In the Matter of
Implementation of
Video Description of
Video Programming
1
>
>    MM Docket No. 99-339
>
)
>
          COMMENTS OF THE
THE NATIONAL ASSOCIATION OF BROADCASTERS
NATIONAL ASSOCIATION OF
BROADCASTERS
1771 N Street, NW
Washington, DC 20036
(202) 429-5430
Henry L. Baumann
Jack N. Goodman
Jerianne Timmerman
Arthur W. Allison III
Kelly T. Williams
NAB Science and Technology
February 23,200O

Table of Contents
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
The Commission Lacks Statutory Authority To Prescribe Rules
Requiring The Provision Of Video Description Services . . . . . . . . . . . . .
A.
The Language of Section 713(f) Only Authorizes the
Commission to Conduct an Inquiry and Report to
Congress on Video Description. . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . .
B.
The Legislative History of Section 713(f) Also Shows that
Congress Did Not Intend the Commission to Prescribe
Mandatory Video Description Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
A Comparison of Section 713(f) on Video Description to
Other Sections on Closed Captioning Shows that Congress
Intended Disparate Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D.
Other General Provisions of the Communications Act Do
Not Authorize the Commission to Prescribe Video
Description Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E.
Given the Constitutional Implications of Mandating Video
Description Services, an Overly Broad Reading of the
Commission's Statutory Authority in this Area Must Be
Avoided. . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II.
Sound Policy Reasons Also Militate Against The Adoption Of
Mandatory Video Description Rules, Particularly In The
Analog Environment . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
The Commission Has Underestimated the Technical
Difficulties and the Costs Associated with Providing
Described Programming in the Analog Environment... . . . . . .
1. The Origination Centers and Distribution Systems
of the Networks Were Generally Not Designed to
Support Three Channels of Audio.. . . . . . . . . . . . . . . . . . . . . . . . . .
2.  The Studio and Plant of Local Television Stations
Were Generally Not Designed to Support More
Than Two Channels of Audio.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
4
6
7
10
13
13
15
17

B.
To the Extent that "Closed' Video Description
Requirements Are Adopted, Other Important Uses of
the SAP Channel Will Be Foreclosed in an Analog
Environment.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
C.
Given the Limitations of Analog Technology and the
Current Transition to Digital Broadcasting, the
Commission Should Focus on Encouraging the
Production of DTV Equipment that Fully Supports
Video Description. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . .
21
D.
Mandating the Provision of Described Programming
Raises Additional Legal and Practical Complexities,
Even in the Digital Environment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
E.
The Commission Has Not Yet Realistically Assessed the
Costs and Benefits of its Proposed Video Description
Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . .
26
III.   Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     28
Appendix
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               Executive Summary
   The National Association of Broadcasters ("NAB") submits these comments in
response to the Notice ofProposed Rulemaking seeking comment on proposals for the
introduction of video description in the programming of major market television
broadcasters and the larger multichannel video programming distributors. Although
NAB supports voluntary efforts to make television programming more accessible to
persons with visual disabilities, we believe that the Commission's proposals mandating
the provision of described programming in an analog environment should not be adopted.
   Most fundamentally, the Commission lacks the statutory authority to prescribe
rules requiring the provision of video description services. An examination of the
language, legislative history and structure of Section 713 of the Communications Act
shows that the Commission has only the authority to conduct an inquiry and issue a
report on the use of video description. Moreover, given the specific provisions of Section
713 explicitly addressing video description, the Commission cannot rely on other general
provisions of the Communications Act to authorize issuance of mandatory rules. NAB
also believes that the Commission's proposal to mandate the provision of described
programming raises the constitutional problem of forced speech.
   Beyond these statutory and constitutional difficulties with mandatory video
description rules, NAB identifies sound policy reasons militating against the adoption of
such rules, particularly in the analog environment. Specifically, NAB asserts that the
Commission has underestimated the technical difficulties and the costs for networks and
affiliated stations associated with providing described video programming in an analog
environment. NAB also points out that, to the extent that video description requirements

are adopted in an analog environment, other important uses (such as foreign language
audio) of the Secondary Audio Programming channel will be foreclosed. Given the
limitations of analog technology and the current transition to digital broadcasting, NAB
suggests that the Commission would be better advised to focus now on insuring that the
digital equipment currently being developed will fully accommodate video description.
This approach would also avoid requiring broadcasters to upgrade extensively their
analog distribution systems at a time when they are scheduled to be abandoned. The
Commission should not mandate such "orphan" investments, as would be required to
implement video description with analog technology.
   In addition to the technical challenges associated with providing described
programming in the analog environment, NAB explains that mandating the provision of
video description -- whether in an analog or digital environment -- presents other legal
and practical complexities. In particular, the Commission has underestimated the extent
to which mandated video description requirements will raise copyright questions and
necessitate significant changes to the entire network program production process. NAB
also believes that, prior to the adoption of any video description requirements in either an
analog or digital environment, the Commission must realistically assess the relative costs
and benefits of its proposed rules.
ii

           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
NATIONAL ASSOCIATION OF BROADCASTERS
The National Association of Broadcasters ("NAB")' submits these comments in response
to the Commission's Notice of Proposed Rulemaking in this proceeding.2 The Notice sought
comment on proposals for the introduction of video description in the programming of major
market television broadcasters and the larger multichannel video programming distributors.
Although NAB supports voluntary efforts to make television programming more accessible to
persons with visual disabilities, we question the statutory authority of the Commission to adopt
mandatory video description requirements and note the constitutional implications of doing so.
Sound policy reasons also militate against the adoption of mandatory video description rules,
particularly in the analog environment. Specifically, NAB believes that the Commission has
underestimated the technical difficulties and the financial and other costs associated with
providing described programming in an analog environment. Moreover, mandating the
' NAB is a nonprofit, incorporated association of television and radio stations and
broadcast networks which serves and represents the American broadcast industry.
`Notice of Proposed Rulemaking in MM Docket No. 99-339, FCC 99-353 (rel. Nov. 18, 1999)
("Notice").
. . .  __... ".._"I.. .-~_ll--.--.--- ,.-.- -~- -

provision of described programming - whether in an analog or digital environment - raises other
legal and practical complexities, especially in the program production process. In light of these
significant legal, technical and other difficulties presented by the Commission's proposal to
mandate the provision of video description services, NAB urges the Commission to refrain from
imposing its proposed mandatory video description rules, particularly during the current period
of transition from analog to digital broadcasting.
I. THE COMMISSION LACKS STATUTORY AUTHORITY TO PRESCRIBE RULES
REQUIRING THE PROVISION OF VIDEO DESCRIPTION SERVICES.
Section 305 of the Telecommunications Act of 1996 ("1996 Act") added a new Section
713, Video Programming Accessibility, to the Communications Act of 1934 ("Communications
Act"). 47 U.S.C. 0 613. This new Section 713 specifically addresses both the closed captioning
and video description of television programming. An examination of this section's text,
legislative history and structure shows that the Commission lacks the statutory authority to adopt
rules mandating the provision of video description services. Moreover, no other general
statutory provision affords the Commission the authority to mandate such services, given the
specific terms of Section 713. The constitutional implications of prescribing video description
requirements also militate against an overly broad reading of the Commission's authority with
respect to video description.
A. The Language of Section 713(f) Only Authorizes the Commission to Conduct an
Inquiry and Report to Congress on Video Description.
Section 713(f), entitled "Video Descriptions Inquiry," directs the Commission to
"commence an inquiry to examine the use of video descriptions" and "report to Congress on its
2

findingsTY The Commission did in fact report to Congress, as it had been directed, and Congress
has not seen fit to take any further action.4 Because Congress has spoken directly to the issue of
video description and has only authorized the Commission to conduct a study and report on its
findings, the Commission lacks statutory authority under Section 713(f) to prescribe rules
requiring programming distributors to provide video description services.
As explained by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843 (1984), an agency (and a reviewing court) "must give
effect to the unambiguously expressed intent of Congress." If, "employing traditional tools of
statutory construction," it is determined that Congress "had an intention on the precise question
at issue," that "is the end of the matter" because Congress ' "intention is the law and must be
given effect."5
"The first traditional tool of statutory construction focuses on the language of the
statute."6 As the Supreme Court has repeatedly emphasized, there is one "cardinal canon" in
interpreting a statute - a presumption "that a legislature says in a statute what it means and
means in a statute what it says there." Connecticut National Bank v. Germain, 503 U.S. 249,
253-54 (1992). In Section 713(f), Congress clearly addressed the issue of video description, and
3 47 U.S.C. 5 613(f). This section also states that the "Commission's report shall assess" various
technical, quality and legal standards and issues relating to video description.
4 See Report in MM Docket No. 95176,ll FCC Red 19214 (1996).
5 Chevron, 467 U.S. at 843 and note 9. The "traditional tools of statutory construction" used to
ascertain congressional intent include "examination of the statute's text, legislative history, and
structure, as well as its purpose." Bell Atlantic Telephone Companies v. FCC, 131 F.3d 1044,
1047 (D.C. Cir. 1997) (applying Chevron in a case challenging the Commission's construction of
a provision of the 1996 Act) (internal citations omitted).
6 Bell Atlantic, 131 F.3d at 1047. See also Bailey v. U.S., 516 U.S. 137, 144 (1995) (in
interpreting a statute, court must start with the language of the statute).
3

explicitly directed the Commission to "commence an inquiry" and "report to Congress" on the
use of video description. The Commission therefore "must presume" that its authority with
regard to video description is limited to conducting a study and preparing a report, as Congress
said, and does not extend to the adoption of mandatory rules. Germain, 503 U.S. at 253.
Moreover, because Congress "has directly spoken to the precise question" of video description
by adopting Section 7 13(f),7 and the express terms of that section only authorize the Commission
to conduct a study and issue a report, any effort by the Commission to construe Section 713(f) as
authorizing the adoption of mandatory rules would not merit judicial deference. See Chevron,
467 U.S. at 843 (an agency's construction of a statute entitled to deference by reviewing court
only if a statute "is silent or ambiguous with respect to the specific issue").8
B. The Legislative History of Section 713(f) Also Shows that Congress Did Not
Intend the Commission to Prescribe Mandatory Video Description Rules.
Beyond focusing on the language of the statute itself, examining legislative history is one
of the traditional tools of statutory construction used to determine congressional intent under
Chevron. See Bell Atlantic, 13 1 F.3d at 1047. An examination of the legislative history of
Section 7 13(f) shows that Congress did not intend for the Commission to conduct a rulemaking
with respect to video description.
As set forth in the Conference Report to the 1996 Act, the original Senate bill merely
required the Commission to undertake a feasibility study regarding the use of video description,
while the more detailed House provision directed the Commission to initiate an inquiry regarding
the use of video description and to report to Congress on its findings. In addition, the House
' Chevron, 467 U.S. at 842.
`Accord Bell Atlantic, 13 1 F.3d at 1047 (if Congress has expressed its intention as to a question,
then judicial deference to an agency's interpretation of a statute is "not appropriate").
4
_. _                                    _..  " "~,----- .-....- -

version provided that, following the completion of its inquiry, the Commission "may adopt
regulations it deems necessary to promote the accessibility of video programming to persons
with visual impairments."9 In the Conference Committee, it was agreed to adopt the House
provision with modifications as the new Section 713. Significantly, as noted by the Conference
Report, the agreement deleted the House provision referencing a Commission rulemaking with
respect to video description. See Conference Report at 184.
  This removal by the Conference Committee of language specifically authorizing a video
description rulemaking clearly shows that Congress did not intend for the Commission to adopt
regulations mandating the provision of video description services. Next to the language of "the
statute itself," a conference report is regarded as "the most persuasive evidence of congressional
intent" because it "represents the final statement of terms agreed to by both houses." Demby v.
Schweiker, 671 F.2d 507,510 (D.C. Cir. 1981)." In the case of Section 713(f), "the final
statement of terms agreed to by both houses" expressly excluded any reference to a Commission
rulemaking on video description. Moreover, as the Supreme Court has specifically recognized,
the deletion of a provision from a bill in conference committee "strongly militates against a
judgment that Congress intended a result that it expressly declined to enact." GulfOil
Corporation v. Copp Paving Co., Znc, 419 U.S. 186,200 (1974). Because Congress in the
Conference Committee to the 1996 Act "expressly declined to enact" a provision in Section
713(f) authorizing the adoption of regulations with regard to video description, it is impossible to
9 H.R. Rep. No. 458, 104th Cong., 2d Sess. 183 (1996) ("Conference Report").
lo Accord Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 835 (Sti Cir. 1996);
Resolution Trust Corporation v. Gallagher, 10 F.3d 416,421 (7%Jir. 1993); Davis v. Lukhard,
788 F.2d 973,981 (4* Cir.), cert. denied, 479 U.S. 868 (1986); Sierra Club v. Clark, 755 F.2d
608'61516 (8th Cir. 1985).
5
. .   _ .--... _._,. -..-  ._____- "_-."l-_-l-~--

contend that Congress intended the Commission to adopt rules mandating the provision of video
description services. Id.
C. A Comparison of Section 713(f) on Video Description to Other Sections on
Closed Captioning Shows that Congress Intended Disparate Treatment.
   A comparison of Section 7 13(f) addressing video description with Sections 7 13(a)-(e)
dealing with closed captioning shows that Congress intended the Commission to adopt rules
requiring the implementation of closed captioning only. Specifically, as discussed in detail
above, Congress directed the Commission in Section 713(f) only to commence an inquiry to
examine the use of video description and report to Congress. Conversely, in Sections 7 13(a)-(e)
addressing closed captioning, Congress directed the Commission to not only conduct an inquiry
and submit a report to Congress, but also to "prescribe such regulations as are necessary" to
"ensure" that video programming is accessible "through the provision of closed captions.""
   Given that Congress in the 1996 Act specifically directed the Commission to prescribe
regulations for the implementation of closed captioning, the absence of any language referring to
a rulemaking with regard to video description appears particularly significant. As the courts
have frequently stated, 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 purposefully in the disparate inclusion or exclusion."12 Thus, it must be
`I 47 U.S.C. $3 613(a)-(b). Congress also specifically directed the Commission to establish an
appropriate schedule of deadlines for the provision of closed captioning, and authorized the
Commission to permit certain exemptions from the closed captioning requirements. See 47
U.S.C. 89 613(c)-(e).
I2 Gozlon-Peretz v. U.S., 498 U.S. 395,404 (1991); INS Cardoza-Fonseca,
                                                 v.            480 U.S. 421,432
(1987); Russello v. U.S., 464 U.S. 16, 23 (1983); Independent Bankers Association of America v.
Farm Credit Administration, 164 F.3d 661,667 (D.C. Cir. 1999); Goncalves v. Reno, 144 F.3d
110, 129 (lst Cir. 1998), cert. denied, 119 S.Ct. 1140 (1999).
6

presumed that Congress acted "intentionally and purposefully" in excluding language from the
1996 Act authorizing a Commission rulemaking with regard to video description, while
including such language with respect to closed captioning. Moreover, such a "contrast in
statutory language is `particularly telling' when it represents a decision by a conference
committee to resolve a dispute in two versions of a bill." Goncalves, 144 F.3d at 132, citing,
FEC v. NRA Political Victory Fund, 513 U.S. S&95 (1994). Because (as discussed above) this
contrast in the closed captioning and video description provisions of Section 713 did ultimately
result from a conference committee decision resolving differences between the Senate and House
versions of that new section, Congress' intent to authorize a Commission rulemaking with regard
to closed captioning, but not with respect to video description, is plainly evident.
    D. Other General Provisions of the Communications Act Do Not Authorize the
   Commission to Prescribe Video Description Rules.
   As discussed in detail above, an examination of the language, legislative history and
structure of Section 713 demonstrates that the Commission lacks the statutory authority to adopt
rules mandating the provision of video description services. Although Section 713(f) is the only
provision of the Communications Act cited in the Notice that specifically addresses video
description, the Commission identified numerous other, general statutory provisions as providing
authority to adopt the proposed video description rules.13 NAB disagrees with this position.
"It is a basic principle of statutory construction that a statute dealing with a narrow,
precise, and specific subject is not submerged" by another "statute covering a more generalized
I3 For instance, the Notice cited Sections 1, 2(a) and 4(i) of the Communications Act, which
generally define the Commission's purpose, jurisdiction and powers. The Commission also
relied upon several sections of the Communications Act (such as 303(r), 309(a), 307(c)(l) and
3 10(d)) that include the "public interest, convenience and necessity" standard in various
contexts. The Commission further noted a general congressional preference for the increased
7

spectrum," regardless of the priority of enactment. Radzanower v. Touche Ross & Co., 426 U.S.
148, 153 (1976). Because Section 713(f) deals solely with the "narrow, precise, and specific
subject" of video description, its terms cannot be "controlled or nullified" by other, more general
grants of authority to the Commission.`4 Indeed, Section 713(f) -- with its language limiting the
Commission's authority to commencing an inquiry and reporting to Congress -- must be
regarded as governing the Commission's authority with regard to the subject of video
description. See Morales v. Trans World Airlines, Inc., 504 U.S. 374,384-85 (1992) (in holding
that a general "remedies saving" clause could not be allowed to supersede a specific substantive
preemption provision, court stated that it was "a commonplace of statutory construction that the
specific governs the general").15
  In particular, the Commission cannot rely upon its general grants of authority (such as in
Sections 2(a) and 4(i) of the Communications Act) to expand the limitations contained in Section
713(f), which specifically addresses the subject of video description. See Halverson v. Slater,
accessibility of certain communications services for persons with disabilities, and cites several
provisions concerning telecommunications services and equipment. See Notice at g[g[ 35-37.
I4 See Morton v. Mancari, 417 U.S. 535, 550-51 (1974) ("a specific statute will not be controlled
or nullified by a general one"); Uncompahgre Valley Water Users Ass'n v. FERC, 785 F.2d 269,
276 (lOth Cir.) ("more specific legislation covering the given subject-matter will take precedence
`over the general language of the same or another statute which might otherwise prove
controlling"`) (quoting Kepner v. U.S., 195 U.S. 100, 125 (1904)), cert. denied, 479 U.S. 829
(1986).
I5 See aEso Preiser v. Rodriguez, 411 U.S. 475,489-90 (1973) (specific habeas corpus statute held
to override the general terms of civil rights statute); Landmark Land Co., Inc. v. OTS, 948 F.2d
910, 912 (5th Cir. 1991) (a specific statutory provision dealing with a narrow category of
administrative supervision of bankrupt savings banks was held to "trump" a provision
concerning bankruptcy proceedings in general); South African Airways v. Dole, 817 F.2d 119,
126 (D.C. Cir.) (specific congressional directive regarding air service was found to supersede
Secretary of Transportation's general duties under Aviation Act), cert. denied, 484 U.S. 896
(1987); In re Thornhill Way I, 636 F.2d 1151, 1156 (7th Cir. 1980) (where there were two
arguably applicable provisions in Bankruptcy Act, one of which was general and the other was
particular, the particular provision "must prevail").
8

129 F.3d 180, 181-86 (D.C. Cir. 1997) (general statute authorizing Secretary of Transportation to
delegate certain powers and duties to any Transportation officer or employee could not be
"construed to expand" a more specific statute's limitation of that delegation authority). Because
the only statutory provision in the Communications Act addressing video description limits the
Commission's authority to conducting an inquiry and reporting to Congress, other, very general
provisions that do not even refer to video description cannot be interpreted as providing separate
authority to adopt mandatory rules with regard to video description. See Crawford Fitting
Company v. J.T. Gibbons, Inc., 482 U.S. 437,445 (1987) (' m case concerning the award of expert
witness fees to a prevailing litigant, court held that a specific statutory provision relating to
witness fees controlled over a general provision concerning the award of litigation costs, which
did not refer "explicitly" to witness fees).16
  In Section 713(f), Congress directly spoke "to the precise question" of video description.
Chevron, 467 U.S. at 842. By examining that section utilizing "the traditional tools of statutory
construction," the intent of Congress to authorize only a study and report on video description
becomes clear. Id. at 843. Because the Communications Act, as amended by the 1996 Act, is
neither "silent" nor "ambiguous" with respect to video description, the Commission must give
effect to the intent of Congress, as unambiguously expressed in Section 713(f). Id. As the
language, legislative history and structure of Section 713 demonstrate, the Commission's
I6 After all, if the general provisions of the Communications Act enacted decades earlier could be
construed to provide authority for the adoption of video description regulations, why then did
Congress believe it necessary to adopt in 1996 a statutory provision explicitly addressing video
description? The Commission's general jurisdictional provisions in the Communications Act
should not be construed as empowering the adoption of mandatory video description rules,
because such an interpretation would render the specific, limited provisions in Section 7 13(f)
entirely superfluous. See, e.g., Hohn v. U.S., 118 S.Ct. 1969, 1976 (1998); Kawaauhau v.
Geiger, 118 S.Ct. 974,977 (1998) (stating reluctance to adopt a construction of a statute making
another statutory provision superfluous).
9

authority with respect to video description is limited to conducting a study and reporting to
Congress, and this limited authority cannot be expanded by reliance on other, very general
statutory provisions that fail even to refer to video description.
E. Given the Constitutional Implications of Mandating Video Description Services,
an Overly Broad Reading of the Commission's Statutory Authority in this Area
Must Be Avoided.
Beyond the reasons set forth above, the Commission's authority with respect to video
description should be interpreted strictly, due to the constitutional implications of requiring the
production of described programming. As discussed below, mandating the creation of the
second script necessary to provide video description raises the constitutional problem of forced
speech. Because statutes are to be construed, if possible, so as to avoid constitutional
difficulties, the Commission should not attempt to construe its limited authority in Section 713(f)
to justify the adoption of mandatory video description rules.
The production of described video programming involves the creation of a second script
that includes narrated descriptions of a program's key visual elements. The insertion of this
extensive narration in a video program necessarily alters the character of the original work and,
in essence, results in the creation of a new and separate work. Moreover, unlike closed
captioning which involves merely the transcription of the existing script of a program, video
description involves artistic choices in developing the narration and creating a new script. NAB
believes that the Commission's proposed rules compelling the significant alteration of video
programs, and the production of new creative works, raises constitutional concerns with forced
speech.
The Supreme Court has explicitly held that the First Amendment is implicated when the
government attempts to compel expression. As the Court has stated, the rights protected by the
10

First Amendment include "both the right to speak freely and the right to refrain from speaking at
all." Wooley v. Maynard, 430 U.S. 705,714 (1977).i7 This First Amendment right to decide
"what to say and what not to say" encompasses many types of speakers and subject matter.**
  Given this broad First Amendment protection against compelled expression, the
Commission's proposed rules, which would compel the creation of entire scripts for video
programming, raises clear constitutional concerns. Indeed, the Supreme Court has found
unconstitutional a governmental attempt to compel the addition of the author's name to
anonymous campaign literature, because "an author's decision to remain anonymous, like other
decisions concerning omissions or additions to the content of a publication" was "an aspect of
the freedom of speech protected by the First Amendment." Mclntyre v. Ohio Elections
Commission, 514 U.S. 334, 342 (1995). If forcing only the addition of a name to a publication
violates the First Amendment, then the Commission must recognize that compelling the
significant alteration of a video program by the addition of an entire narration raises obvious
constitutional questions." In this regard, the Commission should also realize that its video
description proposal will impact the First Amendment rights of program producers and members
" See also Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781,796-
97 (1988) (the freedom of speech guaranteed by the First Amendment "necessarily" comprises
"the decision of both what to say and what not to say"); Hurley v. Irish-American Gay, Lesbian
and Bisexual Group ofBoston, 515 U.S. 557, 573 (1995) ("one important manifestation of the
principle of free speech is that one who chooses to speak may also decide what not to say").
`* See, e.g., Pacific Gas and Elec. Co. v. Public Utilities Commission of California, 475 U.S. 1,
16 (1986) ("the choice to speak includes within it the choice of what not to say" for both
corporations and individuals); Hurley, 515 U.S. at 573 (g eneral rule that "the speaker has the
right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but
equally to statements of fact"); Riley, 487 US. at 797-98 (compelling either statements of
opinion or statements of fact "burdens protected speech").
I9 See also Pacific Gas, 475 U.S. at 16 (finding First Amendment problems with a corporation
being "required to alter its own message as a consequence of the government's coercive action").
11

of the creative community -- entities and individuals who are not even directly subject to the
Commission's jurisdiction -- by requiring the significant alteration of their works.
   Because mandating the provision of video description services has clear constitutional
implications, the Commission should not attempt to expand its limited authority in Section 713(f)
to justify the adoption of mandatory video description rules. As the Supreme Court has
frequently instructed, the construing of statutes to raise serious constitutional problems should be
avoided whenever possible.20 Moreover, the Commission's interpretation of Section 713(f) as
authorizing the adoption of mandatory video description requirements would not merit judicial
deference because this construction does present serious questions of constitutional validity. See
Edward J. DeBartolo, 485 U.S. at 574-77 (although National Labor Relations Board's
construction of National Labor Relations Act would normally be entitled to deference under
Chevron, the Board's interpretation of provision of Act was found not entitled to deference
where such construction posed serious question of provision's validity under First
Amendment).2'
   Thus, the Commission should construe Section 713(f) as authorizing only a study and
report on video description, as such a reading is in accordance with its clear terms and would
avoid the constitutional concerns associated with forced speech.22 Because the adoption of
20 See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades
Council, 485 U.S. 568, 575 (1988); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490,499-501
(1979).
2' See also Blitz v. Donovan, 740 F.2d 1241, 1244 (D.C. Cir. 1984) (Secretary of Labor's narrow
reading of statutory provision was upheld because, in accordance "with a cardinal principle of
statutory interpretation," it "avoided penalizing constitutionally protected conduct").
22 Even if Section 713(f) did not so clearly limit the Commission's authority, the constitutional
difficulties raised by mandatory video description requirements should persuade the Commission
to refrain from adopting such requirements.
12

mandatory video description rules would not only exceed the Commission's statutory authority
but also implicate First Amendment questions, NAB believes that the Commission must refrain
from imposing its proposed rules.
II. SOUND POLICY REASONS ALSO MILITATE AGAINST THE ADOPTION OF
MANDATORY VIDEO DESCRIPTION RULES, PARTICULARLY IN THE ANALOG
ENVIRONMENT.
A. The Commission Has Underestimated the Technical Difficulties and the Costs
Associated with Providing Described Programming in the Analog Environment.
As explained in the Notice (at _ lo), "closed' video description is provided on the
Secondary Audio Programming ("SAP") channel, which allows for an additional audio
soundtrack for a video program. To accommodate this additional soundtrack, the Notice states
that broadcast stations (as well as cable operators) must have the technical facilities to "pass
through" the SAP channel information. The Notice (at 1 11) implies that the provision of
described programming on the SAP channel will not be difficult technically because many
stations are already SAP equipped, and, for those that are not, the cost to update equipment will
be between $5,000 and $25,000. The Commission additionally implies that the four largest
commercial television networks must be already equipped to provide video description on the
SAP channel because they have all offered Spanish audio on the SAP channel. See Notice at 1
11.
The Commission has in fact severely underestimated the technical effort - and thus the
cost - to implement its proposals requiring network affiliates in major markets to provide
described programming on the SAP channel. The Commission's error may in part arise from its
confusion over use of the term "SAP." While the Notice uses the term to refer generally to an
additional audio sound track for a video program, "SAP" actually only applies to the signal
broadcast from a television transmitter (or cable headend). "SAP" is in fact a term of art
13
_..                      -. .     _ __.. _ . -.*. .__ . -~-.1 1

referring to a specific component of the BTSC Multichannel Television Sound ("MTS")
System.23 Thus, when the Notice (at _ 11) discusses the number of broadcast stations that are
"SAP capable" or "SAP equipped," this information only reveals the number of stations that can
deliver an additional audio program from their transmitter facilities to the television receivers of
consumers. The mere fact that a number of stations' transmitter facilities are capable of
producing a SAP channel does not begin to address the technical difficulties associated with the
provision of described programming by network affiliates.
  It is certainly not made clear in the Notice that implementing video description will
actually require broadcasters to manage and distribute three channels of audio because the main
audio in most television programs already includes two channels.24 Thus, to provide a secondary
audio program carrying video description will require a third audio channel. To fully appreciate
the challenges of managing the three channels of audio required to provide video description, the
Commission must consider the technical capabilities of the entire network program distribution
and transmission chain. This chain includes the broadcast origination centers of the television
networks and the networks' distribution facilities (typically satellite systems), as well as the
affiliated stations' local television studios and local television transmitter facilities (which
23 The MTS system is documented in OST bulletin No. 60, MuZtichanneE Television Sound
Transmission and Audio Processing Requirements for the BTSC System, April 1984, and in EIA
TV Systems Bulletin #5, Multichannel Television Sound BTSC System Recommended Practices,
July 1985. These documents describe how to implement television stereo in both receivers and
transmitters. The MTS system provides for the transmission of a stereophonic (left and right)
main audio program, a monophonic second audio program channel, and a narrow bandwidth,
monophonic professional channel that is not intended to be received by consumers. See also 47
C.F.R. 4 74.682(c)(3) (1998).
24 Television programs are commonly produced with and furnished to network affiliates with two
channels of main program audio. If the television program is in stereo, then the two audio
channels furnished are stereo left channel and stereo right channel. When programs are
14

generate the SAP channel).25 As discussed in detail below, adapting all these systems of the
networks and their affiliates to carry three full channels of audio presents technical challenges
that will entail significant financial outlays to overcome.
  1. The Origination Centers and Distribution Systems of the Networks Were
  Generally Not Designed to Support Three Channels of Audio.
The broadcast origination centers of most major commercial networks have been
designed and engineered to support only two channels of audio with each associated video
program. The video and two channel audio infrastructure at these facilities allows the networks
to provide national and regional feeds (as well as time zone shifted feeds) seamlessly, as part of
normal network operations. On the occasions when these networks have offered Spanish
language translations of the main program audio, engineers at the network centers have created a
dedicated path - separate from the main program audio - often by temporarily "patching" it
through manually to the networks' satellite uplink facilities. However, to support a third audio
channel on a consistent basis, as part of the networks' routine operations - as would be necessary
to provide several hours of described programming every week - the networks would have to re-
engineer significant parts of their broadcast origination facilities. This task would require the
installation of cabling and equipment to allow the additional level of audio to be routed through
the broadcast origination centers, along with the video program, in the same manner as the
produced in mono, two channels are also furnished - mono on the left channel and mono on the
right channel.
25 It is only this last link in the chain - the capability of local affiliates' transmitter facilities to
generate the SAP channel - that the Commission has apparently addressed in the Notice. NAB
agrees with the Commission that the majority of television stations in the top 25 markets can
produce a SAP channel. See Appendix, 2000 SAP Channel Survey at 5 (81% of stations in top
10 markets and 88% of stations in markets 1 l-25 are equipped to broadcast in BTSC stereo).
However, this bare fact certainly does not imply that the networks and their affiliates are
currently capable of distributing described video programming.
15

current two channels of program audio. One major network estimates the cost of modifying its
origination facilities in this manner at $1.2 million.
   The satellite distribution systems of the commercial networks consist of three major
components - the network uplink system, the channels on the satellite (known as transponders),
and the local affiliates' receive earth station systems. The satellite distribution system of at least
one major network is currently incapable of delivering more than two channels of audio. As a
result, this network can deliver a Spanish language or other additional audio track for a program
to its affiliates only by uplinking this third audio track on an additional satellite transponder.
Spanish audio, on the limited occasions when offered by this television network, is therefore
treated as a totally separate path, distinct from the one used to distribute the main audio and
video program. However, for this network to deliver a third audio track (such as for video
description) on a routine, rather than on a very limited and occasional, basis would require
extensive technical upgrades. For this one network alone, the cost of modifying its network
origination center, and of upgrading its satellite system to uplink a third audio channel together
with the video and main program audio, is estimated to be $1.6 million.
   Local affiliates seeking to receive a Spanish or other third audio track from this network
typically use two separate satellite receive earth station packages. One points to the satellite
transponder carrying the Spanish language channel. That audio is then combined with the two
channels of English audio furnished by the affiliate's main earth station system and is routed
through the local television plant. Because not all television stations have an additional earth
station to dedicate just for this purpose, only a small number of affiliates of this network
nationwide are capable of downlinking a Spanish or other third audio channel. Thus, to
accommodate an additional channel of audio, the satellite downlink systems of many local
16

affiliates will have to be modified as well. This network estimates that it will cost $800,000 to
upgrade the local satellite receive systems of their affiliated stations to accommodate three
channels of audio.26
   2. The Studio and Plant of Local Television Stations Were Generally Not
   Designed to Support More Than Two Channels of Audio.
Once a local affiliate receives the third audio track from a network, this track must be
routed through the broadcast studio plant and sent to the station's transmitter (typically via an
STL2'), where it is broadcast on the SAP channel. While it is true that many television stations'
transmitter facilities are SAP-equipped,28 it is also true that many local television studios have
been designed and engineered to support only two channels of audio on a routine basis.
Likewise, many STLs currently installed can only pass two channels of audio. Both of these
systems must be upgraded to pass a third channel of audio on a regular basis. Thus, a number of
local broadcasters will face technical challenges in managing three channels of audio similar to
those experienced by the major networks, although on a smaller scale. In fact, one network
estimates that it will cost $400,000 to upgrade its owned and operated stations to support the
three channels of audio needed to provide video description.29
26 This amount would be in addition to the estimated $1.6 million this network would have to
spend to modify its satellite system and network origination center, as previously described.
*' An STL, or Studio-Transmitter-Link, is typically a fixed point-to-point microwave link
authorized under Part 74, Subpart F of the Commission's Rules.
28 That is, they have BTSC/MTS stereo generators installed.
29 This amount would be in addition to the approximate $1.2 million this network would need to
spend to upgrade its network origination center, as previously described.
17
                              .-

   The Commission should realize that most local stations installed MTS equipment at their
transmitters so they could broadcast the stereo programming supplied by their networks.
Similarly, these stations constructed television studios and STLs that can pass the two channels
of audio through to their transmitters. Until recently there has been little need to engineer the
audio infrastructure in local television studios to support more than two audio channels on a
consistent basis. As a result, many local stations will need to expend considerable effort to
modify their analog television plants so as to accommodate described programming received
regularly from the networks.30 NAB believes that the $5,000-$25,000 figure cited by the
Commission in the Notice (at q[ 11) represents only a fraction of the total cost required to
routinely support a third channel of audio at many local stations. The actual costs could far
exceed the Commission's estimate, depending on the age and design of individual television
studios.
   Contrary to the implications in the Notice that the technical difficulties and costs
associated with video description are minimal, the networks and their local affiliates would in
fact be required to undertake extensive and expensive engineering modifications and upgrades to
implement the Commission's proposals. The above-described technical upgrades to the
networks' origination centers and distribution systems will be necessary because the
Commission has proposed to require network affiliates to provide described prime time (or
children's) programming, which, as a practical matter, will be network programming. Thus, the
fact that a number of individual stations are SAP equipped (i.e., have transmitters capable of
generating a SAP channel) does not mean that the networks are capable of originating and
x0 Local stations that currently broadcast a Spanish language track for certain local programming
on their SAP channels will often employ creative, ad hoc solutions for routing a third channel of
audio.
18

distributing via satellite, and affiliated stations capable of receiving and routing, described prime
time programming on a consistent basis. NAB also notes that these costs for networks and
affiliates are magnitudes of order greater than the hardware costs associated with implementing
closed captioning of video programming.
Moreover, NAB wants to emphasize that the networks and their affiliates would have to
incur the significant costs described above just to provide analog video description. The
extensive technical upgrades that must be made to the networks' and local affiliates' existing
analog systems to distribute described programming cannot continue to be utilized after the
transition to a digital transmission system. In light of the current transition to digital television
("DTV"), NAB questions the utility of requiring these extensive modifications to the analog
systems of the broadcast networks and their affiliates. Indeed, NAB asserts that forcing
broadcasters to spend substantial monies on their soon-to-be obsolete analog systems constitutes
an undue burden. NAB also reminds the Commission that the more resources required to be
expended on analog broadcasting, the fewer resources will be available for the implementation of
DTV. For all these reasons, the Commission should reconsider its proposal to mandate the
provision of described video programming by major market network affiliates in the analog
environment.
B. To the Extent that "Closed" Video Description Requirements Are Adopted,
Other Important Uses of the SAP Channel Will Be Foreclosed in an Analog
Environment.
The Notice (at `I[ 19) proposed to adopt "rules to phase `closed' video description into the
marketplace," starting with network-affiliated television stations in the top 25 Designated Market
Areas ("DMAs"). As discussed above, closed description is provided on the SAP channel,
which allows for an additional audio soundtrack for a program. However, a number of broadcast
19

stations currently use the SAP channel to provide other services (particularly foreign language
audio) to viewers. The Notice (at `j 30) sought comment on how "potential conflicts" between
these competing uses of the SAP channel "could be avoided or minimized" and "whether there
are any technical solutions to such potential conflicts in the analog environment."
  In the analog environment, NAB is aware of no "technical solutions" that would allow
the SAP channel to be used to provide both video description and another service (such as
foreign language audio) for the same programming.31 Thus, to the extent that video description
requirements are adopted, then other uses of the SAP channel will be foreclosed in an analog
environment. Particularly since the Commission expects "to increase the amount of required
described programming over time" (Notice at _ 21), broadcasters may ultimately be precluded
from providing other important services to their viewers.
  As shown in NAB's attached survey of commercial television stations, 24% of all
responding television stations currently broadcast on their SAP channels. However, with regard
to the stations in the top 25 DMAs at issue in this proceeding, a much higher percentage utilize
their SAP channels; specifically, 45% of the responding television stations in the top ten markets
and 35% of the stations in markets 1 l-25 currently broadcast on their SAP channels.32 In
" The SAP channel is a single channel that allows for the carriage of one additional audio
soundtrack for a program. This additional audio soundtrack can be either video description or
some other service, such as a foreign language.
32 It should be noted that not all television stations responding to NAB's survey are even capable
of utilizing SAP channels because they are not equipped to broadcast in BTSC stereo. Among
those stations in the largest markets that are so equipped, 55% of the top ten market stations
currently broadcast on their SAP channels while 40% of the stations in markets 1 l-25 broadcast
on their SAP channels.
20

addition, NAB's survey revealed that these stations use their SAP channels primarily for Spanish
language programming.33 See Appendix, 2000 SAP Channel Survey at 6-7.
NAB's survey shows that a significant number of television stations in the top 25 markets
currently use their SAP channels to provide viewers with other services, especially foreign
language audio. NAB suggests that viewers in the analog environment may be better served if
licensees retain the discretion to determine which type of services - whether foreign language,
video description or other - should be offered to local viewers on the SAP channel.34 Rather
than the government determining that one particular use of the SAP channel is superior to all
others and imposing mandatory video description requirements that foreclose other uses, the
Commission may well be advised to focus now on insuring that the digital equipment currently
being developed will fully accommodate video description.
C. Given the Limitations of Analog Technology and the Current Transition to
Digital Broadcasting, the Commission Should Focus on Encouraging the Production
of DTV Equipment that Fully Supports Video Description.
As described above, requirements mandating the provision of video description in the
analog environment would impose significant technical and financial burdens on networks and
local affiliates and could foreclose other uses of the SAP channel by broadcast stations. Given
the difficulties inherent in implementing video description in an analog environment, NAB
believes the Commission should instead focus on the current transition to digital broadcasting so
as to insure that video description can be implemented in the digital environment. This approach
33 Other uses of the SAP channel include weather updates and promotional feeds to radio stations.
A number of stations also carry another feed of their main audio channel on the SAP channel to
avoid consumer confusion if the SAP channel is inadvertently selected.
34 Especially in those top 25 markets with significant Spanish speaking populations (such as New
York, Los Angeles, Washington, D.C., Dallas, Houston, Phoenix and Miami), offering Spanish
language audio on the SAP channel clearly serves the public interest.
21

would, as previously discussed, also avoid requiring broadcasters to rebuild their analog
distribution systems at a time when they are scheduled to be abandoned. The Commission
should not mandate such "orphan" investments.
  The Commission simply seems to assume in the Notice that the provision of described
video programming in the digital environment will present no real challenges.35 NAB believes
that such optimism may be unfounded, given the uncertainty that exists with regard to the ability
of DTV receivers to fully support video description.
  The ATSC DTV standard does in fact provide for the capability to send multiple program
audio channels with a video program."' However, while the DTV standard does describe how to
implement multiple audio services, it remains unclear whether DTV receivers are required to
decode services other than the primary audio channel. But even assuming that the DTV standard
does require receivers to decode more than one audio track, it is not clear how many more audio
tracks DTV receivers are required to decode. Moreover, the DTV standard remains silent on
whether digital receivers are required to provide consumers with an on-screen method for
choosing between the available audio tracks (which may include various other languages and/or
video description). And most importantly, it is unknown whether the DTV receivers currently
being manufactured can decode and play more than the main program audio service.
  Simply put, there is no assurance that, even though the ATSC DTV system provides for
multiple audio services, DTV receiver manufacturers will actually implement this feature so that
all digital televisions fully support multiple audio channels. Given this uncertainty, the
35 For example, Paragraph 22 of the Notice states that the "flexibility inherent in digital
technology may make the provision of video description even easier and less costly."
22

Commission should focus its efforts with regard to video description on insuring that DTV
receivers will be able to support video description, now and in the future. Indeed, we believe
that this is yet another reason why the Commission should establish DTV receiver
specifications." If the Commission did act to establish such receiver specifications, then it could
insure that the ability to support video description services would be included in those standards.
D. Mandating the Provision of Described Programming Raises Additional Legal
and Practical Complexities, Even in the Digital Environment.
In addition to the technical difficulties associated with providing described programming
in the analog environment, mandating the provision of video description - whether in an analog
or digital environment - presents other legal and practical complexities. In particular, NAB
believes that the Commission has underestimated the extent to which mandated video description
requirements will raise copyright questions and necessitate significant changes to the entire
network program production process.
   Unlike closed captioning, which involves only the transcription of an existing video
program, providing a description of the video portion of a television program requires the
creation of a separate script. It seems clear that such separate scripts constitute "derivative
works" under U.S. copyright law and are separately copyrightable." In addition, the
36 See ATSC Document A/52, Digital Audio Compression (AC-3) Standard, Dec. 20, 1995 and
ATSC Document A/53, ATSC Digital Television Standard, Sept. 16, 1995. Published by the
Advanced Television Systems Committee, available at www.atsc.org.
37 NAB has previously argued that the Commission should act to define receiver standards, as
part of an effort to encourage the overall DTV transition. See, e.g., Comments of NAB in CS
Docket No. 98-120 at Appendix G (filed Oct. 13, 1998).
" A derivative work is one "based upon one or more preexisting works such as a translation . . .
abridgement, condensation, or any other form in which a work may be recast, transformed, or
adapted. A work consisting of editorial revisions, annotations, elaborations, or other
modifications which, as a whole, represent an original work of authorship, is a `derivative
work."' 17 U.S.C. 8 101. See also 1 M.B. Nimmer and D. Nimmer, Nimmer on Copyright 5
23

unauthorized incorporation of a pre-existing work (such as a video program's original script) into
a derivative work (such as a video described script) constitutes an act of copyright infringement
(assuming, of course, that the pre-existing script is protected by copyright)." Given these
copyright protections involved in the creation of the separate scripts needed for video
description, complying with a mandate to provide described programming will require the
obtaining of additional authorizations from the creators of the pre-existing scripts and the
revising of existing contractual obligations with the creative community.
   Because video description requires the creation of a separate script, the recording of a
narration, and the mixing of the main soundtrack with the descriptive narrative, video description
is more costly and time-consuming than closed captioning. Indeed, given the more complex
nature of video description, compliance with the Commission's proposal to require the provision
of described programming will necessitate alterations in the entire program production process.
The broadcast networks typically receive programs (such as their prime time series) from the
producers a very short time before air. If the networks had to arrange for the programs to be
described after receiving them, then the production process would have to be altered to guarantee
the receipt of the programs well in advance of air. The networks could instead arrange for their
programming to be described during the production process and prior to their receipt of the
programming. This would entail an additional step in the existing production process and would
increase the time needed to produce programs before delivery to the networks. In either case, the
3.01 (1999) (any work based in whole, or in substantial part, on a preexisting work, if it satisfies
certain originality requirements and is not itself an infringing work, will be separately
copyrightable).
39 Nimmer on Copyright, 5 3.06.
24
,..-.. -.-._ _.... -._ .--

networks' existing schedule for the production of programming would need to be lengthened,
and the existing production system altered to include the process of describing programming.
  Beyond adding to the length of the program production process, video description will, of
course, also add to the cost of programming. Although video description is more expensive than
closed captioning, the exact costs remain unclear.40 The Notice (at 9[ 15) cites information
provided by public broadcaster WGBH that the expense of describing programming is
approximately $3,400 per hour. NAB believes that this figure will not necessarily be the same
for the commercial networks, however. WGBH's Descriptive Video Service has an in-house
staff that performs all functions necessary to describe programming, while the networks will
need to consider these issues in conjunction with others relating to the creative community and
the general program production process. Experience with other aspects of the creative process
indicates that program producers and directors are likely to insist on the right to create and
control descriptions of their programs themselves. If that proves true, the WGBH experience
may have little predictive value.
  Because a mandate to provide video description will require significant changes to the
current television program production system, the implementation of any video description
requirements will need to be timed carefully. If the Commission chooses to adopt mandatory
video description rules at this time or in the future, NAB believes that the implementation of
those requirements should coincide with the start of a television "season." Specifically, any
requirement to provide described programming should coincide with the start of the next
KJ See Report in MM Docket No. 95-176, 11 FCC Red 19214, 19258 (1996) (noting varying
estimates of the cost of providing video description and the "labor intensive" nature of the
service).
25

television season following 18 months after the effective date of the Commission's rules.41 Such
an implementation schedule would better account for the changes that would have to be made in
the program production system so as to comply with any video description requirements.
E. The Commission Has Not Yet Realistically Assessed the Costs and Benefits of its
Proposed Video Description Requirements.
In directing the Commission to adopt regulations to "ensure" the accessibility of video
programming through closed captioning, Congress also specifically authorized the Commission
to exempt programs and services, as well as programming providers, from the captioning
requirements, if complying with those requirements would be economically burdensome. See 47
U.S.C. $6 613(d)-(e). NAB believes that the Commission should include comparable
exemptions and waivers in any video description rules. See Notice at _ 33. Indeed, consistent
with the closed captioning rules, the Commission should completely exempt certain categories of
programming from any description requirements because certain program types (e.g., news,
sports and other live programs) are inherently unsuited to video description. Beyond considering
such exemptions, however, the Commission must also weigh the relative costs and benefits
involved before even adopting regulations pertaining to video description, whether in an analog
or digital environment.
As described in detail above, the costs associated with providing described programming
(including both program production and technical upgrades) may be greater than the
4' Commercial television networks premiere their new programs starting in the fall of each year.
To have a definite date for the implementation of any video description rules, a television season
should be regarded as starting on the first of October. Thus, NAB recommends that
implementation of any rules should commence on the October 1st following 18 months after the
effective date of the rules. The first of October is also the beginning of a calendar quarter, which
would be a convenient date to implement rules based on the provision of a certain amount of
described programming per calendar quarter, as the Commission has proposed.
26

Commission anticipated, especially in the analog environment. 42 Given the substantial costs
involved, the Commission should carefully consider whether the benefits to be gained from
adopting mandatory video description requirements are sufficient to justify imposing those
requirements. To conduct this analysis, the Commission must first obtain relevant and accurate
information about the population to be benefited from video description and the degree to which
this population will in fact benefit. Some evidence suggests that the Notice overestimated both
the audience that would benefit from video description and the degree to which they would
benefit.43 No realistic determination of the relative costs and benefits of video description
requirements (whether in an analog or digital environment) can be made until the Commission
has directly addressed issues such as these. NAB submits that, until the Commission has
conducted a thorough analysis of the costs and benefits of its proposal, the Commission must
refrain from adopting mandatory video description rules. 44
42 Any analysis of the costs must include consideration of the opportunity costs of mandating
video description. These opportunity costs would include any foreclosure of the SAP channel
from other uses, and the funding diverted from the conversion to digital television to upgrading
analog equipment that will only be used for a few more years.
43 For example, the Notice stated that the primary audience for video description consists of the
8-12 million persons with visual disabilities. One study, however, has estimated the visually
impaired population to be approximately 6.5 million persons, or less than 3% of the U.S.
population. This study also noted that this population watched television and videotapes in
similar numbers and with similar frequency to the general population. See J. Packer and C.
Kirchner, Who's Watching ? A Profile of the Blind and Visually Impaired Audience for
Television and Video, 5, 9 (1997). Thus, this study suggests that visually impaired viewers do
not find television inaccessible even without mandated video description, and that video
description would only enhance the television viewing experience, rather than transform a
formerly inaccessible medium to one that is totally accessible. NAB also notes the speculative
nature of the Commission's depiction of the secondary audience for video description. See
Notice at g[_ 7-8.
44 The Commission should also conduct a similar analysis of the proposal to require broadcasters
to provide aural tones to accompany public safety messages that scroll across television screens.
See Notice at 4[ 32. Specifically, does any evidence exist to show that current emergency
information is inadequate, or that visually impaired persons have been unable to obtain adequate
27

III. CONCLUSION
As described in detail above, the Commission lacks statutory authority to prescribe rules
requiring the provision of video description services. NAB also believes that the Commission's
proposal to mandate the provision of described programming raises the constitutional problem of
forced speech. Beyond these statutory and constitutional difficulties with mandatory video
description rules, NAB has shown that the Commission's proposal should not be adopted for a
number of other technical, legal and practical problems associated with providing described
programming, especially in the analog environment. Given the limitations of analog technology
and the current transition to digital broadcasting, NAB believes that the Commission should
decline to adopt its proposed rules. Instead, the Commission should consider ways to promote
the provision of video description services in the digital environment, such as by insuring that
DTV receivers fully support multiple audio channels.
NATIONAL ASSOCIATION OF
BROADCASTERS
1771 N Street, NW
Washington, DC 20036
(202) 429-5430
Y Henry L. Baumann
Jack N. Goodman
Jerianne Timmerman
Arthur W. Allison III
Kelly T. Williams
NAB Science and Technology
February 23,200O
emergency information from other sources ? Does the Commission know how many television
stations may already provide these aural tones ? Would the imposition of a mandatory
requirement regarding aural tones tend to discourage broadcasters from providing additional
emergency information, beyond that which is mandated? Questions such as these should be
answered before the Commission adopts this proposal.
28
- -.. _-      ..-_ ~.."_...         .-

2000 SAP Channel Survey
      Chris Ely
Research and Planning Department
February 2000
o Copyright 2000. All Rights Reserved.
National Association of Broadcasters
Washington, D.C.

Table of Contents
Table of Contents .................................................................................................................... 2
Executive Summary ................................................................................................................ 3
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 4
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... 4
Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 4
Primary Findings .................................................................................................................... 5
BTSC Stereo ................................................................................................................. 5
SAP Channel .................................................................................................................. 6
PRO Channel ................................................................................................................. 8
APPENDIX: Questionnaire ............................. . .................................................................... 10
List of Figures
Figure 1: Stations Equipped to Broadcast in BTSC Stereo (all stations). ................ .................. 5
Figure 2: Stations Equipped to Broadcast in BTSC Stereo (all stations by market). .................. 5
Figure 3: Stations Broadcasting on Their SAP Channel (all stations). ....................................... 6
Figure 4: Stations Broadcasting on Their SAP Channel (all stations by market) ....................... 6
Figure 5: Stations Broadcasting on SAP
    (by market, those stations equipped to broadcast in BTSC stereo). ........................... 7
Figure 6: Stations Using Their PRO Channel (all stations) ....................................................... 8
Figure 7: Stations Using Their PRO Channel (all stations by market). ....................................... 8
2

Executive Summary
o  Nearly three-in-four stations (70%) are equipped to broadcast in BTSC stereo. About one-in-
four (24%) are broadcasting on their SAP channel.
o  Stations in market size groupings l-10, II-25 and 26-50 are more likely to broadcast on their
SAP channel (45%, 35%, and 27% respectively) than stations in market size groupings 5 l-
75, 76-100, and lOl+ (7%, 14%, and 9%) respectively. This finding mirrors the results of
stations that are equipped to broadcast in BTSC stereo audio anJ broadcast on SAP.
o  The most often cited uses for the SAP channel include: Spanish language programming
(n=42), weather updates (n=l3), network programming (n=l2), and promo feeds to stations
(n=ll).
o  Seven-in-ten respondents stated that their stations do not use the PRO channel, while 28% of
respondents do.
o  While more than half of stations in markets l-10 and 1 l-25 (57% and 54% respectively) use
their PRO channel, only one-third of stations in markets 26-50 and 51-75 (33% and 36%
respectively) do so. One-quarter of stations in markets 76-100 used their PRO channel
whereas only 15% of stations in markets 101 and higher use it.
o  IFB was the most cited use for the PRO channel (n=102), followed by cueing (n=29).

Introduction
Overview
The following report presents the results of a recent survey concerning television stations' use of
the SAP and PRO channels. A brief one-page facsimile survey was sent to the attention of Chief
Engineers at all 1,111 commercial television stations with known fax numbers.
Methodology
The surveys were faxed in December 1999. A "second request" fax was sent one week after the
initial deadline to chief engineers. We received 554 completed surveys, yielding a response rate
of 52.8%. A copy of the survey is attached as Appendix A.
Because this is an attempted census, there is no way to estimate sampling error. More than half
(52.8%) of the chief engineers at commercial television stations participated in the survey (total)
and there may be differences with the remaining half (47.2%) who did not respond.
4
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Primary Findings
BTSC Stereo
Seven-in-ten respondents stated that their station is equipped to broadcast in BTSC Stereo,
while slightly more than one-quarter (28%) of respondents stated that their station is not
equipped to do so.
Figure 1: Stations Equipped to Broadcast in BTSC Stereo
          (all stations)
When respondents are broken-down by their respective market ProuningS, more than 80% of all
stations in markets l-25 are equipped to broadcast in BTSC stereo. Three-quarters of
stations in markets 26-75 are equipped to broadcast in BTSC, while markets 76 and higher have
fewer stations equipped to broadcast in BTSC (although still a majority of 63% or more).
Figure 2: Stations Equipped to Broadcast in BTSC Stereo
       (all stations by market)
Mkts.1.10      Mktsll-25      Mkts.26.50      Mkts.51-75     Mkts.76-100     Mkts.101+
5

SAP Channel
One-quarter (24%) of all respondents indicated that their station broadcasts on their SAP
channel, whereas the remaining three-fourths (74%) do not.
Figure 3: Stations Broadcasting on Their SAP Channel
          (all stations)
N/A
2%
Yes
In general, stations in larger markets are more likely to broadcast on their SAP channel. In the
largest market grouping (markets l-10) 45% of stations broadcast on their SAP channel, and
35% of responding stations in markets 11-25 broadcast on their SAP channel. This finding
contrasts sharply with responding stations in markets lOl+, where only nine percent of stations
broadcast on their SAP channel
Figure 4: Stations Broadcasting on Their SAP Channel
       (all stations by market)
Mkts. l-10      Mkts. 11-25
Mkts. 26-50
Mkts. 51-75
6
Mkts. 76-100
Mkts. lOl+
Cl Yes
EtNo
O N/A
        -.-_ _.-".-.-.-l . ------- -~-

Of those stations that are equipped to broadcast in BTSC stereo audio, more than half (55%) of
stations in markets l-10 broadcast on their SAP channel, while four-in-ten stations in markets
11-25 do so. A majority of stations in markets 5 1 and higher do not broadcast on their SAP
channel, even though they are stereo compatible.
       Figure 5: Stations Broadcasting on SAP
(by market, those stations eauiwed to broadcast in BTSC stereo audio)
O ???
O ??
H N/A
Mktsl-10 '              '               '              '                             '
            Mkts. 11-25       Mkts. 26-50       Mkt.% 51-75       Ml&. 76-100       Ml&. 1Olf
When asked to describe how their station uses the SAP channel, their answers can be classified
as follows:
Spanish language programming (n = 42)
Weather updates (n = 13)
Network programming (n = 12)
Promo feeds to stations (n = 11)
Local programming (n = 9)
Mono programs (n = 9)
Audio feeds (n = 2)
SAP explanation (n = 1)
Reading services for the blind (n = 1)
7
                             --

PRO Channel
Slightly more than two-thirds (69%) of respondents stated that their station does not use the
PRO channel, while one-quarter (28%) of responding stations do.
Figure 6: Stations Using Their PRO Channel
       (all stations)
                            N/A
28%                           3%
When broken-down by market, we find that more than half of the stations in markets l-25 use
their PRO channel.
Figure 7: Stations Using PRO Channel
   (all stations by market)
82%  I  0 Yes
                              64%
57%
PNo
* N/A
Mkhl-10 '    Ml&. 11-25       Mkts. 26-50       Mb. 51-75      Mkt.% 76-100       Mkt.% 101+
                        8
.I I -..     . __.^ _. . .._.  .-_. I .._.    __-. ._-..  . ..." . "-.-.-. ..--.l__l., -- -.-

When asked to describe how their station uses the PRO channel, their answers can be classified
as follows:
IFB (n = 102)
Cueing (n = 29)
ENG (n = 6)
Remote control (n = S)
Telemetry (n = 3)
DTMF (n = 3)
Control of remote microwave sites (n = 2)
Transmitter remote control telemetry (n = 1)
Off-air monitoring (n = 1)
Data transmission of weather warnings (n = 1)
Control format (n = 1)
Transmit data (n =l)
Relay WAS radio station to remote site (n = 1)
Return demand/off-air (n = 1)
Live shots (n = 1)
IRL news scanner audio return from XMTR (n = 1)

APPENDIX
10
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Attention Chief Engineer: WE NEED YOUR HELP!
SAP Channel Survey
December 1999
Dear Chief Engineer,
The NAB is conducting this brief survey of the use of the Secondary Audio Programming (UP) channel in order to
better understand the state of this technology at television stations. We need your assistance in helping us to serve
the broadcasting industry. The information compiled will be held in the STRICTEST CONFIDENCE.
Information will only be published in aggregate form and individual station information will not be made available
to anyone. Please return via fax to (202) 775-4981 or 775-2980 no later than Friday, December 17,1999. Ifyou
have any questions regarding this survey, please contact Chris Ely, NAB Research and Planning Department at
(202) 429-5390. Thank you!
Station Call Letters:       -TV Name:                Phone:
1. Is your station currently equiped to broadcast in BTSC stereo audio?   . . . . . . . . .   QYes QNo
If Yes:
1A. Are you broadcasting on your Secondary Audio Programming (SAP)
channel? . . . .._.................................................   DYes ClNo
1B. If Yes, How is SAP being used? (please explain)
2. Are you using your PRO (Professional) channel? . . . . . . . . . . . . . . . . .   CLYes QNo
If Yes:
2A. How is PRO being used? (please explain)
Please fax this completed survey by December 17,1999 to:
     (202)775-4981 or(202)775-2980.
              Thank You!