Television for all: increasing television accessibility for the visually impaired through the FCC's ability to regulate video description technology.

• Jurisdiction: United States
• Date: 01 March 2011
• Author: Robare, Joshua S.

1. INTRODUCTION II. REACHING THE DECISION A. The Effects of the 1996 Telecommunications Act B. Initial Reception to the Video Description Regulations--the Battle Begins III. CONFLICT AND CHANGES A. Why Is This a Problem? B. The Effect of Video Descriptions on the Television Industry C. Showdown: Video Description Versus Closed Captioning D. The Transition to Digital Television's Effect on Video Descriptions IV. SOLUTIONS TO THE CURRENT SITUATION A. Stimulating the Video Description Market B. Federal Regulation Mandating Implementation of Video Description Technology V. CONCLUSION I. INTRODUCTION

   Many people take for granted the relatively simple action of sitting down at the end of the day and turning on the television. They can relax and let wave after wave of sounds and images wash over them, relieving their stress and tension. Regardless of whether the dial is set to sports or a soap opera, news or nonsense, drama or comedy, television is something that has become part of the fabric of almost every person's life. However, there are a significant number of people in the United States who are unable to enjoy this activity. The U.S. judicial system has created a "have and have-not" dichotomy when it comes to persons with disabilities enjoying television. As a result of the D.C. Circuit's 2002 decision in Motion Picture Association of America, Inc. v. Federal Communications Commission, the FCC is allowed to regulate closed captioning, forcing television manufacturers and broadcasters to implement technology that will allow deaf Americans to enjoy television more fully. (1) In the same decision, the court found that the FCC did not have power to promulgate regulations regarding video descriptions (2) that would allow blind and seeing-impaired Americans to have a more complete television experience, similar to those without a disability. (3)

   The Survey of Income and Program Participation is a national survey that collects data on a regular basis to identify the percentage of the American population with heating loss or deafness. (4) This survey has found that "1 in 20 Americans are currently deaf or hard of heating. In round numbers, nearly 10,000,000 persons are hard of hearing and close to 1,000,000 are functionally deaf." (5) Americans who suffer from hearing loss or complete deafness have become the "haves" when it comes to the FCC's ability to provide a satisfactory television experience; since 1993, the FCC has taken steps to make sure that closed captioning (6) is available to as many Americans as possible. (7) The ability of the FCC to help those with hearing problems is in stark contrast to its ability to help those with seeing problems through the use of video descriptions. Allowing the FCC to regulate video descriptions would help the 25.2 million Americans who have reported problems seeing, many of whom are unable to see at all. (8)

   This Note argues that the time has come to take action and increase availability of video descriptions. Part II of this Note examines the court's decision in Motion Picture Association of America. It considers both the views of the visually impaired community and the entertainment industry leading up to the court's decision. Part II further examines the major justifications that the court used in reaching its decision. Part III begins by exploring why the lack of video description technology is a problem. As a result of the decision in Motion Picture Association of America, closed captioning and video description have been placed in juxtaposition to one another. This Section explores the divergence in treatment between the two and whether those differences justify their disparity in treatment under the current regulatory scheme. The Section ends by looking at the changes available for video description technology as a result of the digital transition and how the change affects the ease of implementing the technology. Part IV of this Note explores two possible solutions to the problem. The first solution requires the government to provide brief financial support to the video description industry in an effort to make it self-sustaining. The second solution suggests passing legislation similar to the proposed Twenty-First Century Communications and Video Accessibility Act, which aims to restore the FCC's ability to regulate video descriptions.

2. REACHING THE DECISION

   Several important factors led to the decision in Motion Picture Association of America The 1996 amendments to the Communications Act of 1934 started a chain reaction of events within the FCC. It was not until the decision in Motion Picture Association of America that key questions about video descriptions were answered. The court had to look not only at how video descriptions were made, but also at the inherent power that the FCC was granted by Congress to carry out its duties.

   1. The Effects of the 1996 Telecommunications Act

      The holding in Motion Picture Association of America was largely influenced by the 1996 Telecommunications Act. The Act, which amended the Communications Act of 1934 changed the FCC's control over programming accessibility by adding provisions about both closed captioning and video descriptions. (9) The first five subsections, refer to the FCC's powers relating to closed captioning; only the last two deal with video descriptions. (10) The provisions relating to closed captioning required the FCC to make a full report to Congress, create regulations specifying actions that the television industry needed to make to implement closed captioning technology, and create a timeline specifying when the new technology needed to be in place. (11) The last two subsections dealing with video descriptions were extremely brief in comparison to their closed captioning counterparts. (12) The Act merely defined the term video description and called on the FCC to make a report and present it to Congress. (13)

      Examining the congressional record of the Act does little to clear up whether Congress intended to grant the FCC equal power to regulate closed captioning and video descriptions. With regard to video descriptions, the House version of the bill included the following language:

      The report shall assess appropriate methods for phasing video descriptions into the marketplace, technical and quality standards for video descriptions, a definition of programming for which video descriptions would apply, and other technical and legal issues. Following the completion of this inquiry the Commission may adopt regulations it deems necessary to promote the accessibility of video programming to persons with visual impairments. (14) The last sentence of this excerpt would seem to support the contention that Congress did not intend for there to be disparate treatment of closed captioning and video description, but instead wanted the FCC to be able to create and enforce rules and regulations regarding both. This is further supported by the concluding lines in the congressional record on the topic, which read: "It is the goal of the House to ensure that all Americans ultimately have access to video services and programs, particularly as video programming becomes an increasingly important part of the home, school and workplace." (15) When the House and Senate were working to reach the final version of the bill, the conference committee excluded the language about the FCC's power to create and enforce regulations regarding video descriptions, (16) although the record is unclear as to why.

      Despite the statutory differences, the FCC initially attempted to treat video descriptions and closed captioning the same. The FCC was acting under the belief that Congress had passed the bill hoping to bring universal access to television, regardless of disability. (17) After the passage of the Act, the FCC required cable operators, broadcasters, satellite distributors, and other multichannel video programming distributors to close caption their television programs. (18) The FCC created a transition schedule that required an increasing amount of programming to include closed captioning each year. (19)

      The FCC also began creating requirements and timetables for video descriptions. These requirements stated that broadcasters affiliated with the ABC, CBS, Fox, and NBC would be required to provide video descriptions for a minimum of fifty hours per calendar quarter of prime-time or children's programming. (20) The requirements additionally applied to other television providers who had 50,000 or more subscribers. (21)

      Forecasting the challenges it would face in court, the FCC itself was divided on whether it had the authority to make the changes to video description requirements. It was a close three-to-two vote by the FCC Commissioners in favor of creating and enforcing the regulations. (22) In his dissenting opinion, Commissioner Michael K. Powell said that the FCC lacked authority because, "Congress spoke to video description in section 713(f), and purposely limited the Commission to studying the issue and reporting to Congress...." (23) Commissioner Powell specifically looked at the actions of the conference committee in striking the provisions regarding the FCC's authority to pass video description regulations as making it "abundantly clear that Congress specifically considered granting discretionary authority to the FCC to promulgate video description rules and elected not to do so." (24)

      The majority of the Commissioners did not find the fact that Congress took out the clause as dispositive of its intent to prevent the FCC from making rules regarding video descriptions. The majority stated:

      While this history indicates that section 713 [of the Telecommunications Act of 1996] should not be construed to authorize a Commission rulemaking, the history does not indicate that section 713 should be construed to prohibit such a rulemaking, given our otherwise broad powers to make rules, as expressed in sections 4(i) and 303(r) of...