Court Nixes FCC Video-Description Regs

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The piecemeal renovation of key Federal Communications Commission policies adopted under former chairman William Kennard continues in federal court.

The most recent example of this came Nov. 8, when a panel of the U.S. Court of Appeals unanimously struck down FCC video-description rules designed to help millions of visually impaired television consumers. The court said Congress never authorized the agency to act in this area — even indirectly.

The Motion Picture Association of America — joined by the National Cable & Telecommunications Association and the National Association of Broadcasters in a rare alliance — was the latest industry group to claim victory over the FCC.

"We welcome the [court's] decision … to vacate the FCC rules that would require video description of programs for broadcast on TV and cable/satellite networks," said MPAA president Jack Valenti, who added that Hollywood would continue to accommodate the blind on a voluntary basis.

Many examples

A court decision to toss out rules adopted during Kennard's three-year tenure has almost become routine.

Over the last 22 months, the same court has either eliminated or sent back to the FCC for reconsideration a batch of rules, including limits on cable-system ownership, restrictions on national and local broadcast ownership, and rules intended to open incumbent phone networks to more data and local voice competition.

But the ruling two weeks ago was probably the most embarrassing reversal, because the court was so direct in stating that the FCC had no legal basis to adopt video-description mandates.

The video-description rules, adopted in July 2000, were opposed by then-FCC commissioners Michael Powell (now the agency's chairman) and Harold Furchtgott-Roth, for reasons similar to those embraced by the court.

The rules, pushed by Kennard to illustrate his concern for the handicapped, required TV programmers to insert scene-setting narrations to give blind and visually impaired audience members a richer sense of the programming.

The FCC estimated that the rules would benefit 12 million people with vision problems that cannot be corrected with glasses or contact lenses.

The agency also noted that video descriptions would assist an estimated 500,000 children in overcoming learning disabilities.

After taking effect in April, the rules required ABC, CBS, Fox and NBC affiliates in the top 25 markets to describe 50 hours of primetime or children's programming per quarter.

Cable operators and satellite carriers with 50,000 or more subscribers were required to do the same for each of the top five non-broadcast networks they distributed.

Nets are reviewing

Cable networks that had to comply with the rules are reviewing the court's decision.

"Lifetime is carefully looking at how to best serve our viewers in light of the recent court … decision to overturn the FCC rule on requiring verbally described programming. In the meantime, we do expect to continue to offer previously described programming as well as to complete description for planned 2003 programming," said Lifetime Television spokeswoman Patricia Kollappallil.

The MPAA, NAB and NCTA argued that in the Telecommunications Act of 1996, Congress mandated broad industry adoption of closed captioning, or the verbatim transcription of programs to assist the hearing-impaired. But with respect to video descriptions, Congress permitted the FCC to study the issue and nothing more, they said.

The FCC attempted to sidestep the legal-authority issue by invoking general rulemaking powers to promote the public interest that are sprinkled throughout communications law.

The court did not embrace this view, stating that video description is "a direct regulation of program content" that's far different from captioning.

"One is a simply a transcript, a precise repetition of the spoken words. The other requires the intrepretation of visual scenes. They are not the same," said Judge Harry T. Edwards in a 16-page opinion joined by Judges Karen Lecraft Henderson and Judith W. Rodgers.

Edwards said the FCC could not rely on generalized grants of authority to craft rules that "significantly implicate program content."

Because of the sensitive nature of the case, reaction to the ruling was muted. The NAB declined to comment.

"We believe the court reached the right result in finding that the FCC exceeded its statutory authority," said NCTA senior vice president of law and regulatory policy Dan Brenner.

Proponents of the rules were disappointed. The Media Access Project, a public-interest law firm, blasted the ruling for egregiously overlooking the needs of the visually impaired.

"The court radically reinterpreted existing law to conclude that the FCC cannot act in the public interest absent an extremely specific directive from Congress," said MAP lawyer Cheryl A. Leanza.

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