BYHAND

CARTER,LEDYARD&_MILBURN

Counsellors at Law

1350 I Street, N. W, Suite 1010
Washington, DC 20005
Tel (202)`898-1515
  Fax (202) 898-1521

Ms. Magalie Roman Salas, Secretary
Federal Communications Commission
450 12th Street, S.W., Room TWA-235
Washington, D.C. 20554

February 23,200O

   2 Wall Street
New York, NY loo05-2072
  (212) 732-3200
       .
570 Lexington Avenue
New York, NY 10022
  (212) 371-2720

&:

Comment Filing
MM Docket No. 99-339

Dear Ms. Salas:

      Enclosed are the comments of International Cable Channels Partnership, Ltd., to
be tiled in the above-captioned proceeding. Pursuant to Section 1.419 of the Commission's
rules, I have enclosed the original and ten additional copies, for your office, each of the
Commissioners, the Information Office and for the Mass Media Bureau.

     Please date-stamp and return the enclosed extra copy to the courier for re-delivery
to our office.

If there are any questions regarding this filing, please call me.

Respectfully submitted,
Respectfully submitted,

CPB:ds
Enclosures


In the Matter of              >

             Before The
FEDERAL COMMUNICATIONS COMMISSION
       Washington, D.C. 20554    1;-,:) .~ ".
                                            s      `A ,
                                              1. -I- I.,._; ; ,_-, ' ,,' 1 p
                                    5' _ ,/
                       b; .~ 3

Implementation of Video Description
of Video Programming

)
>    MM Docket No. 99-339
1

COMMENTS OF

INTERNATIONAL CABLE CHANNELS PARTNERSHIP. LTD.

International Cable Channels Partnership, Ltd. ("ICCP") submits these Comments

in response to the Commission's Notice of Proposed Rulemaking in this proceeding. ICCP owns

and operates the International Channel, a foreign-language programming service, and represents

ten foreign-language premium services and the Canales fi package of Spanish-language

programming services. Consequently, ICCP believes that it can provide unique insights into the

issues and problems posed by mandatory video descriptions in foreign-language programming.

The International Channel is a multilingual video programming service providing

educational and entertainment programming appealing to a variety of minority and ethnic

groups. Launched in 1990, the International Channel presently is distributed by multichannel

video programming distributors, particularly cable operators, throughout the United States to

approximately 8.5 million subscribers. ICCP provides programming twenty-four hours per day

to disparate ethnic groups in their native languages and features programming in multiple Asian,


European and Middle Eastern languages, including Arabic, Cambodian, Cantonese, Farsi,

French, German, Greek, Hindi, Hmong, Italian, Japanese, Korean, Mandarin, Polish, Portuguese,

Russian, Scandinavian (various), Spanish, Tagalog (Filipino), Thai and Vietnamese. A copy of

its current programming schedule is annexed as Exhibit A. It is the kind of niche service which

greatly expands the diversity of programming available to viewers by providing unique

programming that otherwise would be unavailable. However, because the International Channel

is a niche service directed at minority and ethnic viewers, it will be unable to develop the high

subscriber levels achieved by general entertainment/information programming services with

mass appeal, which limits its revenues from not only subscribers but also advertisers.

      Likewise, the following foreign-language premium programming services

represented by ICCP are targeted at narrow minority and ethnic viewerships: ART America

(Arabic), CCTV-4 (primarily Mandarin), CTN (Mandarin), RAI (Italian), Scandinavian Channel

(Norwegian, Swedish, Finnish, Danish and Icelandic), the Filipino Channel (primarily Tagalog),

TV Asia (primarily Hindi, Gujarati and other South Asian languages), TV5 (French), TV

JAPAN (Japanese), Zee TV (primarily Hindi and other South Asian languages), and the soon-to-

be launched Melli Television (primarily Farsi). All of these foreign language services rely upon

programming produced in foreign countries which, of course, would not be subject to any video

description requirements adopted by the Commission, The nine Spanish-language services in

the Canales fi package include programming obtained from various foreign and domestic

producers. Again, these foreign language programming services will achieve only limited

subscriber and advertiser revenues.

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I.

Foreign-Language Programming Services Should Be Exempted from
Mandatorv Video Descrintion.

In its Notice of Proposed Rulemaking, the Commission expressly acknowledged

that it has based its video description proposal upon its closed captioning rules, recognizing that

there is even less data and experience with video description:

This approach is generally modeled after our closed captioning rules, Our
approach here is more measured, however, because video description technology
is not as developed as closed captioning technology, and all distributors may not
have the technical capability now to provide described programming.

Notice of Pronosed Rulemaking, MM Docket No. 99-339, FCC 99-353 (rel. Nov. 18, 1999),

at 121. Thus, the Commission observed that "none" of the programming for which video

description currently exists "is available without the assistance of public funding." Id. at 72.

Under the closed captioning model, the Commission should exempt all foreign-

language programming from mandatory video descriptions. The factual support for such

exemption is consistent with the empirical data supporting the foreign-language exemption for

mandatory closed captioning and equally compelling.  As the Commission previously

recognized, the "potential audiences" for foreign-language programming "tend to be very limited

and thus the economic support is limited." Closed Cautioning; and Video Description of Video

Programming. Implementation of Section 305 of the Telecommunications Act of 1996. Video

Programming Accessibilitv, 13 FCC Red 3272 (1997), at 1147. The Commission also concluded

that foreign-language pro gramming services face unique problems because the foreign producers

of such programming are not subject to closed captioning requirements and retransmission may

occur immediately upon receipt of the programming:

Where the programming is acquired from outside of the United States, in many
situations, additional logistical problems are presented due to the timing of the
programming delivery process and the fact that the programming is produced

-3-


primarily for markets outside of the United States, where there is no closed
captioning obligation and, indeed, where there may be no technical system and
standards for the distribution of such materials.

Id. For example, ICCP retransmits the foreign language premium programming services which

it represents immediately upon downlinking from their foreign sources. These unique factors --

which plainly justify a categorical exemption from the closed captioning obligations for foreign-

language programmin g -- mandate the same exemption from the video description requirements.

In short, mandatory video descriptions for foreign-language programming

services, such as the International Channel, would pose insurmountable technical issues and an

excessive economic burden upon ICCP. Consequently, ICCP respectfully requests that the

Commission exempt foreign-language programming services from video description

requirements, i.e. programming services for which the programming aired is primarily in a

foreign language.'

II.

The Economic Burden of Describing a Foreign-Language Programming
Service Would Be Prohibitive.

A.   Higher Costs And Limited Revenues

Notwithstanding the limited experience with video description, the Commission

has recognized that description would substantially increase programming production costs:

Other barriers to more widespread use of video description are inherent to the
service. For instance, the service requires development of a second script. The
development and production of this second script can add considerably to both
the production time and the budget required to produce a program.

  ' The requirement that the programming be primarily in one or more foreign languages
demonstrates conclusively that a programming service is a niche foreign-language service.
However, it provides the flexibility to include a minimal amount of English language
programming without requiring programmers to submit a series of waiver petitions, thereby
avoiding such burden to the programmer and the Commission.

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         .._. ._" ___-_ --_____ _-__         -


Closed Captioning and Video Description of Video Progmmming. Implementation of

Section 305 of the Telecommunications Act of 1996. Video Programming Accessibilitv, 11 FCC

Red 19214 (1996) ("Video Accessibilitv Report"), at 7120 (notes omitted). Although ICCP has

no experience with video descriptions of programming in multiple foreign languages, it

respectfully submits that the costs and delays in describing such programming would increase

exponentially. In addition to the substantially higher costs, ICCP would anticipate more difficult

technical issues and the virtual absence of foreign-language video description expertise.

      Although ICCP has worked hard over the decade since launch of the International

Channel and has obtained significant distribution throughout the United States, the fact remains

that services appealing to niche markets, such as minority and ethnic viewers, will have "much

more limited distribution, as well as more limited advertising and subscriber revenues than most

English language programming." Video Accessibilitv Report at 780. Consequently, ICCP

would have substantially fewer subscribers over which to spread its higher video description

costs. Further, the lower advertising revenues available to foreign-language niche services

would only exacerbate the economic burden of video descriptions. Advertising spots on the

International Channel typically range from $50 to $400 per thirty-second spot -- far less than the

rates for advertising on English-language services with mass appeal.

B.

Relationship to Programming Budget

ICCP has a very modest programming budget for the International Channel.

Much of the International Channel's programming is obtained without charge, for a minimal

charge or on a barter basis, and some programmers pay ICCP to air programming on the

International Channel. Consequently, although it would be difficult to estimate precisely the

cost of video descriptions for the programming on the International Channel because such

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descriptions simply are not feasible or available, ICCP believes that the cost of video

descriptions would substantially exceed its programming budget. The economic burden of video

description also could not be shifted to the programming producers who are providing

programming without charge, for a minimal charge or on a barter basis. Again, the production

budgets for individual programs are very limited, and video description would increase

programming costs by a significant percentage and would prohibit ICCP from being able to offer

this programming. Instead, ICCP would be forced to incur the video description costs or

abandon these valuable sources of foreign programming.

    C.   Minimal Repeat Value

      The economic burden of video description for the International Channel's

programming would be particularly onerous for ICCP because much of the programming has

no library value. ICCP estimates that roughly half of the programming aired on the International

Channel is topical programming, including news, which has value only when aired

contemporaneously with or shortly after its production. Thus, video description costs cannot be

spread over multiple showings or recouped through subsequent airings on other media.

III.

Video Description of Foreign-Language Programming Presents Unique
And Complicated Issues Under International Law Protecting Moral

      Clearly, video description of programming should not be required if such

descriptions would violate licensing agreements with foreign producers or foreign law. Thus,

programming subject to any of the following types of licensing agreements with foreign

producers also should be exempt from video description requirements: (1) licenser has broad

-6-

_..."_ --.. ,..      _-_.- . _,_          _---.


reservation of rights without expressly granting video description rights; (2) licenser has

expressly reserved moral rights; or (3) foreign law controls and moral rights cannot be waived.

      Under international copyright law, "moral rights" generally are defined as the

personal right protecting the bond between the author and his work and are independent of the

author's economic rights in his work. See, u, International Copvright Law and Practice

Vol. I-II, $7, at FRA 90-91, POL 32-33 (Paul E. Geller ed., 10th rel. 1998). Moral rights protect

the integrity of the work as a whole, requiring that both the content and form of the work be

maintained. Where the "moral rights" to a work are reserved, impermissible changes would

include alterations such as "omissions, supplements, or additions to a work." Id. at FRA 9 1,

POL 33. Although there are exceptions, generally countries recognizing moral rights construe

such exceptions narrowly. See id. Further, if foreign language programming were translated

to English, many of the terms and characters would be subject to multiple interpretations,

substantially increasing the risk of moral rights violations.

      Thus, the video descriptions for foreign-language programming may violate the

moral rights of foreign producers and creators where such rights have been reserved

contractually, or where such rights are granted automatically by a particular country's copyright

laws. Although ICCP has not researched these foreign law issues exhaustively, it is aware that

the laws governing sources of its foreign-language programming, including those of France,

Germany, Greece, Hungary, Italy and Poland, recognize and enforce moral rights. These

complicated issues of foreign law provide a separate and independent ground for categorically

exempting foreign-language programming services from mandatory video descriptions.

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Conclusion

ICCP respectfully requests that the Commission exempt foreign-language

programming services from mandatory video descriptions. Foreign-language programming

services should be defined as services for which the programming is aired primarily in a foreign

language. Video descriptions for foreign-language programming, particularly in multiple

languages from foreign sources, is technologically impractical and economically burdensome

and raises unique moral rights issues under foreign law.

February 23,200O

Respectfully submitted,

INTERNATIONAL CABLE
CHANNELS PARTNERSHIP, LTD.

By:                06

President & Chief Operating Officer
4100 East Dry Creek Road, Suite A300
Littleton, Colorado 80122

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EXHIBIT A


Mondav

Tuesdav  1 Wednesdav /  Thursdav 1    Fridav   Saturdav Sunday

I             I           s

     Arabic News: LBC News (Arabic)                                   Kev Koom Siab
                                           Vieo Heaven (~magmlhm-)

Arabic News: ART lntemational News (Arabic)

     French News: T&@matin (French)        I
Mandarin News: 77V News from Taiwan  (andann)

                                                     French chwen's

ish Variety
English)
pin0 Children's

German Magazine (Engltsh)

German News: DeUtSChe We//e (German) DOppe/paSS (German) (wed. only)
         Soanish News: CBS Telenoticias tSoanish\

       Polish News: PO/sat News (p&h)
Japanese News:  Fujisankei News (Japanese with Engltsh subtrtles)
   Japanese News: Fujsankei News (Japanese)
       Tea lime
       0.4-l
        Filipino Drama: Flames (-raaalog)

The Little Prince
  (spani*)        m-w '
UN. World Chronicle
   ,E"ghSh)
   Pardes    Japanese News:
   ,E"gllsh,       Hodo 2007
               (Japanese)
(Paid w
        )

Cantonese Drama (cantones)             I cc-r

                     SBS      sBsunsohTd
                       -A--L ~         .A---.

SEE3 Drama                     <

  uGm33")                val lay
                            (Korean)
   Vietnamese Drama (VIIWWS~)

Hindi Drama (Hindi)
Hindi Drama (Hindi)

Hindi Variety         I
          /slam (~ngli)

French Variety (French)

Korean Dating Game: Love Studio (Korean)

(Paid Pqmmmiq)

Spanish Cooking:  The Easy Cooking Show (spmish)
Scandinavian Variety  (various Scandinavian hnguages)

Russian News:  Vremva  (RUSSIAN)            I

Portuguese News: CBS Telenoticias

   Spanish News: CBS Telenoticias (spanlsh)

French News:  Journal 7-L' News (French with English subwles)

    Greek News: Antenna Satellite News  (Greek)

Filipino News: Philippines Tonight (English)
South Asian News : TV Asia News  (Engbsh)

Arabic News Repeat:  ART lntemational News (Arabc)       I

OragonbaaZ~Jepanesel

hkek Fair (~apenest)

Fuji Drama

Mandarin News:  World Wide Watch from CCTV (ml&)

Cantonese News:  lntemational Reoort News  (Cantonese)       I

Korean News: MBC News Desk (Korean)

Mandarin News: War/d Report (Mandarin)

Niaht Drama

Mandarin News: Oriental Horizons from CClV  (Mandann)

        ltalial I News:  Telegiomale  (Italtiaq
Vietnamese News: Global Report News  (Vietnamese)
            -

nese Drama Repeat

I  Channel V's I  Channel V'
Music videos Chinese Top

Channel V's    Channel V's    Channel V's
Korean Top 10    I Am Siam    Indian Top 10
  (Korean)         (Thai)         (English)

       1 (Cantonese) 1   (Mandarin)
Filipino Drama: Mara Clara (Tagaiog)

(Paid Programming)

Jaam E. Jam
   (Farsi)

Tanin
(Farsi)

I              I

        (Paid Programming)

Filipino News Repeat: Philippines Tonight (English)
South Asian News Reoeat:  TVAsia News

      (Pad Programming)

Hungary 2000    Cambodian
               Drama
Rcmsnfan vcics     (Ca-)