Cable Sues Over Video-Description Mandate

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WASHINGTON — One of former Federal Communications Commission chairman William Kennard's main objectives was to broaden access to mass media and telecommunications — at both the ownership and consumer levels — to such historically excluded groups as women, minorities and the disabled.

Thus, Kennard's FCC adopted rules authorizing hundreds of low-power, noncommercial FM radio stations licensed to local church groups and civic organizations, extending phone subsidies to Indian reservations and requiring TV stations and cable operators to provide closed captioning for the hearing impaired.

Soon after the closed-captioning rules went into effect, Kennard took another bold step to empower the less than powerful. But that action now has the FCC embroiled in a legal dispute with the cable industry, broadcasters and the Hollywood studios.

However well intended, the FCC's move was so controversial that it has even divided two organizations that represent the visually impaired.

Last year, the FCC ruled that in addition to text captioning, TV stations, cable operators and satellite carriers were required to accompany some of their most popular programs with video descriptions, or brief audio explanations of the on-screen action designed for the visually impaired audience. That mandate takes effect next April.

Kennard left office in January, leaving the court battle to Republican successor Michael Powell.

The FCC said the rules would benefit some 12 million visually impaired Americans and perhaps millions of people with learning disabilities.

It costs programmers between $2,000 and $4,000 per hour to insert video descriptions, but money is not the chief motivator for opponents of the FCC rules.

FIRST AMENDMENT CLAIMS

In a lawsuit filed late last month, the National Cable Television Association, National Association of Broadcasters and Motion Picture Association of America asked the U.S. Court of Appeals for the District of Columbia Circuit to void the FCC's rules.

The media industries claim the FCC exceeded its statutory authority and violated the First Amendment, because video descriptions amount to government-compelled speech.

Last November, A&E Television Networks warned the FCC about its First Amendment concerns and urged the agency to reconsider its action.

"The First Amendment protects not only the government's ability to restrict what a person can say, but [it] also prevents government from forcing a speaker to communicate," A&E said.

The rules affect NBC, ABC, CBS and Fox affiliates in the top 25 markets and all cable systems with at least 50,000 subscribers.

TV stations on each affected network must provide about four hours of video descriptions each week in primetime or during programming intended for children.

Cable and satellite operators — which must comply with the same time quotas — are required to provide video descriptions on all of the five highest-rated cable networks during primetime.

Media opponents of the FCC rules said they don't object to the laudable goal of enriching the TV experience for the visually impaired. But they questioned whether Congress had granted the FCC authority to adopt such rules.

"You don't determine whether the FCC has authority to do something, or whether or not it's constitutional, simply based on whether you think it's a good service," said Robert Corn-Revere, the Washington attorney representing the NCTA, NAB and MPAA. "You can imagine all kinds of things that might be nice to have that still are not authorized by the law."

Corn-Revere also drafted A&E's comments warning of possible legal repercussions.

In the Telecommunications Act of 1996, Congress ordered the FCC to impose closed-captioning requirements. But with respect to video descriptions, the rule's opponents insist, Congress ordered the FCC to study the issue and do nothing else.

The FCC justified the adoption under its general rulemaking authority. The agency said that because Congress did not explicitly deny it the power to craft rules, it was not reaching beyond its scope of authority by requiring video description.

Corn-Revere called the FCC's rules "a rather direct example of compelled speech" in that they require TV program producers to create "entirely new scripts" for their programs.

"It raises the same constitutional question as if some federal agency required Multichannel News
to put out a Braille edition," he said.

ADVOCATES PRO AND CON

American Council for the Blind executive director Charles Crawford said he worked for 15 years to persuade the TV industry to provide video descriptions voluntarily, but got nowhere.

"I've been around and around with the TV people on this and they just don't want to do it," Crawford said. "There was no other choice than to go for a federal mandate that resulted in the FCC's rules."

Crawford called the legal attack on the rules "outrageous" and claimed the FCC had ample power to act.

"I am convinced the FCC properly conducted itself in terms of its rulemaking authority," he said.

But the National Federation of the Blind disagrees and plans to seek court reversal of some of the FCC's rules.

The NFB maintains the FCC should have restricted the video description mandate to non-entertainment programming that conveys health and safety information, such as weather alerts.

"We think the idea of descriptive video is a great idea. But we think that it is something that should not be mandated," said NFB lawyer Daniel Goldstein. "It should be left to the artists and we want to persuade those artists that part of their expression should be descriptive video."

The NFB is concerned that the sweeping nature of the FCC's rules gives the impression that blind people are excessively dependent on government assistance.

"The NFB sees blind people as competent and creative and able to develop alternative techniques to do an awful lot of things," Goldstein said.

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