E.  FCC Lacks Authority

To Require Video Description

 

      The U.S. Court of Appeals for the District of Columbia Circuit vacated Federal Communications Commission rules that required the largest broadcast networks and the most popular cable networks to provide video description, a service for the blind that provides descriptions of a television program’s key visual elements on a secondary audio channel.  Motion Picture Association of America v. FCC, 309 F.3d 796 (D.C. Cir. 2002).  Granting an appeal filed by the Motion Picture Association of America (MPAA), National Association of Broadcasters (NAB), and National Cable & Telecommunications Association (NCTA), the court held that the Commission lacked statutory authority to adopt the rules.  In doing so, the court sharply limited the FCC’s inherent authority to impose programming requirements in general, holding that the Commission cannot impose such rules without express congressional authority. 

 

Video Description Rules

      In rules adopted in 2000, the FCC ordered major broadcast and cable networks to provide “video description” of specified amounts of prime time or children’s programming.  The rules followed the enactment of the Telecommunications Act of 1996, which included new provisions on video programming accessibility. 

      Section 713 of the Act established detailed requirements for closed captioning of video programming for the hearing impaired, but no comparable mandate for video description for the blind.  Closed captioning involves the textual display of the audio portion of video programming for the hearing impaired.  “Video description,” by contrast, is “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 because 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.  Section 713 set forth a timetable for an FCC rulemaking on closed captioning and prescribed certain exemptions, but for video description it merely directed the FCC to submit a report to Congress.           

      Undeterred by the lack of statutory direction, the FCC adopted rules that required broadcasters affiliated with the top four networks (ABC, CBS, NBC, and Fox) operating in the top 25 markets, and the top five national non-broadcast cable networks carried by multi­channel providers serving 50,000 subscribers or more, to provide 50 hours per calendar quarter of video-described prime-time and/or children’s programming.  The Commission acknowledged that Section 713 did not establish FCC rulemaking authority for video description (as Section 713(b)-(e) had done for closed captioning), but claimed that congressional silence “by itself neither authorizes nor precludes” such action. 

      The FCC 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 Section 1 and other miscellaneous provisions of the Act.  The Commission reasoned that it could exercise its general rulemaking authority in the absence of a statutory provision expressly prohibiting video description rules.

 

Appeal to D.C. Circuit

      MPAA, NAB, and NCTA challenged the FCC’s authority to adopt video description rules.  They were joined by the National Federation of the Blind (NFB), the largest membership organization of blind citizens in the United States.  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.” 

      The FCC’s decision was supported by other organizations, including various groups of blind citizens.  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 supported the FCC’s interpretation of statutory authority.       

      In an opinion written by Judge Harry Edwards, the court rejected the FCC’s claim of authority to adopt video description rules, noting the “marked difference” in treatment of closed captioning and video description by Congress.  It compared the respective provisions in the Act and found that “a strong argument can be made that Congress meant not to authorize the Commission to mandate video description.”  The court noted that “Congress authorized and ordered the Commission to produce a report -- nothing more, nothing less. The statute does not, as with closed captioning, instruct (or even permit) the FCC to promulgate regulations mandating video description.” (emphasis in original).  Ultimately, the court found it was unnecessary to decide “whether Section 713 positively forecloses agency rules mandating video description,” and it concluded simply “that Section 713 does not authorize the FCC to adopt such rules.” 

      The decision focused more closely on the FCC’s argument that it had inherent authority to adopt rules pursuant to Section 1 of the Act, which empowers the Commission to “make available to all Americans a radio and wire communication service.”  The court rejected the FCC’s argument as “very frail,” primarily because “it completely ignores the fact that video description regulations significantly implicate program content.” 

      Judge Edwards distinguished closed captioning, which requires the production only of a “simple transcript, a precise repetition of the spoken words,” from video description, which “requires an interpretation of visual scenes.”  Producers and script writers must “decide on what to describe, how to characterize it, and the style and pace of video descriptions” and “will have to describe subtleties in movements and mood that may not translate easily.”  “In short,” the court found, “implementation of video descriptions invariably would entail subjective and artistic judgments that concern and affect program content.”

      Judge Edwards wrote that the FCC lacked authority to adopt video description rules “because Section 1 merely authorizes the agency to ensure that all people of the United States, without discrimination, have access to wire and radio communication transmissions.”  It does not otherwise authorize the FCC to regulate program content, as the video description regulations clearly do.”  The court agreed with the appellants that “both the terms of Section 1 and the case law amplifying it focus on the FCC’s power to promote the accessibility and universality of transmission, not to regulate program content.”  That is, when the FCC was established, Congress gave it the authority to ensure that communications service reached all parts of the nation.  It did not empower the agency to dictate what those radio signals should contain.

      One of the reasons why Section 1 has not been construed to allow the FCC to regulate programming content, according to the court, is because “such regulations invariably raise First Amendment issues.”  Consequently, the court found that “Congress has been scrupulously clear when it intends to delegate authority to the FCC to address areas significantly implicating program content.” 

      In this connection, the FCC’s claim that the video description rules were “content neutral” was considered to be “irrelevant” to the inquiry as to whether the Commission had the power to regulate content in the first instance.  The court also found that the FCC’s assertion of authority in this area conflicted with other statutory limits, including Section 624(f) (providing that “[a]ny Federal agency ... may not impose requirements regarding the provision or content of cable services, except as expressly provided in this title”) and Section 326 (providing that the FCC does not possess the power of censorship, and “no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication”). 

      Judge Karen LeCraft Henderson concurred, finding that neither Section 1 nor Section 713 provided the FCC with authority to adopt video description rules.  But she disagreed with Judge Edwards’s observations about the extent to which video description rules regulate content, noting: “I fail to see how video description need consist of anything more than spoken stage directions.”

      The decision is significant for reasons beyond the demise of the video description rules.  For the first time, the court limited the FCC’s inherent authority to regulate programming without express congressional authorization.  And it construed the First Amendment, Section 326, and Section 624(f) as limiting the Commission’s otherwise broad grant of authority.

 

--Robert Corn-Revere

 

The author was lead counsel for MPAA, NAB, and NCTA, and argued MPAA v. FCC, 309 F.3d 796 (D.C. Cir. 2002).