**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

**In the Matter of )**

**) MM Docket No. 99-339**

**Implementation of )**

**Video Description of )**

**Video programming ) November 13, 2000**

**To: The Commission**

**THE NATIONAL TELEVISION VIDEO ACCESS COALITION'S**

**CONSOLIDATED OPPOSITION TO PETITIONS FOR RECONSIDERATION**

**NATIONAL TELEVISION VIDEO**

**ACCESS COALITION**

**By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Dr. Margaret Pfansteihl**

**November 13, 2000**

**TABLE OF CONTENTS**

**Page**

**Summary i**

**I. Lack of Authority and Compelled Speech 2**

**II. HBO\'s Request for Exemption 3**

**III. Undue Financial Burdens 3**

**IV. National Federation of the Blind 4**

**V. Analog and Digital 5**

**VI. Complaints and Enforcement 6**

**VII. Repeats, Reruns and Pass Throughs 7**

**VIII. SAP Usage for Video Description and Spanish-Language 9**

**IX. Program Distributors Responsible 10**

**X. Definition of Primetime 10**

**Conclusion 11**

**SUMMARY**

**Needing only modest clarifications and modifications, the
Commission\'s rules, while not nearly as comprehensive as desired by the
visually impaired community, nevertheless are sound, reasoned and well
substantiated. For the broadcast and cable industries, implementation
will open the vast video marketplace for the first time to the visually
impaired. For the United States Government implementation will help to
alleviate the serious anomaly wherein the Government provides
accessibility for deaf and hard of hearing audiences but not for blind
and visually impaired audiences.**

**Most reconsideration petitioners simple revisit matters previously
addressed and resolved by the Commission. Most petitions by industry
clearly are intended to strangle mandated video description in its
cradle. And we have had a decade of voluntary industry inaction. MPAA
claims copyright laws would be violated if the describer misinterpreted
a facial expression. But sighted people also can misinterpret. However,
lack of any description would ensure that visually impaired people would
greatly misunderstand many scenes.**

**The HBO request for exemption based on \"audience reach\" has merit.
As for undue financial burden, industry offers no specifics buttressing
their claims.**

**NFB states that \"there is undeniable support for described
entertainment . . . .\" NFB\'s concerns of the lack of \"described
information\" are real and important and should receive the time and
attention they deserve in a separate FCC consideration. Analog and
digital programming must be equally accessible -- analog continuing,
digital when it is here. But the Commission should mandate digital
accessibility now, including rules for DTV consumer reception equipment,
navigating devices, and allocate now a digital subchannel for video
accessibility.**

**We do not agree that complaints should first be filed with the
broadcast or cable outlet. Visually impaired viewers cannot read
information from the screen telling them where to call or even which
channel or network they are tuned to. It would be simpler and much more
efficient to have a single point of contact for complaints.**

**No broadcast or cable outlet should be forced to change its regularly
scheduled programming or add description to classes of programs such as
wrestling. We only seek parity with the population at large. Some
flexibility may be warranted here. There *is* a need to specify that
video description be devoted initially to primetime and children\'s
programs where the need is the greatest. We reject the NAB proposal that
descriptions should not be passed through once a station has met its
minimums.**

**Satellite providers worry that their SAP facilities must be totally
dedicated to either Spanish language or video description to avoid
confusion. We are certain that both Spanish-peaking and visually
impaired people can figure out program schedules and adjust their
viewing habits.**

**Program distributors fret that they would be required to add
descriptions to programs they only license but do not own. Actually,
program licensees have long born the expense and responsibility for
captioning programs they merely license for limited distribution. The
Commission\'s captioning rules do not distinguish between owned and
licensed programs.**

**Primetime does indeed need to be defined by the Commission.**

**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

**In the Matter of )**

**) MM Docket No. 99-339**

**Implementation of )**

**Video Description of )**

**Video programming ) November 13, 2000**

**To: The Commission**

**THE NATIONAL TELEVISION VIDEO ACCESS COALITION'S**

**CONSOLIDATED OPPOSITION TO PETITIONS FOR RECONSIDERATION**

**The National Television Video Access Coalition ("the Coalition")
hereby submits this consolidated Opposition to the various Petitions for
Reconsideration which were filed with respect to the Commission's August
7, 2000 *Report and Order* adopting new rules mandating the provision of
video description over the nation's major media distribution pipelines.
The Commission's rules constitute a measured but forceful action to open
the vast video marketplace for the first time to the visually impaired.
Pious calls for voluntary video description had proved meaningless in
the light of a decade of voluntary inaction by in this area by the
broadcast and cable industries. To a large degree, the petitioners
simply revisit arguments which were made to, and rejected by, the
Commission at the initial rulemaking stage. The Commission has
consistently held that it will not entertain petitions for
reconsideration for the purpose of revisiting matters which have already
been fully addressed and resolved. [Direct Broadcast Satellite
Service]{.underline}, 53 RR2d 1637 (1983) Those petitions should
therefore be summarily dismissed. Other petitions suggest minor
fine-tunings in the rules as adopted by the Commission. In some
respects, we believe that clarification or**

**adjustment of the rules as originally adopted will conduce to fuller
and more economical compliance with the rules, and therefore the
Coalition has no objection to those requests. The Coalition will address
those points below.**

**I. Lack of Authority and Compelled Speech.**

**The majority of the reconsideration petitions filed by eight
organizations**[^1] **demonstrate an intention to strangle mandated
video description in its cradle. Fortunately the Commission has already
reviewed, considered and rejected precisely the arguments raised by
petitioners regarding the Commission's authority to mandate video
description and the constitutionality of such regulations. The
petitioners offer no new evidence for reexamining these issues. If the
petitioners were correct that the FCC indeed does not have the authority
to require television programs to be accessible to visually impaired and
blind audiences, and if video description is indeed compelled speech
(and hence unconstitutional), there would be a serious and inexplicable
anomaly in the law with respect to different disabled communities: the
United States government would be in a position of providing
accessibility for the deaf and hard of hearing but not for the blind and
visually impaired.**

**Interestingly, the MPAA also attempted to buttress its negative views
by again turning to the copyright laws. The MPAA claims these laws would
be violated if a describer misinterpreted the facial expression of one
of the actors in a drama. This, they claim, would alter the content
and**

**intended meaning of the artist who created the drama. However, sighted
people who, without being exposed to any descriptions, also can
misinterpret facial expression. When a drama is presented to the public,
the artist can never be certain that everyone will read the same
meanings into what is portrayed on the screen. The lack of any
descriptions, however, would definitely ensure that blind and low vision
people would greatly misunderstand many scenes because they would be
deprived of all visual cues.**

**II. HBO's Request for Exemption.**

**HBO suggests that it was inadvertently caught in the embrace of the
rules applicable to MVPDs due to the Commission's use of "audience
reach" versus "audience share" to determine which cable networks should
be covered by the rules. HBO also points to its use of its SAP channel
for Spanish language purposes. The Coalition has no objection to
adjusting the rules so as to make clear that HBO is exempt based on the
audience reach criterion. We disagree, however, that HBO's use of the
SAP channel for Spanish programming should be reason for their
exemption. As we have stated in our filings in this proceeding, Spanish
language translations and video descriptions can be offered on alternate
feeds of programs on those networks which provide multiple broadcasts or
cablecasts of the same programs. Among other considerations, visually
impaired viewers would be forced to pay monthly for a service which
would only offer them**

**four hours a week of accessible programming, a poor bargain in
comparison with the monthly fee providing far more for fully sighted
viewers. HBO's exemption should therefore be based on revision of the
rule to cover only MVPDs which are both in the top five for audience
share and reach 50% of the MVPD households, as suggested by HBO.
Alternatively, HBO's status as a premium channel might also qualify it
for exemption, but we are reluctant to exclude such programmers
categorically.**

**III. Undue Financial Burdens.**

**Several petitioners re-raise claims that the rules will place a
financial burden on them. While criticizing the Commission's analysis of
the financial burden, they offer no specifics on which the Commission
could reach an opposite conclusion. We do not believe that any new
information has been imparted on this subject. If an organization felt
it was entitled to an exemption on this basis, it should have submitted
its evidence in the original comments. Moreover, DBS providers can still
file appropriate requests for exemption from the rules on grounds of
undue burden. At that point, the Commission could consider their
specific circumstances with a far more complete view of the financial
situation than they have provided to date. The Commission's undue burden
procedures are sufficiently broad to permit any petitioner to point out
"any other factors the petitioner deems relevant . . . ." If undue
burden were demonstrated in that context, the Commission could grant an
appropriate exemption.**

**NAB frets that it will be found in violation if one of its members
experiences temporary technical difficulties in passing video
description through. We assume that the Commission would consider such
cases reasonably; the Commission rarely faults a broadcaster or
cablecaster for a temporary rule violation stemming from a bona fide
temporary technical difficulty. A technical difficulty should not be
construed, however, to include the lack of equipment to provide video
descriptions which are otherwise required; a temporary difficulty would
be a short-term failure of such equipment.**

**IV. National Federation of the Blind.**

**NFB stated in its petition for reconsideration \"that there is
undeniable support for described entertainment among blind people and
advocates on behalf of the blind.\" The Coalition is gratified that NFB
has acknowledged the strong demand in the blind and visually impaired
community for this service. Those other petitioners who attempted to
demonstrate lack of interest by the blind community in video description
by citing previous NFB concerns should take note of this and other
similar statements by NFB. NFB also expressed a strong need for
\"described information\" or the rendering of *all* print information
appearing on the TV screen into the spoken word. They believe the
Commission should not adopt a rule on video description until it can
also include provisions for the information they seek. Video
description, as considered and mandated by the Commission, is entirely
different from the far-reaching "described information" concept alluded
to by NFB. The technology and production outlets and know-how for
delivering descriptions for television programs have been in place for
more than ten years. On the other hand, the methods, means and
groundrules for delivering \"described information\" must be explored
and developed. One solution to the "described information" problem
(synthetic voice) has already been broached by the industry. While
technical issues surrounding synthetic voice must still be resolved
(*e.g.*, ensuring that a scrolled message is delivered with adequate
aural quality on a separate channel after a tone alert), the technology
holds considerable promise for the video industry and consumers alike.
Similarly, NFB's concerns about identifying the speaker on news shows
can be remedied by sensitizing newscasters to recognize the necessity of
aural speaker identification. There is no doubt that NFB's concerns are
real and important to the visually-impaired community, but we believe
that the broader issues of information accessibility should be totally
separated from video description so they may receive the time and
attention they deserve. Above all, video description should not be
delayed until the wider issues are addressed.**

**V. Analog and Digital.**

**Video description rules should apply equally to analog and digital
programming. The overwhelming majority of television sets in this
country can receive only analog programs, and this state of affairs is
most likely to remain for many years. Blind and low vision people should
not be expected to wait for relief until the transition to digital can
be completed and then be forced to purchase expensive equipment in order
to receive the descriptions. Analog is now the basic means of delivering
description, as it has been for the past ten years. It should be
utilized. However, we strongly believe that the Commission should now
mandate transmission and reception of video description in digital
television by setting forth rules that require manufacturers of all DTV
consumer reception equipment (set-top boxes as well as integrated DTV
receivers) to support the ancillary audio channel that video description
will utilize in DTV. In addition, the Commission should include in its
present rules governing video description a schedule for inclusion of
video description on digital broadcasting and cable. In this way, when
DTV does become pervasive and affordable, blind and visually impaired
people won\'t face another gap of years before this new technology also
becomes accessible. In this regard the Commission should anticipate the
need for digital by allocating a digital subchannel for video
description services in digital broadcasts. The Commission should also
formulate a rule for manufacturers of television sets requiring that
navigation of their devices be accessible to visually impaired users.
Older TV sets came equipped with a simple button on the remote control
to turn on the SAP channel. Most newer sets permit access to the SAP
channel only through an on-screen display which is certainly not
accessible to the visually impaired population. The equipment
manufacturers need to have their consciousness raised with respect to
this accessibility issue.**

**VI. Complaints and Enforcement.**

**A number of petitioners point to the difference in enforcement
procedures for closed captioning and video description. We do not agree
that complaints should first be filed with the broadcast or cable outlet
in question. Visually impaired viewers cannot read information from the
screen telling them where to call or even which broadcast or cable
network they are tuned to. Based upon the experiences of our colleagues
in the deaf community, viewers will be frustrated as they attempt to
track down the appropriate industry person to contact. It would be
simpler and far more efficient for visually impaired viewers to have a
single point of contact. At first, since many outlets will not carry
described programs (and even those who do will carry only four hours a
week), there is apt to be much confusion concerning which programs
should or should not come with descriptions. The necessity to handle
many complaining telephone calls could be obviated if either the
Commission or the broadcast and MVPD entities could set up a toll free
number to call in order to obtain this basic information and file
complaints via some coordinated and accessible system. It would also be
helpful if TV guides would clearly designate all described programming
so that sighted family members and friends could assist.**

**The Commission must be directly told about legitimate complaints and
should take suitable steps to enforce its rules including, if necessary,
fines or license suspension. We believe the necessity for such extreme
measures would be rare, if not non-existent. Once the description
mandate takes effect, we trust that the broadcast and cable outlets will
provide consistent, reliable and effective service. Mistakes may be
made, particularly in the beginning, but if the record of any broadcast
or MVPD entity is generally good, the blind and visually impaired
population will be grateful for the services rendered. We urge the
Commission to use every appropriate public venue to ensure that
consumers are aware of the complaint process and documentation
requirements outlined in the *Report and Order*.**

**VII. Repeats, Reruns and Pass Throughs.**

**We do not believe any broadcast or cable outlet should be forced to
change its regularly scheduled programming or add descriptions to
classes of programs such as wrestling matches in order to meet video
description requirements. NCTA and some individual petitioners say that
four hours a week of newly described programming would be difficult to
achieve during the summer rerun season. The Coalition is sensitive to
this point since we are only seeking parity of the visually impaired
with the population at large; no one expects new programs to be created
just to accommodate these regulations. Some flexibility here may be
warranted to avoid an unintended consequence. If some latitude is
granted concerning repeats and reruns, the FCC and the blind and low
vision community must be vigilant in determining that it is not abused.
Perhaps a maximum number of repeats or reruns in any one quarter could
be established. Alternatively, broadcasters and MVPDs could be credited
with the first re-run of a described program. (Repeats and/or reruns for
closed captioning cannot be compared with video description since the
overwhelming majority of TV programs are now captioned and there will be
only four hours a week with descriptions. If these four hours turn out
to be primarily repeats or reruns, the blind community would continue to
have very little access to television.)**

**TBS also expressed concern that the Commission\'s rules could be read
to disallow the counting of a program described for one cable network
but then distributed by another. (The example of a program described for
TNT and then run by TBS was cited.) Since the quarterly video
description minimums are the responsibility of the MVPDs, this could be
a cause of confusion. The Coalition believes that if the treatment of
repeats is modified as discussed above, this situation would also be
resolved. We agree that described programming which moves from one cable
or broadcast network should be allowed to be counted against quarterly
minimums.**

**One petitioner suggests that there is no need to specify that video
description be devoted initially to primetime and children's
programming. Given the relatively few hours where video description must
be provided, we strongly believe that these hours must be concentrated
where the need is greatest. The marketplace cannot be relied upon in
this instance, and therefore the Commission's rule should stand.**

**NAB suggests that stations which have the technical capacity to pass
through video descriptions should not be required to pass through
described programming once their minimums are met or if they want to use
the SAP channel for other purposes. This suggestion should be rejected.
The Commission recognized that video description is an important
resource to the blind and the visually impaired. However, the Commission
adopted an extremely measured approach designed to minimize the
financial burdens on those entities required to provide the described
programming. In the case of stations which already have the equipment in
place and are receiving the programming in described format anyway,
there is no reason at all to deprive the visually impaired community of
this valuable material. There is so little programming which would fall
under this rulemaking and which also would use the SAP channel for
Spanish programming that mutually exclusive demands on the SAP channel
should be a rare circumstance. The suggestion that an MVPD or local
station should be able to use its SAP channel \"to provide another
service\" (comments of NAB, page 3) would leave the door open to a local
broadcaster using its SAP channel to reroute its main audio or to carry
a local co-owned radio station, and then claim a need for
\"flexibility\" in its use of the SAP channel.**

**VIII. SAP Usage for Video Description and Spanish-Language.**

**The contention by satellite providers that their SAP facilities must
be either totally dedicated to Spanish language translations or video
descriptions for the blind in order to avoid confusion is meritless.
Spanish-speaking people and visually impaired people are disadvantaged
but they are not mentally impaired. We feel certain that both Spanish
speaking and blind people can figure out program schedules and learn to
adjust to their viewing habits accordingly.**

**There are many sections of the country which are almost totally
dependent upon satellite delivery. If all satellite providers were
allowed to obtain exemptions for one reason or another, this would
greatly reduce the opportunity for blind people to enjoy the new
description services. Already only the top 25 markets and top five cable
networks will be required to provide any descriptions. If we subtracted
areas covered by satellite providers, the area of the country without
coverage would increase significantly.**

**IX. Program Distributors Responsible.**

**Broadcasters and cable channels have argued that they should not be
required to add descriptions to programs which they do not own but only
license. The timetable established by the Commission for implementation
of video description was very generous for just this reason. By phasing
in description over a long period of time and with a very long lead
time, the Commission ensured that broadcast and cable licensing
agreements could gradually be adjusted to take into account the need to
meet FCC requirements for video description. In fact, the history of
closed captioning and the Commission\'s captioning rules don\'t
distinguish between owned and licensed programs. Program licensees have
long born the expense and responsibility for captioning programs they
merely are licensing for limited distribution. We are confident that in
any rare situations where licensing agreements have extremely long lead
times, agreements could be reached between program suppliers and their
major customer base to add video descriptions to licensed product by
agreement. If this were not the case, the undue burden safety valve
would always be available. Lack of ownership per se should not be an
excuse for not providing descriptions.**

**X. Definition of Primetime.**

**Several commenters request that the Commission define primetime more
precisely for purposes of determining compliance by nationwide program
distributors. The Coalition agrees that a precise definition of
prime-time be included in the Commission\'s rules. We suggest the
following definition: 8-11pm Monday-Saturday in the eastern and pacific
time zones; 7-11pm on Sundays in those time zones. Prime time in the
Central Time zone coincides with the Eastern Time zone (an hour earlier
local time) and prime time in the mountain zone is divided between prime
time in the Pacific Time zone and prime time in the Central Time zone.
In addition, the Coalition has no objection to the clarification offered
by TBS regarding single transponder non-broadcast networks whereby prime
time is defined by prime time in the eastern zone (as is the case for
TBS) or prime time for whichever zone the single transponder network
uses as its origination zone Should the national distributor like TBS
begin to delay their service to the west coast or other time zones and
employ additional transponders, the first definition of prime time above
should then apply.**

**CONCLUSION**

**For all the reasons set forth above and in the voluminous history of
this docket, the Commission's rules, while not nearly as far-reaching as
the visually impaired community had desired, are sound, reasoned and
well substantiated. With the modest clarifications and modifications
suggested above, the Commission should reject the petitions for
reconsideration and let the video industry commence the work of making
video description a reality.**

> **NATIONAL TELEVISION VIDEO**

**ACCESS COALITION**

**By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Dr. Margaret Pfanstiehl**

**Donald J. Evans**

**Fletcher, Heald & Hildreth**

**1300 N. 17^th^ St.**

**11^th^ FL**

**Arlington, VA 22209**

**703-812-0430**

**November 13, 2000**

**CERTIFICATE OF SERVICE**

**I, Deborah N. Lunt, a secretary with the law firm of Fletcher, Heald &
Hildeth, P.L.C., hereby certify that a true copy of the foregoing \"THE
NATIONAL TELEVISION VIDEO ACCESS COALITION'S CONSOLIDATED OPPOSITION TO
PETITIONS FOR RECONSIDERATION\" was served by first class mail, postage
prepaid, to the following:**

**Pantelis Michalopoulos**

**Rhonda M. Rivens**

**Steptoe & Johnson, LLP**

**1330 Connecticut Avenue, NW**

**Washington, DC 20036**

**Counsel for EchoStar**

**Gary M. Epstein**

**James H. Barker**

**Kimblerly S. Reindl**

**Latham & Watkins**

**1001 Pennsylvania Avenue, NW**

**Suite 1300**

**Washington, DC 20004-2505**

**Counsel for DIRECTV**

**James Gashel**

**Director of Government Affairs**

**National Federation of the Blind**

**Daniel L. Brenner**

**Diane B. Burstein**

**National Cable Television Association**

**1724 Massachusetts Avenue, NW**

**Washington, DC 20036**

**James J. Popham**

**Vice President and Statutory License Counsel**

**Motion Picture Association of America, Inc.**

**1600 Eye Street, NW**

**Washington, DC 20006**

**Henry L. Baumann**

**Jack N. Goodman**

**Jerianne Timmerman**

**National Association of Broadcasters**

**1771 N Street, NW**

**Washington, DC 20036**

**Benjamin J. Griffin**

**James L. Casserly**

**Mintz, Levin, Cohn, Ferris, Glovsky**

**and Popeo, PC**

**701 Pennsylvania Avenue, NW, Suite 900**

**Washington, DC 20004**

**Counsel for Home Box Office**

**Bertram W. Carp**

**Williams & Jensen**

**1155 21^st^ Street, NW, Suite 300**

**Washington, DC 20036**

**Counsel for Turner Broadcasting**

**Systems, Inc.**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Deborah N. Lunt**

[^1]: **Petitions were filed by Turner Broadcasting System, Inc.
    ("TBS"), HBO, National Association of Broadcasters ("NAB"), Motion
    Picture Association of America ("MPAA"), National Cable Television
    Association ("NCTA"), Echostar Satellite Corporation, DirecTV, Inc.,
    and National Federation of the Blind ("NFB").**