**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**REPORT AND ORDER**

**Adopted:** July 21, 2000 **Released:** August 7, 2000

By the Commission: Commissioner Ness issuing a statement; Commissioners
Furchtgott-Roth and Powell concurring in part, dissenting in part, and
issuing separate statements.

**TABLE OF CONTENTS**

[Paragraph]{.underline}

I. INTRODUCTION 1

II\. BACKGROUND 8

A. Audience for Video Description 8

B. Process of Providing Video Description 11

C. Commission Activities 15

III\. ENTITIES TO PROVIDE PROGRAMMING WITH VIDEO DESCRIPTION 19

A. Broadcast Stations in Top 25 DMAs 19

B. Multichannel Video Programming Distributors with At Least 50,000
Subscribers 24

C. Equipped Broadcast Stations and MVPDs 29

IV\. PROGRAMMING TO CONTAIN VIDEO DESCRIPTION 31

A. Amount of Programming 31

B. Prime Time vs. Other Types of Programming 35

V. EFFECTIVE DATE OF NEW RULES 39

VI\. EXEMPTIONS 41

VII\. ENFORCEMENT 44

VIII\. EMERGENCY INFORMATION 48

IX\. JURISDICTION 53

X. CONCLUSION 67

XI\. ADMINISTRATIVE MATTERS 68

XII\. ORDERING CLAUSES 72

**I. INTRODUCTION**

1.  In this *Report and Order*, we adopt rules designed to bring the
    benefits of video description to the commercial video marketplace.
    Video description is the description of key visual elements in
    programming, inserted into natural pauses in the audio of the
    programming. It is designed to make television programming more
    accessible to the many Americans who have visual disabilities. As we
    have noted in this proceeding and elsewhere, television is the
    primary source of news and information for the majority of
    Americans, and provides hours of entertainment each week. The
    Commission has already adopted rules to make the important medium of
    television more accessible to persons with hearing disabilities.[^1]
    Today we adopt initial video description rules to make television
    more accessible to persons with visual disabilities.

2.  Public broadcasting has developed and refined the process of
    producing and distributing programming with video description over
    the last ten years, but virtually no commercial market has followed.
    Descriptive Video Service (DVS), associated with the noncommercial
    broadcast station WGBH, has described more than 2000 PBS programs,
    and more than 80 films for the Turner Classic Movies channel.[^2]
    Currently, DVS provides "closed" video description -- which runs on
    the Second Audio Program (SAP) channel and so can be heard at the
    discretion of the viewer -- for four daily programs, several weekly
    programs, selected episodes of other series, and selected
    specials.[^3] Some commercial broadcasters also have the technical
    ability to provide "closed" video description but none have done so.
    Some cable systems have the capability to provide programming with
    video description, but do so only on very limited channels, such as
    the Turner Classic Movies channel, and little if any of this
    programming is available without the assistance of public
    funding.[^4] As a result, only a very small fraction of programming
    contains video description.

3.  This *Report and Order* follows Commission review and study of video
    description for nearly five years, including three notices on the
    matter, and two reports to Congress. The Commission issued its first
    *Notice of Inquiry* on video description in 1995.[^5] Section 713(f)
    of the Communications Act,[^6] added by the Telecommunications Act
    of 1996, directed the Commission to commence an inquiry on video
    description, and report to Congress on its findings. Using the
    record developed in response to the *First NOI*, the Commission
    issued the required report to Congress in 1996.[^7] The Commission
    then issued a second *Notice of Inquiry* in 1997,[^8] and submitted
    more information to Congress on video description in its 1997 annual
    report on competition in the markets for the delivery of video
    programming.[^9] Given the importance of enhancing the accessibility
    of video programming to persons with visual disabilities, and the
    fact that commercial broadcast stations and MVPDs had not developed
    video description further during our periods of review, we issued
    our *Notice of Proposed Rulemaking* last year in 1999.[^10]

4.  The record demonstrates the importance of video description to
    persons with visual disabilities, although support for our proposal
    was not unanimous among blind and low vision commenters.[^11]
    Margaret Pfanstiehl, a pioneer in the field of video description and
    who herself has low vision, explains that "when plays, movies, films
    . . . are professionally described, a wealth of information becomes
    available. Blind children and adults are amazed at the prevalence
    and importance of body language in transmitting non-verbal
    messages."[^12] The comments of the American Council of the Blind
    contained more than 250 e-mails and letters of support for rules,
    which explained how video description enhances the understanding of
    blind and low vision people of television programming and cultural
    behavior such as body language, and gives them a feeling of
    independence.[^13] One commenter said that "\[w\]hether or not one
    still defines the medium as a 'vast wasteland,' there is no denying
    that TV is the mechanism we Americans turn to, to define ourselves
    and one another. Blind people have just as much need as any other
    Americans to experience this medium."[^14] A user of WGBH's DVS
    echoes similar views: "\[w\]hether entertaining, educational or
    cultural, television has become an integral part of American life.
    I, and other blind and visually impaired people, have always
    participated in television viewing, but with DVS, we are finally
    participating equally."[^15] Helen Harris, founder of a description
    service, says that "\[v\]ideo description effectively bridges the
    gap between the blind and mainstream society by creating a shared
    experience which leaves the blind with an increased sense of
    normalcy in their lives."[^16]

5.  Government officials and industry members have supported video
    description as well. Several members of Congress have submitted
    letters to the Commission in support of our proposals, and at least
    one industry member has submitted a letter in support of video
    description.[^17]

6.  Today we adopt initial video description rules, designed to benefit
    persons with visual disabilities, but not impose an undue burden on
    the programming production and distribution industries. As explained
    below, we conclude that we have the authority to adopt video
    description rules, and require the top broadcast stations and
    multichannel video programming distributors (MVPDs) to provide
    programming with video description on the top programming networks.
    This will ensure that the broadcast stations and MVPDs that reach
    the most people will provide video description for the most watched
    programming. We also adopt rules to enhance the accessibility of
    emergency information for people with visual disabilities.
    Specifically, we adopt rules as follows:

-   We require affiliates of the top four commercial broadcast TV
    networks in the top 25 TV markets to provide 50 hours per calendar
    quarter of prime time and/or children's programming with video
    description.

-   We also require MVPDs with 50,000 or more subscribers to provide 50
    hours per calendar quarter of prime time and/or children's
    programming with video description on each of the top five national
    nonbroadcast networks they carry.

-   In addition, we require any broadcast station, regardless of its
    market size, to "pass through" any video description it receives
    from a programming provider, if the broadcast station has the
    technical capability necessary to do so, and we require any MVPD,
    regardless of its number of subscribers, to "pass through" any video
    description it receives from a programming provider, if the MVPD has
    the technical capability necessary to do so on the channel on which
    it distributes the programming of the programming provider.

-   The first calendar quarter these rules will be effective will be
    April-June 2002.

-   We also require broadcast stations and MVPDs that provide local
    emergency information through a regularly scheduled newscast, or an
    unscheduled newscast that interrupts regularly scheduled
    programming, to make the critical details of that information
    accessible to persons with visual disabilities in the affected local
    area. We also require broadcast stations and MVPDs that provide
    local emergency information through another manner, such as a
    "crawl" or "scroll," to accompany that information with an aural
    tone to alert persons with visual disabilities that they are
    providing emergency information. These rules relating to emergency
    information will become effective upon approval by the Office of
    Management and Budget.

7.  The rules we adopt today mark a starting point for further
    development of video description, depending on the efficacy of, and
    consumer demand for, video description implemented as a result of
    this *Report and Order*. We expect the experience of the broadcast
    stations, MVPDs, and networks affected by our rules to guide the
    industry, the public, and the Commission on whether, how, and when
    we should phase in more broadcast stations and MVPDs, as well as
    more programming. Although the rules we adopt today do not apply to
    digital broadcasts, we expect ultimately to require digital
    television broadcasts to contain video description. We believe,
    however, that the decision on how and when to develop those
    requirements should come after there has been further experience
    with both digital broadcasting and video description.

**II. BACKGROUND**

**A. Audience for Video Description**

8.  Video description is designed to make television programming more
    accessible to persons with visual disabilities, and enable them to
    "hear what they cannot see."[^18] Thus, the primary audience for
    video description is persons with visual disabilities. Estimates of
    the number of persons with visual disabilities are as high as twelve
    million.[^19] This estimate includes persons with a problem seeing
    that cannot be corrected with ordinary glasses or contact lenses,
    with a range in severity.[^20]

9.  A disproportionate number of persons with visual disabilities are
    seniors. The National Center for Health Statistics reports that eye
    problems are the third leading cause, after heart disease and
    arthritis, of restricting the normal daily activities of persons 65
    years of age or older.[^21] While only 2-3% of the population under
    45 years of age has visual disabilities, 9-14% of the population 75
    years of age or older does.[^22] This means that as the population
    ages, more and more people will become visually disabled.[^23]

10. Secondary audiences for video description exist as well. For
    example, at least one and a half million children between the ages
    of 6 and 14 with learning disabilities[^24] may benefit from video
    description. Because the medium has both audio description and
    visual appeal, it has significant potential to capture the attention
    of learning disabled children and enhance their information
    processing skills. Described video programming capitalizes on the
    different perceptual strengths of learning-disabled children,
    pairing their more-developed modality with their less-developed
    modality to reinforce comprehension of information.[^25]

**B. Process of Providing Video Description**

11. WGBH's DVS states that its process of describing programming begins
    with a describer viewing a program, and writing a script to describe
    key visual elements. The describer times the placement and length of
    the description to fit within natural pauses in the dialogue. The
    narration is recorded and mixed with the original program audio to
    create a full audio track with video description. That audio track
    is then laid back to the master on a spare channel if the
    programming is intended for broadcast, and to a separate master if
    it is intended for distribution by home video.[^26] When the audio
    track with video description is provided on a separate audio channel
    for broadcast, viewers decide whether they wish to hear the video
    description. Viewers who wish to hear the description must activate
    the Second Audio Program (SAP) channel on their TV sets or VCRs.
    "Closed" video description refers to the process of providing video
    description on the SAP channel.[^27] SAP reception is a standard
    feature of most TV sets and VCRs built since 1990.[^28] SAP-capable
    TV sets and VCRs can be relatively inexpensive -- less than \$150 --
    and converter boxes are also available for use with TV sets and VCRs
    that are not SAP-capable.[^29]

12. WGBH describes programming for approximately \$4000 per hour, and
    the Narrative Television Network, which also currently describes
    programming, does so for approximately \$2000 per hour.[^30] Given
    that PBS' programming budgets are around \$1.5 million per hour for
    dramas, and \$750,000 per hour for documentaries,[^31] WGBH's
    current cost of describing programming is less than 1% of the
    production budget of PBS documentaries and dramas. WGBH, as well as
    the Narrative Television Network, state that the production
    schedules for video description are similar to those for closed
    captioning, and that the process has been refined over the twenty
    years that closed captioning, and the ten years that video
    description, has been provided.[^32]

13. Programming providers that wish to distribute programming on the SAP
    channel typically need the capability to support three audio
    channels at all points in the distribution process. This is because
    two audio channels are used to support left and right stereo, so
    that a third audio channel is necessary to support a monaural mix of
    the main audio and the video description. The programming provider
    transmits both audio tracks as part of its main signal. Networks,
    broadcast stations, and MVPDs that do not have the capability to
    support three channels of audio generally need to upgrade equipment
    and plant wiring to do so. The cost depends on the amount and nature
    of the equipment that needs to be upgraded. According to WGBH, 169
    public TV stations have installed the necessary equipment to provide
    programming with video description via SAP,[^33] and the one-time
    routing and transmission costs of doing so ranged from \$5,000 to
    \$25,000.[^34]

14. A number of commercial broadcast and nonbroadcast networks have
    provided programming with Spanish language as a second audio
    program. Each of the top four commercial broadcast TV networks has
    provided a Spanish language soundtrack as a second audio program, on
    at least an occasional basis. At least thirty-three ABC affiliates
    have the capability to pass through a second soundtrack on the SAP
    channel; at least twenty-three Fox affiliates do; and approximately
    twenty NBC affiliates do.[^35] Some nonbroadcast networks, such as
    HBO and Showtime, also have offered a Spanish language soundtrack as
    a separate audio program,[^36] and, as noted above, Turner Classic
    Movies has provided a soundtrack with video description as a
    separate audio program. Some MVPDs that carry their programming
    provide the audio on the SAP channel. Information submitted by the
    NAB and NCTA suggest that the cost for any network that cannot
    currently support a third audio channel to upgrade its facilities to
    do so on a consistent basis ranges from \$100,000 to over \$1
    million.[^37]

**C. Commission Activities**

15. The Commission first considered video description when it issued a
    *Notice of Inquiry* on closed captioning and video description on
    December 4, 1995.[^38] Several months later, the Telecommunications
    Act of 1996 became law. Section 305(f) of the 1996 Act added new
    section 713 to the Communications Act of 1934.[^39] Section 713(f)
    directed the Commission to commence an inquiry on video description,
    and report to Congress on its findings, including an assessment of
    "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."

16. On July 29, 1996, the Commission released the required report.[^40]
    The Commission suggested that "\[i\]nitial requirements for video
    description should be applied to new programming that is widely
    available through national distribution services and attracts the
    largest audiences, such as prime time entertainment series. . . .
    Lower priority for video description should be given to programming
    that is primarily aural in nature, including newscasts and sports
    events."[^41] The Commission concluded that it should monitor the
    service and seek more information in the context of its annual
    report on competition in the market for the delivery of video
    programming.[^42]

17. On January 13, 1998, we released our second report on video
    description, as part of our annual report to Congress on competition
    in the market for the delivery of video programming.[^43] We stated
    that "any requirements for video description should begin with only
    the largest broadcast stations and programming networks that are
    better able to bear the costs involved. . . . For example, a minimal
    amount of video description could be required to be provided by the
    larger broadcast stations in the larger markets, and by the larger
    video programming networks."[^44] The Commission also suggested that
    "a period of trial and experimentation would be beneficial so that
    more specific information would be available as to the types of
    programming that would most benefit from description, the costs of
    providing video description, and other matters."[^45]

18. In November of last year, we adopted a *Notice of Proposed
    Rulemaking* in this docket, given that video description had not
    become more widely available in the commercial video marketplace. As
    set forth in greater detail below, we outlined in the *Notice* a
    kind of proposal that we envisioned as a starting point for our
    initial video description rules. Consistent with our observations in
    the reports to Congress, we proposed to require the larger broadcast
    stations and MVPDs to provide video description for the most-watched
    and widely distributed programming. We received more than 100
    comments and reply comments in response to the *Notice*.[^46]

**III. ENTITIES TO PROVIDE PROGRAMMING WITH VIDEO DESCRIPTION**

**A. Broadcast Stations in Top 25 DMAs**

19. [Background]{.underline}. In the *Notice*, we proposed to hold
    broadcast stations in the top 25 DMAs and affiliated with the four
    largest commercial broadcast networks responsible for providing
    programming with video description.[^47] We sought comment on our
    proposal, and on the costs associated with both producing and
    distributing described programming.[^48] Although NAB argued against
    any rules (suggesting among other things that it would be costly to
    provide video description), it supported our proposal to limit the
    rules to affiliates of the top four networks in the top 25 DMAs if
    we established rules.[^49] Other commenters, however, asked that we
    require affiliates of other networks, such as PAX, UPN, and WB, to
    provide programming with video description.[^50] Some commenters
    also asked that we require stations in DMAs beyond the top 25 to
    provide programming with video description now, and that we adopt a
    schedule to phase in stations in all DMAs.[^51]

20. [Discussion]{.underline}. We adopt our proposal to require broadcast
    stations in the top 25 DMAs affiliated with the top four commercial
    broadcast networks (ABC, CBS, Fox, and NBC) to provide programming
    with video description.[^52] Our goal in this proceeding is to adopt
    rules designed to enhance the availability of video description, but
    not impose an undue burden on programming producers and
    distributors. Broadcast stations in the top 25 DMAs reach
    approximately 50% of U.S. TV households.[^53] Those affiliated with
    the top four broadcast networks provide the highest-rated
    programming, *i.e*., the most-watched, and therefore the
    most-advertiser-supported, programming. Some affiliates of the top
    four networks in the top 25 DMAs already have the technical
    capability necessary to provide programming with video description.
    Those that do not are likely to have the resources to acquire that
    capability without being unduly burdened. Indeed, NAB survey data
    suggests that between one-third and one-half of the broadcast
    stations in the top 25 DMAs already broadcast on the SAP
    channel.[^54] Although we might require more broadcast stations to
    provide video description over time, depending on the efficacy of,
    and consumer demand for, video description implemented as a result
    of this *Report and Order*, we believe that we should postpone
    adopting a phase-in schedule until after the broadcast stations and
    MVPDs that are subject to our initial rules have gained some
    experience providing video description. This experience can provide
    the industry, the public, and the Commission with an informed basis
    upon which to propose such a schedule.

21. In order to help us determine which stations we should require to
    provide video description, we sought comment in the *Notice* on the
    number of broadcast stations that have SAP capability, and the cost
    to become so equipped.[^55] No commenter provided data on the number
    of commercial broadcast stations that have the capability to
    broadcast on the SAP channel.[^56] As noted above, however, each of
    the top four commercial broadcast TV networks has provided Spanish
    language audio on a second soundtrack, and a number of their
    affiliates have carried that soundtrack. ABC has advertised that it
    provides Spanish language for the entire season of Monday Night
    Football, and that affiliates in at least thirty-three markets
    transmit that audio on the SAP channel.[^57] Many of these
    affiliates are in the top 25 DMAs. Fox has also provided Spanish
    language audio for several programs, and at least twenty-three
    affiliates have the capability to broadcast that audio on the SAP
    channel.[^58] NBC has provided Spanish audio for several programs,
    and approximately twenty NBC affiliates have the capability to
    broadcast that audio on the SAP channel. CBS has also provided
    Spanish language audio on the SAP channel.[^59] Other broadcast
    networks, such as PAX, UPN, and WB, however, do not appear currently
    to offer Spanish language audio on the SAP channel.

22. The NAB suggests that the networks and their affiliates that have
    offered Spanish language audio have employed *ad hoc*, only
    temporary solutions to do so, and that it is altogether different --
    and may cost one "major network" over \$1 million, and its
    affiliates (in the aggregate) hundreds of thousands of dollars -- to
    support a third audio channel on a consistent basis.[^60] Aside from
    the fact that NAB does not document or explain these costs in any
    detail, the simple fact that the networks and their affiliates have
    provided Spanish language as a second audio program -- with one
    network providing several hours per week for an entire season --
    indicates that it can be done in a cost-effective manner. In
    addition, WGBH states that the PBS network did not spend anywhere
    near \$1 million to upgrade its origination center and satellite
    distribution system to support video description.[^61] As we
    observed in the *Notice*, WBGH also points out that it cost PBS
    member stations only around \$5000-\$25,000 to upgrade their
    stations to acquire the technical capability to support video
    description.[^62] In addition, WGBH offers a variety of technical
    solutions at every point in the distribution process to suggest that
    the cost of supporting a third audio channel is far less than NAB
    claims.[^63] WGBH further suggests that the revenues of the largest
    broadcast stations are more than sufficient to offset any costs
    associated with upgrading.[^64] The annual advertising revenues of
    the primary affiliates of the top four commercial networks in the
    top 25 DMAs range from \$28 million to \$315 million.[^65]

23. NAB suggests that any equipment that is upgraded to support a third
    audio channel will become obsolete when the networks and the
    stations fully convert to DTV.[^66] WGBH suggests, however, the
    equipment to support more audio channels will be necessary for DTV,
    such that any money spent now will not be wasted.[^67] According to
    WGBH, our video description rules therefore will work in tandem with
    the transition to DTV.

**B. Multichannel Video Programming Distributors with At Least 50,000
Subscribers**

24. [Background]{.underline}. In the *Notice*, we proposed to require
    the "larger MVPDs" to provide programming with video description on
    nonbroadcast networks that reach 50% or more MVPD households.[^68]
    We sought comment on how to define larger MVPDs, and on our
    proposal.[^69] NTVAC and WGBH both suggested that MVPDs that serve
    500,000 or more subscribers should qualify as larger MVPDs, and WGBH
    explained that eighteen multiple system operators (MSOs) would so
    qualify.[^70] NCTA suggests, however, that any cut-off for larger
    cable operators should take into account the size of each system,
    since a large MSO may have systems around the country that vary
    greatly in size.[^71] NCTA also points out that more than 40 cable
    networks serve 50% or more of MVPD households,[^72] and that a cable
    system would need to associate SAP capability with each channel on
    which it seeks to provide programming with video description.[^73]
    NCTA suggested that only 5-15% of the channels of a typical cable
    system currently have such equipment, and that it would cost several
    thousand dollars per channel to acquire it, and an additional
    several thousand dollars to upgrade satellite receiving
    equipment.[^74] DirecTV suggests that DBS operators should not
    qualify as "larger MVPDs" because of the "unique burdens" that
    providing programming with video description would place on them,
    particularly in providing the programming of local broadcast
    stations.[^75]

25. [Discussion]{.underline}. We require MVPDs that serve 50,000 or more
    subscribers to provide programming with video description on each of
    any of the top five nonbroadcast networks they carry, as defined by
    prime time audience share, as well as the programming of broadcast
    stations and other networks they carry, under certain circumstances,
    as described below. We believe this result is consistent with our
    goal of enhancing the availability of video description without
    imposing an undue burden on the programming production and
    distribution industries. The "larger MVPDs" as we define them
    include approximately 275 cable systems that serve approximately 50%
    of MVPD households,[^76] and two DBS systems that serve 12 million
    customers. The top five nonbroadcast networks as we define them
    include those with the most-watched programming during prime time.

26. As NCTA explains,[^77] cable systems and other MVPDs must have the
    capability to support a third audio channel for each channel on
    which they intend to provide programming with video description.
    This suggests that, while it might not be burdensome for many
    nonbroadcast networks to provide programming with video description,
    it might be burdensome for cable systems and other MVPDs to
    retransmit programming with video description on many nonbroadcast
    networks. We have therefore decided to limit the number of
    nonbroadcast networks for which "larger MVPDs" must provide video
    description to a smaller number than we proposed. We select the top
    five nonbroadcast networks. Given that we below require MVPDs to
    provide programming with video description during prime time,[^78]
    we define the top five nonbroadcast networks in terms of prime time
    audience share, as determined by an average of Nielsen prime time
    ratings for the time period October 1, 1999-September 30, 2000. We
    recognize, of course, that the top five nonbroadcast networks, as
    measured by audience share, do not typically have as high an
    audience share as the top four broadcast networks, or even the
    broadcast networks that are not subject to our rules, as several
    commenters point out.[^79] These nonbroadcast networks, however,
    have substantial resources, and our underlying goal in this
    proceeding is to enhance the availability of video description
    without imposing an undue burden on the television programming
    production and distribution industries.

27. The per-channel costs for MVPDs also suggests that the cut-off for
    "larger MVPDs" should be based on cable system size, not MSO size.
    No commenter, however, suggested a particular system size. We have
    decided to apply our rules to systems with more than 50,000
    subscribers. These systems include approximately 275 cable systems
    that reach approximately 50% of cable subscribers, just as our rules
    affect broadcast stations that reach approximately 50% of U.S. TV
    households. NCTA suggests that the maximum costs for cable systems
    to upgrade equipment would be around \$3000 per channel (\$2000 per
    channel to add a stereo generator with SAP capability, and \$1200
    per channel to add additional decoders or sound processing
    capabilities, or to upgrade satellite receivers).[^80] These costs
    appear to be more than offset, however, by revenues. If each
    subscriber pays an average of approximately \$45/month for cable
    service[^81] provided by a system with 50,000 subscribers, the
    smallest cable system subject to our rules would appear to collect
    \$2.25 million per month, or \$27 million per year. These revenues
    do not include those from other sources.[^82]

28. Our decision to apply our rules to MVPDs that serve at least 50,000
    subscribers will also include two DBS systems that together reach an
    additional 12 million subscribers. DirecTV indicates that it would
    need to modify its network in order to support three audio channels,
    and that it would cost "tens of millions of dollars" to do so even
    if it were required to provide programming with video description on
    just a few channels.[^83] DirecTV, however, had more than 8.5
    million customers as of May 2000,[^84] and DBS' average programming
    price was \$30 per month.[^85] This means that DirecTV subscriber
    revenues appear to be over \$250 million per month, or over \$3
    billion per year. Although EchoStar, the other major DBS carrier,
    did not file comments in this proceeding, we note that it had more
    than 4 million subscribers as of May 2000,[^86] such that its
    subscriber revenues appear to be at least \$120 million per month,
    or nearly \$1.5 billion per year.

**C. Equipped Broadcast Stations and MVPDs**

29. [Background]{.underline}. In the *Notice*, we proposed to require
    larger MVPDs to "pass through" the SAP channel audio containing
    video description of any broadcast station they carried.[^87] We
    also proposed *not* to require noncommercial educational (NCE)
    stations to provide programming with video description, based on the
    financial difficulties they face, particularly as they transition to
    DTV.[^88] A number of commenters suggested that we should require
    broadcast stations, including NCE stations, and MVPDs that can "pass
    through" the SAP channel audio to do so.[^89] Although APTS
    supported our proposal to exempt NCE stations,[^90] several other
    commenters did not,[^91] with WGBH suggesting that NCE stations,
    supported by taxpayers, have a particular obligation to air
    programming that is accessible to all.[^92]

30. [Discussion]{.underline}. We will require all broadcast stations,
    including NCE stations, that have the technical capability necessary
    to "pass through" any second audio program containing video
    description that they receive from their affiliated networks.
    Similarly, we will require all MVPDs that have the technical
    capability necessary to "pass through" any secondary audio program
    containing video description that they receive from a broadcast
    station or nonbroadcast network. We believe this requirement is
    consistent with our approach to enhance the availability of video
    description, but not impose an undue burden on programming producers
    and distributors. WGBH states that 169 PBS member stations already
    have SAP capability and currently provide video description,[^93]
    and our rule should not impose any significant burden on them. In
    addition, since our requirement will only affect other broadcast
    stations and MVPDs that already have the technical capability
    necessary to support video description, we do not believe our rule
    will impose any burden on the affected stations and MVPDs. We will
    consider broadcast stations and MVPDs to have the technical
    capability necessary to support video description if they have
    virtually all necessary equipment and infrastructure to do so,
    except for items that would be of minimal cost. To the extent our
    rule imposes an undue burden on any particular broadcast station or
    MVPD, it is free to seek an exemption pursuant to the standards we
    develop and set forth below in section VI.

**IV. PROGRAMMING TO CONTAIN VIDEO DESCRIPTION**

**A. Amount of Programming**

31. [Background]{.underline}. In the *Notice*, we proposed to require
    broadcast stations and MVPDs subject to our initial rules to provide
    at least fifty hours per quarter (roughly four hours per week) of
    programming with video description.[^94] Several commenters
    supported our proposal.[^95] Others supported more hours of
    programming initially, and/or a schedule to phase in more
    programming in later years.[^96] In the *Notice*, we also noted that
    the Commission had previously observed that some networks provide
    Spanish language audio on the SAP channel. We sought comment on the
    extent to which other languages compete for use of the channel, the
    impact (if any) of our proposal on these uses, and how any conflicts
    could be avoided.[^97]

32. [Discussion]{.underline}. We adopt our proposal to require the
    broadcast stations and MVPDs subject to quarterly compliance
    requirements to provide at least fifty hours per calendar quarter of
    programming with video description.[^98] Our goal in this proceeding
    is to bring the benefits of video description to the commercial
    video marketplace, while at the same time not impose an undue burden
    on the broadcast stations and MVPDs subject to our initial rules. We
    believe that requiring these broadcast stations and MVPDs to provide
    fifty or more hours per calendar quarter of programming with video
    description satisfies this goal. Although we might require more
    broadcast stations and MVPDs to provide more programming with video
    description over time, depending on the efficacy of, and consumer
    demand for, video description implemented as a result of this
    *Report and Order*, we continue to believe that we should postpone
    adopting such a phase-in schedule until after the broadcast stations
    and MVPDs subject to our initial rules have gained some experience
    in providing video description. This experience can provide the
    industry, the public, and the Commission with an informed basis upon
    which to propose such a schedule.

33. We clarify, as suggested by several commenters,[^99] that the
    broadcast stations and MVPDs may not count toward their 50-hour
    quarterly requirement programming that they have previously aired
    with video description, once the rules go into effect. In other
    words, a broadcast station or MVPD may not count toward its 50-hour
    quarterly requirement any programming it aired with video
    description after the effective date of the rules when that same
    broadcast station or MVPD repeats the same programming later.
    Broadcast stations and MVPDs may, however, count any programming
    they air after the effective date in excess of their quarterly
    requirements, and that they repeat later. In addition, they may
    count any programming with video description they air *before* the
    effective date of the rule, and that they later repeat after the
    effective date. We also clarify, as suggested by several commenters,
    that once a broadcast station or MVPD has aired a particular program
    with video description, all of that broadcast station's or MVPD's
    subsequent airings of that program should contain video description,
    unless another use is being made of the SAP channel. We impose this
    requirement because it should not impose any burden on any broadcast
    station or MVPD subject to our rules, or on their programming
    suppliers. This is because the cost of both describing programming,
    and upgrading equipment and infrastructure to distribute it,
    generally should be a one-time fixed cost. At the same time, we will
    allow programming providers to repeat programming without video
    description, if they wish to make another use of the SAP channel,
    such as Spanish language audio.

34. We also believe that our decision to require that 50 hours per
    quarter, or roughly 4 hours per week, of programming with video
    description will avoid any conflicts between competing uses of the
    SAP channel. Some networks use the SAP channel to provide Spanish
    audio or other services.[^100] Although as some commenters point out
    there is not a technical solution to allow two uses of the SAP
    channel simultaneously,[^101] as others point out most networks that
    use the SAP channel to provide Spanish language audio do so on a
    limited basis.[^102] Those few networks that provide more extensive
    Spanish language audio are not among the networks that will be
    affected by our rules.[^103] Thus, we believe that our rules will
    not create conflicts between Spanish language audio and video
    description for use of the SAP channel. Although some commenters
    believe that occasional uses of the SAP channel for different
    purposes will create viewer confusion,[^104] we believe any such
    confusion can be corrected through viewer education.

**B. Prime Time vs. Other Types of Programming**

35. [Background]{.underline}. In the *Notice*, we proposed to require
    the broadcast stations and MVPDs subject to our initial rules to
    provide programming with video description during prime time, or to
    provide children's programming with video description. We sought
    comment on our proposal.[^105] Several commenters supported our
    proposal.[^106] Others suggested that we should not require certain
    types of programming to contain video description, or that we should
    require broadcast stations and MVPDs to provide both children's and
    prime time programming with video description.[^107] In the Notice,
    we also sought comment on how people with visual disabilities will
    know when programming with video description is scheduled.[^108]

36. [Discussion]{.underline}. We adopt our proposal to require that the
    described programming must either be shown during prime time or be
    children's programming. Prime time programming is the most watched
    programming, and so programming provided during this time will reach
    more people than programming provided at any other time. In
    addition, as we noted in the *Notice*, the several thousand dollars
    per hour cost to describe programming is a very small portion of the
    production budget for the typical prime time program. At the same
    time, as we noted in the *Notice*, programming with video
    description may provide a benefit not only to children who are
    visually disabled, but also to those who are learning
    disabled.[^109] Programming with video description has both audio
    description and visual appeal, and so has the potential to capture
    the attention of learning disabled children and enhance their
    information processing skills.[^110] Requiring broadcast stations
    and MVPDs to provide children's or prime time programming with video
    description thus ensures that the programming reaches the greatest
    portion of the audience it is intended to benefit the most.
    Permitting broadcast stations and MVPDs to select between the two
    provides them flexibility without compromising that goal.

37. In order to help the public identify the broadcast stations and
    MVPDs that are required to provide programming with video
    description, and the programming for which they are doing so, we
    encourage broadcast stations and MVPDs that provide programming with
    video description to take steps to educate and inform the public
    about the service. We encourage broadcast stations and MVPDs to
    promote the service in their programming and on their websites, and
    provide the relevant information to magazines and newspapers that
    follow their programming schedules, as some commenters
    suggest.[^111]

38. We note that the National Federation of the Blind and many of its
    individual members suggest that we should focus not on entertainment
    programming, but rather on the accessibility of text information
    aired on TV, such as emergency information, the identity of speakers
    on news and talk shows, and telephone numbers or other contact
    information in advertisements.[^112] We agree with NFB that the
    accessibility of this type of information is important, and address
    the accessibility of emergency information in particular below in
    section VIII. We believe, however, that a secondary audio program
    may not be the appropriate vehicle to provide text-based
    information. However, we do encourage producers of programming with
    text information to provide that information aurally, by announcing
    the names of speakers. Advertisers should have a commercial
    incentive to provide contact information aurally.

**V. EFFECTIVE DATE OF NEW RULES**

39. [Background]{.underline}. We proposed in the *Notice* to require
    broadcast stations and MVPDs subject to our rules to begin providing
    programming with video description starting eighteen months after
    the effective date of our rules. One commenter supported our
    proposal.[^113] Several commenters suggested that broadcast stations
    and MVPDs should begin providing described programming earlier, with
    many suggesting within twelve months.[^114] MPAA claimed that any
    requirement to begin providing programming with video description
    within twelve months would be inconsistent with the Commission's
    approach in closed captioning, and with existing programming
    contracts.[^115] NAB suggested that any requirement should coincide
    with the beginning of the first TV season eighteen months or more
    after the effective date of the rules.[^116]

40. [Discussion]{.underline}. We require the broadcast stations and
    MVPDs subject to our rules to begin providing programming with video
    description during the first calendar quarter that is eighteen
    months after the adoption date of this *Report and Order*, *i.e*.,
    April-June 2002.[^117] Although we appreciate the desire of many to
    have programming with video description earlier, we wish to give the
    affected broadcast stations, MVPDs, and networks the time that may
    be necessary to make arrangements to describe the programming, and
    to upgrade their equipment and infrastructure. We believe that
    giving the affected parties until April 2002 is ample time. We
    decline to make our effective date coincide with the beginning of
    the TV season for broadcast networks because our rules also affect
    nonbroadcast networks, which may or may not use the same schedule to
    introduce new programs as broadcast networks do. We encourage
    parties that seek to make the beginning of their new programming
    seasons coincide with starting date of their providing video
    description to make the necessary arrangements to do so, within the
    time frame to meet their first quarterly compliance requirement in
    April-June 2002.

**VI. EXEMPTIONS**

41. [Background]{.underline}. In the *Notice*, we proposed to adopt
    procedures to exempt parties from our video description rules, if
    compliance would result in an undue burden.[^118] We noted that, in
    the closed captioning context, Congress deemed certain factors
    relevant to showing that compliance would result in an undue burden,
    and sought comment on whether these procedures should be applied to
    our video description rules.[^119] Although not many parties
    commented on procedures or standards for waiver, WGBH supported
    adopting the procedures and standards we use for closed captioning
    for video description.[^120]

42. [Discussion]{.underline}. We adopt the "undue burden" exemption
    procedures and standards that we use in the closed captioning
    context.[^121] We therefore will exempt any affected broadcast
    station or MVPD that can demonstrate through sufficient evidence
    that compliance would result in an "undue burden," which means
    significant difficulty or expense. We will consider the following
    factors: the nature and cost of providing video description of the
    programming; the impact on the operation of the broadcast station or
    MVPD; the financial resources of the broadcast station or MVPD; the
    type of operations of the broadcast station or MVPD; any other
    factors the petitioner deems relevant; and any available
    alternatives to video description.[^122]

43. We exempted categories of programming and providers from our closed
    captioning rules, and many commenters ask that we do the same for
    video description.[^123] Given the limited nature of our initial
    video description rules, we decline to exempt any particular
    categories of programming or class of programming providers. We will
    consider these issues when we consider extending the entities that
    must provide programming with video description, and the amount they
    must provide.

**VII. ENFORCEMENT**

44. [Background]{.underline}. In the *Notice*, we proposed to adopt
    procedures to enforce our initial video description rules. We noted
    that, in the closed captioning context, the Commission did not adopt
    reporting requirements, but rather simply adopted pleadings
    requirements and timetables.[^124] We sought comment on the
    relevance of these procedures to our initial video description
    rules.[^125] Those commenters that addressed the issue asked us to
    adopt an informal complaint procedure,[^126] but one that is less
    onerous than the one we established for closed captioning, and does
    not involve quality standards.[^127] Commenters suggested that any
    entity that violates our rules should be required to provide more
    programming with video description,[^128] perhaps make a payment,
    or, in the case of a broadcast station, have their license
    revoked.[^129]

45. [Discussion]{.underline}. We adopt enforcement procedures as
    follows. A complaint alleging a violation of this section may be
    transmitted to the Commission by any reasonable means, such as
    letter, facsimile transmission, telephone (voice/TRS/TTY), Internet
    e-mail, audio-cassette recording, and Braille, or some other method
    that would best accommodate a complainant's disability. A complaint
    shall include the name and address of the complainant. The complaint
    shall include the name of the broadcast station or MVPD against whom
    the complaint is alleged. A complaint against a broadcast station
    should include the name and address of the station, and its call
    letters and network affiliation. A complaint against an MVPD should
    include the name and address of the MVPD, and the name of the
    network that provides the programming that is the subject of the
    complaint. Complaints should include a statement of facts sufficient
    to show that the broadcast station or MVPD has violated or is
    violating the Commission's rules, and, if applicable, the date and
    time of the alleged violation; the specific relief or satisfaction
    sought by the complainant; and the complainant's preferred format or
    method of response to the complaint (such as letter, facsimile
    transmission, telephone (voice/TRS/TTY), Internet e-mail, or some
    other method that would best accommodate a complainant's
    disability). Complaints should be sent to the Commission's Consumer
    Information Bureau. That bureau will forward formal complaints to
    the Commission's Enforcement Bureau, and we delegate authority to
    the Enforcement Bureau to act on and resolve any complaints in a
    manner consistent with this *Report and Order*.

46. Complaints satisfying the requirements described above will be
    promptly forwarded by Commission staff to the broadcast station or
    MVPD involved, which shall be called on to answer the complaint
    within a specified time, generally within 30 days. To ensure fair
    and meaningful enforcement of our video description requirements, we
    will authorize the staff to either shorten or lengthen the time
    required for responding to complaints in particular cases. For
    example, if a complaint alleges that the video description
    disappeared during a program, we believe that it is appropriate to
    require the broadcast station or MVPD to respond within 10 days
    after being notified of the complaint in order to minimize the risk
    of repeat or recurring problems. If, on the other hand, a complaint
    alleges that a broadcast station or MVPD has not met its quarterly
    requirements, it may not be appropriate to require the broadcast
    station or MVPD to respond until the end of the quarter that is the
    subject of the complaint. However, recurring complaints or a pattern
    of such complaints against a particular broadcast station or MVPD
    may warrant a more immediate response to ensure that quarterly
    requirements are being addressed by the broadcast station or MVPD in
    manner consistent with their intended purposes. Commission staff
    will manage our complaint processes to reflect these and other case
    specific differences. The burden of proof of compliance in response
    to a complaint is on the broadcast station or MVPD, and they must
    maintain records sufficient to show their compliance with our rules.

47. Commission staff will review all relevant information provided by
    the complainant and defendant broadcast station or MVPD and may
    request additional information from either or both parties when
    needed for a full resolution of the complaint. Certifications of
    compliance from programming suppliers, including programming
    producers, programming owners, networks, syndicators and other
    distributors, may be relied on by broadcast stations and MVPDs to
    defend against claims of noncompliance. As a general matter,
    distributors will not be held responsible for situations where a
    program source falsely certifies that programming delivered to the
    distributor meets our video description requirements and the
    distributor did not know and could not have reasonably ascertained
    that the certification was false. However, we expect broadcast
    stations and MVPDs to establish appropriate policies and procedures
    to safeguard against such false certifications. Commission staff
    will scrutinize complaints to ensure that broadcast stations and
    MVPDs vigilantly adhere to our video description requirements. If we
    determine that a violation has occurred, we will use our
    considerable discretion under the Act to tailor sanctions and
    remedies to the individual circumstances of a particular violation.
    For example, in egregious cases or cases demonstrating a pattern or
    practice of noncompliance, sanctions may include a requirement that
    the video programming distributor deliver video programming
    containing video description in excess of its requirements.

**VIII. EMERGENCY INFORMATION**

48. [Background]{.underline}. In the *Notice*, we observed that public
    safety messages that scroll across the TV screen are not accessible
    to persons with visual disabilities, and sought comment on a
    proposal to require an aural tone to accompany the messages to alert
    such persons to turn on a radio, the SAP channel, or a designated
    digital channel.[^130] We sought comment on the proposal, and any
    other effective approaches, such as whether these messages could be
    provided via "open" video description.[^131] The NFB and some of its
    members that filed comments supported the Commission taking steps to
    enhance the accessibility of emergency information.[^132] Some other
    commenters suggested that we consider this issue in a different
    proceeding.[^133]

49. [Discussion]{.underline}. Consistent with our recent decision to
    require any broadcast station or MVPD that provides emergency
    information to make the critical details of that information
    accessible to persons with hearing disabilities,[^134] we require
    any broadcast station or MVPD that provides local emergency
    information to make the critical details of that information
    accessible to persons with visual disabilities. Our rule applies to
    all broadcast stations and MVPDs that provide emergency information,
    as opposed to just those in the largest TV markets or with the
    largest number of subscribers. We believe this is appropriate both
    because of the importance of emergency information and because it
    does not involve the kinds of technical issues involved in using a
    SAP channel. We envision that affected broadcast stations and MVPDs
    will aurally describe the emergency information in the main audio as
    part of their ordinary operations. This would be similar to
    providing "open" video description. We define emergency information
    to be that which is intended to protect life, health, safety, and
    property, *i.e*., critical details about an emergency and how to
    respond to the emergency. Examples of the types of emergencies
    covered include tornadoes, hurricanes, floods, tidal waves,
    earthquakes, icing conditions, heavy snows, widespread fires,
    discharge of toxic gases, widespread power failures, industrial
    explosions, civil disorders, school closings and changes in school
    bus schedules resulting from such conditions, and warnings and
    watches of impending changes in weather. These examples are intended
    to provide guidance as to what is covered by the rule and are not
    intended to be an exhaustive list. We do not believe an exhaustive
    list of examples is necessary to convey what is covered by the rule.
    Our definition of emergency information will include the provision
    of critical details in an accessible manner. Critical details could
    include, among other things, specific details regarding the areas
    that will be affected by the emergency, evacuation orders, detailed
    descriptions of areas to be evacuated, specific evacuation routes,
    approved shelters or the way to take shelter in one's home,
    instructions on how to secure personal property, road closures, and
    how to obtain relief assistance.

50. The rule will require broadcast stations and MVPDs that provide
    local emergency information to make that information accessible to
    viewers who are blind or have visual disabilities in the affected
    local area through aural presentation whenever such information is
    provided during regularly scheduled newscasts, unscheduled newscasts
    that preempt regularly scheduled programming or during continuing
    coverage of a situation. As a result of our rule, persons with
    visual disabilities will have access to the same critical
    information to which other viewers have access. Under this rule,
    broadcast stations and MVPDs are not required to provide in an
    accessible format all of the information about an emergency
    situation that they are providing to viewers visually, only the
    visual information intended to further the protection of life,
    health, safety, and property. In determining whether particular
    details need to be made accessible, we will permit programmers to
    rely on their own good faith judgments.

51. We believe that our requirement that broadcast stations and MVPDs
    make the critical details of emergency information available during
    regularly scheduled newscasts and newscasts that are sufficiently
    urgent to interrupt regular programming will generally ensure that
    the critical details of emergency information will be accessible to
    persons with visual disabilities. This is because we expect that
    broadcast stations and MVPDs will provide emergency information of
    an extremely urgent nature by interrupting their regularly scheduled
    programming with a newsbreak, and we require them to make the
    critical details of this information accessible. To the extent,
    however, that a broadcast station or MVPD does not interrupt its
    regular programming to provide emergency information but rather does
    so through another manner, such as a "crawl" or "scroll," during
    that programming, we require them to accompany that information with
    an aural tone, as referenced in the *Notice*.[^135]

52. The new rules regarding emergency information will be effective upon
    approval by the Office of Management and Budget. We adopt an earlier
    effective date for this rule because of the importance of emergency
    information, and because there should be little if any equipment and
    infrastructure costs associated with compliance.

**IX. JURISDICTION**

53. [Background]{.underline}. In the *Notice*, we sought comment on
    whether we have the statutory authority to adopt video description
    rules.[^136] We noted the general purpose of the Act in establishing
    the Commission, as well as the Commission's general jurisdiction and
    rulemaking powers.[^137] We also noted that Congress has expressed
    the goal of increasing the accessibility of communications services
    for persons with disabilities.[^138] We further noted that Title III
    of the Act requires the Commission to find that the "public
    interest, convenience, and necessity" will be served by the grant,
    renewal, or transfer of a license authorized pursuant to that
    title.[^139] Finally, we observed that Congress had directed the
    Commission to conduct an inquiry and issue a report on video
    description.[^140]

54. [Discussion]{.underline}. We conclude that we have the authority to
    adopt video description rules. Section 1 of the Act (codified as 47
    U.S.C. § 151) established the Commission "\[f\]or the purpose of
    regulating 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. . . ."
    (emphasis added). Section 1 also established the Commission "for the
    purpose of promoting safety of life and property through the use of
    wire and radio communication." Section 2(a) of the Act (codified as
    47 U.S.C. § 152(a)) states that "\[t\]he provisions of this act
    shall apply to all interstate and foreign communication by wire or
    radio" and "all persons engaged within the United States in such
    communication." Section 4(i) (codified as 47 U.S.C. § 154(i)) states
    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
    section 303(r) (codified as 47 U.S.C. § 303(r)) states 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. . . ."

55. Congress has thus 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. In other words, as the Commission has previously
    explained, "\[t\]he courts have consistently held that the
    Commission has broad discretion so long as its actions further the
    legislative purposes for which the Commission was created and are
    not contrary to the basic statutory scheme."[^141] Thus, in
    considering the Commission's power to create the universal service
    fund (for which at the time there was no explicit statutory
    authority), the U.S. Court of Appeals for the D.C. Circuit relied,
    solely, on sections 1 and 4(i) of the statute, holding: "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."[^142]

56. We disagree with those parties that contend that video description
    rules would be inconsistent with other provisions in the Act or
    other law. Specifically, some parties contend that video description
    rules are inconsistent with sections 624 and 713 of the Act, and the
    First Amendment. Others suggest that the rules interfere with the
    rights of copyright holders. We address each of these below.

57. *Section 713*. Some commenters contend that section 713(f) of the
    Act, codified as 47 U.S.C. § 613(f), only authorizes the Commission
    to conduct an inquiry, and thus forecloses a rulemaking, on video
    description.[^143] Section 713(f) of the Act states, in its
    entirety:

> Within 6 months after the date of enactment of the Telecommunications
> Act of 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 the appropriate methods and schedule 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.

Section 713(f) is silent with respect to -- and thus by itself neither
authorizes nor precludes -- a rulemaking. In other words, section 713(f)
does not change the purpose for which the Commission was created, as
expressed in section 1 of the Act, nor does it derogate the general
rulemaking powers the Commission has, as expressed in sections 4(i) and
303(r) of the Act.

58. We recognize, as some commenters point out,[^144] that the
    legislative history to section 713 indicates that Congress
    considered, but did not enact, language explicitly referencing a
    rulemaking proceeding. The Conference Report indicates that the
    House amendment to the Senate bill contained language explicitly
    referencing a rulemaking proceeding: "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."[^145] The conferees agreed, however, to remove
    such language: "The agreement deletes the House provision
    referencing a Commission rulemaking with respect to video
    description."[^146] While this history indicates that section 713
    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 the Act. Had
    Congress intended to limit our general authority, it could have
    expressly done so, as it has elsewhere in the Act.[^147]

59. NAB suggests that a general canon of statutory construction -- the
    "specific governs the general" -- precludes our reliance on the
    general jurisdictional sources of sections 4(i) and 303(r) when the
    specific language and legislative history of section 713 do not
    authorize a Commission rulemaking.[^148] We agree that if section
    713 prohibited us from adopting video description rules we could not
    rely on our general rulemaking authority to do so. As discussed
    above, however, section 713 does not limit our authority. NAB's
    argument, therefore, is misplaced. Congress did not enact section
    713 as freestanding legislation, but rather as part of the
    Telecommunications Act of 1996, and in particular as part of the
    portion of that legislation that amended the Communications Act.
    Just last term, the Supreme Court made clear that the action of
    incorporating portions of the 1996 Act into the Communications Act
    means that those portions are subject to the Commission's general
    rulemaking powers.[^149] "\[W\]e think that what the later statute
    contemplates is best determined . . . by the clear fact that the
    1996 Act was adopted, not as a freestanding enactment, but as an
    amendment to, and hence part of, an Act which said that '\[t\]he
    Commission may prescribe such rules and regulations as may be
    necessary in the public interest to carry out the provisions of this
    Act.' \[One\] cannot plausibly assert that the 1996 Congress was
    unaware of the general grant of the rulemaking authority contained
    within the Communications Act. . . ."[^150]

60. A number of commenters suggest that the difference in treatment in
    section 713 between closed captioning and video description
    indicates that Congress did not intend the Commission to adopt video
    description rules,[^151] and that this difference precludes the
    Commission from adopting such rules.[^152] Subsections (a)-(e) of
    section 713 deal with closed captioning. Subsection (a) directs the
    Commission to conduct an inquiry on closed captioning, and submit a
    report to Congress, and subsections (b)-(e) include a requirement
    that the Commission adopt rules, and set forth certain parameters
    for those regulations. Subsection (f) deals with video description,
    and as stated above, only requires the Commission to conduct an
    inquiry and submit a report to Congress. However, as the Supreme
    Court recently held in resolving similar statutory issues elsewhere
    in the Communications Act: "There is undeniably a lack of
    parallelism here, but it seems to us adequately explained by the
    fact that \[one provision\] specifically requires the Commission to
    promulgate regulations implementing that provision, where \[a
    subsection of another provision\] does not. It seems to us not
    peculiar that the mandated regulations should be specifically
    referenced, where regulations permitted pursuant to the Commission's
    \[more general\] authority are not. In any event, the mere lack of
    parallelism is surely not enough to displace that explicit
    authority."[^153] In other words, the difference in treatment
    between closed captioning and video description simply means that
    Congress intended the Commission not to have any discretion on
    whether to adopt closed captioning rules, but left it to the
    Commission to decide whether to adopt video description rules. The
    difference in treatment does not displace the Commission's more
    general rulemaking powers, as expressed in sections 4(i) and 303(r).
    In sum, section 713 does not preclude the Commission from adopting
    video description rules.

61. *Section 624(f).* Some commenters also contend that, absent express
    authority to conduct a rulemaking on video description elsewhere in
    the Act, section 624(f) of the Act precludes the Commission from
    adopting video description rules for cable operators.[^154] Section
    624(f) states that "\[a\]ny Federal agency . . . may not impose
    requirements regarding the provision or content of cable services,
    except as expressly provided in \[Title VI\]." The U.S. Court of
    Appeals for the D.C. Circuit has interpreted this section to forbid
    "rules requiring cable companies to carry particular
    programming."[^155] The video description rules we adopt today are
    not content-based, and as such, do not require cable companies (or
    any other distributor of video programming) to carry particular
    programming. Rather, our rules simply require that, if a distributor
    chooses to carry the programming of the largest networks, it must
    provide a small amount of programming with video description.

62. *First Amendment*. Some commenters argue that requiring video
    description is inconsistent with the First Amendment, because it
    compels speech, or otherwise is content-based regulation.[^156]
    Other commenters, however, contend that our rules are
    content-neutral regulations, similar to time, place, and manner
    regulations, and under the applicable test, are consistent with the
    First Amendment.[^157] The Supreme Court has held that "\[t\]he
    principal inquiry in determining content neutrality, in speech cases
    generally and in time, place or manner cases in particular, is
    whether the government has adopted a regulation of speech because of
    disagreement with the message it conveys. The government's purpose
    is the controlling consideration. A regulation that serves purposes
    unrelated to free expression is deemed neutral, even if it has an
    incidental effect on some speakers or messages but not
    others."[^158] The purpose of our video description rules is to
    enhance the accessibility of video programming to persons with
    disabilities, and is not related to content.

63. The fact that our rules will require, as opposed to restrict, speech
    does not change the analysis.[^159] As a number of commenters
    explain, a mandate to provide video description does not require a
    programmer to express anything other than what the programmer has
    already chosen to express in the visual elements of the
    program.[^160] Our rules simply require a programmer to express what
    it has already chosen to express in an alternative format to enhance
    the accessibility of the message. As such, our rules are comparable
    to a requirement to translate one's speech into another language in
    other contexts.[^161] A requirement to provide programming with
    video description is most similar to our existing requirements to
    provide programming with closed captioning, which, as several
    commenters point out,[^162] has not been challenged on First
    Amendment grounds. Indeed, the U.S. Court of Appeals for the D.C.
    Circuit concluded nearly twenty years ago that any requirement to
    provide programming with closed captioning would not violate the
    First Amendment.[^163]

64. Given that our video description rules are content-neutral
    regulations, the applicable test for reviewing their
    constitutionality is whether the regulations promote an important
    government purpose, and whether they do not burden substantially
    more speech than necessary.[^164] As indicated above, our purpose in
    adopting our rules is to enhance the accessibility of television
    programming to persons with visual disabilities. As we observed in
    the *Notice*, television programming shapes American culture and
    public opinion in myriad ways, because it is our principal source of
    news and information, and provides hours of entertainment
    weekly.[^165] Millions of Americans have visual disabilities and
    have difficulty following the visual elements in television
    programming, which can be overcome through video description. We
    believe this is an important government purposes in the context of
    the First Amendment, and believe that other legislation designed to
    enhance the accessibility of communications to persons with
    disabilities supports our conclusion.

65. We also believe that video description will not burden any more
    speech than necessary. As described above, video description is in
    effect the translation of the visual elements of programming into
    another language to provide functional equivalency for the blind.
    Our rules will require only a limited amount of programming to
    contain video description. To the extent the video description is
    distracting to viewers who do not wish to hear it, they can simply
    listen to the main audio instead of the SAP channel.

66. *Copyright*. Some commenters also suggest that our video description
    rules are in tension with copyright law.[^166] MPAA explains that
    the video description of a program requires the creation of a second
    script, which is a derivative work that itself enjoys copyright
    protection, and that video description could only be undertaken with
    the consent of the holder of the copyright to the program, for all
    stages of the production and distribution of the program.[^167]
    WGBH, however, which actually describes programming, states that in
    more than ten years of doing so, no copyright issues have arisen
    that prevented it from describing programming.[^168] WGBH explains
    that video description always occurs with the consent of the
    copyright holder (as does closed captioning), and that copyright
    holders are willing to permit the video description of their
    programs because they continue to hold the copyright and the video
    description adds value to their programs.[^169] While MPAA points
    out that WGBH's apparent success in obtaining the necessary
    copyright clearances occurred in a voluntary environment,[^170] we
    believe that the limited nature of our video description rules does
    not change this environment in such a dramatic fashion that
    copyright problems will become an obstacle for those responsible to
    provide video description to in fact do so. Rather, we envision
    copyright holders and distributors working as NTVAC suggests:[^171]
    just as a broadcast network, in negotiating the rights to air a
    movie, may request copyright holders to change a program in order to
    comply with indecency restrictions, so may it request copyright
    holders to provide video description of the program. Should the
    distributors that are subject to our rules be unable to obtain the
    necessary clearances from copyright holders, they are free to bring
    those difficulties to our attention, and seek appropriate relief.

**X. CONCLUSION**

67. Today we adopt rules to enhance the accessibility of the important
    medium of television to persons with visual disabilities. We do not
    impose an undue burden on the programming production and
    distribution industries. Our rules will require only the largest
    broadcast stations and MVPDs -- which provide television programming
    to the majority of the public -- to provide a limited amount of
    programming with video description. These broadcast stations and
    MVPDs will provide programming with video description on the largest
    networks they carry -- which provide the most watched television
    programming. Our rules will thus create a benefit to the greatest
    number of persons with visual disabilities but at the same time
    impose a cost on the least number of broadcast stations and MVPDs.
    As the industry and the public gain greater experience with video
    description, we hope that more broadcast stations and MVPDs will
    provide video description, and those that do so will provide more
    hours of programming with video description.

**XI. ADMINISTRATIVE MATTERS**

68. This document is available to individuals with disabilities
    requiring accessible formats (electronic ASCII text, Braille, large
    print, and audiocassette) by contacting Brian Millin at (202)
    418-7426 (voice), (202) 418-7365 (TTY), or by sending an email to
    fccinfo@fcc.gov.

69. [Final Paperwork Reduction Act Analysis]{.underline}. This *Report
    and Order* contains information collection requirements that the
    Commission is submitting to the Office of Management and Budget
    requesting clearance under the Paperwork Reduction Act of 1995.

70. [Final Regulatory Flexibility Certification]{.underline}. Pursuant
    to the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. §
    601 *et seq.*, the Commission\'s Final Regulatory Certification in
    this *Report and Order* is attached as Appendix C.

71. [Additional Information]{.underline}. For additional information,
    please contact Eric J. Bash, Policy and Rules Division, Mass Media
    Bureau, (202) 418-2130 (voice), (202) 418-1169 (TTY), or
    ebash@fcc.gov, or Meryl S. Icove, Disabilities Rights Office,
    Consumer Information Bureau, (202) 418-2372 (voice), 418-0178 (TTY),
    or micove@fcc.gov.

**XII. ORDERING CLAUSES**

72. Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in sections 1, 2(a), 4(i), 303, 307, 309, 310, and 713 of the
    Communications Act, as amended, 47 U.S.C. §§ 151, 152(a), 154(i),
    303, 307, 309, 310, 613, Part 79 of the Commission's rules are
    amended as set forth in Appendices B and C.

73. IT IS FURTHER ORDERED that the rules set forth in Appendix B that
    revise section 79.2 of the Commission's rules, 47 C.F.R. § 79.2,
    SHALL BECOME EFFECTIVE upon approval from the Office of Management
    and Budget, and the rules set forth in Appendix B that add section
    79.3 to the Commission's rules, 47 C.F.R. § 79.3, SHALL BECOME
    EFFECTIVE on April 1, 2002.

74. IT IS FURTHER ORDERED that the Commission\'s Consumer Information
    Bureau, Reference Information Center, SHALL SEND a copy of this
    *Report and Order*, including the Final Regulatory Flexibility
    Certification, to the Chief Counsel for Advocacy of the Small
    Business Administration.

75. IT IS FURTHERED ORDERED that this proceeding IS TERMINATED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

**APPENDIX A**

**COMMENTS**

A&E Television Networks, Inc. (A&E)

Adaptive Environments

Akamine, Anthony (Akamine)

American Council of the Blind (ACB)

American Foundation for the Blind (AFB)

Association of America's Public Television Stations (APTS)

Braille Institute Library Services (BILS)

Brandt, Dorothy

C-SPAN and C-SPAN 2 (C-SPAN)

Clive, Alan (Clive)

Council of Organizational Representatives (COR)

DIRECTV, Inc. (DirecTV)

Enders, William H.

Feingenblatt, Dr. R.I.

Game Show Network, L.P. (GSN)

Grupo Televisa, S.A. (GT)

Indiana Protection and Advisory Services (IPAS)

International Cable Channels Partnership (ICCP)

Massachusetts Assistive Technology Partnership (MATP)

Metropolitan Washington Ear (MWE)

Motion Picture Association of America (MPAA)

Narrative Television Network (NTN)

National Association of Broadcasters (NAB)

National Cable Television Association (NCTA)

National Federation of the Blind (NFB)

National Television Video Access Coalition (NTVAC)

QVC, Inc. (QVC)

R.P. International (RPI)

Satellite Broadcasting and Communications Association (SBCA)

Short, Charles and Maureen

Short, Charles Jr.

Telecommunications for the Deaf, Inc. (TDI)

WGBH Educational Foundation (WGBH)

Wireless Communications Association International, Inc. (WCA)

**REPLY COMMENTS**

A&E Television Networks (AETN Reply)

Alabama Council of the Blind (Alabama Council)

Allen, Seville (Allen)

American Council of the Blind (ACB Reply)

American Foundation for the Blind (AFB Reply)

Baker, Rob (Baker)

Benson, Stephen (Benson)

Blinded Veterans Association (BVA)

Brandt, Dorothy (Brandt Reply)

Brown, Deborah (Brown)

Carcione, Tracy (Carcione)

Chong, Curtis (Chong)

Chorney, Marla (Chorney)

Cumings, Cheryl (C. Cumings)

Cumings, Thomas (T. Cumings)

DIRECTV, Inc. (DirecTV Reply)

Dunnam, Jennifer (Dunnam)

Elliott, Peggy Pinder (Elliott)

Freeman, Michael (Freeman)

Gardner, Ronald J. (Gardner)

Grupo Televisa, S.A. (Grupo Televisa Reply)

Home Box Office (HBO)

Jacboson, Shawn (Jacobson)

Koeng, Sheila (Koeng)

League of United Latin American Citizens and the National Council of La
Raza (LULAC)

Lifetime Entertainment Services (Lifetime)

Maine Independent Living Services, Inc. (MILS)

Massachusetts Association for Parents of the Visually Impaired (MAVPI)

Mayo, Shawn (Mayo)

Motion Picture Association of America (MPAA Reply)

Narrative Television Network (NTN Reply)

National Association of Broadcasters (NAB Reply)

National Cable Television Association (NCTA Reply)

National Federation of the Blind of Colorado (NFB-CO)

National Federation of the Blind of Maryland (NFB-MD)

National Federation of the Blind of Ohio (NFB-OH)

National Television Video Access Coalition (NTVAC Reply)

Oliver, Philip (Oliver)

Pease, J.M. (Pease)

Pietrolungo, Al

QVC, Inc. (QVC Reply)

Radio-Television News Directors Association (RTNDA)

RPI International, Inc. (RPI Reply)

Sanders, Judy (Sanders)

Sanfilippo, John (Sanfilippo)

Scanlan, Joyce (Joyce Scanlan)

Scanlan, Thomas

Sutton, Jennifer

VIPs of Attleboro (VIPs)

WGBH Educational Foundation (WGBH Reply)

Wales, Nathanael (Wales)

Walhof, Ramona (Walhof)

Walker, Barbara (Walker)

Weather Channel, Inc. (Weather Channel)

West Virginia Department of Education and the Arts, Division of
Rehabilitation Services (WV Dep't of Education and the Arts)

Zweifel, Clyde (Zweifel)

**APPENDIX B**

**RULES**

Part 79 of Title 47 of the U.S. Code of Federal Regulations is amended
by revising it to read as follows:

**Part 79\--CLOSED CAPTIONING OF VIDEO PROGRAMMING**

1\. The authority citation for Part 79 is revised to read as follows:

AUTHORITY: 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 613.

2\. The title of Part 79 is revised to read as follows:

**Part 79\--CLOSED CAPTIONING AND VIDEO DESCRIPTION OF VIDEO
PROGRAMMING**

3\. Section 79.2 is amended by revising paragraph (a) (1) and (b) (1)
and (3) to read as follows:

**§ 79.2 Accessibility of Programming Providing Emergency Information.**

\(a\) Definitions.

\(1\) For purposes of this section, the definitions in Sections 79.1 and
79.3 apply.

\* \* \* \* \*

\(b\) Requirements for accessibility of programming providing emergency
information.

> \(1\) Video programming distributors must make emergency information,
> as defined in paragraph (a) of this section, accessible as follows:
>
> \(i\) Emergency information that is provided in the audio portion of
> the programming must be made accessible to persons with hearing
> disabilities by using a method of closed captioning or by using a
> method of visual presentation, as described in § 79.1 of this part;
>
> \(ii\) Emergency information that is provided in the video portion of
> a regularly scheduled newscast, or newscast that interrupts regular
> programming, must be made accessible to persons with visual
> disabilities; and
>
> \(iii\) Emergency information that is provided in the video portion of
> programming that is not a regularly scheduled newscast, or a newscast
> that interrupts regular programming, must be accompanied with an aural
> tone.

\(2\) \* \* \*

\(3\) Video programming distributors must ensure that:

> \(i\) Emergency information should not block any closed captioning and
> any closed captioning should not block any emergency information
> provided by means other than closed captioning; and
>
> \(ii\) Emergency information should not block any video description
> and any video description provided should not block any emergency
> information provided by means other than video description.

\* \* \* \* \*

4\. Part 79 is amended by adding new Section 79.3 to read as follows:

**§ 79.3 Video description of video programming.**

\(a\) Definitions. For purposes of this section the following
definitions shall apply:

> \(1\) Designated Market Areas (DMAs). Unique, county-based geographic
> areas designated by Nielsen Media Research, a television audience
> measurement service, based on television viewership in the counties
> that make up each DMA.
>
> \(2\) Second Audio Program (SAP) channel. A channel containing the
> frequency-modulated second audio program subcarrier, as defined in,
> and subject to, the Commission's OET Bulletin No. 60, Revision A,
> "Multichannel Television Sound Transmission and Processing
> Requirements for the BTSC System," February 1986.
>
> \(3\) Video description. The insertion of audio narrated descriptions
> of a television program's key visual elements into natural pauses
> between the program's dialogue.
>
> \(4\) Video programming. Programming provided by, or generally
> considered comparable to programming provided by, a television
> broadcast station that is distributed and exhibited for residential
> use.
>
> \(5\) Video programming distributor. Any television broadcast station
> licensed by the Commission and any multichannel video programming
> distributor (MVPD), and any other distributor of video programming for
> residential reception that delivers such programming directly to the
> home and is subject to the jurisdiction of the Commission.

\(b\) The following video programming distributors must provide
programming with video description as follows:

> \(1\) Commercial television broadcast stations that are affiliated
> with one of the top four commercial television broadcast networks
> (ABC, CBS, Fox, and NBC), as of September 30, 2000, and that are
> licensed to a community located in the top 25 DMAs, as determined by
> Nielsen Media Research, Inc. for the year 2000, must provide 50 hours
> of video description per calendar quarter, either during prime time or
> on children's programming;
>
> \(2\) Television broadcast stations that are affiliated or otherwise
> associated with any television network, must pass through video
> description when the network provides video description and the
> broadcast station has the technical capability necessary to pass
> through the video description;
>
> \(3\) Multichannel video programming distributors (MVPDs) that serve
> 50,000 or more subscribers, as of September 30, 2000, must provide 50
> hours of video description per calendar quarter during prime time or
> on children's programming, on each channel on which they carry one of
> the top five national nonbroadcast networks, as defined by an average
> of the national audience share during prime time of nonbroadcast
> networks, as determined by Nielsen Media Research, Inc., for the time
> period October 1999-September 2000; and
>
> \(4\) Multichannel video programming distributors (MVPDs) of any size:
>
> \(i\) must pass through video description on each broadcast station
> they carry, when the broadcast station provides video description, and
> the channel on which the MVPD distributes the programming of the
> broadcast station has the technical capability necessary to pass
> through the video description; and
>
> \(ii\) must pass through video description on each nonbroadcast
> network they carry, when the network provides video description, and
> the channel on which the MVPD distributes the programming of the
> network has the technical capability necessary to pass through the
> video description.

\(c\) Responsibility for and determination of compliance.

> \(1\) The Commission will calculate compliance on a per channel,
> calendar quarter basis, beginning with the calendar quarter April
> 1\--June 30, 2002.
>
> \(2\) Programming with video description will count toward a
> broadcaster's or MVPD's minimum requirement for a particular quarter
> only if that programming has not previously been counted by that
> broadcaster or MVPD towards its minimum requirement for any quarter.
>
> \(3\) Once an entity has aired a particular program with video
> description, it is required to include video description with all
> subsequent airings of that program, unless the entity uses the SAP
> channel in connection with the program for a purpose other than
> providing video description.
>
> \(4\) In evaluating whether a video programming distributor has
> complied with the requirement to provide video programming with video
> description, the Commission will consider showings that any lack of
> video description was *de minimis* and reasonable under the
> circumstances.
>
> \(d\) Procedures for exemptions based on undue burden.
>
> \(1\) A video programming distributor may petition the Commission for
> a full or partial exemption from the video description requirements of
> this section, which the Commission may grant upon a finding that the
> requirements will result in an undue burden.
>
> \(2\) The petitioner must support a petition for exemption with
> sufficient evidence to demonstrate that compliance with the
> requirements to provide programming with video description would cause
> an undue burden. The term \"undue burden\" means significant
> difficulty or expense. The Commission will consider the following
> factors when determining whether the requirements for video
> description impose an undue burden:
>
> \(i\) The nature and cost of providing video description of the
> programming;
>
> \(ii\) The impact on the operation of the video programming
> distributor;
>
> \(iii\) The financial resources of the video programming distributor;
> and
>
> \(iv\) The type of operations of the video programming distributor.
>
> \(3\) In addition to these factors, the petitioner must describe any
> other factors it deems relevant to the Commission\'s final
> determination and any available alternative that might constitute a
> reasonable substitute for the video description requirements. The
> Commission will evaluate undue burden with regard to the individual
> outlet.
>
> \(4\) The petitioner must file an original and two (2) copies of a
> petition requesting an exemption based on the undue burden standard,
> and all subsequent pleadings, in accordance with § 0.401(a) of this
> chapter.

\(5\) The Commission will place the petition on public notice.

> \(6\) Any interested person may file comments or oppositions to the
> petition within 30 days of the public notice of the petition. Within
> 20 days of the close of the comment period, the petitioner may reply
> to any comments or oppositions filed.
>
> \(7\) Persons that file comments or oppositions to the petition must
> serve the petitioner with copies of those comments or oppositions and
> must include a certification that the petitioner was served with a
> copy. Parties filing replies to comments or oppositions must serve the
> commenting or opposing party with copies of such replies and shall
> include a certification that the party was served with a copy.
>
> \(8\) Upon a showing of good cause, the Commission may lengthen or
> shorten any comment period and waive or establish other procedural
> requirements.
>
> \(9\) Persons filing petitions and responsive pleadings must include a
> detailed, full showing, supported by affidavit, of any facts or
> considerations relied on.
>
> \(10\) The Commission may deny or approve, in whole or in part, a
> petition for an undue burden exemption from the video description
> requirements.
>
> \(11\) During the pendency of an undue burden determination, the
> Commission will consider the video programming subject to the request
> for exemption as exempt from the video description requirements.

\(e\) Complaint procedures.

> \(1\) A complainant may file a complaint concerning an alleged
> violation of the video description requirements of this section by
> transmitting it to the Consumer Information Bureau at the Commission
> by any reasonable means, such as letter, facsimile transmission,
> telephone (voice/TRS/TTY), Internet e-mail, audio-cassette recording,
> and Braille, or some other method that would best accommodate the
> complainant\'s disability. Complaints should be addressed to: Consumer
> Information Bureau, 445 12^th^ Street, SW, Washington, DC 20554**.** A
> complaint must include:
>
> \(i\) the name and address of the complainant;
>
> \(ii\) the name and address of the broadcast station against whom the
> complaint is alleged and its call letters and network affiliation, or
> the name and address of the MVPD against whom the complaint is alleged
> and the name of the network that provides the programming that is the
> subject of the complaint;
>
> \(iii\) a statement of facts sufficient to show that the video
> programming distributor has violated or is violating the Commission\'s
> rules, and, if applicable, the date and time of the alleged violation;
>
> \(iv\) the specific relief or satisfaction sought by the complainant;
> and
>
> \(v\) the complainant\'s preferred format or method of response to the
> complaint (such as letter, facsimile transmission, telephone
> (voice/TRS/TYY), Internet e-mail, or some other method that would best
> accommodate the complaint\'s disability).
>
> \(2\) The Commission will promptly forward complaints satisfying the
> above requirements to the video programming distributor involved. The
> video programming distributor must respond to the complaint within a
> specified time, generally within 30 days. The Commission may authorize
> Commission staff to either shorten or lengthen the time required for
> responding to complaints in particular cases.
>
> \(3\) The Commission will review all relevant information provided by
> the complainant and the video programming distributor and will request
> additional information from either or both parties when needed for a
> full resolution of the complaint.
>
> \(i\) The Commission may rely on certifications from programming
> suppliers, including programming producers, programming owners,
> networks, syndicators and other distributors, to demonstrate
> compliance. The Commission will not hold the video programming
> distributor responsible for situations where a program source falsely
> certifies that programming that it delivered to the video programming
> distributor meets our video description requirements if the video
> programming distributor is unaware that the certification is false.
> Appropriate action may be taken with respect to deliberate
> falsifications.
>
> \(ii\) If the Commission finds that a video programming distributor
> has violated the video description requirements of this section, it
> may impose penalties, including a requirement that the video
> programming distributor deliver video programming containing video
> description in excess of its requirements.

\(f\) Private rights of action are prohibited. Nothing in this section
shall be construed to authorize any private right of action to enforce
any requirement of this section. The Commission shall have exclusive
jurisdiction with respect to any complaint under this section.

**APPENDIX C**

**FINAL REGULATORY FLEXIBILITY ACT CERTIFICATION**

The Regulatory Flexibility Act (RFA)[^172] requires that an agency
prepare a regulatory flexibility analysis for notice-and-comment
rulemaking proceedings, unless the agency certifies that \"the rule will
not, if promulgated, have a significant economic impact on a substantial
number of small entities.\"[^173] The *Notice of Proposed Rulemaking*
(*Notice*)[^174] published in this proceeding proposed rules to provide
video description on video programming in order to ensure the
accessibility of video programming to persons with visual impairments.

In an abundance of caution, the Commission published an Initial
Regulatory Flexibility Analysis (IRFA) in the *Notice,*[^175] even
though the Commission was reasonably confident that the proposed rules
would not have the requisite \"significant economic impact\" on a
\"substantial number of small entities.\" The IRFA sought written public
comment on the proposed rules. No written comments were receive on the
IRFA, nor were general comments received that raised concerns about the
impact of the proposed rules on small entities.

The rules adopted in this *Report and Order* requiring stations to
provide video descriptions on video programming will affect at most five
small broadcasters, which are affiliates of the top four networks in the
top 25 Nielsen Designated Market Areas, in the amount of \$5,000 to
\$25,000 each. We recognize that the upper end of the possible economic
impact might constitute a significant impact for some small
broadcasters, but, as noted, this impact will reach, at most, five
entities, and we have provided an exemption (upon application) for those
small entities for which the cost is burdensome. The pass through of
programming will have no significant economic impact on small entities
because they are required to pass through programming with video
description only if they already have the technical capability necessary
to do so. The Commission believes that the emergency notification
requirement will have a negligible effect on small entities as well. In
addition, if this requirement should prove burdensome to small entities,
they may apply for an exemption.

The Commission therefore certifies, pursuant to the RFA, that the rules
adopted in the present *Report and Order* will not have a significant
economic impact on a substantial number of small entities. The
Commission will send a copy of the *Report and Order*, including a copy
of this final certification, in a report to be sent to Congress pursuant
to the Small Business Regulatory Enforcement Fairness Act, *see* 5
U.S.C. § 801(a)(1)(A). In addition, the Commission will send a copy of
the *Report and Order*, including a copy of this final certification, to
the Chief Counsel for Advocacy of the Small Business Administration. In
addition, a copy of the *Report and Order* and this final certification
will be published in the Federal Register. *See* 5 U.S.C. § 605(b).

July 21, 2000

**Separate Statement of Commissioner Susan Ness**

*In re: Report and Order, In the Matter of Implementation of Video
Description of Video Programming,* MM Doc. No. 99-339

All Americans -- including those with visual disabilities -- should have
meaningful access to video programming. That is the noble goal of this
Report and Order. In celebrating the tenth anniversary of the Americans
with Disabilities Act, we all should strive to help those with
disabilities participate fully in the cultural fabric of our society.
Moreover, this Commission has a legal and moral responsibility to ensure
that all Americans have access to emergency information, especially
concerning their health and safety.

While I would have preferred more explicit delegation from Congress, I
believe that Congress did not preclude us from taking the steps that we
have adopted today to make programming available to those with visual
disabilities. Also, while on balance I support this item, I have
significant reservations regarding our implementation of these
well-intentioned goals. The item reflects what was a spotty record in
many respects, especially concerning the cost, technical feasibility,
and demand for this service. But by limiting the application of our
entertainment programming requirements to only the largest program
providers and only the largest television stations and cable systems,
and by requiring only a modest number of hours to be video described, we
have an opportunity to gain valuable experience and answers to these
questions before we undertake any expansion of these requirements.

## *Emergency Information*

This Order requires broadcasters and multichannel video programming
distributors (MVPDs) to make emergency information accessible to those
who have visual disabilities \-- an action I unequivocally support. The
Commission's responsibility is to ensure accessibility to
communications, "to all people of the United States" for the purpose of
"promoting safety of life and property."[^176] The Order we adopt today
addresses this fundamental tenet of the Telecommunications Act by
requiring that all broadcasters and MVPDs which provide emergency
information make the critical details of that information accessible to
those with visual disabilities. In contrast to the record on video
entertainment description, the record reflects unanimous agreement that
meaningful access to emergency information is vital. I am especially
pleased that we have expedited the effective date of this requirement.

The Order begins but does not fully address the needs expressed by the
visual disabilities community for access to emergency information. For
example, consumers will still find it frustrating to hear a tone which
precedes written weather, news, or sports information scrolled across
the bottom of the television screen, but will not have oral access to
that information. In addition, the National Federation of the Blind
notes that many new Secondary Audio Programming (SAP)-equipped
televisions require navigating menus to access the SAP channel but that
such menus are visual and therefore inaccessible to those with visual
disabilities.[^177] The Commission should use its good offices to bring
together representatives of the consumer electronics industry and
advocates for those with visual disabilities to generate practical
solutions to this problem.

## *Video Programming Description*

The issues raised by the video entertainment description requirements of
the Order are more problematic. Commenters raised legitimate questions
about the demand for, cost, and feasibility of video description. To
what extent will visually impaired consumers avail themselves of video
described prime time and children's programming? Do many even have
access to SAP-enabled television receivers? Does it make sense to video
describe all categories of programming? Will broadcasters and MVPDs be
forced to supplant Spanish language programming on the SAP channel with
video description? These questions are not fully answered.

Every regulation that government imposes has a cost associated with it.
Inevitably, consumers pay that cost. We therefore must ensure that any
requirements we impose are as narrowly tailored as are necessary to
address the public need. The limited rollout of video description that
we order today will enable us to assess the efficacy of, and consumer
demand for, this service. We will carefully evaluate that experience
before expanding upon the requirements adopted today.

### *Conclusion*

We are all mindful of our responsibility to follow the law in carrying
out our duties, including our efforts to ensure that all Americans have
meaningful access to video programming. While I have concerns about the
record in this proceeding, the limited scope of our rules will enable us
to assess the efficacy and consumer demand for descriptive video service
before we entertain further expansion.

In the Matter of Implementation of Video Description of Video
Programming,

MM Docket No. 99-339

**Statement of Commissioner Harold W. Furchtgott-Roth,**

**Concurring in Part and Dissenting in Part**

It is with regret that I dissent from the portion of this Order adopting
rules requiring video description. I understand well the concerns of
those who support this item, and it is more than apparent to me that
their views are deeply and personally held. At the same time, however,
such factors cannot trump the clear limits on our statutory authority.
In short, as much as I might like to support this item in its entirety,
I am unable to read the Communications Act as authorizing rules
requiring video description.[^178]

##  I. Statutory Authority 

In the Notice of Proposed Rulemaking in this matter, we specifically
sought comment on the question whether the Commission possesses
statutory authority to require broadcasters, cable operators, and
satellite companies to provide video description. *See* 14 FCC Rcd.
19845 at para. 39 (1999). I have reviewed carefully the comments on this
issue and had hoped there to find persuasive arguments for authority. I
can only conclude that the legal arguments in favor of jurisdiction can
be described as weak, at best.

The argument for authority here is grounded in the theory of ancillary
jurisdiction under sections 1 and 4(i) of the Communications Act. *See
Order* at paras. 54-55. While it is true that the Supreme Court and the
D.C. Circuit have upheld the Commission's exercise of that type of
jurisdiction, this case is distinguishable from those in one very
important regard: in none of those cases had Congress expressly
addressed the Commission's duties with respect to the regulated area at
issue. For example, in *United States v. Southwestern Cable Co.*, 392
U.S. 157, 178 (1968), there were no preexisting statutory provisions
regarding the Commission's oversight of the cable industry. Similarly,
in *Rural Telephone Coalition v. FCC*, 838 F2d 1307 (D.C. Cir. 1988),
Title 47 was silent on the question of federal funding for universal
service.

Here, by contrast, Congress has clearly delineated our duties with
respect to video description. In section 713(f) of the Act, Congress
directed the Commission to commence an inquiry and issue a report on the
matter. This has been done; there is no more authority that can be wrung
out of that section. Indeed, the fact that section 713(f) requires a
report and no more suggests that Congress was not prepared to, and
purposefully intended not to, go any further. Juxtaposition of this
section with the contemporaneously enacted one concerning closed
captioning, *see* section 713(b), only strengthens this inference of
purposeful limitation. That section, which requires both a report *and*
a rulemaking on closed captioning, makes clear that Congress understood
the difference between a study and a rulemaking and that Congress knew
how to take the additional step of mandating rules regarding television
services for the disabled.[^179]

To say that section 713(f) does not *prohibit* rules requiring video
description, as the Order does, *see R&O* at para. 58, is not enough to
*establish* jurisdiction here.[^180] As the item itself acknowledges,
that the provision does not authorize such rules, and so can provide no
affirmative support for this action. Further, as discussed above, the
"negative pregnant" of its text is that anything more than the issuance
of a report would be in excess of that authority.

The Commission is not long delayed by these statutory points. On its
view of administrative law, Congress must expressly prohibit the
Commission from going further than a particular provision authorizes it
to go in order to make the textual limits of any provision stick. In an
administrative scheme based on delegated powers \-- where the Commission
possesses only those powers granted by Congress, not all powers except
those forbidden by Congress \-- this approach to jurisdiction is clearly
erroneous.

##  II. Comments Regarding the Rules

Notably, not all those in the blind community are supportive of these
rules. Of course, as with all people grouped together on the basis of a
common physical, immutable trait, blindness is no guarantor of
monolithic thinking on matters of public policy. In fact, some of the
philosophical divisions among the blind on questions such as education
and assimilation are profound and have been so for many, many years.

Yet one would have to be particularly astute, even psychic, to glean
this fact from the Order. *See* *R&O* at paras. 4 & n. 11, 38. While
discussing extensively the comments from groups for the blind in support
of video description, no mention is made of the express opposition of
the National Federation of the Blind (NFB), the largest and most
historically significant force of and for the blind.[^181] I fear that
because NFB's philosophy of blindness and of the way its members can
best achieve their life goals differs from that held by other disability
groups, as well as some people at the Commission, its views have not
been given they respect they deserve. In other words, I am concerned
about the possibility that because NFB does not believe what others
think they should about what is best for its members, it has

been marginalized in this discussion. [^182] I thus intend to air NFB's
opinions fully.

In its comments, NFB states unequivocally: "We oppose the imposition of
audio description as a federal mandate." Comments of NFB at 1 (filed
Feb. 23, 2000). As to the level of actual demand for this service among
the blind, they remark: "Some like the service. . .; some dislike it;
many are frankly indifferent." *Id.* They further describe the blind
population as "ambivalent" about video description. *Id.* This is so,
they say, because of differences between those who are born blind and
those who lose their vision later in life. For the congenitally blind,
the description of events in essentially visual terms -- *i.e.,* "the
woman wore a red dress" -- provides them no benefit whatsoever. And on a
philosophical level, NFB argues that "undue emphasis on entertainment as
an issue for the blind draws attention away from the real and cruel
forms of economic discrimination and exclusion of blind people from
normal integration into society." *Id.* at 2.

This potential lack of demand for the service creates a mismatch between
the means and ends of the regulations. As an initial matter, it is
unclear whether these rules benefit the targeted population in general.
And if the benefits of video description accrue largely to those who
become blind later in life and those with diminished vision due to aging
(not the congenitally blind), then it makes little sense to allow
complete fulfillment of the video description requirement with
children's programming. *See R &O* at para. 36. The bulk of those with
visual disabilities consist of an older population, not the audience for
children's television.

This means-ends misfit undermines the legitimacy of these rules under a
potential First Amendment analysis. Even if one accepts as permissible
the Commission's content-based selection of children's programming as a
category for description, the regulations' non-furtherance of the
interests of the primary beneficiaries of the rules is a vexing problem.
Furthermore, when a large segment of the very people that the Commission
purports to help actively opposes these regulations, one wonders why the
Commission is so insistent upon pushing the statutory envelope.

##  III. Conclusion

Video description may be a wonderful idea whose time has come; its
current absence in programming may indeed represent the sort of true
market failure that justifies government intervention; and its benefits
to society may outweigh its costs. But those assertions, even if true,
cannot overcome the threshold question of statutory authority for this
Commission to act in the area. Contrary to the assumption of this item
-- that Congress must prohibit a rulemaking before we lack authority to
undertake it \-- this Commission has only those powers affirmatively
vested in it by Congress. However compelling the underlying subject
matter, we may not transgress the larger scheme of laws that governs
this agency's actions.

July 21, 2000

**SEPARATE STATEMENT OF COMMISSIONER MICHAEL K. POWELL,**

**CONCURRING IN PART AND DISSENTING IN PART**

In The Matter of Implementation of Video Description of Video
Programming, MM Docket No. 99‑339, *Report and Order*

This item represents another worthy effort by the Commission to improve
the disability community\'s access to communications services. Proudly,
this is an area that has received significant attention by both Congress
and this Commission, remedying many years of neglect. I applaud the
government\'s continuing focus on these issues.

The item is noteworthy, however, for another reason that I find much
less laudable. Though for a very worthy purpose, the Commission yet
again is extending its reach beyond a specific statutory provision by
availing itself of ancillary jurisdiction under the broad provisions of
sections 4(i) and 303(r) of the Communications Act.[^183] While the
Commission certainly may act on ancillary authority in the absence of a
specific statutory provision, it cannot and should not do so where
Congress has spoken specifically on an issue or where there is a clear
contrary congressional intention. Because I find Congress spoke to video
description in section 713(f) of the Act, and purposely limited the
Commission to studying the issue and reporting to Congress, I dissent to
the adoption of video description rules under ancillary jurisdiction. I
do, however, support that portion of the *Order* that provides for
emergency text information in audio form.

I. [The Statute Does Not Allow For Video Description Rules]{.underline}

A. *The Text of the Statute Does Not Authorize Rules*

Congress comprehensively considered the issue of access to video
programming by the blind and deaf communities in drafting the
Telecommunications Act of 1996. The result was section 713, entitled
\"Video Programming Accessibility.\" 47 U.S.C. § 613. The provisions
contained in section 713(a)-(e) deal with closed captioning for the
deaf. They direct the Commission to \"prescribe such regulations as are
necessary\" to implement closed captioning.[^184]

Section 713(f) addresses video description for the visually impaired, a
service that is roughly analogous to closed captioning.[^185] In stark
contrast to closed captioning, Congress did not mandate video
description, nor did it direct the Commission to prescribe
regulations.[^186] Congress only directed the Commission to conduct an
inquiry on video description and to report its findings to
Congress.[^187] When subsections (a) and (f) of section 713 are viewed
together (one mandating rules and one not), it is fairly plain that by
negative implication Congress did not wish to legally require video
description, but instead it wished to consider the matter more fully,
after receiving a report from the FCC.[^188] Indeed, in 1996, and again
in 1998, the FCC did issue reports, but Congress elected not to take
action. *See* n.5 *supra*.

Yet, as evidenced by its *Order* today, the majority is unfazed and
undeterred by the negative implication of section 713(f) and the stark
contrast with closed captioning. In its view, Congress may not have
directed the FCC to draft rules, but it did not tell them they could not
either. The majority insists that it can advance video description rules
under section 4(i)\'s general authorization to \"make such rules and
regulations, and issue such orders, not inconsistent with this Act, as
may be necessary in the execution of its functions.\" 47 U.S.C. §
154(i).[^189] This sweeping authority is invoked to carry out the
equally broad purpose in section 1 of the Communications Act to \"make
available, so far as possible, to all the people of the United States .
. .\[a\] world-wide wire and radio communication service.\" 47 U.S.C. §
151.

Unquestionably, Congress conferred very broad authority on the
Commission under section 4(i), and the courts have sanctioned the
exercise of that authority on occasion*. See, e.g., United States v.
Southwestern Cable Co.*, 392 U.S. 157, 178 (1968*); Rural Tel. Coalition
v. FCC*, 838 F.2d 1307 (D.C. Cir. 1988). But this broad residual
authority is not unrestrained*. See United States v. Midwest Video
Corp*., 406 U.S. 649 (1972). It surely can be supplanted by subsequent,
more specific acts of Congress. If, as is the case here, Congress
considers and speaks directly to an issue, the Commission should be
bound to that specific judgment and not chart a different course that it
prefers, riding section 4(i).

The majority would probably agree with this canon of statutory
interpretation on its face. Nonetheless, it seems to think that even
where Congress considers the very same issue and promulgates a statutory
directive, it can exceed the scope of that directive if Congress fails
to specifically prohibit the Commission from acting. Here, Congress
comprehensively considered the issue of video description. It passed a
law directing the Commission to conduct an inquiry and submit a report
of its findings. It did not authorize the Commission to issue rules.
But, because Congress did not specifically say the FCC could not issue
rules, the majority feels free to do so under its general authority.

The majority\'s approach is breathtaking, for it suggests the Commission
can favor its preferences over those of Congress (as long as its actions
are within the expansive scope of section 1), if Congress fails to
affirmatively prohibit it from acting. Apparently, in the majority\'s
view, it is not enough for Congress to simply pass a law of limited
scope. This view turns the notion of a delegated agency on its head. The
Commission can act only where it is *authorized* to do so. It is not
free to act unless expressly *prohibited* from doing so. *See Brown &
Williamson Tobacco Corp. v. FDA*, 153 F.3d 155, 161 (4^th^ Cir. 1998)
(\"We begin with the basic proposition that agency power is \'not the
power to make law. Rather, it is the power to adopt regulations to carry
into effect the will of Congress as expressed by the statute.\'\")
(*quoting Ernst & Ernst v. Hochfelder,* 425 U.S. 185, 213-14) (1976)). I
recognize that Congress granted the Commission its broad authority in
section 4(i). But, in doing so it surely did not obligate itself in the
future to the Herculean task of specifically prohibiting any possible
action by the Commission when it crafts new laws in any area within the
scope of section 1. Congress cannot possibly, nor should it be required
to, proscribe FCC action every time a legislative enactment falls in the
scope of \"making available to all the people of the United States a
wire and radio service.\"[^190] In section 713(f) Congress told the
Commission to produce a report. The completion of that task should have
ended the matter, unless and until Congress acted further.

B.  *The Legislative History Squarely Shows Congress Rejected Giving The
    FCC Discretion to Promulgate Rules.*

I understand the impulse not to accept the negative inference of section
713(f)\'s reporting requirement (though it is more troubling when
compared to mandatory closed captioning rules). One might accept, as
does the majority, that section 713(f) is insufficiently clear, or
specific, to rob the Commission of section 4(i) authority. But, a review
of the legislative history closes the door on any suggestion that
Congress was not adverse to FCC mandated rules, though unwilling to
mandate video description itself.

In the 103^rd^ and 104^th^ Congresses, both houses introduced
telecommunications bills. In the House of Representatives, H.R. 3636,
section 206, as reported out of the subcommittee, *mandated* video
description.[^191] In full committee, Congressman Carlos Moorhead of
California offered an amendment (which was adopted) that allowed the FCC
to promulgate video description rules at its *discretion*, rather than
statutorily requiring such rules. The amendment read:

> Following the completion of such inquiry, the Commission *may adopt*
> regulation it deems necessary to promote the accessibility of video
> programming to persons with visual impairments.[^192]

The amended bill was reintroduced in the 104^th^ Congress as H.R. 1555,
and passed by the House of Representatives.[^193] The Senate version of
this bill, S. 652, directed the Commission only to submit a report to
Congress and did not contain language mandating video description, or
delegating discretion to the FCC to do so through a rulemaking.[^194]
Both versions of the bill, however, mandated closed captioning and
specifically directed the Commission to implement the mandate by
promulgating closed caption rules.

The Senate and House bills ultimately were sent to the conference
committee to resolve conflicting provisions. One of which, of course,
was the discrepancy on video description, with the House bill allowing
the FCC to promulgate video description rules at its discretion and the
Senate bill only authorizing a report. When the conference agreement was
announced the committee had stricken the House language in favor of the
Senate\'s reporting requirement:

> The conference agreement adopts the House provision with modifications
> which are incorporated as new section 713 of the Communications Act.
> The agreement deletes the House provision referencing a Commission
> rulemaking with respect to video description.[^195]

This version of the bill ultimately was passed by the Congress and
signed into law by the President.[^196]

By the chronology of the legislative drafting and the actions of the
conference, it is abundantly clear that Congress specifically considered
granting discretionary authority to the FCC to promulgate video
description rules and elected not to do so. It is well-established that
\"\[a\] contrast in statutory language is \'particularly telling\' when
it represents a decision by a conference committee to resolve a dispute
in two versions of a bill, and the committee\'s choice is then approved
by both Houses of Congress.\" *See Goncalves v. Reno*, 144 F.3d 110, 132
(1^st^ Cir. 1998) (citation omitted). *See Gulf Oil Corp. v. Copp Paving
Co*.*,* 419 U.S. 186, 199-200 (1974) (deletion of a provision by a
Conference Committee \"militates against a judgment that Congress
intended a result that it expressly declined to enact\"). I am at a
complete loss to understand how the Commission can hold that section
713(f), though not mandating rules, nonetheless permits the Commission
the discretion to put forth rules against this legislative backdrop.
Congress squarely considered and rejected the very permissive adoption
of rules the Commission now embarks upon.[^197]

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.[^198] And, by its
express terms, our exercise of that authority cannot be \"inconsistent\"
with other provisions of the Act.[^199] 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.[^200]

It is for this reason that I believe the courts often scrutinize
carefully an agency\'s attempt to expand the scope of its jurisdiction.
As the D.C. Circuit has noted, \"\[w\]hen an agency\'s assertion of
power into new arenas is under attack . . . courts should perform a
close and searching analysis of congressional intent, remaining
skeptical of the proposition that Congress did not speak to such a
fundamental issue.\" *ACLU v. FCC,* 823 F.2d 1554, 1567 n.32 (D.C. Cir.
1987). Such scrutiny in this matter reveals an unambiguous congressional
intent not to mandate rules, or to authorize the Commission
discretionary authority to do so, thereby supplanting any reliance on
the catchall provision of section 4(i).

For this reason, I cannot support the *Order\'s* adoption of rules
mandating video description.[^201]

II\. [The Statute Does Allow for Audio Description of Emergency Text
Information]{.underline}

I can, however, support our adoption today of rules that require
broadcasters and multi-channel video programming distributors
(\"MVPDs\") to provide audio description of scrolling emergency text
information. Those of us who are sighted have experienced that \"beep,
beep, beep\" while watching television that alerts us to the presence of
a critical warning that then scrolls across the screen for us to view.
The blind, however, after hearing the beeps, are unable to learn the
substance of the alert, since it scrolls across the screen silently.
This poses a serious and unnecessary threat to the blind community and
should be remedied.

While I have continuing concerns about ancillary jurisdiction as a basis
for rulemaking generally, I believe requiring emergency text that is
scrolled on television to be read is an appropriate use of section 4(i).
Section 1 states that a central purpose of the Communications Act and
the FCC is \"promoting safety of life and property through the use of
wire and radio communication.\" 47 U.S.C. § 151. Moreover, for many
years the Commission, by rule, has required the operation of an
Emergency Alert System (\"EAS\") designed to provide wide dissemination
of emergency information. 47 C.F.R. Part 11, § 73.1250 (1999).[^202]
Additionally, emergency information is simply a more compelling
justification for policy action than video description of entertainment
programming.

Unlike with video description, Congress has not expressed a desire that
we not act in this area. Section 713(f) deals with video description
that 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. § 613(g). Scrolled emergency text that
is inserted without regard to the original program by the broadcast
station or MVPD operator is not a \"key visual element\" of the program
that is airing, and it is not inserted into \"natural pauses between the
program\'s dialogue.\" *Id*. Thus, I am confident that section 713 does
not cover the action we take today with respect to such information.
Consequently, the legislative history that shows Congress did not wish
us to advance video description rules also is inapplicable. As a result,
I am comfortable that the general authority of 4(i) and 303(r) has not
been supplanted by a more specific statutory provision.

Congress has not denied us authority in this area. Indeed, it appears to
have recognized and ratified the invocation of our general authority for
emergency information purposes. For example, section 624(g) of the Act
states that \"each cable operator shall comply with such standards as
the Commission shall prescribe to ensure that viewers of video
programming on cable systems are afforded the same emergency information
as is afforded by the emergency broadcasting system.\" 47 U.S.C. §
544(g). The Emergency Broadcasting System (now known as the Emergency
Alert System) was initially developed over 40 years ago and its specific
provisions and scope are a product of Commission rulemaking, resting on
sections 4(i), 303(r) and other broad provisions. For these reasons, I
can support the emergency text portion of today\'s *Order*.

III\. [Other Infirmities of this *Order*]{.underline}

In addition to jurisdiction, I believe this *Order* attempts to gain
weight from the admittedly high purpose of helping a segment of the
disability community gain access to video programming. But, I believe
the benefits are substantially less than celebrated in the *Order*.
Moreover, I believe the *Order* is faulty in several key respects. I
will list some of these points briefly:

*First*, I would note that the blind community is not unanimous in its
support for video description rules. The National Federation of the
Blind (\"NFB\"), representing 55,000 blind individuals, is the largest
and oldest organization of the blind. NFB filed comments in which it
stated unequivocally, \"\[w\]e oppose the imposition of audio
description as a federal mandate.\"[^203] True, others support the
action, but we should not brush aside the opposing views of such a
substantial portion of the blind community simply because they are
inconsistent with our notion of what is best for blind people.

*Second*, the *Order* seems to suggest that government intervention is
required because a market has failed to develop for video described
programming. However, there is some evidence that suggests that the
market has failed because there is not substantial demand by the blind
community for such programming. For example, video described tapes have
been available in the market for years, but as the Motion Picture
Association of America notes, there has been very limited demand for
these films.[^204]

*Third*, 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 what pace. In contrast, closed captioning is
a straight translation of dialogue into text. The same can be said for
foreign language translations. Consequently, video description is more
elaborate (and more costly) than closed captioning. Additionally, video
description is overlaid onto an existing audio track. Some programs that
are rich in dialogue or description, such as a news broadcast or a
sports play-by-play program, may not benefit from additional description
and in fact may be ruined for blind consumers. Also, some programs, like
music videos or live events, may move too quickly to afford an
opportunity for an adequate description in the pauses of the program.
The point is that the viability and benefits of this service can vary
widely based on the nature of the program. Yet, the Commission makes no
categorical exemptions for programming types (as it did in closed
captioning), nor does its waiver standard contemplate any of these bases
for a waiver.

*Fourth*, access to video description is only obtained through the
Secondary Audio Programming (\"SAP\") channel. As of 1998, only 59% of
televisions sold had SAP functionality.[^205] Moreover, before 1990 very
few sets had this feature at all and many of those sets remain in the
homes of consumers. With closed captioning, Congress mandated that
television manufacturers include that functionality in television sets.
No such command runs to manufacturers for SAP functionality. Thus, I
question the reach or benefits of this service. Additionally, SAP
functionality is an analog signal function. Because we are in the midst
of a transition to digital television (\"DTV\"), it is highly likely
that what benefits this service affords may be short lived.[^206]

*Fifth*, I am unimpressed with the *Order\'s* evaluation of the costs.
The item suggests that the revenues of the large commercial broadcast
networks (and their affiliates) and the \"larger MVPDs\" are more than
sufficient to account for any video description upgrade.[^207] The item,
however, only looks at total revenues without considering any other
operating costs (especially the enormous costs associated with the
transition to digital).[^208] The issue of revenues cannot be considered
in a vacuum, without reference to expenditures for utilities, personnel,
programming, etc. To do so would be like considering a person\'s ability
to shoulder an additional financial burden based on his overall income
without regard to his existing burdens (*e.g.*, rent or mortgage,
tuition, car and insurance payments). Moreover, the *Order* also fails
to consider rigorously the costs of production, which might vary
depending on the type of program and will be passed on in programming
costs. As I mentioned above, there is a need for writers to draft video
described scripts, actors to describe the scenes, directors to direct
and producers to produce. These personnel resources also contribute to
the overall costs of programming, at a time when there is already an
initial concern about the escalating costs of premium primetime and
sports programming.[^209]

*Finally*, one should not lightly dismiss the limitations on free speech
that may result from these new rules. I question the majority\'s
conclusion that its action is content-neutral. Video description is a
creative work. It requires artistic and editorial judgment. Moreover, it
is only one form of blind accessible programming. A programmer, if free
to, might choose instead to introduce more dialogue or sound cues in the
original soundtrack, rather than to have the program secondarily
described. In addition, there are other uses for the SAP channel, such
as Spanish language translation, that a provider must forgo in order to
comply with the Commission\'s mandate. We are mandating a particular
form of programming and I doubt the infringement is merely a secondary
effect of improving access for the visually impaired.

These difficulties with the item reflect some of the challenges of
mandating video description. It also may explain Congress\' decision to
evaluate the issue further, rather than requiring, or allowing, the
Commission to require rules in this area.

IV. [Conclusion]{.underline}

I wish I could support this *Order* more fully. I share my colleague\'s
passion in wanting to help the visually impaired. It is discomforting
not to support a service for so deserving a community. But, it is
precisely when the end is noble that the rule of law is most severely
tested. I personally cannot read the law conveniently, even for so
worthy a constituency.

[^1]: *See* Closed Captioning and Video Description of Video
    Programming, Implementation of Section 305 of the Telecommunications
    Act of 1996, Video Programming Accessibility, MM Docket No. 95-176,
    *Report and Order*, 13 FCC Rcd 3272 (1997), *recon. granted in part
    and denied in part*, 13 FCC Rcd 19973 (1998) (adopting closed
    captioning rules). *See also Second Report and Order*, FCC 00-136
    (released April 14, 2000) (adopting rules to enhance the
    accessibility of emergency information for persons with hearing
    disabilities).

[^2]: WGBH at 2. The commenters and reply commenters in this proceeding,
    and the abbreviations by which they are referred to in this
    document, are set forth in Appendix A.

[^3]: "PBS Schedule" (visited June 15, 2000)
    \<[www.wgbh.org/wgh/access/dvs/dvspbs.html](http://www.wgbh.org/wgh/access/dvs/dvspbs.html)\>.

[^4]: With financial assistance from the U.S. Department of Education,
    the Narrative Television Network also provides "open" video
    description (*i.e.*, as discussed below, the video description
    cannot be turned off) for the Good Life TV Network. In addition,
    Kaleidoscope Television, the cable programming network devoted to
    the lifestyles of persons with disabilities, provides "open"
    description of movies each week.

[^5]: Closed Captioning and Video Description of Video Programming, MM
    Docket No. 95-176, *Notice of Inquiry*, 11 FCC Rcd 4912 (1995)
    (*First NOI*).

[^6]: 47 U.S.C. § 613(f).

[^7]: Closed Captioning and Video Description of Video Programming,
    Implementation of Section 305 of the Telecommunications Act of 1996,
    Video Programming Accessibility, MM Docket No. 95-176, *Report*, 11
    FCC Rcd 19214 (1996) (*Video Accessibility Report*).

[^8]: Annual Assessment of the Status of Competition in Markets for the
    Delivery of Video Programming, CS Docket No. 97-141, *Notice of
    Inquiry*, 12 FCC Rcd 7829 (1997).

[^9]: Annual Assessment of the Status of Competition in Markets for the
    Delivery of Video Programming, CS Docket No. 97-141, *Fourth Annual
    Report*, 13 FCC Rcd 1034 (1998) (*Fourth Annual Report*).

[^10]: Implementation of Video Description of Video Programming, MM
    Docket No. 99-339, *Notice of Proposed Rulemaking*, 14 FCC Rcd 19845
    (1999) (*Notice*).

[^11]: The American Council of the Blind, the American Foundation of the
    Blind, and many persons with visual disabilities filed comments
    supporting the Commission requiring some programming to contain
    video description.

    The National Federation of the Blind and a number of its members,
    however, filed comments asking the Commission to take steps to
    enhance the accessibility of text-based information in video
    programming (such as emergency information, the names of speakers,
    and contact information in advertisements), instead of requiring a
    limited amount of programming to contain video description. We
    address these requests below.

[^12]: Metropolitan Washington Ear at 7.

[^13]: ACB at Appendix A.

[^14]: ACB at Appendix A (e-mail of Penny Reeder).

[^15]: "DVS Viewer Comments" (visited June 15, 2000),
    \<[www.wgbh.org/wgbh/access/dvs/dvscomments.html](http://www.wgbh.org/wgbh/access/dvs/dvscomments.html)\>.

[^16]: RPI at 2.

[^17]: Letter from Rep. Wayne T. Gilchrest to William E. Kennard,
    Chairman, FCC (March 22, 2000); Letter from Rep. Gerald D. Kleczka
    to William E. Kennard, Chairman, FCC (March 22, 2000); Letter from
    Sen. John F. Kerry to William E. Kennard, Chairman, FCC (July 1,
    1999); Letter from R.E. Turner, Vice Chairman, Time Warner, to
    William E. Kennard, Chairman, FCC (May 4, 1999).

[^18]: *First NOI*, 11 FCC Rcd at 4913, ¶ 1 (*NOI*) (citing
    Telecommunications Reform, Hearings on S. 1822 Before the Committee
    on Commerce, Science, and Transportation, 103^rd^ Cong., 2d Sess.
    (1994) (statement of Margaret R. Pfanstiehl, President of the
    Metropolitan Washington Ear)).

[^19]: *Notice*, 14 FCC Rcd at 19847, ¶ 5 (citing Letter from Larry
    Goldberg, Director, CPB-WGBH National Center for Accessible Media,
    to Meryl Icove, FCC 2 (Nov. 4, 1998) (*NCAM Letter*)). *See also*
    AFB at 1 (10 million "blind or visually"impaired Americans); U.S.
    Dept' of Commerce, Economics & Statistics Admin., Bureau of the
    Census, Statistical Abstract of the U.S. 149 (1998) (8 million).

[^20]: *Notice*, 14 FCC Rcd at 19847, ¶ 5 (citing NCAM Letter at 5). NFB
    states that approximately one million people are legally blind. NFB
    at 1.

[^21]: *Notice*, 14 FCC Rcd at 19847, ¶ 6 (citing NCAM Letter at 5-6).

[^22]: 1998 Statistical Abstract of the U.S. at 149.

[^23]: Jaclyn Parker and Corrine Kirchner, *Who's Watching? A Profile of
    the Blind and Visually Impaired Audience for Television and Video*
    at v (1997).

[^24]: 1998 Statistical Abstract of the U.S. at 150.

[^25]: *Notice*, 14 FCC Rcd at 19848, ¶ 7 (citing NCAM Letter at 6).

[^26]: "Frequently Asked Questions about Descriptive Video Service,"
    (visited June 15, 2000)
    \<[www.wgbh.org/wgbh/access/dvs/dvsfaq.html](http://www.wgbh.org/wgbh/access/dvs/dvsfaq.html)\>.

[^27]: By contrast, "open" video description refers to the process of
    providing video description as part of the main audio track.

[^28]: WGBH at 2.

[^29]: *Notice*, 14 FCC Rcd at 19849, ¶ 12 (citing NCAM Letter at 12).

[^30]: NTN at 2-3; WGBH at 17.

[^31]: WGBH at 16.

[^32]: NTN Reply at 2; WGBH Reply at 27.

[^33]: WGBH at 15.

[^34]: *Notice*, 14 FCC Rcd at 19855, 26 (citing NCAM Letter at 10). In
    its formal comments, NAB also provided some information on costs: it
    stated that one major network estimated that it would cost its
    affiliated stations \$800,000 to upgrade their satellite receiver
    facilities, and that it would cost its owned and operated stations
    \$400,000 to upgrade their studios. NAB at 16-18. NAB does not
    identify the network, or the number of the network's affiliated and
    owned and operated stations that need to upgrade their facilities.
    Therefore, it is not possible to use the information to determine a
    per-station cost.

    One week before the Commission issued the Sunshine Notice in this
    proceeding, the NAB submitted an *ex parte* presentation which
    indicated that it would cost stations on average \$160,000 per
    station to support video description. *See* Letter from Jack N.
    Goodman, NAB to Magalie R. Salas, FCC 1 & App. at 6 (July 7, 2000)
    (NAB July 7 *Ex Parte*). NAB still did not provide any detailed
    support for these cost figures. In evaluating the parties' cost
    data, we give WGBH's greater weight because they are represented to
    be based on the actual experience of noncommercial stations that
    have upgraded to support programming with video description.

[^35]: "Monday Night Football on SAP" (August 6, 1999)
    \<[www.abcmnf.go.com/news/news19990803.page.html](http://www.abcmnf.go.com/news/news19990803.page.html)\>
    (identifying ABC affiliates in at least 33 markets where SAP is
    available); "FOX Sports to broadcast 70^th^ All-Star Game" (visited
    June 1, 2000)
    \<[www.majorleag\...1999/allstar/news/foxbroadcast.html]()\> (noting
    that 23 Fox affiliates have the technical capability to carry SAP);
    Elizabeth Jensen, "Networks See Benefits of Becoming Bilingual"
    (August 9, 1999)
    \<[www.nabe.org/press/reprints/990809e.html](http://www.nabe.org/press/reprints/990809e.html)\>
    (stating that fewer than 20 NBC affiliates have SAP technology).
    Although Commission staff has not been able to locate any
    information identifying the number of CBS affiliates with SAP
    capability, the CBS network has provided Spanish language audio for
    the SAP channel. *Id*.

[^36]: HBO at 5; NCTA Reply at 9-10.

[^37]: NAB at 15-16; NCTA at 14-15. Although as noted each of the top
    four commercial networks already provides some Spanish language
    audio for the SAP channel, NAB states that an unidentified major
    network estimates that it would cost over \$1 million to upgrade its
    network origination center and satellite distribution system to
    support a third audio channel on a consistent basis. NAB at 15-16.
    NCTA estimates that it would cost between \$100,000 and \$200,000
    for cable networks that cannot currently support a third audio
    channel to upgrade their facilities to do so. NCTA at 14-15.

[^38]: *First NOI*, 11 FCC Rcd 4912.

[^39]: 47 U.S.C. § 613.

[^40]: *Video Accessibility Report*, 11 FCC Rcd 19214.

[^41]: 11 FCC Rcd at 19270, ¶ 140.

[^42]: 11 FCC Rcd at 19271, ¶ 142.

[^43]: *Fourth Annual Report*, 13 FCC Rcd at 1034. The Commission had
    previously released a notice on video description, among other
    things, to develop a record for this report. *See Second NOI*, 12
    FCC Rcd 7829.

[^44]: 11 FCC Rcd at 1170, ¶ 271.

[^45]: 11 FCC Rcd at 1170, ¶ 271.

[^46]: The commenters and reply commenters, and the abbreviations by
    which they are referred to in this document, are set forth in
    Appendix A.

[^47]: 14 FCC Rcd at 19854, ¶ 25.

[^48]: 14 FCC Rcd at 19855, ¶ 26.

[^49]: NAB Reply at 7.

[^50]: ACB at 4-5; MATP at 2; NTVAC at 7; WGBH at 3.

[^51]: Clive at 2 (top 35 markets initially); NTVAC at 5 (top 35 markets
    initially); WGBH at 3, 4-5, 9, 11 (top 33 DMAs initially).

[^52]: Implicit in our decision to hold the largest broadcast stations
    (and larger MVPDs, as defined below) responsible for providing
    programming with video description is the decision to hold
    programming distributors, as opposed to programming producers,
    responsible for compliance with our rules.

[^53]: Nielsen Media Research, Inc., Media Research Services Group,
    "U.S. Television Household Estimates," (Sept. 1999).

[^54]: NAB submitted survey data that shows that: 45% of stations in
    DMAs 1-10 equipped to broadcast on the SAP channel in fact do so,
    and 35% in DMAs 11-25 do so. NAB App. at 6.

[^55]: 14 FCC Rcd at 19855, ¶ 26.

[^56]: NAB did not provide any information in its comments on the number
    of commercial broadcast stations that have the capability to
    broadcast on the SAP channel. As part of a later *ex parte*
    presentation, however, NAB indicated that approximately 70% of
    broadcast stations in the top 50 DMAs have the capability to
    broadcast on the SAP channel. NAB July 7 *Ex Parte* at App. at 2.

[^57]: "Monday Night Football on SAP" (Aug. 6, 1999)
    \<[abcmnf.go.com/news/news19990803.page.html]{.underline}\>.

[^58]: "Fox Sports to broadcast 70^th^ All-Star Game" (visited June 1,
    2000) \<[www.majorleag\...1999/allstar/news/foxbroadcast.html]()\>.

[^59]: Elizabeth Jensen, "Networks See Benefits of Becoming Bilingual"
    (Aug. 9, 1999)
    \<[www.nabe.org./press.reprints/990809e.html](http://www.nabe.org./press.reprints/990809e.html)\>.

[^60]: NAB at 15-19.

[^61]: WGBH Reply at 17.

[^62]: 14 FCC Rcd at 19855, ¶ 26. As noted above, NAB submitted an *ex
    parte* presentation one week before the Commission issued its
    "Sunshine Notice," which suggested that it would cost stations on
    average \$160,000 to upgrade their facilities to support video
    description. NAB July 7 *Ex Parte* at 1 & App. 6. As explained
    above, we give WGBH's cost figures greater weight.

[^63]: WGBH Reply at 18-22. WGBH describes possibilities and solutions
    for every point in the distribution process. WGBH explains that all
    major professional tape formats used by networks and studios support
    four channels of audio. It identifies common solutions for routing
    multiple channels of audio around a network or studio plant. It
    states that standard microwave technology (used by a network between
    its origination center and uplink facilities, or by the station
    between its studio and downlink facilities or transmitter) has
    supported multiple audio channels for years. It also states that a
    single satellite transponder can support many services, including
    multiple audio channels.

    WGBH also describes an alternative, inexpensive solution, where
    additional audio is inserted into the vertical blanking interval
    (VBI), which renders rewiring and some other upgrading unnecessary.
    WGBH states that the necessary encoder costs \$2,150 and the
    necessary decoder costs \$1,700. WGBH at 21.

[^64]: WGBH Reply at 24.

[^65]: BIA Research Inc., Media Access Pro Database, July 11, 2000.

[^66]: NAB at 19.

[^67]: WGBH Reply at 28.

[^68]: 14 FCC Rcd at 19854-19855, ¶ 25.

[^69]: 14 FCC Rcd at 19854-19855, ¶ 25.

[^70]: NTVAC at 7; WGBH at 10.

[^71]: NCTA Reply at 14.

[^72]: NCTA at 23.

[^73]: NCTA at 15-17.

[^74]: NCTA at 15-16.

[^75]: DirecTV at 5-6, 9. For example, DirecTV explains that it is a
    national service that carries the programming of many broadcast
    stations affiliated with the top four networks in the top 25 DMAs,
    with the result that a requirement to carry video description of
    these stations alone would require it to carry video description on
    100 channels. DirecTV at 6.

[^76]: "Cable Industry at a Glance: Systems and Subscribers by Number of
    Subscribers in System" (visited May 23, 2000)
    \<[ncta.cyberserv.com/qs/user_pages/dev(num.ofsubs).cfm]{.underline}\>.

[^77]: NCTA at 23.

[^78]: MVPDs may instead provide video description for children's
    programming if they prefer.

[^79]: A&E at 18-19; NCTA at 17-18.

[^80]: NCTA at 15-17.

[^81]: Paul Kagan Assocs., Inc., "The Cable TV Financial Databook 1999"
    11 (1999).

[^82]: Cable operators also receive revenue from advertising, customer
    equipment, leased access fees, and non-video services, such as
    Internet and cable telephony. See In the Matter of Implementation of
    Section 3 of the Cable Television Consumer Protection and
    Competition Act of 1992, Statistical Report on Average Rates for
    Basic Service, Cable Programming Services, and Equipment, MM Docket
    No. 92-266, *Report on Cable Industry Practices*, FCC 00-214, ¶ 34
    (released June 15, 2000).

[^83]: DirecTV at 6-7.

[^84]: "US DTH Subscribers," (visited July 27, 2000),
    \<[www.skyreport.com/skyreport/dth_us.html](http://www.skyreport.com/skyreport/dth_us.html)\>.

[^85]: In the Matter of Annual Assessment of the Status of Competition
    in the Markets for the Delivery of Video Programming, CS Docket No.
    99-230, *Sixth Annual Report*, FCC 99-418, ¶¶ 70, 73 (released
    January 14, 2000).

[^86]: "US DTH Subscribers," (visited July 27, 2000),
    \<[www.skyreport.com/skyreport/dth_us.html](http://www.skyreport.com/skyreport/dth_us.html)\>.

[^87]: 14 FCC Rcd at 19852-19853, ¶ 20.

[^88]: 14 FCC Rcd at 19855, ¶ 25.

[^89]: NTN at 3-4; NTVAC at 6; WGBH at 3, 4-5, 9, 11.

[^90]: APTS at 3.

[^91]: MATP at 2; NTVAC at 6; WGBH at 3-4, 15.

[^92]: WGBH at 4, 15.

[^93]: WGBH at 15.

[^94]: 14 FCC Rcd at 19855, ¶ 29.

[^95]: Adaptive Environments at 1; NTVAC at 10 (for Year 1 in their
    proposed phase-in schedule); TDI at 4.

[^96]: *See, e.g.,* ACB at 3, 5 (250 hours/quarter initially, followed
    by phasing in all children's programming within 3 years); AFB at 7
    (20% of each network's series initially, followed by an additional
    20% within 5 years); MATP (10 hours/week initially, phasing in more
    within 3-5 years); NTN at 4 (phase in all prime time programming
    within 7 years); NTVAC 10 (4 hours/week initially, followed by
    phasing in all prime time programming within 7 years, and all
    children's programming until 3 hours/week); RPI (50 hours/quarter
    inadequate); WGBH (phase in all prime time programming within 7
    years, and all children's programming until 3 hours/week is
    reached).

[^97]: 14 FCC Rcd at 19856, ¶ 30.

[^98]: However, non-program minutes, such as advertisements and public
    service announcements, aired during a described program need not be
    described.

[^99]: NTN at 4; NTVAC at 11; WGBH at 14.

[^100]: HBO at 5; LULAC at 2; NAB at 21; NCTA at 12-13; NCTA Reply at
    9-10. According to LULAC, some portion of the programming of the
    following networks contains Spanish: ABC, CBS, Fox, NBC, Bravo,
    Cartoon Network, Cinemax, Comedy Central, Encore, HBO, The Movie
    Channel, Romance Channel, Sci-Fi Channel, Showtime, Starz!, TNT, and
    USA. LULAC at 2.

    In addition to providing Spanish audio, NCTA states that those cable
    networks that have the capability to support a third audio channel
    also use the channel to provide supplementary audio information,
    such as local weather or world news; enhanced TV commentary, such as
    commentary from a movie's director; and cue tones, or signals to
    alert head-end equipment to breaks in national programming for
    insertion of local advertisements. NCTA at 12-13.

[^101]: NAB at 20.

[^102]: WGBH at 18.

[^103]: Approximately 85% of the programming of HBO, The Movie Channel,
    and Showtime, and 50% of the programming of Encore, contain Spanish
    audio. HBO at 5; NCTA Reply at 9-10. We do not expect these networks
    to be among the top five nonbroadcast networks subject to our rules.

[^104]: DirecTV; HBO at 6; NCTA at 12-13.

[^105]: 14 FCC Rcd at 19855, ¶ 29.

[^106]: Adaptive Environments at 1; WGBH at 17.

[^107]: Clive at 3 (video programming distributors should do both
    children's and prime time programming); NTVAC at 10 (the ratio of
    prime programming to children's programming should be 3-to-1); RPI
    at 4,6 (FCC should not choose programming); TDI at 4 (75% of
    programming should be prime time).

[^108]: 14 FCC Rcd at 19855, ¶ 29.

[^109]: 14 FCC Rcd at 19848, ¶ 7.

[^110]: 14 FCC Rcd at 19848, ¶ 7.

[^111]: Adaptive Environments at 2; MATP at 3; NTVAC at 13.

[^112]: NFB at 4-5.

[^113]: Adaptive Environments at 1.

[^114]: American Council of the Blind at 3, 5; Clive at 2; MATP at 2;
    NTN at 4; NTVAC at 9; WGBH at 6, 16. One commenter suggested that we
    should require broadcast stations and MVPDs to begin providing
    programming with video description immediately. RPI at 2, 22, 27.

[^115]: MPAA Reply at 19-21.

[^116]: NAB at 25-26; WGBH Reply at 34-35.

[^117]: As set forth below in section VIII, the effective date of our
    emergency rules will be earlier, upon approval by the Office of
    Management and Budget.

[^118]: 14 FCC Rcd at 19857, ¶ 33.

[^119]: 14 FCC Rcd at 19857, ¶ 33.

[^120]: WGBH at 19.

[^121]: The procedures and standards we use to assess "undue burden" in
    the closed captioning context are set forth at 47 C.F.R. § 79.1(f).

[^122]: We also adopt the filing and other procedures we use to assess
    "undue burden" in the closed captioning context. Appendix B sets
    forth our initial video description rules, and therefore includes
    these procedures.

[^123]: For example, commenters asked that we exempt certain categories
    of programming, such as foreign language programming produced
    outside the United States (Grupo Televisa at 3-8; International
    Cable Channels Partnership at 3-7), game shows (GSN at 7-8), home
    shopping programming and infomercials (MPAA at 32; QVC at 4-11),
    live programming (MPAA at 32; NCTA at 17-20; Weather Channel at
    3-5), music programming (MPAA at 32; NCTA at 17-20), news and public
    affairs programming (C-SPAN at 2-5; MPAA at 32; RTNDA at 2-4), and
    sports programming (MPAA at 32).

    Commenters also asked that we exempt certain classes of programming
    providers, such as DBS operators (DirecTV Reply at 9), ITFS
    licensees (WCA at 2-3), and "wireless broadband MVPDs" (WCA at 4-5).

[^124]: 14 FCC Rcd at 19857, ¶ 33.

[^125]: 14 FCC Rcd at 19857, ¶ 33.

[^126]: ACB at 7-8.

[^127]: WGBH at 20; WGBH Reply at 16.

[^128]: WGBH at 20.

[^129]: AFB at 8.

[^130]: 14 FCC Rcd at 19856-19857, ¶ 32.

[^131]: 14 FCC Rcd at 19856-19857, ¶ 32.

[^132]: NFB at 4-5. *See also* Dunnam, Sanders, Walker.

[^133]: NTVAC at 13; WGBH at 19.

[^134]: In the Matter of Closed Captioning and Video Description of
    Video Programming, Implementation of Section 305 of the
    Telecommunications Act of 1996, Accessibility of Emergency
    Programming, MM Docket No. 95-176, *Second Report and Order*, FCC
    00-136 (released April 14, 2000).

[^135]: 14 FCC Rcd at 19856, ¶ 32.

[^136]: 14 FCC Rcd at 19857-19859, ¶¶ 34-39.

[^137]: 14 FCC Rcd at 19857, ¶ 35.

[^138]: 14 FCC Rcd at 19858, ¶ 36.

[^139]: 14 FCC Rcd at 19858, ¶ 37.

[^140]: 14 FCC Rcd at 19858, ¶ 38.

[^141]: Amendment of Part 67 of the Commission's Rules and Establishment
    of a Joint Board, CC Docket No. 80-286, *Decision and Order*, 96 FCC
    2d 781, 787 n.15 (1984).

[^142]: *Rural Telephone Coalition v. FCC*, 838 F.2d 1307, 1315 (1988).

[^143]: A&E at 6; DirecTV at 4; HBO at 1; Lifetime at 3; MPAA at 3; NAB
    at 2-4; NCTA at 4.

[^144]: A&E at 7-8; HBO at 2; MPAA at 3-4; NAB at 4-6; NCTA at 4-5.

[^145]: H.R. Conf. Rep. No. 458, 104^th^ Cong., 2d Sess. 183 (1996).

[^146]: H.R. Conf. Rep. at 184.

[^147]: *See, e.g.*, 47 U.S.C. § 152(b) (stating that "nothing in this
    Act shall be construed to apply to or give the Commission
    jurisdiction with respect to" certain items).

[^148]: NAB at 7-10.

[^149]: *AT&T Corp. v. Iowa Utilities Bd*., 525 U.S. 366, 377-378
    (1999).

[^150]: *Id*. at 378 n.5 (1999). The Supreme Court was interpreting the
    legal effect of general provision in section 201(b) of the Act on
    the more specific provisions in section 251 and 252, which the
    Telecommunications Act of 1996 added as amendments to the
    Communications Act. The language of section 201(b) (set forth in the
    text) is quite similar to the language in section 4(i) and 303(r).

[^151]: A&E at 6-7; DirecTV at 4; MPAA at 3-4; NAB at 6-7; NCTA at 5.

[^152]: A&E at 6-7; DirecTV at 4; MPAA at 4.

[^153]: *Iowa Utilities Bd*., 525 U.S. at 384-385.

[^154]: A&E at 8-9; NCTA at 5-6.

[^155]: *United Video, Inc. v. FCC*, 890 F.2d 1173, 1188 (1989).

[^156]: C-SPAN at 5-8; Lifetime at 3; MPAA at 10-16; RTNDA at 5-6.

[^157]: AFB Reply at 2-4; NTVAC Reply at 11, 18-19; WGBH Reply at 10-12.

[^158]: *Ward v. Rock Against Racism*, 491 U.S. 781, 791 (1989)
    (citations omitted).

[^159]: A number of commenters claim that our rules will compel or force
    speech. A&E at 12-13; C-SPAN at 5-8; Lifetime at 3; MPAA at 8-16;
    NAB at 10-13; NCTA at 6-7; RTNDA at 5-6.

[^160]: AFB Reply at 2-4; WGBH Reply at 11-12.

[^161]: For example, NTVAC notes that the District of Columbia courts
    require eviction notices to be presented in both English and
    Spanish. NTVAC Reply at 19.

[^162]: NTVAC Reply at 11; WGBH Reply at 11.

[^163]: *Gottfried v. FCC*, 655 F.2d 297, 311 n.54 (1981), *rev'd in
    part*, 459 U.S. 498 (1983). The Supreme Court decision did not
    disturb the dictum of the D.C. Circuit Court of Appeals regarding
    the constitutionality of closed captioning rules.

[^164]: *Turner Broadcasting Sys., Inc. v. FCC*, 520 U.S. 180, 189
    (1997).

[^165]: *Notice*, 14 FCC Rcd at 19845, ¶ 1.

[^166]: Lifetime at 3-4; MPAA at 16-22; NAB at 23-24.

[^167]: MPAA at 16.

[^168]: WGBH at 18-19.

[^169]: WGBH at 19, 32-34.

[^170]: MPAA Reply at 25-26.

[^171]: NTVAC at 15-16.

[^172]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et seq*.,
    has been amended by the Contract With America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^173]: *See* 5 U.S.C. § 605(b).

[^174]: *See Notice of Proposed Rule Making,* In the Matter of
    Implementation of Video Description of Video Programming, MM Docket
    No. 99-339, 14 FCC Rcd 19845 (1999) (*Notice*).

[^175]: *See id*. at 19862-69.

[^176]: ^1^ 47 U.S.C. § 151.

[^177]: ^2^ See Letter from Bonnie J.K. Richardson, Vice President,
    Trade and Federal Affairs, Motion Picture Association of America, to
    Magalie Roman Salas, Secretary, Federal Communications Commission,
    MM Doc. No. 99-339, at 1 (July 13, 2000).

[^178]: I concur, however, in the adoption of the emergency information
    rules. I do so on the theory of jurisdiction laid out in Part II of
    the separate statement of Commissioner Powell.

[^179]: If independent confirmation of these textual implications were
    necessary, one need only briefly review the legislative history of
    section 713(f). That history shows that Congress originally included
    and then, in conference, removed a rulemaking requirement from the
    section. *See Telecommunications Act of 1996,* S. Conf. Rep. 104-230
    at 411 ("The \[conference\] agreement deletes the House provision
    referencing a Commission rulemaking with respect to video
    description."). This Commission today adopts rules that Congress
    consciously chose not to require.

[^180]: With respect to cable operators, there may indeed be a provision
    of the Communications Act that prohibits video description rules.
    Section 624(f) states that no federal agency may "impose
    requirements regarding the provision or content of cable services,
    except as expressly provided in \[Title VI\]." Whether or not video
    description rules concern "content," they surely regulate the
    "provision" of cable services. To be sure, *United Video, Inc. v.
    FCC*, 890 F.2d 1173 (D.C. Cir. 1989), contains some broad dictum
    regarding the overall effect of section 624(f). But that case did
    not squarely address, and no party appeared to argue, the meaning of
    the provision prong of the statutory language.

[^181]: NFB was founded in 1940 and has over 50,000 members, with
    affiliates in all 50 fifty states and over 700 local chapters. *See*
    [www.NFB.org](http://www.NFB.org/). According to a web site
    dedicated to serving the blind, NFB "has become by far the most
    significant force in the affairs of the blind today."
    <http://www.blind.net/bwholead.htm> (page entitled "Who Are the
    Blind, Who Lead the Blind"). Contrary to the suggestion of some in
    this proceeding, NFB is not some sort of outlier in the blind
    community, but rather the oldest and largest group composed of and
    for the blind.

[^182]: Generally, NFB believes that with adequate education and
    opportunity, the blind can participate in society as well as any
    sighted person; in short, they wish to be treated like any other
    person, no better and no worse. Often, this philosophy results in
    NFB's taking a position against what it perceives as special or
    preferential policies for the blind. For instance, the NFB supported
    the Americans with Disabilities Act on the ground that it include
    what is now section 501 of that Act, which states that "\[n\]othing
    in this Act shall be construed to require an individual with a
    disability to accept an accommodation, aid, service, opportunity, or
    benefit which such individual chooses not to accept.\" NFB's theory
    was "that, although blind people should have help when needed,
    imposed help can be and is one of the most degrading parts of the
    discrimination we suffer as a group."
    <http://www.blind.net/bg600010.htm> (page entitled "The Right to
    Refuse Help"). For a full exposition of NFB's principles, *see*
    [http://NFB.org](http://NFB.org/).

[^183]: Section 4(i) reads, \"\[t\]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.\" 47 U.S.C. § 154(i). Section 303(r) of the Act
    provides, in pertinent part, \"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. . .\" 47 U.S.C. § 303(r).

[^184]: The Commission did issue closed captioning rules in 1997. *See*
    In the Matter of Closed Captioning and Video Description of Video
    Programming, Implementation of Section 305 of the Telecommunications
    Act of 1996, Accessibility of Emergency Programming, MM Docket No.
    95-17, *Report and Order*, 13 FCC Rcd 3272 (1997), *on recon*., 13
    FCC Rcd 19973 (1998).

[^185]: Video description \"means 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. § 613(g)
    (emphasis added). Closed captioning is \"\[t\]he visual *display* of
    the audio portion of video programming contained in line 21 of the
    vertical blanking interval (VBI) pursuant to the technical
    specifications set forth in \[the Commission\'s rules\] or the
    equivalent thereof.\" 47 C.F.R. § 79.1(a)(4) (1999) (emphasis
    added).

[^186]: The juxtaposition is quite telling. *See National Rifle Assoc.
    v. Reno*, 2000 WL 800830 (D.C. Cir. July 11, 2000), at \*7
    (\"\'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 or exclusion.\'\") (*quoting Russello v.
    U.S.,* 464 U.S. 16, 23 (1983)).

[^187]: The Commission has in fact reported to Congress on two
    occasions. In both instances, Congress neither considered nor took
    action on video description. *See, e.g*., In the Matter of Closed
    Captioning and Video Description of Video Programming, MM Docket No.
    95-176, *Report*, 11 FCC Rcd 19214, 19222, 19271 (1996) (report
    recommended \"the best course is for the Commission to continue to
    monitor the deployment of video description and the development of
    standards for new video technologies that will afford greater
    accessibility of video description\"); Annual Assessment of the
    Status of Competition in Markets for the Delivery of Video
    Programming, CS Docket No. 97-141, *Fourth Annual Report*, 13 FCC
    Rcd 1034 (1998).

[^188]: The specific criteria for the report suggests Congress wanted
    the Commission to study at a detailed level the issues surrounding
    video description, in order for it to have a more substantial record
    on which to consider the propriety of taking government action. The
    report had to include an assessment of the \"appropriate methods and
    schedules for phasing video descriptions into the marketplace,
    technical and quality standards for video description, a definition
    of programming for which video descriptions would apply, and other
    technical and legal issues that the Commission deemed appropriate.\"
    47 U.S.C. § 613(f).

[^189]: The Commission also cites section 303(r), which is nearly
    identical to 4(i). *Compare* 47 U.S.C. § 303(r) *with* 47 U.S.C. §
    154(i).

[^190]: Section 1 of the Communications Act of 1934, as amended
    (paraphrased).

[^191]: See H.R. 3636, § 206 (the Telecommunications and Finance
    subcommittee draft mandated that the Commission \"*shall*, within 1
    year after enactment of the \[video programming accessibility\]
    section, *prescrib*e 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 added).

[^192]: Amendment no. 8, offered by Congressman Carlos Moorhead, to H.R.
    3636 in March 16, 1994 Full Committee Mark-up was agreed to by a
    voice vote. The Moorhead amendment was subsequently incorporated the
    version passed by full committee. *See* H.R. 3636, § 206(f); H.R.
    Rep. No. 103-560 at 88 (1994).

[^193]: *See* H.R. 1555, § 204(f); H.R. Rep. No. 104-204, Part I at 140
    (1995). *See also* H.R. Conf. Rep. No. 104-458 at 184 (1996).

[^194]: *See* H.R. Conf. Rep. No. 104-458 at 184 (1996).

[^195]: *See id*.

[^196]: *See* Pub. L. No. 104-104, 110 Stat. 56 (1996).

[^197]: I cannot help noting that the FCC has been repeatedly and badly
    bruised by a Congress that believes this agency is disrespectful of
    its judgments and willing to ignore congressional intent in favor of
    its own favored policies. *See* Mark Wigfield, *Budget Cuts, Miscues
    Boost Tensions Between FCC, Congress*, Wall St. J., July 3, 2000, at
    B6. Actions such as this, ignoring congressional choice, and pushing
    ahead based on ancillary jurisdiction, partly explain Congress\'
    ire.

[^198]: *See, e.g., United States v. Southwestern Cable Co.*, 392 U.S.
    157, 178 (1968) (the Court sanctioned the Commission\'s general
    jurisdiction of interstate communications, to the extent that the
    regulations were \"*reasonably ancillary* to the effective
    performance of the Commission\'s various responsibilities. . .\")
    (emphasis added)*; United States v. Midwest Video Corp*., 406 U.S.
    649 (1972); *Southwestern Bell Tel. Co. v. FCC*, 19 F.3d 1475, 1479
    (D.C. Cir. 1994); *Capital Network Sys. v. FCC*, 3 F.3d 1526, 1527
    (D.C. Cir. 1993).

[^199]: 47 U.S.C. § 154(i).

[^200]: Indeed, it would be difficult to maintain that the legislative
    power of the United States rested exclusively with Congress, as it
    constitutionally must.

[^201]: My concerns about the Commission\'s assertion of ancillary
    jurisdiction are not newfound. In July 1999, I dissented in part to
    the Section 255 implementation *Order* because of my \"grave
    concern\" of the Commission\'s reliance on the \"use of \'ancillary
    jurisdiction\' to extend the accessibility requirements of Section
    255 to providers of voicemail and interactive menu services, as well
    as to manufacturers of telecommunications equipment and CPE which
    perform such functions.\" *See* Implementation of Section 255 of the
    Telecommunications Act of 1996---Access to Telecommunications
    Services, Telecommunications Equipment, and Customer Premises
    Equipment by Persons with Disabilities, *Report and Order* and
    *Notice of Inquiry* (WT Docket No. 96-198) (Separate Statement of
    Michael K. Powell, Commissioner, Federal Communications Commission)
    \[available on the World Wide Web at
    \<http://www.fcc.gov/commissioners/powell\>\].

[^202]: 47 C.F.R. § 73.1250 reads, in relevant part:

    \(a\) Emergency situations in which the broadcasting of information
    is considered as furthering the safety of life and property include,
    but are not limited to the following: Tornadoes, hurricanes, floods,
    tidal waves, earthquakes, icing conditions, heavy snows, widespread
    fires, discharge of toxic gasses, widespread power failures,
    industrial explosions, civil disorders and school closing and
    changes in school bus schedules resulting from such conditions.

[^203]: *See* National Federation of the Blind, Comments on Notice of
    Proposed Rulemaking in the Matter of Video Description of Video
    Programming, MM Docket No. 99-339 (filed Feb. 23, 2000) at 1 (In the
    first paragraph of comments, NFB unequivocally opposes \"the
    imposition of audio description as a federal mandate\").

[^204]: *See* Motion Picture Association of America, Comment on Notice
    of Proposed Rulemaking in the Matter of Video Description of Video
    Programming, MM Docket No. 99-339 (filed Feb. 23, 2000) at 25-26
    (*citing* J. Packer & C. Kirchner, American Foundation for the
    Blind, *Who\'s Watching? A Profile of the Blind and Visually
    Impaired Audience for Television and Video*, at Table 2, p.9
    (1997)).

[^205]: *Id* at 20 (citing Consumer Electronics Manufacturers
    Association data).

[^206]: The *Order* seems to embrace WGBH\'s view that digital
    television will require additional audio tracks and, thus, SAP
    functionality will not be wasted. We have no real confirmation of
    this view. One should note that we are adopting digital closed
    captioning rules in a separate proceeding today, and likely would
    have to reevaluate video description for DTV.

[^207]: *See Report* at ¶¶ 22, 27, 28.

[^208]: The Report also assumes SAP equipment capability from newspaper
    articles, not from comments or other authoritative industry
    resources. *See id* at ¶ 21 nn. 57-59.

[^209]: *See, e.g.,* Kyle Pope, *Network Makes \$850 Million Deal with
    Warner Bros.*, Wall St. J., Jan. 15, 1998, at B1 (NBC strikes \"a
    record \$850 million deal to keep the nation\'s top-rated show,
    ER\"); *NFL Buyers, Sellers Could Butt Heads on Rates*, Multichannel
    News, Jan. 26, 1998, at 28 (\"Fox Broadcasting, ABC, CBS and ESPN
    will shell out a combined \$17.6 billion across eight \[NFL\]
    seasons.\"); John M. Higgins, *Cable Operators Blast ESPN for NFL
    Megabid*, Broadcasting & Cable, Jan. 19, 1998, at 10 (Of \$17.6
    billion total, ESPN \"agreed to pay \$600 million per season for 18
    Sunday night games\"); S*ee Disney Offer Would Triple NHL\'s Current
    TV Deal*, Palm Beach Post, Aug. 6, 1998, at 8C (Walt Disney Co.
    offered \"to pay the \[NHL\] almost \$600 million for exclusive U.S.
    broadcast rights for five years\". . .the deal \"would triple the
    amount Fox Sport and ESPN \[paid\] the league\" under the previous
    deal).