NORMAN P. LEVENTHAL
MEREDITH S. SENTER. JR.
STEVEN ALMAN LERMAN
RAUL R. RODRIGUEZ
DENNIS P. CORBETT
BRIAN M. MADDEN
BARBARA K. GARDNER
STEPHEN D. BARUCH
SALLY A. BUCKMAN
NANCY 1. WOLF
DAVID 5. KEIR
DEBORAH R. COLEMAN
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WALTER P. JACOB
ROSS C. GREENBERG
H. ANTHONY LEHV
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JUAN F. MADRID

  OF COUNSEL
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BY HAND

Magalie Roman Salas, Secretary
Federal Communications Commission
445 Twelfth Street, S.W., Room TW-A325
Washington, D.C. 20554

Re:   MM Docket No. 99-339
   Video Descrbtion of Video Programming

Dear Ms. Salas:

      Transmitted herewith on behalf of The Motion Picture Association of America,
Inc. are an original and nine (9) copies of its Comments on the Notice of Proposed Rulemaking
(FCC 99-353 released November 18, 1999) in the above-referenced proceeding.

     Diskettes containing these Comments are being simultaneously submitted to
Wanda Hardy and to International Transcription Service, Inc.

Respectfully submitted,

Barbara K. Gardner

Enclosures

BEFORE THE

Federal Communications Commiss

WASHINGTON, D.C. 20554

In the Matter of

' Implementation of
Video Description of
Video Programming

MM Docket No. 99-339

To: The Commission

             COMMENTS OF
THE MOTION PICTURE ASSOCIATION OF AMERICA. INC.

THE MOTION PICTURE
ASSOCIATION OF AMERICA, INC.

By: Barbara K. Gardner
  Sarah R. Iles

Leventhal, Senter & Lerman P.L.L.C.
2000 K Street, N.W.
Suite 600

Washington, DC 20006- 1809
(202) 429-8970

By: Eric J. Schwartz

Smith & Metalitz, L.L.P.
1747 Pennsylvania Avenue, N. W.
Suite 825
Washington, DC 20006-4604
(202) 833-4198

February 23, 2000                Its Attorneys

TABLE OF CONTENTS

                                                                           . . .
SUMMARY.. . . . . . . . _. . . . _. . . _. . . . ._. . ._. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

I.    INTRODUCTION.. . . . . . . . _. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

II.   THE FCC LACKS STATUTORY AUTHORITY TO IMPLEMENT MANDATORY
   VIDEO DESCRIPTION . . . . . ..,_...., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III.   MANDATORY VIDEO DESCRIPTION RULES COMPROMISE THE FIRST
   AMENDMENT. . . . . . . . . . . . . . . . . .6

A.

Mandatory Video Description Would Compel Content-Based Speech on
Media Protected by the First Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B.

The Commission's Video Description Proposals Are Not Narrowly Tailored
to Serve a Compelling State Interest.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1.

The FCC Has Failed to Articulate a Compelling Governmental
Interest Requiring Video Description, . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2   The Proposed Rules Are Not Narrowly Tailored to Implement the
  Asserted Primary Governmental Interest. . . . . . . . . . . . . _. . . . . 13

IV"   MANDATORY VIDEO DESCRIPTION WOULD VIOLATE U.S. COPYRIGHT
   LAWS AND BINDING INTERNATIONAL TREATIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

V.   THE COSTS OF THE PROPOSED VIDEO DESCRIPTION RULES
   SUBSTANTIALLY OUTWEIGH THEIR POTENTIAL BENEFITS. . . . . . . . . . 19

A.   The Benefits of Mandatory Video Description Would Be Limited.. . . . . . . . . 19

B.

The Social Costs of Video Description Are High. _....._............,..,..,.................. 22

VI.   THE FCC SHOULD REFRAIN FROM INTERFERENCE WITH THE
    COMPETITIVE MARKET. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

A.

Mandatory Video Description Would Create Significant Market Distortions.. . .23

B.

The Market Is Adequately Responding to the Demand for Video Description.. 25

C.

The FCC's Plan to Deny Program Providers the Right to Exercise Editorial
Discretion Regarding Which Video Programming Should Be Described
Exacerbates the Inappropriateness of Mandatory Video Description. . . . . . . . . 26

i

                            
x.

VII.  IMPLEMENTATION OF VIDEO DESCRIPTION AS PROPOSED IS
   IMPRACTICAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

A.   The Intended Parameters of the Term "Video Description" Are Unclear. . . .27

B.

Not All Prime Time Programming Is Suitable for Video Description. . . . . . . . . . . . 28

C.

The Commission May Fail to Appreciate the Complexity of the Video
Description Process.. . . . . . . . .._............................................................................. 29

. CONCLUSION. . . . . . . . . . . . . . . . . . . ~. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 0

ii

SUMMARY

     The Motion Picture Association of America, Inc. ("MPAA") wholeheartedly

endorses the Commission's goal of promoting greater enhancement of the television viewing
experience for the visually impaired; nonetheless, it believes that mandatory rules for video

description should not be adopted.

     First, the FCC lacks the authority necessary to promulgate its proposed video
description rules because Congress considered and spec@ally rejected granting the Commission

such authority.

     In addition, mandatory video description rules would compromise programming
creators' and producers' First Amendment rights. The proposed rules compel speech and are not
. content-neutral, since they force the addition of messages based on their content. Marginally

enhancing the ability of the visually impaired to enjoy television is not a compelling state interest,
and the Commission's proposals to address its asserted interest sweep far too broadly.
     Furthermore, the proposed video description rules are contrary to U.S. copyright
law and U.S. obligations under international trade and copyright treaties. Copyright owners,
including programming producers, have exclusive rights to authorize the reproduction,
adaptation, distribution and public performance of their works. Video description would
implicate all of these acts, and therefore requires copyright owners' consent under U.S. law. As a
signatory to the Berne Convention and the World Trade Organization ("WTO") Agreement on
Trade Related Aspects of Intellectual Property Rights, the United States cannot legally impose
any exceptions to the rights of foreign copyright owners that unreasonably prejudice their
legitimate interests in the U.S. market. Video description rules would violate this obligation

. . .
111

possibly triggering WTO dispute resolution procedures.

     The costs of the proposed video description rules outweigh their potential benefits.

The number of beneficiaries of video description would be limited, because the blind and visually

impaired community is a small segment of the U.S. population, and because television sets need

not be capable of receiving the Secondary Audio Programming ("SAP") channel. The duration of

the proposed regulations' actual benefits would also be short, because they would apply only to

analog television. In contrast, the social costs of the rule are high: monopolization of the SAP

channel eliminates its use for foreign language or other programming.

     Imposition of video description requirements would contravene the FCC's long-

held goal of forbearance from interference with competitive markets. Supply-and-demand

mechanisms are the most efficient means for maximizing the benefits of the SAP channel and for

effectively determining audience preferences for SAP programming. The FCC's plan to deny

programming providers the freedom to respond to demands for video description service

exacerbates the inappropriateness of mandatory video description.

     If implemented as proposed, the video description rules would also cause

numerous practical problems for producers and distributors, and for the Commission. The FCC
. would need to determine just what is sufficient description to qualify a program as compliant with

the requirements. In addition, many types of programming are not suitable for video description,

including live programming, and the Commission may fail to appreciate the complexity of the

video description production process.

For all of the foregoing reasons, the Commission should refrain from imposing

mandatory video description.

iv

BEFORE THE

Federal Communications Commission

WASHINGTON, D.C. 20554

In the Matter of

Implementation of
Video Description of
Video Programming

MM Docket No. 99-339

To: The Commission

              COMMENTS OF
THE MOTION PICTURE ASSOCIATION OF AMERICA, INC.

The Motion Picture Association of America, Inc. ("MPAA"), pursuant to Section

1.4 15 of the FCC's rules, 47 C.F.R. 4 1.4 15, hereby comments on the Notice of Proposed

Rulemaking in the above-captioned proceeding. ' MPAA is an organization comprised of the

major producers and distributors of motion pictures and television programs in the United States.

As discussed below, MPAA endorses the Commission's goal of facilitating access to television

for those with visual impairments, but urges the Commission to avoid any implementation of

mandatory rules for video description of video programming.

1

Imnlementation of Video Descrintion of Video Programming, FCC 99-353
(released Nov. 18, 1999) ("NPRM").

134448

I.    INTRODUCTION

      MPAA prefaces these comments with a statement of support for the goal of

enhancing the ability of Americans with visual disabilities to enjoy media of mass communication.

As noted in the NPRM, a large number of people in our society rely on television as an important

source of information on vital issues, as well as for entertainment. See NPRM fi 1 n. 1. MPAA
                                                           --,

. member companies not only support the objective of increasing the availability of video

programming to the visually impaired, they have voluntarily and successfully facilitated greater

access to entertainment programming for this population by making their products available for

video description in various formats. Currently, for example, over half of the more than 200

video described titles available to the public through WGBH's described home video service are

licensed by MPAA members, while Turner Classic Movies, a program channel supplied by a

member company to numerous multichannel video programming distributors, offers some ninety

described movie titles to its viewers.

      Despite the desirability of increasing the availability of video description, however,

mandatory rules for its implementation on television are not the appropriate means for addressing

this objective. As discussed below, if video description rules were implemented as proposed in

the NPRM, such regulations would (1) exceed the Commission's statutory authority, (2) violate

First Amendment protections of free speech, (3) pose serious problems in the copyright law arena,

(4) impose excessive social costs, (5) interfere with the competitive market for programming, and

(6) inflict highly impractical requirements on the program production process. Accordingly,

mandatory video description requirements should not be adopted.

3

II.   THE FCC LACKS STATUTORY AUTHORITY TO IMPLEMENT
    MANDATORY VIDEO DESCRIPTION.

Congress considered and speciJically rejected granting the FCC authority to

promulgate video description rules when it adopted final legislation regarding closed captioning

and video description. Thus, the FCC lacks authority to do so.
    The relevant statutory provision, Section 7 13 of the Communications Act,*

mandates separate and distinct courses of action for the FCC with respect to closed captioning

and video description. On the one hand, the law dictates that the Commission "shall prescribe"

regulations to provide closed captions for the hearing impaired. _ 713(b). In contrast, the

subsection addressing video description merely requires the Commission to "commence an inquiry

to examine the use of video descriptions on video programming . and report to Congress on its

findings," 5 713(f), an action completed by the agency in July, 1996.3 Had Congress desired

either to enact legislation mandating video description based on the FCC's findings, or to

explicitly authorize the Commission to adopt video description regulations, it could have done so

in the intervening three and one-half years.

     That it was never Congress' intent to provide the Commission with such authority

is demonstrated by the legislative history of Section 7 13. In the bill passed by the House, the FCC

was permitted (but not required) to adopt video description regulations4 But in conference, that

2

  47 U.S.C. 5 613, enacted as part of the Telecommunications Act of 1996.

3

   Video Accessibilitv Report, 11 FCC Red 192 14 (1996).

4

See H.R. 1555, 0 204(f): "Following the completion of such inquiry, the
Commission may adopt regulation[s] it deems necessary to promote the
accessibility of video programming to persons with visual impairments" (emphasis

4

provision was specifically stricken. 5

From this deliberate deletion, which the NPRM fails even to acknowledge, it is

apparent that Congress did not grant the FCC even discretionary rulemaking power in the video

description context, by contrast with closed captioning where it specifically ordered a

rulemaking. As the Supreme Court has declared, 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."7 Here,

where the two provisions are in the fame section of the statute and where the Conference Report

notes the deletion, the conclusion is inescapable that Congress has not authorized the FCC to

promulgate video description rules.*

(Continued)

   added); H.R. Rep. No. 104-204 at 115 (1995), renrinted in 1996 U.S.C.C.A.N.
   10, 83 (same).

5

   See H.R. Conf. Rep. No. 104-458 at 184 (1996), reprinted in 1996 U.S.C.C.A.N.
   124, 197 ("The agreement deletes the House provision referencing a Commission
   rulemaking with respect to video description.").

6

  &New York v. EPA, 852 F.2d 574, 578 (D.C. Cir. 1988) cert. denied, Maine v.
  EPA, 489 U.S. 1065 (1989) ("When Congress has intended to establish a
  requirement for direct EPA action it has said so."); Brown & Williamson Tobacco
  Corp. v. FDA, 153 F.3d 155, 162 (4ti Cir. 1998) cert. granted, - U.S. - 119
   S.Ct. 1495 (1999) ("We also note that ascertaining congressional intent is of
  particular importance where, as here, an agency is attempting to expand the scope
   of its jurisdiction.").

7

Gozlon-Peretz v. United States, 498 U.S. 395, 404-05 (1991), quoting Russell0 v.
United States, 464 U.S. 16, 23 (1983) (internal quotation marks omitted).

8   See Goncalves v. Reno, 144 F.3d 110, 132 (1"' Cir. 1998) cert. denied, 119 S. Ct.
   1140 (1999) (contrasting statutory language is "particularly telling" when it results
  from conference committee action resolving dispute in two versions of a bill).

Section 713's legislative history also suggests that Congress anticipated the

5

      In addition, if implemented as proposed, video description rules would affect

parties far beyond the scope of the FCC's more general statutory authority. Although the NPRM

I sets forth an enforcement plan that aims at distributors of television programming, all of whom

are subject to direct Commission regulation, the rule would substantially burden programming

producers such as the MPAA member companies, whose operations clearly fall outside of FCC

supervision. 9 Moreover, that burden is substantially greater for video description than for closed

captioning. Whereas captioning requires only production of a word-for-word transcript of a work

already in existence, video description mandates creation of an entirely new artistic work. Only

one set of accurate closed captions can exist for a given television program, but an infinite number

of video descriptions for the same program could be produced by different creators; possible

variations in the video description include script language, choice of timing for action

descriptions, and voice inflection and emotion conveyed by actors. Because the proposed rules

(Continued)

employment of assistive techniques such as closed captioning and video
description primarily during transitions to new technologies. See H.R. Rep. No.
104-204 at 113 (1995) reminted in 1996 U.S.C.C.A.N. 10, 81 (It is Committee's
"goal that access for people with disabilities be considered and pursued at the
outset of the development of the information technologies" to avoid retrofitting
expenses.) For this additional reason, the NPRM proposals, which concern soon-
to-be-obsolete analog technologies only, lack Congress' imprimatur.

9

See NPRM fiTI 23-24. Assuming that the FCC were authorized to promulgate
--,
video description rules, MPAA does not disagree that by holding distributors, not
producers, responsible, "there typically will be a single entity to which complaints
must be addressed, and there will be no need for tracking the entities responsible
for producing programs alleged to violate the rules." Closed Cantionina Order, 13
FCC Red 3272, 3286 (1998). Not only is a distributor-focused enforcement
approach more efficient, but also, as noted above, it is the only course of action

6

dictate the creation and performance of such works, they impact the writers, directors, actors,

producers, and all other artists involved in the production of video programming. Clearly, in this

respect the FCC has exceeded its limited jurisdiction over "communication by wire or radio"

under Section 2(a) of the Communications Act of 1934.

III.   MANDATORY VIDEO DESCRIPTION RULES COMPROMISE THE
    FIRST AMENDMENT.

      Even if the Commission had statutory authority to adopt video description rules,

its proposals run afoul of the First Amendment, because-the proposed rules compel speech and

are not content-neutral. Moreover, even assuming that providing the visually impaired with

somewhat greater enhancement of the television viewing experience were a compelling

governmental interest under applicable law, the Commission's proposals to serve that interest

sweep far too broadly to pass Constitutional muster. Compelled speech, if not content-neutral

and narrowly tailored to serve a compelling state interest, violates the First Amendment of the

U.S. Constitution."

(Continued)

available to the Commission because program producers' creative activities are
outside the scope of its jurisdiction.
See, e.g, Rilev v. National Federation of the Blind of N.C., 487 U.S. 781, 796-97,
108 S.Ct. 2667,2677 (1988) ("There is certainly some difference between
compelled speech and compelled silence, but in the context of protected speech,
the difference is without constitutional significance, for the First Amendment
guarantees `freedom of speech,' a term necessarily comprising the decision of both
what to say and what not to say.") (emphasis in original).

10

7

A.

Mandatory Video Description Would Compel Content-Based
Speech on Media Protected by the First Amendment.

      That the television programming which is the intended object of the rule is

I protected speech is an undisputed principle of First Amendment jurisprudence. As the Supreme

Court has affirmed, "[Blroadcasters are engaged in a vital and independent form of

communicative activity. As a result, the First Amendment must inform and give shape to the

manner in which Congress exercises its regulatory power in this area."" And since the earliest

days of communications regulation, Congress has barred the Commission from abrogating

television programming creators' and producers' freedom of expression on any medium regulated

by the FCC. See 47 U.S.C. 4 326 ("[N]o regulation or condition shall be promulgated or fixed by

the Commission which shall interfere with the right of free speech . . .").I2

      In contrast with closed captioning, requiring video description compels speech

from creators and producers because it forces alteration of their messages. Where closed

captioning simply reproduces, word for word, the existing sound track in visual form, video

description mandates inclusion of entirely new matter-an aural description of on-screen action

requiring substantive changes in the creator's message. As private individuals and entities,

creators and producers should be able to distribute and perform their works unaltered, without the

government forcing them to utter a message-however worthy-which they do not wish to

convey. a, u, Turner Broad. Svs.. Inc. v. FCC, 512 U.S. 622, 641, 114 S. Ct. 2445, 2458

11

12

a, a, FCC v. League of Women Voters, 468 U.S. 364,378, 104 S. Ct. 3 106,
3116 (1984).
See also Columbia Broad. Svs.. Inc. v. Democratic Nat'1 Comm., 412 U.S. 94,
110, 93 S.Ct. 2080,209O (1973).

   

8

(1994) (stating that government action requiring the utterance of a particular message

contravenes the essential First Amendment right to decide for oneself which ideas are deserving of

expression).

      Indeed, it can be concluded that Government usurpation of creators' and

producers' works to disseminate mandatory video descriptions is analogous to unconstitutional

use of a citizen's private property to convey a forced message. In Pacific Gas & Electric Co. v.

Public Utilities Commission,13 for example, the U.S. Supreme Court overturned a California utility

commission order requiring a private utility company to include a third party's opinions in a

newsletter it disseminated with its utility bills. The Court noted that based on the utility

company's ownership of the billing envelope, "Such forced association with potentially hostile

views burdens the expression of views different from [appellee's] and risks forcing appellant to

speak where it would prefer to remain silent."`4 Earlier, the Court established that a New

Hampshire driver's First Amendment rights were violated when a statute requiring the slogan

"Live Free or Die" to be displayed on his license plate converted his property into a "mobile

billboard' for the State's message. Woolev v. Mavnard, 430 U.S. 705, 715, 97 S.Ct. 1428, 1435

(1977).

Under First Amendment jurisprudence in the compelled speech context, speech

that is viewpoint-neutral is also protected. For example, the Supreme Court has explicitly

. rejected a claimed distinction between compelled statements of fact and compelled statements of

opinion as a basis for distinguishing between constitutional and unconstitutional burdens on

13

14

475 U.S. 1, 106 S.Ct. 903 (1986).
Id. at 18, 106 S.Ct. at 913.

9

speech. Riley, 487 U.S. at 797-98, 108 S.Ct. at 2678 (overturning a statute requiring public

disclosure of charities' financial information on compelled speech grounds). Even the compelled

use of an author's own name runs afoul of free speech rights: the decision of the author of

campaign literature to remain anonymous is protected speech, "like other decisions concerning

omissions or additions to the content of a publication.. . ." McIntvre v. Ohio Elections Comm'n,

514 U.S. 334, 342 (1995).

     The proposed video description rules are no different: they would dictate the

addition of audio narration of the visually-conveyed elements of creative works. And as such,

they are content-based. See Riley, 487 U.S. at 795, 108 S.Ct. at 2677 ("Mandating speech that a

speaker would not otherwise make necessarily alters the content of the speech. We therefore

consider the Act as a content-based regulation of speech.") (citing Miami Herald Publishing Co.

v. Tornillo, 418 U.S. 241, 256, 94 S.Ct. 283 1, 2839 (1974)). Indeed, the proposed requirements

would inevitably involve the Commission in a quagmire of content regulation, since in order to

implement a regulatory regime for video description, the FCC will need to resolve such questions

. as how much of the action must be described, or how long each segment of description must be.

B.

The Commission's Video Description Proposals Are Not Narrowly Tailored
to Serve a Compelling State Interest.

     As noted, where content-based speech is compelled, it is unconstitutional unless

narrowly tailored to serve a compelling governmental interest. The Commission's proposals for

mandatory video description neither address a compelling state interest, nor are narrowly tailored

to serve that interest.

                                                              ._

10

1.

The FCC Has Failed to Articulate a Compelling Governmental Interest
Requiring Video Description.

      The FCC has not met its burden of showing that requiring video description as a

means to enhance the ability of the visually disabled to benefit from television implements a

compelling state interest. The reality is that, notwithstanding its importance as a communications

medium in the lives of most Americans, television is, by definition, quite literally a primarily visual

technology. Because visually impaired people cannot see without at least some degree of

difficulty, their enjoyment of television can never be the same as that of those with unimpaired

vision. Carried to its logical extreme, a regulation promulgated to enable the visually disabled to

"hear what they cannot see" on television see NPRM 7 5, is analogous to a mandate that radio
                                     ,--,

. transcripts be made available to the hearing impaired.

     At the same time, the visually impaired are not currently denied access to television

programming: by and large, they already tune in to significant amounts of television

unaccompanied by video description. Ninety-seven percent of the visually disabled watch

television at least two or three times a week (compared with 95% of the general population);

indeed, the visually impaired tune in to an average of 24 hours of television per week, only five

fewer hours than the general public. l5 Thus, when the visually impaired experience video

description, they explain its benefits not as enabling access to a medium previously unavailable to

them, but as enhancing the viewing experience, the learning experience, and the social experience

15

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) ("Who's Watching?").

11

of television and video. l6 In contrast, the inability to access telephones and other

telecommunications services "can be life-threatening in emergency situations, can severely limit

educational and employment opportunities, and can otherwise interfere with full participation in

business, family, social, and other activities."i7

      In addition, the fact that television programming is primarily intended for private

in-home recreational use diminishes any claim that enabling somewhat more satisfying enjoyment

' of it constitutes a compelling state interest. Again, in contrast, the affirmative obligations of the

Americans with Disabilities Act of 1990," which require employers and public facilities to make

"reasonable accommodations" and "reasonable modifications" for persons with disabilities, lg

reflect a much more compelling interest, because of their impact on the ability of the disabled to

earn a livelihood and to utilize commercial places of business open to the general public. Finally,

viable alternatives to television, such as radio and described home videos, currently provide some

information and entertainment services to the visually impaired, further suggesting that any

governmental interest in encouraging the dissemination of such information is not compelling.

      Clearly, the Supreme Court frowns on public protectionism when used to justify

First Amendment infringements: in Riley, for example, the Court rejected the "paternalistic

16

17

Id. at Table 5 p. 25.
Implementation of Section 255 of the Telecommunications Act of 1996, WT

Docket No. 96-198, Notice of Proposed Rulemaking, 13 FCC Red 20391, 20394
(1998).

18

19

42 U.S.C. $5 12101 et seq.
42 U.S.C. $6 12112(b)(5), 12182(b)(2)(A)(ii).

12

premise" of North Carolina's attempts to protect both charities and their donors, noting, "The
, First Amendment mandates that we presume that speakers, not the government, know best both

what they want to say and how to say it." Riley, 487 U.S. at 790-91, 108 S.Ct. at 2674.

     In addition, contrary to an implicit assumption underpinning the Commission's

position in the NPRM, any perceived inability of the market to address the need for video

description is not a justification for infringing on programming creators' and producers' freedom

of speech. Although not explicitly stated, the NPRM appears premised on a belief that, in the

absence of regulatory action, programming distributors will fail to respond to the visually

impaired community's demand for video description. However, the Supreme Court has clearly

rejected this justification for an otherwise constitutionally dubious restriction on speech. Turner

Broad. Svs.. Inc., 512 U.S. at 640, 114 S.Ct. at 2457-58.

     Finally, the FCC's attempt to "piggyback" on the compelling state interest in

protecting children is fundamentally flawed. Paragraph 7 of the NPRM emphasizes video

description's "significant potential to capture the attention of learning disabled children," despite a

lack of evidence to that effect, In addition, the First Amendment jurisprudence specifically

applicable to protecting children applies only to regulations placing limitations on indecent

broadcasting. See Reno v. ACLU, 521 U.S. 844, 866-67, 117 S.Ct. 2329,2342 (1997)

(discussing the scope of the Supreme Court's decision in FCC v. Pacifica Foundation, 438 U.S.

726, 98 S.Ct. 3026 (1978)). B ecause the proposed video description rule is unrelated to
indecency, because it would compel speech rather than place limits on it, and because the FCC has

. not demonstrated that disabled children will benefit from video description, the fact that the state

may have a compelling interest in protecting children from indecent material is entirely irrelevant

13

to the question of the proposed rule's constitutionality.

2.

The Proposed Rules Are Not Narrowly Tailored to Implement the Asserted
Primary Governmental Interest.

     Even assuming arguendo that enhancing the ability of the visually impaired to

enjoy television is a compelling state interest, the proposed video description rules are not

narrowly tailored to achieve this stated goal. For example, the Commission would like to

implement video description by mandating the service in children's and prime time programming,

despite the fact that the expressed television preferences of the blind and visually disabled show

little demand for the former, and no necessary link to the latter. To the contrary, since the

visually disabled tend to be older and retired, 2o they are more able than the general public to view

non-prime time programming.

      It also appears that the Commission did not consider less broad or less intrusive

means of accomplishing the goal of increased access to television for the visually disabled. As

discussed below, the rule is drawn so broadly that its implementation would substantially hinder

any foreign language children's or prime time programming via the Secondary Audio
. Programming ("SAP") channe121 Most troublingly, the NPRM implies that broader, perhaps

limitless implementation will be required later. In contrast, even the actions mandated by the

Americans with Disabilities Act of 1990, with its arguably compelling goal of eliminating

discrimination against the disabled in the workplace and in places of public accommodation, are

20

21

See "Who's Watching?' at Chart 1 pp. 6-7.

Less burdensome solutions, such as an incentive-based system providing tax breaks
for providers of video description, were apparently never considered.

14

narrowly tailored to require only "reasonable" accommodations and modifications.22

IV.   MANDATORY VIDEO DESCRIPTION WOULD VIOLATE U.S.
    COPYRIGHT LAWS AND BINDING INTERNATIONAL TREATIES.

      A mandatory video description system, however well-intentioned, would also be

contrary to current U.S. copyright law, and to international trade and copyright treaties to which

the United States is bound. Copyright and related contractual issues act as a bar to imposing a

mandatory video description system on copyright right holders.

      U.S. copyright law grants exclusive rights to copyright owners "to do or to

authorize" the reproduction, distribution, adaptation, public display and public performance of a

work. 17 U.S.C. 6 106. Under U.S. copyright law, the producer of a motion picture or television

program is ordinarily the copyright owner under the "work made for hire" doctrine.  17 U.S.C.

5 101 (definition of a "work made for hire"). The creation of a video description as envisioned in

the NPRM invokes the producers' exclusive rights of reproduction, adaptation, distribution and

public performance in the original audiovisual work. As such, under federal copyright law the

making of a video description can only be undertaken by or with the consent of the producer.

That is because only the producer, as the copyright owner, can make "or authorize" others to

make a new copyrighted work, which is the video description, based on a movie or television

program.

22

See 42 U.S.C. $5 12112(b)(5), 12182(b)(2)(A)(ii).

15

A video description consists of portions of the original screenplay or teleplay

(dialog, background descriptions, and set directions) as well as new descriptive material recorded

and separately broadcast for the benefit of the blind and visually impaired. The exclusive rights of

the producer of the original audiovisual work come into play as follows: First, the creation of a

video description entails the making of a new derivative work (adaptation) that enjoys separate

copyright treatment apart from that of the original audiovisual work.23 Second, copies -- that is,

renroductions of the original audiovisual work and its underlying material -- must be utilized to

. create the video description. The video description must then be further copied onto a broadcast-

quality medium such as one-inch videotape, and distributed in that form to broadcasters, cable

systems or satellite providers, to ultimately be publicly performed via television, cable, satellite or

other delivery system.

The NPRM's proposal for video description, however well intended, would, if

adopted, essentially entail amending the copyright owner's exclusive rights. The Commission has

no authority to do this; only Congress can amend the Copyright Act. Thus, absent an amendment

to the U.S. Copyright Act by Congress, the Commission cannot mandate that copyright owners

make, distribute, and/or publicly broadcast video descriptions. The Commission cannot require a

copyright owner to do so, and certainly cannot require or authorize a distributor (licensed from

23

Our filing does not address the very complicated question of the copyright law
treatment of a video description, that is, as either a new soundtrack of the existing
audiovisual work, or alternatively, as a sound recording. See 17 U. S.C. 6 101
(definition of an "audiovisual work" including "accompanying sounds" and
definition of a "sound recording" that does not include "the sounds accompanying
a motion picture or other audiovisual work"). These definitional issues are crucial
for certain domestic and international licensing and rights matters, but are not
pertinent to this FCC filing.

16

the copyright owner) to do so without the right holder's consent. Neither can the Commission
grant exceptions to these exclusive statutory rights of producers no matter how well intended the
purpose may be. The Copyright Act provides narrow and explicit exceptions to the exclusive

. rights of copyright owners. For example, there are narrow exceptions for so-called "fair use" of
portions of copyrighted material. 17 U.S.C. 5 107. In addition, there are so-called "compulsory

licenses" for activities such as the cable and satellite retransmissions that permit users of certain

programs to retransmit them without consent of the copyright owners, sometimes subject to

payment of royalties. 17 U.S.C. $6 111, 119 and 122.

     Perhaps a more relevant example is Section 121 of the Copyright Act, that permits
authorized nonprofit and governmental organizations to reproduce and distribute previously
published nondramatic literary works in specialized formats for the use of blind or other persons
with disabilities. In the case of Section 121, Congress adopted this carefully tailored provision
upon negotiation and agreement with the relevant parties including the copyright owners (in this
case, book publishers) and organizations representing the blind and other persons with disabilities.
A video description exception to the Copyright Act, if considered by Congress, would best be
adopted upon agreement of the producers (and possibly creative artists), as well as broadcasting
organizations and representatives of the blind and other persons with disabilities. Note that the
provisions of Section 121 do not require that the copyright owners create such new works, but
rather grant very specific and narrow rights to nonprofit and governmental organizations to do so.

     In addition to these serious domestic copyright concerns, any narrow exceptions to

the exclusive rights of copyright owners, including compulsory licenses, provided under U.S.
copyright law ( 17 U. S. C. 55 107- 122) must conform to international obligations under trade

.-__-------- ---

17

agreements and copyright treaties. The reason for this is that foreign motion picture and TV

producers license their works for programming and distribution in the United States; they have

rights in the U.S. pursuant to these international treaties. Any imposition of copyright

restrictions by the Commission or the Congress can only be imposed on these foreign owners or

their works if such provisions are in compliance with these treaties. For example, the U.S. is a

member of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act,

1971) effective March 1, 1989, and the World Trade Organization Agreement on Trade Related

Aspects of Intellectual Property Rights ("WTO/TRIPS") effective January 1, 1996. In addition,

there are numerous bilateral copyright agreements that track exceptions to the exclusive rights of

copyright owners in the United States and the other contracting country.

      The Berne Convention (Article 9(2)) and the WTO/TRIPS Agreement (Article 13)

allow narrow exceptions, and even fewer compulsory licenses, to the exclusive rights of copyright

owners. The Berne Convention specifies that any limited exceptions to the rights of copyright

owners shall be "a matter for legislation in the countries of the [Berne] Union." The Berne

Convention and the WTO/TRIPS Agreement establish a tripartite test permitting only narrow

exceptions to the rights of copyright owners that, in particular, do not "unreasonably prejudice the

legitimate interests" of such authors or copyright owners. Having the Commission or Congress

mandate that the producer create a derivative work, here, a video description, would be

unprecedented in international copyright law. It could violate the U.S. government's obligations

under Berne and the WTO/TRIPS Agreement. In the case of the WTO/TRIPS Agreement,

disputes between member countries would have to be resolved under the WTO Dispute

Settlement procedures.

18

      Even permitting not-for-profit third parties to create such works absent consent by

the producers would need to be very narrowly crafted by Congress to stay within the acceptable

bounds of the exceptions permitted under these international agreements. But this is a task for

Congress.

      The MPAA believes that its ongoing voluntary system of video description

services avoids these domestic and international copyright concerns and would be strongly

preferable to the imposition of a mandatory video description system by the Commission or

Congress, especially one that is likely to breach or at best stretch the bounds of existing

international agreements that impact the rights of domestic and international copyright owners in

over 135 nations.

      One other copyright consideration bears note. Whether created by the producer of

the original audiovisual work, or under authority of such producer, the video description should

be clearly owned by the producer. As such, to maximize the legal and evidentiary benefits for the

protection of the video description, any third party creator of it should be required to register it

with the U.S Copyright Offrce in the name of the copyright owner (the producer of the original

motion picture or television work).

      In addition to statutory copyright restrictions prohibiting mandatory video

description, there are important contractual agreements between producers and licensees that

would need to be revised to comply with any video description regime - even a voluntary one.

For example, the practice in the motion picture industry for producers and cable and broadcast

television programmers and distributors is to contract under 3- to 4-year advance agreements.

Before imposing any video description service, such arrangements and other contractual

19

. agreements would have to be exempted (i.e., grandfathered) to avoid performance, warranty,

representational, and other contractual obligations.

V.   THE COSTS OF THE PROPOSED VIDEO DESCRIPTION RULES
   SUBSTANTIALLY OUTWEIGH THEIR POTENTIAL BENEFITS.

Considering the proposed video description rules from the perspective of a cost-

benefit analysis, it is clear that the proposals' benefits do not justify their costs.

A.   The Benefits of Mandatory Video Description Would Be Limited.

      The population of primary potential beneficiaries of the Commission's video

. description proposals-the blind and visually disabled community-is relatively small. A research

institute relied upon by the U.S. Government estimates the number of Americans with visual
disabilities causing some limitation in social or other activity at 1.294 million.24 The Social

Security Administration's Office of Research Evaluation & Statistics quoted an even lower

number of 132,935 people receiving social security benefits based on disorders of the eye, as of
December 1998 (the most recent figures available).25 As for children, the University of California

at San Francisco's Disability Statistics Center estimates that only 24,000 primary and secondary

students have visual impairments.26 At most, according to a publication of the American

Foundation for the Blind, the total number of blind and visually impaired Americans comprises 2.6

percent of the U.S. population.27

24

M. LaPlante, Health Conditions and Impairments Causing Disability, Disability
Statistics Ctr., Univ. Cal. San Francisco, Abstract 16, Table 2 (Sept. 1996)
available at <httn://www.dsc.ucsfedu/UCSF/pub.taf? UserReference
=24B2F44 16A5FBAF3BC54DB4C& fimction=search&recid=62&arow=l>. The

20

     In addition, not all of the visually impaired can make use of video description.

Because no law mandates the production of television sets capable of receiving the SAP channel,

a great number of the visually disabled may not have access to video description even if it is

provided as proposed.2"

Finally, the FCC's claim that secondary audiences for video described

programming exist is purely speculative. The NPRM contemplates learning-disabled children29

and unknown others3* as potential beneficiaries of the proposed rules, despite little evidence that

described video programming might benefit such individuals. The source cited by the

Commission for the proposition that video description reinforces the information comprehension

skills of learning-disabled children, a letter from WGBH (one of only two producers of video

description), concedes that "little work has been done in the field of video description for students

(Continued)

U.S. Dept. of Education, at <www.ed.aov>, provides links to the University of
California at San Francisco website.

25

26

Telephone conversation with Don Ferone, U.S. Sot. Sec. Admin., Office of
Research Evaluation & Statistics (Jan. 6, 2000).
H.S. Kaye, Education of Children with Disabilities, Disability Statistics Ctr., Univ.
Cal. San Francisco, Abstract 19 (July 1997) available at
<httt>://www.dsc.ucsf.edu/UCSF/pub.taf? UserReference=24B2F4416A5FBAF3B
C54DB4C& t?mction=search&recid+2&arow+ l>.

27

28

29

30

"Who's Watching?' at Table 1 p. 5.
According to the Consumer Electronics Manufacturers Association, as of January
1998, just 59% of TV sets sold had stereo capability, although most of these were
SAP-equipped. NPRM, fi 12, citing NCAM Letter at 12. In contrast, pursuant to
federal law, all television receivers with screens of 13 inches or larger must have
the capability of displaying closed captioning.
NPRM,n7.
Id.,qp

21

with learning disabilities," and notes that further research is needed to ascertain any potential

benefits."' The Commission's argument that other persons without disabilities can benefit from

described video programming is even more specious, The only other potential secondary

audience members identified by the Commission are "viewers who are doing several things at

once, who need to attend to something during a program, or who leave the room during a

program."32 Such speculative, marginal benefits hardly justify regulations that compromise

federal law, international treaties, and the First Amendment.

      Furthermore, the duration of any of the proposed rules' actual benefits would be

short, since they would apply only to analog television.33 Because the transition to digital

television is scheduled to be completed by 2006, the only benefits that can possibly accrue from

analog implementation of video description are finite and short-term. Heavy investment in video

1 description distribution via analog is a questionable use of valuable resources. In fact, the FCC is

already seeking comment on video description obligations in the digital era: see Public Interest

Obligations of TV Broadcast Licensees, Notice of Inquiry, MM Dkt. No. 99-360 (TfT 24-28) (rel.

Dec. 20, 1999) (inter alia, inviting comment on "how the Commission could encourage DTV

broadcasters to take advantage of the enhanced capabilities of the technology to provide more

video description.").

31

32

33

WGBH Report on Video Description (NCAM Letter) at 6-7 (Nov. 5, 1998).
NpRM,~8.
Id., 122.

- -.          _- .."        I_ .._ .". - _I ..-- ^"-.--"l ._-.-

22

B.   The Social Costs of Video Description Are High.

In addition to the limitations inherent in these benefits, the proposed rules' costs to

programming creators, producers, and distributors, as well as to society at large, are great.

An obvious social cost of mandatory video description is its monopolization of the

SAP channel during any time slot in which it is implemented. By limiting the editorial discretion

of programming providers and foreclosing the use of SAP for other purposes, the proposed rules

impose substantial, quantifiable costs on society. Rather than allowing programming directors to

analyze and respond to the needs of the communities they serve, the rules as proposed would

dictate that the visually impaired be the only beneficiaries of the SAP channel. MPAA member

companies currently utilize SAP for a variety of other purposes, including providing foreign

language translations of programs. Such service is provided primarily in Spanish,34 for

programming including sporting events, children's television, and movies on subscription cable

channels. Video description rules would eliminate such use, initially insofar as it consists of prime

time and children's programming, but ultimately on a far broader basis.

The Commission should refrain from interfering with the editorial decision-making

, of programmers, which necessarily entails ascertaining the needs of a given community and

34

The Spanish-speaking population of the United States was estimated at 17,339,172
in 1990, according to the Census Bureau. See
<www.census.gov.population/www.socdemo/lang-use.html> at Table 5. Not only
do Spanish speakers in the U.S. already far outnumber the visually impaired, their
numbers are also likely to grow faster over the next half-century. See J. Day,
Population Projections of the United States by Age, Sex, Race, and Hispanic
Origin: 1995 to 2050 at 1, 7 (Feb. 1996) available at
<http://www.census.gov/prod/l/pop/p.25-1130/> (predicting that Hispanic
population's proportion of the American populace will steadily increase.).

23

providing the audience with the programming that best serves its needs. Programming providers

are in the best position to accurately evaluate such needs, and should therefore be permitted the

necessary leeway to utilize the SAP channel for video description of some programs, while using

it for Spanish, other foreign language, or alternative programming in other contexts.

VI.   THE FCC SHOULD REFRAIN FROM INTERFERENCE WITH THE
    COMPETITIVE MARKET.

     In addition, should the FCC impose video description on program providers, such

regulation would directly contravene its long-held goal of forbearance from interfering with the

workings of the competitive marketplace.

A.

Mandatory Video Description Would Create Significant Market
Distortions.

     By dictating which of competing groups (i.e., the visually impaired instead of, for

example, Spanish speakers) will receive the benefit of SAP channel use, the proposed regulations

would interfere with market forces of supply and demand. In an unregulated market, if more

Spanish speakers than Korean speakers in a given viewing area wish to see a football broadcast,

programmers will provide translations via SAP in Spanish rather than Korean. Similarly, if more

blind or visually impaired persons than Spanish speakers wish to see holiday specials,

programmers will allocate the SAP channel to video description during those programs. Not only

do supply-and-demand mechanisms provide an effective means for determining audience

preferences for SAP programming, they also efficiently maximize the benefits of the SAP

^.___l__l . ..__ -.-_ .-_..   ---.-     __ ..-.. -_-__-,--__-_._..~-~-~..~

24

channel-an extremely limited resource. The FCC should not interfere with such market forces

by enacting a rule that inhibits their operation.

     One additionally troubling aspect of the NPRM is its focus on children's and prime
time programming despite the lack of evidence that the audience for video description demands
such programming.35 Probably because a large percentage of the visually disabled population is
comprised of the elderly,36 respondents to a survey of which television genres the visually
impaired would prefer to be described indicated that they wanted access to programming in the
' following order of preference: (1) dramas or mysteries, (2) nature or science, and (3) news and

information.37 Within these three top choices, only dramas are certain to appear within the prime
time programming period affected by the proposed rules. In addition, Turner Classic Movies, a
major provider of much of the video-described programming that has been provided via television
thus far, has shown video-described movies primarily during non-prime time hours. This, too,
likely reflects the fact that a large proportion of the visually impaired are elderly,38 and thus more

likely to be able to watch television during the day.

As to children, the WGBH list of currently available video-described titles, which

in large part reflects the preferences of the proposed rule's beneficiaries because their requests

35

36

37

38

See "Who's Watching?' at Table 6 p. 26.

Id. at Chart 1 pp. 6-7.
Id. at Table 6 p. 26.
Id. at Chart 1 pp. 6-7.

25

determine which films are selected to be described, is made up ofjust over 200 titles, of which

only roughly 20% are aimed at children.39 Thus, even assuming that the demand for children's

video-described television matches that for described home videos (which may not be the case),

. the Commission's tentative decision to require video description of children's programming

appears more paternalistic than market-driven.40

B.

The Market Is Adequately Responding to the Demand for Video
Description.

      Although many MPAA member companies have cooperated with efforts to

increase video description availability by providing their titles for the described home video

market4' based on home video sales to date, demand is not great. For example, of 25 films

licensed by one MPAA member company to WGBH for video description in the home video

format, fewer than 15,000 units were sold over about three years, while a second company sold

`fewer than 14,000 titles over a recent four-year period. Another studio provided nine titles over

the past three years to WGBH for describing; as of a few months ago, total royalties earned on

sales of these titles barely reached five figures. Were demand for described video programming

high, home video sales should reflect that demand, since WGBH disseminates its title list widely,

no special equipment is needed to view described home videos (they have open description), and

39

40

41

See WGBH's website, at <http://www.wgbh.orgfwgbhlaccess/dvs/
dvshvcatalog.html>.
As previously noted, there also is little evidence that learning-disabled children
would benefit from exposure to described video programming.
As stated above, more than half of the titles currently offered by WGBH are videos
provided by MPAA member companies.

,-.._ _.. 1  _.-_-.-.__-   ..-""ll_ ..-.. ,-     I~ _.-__ .._ _-.---1-

26

the visually disabled own VCRs and patronize video stores at the same rates as the general

population.42

     The list of videos available from WGBH substantially correlates to the genre

preferences expressed in the "Who's Watching?" survey,43 again suggesting that the FCC's

proposed focus on children's and prime time programming ignores marketplace realities. Because

programmers and providers have a commercial interest in maximizing the size of their audiences,

if left to their own devices they will ensure that consumers of video description have access to the

programs that they most prefer.

C.

The FCC's Plan to Deny Program Providers the Right to Exercise
Editorial Discretion Regarding Which Video Programming Should Be
Described Exacerbates the Inappropriateness of Mandatory Video
Description.

      As noted, the Commission proposes initially to require that two types of video

programming, children's and prime time programming, be described, notwithstanding that the

most efficient mechanism for responding to the needs of the visually impaired community for

video description is allowing programming providers the freedom to respond to demands for such

service. Such providers are better able to judge the needs of the communities they serve,

including the particular needs of the local visually impaired community, than the Commission. It

_ is conceivable that the viewing preferences of the visually disabled in a viewing area encompassing

many retirement communities in Florida, for example, differ considerably from those of their

42

43

"Who's Watching?" at Table 2 p. 9. Described videos are also available in many
public libraries.
See sum-a n. 15.

27

counterparts in New York City, rural areas, or elsewhere. For this reason, the Commission's
proposals are f%rther flawed because editorial discretion to determine what programs in which

time slots best fulfill audience needs has not been preserved.

VII.  IMPLEMENTATION OF VIDEO DESCRIPTION AS PROPOSED IS
    IMPRACTICAL.

     Finally, if the Commission were to determine it will implement video description

rules, numerous obstacles would pose substantial problems both for the agency in crafting rules,

and for producers and distributors in attempting to comply with them.

A.

The Intended Parameters of the Term "Video Description" Are
Unclear.

     Should the Commission decide to implement mandatory video description

notwithstanding the statutory, constitutional, and other impediments MPAA has noted, it must

first refine its definition of video description, since unlike closed captioning, the term encompasses
more than rote transcription. What and how much must be described? Are a few words enough?
What if there are only one or two pauses in the existing dialog? These and similar questions

would need to be addressed - yet would further entangle the FCC in impermissible content
regulation - before those subject to any requirements could begin to comply with them: as the

Commission is aware, clear standards are a prerequisite to any successful enforcement regime.

28

B.   Not All Prime Time Programming Is Suitable for Video Description.

      MPAA also notes that the Commission has failed to articulate exemptions and

waivers of its proposed rules for types of programming that do not readily lend themselves to

aural descriptions of on-screen action, including live programming, situation comedies, sports,

news, musical performances, and short-form programming such as commercials and interstitials.

MPAA believes that if rules are adopted, absolute exemptions should be made for these

categories, due to the infeasibility of providing video descriptions in these formats.

      Programming in which live action is transmitted, including news and sports, poses

the most insurmountable obstacles to video description. It simply is not practicable to add video

descriptions to programs as they are transmitted live, given the three- to five-day normal

turnaround time needed to describe video programming. Situation comedies, the most likely of

these program types to appear in a network prime time lineup and thereby become subject to the

rules if they are adopted as proposed, generally contain fast-paced dialogue that prohibits video

description for lack of time between lines. Programming in which the primary focus is music,

including music videos, would be subverted if video description were added to obscure the

underlying musical performance. The NPRM also fails to address how other types of

programming content, such as home shopping and infomercials, should be treated under the rules.

29

C.

The Commission May Fail to Appreciate the Complexity of the Video
Description Process.

      MPAA further urges the Commission to consider the practical difficulties inherent

in creating video described programming. Unlike closed captioning, video description production

involves the creation of a new script, shipping the underlying work to a video description

. production site while ensuring its safety along the way, hiring actors or narrators for the voiced

description, rehearsing the performance, producing the description, mixing the described audio

track into the underlying work, creating a submaster, shipping the described submaster to the

duplication facility, and eventually returning the described master to the producer. Because of the

numerous steps involved, the production process is extremely lengthy, and affected programming

currently in production would not be able to air as planned. Video description production would

push programs' release dates back substantially, making the transition to compliance with the rule

a very difficult one, as providers scramble to provide new programming while adhering to the new

regulations.

30

CONCLUSION

      The Commission should not implement its proposed video description rules. Not

only would the FCC exceed its statutory authority under 47 U.S.C. 5 613, but mandatory video

description would compromise programming producers' freedom of speech under the First

Amendment by compelling the addition of messages based on their content. Providing the

visually impaired with somewhat greater enhancement of the television viewing experience is not

a compelling state interest, and the Commission's proposals to address its asserted interest are far

too broad. In addition, the proposed video description rules are incompatible both with U.S.

copyright law, and with U.S. obligations under international trade and copyright treaties.

Moreover, the potential benefits of the rule are substantially outweighed by its costs, in part

. because the blind and visually-impaired community comprises a relatively small segment of the

U.S. population, and because the television industry's conversion to digital technology is

imminent, Imposition of video description requirements would also substantially interfere with

the competitive market for television programming, which is responding well to the expressed

programming preferences of the visually disabled. Furthermore, as proposed, the video

description rules would cause serious logistical problems for producers and distributors

attempting to implement them. For these reasons and the others set forth herein, mandatory rules

for video description are not appropriate.

31

RespectfUlly submitted,

February 23,200O

THE MOTION PICTURE
ASSOCIATION OF AMERICA, INC.

By: `&a ti - /.ftA&
  Barbara K. Gardner
  Sarah R. Iles

Leventhal, Senter & Lerman P.L.L.C.
2000 K Street, N.W.
Suite 600

Washington, DC 20006- 1809
(202) 429-8970

Eric J. Schwartz

Smith & Metalitz, L.L.P.
1747 Pennsylvania Avenue, N. W.
Suite 825

Washington, DC 20006-4604
(202) 833-4198

Its Attorneys