United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2002 Decided November 8, 2002

No. 01-1149

Motion Picture Association of America, Inc., et al.,

Petitioners

v\.

Federal Communications Commission and

United States of America,

Respondents

National Television Video Access Coalition, et al.,

Intervenors

\-\-\-\-\-\-\-\--

Consolidated with

01-1155

On Petitions for Review of Orders of the

Federal Communications Commission

\-\-\-\-\-\-\-\--

Robert Corn-Revere argued the cause for petitioner Motion Picture
Association of America, Inc., et al. With him on the briefs was Ronald
G. London.

Daniel F. Goldstein argued the cause and filed the briefs for petitioner
National Federation of the Blind.

C. Grey Pash, Jr., Counsel, Federal Communications Commission, argued
the cause for respondents. With him on the brief were Jane E. Mago,
General Counsel, Daniel M. Armstrong, Associate General Counsel, and
Jacob M. Lewis, Attorney, United States Department of Justice. Catherine
G. O\'Sullivan, Chief Counsel, and Nancy C. Garrison, Attorney, United
States Department of Justice, entered appearances.

Donald J. Evans argued the cause for intervenors. With him on the brief
were Liliana E. Ward, Keith A. Noreika, and Robert A. Long, Jr.

Before: Edwards, Henderson, and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Edwards.

Concurring opinion filed by Circuit Judge Henderson.

Edwards, Circuit Judge: The Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56 (\"the Telecommunications Act\"), added new
provisions covering video programming accessibility to the
Communications Act of 1934, 47 U.S.C. § 151 et seq. (\"the Act\"). The
new provisions, codified in § 713 of the Communications Act, 47 U.S.C. §
613, specifically dealt with \"closed captioning\" and \"video
description\" technologies that can be employed to enhance television
video services for hearing and visually impaired individuals. Closed
captioning displays the audio portion of television signals as words
displayed on the screen and can be activated at a viewer\'s discretion.
Video descriptions provide aural descriptions of a television program\'s
key visual elements (such as the movement of a person in a scene) that
are inserted during pauses in the program dialogue. Video descriptions
change program content because they require the creation of new script
to convey program details, whereas closed captions present a verbatim
transcription of the program\'s spoken words.

Congress treated the two technologies quite differently when it passed
the Telecommunications Act, which added § 713 to the Communications Act.
Section 713(a) required the Commission to complete a closed captioning
inquiry and to report its findings to Congress within 180 days of the
Act\'s passage. 47 U.S.C. § 613(a). Sections 713(b) and (c) required the
Commission to prescribe closed captioning regulations and established
compliance deadlines. 47 U.S.C. § 613(b)-(c). Sections 713(d) and (e)
established exemptions from the closed captioning rules. 47 U.S.C. §
613(d)-(e). In contrast, subsections 713(f) and (g) - the sole
subsections dealing with video description - merely defined \"video
description\" and required the FCC to prepare a report to Congress. 47
U.S.C. § 613(f)-(g). Unlike the provisions covering closed captioning, §
713 did not authorize the Commission to adopt regulations implementing
video descriptions.

After releasing a report on video description, the FCC announced that it
was seeking commentary on proposed rules mandating video description.
Implementation of Video Description of Video Programming, Notice of
Proposed Rulemaking, 14 F.C.C.R. 19,845 (1999) (\"Notice of Proposed
Rulemaking\"). The FCC then adopted rules mandating television
programming with video descriptions. Implementation of Video Description
of Video Programming, Report and Order, 15 F.C.C.R. 15,230 (2000)
(\"Report and Order\"). The Motion Picture Association of America
(\"MPAA\") and the National Federation of the Blind (\"NFB\") both
petitioned this court for review of the agency\'s regulations mandating
video descriptions. MPAA contends that the new regulations should be
struck down because they are not authorized by § 1 and they are
precluded by § 713 of the Act. See 47 U.S.C. §§ 151, 613. NFB contends
that the regulations should be rejected as arbitrary and capricious,
because the FCC failed to assess whether visually impaired persons
actually want or need video description, as opposed to rules requiring
spoken articulation of on-screen text.

By its terms, the Act does not provide the FCC with the authority to
enact video description rules. Contrary to the FCC\'s arguments
suggesting otherwise, § 1, 47 U.S.C. § 151, does not give the FCC
unlimited authority to act as it sees fit with respect to all aspects of
television transmissions, without regard to the scope of the proposed
regulations. We hold that where, as in this case, the FCC promulgates
regulations that significantly implicate program content, § 1 is not a
source of authority. Because the FCC can point to no other statutory
authority, the video description regulations must be vacated.
Accordingly, MPAA\'s petition for review is hereby granted. NFB\'s
petition for review is dismissed as moot, because the regulations to
which they object will be vacated pursuant to the court\'s judgment in
this case.

I. Background

The Telecommunications Act added to the Communications Act new video
programming accessibility provisions involving closed captioning and
video description. 47 U.S.C. § 613. Video description is defined in the
statute to include \"the insertion of audio narrated descriptions of a
television program\'s key visual elements into natural pauses between
the program\'s dialogue.\" Id. § 613(g). Video descriptions are usually
transmitted over a secondary audio programming channel, a subcarrier
that allows video distributors to transmit additional soundtracks, such
as foreign language programming. Closed Captioning and Video Description
of Video Programming, Report, 11 F.C.C.R. 19,214, 19,221 (1996) (\"Video
Accessibility Report\").

There is a marked difference between Congress\' treatment of closed
captioning and video description in § 713 of the Act. The new provision
required the FCC to complete an inquiry into closed captioning, and
report the results to Congress within 180 days of the Act\'s passage. 47
U.S.C. § 613(a). It also affirmatively required that the FCC prescribe
regulations for the implementation of closed captioning, id. § 613(b),
and established compliance deadlines for that action, id. § 613(c). In
contrast, § 713 only required that the FCC prepare a video description
report for Congress; it did not mandate any implementation of visual
descriptions. Id. § 613(f).

The initial House bill preceding the enactment of § 713 would have
required the FCC to adopt video description rules. See Report and Order,
15 F.C.C.R. at 15,274 n.9 (Powell, dissenting) (noting that H.R. 3636 §
206 provided that the FCC \"shall, within 1 year of enactment of the
\[video programming accessibility\] section, prescribe such regulations
as are necessary to ensure that all video programming is fully
accessible to individuals with disabilities through the provision of
closed captioning service and video description\" (emphases and
bracketed language in original)). However, the bill was amended in
committee to provide a discretionary grant of authority rather than
mandate that the FCC provide video description. The new language
provided that, \"\[f\]ollowing the completion of such inquiry, the
Commission may adopt regulation \[sic\] it deems necessary to promote
the accessibility of video programming to persons with visual
impairments.\" Amendment No. 8 to H.R. 3636 (Moorhead) (Mar. 16, 1994),
reprinted in Joint Appendix (\"J.A.\") 237. This new version of the bill
passed the House in 1995. H.R. 1555, § 204(f), 104th Cong. (1st Sess.
1995), reprinted in J.A. 254-59.

The corresponding Senate bill, however, only directed the FCC to report
to Congress about video description: It neither mandated video
description nor provided the FCC with discretionary authority to adopt
such rules. S. 652, § 305, 104th Cong. (1st Sess. 1995), reprinted in
J.A. 251-53. The conference committee adopted the Senate version,
abandoning the House language providing the FCC with discretionary
authority. Congress passed this version of the bill and the President
signed it into law.

After the enactment of § 713, the FCC issued the report that the Act
mandated. The report stated that \"the best course is \... to continue
to collect information and monitor the deployment of video description
and the development of standards for new video technologies that are
likely to affect the availability of video description.\" Video
Accessibility Report, 11 F.C.C.R. at 19,271. The FCC supplemented this
report with a second report, Annual Assessment of the Status of
Competition in the Market for the Delivery of Video Programming, Report,
13 F.C.C.R. 1034 (1998). Then, in 1999, the FCC announced that it was
seeking commentary on proposed rules that would mandate video
description. Notice of Proposed Rulemaking, 14 F.C.C.R. 19,845.

The Commission sought commentary, inter alia, about whether the FCC
possessed statutory authority to enact such rules. Id. at 19,857-59 pp
34-39.

After reviewing the comments, the FCC voted 3-2 to adopt rules requiring
certain video programmers to supplement certain programming with video
descriptions. See Report and Order, 15 F.C.C.R. 15,230. The FCC
concluded that it possessed the statutory authority to adopt these rules
pursuant to § 1 of the Act. 47 U.S.C. § 151. Section 1 gives the FCC
authority to regulate \"interstate and foreign commerce in communication
by wire and radio so as to make available, so far as possible, to all
the people of the United States\.... a rapid, efficient, Nation-wide,
and world-wide wire and radio communication service\....\" 47 U.S.C. §
151. The FCC majority also rejected the argument that § 713, 47 U.S.C. §
613, precluded the agency from mandating video description merely
because the provision only authorized the FCC to conduct an inquiry.
Report and Order, 15 F.C.C.R. at 15,252-54 pp 57-61. Finally, the FCC
found that the record demonstrated \"the importance of video description
to persons with visual disabilities.\" Id. at 15,232 p 4. The FCC
primarily based this conclusion on the American Council for the Blind\'s
submission, which contained more than 250 e-mails and letters of support
for the rules. Id.

The FCC\'s video description rules require commercial television
broadcasters affiliated with the top four commercial networks (ABC, CBS,
Fox, and NBC) to provide fifty hours of video description per quarter
during either prime time or children\'s programming. 47 C.F.R. §
79.3(b)(1). The rules also require multichannel video programming
distributors that serve 50,000 or more subscribers to provide fifty
hours of video description per quarter during prime time or children\'s
programming on each channel that carries one of the top five
nonbroadcast networks. Id. § 79.3(b)(3).

Commissioners Powell and Furchtgott-Roth dissented from the visual
description order, because they did not believe that the Communications
Act authorized the FCC to adopt video description rules. Id. at
15,268-69 (Furchtgott-Roth, dissenting); 15,272-76 (Powell, dissenting).

Various parties sought reconsideration of the FCC\'s Order, primarily on
the ground that the rules exceeded the FCC\'s legal authority. Petition
for Reconsideration of the MPAA, MM Docket No. 99-339, Oct. 11, 2000,
reprinted in J.A. 330-38; Petition for Partial Reconsideration and
Clarification Submitted by the National Association of Broadcasters, MM
Docket No. 99-339, Oct. 11, 2000, reprinted in J.A. 339-54; Petition for
Reconsideration of the National Cable Television Association, MM Docket
No. 99-339, Oct. 11, 2000, reprinted

in J.A. 355-74. The FCC denied reconsideration, although it did refine
certain implementation issues related to the new rules. Implementation
of Video Description of Video Programming, Memorandum Opinion and Order
on Reconsideration, 16 F.C.C.R. 1251 (2001), erratum issued, 66 Fed.
Reg. 16,618 (Mar. 27, 2001). MPAA and NFB then filed petitions for
review.

II\. Analysis

A. Standard of Review

In deciding whether to defer to the FCC\'s construction of the Act, we
adhere to the tests enunciated by the Supreme Court in Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and
United States v. Mead Corp., 533 U.S. 218 (2001). In Chevron, the Court
held that, \"\[i\]f the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.\" 467 US. 842-43. This
is so-called \"Chevron Step One\" review. If Congress \"has not directly
addressed the precise question\" at issue, and the agency has acted
pursuant to an express or implicit delegation of authority, the
agency\'s interpretation of the statute is entitled to deference so long
as it is \"reasonable\" and not otherwise \"arbitrary, capricious, or
manifestly contrary to the statute.\" Id. at 843-44. This is so-called
\"Chevron Step Two\" review. In either situation, the agency\'s
interpretation of the statute is not entitled to deference absent a
delegation of authority from Congress to regulate in the areas at issue.
See Ry. Labor Executives Ass\'n v. Nat\'l Mediation Bd., 29 F.3d 655,
671 (D.C. Cir. 1994) (en banc) (Chevron \"deference is warranted only
when Congress has left a gap for the agency to fill pursuant to an
express or implied \'delegation of authority to the agency.\"\')
(quoting Chevron, 467 U.S. at 843-44).

Mead reinforces Chevron\'s command that deference to an agency\'s
interpretation of a statute is due only when the agency acts pursuant to
\"delegated authority.\" 533 U.S. at 226-27. The Court in Mead also
makes it clear that, even if an agency has acted within its delegated
authority, no Chevron deference is due unless the agency\'s action has
the \"force of law.\" Id. at 227.

In this case, the principal question is whether Congress \"delegated
authority\" to the FCC to promulgate visual description regulations.
Absent such authority, we need not decide whether the regulations are
otherwise \"reasonable.\" An agency may not promulgate even reasonable
regulations that claim a force of law without delegated authority from
Congress.

B. The FCC Lacks Statutory Authority to Adopt the Video Description
Rules

MPAA argues that § 713 precludes the adoption of rules mandating video
description and that § 1 does not otherwise authorize the FCC to adopt
video description rules. We largely agree, although we rest principally
on the latter point.

1\. Section 713

There is no doubt that § 713, 47 U.S.C. § 613, by its terms, does not
provide the FCC with the authority to enact video description rules, and
the FCC does not suggest that it does. The harder question is whether
the provision effectively bars the FCC from mandating video description.

Statutory provisions in pari materia normally are construed together to
discern their meaning. Erlenbaugh v. United States, 409 U.S. 239, 244
(1972) (noting that the rule that statutes in pari materia should be
construed together \"is \... a logical extension of the principle that
individual sections of a single statute should be construed together\");
Holyoke Water Power Co. v. FERC, 799 F.2d 755, 766 (D.C. Cir. 1986)
(\"The three sections are in pari materia and must be read together.\");
FAIC Sec., Inc. v. United States, 768 F.2d 352, 363 (D.C. Cir. 1985)
(\"\[T\]hese two statutes are in pari materia and must be construed
together.\"). Here, when subsections (a), (b), and (f) of § 713 - all
addressed to video programming accessibility - are construed together, a
strong argument can be made that Congress meant not to authorize the
Commission to mandate video description. The dissenting opinion of FCC
Chairman Powell powerfully demonstrates this point. See 15 F.C.C.R. at
15,274-76 (Powell, dissenting).

Subsections (a) and (f) merely call for the FCC to undertake studies on
closed captioning and video description, respectively. Subsection (f),
which deals with video description, provides:

Within 6 months after the date of enactment of the Telecommunications
Act of 1996 \[enacted Feb. 8, 1996\], the Commission shall commence an
inquiry to examine the use of video descriptions on video programming in
order to ensure the accessibility of video programming to persons with
visual impairments, and report to Congress on its findings. The
Commission\'s report shall assess appropriate methods and schedules 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
that the Commission deems appropriate.

47 U.S.C. § 613(f). In contrast, subsection (b) affirmatively mandates
that

the Commission shall prescribe such regulations as are necessary to
implement this section. Such regulations shall ensure that - (1) video
programming first published or exhibited after the effective date of
such regulations is fully accessible through the provision of closed
captions \...; and (2) video programming providers or owners maximize
the accessibility of video programming first published or exhibited
prior to the effective date of such regulations through the provision of
closed captions\....

47 U.S.C. § 613(b). The difference in the language employed in these
sections makes it clear that subsection (f) is not intended to provide a
mandate for video description requirements. Subsection (f) neither
parallels the closed captioning mandate contained in subsection (b) nor
suggests that Congress provided the FCC with discretionary authority to
adopt video description rules.

We need not decide whether § 713 positively forecloses agency rules
mandating video description. Rather, we find that § 713 does not
authorize the FCC to adopt such rules. We also find that, when coupled
with the absence of authority under § 1 (discussed below), § 713 clearly
supports the conclusion that the FCC is barred from mandating video
description. We now turn to the question whether § 1, or any other
provision in the Act, authorizes the commission to mandate video
description.

2\. Section 1 of the Communications Act of 1934

The FCC\'s Report and Order argues that the FCC\'s authority to mandate
video description is derived from the combination of § 1 of the
Communications Act, 47 U.S.C. § 151, § 2(a) of the Act, 47 U.S.C. §
152(a) (stating that \"\[t\]he provisions of this Act shall apply to all
interstate and foreign communication by wire or radio \... and to all
persons engaged within the United States in such communication\"), §
4(i) of the Act, 47 U.S.C. § 154(i) (stating that \"\[t\]he Commission
may perform any and all acts, make such rules and regulations, and issue
such orders, not inconsistent with this Act, as may be necessary in the
execution of its functions\"), and § 303(r) of the Act, 47 U.S.C. §
303(r) (stating that \"the Commission from time to time, as public
convenience, interest, or necessity requires shall \... \[m\]ake such
rules and regulations and prescribe such restrictions and conditions,
not inconsistent with law, as may be necessary to carry out the
provisions of this Act\"). At oral argument, counsel for the FCC
essentially conceded that if the agency cannot find its authority in § 1
then the video description regulations must be vacated by the court. We
agree.

The FCC\'s majority opinion argues that § 1 authorizes the agency to
mandate video description, because

Congress \... authorized the Commission to make available to all
Americans a radio and wire communication service, and to promote safety
and life through such service, and to make such regulations to carry out
that mandate, that are consistent with the public interest and not
inconsistent with other provisions of the Act or other law.

15 F.C.C.R. 15,252. This is a very frail argument, in no small part
because it completely ignores the fact that video description
regulations significantly implicate program content.

There is no doubt that the video description rules regulate programming
content. Video description is not a regulation of television
transmission that only incidentally and minimally affects program
content; it is a direct and significant regulation of program content.
The rules require programmers to create a second script. As Chairman
Powell noted in his dissent, \"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 what pace. In contrast, closed captioning is a straight
translation of dialogue into text.\" Report and Order, 15 F.C.C.R. at
15,278 (Powell, dissenting). Ultimately, video descriptions require a
writer to amend a script to fill in audio pauses that were not
originally intended to be filled. Not only will producers and script
writers be required to decide on what to describe, how to characterize
it, and the style and pace of video descriptions, but script writers
will have to describe subtleties in movements and mood that may not
translate easily. And many movements in a scene admit of several
interpretations, or their meaning is purposely left vague to enhance the
program content. In short, it is clear that the implementation of video
descriptions invariably would entail subjective and artistic judgments
that concern and affect program content. The FCC has even acknowledged
that the creation of this second script \"raises creativity \...
issues.\" Video accessibility Report, 11 F.C.C.R. at 19,221. These
effects are not insignificant, and there can be no doubt that the result
is a direct regulation of program content.

The FCC\'s arguments to the contrary are entirely unpersuasive. See
Report and Order, 15 F.C.C.R. at 15,254-56. First, the Commission is
wrong in its claim that video descriptions are the same as closed
captioning. One is a simple transcript, a precise repetition of the
spoken words. The other requires an interpretation of visual scenes.
They are not the same. Second, the FCC\'s statement that video
descriptions are \"not related to content\" is specious. Id. at 15,255.
FCC\'s counsel would not even endorse that position at oral argument.
Requiring someone to change or add to a program script is related to the
program\'s content. Finally, the FCC claims that the video description
regulations are \"content-neutral.\" Id. at 15,254-55. We need not
decide that issue, because it is irrelevant. The question that we face
is whether § 1 provides the FCC with authority to promulgate regulations
that significantly regulate programming content. The content-neutrality
of the rules is irrelevant to the inquiry of the FCC\'s delegated
authority.

During oral argument, counsel for the FCC acknowledged that it was not
self-evident from the statute that the FCC is authorized to regulate
program content pursuant to § 1. Counsel\'s hesitation was well placed,
because § 1 merely authorizes the agency to ensure that all people of
the United States, without discrimination, have access to wire and radio
communication transmissions. Section 1 does not otherwise authorize the
FCC to regulate program content, as the video description regulations
clearly do. Both the terms of § 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. Neither the FCC\'s Order
nor its brief to this court cite any authority to suggest otherwise. To
regulate in the area of programming, the FCC must find its authority in
provisions other than § 1. See, e.g., 47 U.S.C. § 531 (governing
designation of cable channels for public, educational, or governmental
use).

The Communications Act was implemented for the purpose of consolidating
federal authority over communications in a single agency to assure \"an
adequate communication system for this country.\" S. Rep. No. 73-830, at
3 (1934); see also H.R. Rep. No. 73-1850, at 3-4 (1934). Given the
limited distribution of communications facilities in 1934, § 1\'s
mandate to serve \"all the people of the United States\" is a reference
to the geographic availability of service. See Michael J. Aguilar, Note,
Micro Radio: A Small Step in the Return to Localism, Diversity, and
Competitiveness in Broadcasting, 65 Brook. L. Rev. 1133, 1136-37 (1999)
(explaining how limited facilities influenced passage of the
Communications Act of 1934); see also Nat\'l Broad. Co. v. United
States, 319 U.S. 190, 216 (1943) (\"The facilities of radio are limited
and therefore precious; they cannot be left to wasteful use without
detriment to the public interest.\"). Under § 1, Congress delegated
authority to the FCC to expand radio and wire transmissions, so that
they would be available to all U.S. citizens. See, e.g., United States
v. Midwest Video Corp., 406 U.S. 649, 667-68 (1972) (\"\[T\]he critical
question \... is whether the Commission has reasonably determined that
its origination rule will \'further the achievement of long-established
regulatory goals in the field of television broadcasting by increasing
the number of outlets for community self-expression and augmenting the
public\'s choice of programs and types of services\....\"\') (citation
omitted); United States v. Southwestern Cable Co., 392 U.S. 157, 172
(1968) (\"\[I\]t was precisely because Congress wished to maintain,
through appropriate administrative control, a grip on the dynamic
aspects of radio transmission \... that it conferred upon the Commission
a unified jurisdiction and broad authority.\") (citations, footnotes,
and internal quotations omitted). Section 1 does not address the content
of the programs with respect to which accessibility is to be ensured. In
other words, the FCC\'s authority under § 1 is broad, but not without
limits.

The cases cited to this court by the FCC do not hold otherwise. These
cases do not relate to program content. See, e.g., United Video v. FCC,
890 F.2d 1173 (D.C. Cir. 1989) (FCC\'s \"syndicated exclusivity\" rules
found to be content-neutral, not otherwise arbitrary and capricious, and
not violative of the Copyright Act of 1976 or the Cable Act of 1984; § 1
of the Communications Act not implicated); Rural Tel. Coalition v. FCC,
838 F.2d 1307, 1315 (D.C. Cir. 1988) (\"As the Universal Service Fund
was proposed in order to further the objective of making communication
service available to all Americans at reasonable charges, the proposal
was within the Commission\'s statutory authority. We have recognized
previously that universal service is an important FCC objective.\");
North Am. Telecomm. Ass\'n v. FCC, 772 F.2d 1282 (7th Cir. 1985) (action
for review of FCC orders relating to conditions upon which major
telecommunications corporation\'s regional operating companies could
enter telephone equipment business); GTE Serv. Corp. v. FCC, 474 F.2d
724, 730 (2d Cir. 1973) (regulations prescribing conditions under which
common carriers may sell data processing services, designed to insure
that \"carriers provide efficient and economic service to the public\").

One of the reasons why § 1 has not been construed to allow the FCC to
regulate programming content is because such regulations invariably
raise First Amendment issues. E.g., Turner Broad. Sys. v. FCC, 512 U.S.
622, 651 (1994) (\"\[O\]ur cases have recognized that Government
regulation over the content of program broadcasting must be narrow, and
that broadcast licensees must retain abundant discretion over
programming choices.\"); Columbia Broad. Sys., Inc. v. Democratic Nat\'l
Comm., 412 U.S. 94, 126 (1973) (describing \"the risk of an enlargement
of Government control over the content of broadcast discussion of public
issues\" as a \"problem of critical importance to broadcast regulation
and the First Amendment\"). Indeed, the parties in this case have argued
over whether the video description rules infringe free speech precepts.
See Br. of Petitioner at 39-43; Br. of Respondent at 35-41. To avoid
potential First Amendment issues, the very general provisions of § 1
have not been construed to go so far as to authorize the FCC to regulate
program content. Rather, Congress has been scrupulously clear when it
intends to delegate authority to the FCC to address areas significantly
implicating program content. E.g., 18 U.S.C. § 1464 (\"Whoever utters
any obscene, indecent, or profane language by means of radio
communication shall be fined under this title or imprisoned not more
than two years, or both.\"); 47 U.S.C. § 315 (governing provision of
broadcast time to candidates for public office); 47 U.S.C. § 399 (\"No
noncommercial educational broadcasting station may support or oppose any
candidate for political office.\"). And Congress has imposed limitations
on regulations implicating program content. See 47 U.S.C. § 544(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\"); see also 47 U.S.C. § 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\"). It is therefore clear that § 1 is not the
provision in the Act from which the FCC can find delegated authority to
regulate the content of broadcast programming. The FCC must look beyond
§ 1 to find authority for regulations that significantly implicate
program content.

The FCC\'s position seems to be that the adoption of rules mandating
video description is permissible because Congress did not expressly
foreclose the possibility. This is an entirely untenable position. See
Ry. Labor Executives, 29 F.3d at 671 (\"Were courts 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.\") (emphasis in original). See also Halverson v. Slater, 129 F.3d
180, 187 (D.C. Cir. 1997) (quoting Ry. Labor Executives, 29 F.3d at
671); Oil, Chem. & Atomic Workers Int\'l Union v. NLRB, 46 F.3d 82, 90
(D.C. Cir. 1995) (same); see also Ethyl Corp. v. EPA, 51 F.3d 1053, 1060
(D.C. Cir. 1995) (\"We refuse \.... to presume a delegation of power
merely because Congress has not expressly withheld such power.\");
Natural Res. Def. Council v. Reilly, 983 F.2d 259, 266 (D.C. Cir. 1993)
(\"\'\[I\]t is only legislative intent to delegate such authority that
entitles an agency to advance its own statutory construction for review
under the deferential second prong of Chevron.\"\') (quoting Kansas City
v. Dep\'t of Housing & Urban Dev., 923 F.2d 188, 191-92 (D.C. Cir.
1991)) (alteration in original).

Congress enacted the closed captioning and video description provisions
of § 713 together. After originally entertaining the possibility of
providing the FCC with authority to adopt video description rules,
Congress declined to do so. This silence surely cannot be read as
ambiguity resulting in delegated authority to the FCC to promulgate the
disputed regulations.

3\. Other Statutory Provisions Cited by the Commission

The Commission\'s brief to this court advances the somewhat opaque
argument that the video description rules are \"obviously a \'valid
communications policy goal\' and in the public interest.\" Respondent\'s
Br. at 26. The Commission thus claims that the regulations are justified
under § 303(r), which permits the FCC to regulate in the public interest
\"as may be necessary to carry out the provisions of \[the\] Act.\" 47
U.S.C. § 303(r). But this statutory provision simply cannot carry the
weight of the Commission\'s argument. The FCC cannot act in the \"public
interest\" if the agency does not otherwise have the authority to
promulgate the regulations at issue. An action in the public interest is
not necessarily taken to \"carry out the provisions of the Act,\" nor is
it necessarily authorized by the Act. The FCC must act pursuant to
delegated authority before any \"public interest\" inquiry is made under
§ 303(r). This of course means, as FCC counsel conceded at oral
argument, that the video description rules are arguably justified only
if the FCC had authority to act pursuant to § 1 of the Act.

The FCC\'s suggestion that § 4(i), without more, gives the agency
authority to promulgate the disputed rules cannot withstand scrutiny.
Chairman Powell\'s discussion of this provision says it all:

It is important to emphasize that section 4(i) is not a stand-alone
basis of authority and cannot be read in isolation. It is more akin to a
\"necessary and proper\" clause. Section 4(i)\'s authority must be
\"reasonably ancillary\" to other express provisions. And, by its
express terms, our exercise of that authority cannot be \"inconsistent\"
with other provisions of the Act. The reason for these limitations is
plain: Were an agency afforded carte blanche under such a broad
provision, irrespective of subsequent congressional acts that did not
squarely prohibit action, it would be able to expand greatly its
regulatory reach.

15 F.C.C.R. at 15,276 (Powell, dissenting). We agree.

Finally, there is really nothing to be said about § 2(a), 47 U.S.C. §
152(a), which was also cited by the FCC in support of the video
description regulations. This provision does not, on its own, support
the regulations. Neither the FCC\'s Order nor counsel\'s argument on
behalf of the FCC suggested otherwise.

In short, the FCC can point to no statutory provision that gives the
agency authority to mandate visual description rules. The rules may be
highly salutary. But that is not the issue before this court and we
offer no judgment on the question. What is determinative here is the FCC
acted without delegated authority from Congress. Section 1 does not
furnish the authority sought, because the regulations significantly
implicate program content and the FCC can cite no authority in which a
court has upheld agency action under § 1 where program content was at
the core of the regulations at issue. And it does not matter that the
disputed rules here are arguably \"content-neutral.\" The point is that
the rules are about program content and therefore can find no
authorization in § 1.

Finally, if there were any serious question about proper result in this
case, all doubt is resolved by reference to § 713. In § 713(f), 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. Once the Commission completed the task of preparing
the report on video escription, its delegated authority on the subject
ended.

III\. Conclusion

\[G\]iven the minimal extent to which the FCC and Congress actually
influence the programming offered by broadcast stations, it would be
difficult to conclude that Congress enacted \[video description\] in an
effort to exercise content ontrol\.... In a regime where Congress or the
FCC exercised more intrusive control over the content of broadcast
programming, an argument similar to \[the argument raised by the
Commission\] might carry greater weight. But in the present regulatory
system, those concerns are without foundation.

Turner Broad. Sys., 512 U.S. at 652. Accordingly, for the reasons given
in this opinion, we hereby grant the petition for review filed by MPAA,
and reverse and vacate the Commission\'s Order insofar as it requires
broadcasters to implement video description.

So ordered.

Karen LeCraft Henderson, Circuit Judge, concurring:

I believe that section 713 of the Communications Act, 47 U.S.C. § 613,
plainly does not authorize the FCC to promulgate video description rules
and, for that reason, I fully concur in that portion of the majority
opinion that so holds. I do not agree, however, that the video
description rules constitute \"a direct and significant regulation of
program content.\" Maj. Op. at 11. I fail to see how video description
need consist of anything more than spoken stage directions. If so, video
description, at least in my view, does not regulate program content.
While I agree that section 1 of the Communications Act, 47 U.S.C. § 151,
does not provide the FCC with authority to promulgate the video
description rules, it is not because the rules regulate program content;
in my view, neither section 1, nor any of the other provisions of the
Act the FCC relies on, independently delegates authority that section
713 plainly withholds.