In a divided vote, the Federal Communications Commission adopted rules requiring broadcasters and multichannel video programming distributors to provide programming with "video descriptions" for the visually impaired. Implementation of Video Descriptions of Video Programming, Report and Order, MM Docket No. 99-339, FCC 00-258 (Aug. 7, 2000) ("Report and Order"). Such descriptions insert narration of settings and actions not otherwise reflected in dialogue into TV programs, describing actions such as the movement of persons in the scene. They are transmitted through the secondary audio programming (SAP) channel and are audible only when that channel is activated using a television or VCR with SAP capability. The Report and Order also includes rules on the visual presentation of televised emergency information. The Commission declined to reconsider the rules in early 2001.

    Generally, the new rules require that broadcasters affiliated with the top four networks (ABC, CBS, NBC, and Fox) in the top 25 markets as of Sept. 30, 2000 provide 50 hours per calendar quarter (roughly four hours per week) of video-described prime-time and/or children’s programming. In addition, multichannel providers with 50,000 or more subscribers must do the same for the top five non-broadcast cable networks (based on Nielsen prime time ratings) on their systems.

    All broadcasters must pass through video descriptions received from programmers if they have the technical capacity to do so, and all multichannel providers must also pass through video descriptions received from programmers if they have the technical capacity to do so on the channel on which the programming is delivered. The initial video description requirements take effect in mid-2002. The Commission indicated that it might require more broadcast stations and multichannel networks to provide video description over time, based on experience and demand after the new rules take effect. However, it declined to adopt a phase-in schedule for additional requirements. Although the Commission expects to impose video description requirements for digital broadcasters at some point, the current rules do not apply to DTV stations. The Report and Order encouraged -- but did not require -- programmers that provide video descriptions to take steps to educate and inform the public about the service by, for example, providing information in published programming schedules or on their Web sites.

    Commissioners Harold Furchtgott-Roth and (now Chairman) Michael Powell dissented in part from the Report and Order. Both cited a lack of statutory authority for the Commission to adopt video description rules, especially given that Congress considered and rejected a provision in the 1996 Act that would have empowered it to adopt such rules. Commissioner Powell supported the rules requiring video description for emergency information.

    Some of the presumed beneficiaries of the video description rules were also among the dissenters. Some organizations for the visually impaired -- notably the American Foundation for the Blind -- supported the video description rules. However, others, such as the National Federation for the Blind (NFB) -- the largest organization of blind people in the United States, with more than 50,000 members -- opposed them. In its comments to the FCC, the NFB stated that "[s]ome [blind people] like the service of ‘descriptive video’; some dislike it; many are frankly indifferent."

    The comments described current examples of video description as "irritating, overdone, and full of irrelevant information," and noted that many visually impaired people who have experimented with secondary audio "turn it off in relief and watch the program with our other senses in peace." Although NFB agreed that, when "done right," video description "can add to the entertainment value of certain movies and television programs," it concluded that fact "does not justify a federal mandate for its use."

    The Report and Order was silent about the NFB’s opposition, prompting Commissioner Furchtgott-Roth to remark that "one would have to be particularly astute, even psychic, to glean" from the Report and Order "the express opposition of the [NFB], the largest and most historically significant force of and for the blind." Report and Order, Statement of Harold W. Furchtgott-Roth, Concurring in Part and Dissenting in Part. In its petition asking the Commission to reconsider the video description order, NFB pointedly remarked: "The Commission’s choice of described entertainment over accessible information is a misperception of [a] need coupled with an offensively meaningless solution to address it."

    The FCC’s legal authority to adopt video description rules has been questioned on both statutory and constitutional grounds. Opponents of the rules point out that Section 713 of the Telecommunications Act of 1996 and its legislative history not only failed to empower the FCC to adopt video description mandates but intentionally declined to extend such authority to the Commission. Critics further suggest that the video description rules violate the First Amendment prohibition against compelled speech.

    Statutory Authority. With respect to the statutory argument, the Commission majority agreed that the "statutory history indicates that Section 713 should not be construed to authorize a Commission rulemaking" on video description. Report and Order, at para. 58 (citing H.R. Conf. Rep. No. 104-458, at 184 (1996)). It also agreed that "if Section 713 prohibited us from adopting video description rules we could not rely on our general rulemaking authority to do so." Id. at para. 59. The Commission concluded, however, that because Section 713 did not prohibit video description rulemaking, but rather merely declined to authorize such action, the Commission could rely on its general rulemaking authority to support video description rules.

    The Commission’s analysis of the latitude permitted by Congress may be overly generous to the extent the legislature considered, but rejected, such a grant of authority. In this regard, the different treatment of closed captioning requirements in the Act compared to those for video description is instructive. Section 713(a) of the Telecommunications Act required the Commission to conduct a closed captioning inquiry and report its findings to Congress, and Sections 713(b) and (c) required prescription of closed captioning regulations and compliance deadlines. Section 713(f) required the Commission to commence a video description inquiry and report its findings to Congress, but it contained no provision for FCC-prescribed video description rules.

    This omission of such authority was intentional, not accidental. Language in the House version of the bill that would have authorized the FCC to adopt video description regulations was purposefully dropped prior to enactment. S. Conf. Rep. No. 104-230 (1996), reprinted in 1996 U.S.C.C.A.N. 1, 197 ("The conference agreement adopts the House provision with modifications which ... delete[ ] the House provision referencing a Commission rulemaking with respect to video description.").

    Legislative history such as this generally should not be interpreted as congressional silence. "A statute listing the things it does cover exempts, by omission, the things it does not list. As to the items omitted, it is a mistake to say that Congress has been silent. Congress has spoken -- these are matters outside the scope of the statute." Original Honey Baked Ham Company v. Glickman, 172 F.3d 885, 887 (D.C. Cir. 1999). Where Congress includes particular language in one section of a statute but omits it in another section of the same act, "it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion and exclusion." Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991).

    In such circumstances, it is far from clear that the FCC could adopt video description rules under its general authority to enforce the Communications Act. The U.S. Supreme Court’s recent decision in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), sheds some light on this issue. There, the Court held that the FDA was not empowered to regulate tobacco products as "drugs" or "devices" under the general provisions of its statutory charter given that "Congress considered and rejected bills that would have granted the FDA such jurisdiction."

    First Amendment Questions. Although the Commission did not mention possible First Amendment concerns in its Notice of Proposed Rulemaking on video description, the majority concluded in the Report and Order that the rules are constitutional because they are content neutral and serve the public interest. The FCC also discounted any burden on the affected networks, asserting that video description rules merely "require a programmer to express what it has already chosen to express in alternative format," and "are comparable to a requirement to translate one’s speech into another language." Report and Order, at paras. 62-63.

    Commissioner Powell, however, wrote that "the Order wrongly analogizes the ease of video description to closed captioning. It is important to note that video description is a creative work. It requires a producer to evaluate a program, write a script, select actors, decide what to describe, decide how to describe it and choose what style or pace." Id., Statement of Commissioner Michael Powell, at 7.

    Such mandates raise significant issues under the compelled speech doctrine. Just as the First Amendment limits the government’s ability to restrict what a person can say, it also prevents the government from forcing an unwilling speaker to communicate. As the Supreme Court has emphasized, "‘[s]ince all speech inherently involves choices of what to say and what to leave unsaid,’ one important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’" Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 573 (1995) (emphasis in original) (quotation omitted).

    The Court has made clear that "the First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision of both what to say and what not to say." Riley v. National Federation of the Blind of N.C., Inc., 487 U.S. 781, 796-97 (1988). See also Wooley v. Maynard, 430 U.S. 705, 714 (1977) ("the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all"). The Court has rejected the argument that the government may compel statements of fact rather than opinion, noting that "either form of compulsion burdens protected speech." Riley, 487 U.S. at 797-98.

    The compelled speech question presented by video description rules is even more significant than the one posed by closed captioning rules. With closed captions, the producer or distributor of a program is required to provide existing dialogue in visual form. But with video description, as Commissioner Powell pointed out, the producer would be required to create material that was never before part of the prior work and to alter the program to conform with federal regulations. Such a legal requirement to write new material and to modify creative works is without precedent in American law.

    The constitutional issues seem evident when considering the application of such rules to the print medium. Few would suggest, for example, that the federal government constitutionally could order the New York Times to produce a Braille edition, however meritorious that might be. The question presented by the Commission’s video description order, however, is whether the public trustee doctrine, by which broadcasters may be regulated in ways the traditional press cannot, will support this further intrusion. It also presents the question of whether such programming requirements can be extended to non-broadcast networks that have never before been subject to the same public trustee obligations or constitutional limits.