PrestonIGateslElIis & Rouvelasl Meeds LLP LISA FRIEDLANDER DIRECT DIAL: (202) 661-3814 February 23,200O -FllE COPY ORIGNAL BY HAND Ms. Magalie Roman Salas Secretary Federal Communications Commission 445 12'h Street, SW Washington, D.C. 20554 Re: MM Docket No. 99-339 Dear Ms. Salas: Enclosed for filing with the Commission are an original and four (4) copies of the comments filed by The Game Show Network, LP in the above captioned proceeding. Please date-stamp the additional copy of the comments included herewith. Thank you for your attention to this matter. Any questions regarding this filing should be directed to the undersigned at (202) 661-3814. Sincerely, Counselfor The Game Show Network, LP Enclosures NO. oi copies ListABCDE A LAW FIRM j A LIMITED LIABILITY PARTNERSHIP INCLUDING OTHER LIMITED LIABILITY ENTITIES 1735 NEW YORK AVENUE NW, SUITE 500 WASHINGTON, DC 20006-5209 TEL: (202) 628.1700 FAX: (202) 331-1024 www.prestongates.com Anchorage Coeur d'Alene Hong Kong Los Angeles Orange County Palo Alto Portland San Francisco Seattle Spokane WashIngton, DC Before the FEDERAL COMMUNICATIONS COMMISSION ORIGINAL Washington, D.C. 20554 In the Matter of Implementation of Video Description of Video Programming > 1 > MM Docket No. 99-339 > > COMMENTS OF THE GAME SHOW NETWORK, L.P. The Game Show Network, L.P. ("GSN"), by its counsel, submits these comments in response to the Commission's Notice of Proposed Rulemaking in the above-captioned proceeding. INTRODUCTION On November 18, 1999, pursuant to Section 7 13 of the Telecommunications Act of 1996, the Commission released a Notice of Proposed Rulemaking ("NPRM") in this docket seeking comments as to how to best promote video description services for persons with visual disabilities. In its NPRM, the Commission proposes "limited" rules requiring commercial television broadcasters in the top 25 television markets,' and the nation's largest video programming distributors, to introduce video description services in their programming over a phased-in period. Specifically, the proposal would require these programming distributors to provide a minimum of 50 hours per calendar quarter of described prime time and/or children's programming no later than 18 months from the effective date of the Commission's rules. Once ' The Commission's proposal would require broadcasters who are affiliated with the ABC, CBS, Fox and NBC networks in the top 25 television markets (as determined by the Nielsen DMA rankings) to comply with the video description rules. this initial implementation has occurred, the Commission proposes to review the rules, expecting to increase the amount of required described programming as the public interest requires. See NPRM721. GSN appreciates the Commission's desire to foster more widespread video description so that television programming may be more accessible to the estimated eight to twelve million Americans with visual disabilities. At the same time, however, GSN is quite concerned about the implementation process since, as the Commission has noted, the costs of describing prime time programming may be thousands of dollars per hour, see NPRM 126, and should the Commission expand these proposed rules to cable programming, the cost with present technology could be prohibitive. Thus, we support the Commission's intention to "proceed incrementally so as not to impose a significant burden on video programming distributors," and to adopt a more "measured' approach than that adopted in the Commission's closed captioning rules. NPRM ljT[ 19,21 (emphasis added). It is critical that the Commission strike a balance between accessibility and practicability when fashioning any video description requirements. GSN urges the Commission to use this proceeding to conduct an in-depth study of all relevant issues before it establishes video description rules that may be applied to all programming distributors at some point in the future. These issues, at a minimum, should include the technical, practical and economic difficulties of providing described programming, how these difficulties may vary in degree and impact from distributor to distributor, and whether the nature and format of certain programming renders it inherently unsuited for video description. 2 DISCUSSION I. GSN'S INTEREST IN THIS PROCEEDING GSN owns and operates a 24-hour programming service exclusively dedicated to the world of games, game playing and game shows. Launched in 1994, GSN is now seen in over 25 million homes through carriage by cable, DBS, and other multichannel video programming distributors (collectively, "MVPDs"). Each day, GSN offers a wide array of programming, including classic game show favorites from its diverse library, original game shows produced for airing on GSN and new interactive game shows where viewers can become contestants in their own homes. GSN's programming spans five decades of television history, from classic shows such as "What's My Line, " "TO Tell the Truth," "Match Game" and "The Gong Show" to more recent shows such as "Wheel of Fortune," "Price is Right" and "Jeopardy." GSN's original game shows include "Inquizition" and "Hollywood Showdown," and GSN expects to add even more original and interactive programs in the near future. From time to time, GSN also provides children's and family programming, including "JEP!," a kids version of "Jeopardy," and "Wheel 2000," a kids version of "Wheel of Fortune." When aired, these shows have been featured as part of GSN's "Kids Zone," which also features a variety of other children's game shows including "Joker," "Juvenile Jury" and "The Quiz Kids Challenge." As both a cable network and a producer and owner of video programming, GSN has a direct interest in the outcome of this proceeding and thus wishes to assist the Commission in its analysis of this difficult subject. II. MORE STUDY IS NEEDED BEFORE FORMAL VIDEO DESCRIPTION RULES ARE ESTABLSHED While the Commission is not yet proposing to require all video programming distributors to comply with its description rules, GSN recognizes that the Commission may do so in the 3 future. Consequently, GSN urges the Commission to use this current proceeding to undertake a more in-depth study on the impact of video description requirements on aEZ programming distributors and cable programming networks, including both start-up and established networks, as the economics in these areas are vastly different than the economics surrounding commercial television broadcasters. Broadcast television is a unique model versus other types of video distribution platforms and, therefore, rules that apply to broadcasters may be inappropriate in other contexts. A. Video Description is Technically More Diffkult and More Costly Than Closed Captioning While on the one hand the Commission points to its closed captioning rules as a model for implementing video description requirements, it also correctly recognizes that the technology employed to describe video programming is not as "advanced" as that used for the provision of closed captioning; therefore, concluding that a more "measured" approach than that established for its closed captioning rules is warranted. NPRh4 f 2 1. However, not only is the technology for describing programming not as advanced as it is for captioning it, but video description in general is a much more challenging endeavor than the provision of closed captioning. Unlike closed captioning, video description (as GSN understands the Commission to define it) -- the process of inserting audio explanations of visual elements of a program so that the content of the program is more accessible to the visually impaired -- must be inserted into the program with a great degree of care and expertise so that the descriptions do not interfere with the sounds and dialogue that are already a regular part of the program. This is not an issue with closed captioning. In addition, there are artistic difficulties surrounding video description that are not implicated with closed captioning as the former deals with a subjective description of the program, rather than a simple duplication of the actual dialogue being spoken. Once subjectivity 4 is introduced there will be significant issues with regard to the type and degree of descriptions employed, and thus it is likely to be a point of contention among the producer, the director and the network itself. Furthermore, regardless of these technical and practical difficulties, video description is also much more expensive than closed captioning, and will often require huge up-front expenditures to provide described programming in the manner proposed by the Commission. Currently, programming can be described in one of two ways. The simpler and cheaper method is to describe programming using an "open" platform whereby the description is provided as part of the main soundtrack of the program. No additional equipment is required, however, as a result, the descriptions cannot be turned on and off. Accordingly, this method of captioning is simply not practical. The more burdensome and costly method of description, and the one chosen by the Commission, utilizes a "closed" platform, which employs the Secondary Audio Program or SAP channel. The advantage to the "closed" platform is that the descriptions can be turned on and off as the viewer desires. However, use of the SAP channel requires special equipment that must either be bought or upgraded,2 not to mention the costs associated with the creation of a third audio channel. Accordingly, the Commission's proposal will impose significant costs upon the industry. In addition to the costs associated with mandating a "closed" video description platform, a very conservative estimate of the actual cost involved in describing the programming itself is $3,400 per finished program hour,3 which is more expensive than the costs involved in closed captioning and can be as much as 20% of the cost of an original GSN program. ' The expense involved in becoming a SAP-capable broadcaster ranges from $5,000 to $25,000. See NPRh4 1 15 (citing information provided by WGBH). 3 Id. However, GSN believes that the true costs cannot be accurately assessed until the specifics of the video description requirements are clearly established. 5 .- .- _.. ..- ._._. ..,. -.^..." _. ___,_I__,. _____"l."__-ll_l__- ..1-- I_ - It is because of these enormous costs and technical difficulties that the Commission has recognized that only the largest broadcast stations and programming networks are able to bear the burden of video description. See NPRM 1 15. GSN agrees with this conclusion. B. There are Also Copyright and Other Issues that Need to be Addressed in Greater Detail In addition to the technical and economic questions cited above, requiring described programming implicates several other types of issues, all of which the Commission should fully address before establishing any set of rules. One such issue involves copyright law and how it impacts the provision of described programming. Indeed, the Commission seeks comment on "whether copyright issues could become an obstacle to video description, and, what could be done to prevent or minimize such a result." NPRM 13 1. GSN would like to point out that, in its experience, it would appear that current copyright laws may hinder the development and implementation of video description services as programmers currently have no rights to describe a licensed product. Accordingly, it may be extremely burdensome to add video descriptions to copyrighted works, and obtaining the required permission from copyright owners can often take upwards of six months. There are also several other copyright-related issues that need to be addressed by the Commission. For example, since the description would most likely be considered a derivative work, who would own the copyright in the work? And what if the owner of the rights does not own the right to do the "audio only" work? And what of the burden imposed by forced negotiations between licensers and licensees who will want control of the subjective video descriptions? The Commission should consider all of these issues when making its determination. Furthermore, there is a laundry list of other more general questions that also need to be 6 addressed regarding the level of specificity and complexity of the descriptions themselves. One might expect that the amount of detail desired in a description may vary depending upon the level of the individual's visual impairment. How is the appropriate balance to be struck? For example, what degree of narrative is desirable? Should the description include an interpretation of facial expressions or indicate prop movements ? How complex or how simple should the language be that is used to describe the programming? Clearly, all of these issues are pertinent to the Commission's inquiry. GSN urges the Commission to undertake a more complete study of the foregoing before it formulates a defined set of rules. III. CERTAIN TYPES OF PROGRAMMING SHOULD BE EXEMPT WHERE BENEFITS OF DESCRIBED PROGRAMMING ARE MINIMAL Regardless of how these (and other) issues are ultimately resolved, GSN urges the Commission to recognize that, with some types of programming, the provision of video description services may be unnecessary and redundant. Since the described audio track generally consists of information about action on the screen, body movements, description of settings, character's appearance and clothing, and any other information that is considered essential for a visually impaired person to follow the program, for certain types of programming this information is neither relevant nor valuable. Programming formats that fall into this category should be exempt from the Commission's rules. One such category is game show programming. Game shows generally consist of continuous dialogue between the host and the participants, there is no true story line, nor is there any character development involved. In addition, participant's body movements or appearance are not significant to the program. In fact, none of the information mentioned above is essential for a visually impaired person to follow what is happening on a game show. Consequently, there is little or no need for video description of game shows; it provides no real added benefit to the 7 visually impaired. Indeed, the Commission recognized that "programming that is primarily aural in nature, including newscasts and sporting events" should be given a "lower priority" for description. NPRM 7 14. Game shows clearly fall into this category. Accordingly, where the cost involved in providing described programming is tremendous and the benefits received minimal, it would not be in the public interest to require video description of such programming. CONCLUSION For the foregoing reasons, GSN urges the Commission to use this proceeding to conduct an in-depth study of all relevant issues surrounding video description services, and how these issues may impact various different types of video programming distributors, before it establishes formal video description rules that may be applied to all programming distributors in the future. GSN supports the Commission and Congress' desire to increase accessibility to described programming, however, it does not support such an endeavor to the detriment of program diversity and competition. Respectfully submitted, THE GAME SHOW NETWORK, L.P. Michael Fleming President The Game Show Network, LP 10202 West Washington Blvd. Culver City, CA 90232 PRESTON GATES ELLIS & ROUVELAS MEEDS LLP Lisa L. Friedlander 1735 New York Avenue, N.W. - Suite 500 Washington, D.C. 20006 (202) 628-l 700 Dated: February 23,200O 9 -.. -.I-~_, __---~-..-~-