G. Media Groups, Blind Federation Challenge Video Description Rules

     The Motion Picture Association of America (MPAA), National Association of Broadcasters (NAB), and National Cable & Telecommunications Association (NCTA) challenged the Federal Communications Commission’s video description rules, arguing that the FCC lacked statutory authority to adopt the regulations.  The National Federation of the Blind (NFB) also filed an appeal, claiming that the FCC’s decision was arbitrary, capricious, and an abuse of discretion.

     The FCC’s video description rules require major broadcast and cable net­works to provide “video description” of specified amounts of prime time or children’s program­ming.  The rules were adopted follow­ing enactment of the Telecommunications Act of 1996, which added new provisions to the Communications Act of 1934 regarding video programming accessibility.  Section 713 of the Act governs FCC authority with respect to closed captioning and video description of television programming.

     Closed captioning involves the textual display of the audio portion of video programming for the hearing impaired pursuant to technical specifications set forth in FCC rules.  See 47 C.F.R. Sec. 79.1(a)(4).  “Video description” for persons with visual disabilities is defined as “the insertion of audio narrated descriptions of a television program’s key visual elements into natural pauses between the program’s dialogue.”  47 U.S.C. Sec. 613(g). 

     Video description differs significantly from closed captioning in that it requires the creation of a new and entirely different script from the original program, as opposed to a verbatim transcription that converts spoken words to text.  Thus, in its Report to Congress on the issue, the Commission pointed out that any video description requirement necessitates “the development of a second script, which raises creativity and copyright issues.”  Closed Captioning and Video Description of Video Programming, 11 FCC Rcd. 19214, 19221-22 (1996).

     Section 713 of the Telecommunications Act established detailed requirements for closed captioning of video programming, but no comparable mandate for video description.  Specifically:

·        Section 713(a) required completion of a closed captioning inquiry and an FCC report to Congress within 180 days of the Act’s passage.

·        Sections 713(b) and (c) required the Commission to prescribe closed captioning regulations and established compli­ance deadlines.

·        Sections 713(d) and (e) established exemptions from closed cap­tioning, including an exemption for “undue burdens,” and set forth detailed criteria by which the FCC must consider such requests.

     In 2000, the FCC adopted rules that apply to broad­casters affiliated with the top four networks (ABC, CBS, NBC, and Fox) operating in the top 25 markets, and to the top five national non-broadcast cable networks carried by multi­channel providers serving 50,000 subscribers or more.  The rules require these outlets to provide 50 hours per calendar quarter of video-described prime-time and/or children’s program­ming.  47 C.F.R. Sec. 79.3 (2000). 

     The rules set forth detailed requirements for which programs, including re-runs, count toward fulfilling the FCC-prescribed minimums.  They also require all broadcasters affiliated or associated with a network, and all cable operators regardless of size, to pass through video descriptions provided by other program providers if the broadcaster or cable operator has the technical capability to do so. 

     Broadcasters and cable operators that fail to meet these requirements are subject to what the FCC called its “considerable discretion under the Act to [impose] sanctions and remedies.”  This may include compelling the provision of additional video-described programming in excess of that otherwise required.

     In adopting the order under review, the Commission acknowledged that Section 713 of the Telecom­munications Act did not establish FCC rulemaking authority for video description (as Section 713(b)-(e) had done for closed captioning).  However, the agency claimed that congressional silence “by itself neither authorizes nor precludes” such action. 

     The Commission asserted authority to adopt video descrip­tion rules not under Section 713(f), but from the Communications Act’s preface and the “more general rulemaking powers” in Sections 1, 2(a), 4(i), and 303(r) of the Act.  The FCC reasoned that it could exercise its general rulemaking authority in the absence of a statutory provision expressly prohibiting video description rules.

     The question of the FCC’s authority was central to the agency’s deeply divided decision to adopt video description rules.  Commissioners Michael Powell and Harold Furchtgott-Roth dissented from the FCC order, reasoning that the Communica­tions Act does not authorize FCC video description rules.     

     Commissioner (now Chairman) Powell gave a detailed account of the legislative history and evolution of Section 713(f).  He explained that the provision’s chronology and basic precepts of statutory interpretation precluded a finding that the FCC could use general grants of authority to undertake what Congress otherwise disallowed.

     Commissioner Furchtgott-Roth agreed, adding that the inference of “purposeful limitation” is strengthened by juxtaposing the contemporaneous mandate for closed captioning rules with the very limited authority for video description.  The Commission reaffirmed its rules in January 2001, which led to the appeal to the U.S. Court of Appeals for the District of Columbia Circuit.

     MPAA, NAB, and NCTA challenged the FCC’s authority to adopt video description rules.  MPAA v. FCC, No. 01-1149 (D.C. Cir. 2001).  Because Congress specifically addressed the question of whether to create rulemaking authority for video description and declined to do so, the groups argue that the FCC must adhere to the unambiguously expressed intent of Congress.  See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125-26, 132 (2000).  

     The groups dispute the FCC’s assumption that Congress was silent on the subject of video description, noting that rulemaking mandates contained in the House bill were deleted in conference committee in favor of mere reporting requirements regarding video description.  The challengers also argue that the Commission’s assertion of authority is invalid under basic principles of statutory construction. 

     A central argument is that the FCC’s assertion of authority is unreasonable because it would give the agency unchecked power over programming.  The challengers dispute the FCC’s claim that it may assert authority to make rules simply because the Communications Act “does not expressly negate the existence of a claimed administrative power (i.e., when the statute is not written in ‘thou shalt not’ terms).”  Railway Labor Executives’ Association v. National Mediation Board, 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (emphasis in original), amended, 38 F.3d 1224, cert. denied, 514 U.S. 1032 (1995). 

     The industry groups point out that if courts were “to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well.”  Id. (emphasis in original).  See Comsat Corp. v. FCC, 114 F.3d 223, 227 (D.C. Cir. 1997).  They endorse Commissioner Powell’s dissenting statement that the Commission’s claim of general rulemaking authority to adopt any affirmative content requirements it deems to be in the public interest, unless specifically prohibited by Congress, is “breathtaking.” 

     The challengers argue that the Commission’s reading of its statutory authority over programming content conflicts both with the “ultimate purposes” of the Communications Act as well as the “means” prescribed by Congress “for the pursuit of those purposes.”  MCI Telecomm. Corp. v. AT&T, 512 U.S. 218, 231 n.4 (1994).

     Finally, the challengers argue that the video description requirements create constitutional tensions by compelling program distributors to create new works of original authorship.  Riley v. National Federation of the Blind of N.C., Inc., 487 U.S. 781, 796-97 (1988) (“‘freedom of speech,’ ... necessarily compris[es] the decision of both what to say and what not to say” (emphasis in original)).  The FCC’s broad interpretation of the Communications Act to permit such compelled speech is therefore suspect, according to the appellants, because it raises unnecessary and substantial First Amendment problems.  See Jones v. United States, 526 U.S. 227, 239 (1999) (“[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.”).

     The National Federation of the Blind, the largest membership organization of blind citizens in the United States, filed comments with the FCC opposing adoption of the video description rules.  The group also filed a Petition for Review with the D.C. Circuit. 

     In its brief to the court, NFB pointed out that “the agency never once called for comment on whether there was a demand for video description.  Instead, the FCC started with an irrebuttable presumption about the ‘great benefits’ of video description, ... clung to that presumption even in the face of contrary evidence, and ultimately promulgated a rule that burdens programmers in total disproportion to any benefit that might be conferred on blind people.”  NFB had characterized the Commission’s choice “of described entertain­ment over accessible information” as “a misperception of the need coupled with an offensively meaningless solution to address it.”

     The FCC’s decision to adopt video description rules was supported by other organizations, including various groups of blind citizens, that filed comments in the rulemaking proceeding and intervened in the appeal.  These groups included the National Television Video Access Coalition; Metropolitan Washington Ear, Inc.; WGBH Educational Foundation; American Council of the Blind; Blinded Veterans Association; and American Foundation for the Blind.  They argued that the FCC’s rules were necessary to serve the blind population and they supported the FCC’s interpretation of statutory authority.