FCC cannot mandate video descriptions

From the Winter 2003 issue of The News Media & The Law, page 43.

By Jennifer LaFleur

The U.S. Court of Appeals in Washington, D.C., in November threw out new rules by the Federal Communications Commission intended to aid blind television users by requiring television stations to provide video descriptions in their programming. The court ruled that the agency had no authority to make such requirements.

Video description is the insertion of narration about the visual setting and background when that information is not already included in the audio portion of the program. Video description generally is transmitted over a secondary audio programming channel such as those used to transmit alternative language programming.

The Motion Picture Association of America argued in a lawsuit that the FCC had no authority to mandate video description, which adds to production time and costs.

The appeals court agreed, ruling that no section of the Telecommunications Act authorized the FCC to make such a requirement. Indeed, the agency may not regulate content without violating the First Amendment, the court held.

“There is no doubt that the video description rules regulate programming content,” the court ruled. “Video description is not a regulation of television transmission that only incidentally and minimally affects program content; it is a direct and significant regulation of program content. The rules require programmers to create a second script.”

The FCC adopted rules April 1, 2002, requiring commercial television broadcasters affiliated with the top four commercial networks (ABC, CBS, Fox, and NBC) to provide 50 hours of video description per quarter during either prime time or children’s programming.

The rules also require cable and satellite television companies that serve 50,000 or more subscribers to provide 50 hours of video description per quarter during the same time slots on each channel that carries one of the top five nonbroadcast networks, according to court documents.

The rules were put in place, according to FCC court documents, so that persons with visual disabilities could fully experience television programming. The agency estimated that as many as 12 million people would benefit.

Also at issue was what Congress actually was thinking when it passed the Telecommunications Act of 1996.

The FCC argued that Congress “authorized the Commission to make available to all Americans a radio and wire communication service, and to provide safety and life through such service, and to make such regulations to carry out that mandate, that are consistent with the public interest and not inconsistent with other provisions of the Act or other law.”

The court called the FCC’s argument “frail” because it “ignores the fact that video description regulations significantly implicate program content.”

The FCC compared its video description rule to similar requirements for closed-captioning for hearing impaired television viewers, pointing to an earlier U.S. district court (D.C. Cir) decision, Gottfried v. FCC, which held that “any requirement to provide programming with closed captioning would not violate the First Amendment.”

But the appeals court said they were not the same.

“One is a simple transcript, a precise repetition of the spoken words. The other requires an interpretation of visual scenes,” the court wrote.

At least one advocacy group for low-vision and blind individuals supported the appeals court decision.

The American Federation of the Blind filed a brief asking the court to vacate the FCC’s rules on video description. Its chief complaint was that the FCC did not explore whether or not blind consumers wanted such a service.

“The FCC, in its enthusiasm for providing a new service to people with visual disabilities, neglected the fundamental step of studying whether the intended beneficiaries of video description actually want or need video description,” the AFB argued in its brief.

But the American Council of the Blind disagreed.

“We thought the court failed to honor the underpinnings of why the FCC has had flexible authority in the past to rule in the public interest,” said Charles Crawford, executive director for

the American Council of the Blind. “We’re very disappointed in the short-sightedness of the court.”

“The FCC acted appropriately in our view, but the court took a very narrow and restrictive view of what the facts and law were, to our loss,” Crawford said. “The only thing we have left to do now is that we are the people and we will go to the people’s house, Congress, and demand what this is offered to us.”

(Motion Picture Association of America v. Federal Communications Commission)