top 25 markets are as determined by Nielsen as of January 1, 2011 (i.e., the 2010-2011 designated market areas' (DMA) rankings).


• If a station is not currently an affiliate of one of the top four broadcast networks but becomes an affiliate in a top 25 market, that new affiliate station is required to provide video descriptions beginning no more than three months after their affiliation agreement is finalized.


• To count toward the 50 hours per calendar quarter requirement, the programming must not have been previously aired with video description, on that particular broadcast station, more than once. That is, only the first and second airing of the program can be counted.


• The Commission will consider only programming on a station's primary program stream when measuring the station's compliance with the "50 described hours" requirement, unless the station carries another top-four national broadcast network on another stream. In situations in which a broadcast station carries a different top-four network's programming on a secondary stream, the Commission will apply the rules in the same manner as if the network programming on that stream were carried by a separate station.


• MVPDs that operate systems with 50,000 or more subscribers must also provide 50-hours per- calendar quarter of video-described prime time and/or children's programming on each of the top five nonbroadcast networks (USA, the Disney Channel, TNT, Nickelodeon and TBS) that they carry on those systems. In addition the MVPDs must pass through the Video Descriptions in broadcast signals carried on their systems.


• Any broadcast station, regardless of its market size, affiliated or otherwise associated with any television network, must "pass through" video description when the network provides it, if the station has the technical capability necessary to do so, and that technical capability is not being used for another purpose related to the programming (e.g. second language).


• Similarly, any MVPD system, regardless of its number of subscribers, must "pass through" video description when a broadcast station or nonbroadcast network provides it, if it has the technical capability necessary to do so on the channel on which it distributes the broadcast station or nonbroadcast network programming and that technical capability is not being used for another purpose related to the programming. Any programming aired with description must always include description if re-aired on the same station or MVPD channel.


• The FCC did not adopt a definition for technical capability but stated that a station or MVPD may refrain from passing through description if it would be able to demonstrate, in the event of a complaint, that at the time of the failure to pass some description through, it was not technically capable of doing so (and could not become capable at minimal cost).


• DTV stations that are transmitting M/H services (mobile DTV) are required to begin transmitting Video Description on the programming carried on their mobile service as of October 8, 2013, to the extent that the programming is subject to the new rules (e.g. from one of the top four networks or top five nonbroadcast networks).

A copy of the R&O is available here on the FCC Web page.