Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
) MM Docket No. 99-339
)
)
Implementation of Video Description )
of Video Programming )
To: The Commission
COMMENT OF THE NATIONAL TELEVISION
VIDEO ACCESS COALITION
Date: February 23, 2000
Donald J. Evans
DONELAN, CLEARY, WOOD &
MASER, P.C.
1100 New York Avenue, N.W
Suite 750
Washington, D.C. 20005-3934
Phone Number: (202) 371-9500TABLE OF CONTENTS
SUMMARY .............................................................................................. I
Introduction .............................................................................................. 1
Spanish Language..................................................................................................4
Set Aside Digital Space Now..................................................................................5
Who should comply ...............................................................................................5
Reruns ..................................................................................................................11
Quality Control and Enforcement ......................................................................12
Emergency Messages ...........................................................................................13
Spreading the Word.............................................................................................13
Accessible TV Equipment....................................................................................13
Copyright Issues ..................................................................................................15
FCC’S Authority to Mandate Description..........................................................16
CONCLUSION……………………………………………………………22i
SUMMARY
The Coalition is grateful that the FCC has recognized the needs of blind and low
vision people to independently access television. Description will increase the TV
audience by millions, including at least 12 million blind and visually impaired people, 2.8
million students with special learning disabilities, 3.1 million students for whom English
is a second language, plus family, friends and care givers who won't have to try to
describe, inadequately, what's on the screen.
The need for video description is immediate. Descriptions should be phased in
quickly beginning with our present analog system. Pervasive digital TV is perhaps 10
years away. Analog will be here for a while, and low vision people will likely be the last
to acquire digital sets.
We believe there will not be significant conflict between Spanish and described
programs. Certain programs could be aired twice, once with descriptions and once in
Spanish.
Initially the mandate should be expanded to include the top 35 markets to create a
more equitable geographic distribution. Unless undue burden can be shown, compliance
should be 100% after 4 years.
Beginning in year one, SAP-equipped stations outside the top 35 markets should
pass through all described programming available to them. At license renewal, TV
stations should report the status of their SAP equipment. The period before compliance
should be shortened to 1 year. Four hours a week is a reasonable beginning. The ratioii
should be 3 hours of prime time for adults to 1 hour of children's programming because,
while children’s programming is important, only 1 to 2 percent of low vision and blind
people are children.
For planning, broadcasters and description providers should know what to expect
in the coming years. We recommend a phased in approach resulting in all pre-recorded
prime time programming and three hours of children’s programming described within
seven years.
All program requirements should apply equally to analog and digital
transmissions, even if the broadcast entity is transmitting on both simultaneously.
Description should always accompany reruns whenever they are aired even if they are not
aired during prime time. Described reruns should not be used to fulfill requirements for
described programming.
Any entity defining itself as a network should meet the rules for networks,
including WB and PAX. Public TV stations should not, as a rule, be exempt. In
addition, larger MVPDs covered by the rules should be defined to include all DBS
providers and cable TV and other MVPDs which serve, when aggregated with affiliated
companies, more than 500,000 subscribers.
Producers will pass description costs to distributors as part of the cost of doing
business -- a tiny fraction of total production costs. Economies of scale and competition
will quickly reduce the costs of description. Quality control is of great concern. If
descriptions have long silences or are inadequate, frustration will ensue. All complaints
should be filed with the Disability Rights Office. Failure to comply or improve should be
subject to fines or negative consideration at license renewal. Emergency messagesiii
silently visually scrolled must be addressed, but the issue is more complicated than
description for programs. More study is needed.
A distinctive aural and visual logo should be aired before every described
program. People must be able to access description channels with accessible remote
equipment, including a push button for description as many remotes now have for closed
captioning. Remotes must be tactile. Visual screen displays won't do it.
No significant copyright issues are raised by the proposal since the video
marketplace will generate incentives for program owners to produce described versions
of their shows. No one would alter their copyrighted works without their permission;
distribution networks will simply demand that they themselves do so as a condition of
buying their product.
The FCC has full authority to mandate video description stemming not only from
its plenary mandate to regulate telecommunications in the public interest, but also from
explicit Congressional declarations that video accessibility for the visually impaired
should be ensured, and prior Commission determinations that, even in the absence of
express Congressional mandates, the policy of the United States in favor of making
telecommunications accessible justifies regulatory action.Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
) MM Docket No. 99-339
)
)
Implementation of Video Description )
of Video Programming )
INTRODUCTION
The Coalition is grateful that the FCC has recognized the needs of blind and low
vision people to independently access television by issuing a Notice of Proposed Rule
Making to phase in video description for certain classifications of TV programs.
TV is a very important and ubiquitous medium in our society. It is a primary
source of entertainment and educational enrichment from which blind and low vision
people should not be cut off. Lack of independent access to television marginalizes
visually impaired people making it more difficult to fully participate in social interactions
with family, friends and coworkers.
Although video description for 10 years has been available for some PBS
programs and cable channels, today a fraction of 1% of television programs are
described. Clearly the voluntary approach has not been successful. This is primarily
because all descriptions had to be paid for either by government grants or charitable2
contributions. Also, most commercial outlets refuse to cooperate by airing described
programs even when they were not asked to pay for the descriptions. The government
and the broadcast industry have made television accessible to deaf and hard of hearing
people. We applaud these efforts. Now it is time for the government to help another
group with a severe sensory deprivation.
An estimated 12 million people have low vision or are blind. We expect this
number to increase exponentially as the baby boom generation reaches its 50’s and 60’s.
Moreover, as a by-product of lengthening lifespans, the sheer numbers of elderly will
grow. The elderly are among the persons who are not typically categorized as blind or
visually impaired who will benefit markedly by video description. Moreover, according
to U.S. Department of Education there are 2.8 million students in this country with
special learning disabilities and 3.1 million students for whom English is a second
language. These figures do not include adults. Students and adults with special learning
problems will benefit as their perception of program content is strengthened by seeing
and hearing what is on the screen. Students and adults learning English as a second
language will be able to enrich their vocabularies by listening to descriptions while
viewing a program.
Low vision viewers will be able to clarify partially seen images and actions and
make better use of their remaining vision. And millions of family members, friends and
"care givers" will be grateful to the FCC and the video programming industry for
relieving them of the responsibility of attempting, inadequately, to describe programs
which they have not yet seen themselves. Also, of course, all people, sighted and3
otherwise, can go to the kitchen to explore the fridge for a soft drink and still keep track
of the action.
Technology is Here - Do It Now
We wholeheartedly concur with the FCC that descriptions should be phased in as
quickly as possible using our present analog system. The need for video description is
immediate. The infrastructure is already in place to begin now. The technology for the
use of the SAP channel, the present means for delivering the "closed" descriptions, has
worked well for the past 10 years and should continue for several more years. Waiting
for the digital system to become established could take up to ten more years, perhaps
longer, before penetrating into the majority of American households. The
implementation of digital television outside the top ten markets has already fallen behind
schedule. It appears that analog will be pervasive for an indefinite period before the
conversion to digital will be total. Considering how long blind and low vision people
have already waited for relief, this is an unacceptable period of time.
Apart from the lag in implementing digital TV, digital TV sets are apt to remain
extremely expensive for several more years. Blind and low vision people as a group do
not enjoy high incomes. In fact, some 70% of blind and low vision people of working
age are either unemployed or underemployed. Many seniors who develop limited vision
are retired with reduced incomes and increased expenses due to their visual problems.
This group would be the last group to purchase digital TV sets, not the first.
Even after digital television becomes reasonably well-established, there can be no
expectation that program producers or distributors will voluntarily provide “described”
versions of their programs. Our experience with DVD is a perfect example of the4
unreliability of industry promises of voluntary action. At meetings held in California in
1995, officials from five major Hollywood studios promised that when DVD became
established in the video market they would begin to provide descriptions for their A title
releases just as they have been doing for closed captioning. DVD is here and becoming
more established each month. But representatives from the blind community or staff
from Descriptive Video Services (DVS) at WGBH cannot get telephone calls returned.
Letters are ignored. Therefore, when the industry promises to work with us after digital
is established, we are understandably extremely skeptical.
Spanish Language
We are aware that the SAP channels of commercial and cable outlets are currently
used for some Spanish language programs. We do not believe that there will be a
significant conflict between Spanish and described programs. Mostly, Spanish programs
have centered on sports and news, a low priority for described programs. This is so
because news programs leave no space to insert descriptions, and many sports programs
are simultaneously carried on radio where descriptions are inherently in the commentary.
It is for this reason that the Coalition has suggested that live news and sports should be
exempted from any video description requirement.
When the transition from analog to digital has been largely accomplished, there
will be sufficient space for both types of programs without the necessity of sharing the
SAP channel. Until then, we are confident that matters can be worked out. Channels
could air certain programs twice, once with descriptions and once with Spanish
translations. And Spanish speaking people can learn English. Blind and low vision
people cannot learn to see.5
According to an article on the front page of The Washington Post, January 16,
2000, in Los Angeles the number of movie houses showing Spanish language films
dropped from 20 to only 9, apparently due to decreased demand as assimilation
progresses. It is entirely possible that in the future there will be less need for Spanish
translat ions of TV programs, not more.
Set Aside Digital Space Now
Ultimately, the analog system will be history. We therefore urge the FCC to set
aside space in the digital system for video descriptions. There should be one digital sub
channel for every TV channel clearly designated for descriptions. This should be done
now while there is sufficient space. As time goes on, the industry may find other uses for
that slot and therefore would be reluctant to give it up for descriptions.
Who should comply
The FCC has suggested that descriptions should begin in the top 25 television
markets. We believe for the first year this should be extended to include the top 35
markets in order to include cities such as San Diego, Hartford-New Haven, Charlotte,
Raleigh-Durham, Cincinnati, Kansas City, Milwaukee, Nashville, Columbus and
Greenville-Spartanburg-Asheville-Anderson. This is a significant portion of the country
which should initially be served.
It would result in a more equitable geographic distribution from the very outset
making descriptions available in many millions of households which would otherwise
initially be left out. Each year an additional 35 TV markets should be required to comply
with the rules adopted here so that eventually all TV markets would be subject to video
description. Exceptions could be made for any stations for whom this would constitute an6
undue burden. The guidelines for undue burden exemptions for closed captioning can be
applied to video description.
In addition, TV stations outside the top 35 markets which are already SAP
equipped should be required to report this fact to the FCC and should immediately begin
to pass through all described programming which is provided to them. There is
absolutely no reason why blind and low vision people should have to wait for service if
described programs are available and their area is technically equipped to carry them,
even if they are not located in a section of the country currently required to deliver
descriptions.
At license renewal, all TV stations should be required to report on the status of
their SAP channel equipment. Because Commission rules do not presently require
stations to report on the availability of SAP capacity, stations which currently have SAP
capacity or which install it in the future should report this fact to the Commission. This
will make it possible for the Commission to enforce its rules and for the public to know
where video description service is potentially available.
The NPRM contemplates only imposing the video description requirement on
commercial video distributors. At present, most PBS stations would be in compliance
with the 50 hours of quarterly programming proposed in the NPRM. However, in
following years they would fall behind unless they also share in the described
programming requirements. As of this writing 159 PBS stations are already SAP
equipped. Unless undue burden can be demonstrated, we believe that public television
stations should be subject to the same requirements as commercial stations.7
In addition, the NPRM does not discuss why some commercial networks are
excluded from the ambit of the proposed rules. Any entity defining itself as a network
should meet the same program requirements imposed upon networks such as CBS, NBC,
Fox and ABC. This would apply to WB and PAX to the extent that they have affiliates
in the markets covered by the rules.
The NPRM sought comment on the issue of which MVPDs should be embraced
by the requirement to provide described programming. The Coalition believes that the
obligation to describe should attach to MVPDs which are of comparable size, with
comparable resources, to the broadcasters who are covered. This approach would follow
the Commission’s tentative theory that phased in description would be least burdensome
and most affordable to the largest program distribution firms.
With this in mind, we suggest that covered MVPDs should include: all Direct
Broadcast Service providers and all cable television, OVS and MMDS providers who
(together with all affiliated entities) serve populations of 500,000 or more. This threshold
will ensure that large MVPDs with economic bargaining power can demand that video
described versions of their programming be produced.
We believe these thresholds are consistent with other Commission determinations.
In the context of its recent adoption of new EEO rules, the Commission concluded that no
DBS provider could be deemed small. Report and Order in MM Docket No. 98-204,
released Feb. 2, 2000, Appendix B at p.5. Hence, they should presumptively be obligated
to meet the phased–in video description rules. Similarly, the NPRM itself provides a
framework for defining larger cable systems.8
In the regulatory flexibility analysis of the NPRM, the Commission points to one
definition of small cable systems as being those that serve fewer than 400,000 subscribers
nationwide. Another measure (found in the Act) is those cable operators serving less
than 1% of cable subscribers nationwide (i.e., less than 617,000 subscribers) and having
gross annual revenues of less than $250,000,000. Cable operators which are larger than
this are, by definition, larger cable operators. Melding both approaches and roughly
equating these numbers to the number of households in the top 35 markets, we arrive at a
reasonable composite number of 500,000 subscribers as the threshold for coming under
the video description rules.
The Coalition agrees with the Commission that MVPDs should “flow through” all
described programming which has been created by the broadcast networks. Since an
increasing percentage of the American public gets its “broadcast” programs via non-broadcast
means, it is important that the visually impaired have access to the described
material, whatever the means of delivery. In addition, the NPRM indicates that MVPDs
should carry the described programming of non-broadcast networks that reach 50% or
more of MVPD households. This formulation is fine as far as it goes, but it unfortunately
leaves unclear how much of this non-broadcast network material must be described. The
Coalition suggests that MVPDs should provide the same amounts of non-broadcast
network described programming as the broadcast stations. That is, over and above any
broadcast material which is simply retransmitted by MVPDs, we believe they should
provide four hours per week of prime time programming with video description in the
first year, with additional hours added each year thereafter on the same schedule as the
broadcast stations.9
We believe that this is quite feasible since we anticipate that the largest non-broadcast
networks would simply contract with cable TV operators and other MVPDs to
deliver described versions of their product for distribution in order to meet this
requirement. Since the largest non-broadcast networks distribute their programming to
millions of people and numerous MSOs, the incremental cost of adding description to a
few programs a week would be negligible.
We note that SMATVs typically simply pass through programming which they
receive and lack the control over the distributed product which cable operators and other
MVPDs have. SMATVs, therefore, should merely be required to pass through in
described form whatever described programming they receive in that form.
Finally, all video description requirements should apply to both analog and digital
transmissions, even if the distributing entity is transmitting both simultaneously.
When should the requirement apply
The NPRM states that compliance will not be required until 18 months after a rule
has been issued. We strongly believe that this waiting period should be shortened to one
year. This should be a sufficient time for any channel within the top 35 TV markets to
acquire necessary equipment and arrange to have described programs distributed to them.
No matter what period of time is chosen, the programs will not be available for adding
descriptions until closer to air time. After a 10 year wait, the grace period before
compliance needs to be shortened to bring relief to blind and low vision people as well as
their family and friends who attempt to help them.
Fifty hours of described programming will be required each quarter for the first
year, amounting to approximately four hours a week. This is a reasonable beginning.10
However, we would not leave it up to the discretion of the broadcaster to choose the type
of programming. Instead, the ratio should be 3 hours of prime time programming for
adults to one hour of children's programming. Children's programs are important, but
there are far more adult low vision and blind people. According to statistics from The
American Foundation for the Blind, only 1 to 2 percent of low vision and blind people
are children. This is because diseases which cause blindness or severe visual impairment
do not generally occur until later in life, typically after 50 years of age.
We understand that the subject of video description will be revisited in subsequent
rule makings. We nevertheless feel that both the program distributors and the blind
community should have some idea of what to expect in the following years. This will be
extremely important for planning for both the program distribution industry and
organizations producing descriptions. The broadcast industry will then know how to
structure its program production and licensing contracts for the foreseeable future.
Organizations will know how to gear up to produce an ever expanding amount of
required descriptions.
We therefore refer the FCC back to some of the suggestions made in the Coalition
report submitted in February, 1997. That report recommended a phased in approach
which would have all prime time programming described within a period of 7 years with
the exception of live newscasts and other live programming. This would require a
minimum of 3 new hours of prime time programming added each year until 100% is
reached. In addition to this requirement, the one hour of described children's
programming should also be described during the first three years, making the total four
hours a week, the amount cited in the NPRM. So in the first three years the ratio would11
be three hours each week of prime time adult programs to one hour of children’s
programming. These proportions would be maintained until a minimum of three hours of
children’s programming are described. In subsequent years, the focus would be entirely
upon adult programs.
As this initial seven year period draws to a close and more is known about the
higher volume production and distribution of described programs, further decisions can
be made concerning the amount and types of programs to be described in the future.
Since TV programs which are essentially all talk (leaving little or no room for added
descriptions) will probably never be described, video description will never be as
pervasive as closed captioning for the deaf.
Reruns
Once a program has been described these descriptions should always accompany
it whenever it is aired even if the program is not aired during prime time hours. This
should be done even if reformatting would be necessary. If voice compression is used in
reformatting, the description track may not require alteration. The result will help to
gradually expand the amount of described programs available on television. Since
phased in descriptions will be gradual, reruns with descriptions will help to fill out the
TV program schedule which, at present, is a vast wasteland as far as descriptive
accessibility is concerned.
Also, described reruns should not be used to fulfill the weekly or quarterly
requirements for described programming. These requirements must always be applied to
programs which have not been described before. In addition, description requirements
cannot be met by retransmitting programs already telecast that week.12
Costs
The present producers of video description are in a better position to comment on
this area. It is anticipated that the producers will pass on to the distributors the cost of
providing descriptions. It will become part of the cost of doing business. These costs
constitute only a tiny fraction of the total production costs. It should also be noted that
the cost of producing video description has not yet, but certainly will, benefit from
economies achieved with higher volume production. Competition will arise with
increased requirements for described programming. Costs will inevitably decrease.
There is already a significant cost difference between the two organizations currently
producing descriptions for television.
Quality Control and Enforcement
This is a matter of great concern to the visually impaired community. If
descriptions are sparse, or there are long silences without any description, if they are
confusing and/or inadequate, the longed for accessibility to TV programs will be greatly
flawed and much frustration will ensue. We recognize that there are legitimate
differences of opinion concerning the style of descriptions for any program. However, if
there are many complaints about the overall quality, quantity and effectiveness of the
descriptions, a reasonable person would conclude that there is definitely room for
improvement. Complaints can also be expected if the descriptions stray from purely
describing the essential visual elements of a program and instead attempt to evaluate the
program or interpret its meaning.13
Emergency Messages
The visually impaired community has long been deeply concerned about having
access to emergency information which silently scrolls across the TV screen. Everyone
is in agreement that this issue must be addressed. We believe it deserves further study
either via a Notice of Inquiry or by a committee working with the Disability Rights
Office at the FCC. We need to learn more about the most practical and efficient methods
for delivering this information. At this point the issue should be separated from setting
up rules for video description. The issue, though extremely important, is unrelated to
video description. It requires a different approach and technology.
Spreading the Word
Video description is, unfortunately, one of the best kept secrets in this country.
There is so little of it the overwhelming majority of people, visually impaired or not, are
not aware of its existence. It would make little sense to begin increasing the availability
of described programs without simultaneously making every effort to inform the public.
A distinctive aural and visual logo should be aired before every described program
clearly announcing the availability of descriptions, and broadcasters should also be
required to make promotional announcements at other times concerning described
programs, particularly during the initial stages. Broadcasters should furnish newspapers
and TV magazines with listings which include a logo, similar to the one used for closed
captioning to mark described programs.
Accessible TV Equipment
Blind and low-vision people must be able to independently use their TV sets to
access the SAP or any digital description channel. These features must be required and14
built in to new television sets, remote accessors, and set top devices. Independent access
should be simple and user friendly taking into account the large numbers of senior
citizens who will be watching and listening to described programs. The technology
already exists.
The most wonderful array of described programming would fail to accomplish its
purpose if the majority of the audience for whom it is intended cannot access the
programs without sighted assistance. Blind and most low-vision people cannot
effectively use control panels on TV sets, set top boxes and remote accessors with no
discernible tactile points of reference such as switches, buttons or depressions. And they
cannot respond to on-screen displays to perform basic functions. Perhaps some sort of
“universal” remote accessor could be developed which would meet the requirements of
both sighted and visually impaired people
Older TV sets had a convenient button to push on the remote accessor to activate
the SAP channel. Newer TV sets mostly still come with the SAP channel feature. But to
access it, one has to go through an on-screen display. Zenith sets have the capability of
making the on-screen display talk. This is useful for some functions but still more
complicated than it needs to be to access the SAP channel. We need to go back to simple
push button access – as closed captioning has had for years. As the numbers of described
programs increase it would be needlessly complicated for people to have to go through an
on-screen display every time someone wishes to tune in a described program.
Manufacturers have chosen this method because it is cheaper for them.
Even if the screen talks, many senior citizens would find the newer method
confusing and difficult to use. It might keep them from enjoying the described programs15
created for their benefit. Toggle switches are also a problem because people cannot see
the light indicating whether the switch is in the “on” or “off” position. All these
simplifications and modifications also will be welcomed by the entire population.
Copyright Issues
The NPRM solicited comment on the issue of whether rights of copyright holders
in the video-described programs would be impaired or affected by the proposed rules.
The Coalition anticipates no obstacle in the copyright laws. As the regulatory regime is
now proposed, the obligation to distribute programming with video description attached
is placed not on the producers but on the distribution pipeline. A sufficient lead time has
been provided to permit programming to be described by the original producers, or for
distributors such as broadcast networks or cable channels to make contractual
arrangements with the holder of the copyright to produce the program in a video-described
form.
Under current law, for example, the rights to telecast a major motion picture
might be purchased by a network. In many cases the movie must be edited to meet
indecency or other special constraints associated with televising a movie as opposed to
showing it theatrically. The network does not make these revisions in the movie
unilaterally; it contracts with the program owner either to make the cuts itself or permit
the cuts to be made. Typically, the program rights holder is happy to make these cuts in
exchange for the revenue associated with the telecast of its product. If the rightholder
refused on artistic or other grounds to make the revisions in the show necessary to
broadcast it, that would be its right; the network would not buy the show and it would not
be broadcast.16
This system seems to work quite well in the current environment; copyright
holders are free - but not obligated - to make changes or deletions to their product to meet
the requirements of their broadcast customers. We anticipate that a very similar scenario
will develop for video description. Networks and MVPDs will include in their new
contracts with program suppliers a clause requiring the program to be provided with a
video description track.
To meet this requirement, the producer will presumably tack on a slight increase
in the charge to the distributor reflecting the incremental cost of the description. The
program producer could refuse to allow video description of its product, but it then would
not be broadcast or cablecast. In short, the commercial realities of the program product
market will adapt very easily to incorporate the provision of video described versions of
shows without infringing on anyone’s artistic integrity or copyright rights. By simple
advance planning in connection with the product they distribute, networks and MVPDs
will never be in a position of having to alter someone else’s copyrighted work without
permission.
FCC’S Authority to Mandate Description
Section 713 of the Telecommunications Act of 1996 laid a specific charge on the
Commission: “to 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.” The Commission itself has recognized Congress’s own statement of
its avowed purpose in enacting Section 713 of the Act: “to ensure that all Americans
ultimately have access to video programs and services…”H.R. Conf. Report 104-458
(1996) at 1183. (Emph. added).17
The Commission is therefore under an obligation to “ensure” that video
programming is accessible to the visually impaired, though Congress did not specify that
video description must be the sole means to accomplish that goal. This contrasts with
Congress’s approach to accessibility for the deaf, where it specifically required closed
captioning to be used as the tool to be employed. In this proceeding, the Commission
has, quite correctly, turned to video description as the best available means of
accomplishing the goal established by Congress. Plainly, the marketplace, whether
through ignorance or misplaced concerns about costs and returns, will not, of its own
accord, take the measures necessary to make programming accessible to the visually
impaired. True accessibility of video programming to the blind, therefore, cannot be
ensured by anything less than a strong federal mandate consistent with the charge from
Congress.
Apart from the language in Section 713, the authority for FCC action in this field
is found in the most fundamental well-springs of the mandate issued by Congress in
1934. The very purpose of the creation of the Commission was “to make available, so far
as possible, to all the people of the United States a rapid, efficient, nation-wide, and
world-wide wire and radio communication service…” 47 U.S.C. 151 (Emph. added).
The Commission and the Courts have returned again and again to this basic mandate
when examining the Commission’s role in cable television regulation 1 and other
services.2 Not only the Communications Act, but the Americans with Disabilities Act
(“ADA”) charges the Commission with responsibility for ending disability-based
1
See e.g., United States v. Southwestern Cable Co., 392 U.S. 157 (1968), United States v. Midwest Video
corp., 406 U.S. 649 (1972); Allied Video Transmission Corp.
2
For example, Common Carrier. See, Amendment of Section 64. 702. Second Computer Inquiry, 44 FR
39513 (1979)18
discrimination. As the Commission stated, “The ADA’s purpose is to provide a clear
national mandate for the elimination of discrimination against individuals with
disabilities and to ensure that federal entities such as [the] Commission play a central role
in enforcing the standards established in the ADA on behalf of individuals with
disabilities.” In the Matter of Telecommunications Services for Individuals with
Hearing and Speech Disabilities and the Americans with Disabilities Act of 1990, 56 FR
36729 (1991).
This charge embraces all of the Commission’s regulatory activities, but radio
facilities licensed by the Commission are also subject to the “public interest” standard;
this represents an independent basis for Commission action. 47 U.S.C. Section 309. As
long ago as 1970, the Commission evidenced its willingness and authority to act to
require programming to be made accessible to the hearing impaired without any specific
authority from Congress other than its duty to regulate in the public interest. 26 FCC 2d
917 (1970). The Commission’s authority over radio frequency licensees is, of course,
well established. First, as we have noted, the licensing of broadcast stations is subject to
the public interest standard. The Commission could, and should, specifically find that it
is the policy of the United States that video media should be fully accessible to all
persons. Such a finding would be consistent not only with the purpose expressed
specifically in the legislative history of Section 713 of the 1996 Telecom Act, supra, but
also in the national purpose expressed in the ADA and affirmed by the Commission many
times since Community Television of Southern California v. Gottfried, 459 U.S. 498, 53
RR2d 271 (1983). As was stated in Gottfried, ?? [The public interest would be served
by making television broadcasting more available and more understandable to the19
substantial portion of our population that is handicapped…” Id at 276. Neither the
Commission nor the Court in that case suggested that the Commission lacked the
authority to take action necessary to accomplish this clear public interest objective.
A second, more direct, approach would be to adopt a definition of “broadcasting”
which explicitly embraces service to the visually impaired. By its very nature, a
“broadcast” service implies and requires service which is generally accessible to the
populace at large. Systematic exclusion of a sizeable segment of the American public by
not describing the programming is not broadcasting in the truest sense. Because a
broadcast license is issued for the purpose of broadcasting, a licensee would have to meet
the Commission’s definition of broadcasting in order to be using its license in compliance
with the broadcast rules. The Commission could simply define television broadcasting to
include the transmission of sufficient aural information to make the visual elements of
broadcast programming accessible to the visually impaired. The obligation to include the
visually impaired in the broadcast audience would logically follow.
The case for Commission authority over non-radio segments of the
communications world such as cable TV operators and MVPDs is also clear. There is
precedent in the Commission’s regulatory authority over cable television. It will be
recalled that the Commission’s authority to regulate cable TV was challenged in the early
‘60s. The Supreme Court ultimately sustained the Commission’s jurisdiction under the
rubric of United States v. Southwestern Cable Co., 392 U.S. 157 (1968). That case
presumed that the Commission had no radio licensing authority over cable but the Court
found jurisdiction nevertheless. This authority has formed the basis for the
Commission’s imposition of public access, must-carry, non-duplication and fairness20
obligations on non-radio regulatees of the Commission, all predicated on the
Commission’s “obligation of providing a widely dispersed radio and television service”,
with a “fair, efficient, and equitable distribution” of service. 47 USC § 307(b).
Finally, the Commission’s recent action adopting rules and regulations
implementing Section 255 of the 1996 Telecom Act rather decisively resolves any doubts
which may have persisted as to the Commission’s authority to regulate. It will be
recalled that one of the issues in the Section 255 proceeding was whether the
Commission had the authority to adopt regulations implementing Section 255. In an
early draft of what became the ’96 Act, the Senate had included language requiring the
FCC to adopt regulations implementing Section 255. That language was deleted in the
version of the bill that became law. The question naturally arose as to whether Congress
intended for the Commission not to have any rulemaking authority in implementing the
Act. See Notice of Proposed Rulemaking, 13 FCC Rcd. 20391, 20405 (1998).
In adopting the Report and Order,3 however, the Commission resolved this issue
with little difficulty. The Commission pointed to Section 255(f) of the ’96 Act which
bars private rights of action ?to enforce any requirement of this section or any regulation
thereunder.” (Emphasis added by Commission) Report and Order at para. 84. The
necessary implication of this language at the end of Section 255, the Commission found,
was that Congress envisioned regulations being adopted in connection with Section 255.
This was especially true since there was no indication that Congress intended to limit the
Commission’s normal discretionary rulemaking power. Thus, the Commission held that
the section itself authorized the Commission to act even though there was no express
3
Implementation of Sections 255 and 251(a)(2) of the Communications Act of 1934, FCC99-181, released
September 29, 1999. (“Report and Order”)21
congressional directive for the FCC to do anything. Id. Similarly, the Commission
recognized that in enacting Section 255, Congress had charged it with “ensuring that
telecommunications services and equipment are accessible to, and usable by, persons
with disabilities.” Id. at para.93. Given that charge, the Commission exercised its
discretionary authority to regulate non-telecommunication information services even
though Congress had given it no explicit mandate to do so. Id. at 103 – 106.
The pertinence of this analysis of the Commission’s authority to regulate video
description is direct and striking. In Section 713 of the ’96 Act, Congress charged the
Commission with “ensur[ing] the accessibility of video programming to persons with
visual impairments.” As with Section 255, an earlier version of the bill had required the
Commission to adopt regulations implementing video description, but in the final version
that requirement was deleted. Instead, as with Section 255, Congress adopted Section
713 (h) which barred private rights of action “to enforce any requirement of this section
or any regulation thereunder.” 47 U.S.C. 713. (Emphasis added)
Again, the same conclusion should be reached as the Commission reached with
Section 255: the language adopted by Congress in the section itself gives it the authority
to adopt regulations. But even if that were not the case, the Commission’s resolution of
the information services issue in connection with Section 255 is governing here. For
there, as here, the Commission recognized a Congressional mandate to “ensure” the
accessibility of certain services to the disabled, and it concluded that the adoption of
regulations was necessary in the public interest to achieve that end, even in the absence of
an express regulatory mandate. Here, of course, unlike information services, there is no
question of the Commission’s basic regulatory power over broadcasting. Thus, the22
exercise of discretionary regulatory power in this context is even less of a stretch than it
was in the Section 255 proceeding.
The upshot of all this is that the Commission has already effectively resolved any
doubts as to its authority to adopt video description regulations. For over and above the
general mandate in Section 255 of the Act to ensure the accessibility of
telecommunications services, Congress has given the FCC an explicit charge to ensure
that video programming in particular is accessible to the visually impaired.
While Congress did not require the Commission to mandate video description as
the specific solution to that problem, everything in the Report and Order cited above
indicates that the Commission has ample authority to fashion a regulatory solution to the
video programming accessibility issue. Indeed, the Commission seems to have decided
that the spirit of Section 255’s mandate – quite apart from anything found in Section 713
- is sufficiently broad to encompass disability accessibility issues beyond the narrow field
of the “telecommunication services” which are explicitly addressed by that section.
Therefore, the Commission not only has the authority but the obligation to take steps to
ensure video programming accessibility.
CONCLUSION
For the reasons set forth above, the Coalition believes that the Commission has
taken a huge step forward in meeting its oft-stated commitment to bringing the benefits of
21 st century media technology to the large and ever growing numbers of visually
impaired Americans. The NPRM was a bold first step, but it is crucial that the proposal23
in the NPRM be modified and expanded modestly if the intended benefits of the proposal
are to be realized. The Coalition recognizes that the Commission has adopted a measured
approach to the implementation of video description, and it accepts that approach as a
realistic one. But the pace of implementation under the Commission’s original plan
would leave far too many blind and visually impaired people in the dark far longer than
necessary. The Coalition therefore urges the Commission to heed the suggestions of the
people most directly disadvantaged by the status quo and bring video description to the
American public. The Coalition also requests that its 1997 Report on the status of video
description (referred to in footnote 47 of the NPRM ) be included in the record of this
Docket.
Respectfully submitted,
The National Television Video Access
Coalit ion
By: ________________________________
Margaret Pfanstiehl, President, The
Metropolitan Washington Ear
________________________________
Donald J. Evans
Its Counsel