**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                |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

INTRODUCTION:

The National Federation of the Blind hereby petitions the Federal
Communications Commission for re-consideration of its final rule
concerning video description of video programming. The Commission in
issuing its proposed rule was apparently unaware that description of
prime-time shows is a mere portion of the overall issue concerning
access to television for the blind. The comments received by the
Commission raised the rest of the issue: description of information
printed on the television screen and not voiced and the priority of
devoting resources to information and/or to entertainment. Though the
issue was fully raised in comment, the Commission ignored the broader
issue and finalized its proposed rule without ever giving the public the
chance to participate fully and fairly in a review of the entire issue.

In this petition, the National Federation of the Blind urges the
Commission to act responsibly and in accordance with the law by
reconsidering its final rule; finding that the rule was not in accord
with the breadth of the issue as revealed by the comments; rescinding
the final rule; and beginning the proceeding again to embrace and fully
review the entire issue of access to television for the benefit of the
blind. Without a new beginning, the process which brought about the
final rule stands as a stark example of how not to conduct federal
rulemaking since it was characterized by rigid refusal to address
forthrightly new matter raised by the public and by rigid adherence to
the belief that whatever the Commission proposed must have been right
regardless of comments.

BASIS FOR RECONSIDERATION

1\. The Commission's final rule is fundamentally flawed.

When considering the issuance of a proposed rule requiring voiced
description for television, the Commission responded to one body of
interest representing advocates for video description. These advocates
urged the Commission to require description of prime-time television
shows. In this petition, this will be referred to as "described
entertainment." There is undeniable support for described entertainment
among blind people and advocates on behalf of the blind. However,
described entertainment is not the only issue involving access to
television for the blind.

The Commission must have been unaware that there was any other issue
involving access to television, since its proposed rule dealt
exclusively with described entertainment. The existence of another
profound issue involving access came to light through public comment,
but the Commission failed to adopt an adequate response. In brief, the
Commission gave priority to described entertainment over requiring
information printed on the screen to be accessible. This will be
referred to as \"accessible information.\" This failure to address half
of the issue\--accessible information\--with an equal priority to
described entertainment results in a final rule which is fundamentally
flawed.

2\. The Commission was unaware of the lack of access of the blind to
information printed on the screen.

Study of the proposed rule leads to the inescapable conclusion that the
Commission was unaware of the other profound issue concerning television
and the blind\--that is, the need for accessible information. Had the
Commission been aware of this part of the total issue of accessibility,
it would surely have included accessible information in the proposed
rule.

It is inconceivable that the Commission would have known about both
issues\-- described entertainment and accessible information\--but
decided that described entertainment should have priority over
accessible information. That would imply that the Commissioners are
interested primarily in entertainment and do not appreciate the
importance of assuring full access for blind people to emergency,
health, safety, and citizenship information. We conclude instead that
the Commission was unaware of the need for accessible information.

3\. The process of public comment on the proposed rule brought its flaw
to light.

Through public comments, the Commission learned of the need for
accessible information. The National Federation of the Blind and many
other individual commenters brought this to light, pointing out that
accessible information is fundamental to effective television viewing.
The comments referred to information scrolled across the bottom of the
television screen without interrupting the ongoing program. This
information includes hazardous warnings and other emergency information;
local and national news bulletins; information from both local and
national advertisers; phone numbers for health and safety information
printed on the screen and not voiced; and citizenship information such
as the identities of speakers on regular and special news programs
printed at the bottom of the screen and not voiced.

One example: a blind viewer is watching a prime-time program while a
thunderstorm rages outside. Suddenly the television beeps. The blind
viewer does not know whether a new thunderstorm watch is being issued
for the local area, whether a tornado has been spotted 100 yards away,
or whether an international figure has just been assassinated. The only
information is a \"beep\" while sighted viewers may be running for their
lives.

Another example: a nightly news show introduces a tape by saying that
one of the presidential candidates spoke today about an issue, but not
naming the candidate. When the tape rolls, the news show identifies the
speaker by printing his name at the bottom of the screen. Other voices
then support or criticize the first speaker. At the conclusion of the
tape the news anchor takes a commercial break. This transaction often
takes place without any of the speakers being identified by voice. The
blind person watching the news is left to wonder, never knowing who said
what. That same viewer will be voting in a few weeks without having
access to the same information available to others.

All of these needs for accessible information were brought to the
Commission's attention during the public comment period on the proposal
to mandate described entertainment. At that point, the appropriate
response in the public interest would have been to rescind the proposed
rule and start the process again with the entire issue on the table.
Instead of doing this, the Commission proceeded doggedly to finalize the
proposed rule on described entertainment. As part of that process, the
Commission apparently concluded that the need for accessible information
had to be addressed. This led to insertion of a section on emergency
information in an attempt to appear responsive to the weight of serious
public comments. However, the substance of the provision which was
included in the final rule is *not* responsive and definitely not an
effective solution. In fact, it appears to be more of an afterthought
than a serious attempt to deal with a genuine issue.

4\. There is no disagreement about the importance of voicing information
printed on the screen.

In general, the Commission received two types of comments in response to
the proposed rule on described entertainment. These were comments urging
the Commission to construct a meaningful rule on accessible information
and other comments simply urging adoption of the proposed rule but not
opposing a rule on accessible information. While some commenters
supporting accessible information urged that it holds a much higher
priority in our nation's life than described entertainment, no
commenters supporting described entertainment opposed a mandate to
require accessible information as well.

In fact, as the discussion evolved within the formal comment process and
around the nation, supporters of described entertainment came to support
both described entertainment and accessible information. Like the
Commission, they had not thought through the implications of adopting a
rule on described entertainment without also giving equal or greater
priority to accessible information. No one interested opposes having a
meaningful rule on accessible information. Some just want it in addition
to described entertainment, and some want it first. However, since the
Commission in its proposal had been unaware of the issue of accessible
information, it was compelled either to finalize the rule on described
entertainment and end the matter there or to begin again, issuing a
proposed rule covering described information and going through another
comment period.

In the provisions of its final rule, the Commission casually recognized
a bit of its dilemma and tried to cover the problem with a small
addition addressing emergency information scrolled across the screen.
Anecdotal information suggests that this attempt by the Commission
occurred because the issue came to light only at the last minute\--very
shortly before the adoption of the final rule\--even though the comments
had dealt fully with it months before. When the Commission realized that
the accessible information issue was serious, it grabbed for a Band-Aid
solution by placing a requirement in the final rule that any emergency
information scrolled across the screen must be accompanied by a
\"beep.\" How does that make the information accessible? The fact that
it does not seems to be of no consequence to the Commission.

5\. The Commission's proposed rule made no mention of accessible
information, placing inclusion of accessible information outside of the
scope of the final rule.

The Commission\'s hasty response during this rule-making makes clear why
Congress enacted the Administrative Procedures Act and why the Act
requires public comment. The inclusion of a small section which
improperly addresses emergency warnings and does not fully address the
need for accessible information renders the entire rule-making procedure
and outcome invalid.

6\. The Commission's choice of described entertainment over accessible
information is a misperception of the need coupled with an offensively
meaningless solution to address it.

## A. In commenting on the proposed rule, many blind individuals made an honest and good-faith effort to inform the Commission about their genuine needs and deficits as television viewers. Among the issues raised were the following: frustration with lack of access to health or safety information, including the failure to verbalize addresses or telephone numbers; the helpless feeling of blind viewers who do not know the identity of a speaker on the national news; and the fear of blind viewers who hear a \"beep\" but do not know the reason for it. Blind people made all these points to convince the Commission to rescind its proposed rule and start again.

The response? A rule to \"encourage\" verbalizing of information printed
on the screen, coupled with a mandate for a \"beep\" in the case of
hazardous conditions. Blind people who commented on the need for
accessible information are insulted by the Commission\'s shallow
response to \"encourage\" accessible information but to mandate
described entertainment.

B. Information printed on the screen comes from a variety of sources:
local stations; local advertisers; network broadcasts; national
advertisers; and numerous advertising and programming production
companies, etc. From the short shrift which the Commission gave to
accessible information, it is obvious that the Commission did not
undertake a serious effort to learn the implications, limitations, and
possibilities which exist to address this issue. When the issue was
raised in comments, the Commission ducked.

Instead of re-opening the proceeding and airing the entire issue of
accessible information and its relationship to described entertainment
fully and fairly, the Commission took the position that it could resolve
the matter merely by encouraging broadcasters to verbalize information
and requiring them to identify hazardous warnings with a \"beep.\" This
not only gives short shrift to the blind, but also treats the television
industry as though it would naturally oppose a rule on accessible
information just as it was assumed to oppose described entertainment.

No one knows. Would the industry oppose an effort to accompany on-screen
information with spoken words? With Commission prodding, an inexpensive
solution might be found and implemented. Once the issue is fully raised,
the industry might find the solution itself. Based, on the current state
of the record, however, we will never know.

7\. A single proceeding is the only way to address the entire issue of
access for the blind since described entertainment and accessible
information may use some of the same resources and technology and may
also compete for them.

If the final rule is left as is, the Commission itself, the television
industry, and any new technology will essentially be devoted to the
provision of described entertainment. This is so because described
entertainment is now a mandate as opposed to accessible information,
which is merely \"encouraged.\" By the time anyone gets around to
thinking about accessible information\--truly the more urgent need\--
the available resources will already be committed elsewhere. Procedures
established for described entertainment will have priority over
accessible information because the Commission\'s mandate favors
described entertainment. Therefore, emergency, health, safety, and
citizenship information will be crowded out by described entertainment
which, under the Commission\'s rule, takes priority. In fact, the chance
that accessible information will ever be addressed as a serious issue is
in doubt, especially since the industry is now required to use resources
for described entertainment. Both parts of the overall television-access
issue must be considered together so that priorities for resources can
be established at one time rather than in an incremental and haphazard
manner.

Respectfully submitted,

James Gashel Director of Governmental Affairs National Federation of the
Blind