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 *Pages 1--24 from  Microsoft Word - 6011056049.doc*
 Before  the 
 FEDERAL  COMMUNICATIONS  COMMISSION 
 Washington,  D.  C.  20554 


 In  the  Matter  of  ) 
 )  MM  Docket  No.  99-  339 
 ) 
 ) 
 Implementation  of  Video  Description  ) 
 of  Video  Programming  ) 


 To:  The  Commission 
 REPLY  COMMENT  OF  THE  NATIONAL  TELEVISION 
 VIDEO  ACCESS  COALITION 
1
 TABLE  OF  CONTENTS 
 SUMMARY..............................................................................................  i 
 REPLY  COMMENTS  OF  THE  NATIONAL  TELEVISION 
 VIDEO  ACCESS  COALITION..............................................................  i 
 Deja  vu...................................................................................................................  1 
 NFB  and  MPAA  numbers  .....................................................................................  2 
 Philosophical  differences  .......................................................................................  4 
 Services  not  well  known  ........................................................................................  5 
 Description  not  all  pervasive.................................................................................  6 
 Other  exemptions...................................................................................................  7 
 Offensive  Suggestion..............................................................................................  9 
 TV  Industry  is  blind  to  the  importance  of  TV......................................................  9 
 Phasing  in.............................................................................................................  11 
 Standards  .............................................................................................................  11 
 Quality  of  product  ...............................................................................................  12 


 THE  FCC  IS  FULLY  AUTHORIZED  TO  MANDATE  VIDEO.......  12 


 Description  Is  a  Reasonable  Regulation  of  Manner  of  Speech...  13  Where  there's  a  will  there's  a  way  ......................................................................  12 


 CONCLUSION.....................................................................................  18 
2
 SUMMARY 
 REPLY  COMMENTS  OF  THE  NATIONAL  TELEVISION  VIDEO  ACCESS  COALITION 
 Many  of  the  opponents'  reply  comments  echo  past  objections  to  the  expansion  of  closed 
 captioning.  It  is  impossible  to  imagine  that  commercial  television  cannot  add  descriptions  to 
 programs  if  they  so  choose.  Two  organizations  have  been  doing  it  for  10  years.  Objectors  gave 
 little  or  no  information  on  how  descriptions  can  be  phased  into  TV.  Apparently  objections 
 would  melt  away  if  video  descriptions  were  voluntary.  But  there  is  virtually  no  voluntary  action. 
 The  number  of  people  potentially  benefiting  from  video  description  range  from  10  to  12 
 million.  This  increases  as  the  population  ages.  And  ophthalmologists  report  that  many  low 
 vision  patients  lack  visual  acuity  to  respond  to  TV.  MPAA  statistic  concerning  blind  people  on 
 welfare  is  offensive  and  irrelevant.  Blindness  and  visual  impairment  strike  people  from  all 
 socio-  economic  backgrounds  and  ages.  The  National  Federation  of  the  Blind  has  a  membership 
 that  at  best  is  only  a  small  fraction  of  the  total  blindness  population.  Not  all  members  agree  with 
 NFB  official  statements  including  video  description. 
 The  majority  of  NFB  members  are  congenitally  blind  and  often  do  not  relate  to  the  visual 
 world,  but  the  overwhelming  majority  of  the  remainder  of  the  visually  impaired  population  still 
 possess  some  residual  vision  or  have  had  vision.  Yet  many  congenitally  blind  find  TV 
 descriptions  are  very  useful.  NFB  has  a  history  of  opposing  many  services  to  benefit  the  blind 
 which  the  remainder  of  the  population  favors.  While  the  NFB  does  provide  some  useful 
 services,  there  exist  differences  of  philosophy  between  NFB  and  the  rest  of  the  population.  The 
 other  major  national  consumer  organization,  the  American  Council  of  the  Blind,  strongly 
 supports  video  description. 
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 Description  will  never  be  as  pervasive  as  closed  captioning.  Descriptions  can  be  inserted 
 only  during  natural  pauses  in  dialog,  narration  or  music.  Programs  which  are  mostly  verbal  or 
 musical  should  not  require  description.  Other  exemptions  could  apply,  including  live  newscasts 
 and  undue  burden  based  on  closed  captioning  rules.  Descriptions  become  the  property  of  the 
 copyright  holder  who  has  total  control  whether  they  are  created  in  house  or  by  an  outside 
 provider.  Thus  they  can  ensure  that  the  descriptions  do  not  violate  the  artistic  integrity  of  the 
 program. 
 Closed  captioning  is  not  considered  unconstitutional  even  though  captions  are  not  merely 
 a  word  for  word  rendering  of  the  spoken  dialogue.  Captions  flickering  across  the  screen  change 
 the  visual  presentation  by  obscuring  a  portion  of  the  screen.  Also  tone  of  voice,  irony  and 
 emotional  expressions  are  not  conveyed  in  print.  Descriptions  are  a  "translation"  of  the  visual 
 elements  into  a  verbally  accessible  presentation  A  trained  describer  does  not  editorialize, 
 interpret,  explain  or  evaluate. 
 If  you  accept  MPAA's  premise  that  there  is  no  reason  why  blind  people  should  relate  to 
 anything  which  is  partially  visual,  then  blind  people  should  stay  home  in  isolation.  We  cannot 
 agree  that  descriptions  only  marginally  enhance  TV.  Descriptions  are  not  a  substitute  for  good 
 vision,  but  they  are  infinitely  preferable  to  nothing.  No  study  indicates  that  blind  people  have 
 different  viewing  desires  from  the  general  population.  AFB's  study,  "Who's  Watching?"  was 
 misinterpreted.  People  did  not  list  program  preferences.  They  listed  types  of  programs  they 
 wished  to  have  described  because  of  strong  visual  elements  making  these  programs  much  more 
 difficult  to  understand  without  descriptions. 
 Making  TV  accessible  to  blind  and  low  vision  people  is  a  civil  rights  issue.  Broadcasting 
 should  be  accessible  to  everyone.  Does  this  include  the  deaf  and  hard  of  hearing  but  exclude  the 
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 blind  and  visually  impaired?  Blind  and  low  vision  people  do  tune  in  to  non-  described  TV  but 
 this  is  a  testament  to  its  importance  in  our  society  even  when  only  partially  accessible.  TV  is  a 
 quality  of  life  issue.  We  must  begin  to  phase  in  descriptions  so  that  a  backlog  of  described 
 programs  will  build  up  as  it  did  during  the  early  days  of  closed  captioning.  The  broadcast  and 
 motion  picture  industries  are  multi-  million  dollar  enterprises.  The  broadcast  industry  has 
 received  a  gift  of  free  spectrum  space  worth  billions  of  dollars.  Why  can't  these  industries  use 
 their  resources  to  solve  problems  connected  with  descriptions? 
 Some  commenters  misread  Congresss  failure  to  mandate  video  description  as  a 
 prohibition  on  FCC  action  on  video  description.  Nothing  in  the  Act  or  its  legislative  history 
 suggests  that  Congress  intended  to  restrict  the  Commission  from  acting  in  this  area.  The  FCC 
 regularly  requires  its  licensees  and  regulatees  to  make  announcements  and  disclosures  which 
 they  might  not  otherwise  make  and  in  a  formt  they  might  not  otherwise  adopt.  The  First 
 Amendment  permits  the  government  to  regulate  the  time,  place,  and  manner  of  speaking. 
 Because  video  description  is  essentially  a  content-  neutral  translation  of  speech,  it  is  not  subject 
 to  the  strict  scrutiny  analysis  of  laws  that  prevent  people  from  speaking  or  compel  them  to  say 
 what  they  dont  want  to  say. 
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 REPLY  COMMENTS  OF  THE  NATIONAL  TELEVISION  VIDEO  ACCESS  COALITION 
 1.  These  Reply  Comments  are  filed  by  the  National  Television  Video  Access  Coalition 
 (  the  Coalition),  a  group  of  leading  organizations  concerned  with  visual  impairment  issues.  A 
 list  of  entities  making  up  the  Coalition  is  attached  as  Appendix  A.  The  first  section  of  these 
 comments  deals  with  the  benefits  and  characteristics  of  video  description.  They  do  not  contain 
 additional  comments  on  issues  sufficiently  covered  in  our  original  reply  comments.  The  second 
 section  deals  with  legal  aspects.  Detailed  technical  comments  may  be  found  in  submissions  by 
 others. 
 Deja  vu 
 2.  In  words  ascribed  to  Yogi  Berra,  this  is  deja  vu  all  over  again  --  echoes  of  objections  by 
 the  TV  and  motion  picture  industries  at  the  birth  of  captioning. 
 3.  It  is  hard,  if  not  impossible,  to  imagine  that  commercial  for-  profit  industries  are  not 
 capable  of  doing  what  one  non-  profit  organization  (WGBH)  and  one  for-  profit  company  (NTN) 
 have  been  doing  for  more  than  10  years  --  to  make  their  products  accessible  to  millions  of 
 visually  impaired  and  blind  individuals. 
 4.  We  believe  a  great  many  comments  filed  by  broadcast  and  motion  picture  industries  are 
 mean  spirited,  and,  in  the  case  of  MPAA,  in  part  offensive  to  blind  and  visually  impaired  people. 
 5.  There  was  little  or  no  information  on  how  mandated  descriptions  can  be  phased  into  the 
 television  world,  only  a  long  laundry  list  of  reasons  why  it  should  never  take  place.  On  one  hand 
 they  say  there  are  so  many  technical,  legal  and  financial  barriers  to  the  production  of  descriptions 
 it  is  a  wonder  that  for  the  past  10  years  any  programs  could  have  been  aired  with  descriptions. 
 On  the  other  hand,  it  appears  that  these  technical  and  legal  barriers  melt  away  if  provision  for 
6
 access  is  to  be  voluntary.  Considering  that  the  record  of  voluntary  production  of  descriptions  by 
 commercial  entities  is  virtually  non-  existent,  one  wonders  how  NAB  and  MPAA  for  example, 
 can  suggest  the  voluntary  approach  with  straight  faces. 
 NFB  and  MPAA  numbers 
 6.  We  do  not  agree  with  the  statistics  concerning  blindness  and  visual  impairment  cited  by 
 the  National  Federation  of  the  Blind  (NFB)  and  The  Motion  Picture  Association  of  America 
 (MPAA).  The  FCC  NPRM  99-  339  cites  estimates  of  the  number  of  persons  with  visual 
 disabilities  ranging  from  more  than  eight  million  (U.  S.  Department  of  Commerce/  Census)  to 
 nearly  twelve  million  (NCAM).  However,  the  1990  census  Survey  of  Independence  and  Program 
 Participation  (SIP)  cites  a  figure  of  ten  million.  After  ten  years  this  figure  certainly  is  higher. 
 In  addition,  ophthalmologists  report  that  many  patients  with  low  vision  do  not  have  the  visual 
 acuity  to  respond  adequately  to  the  television  screen.  This  number  is  increasing  daily  as  the 
 population  ages. 
 1.  MPAA  cites  a  statistic  of  only  132,935  blind  people  receiving  Social  Security  welfare 
 payments,  thus  implying  that  the  majority  of  blind  people  are  on  welfare.  This  number  has  no 
 validity  in  assessing  the  number  of  blind  individuals.  Furthermore  this  is  offensive.  Actually  the 
 overwhelming  majority  are  not  and  never  were  on  welfare. 
 Equal  opportunity  player. 
 8.  Blindness  and  visual  impairment  is  an  equal  opportunity  player,  striking  people  from  all 
 socio-  economic  backgrounds  and  ages.  Indeed,  a  former  president  of  the  National  Association 
 of  Broadcasters  (NAB)  and  a  U.  S.  Secretary  of  State  were  among  users  of  the  Metropolitan 
 Washington  Ear's  reading  services. 
7
 9.  The  majority  are  above  fifty  years  of  age.  This  is  a  difficult  group  to  reach  because  most 
 do  not  receive  welfare,  have  not  participated  in  rehabilitation,  and  have  not  chosen  to  become 
 affiliated  with  any  organizations  of  and  for  the  blind  and  visually  impaired. 
 10.  NFB  claims  a  membership  of  50,000.  Most  of  us  in  the  field  of  work  for  the  blind 
 seriously  doubt  that  they  have  an  active  membership  of  that  number,  and  we  know  that  NFB 
 officials  do  not  speak  for  all  their  members.  We  have  heard  many  members  disagree  with  some 
 of  NFB's  official  pronouncements,  including  views  on  video  description.  To  our  knowledge  the 
 NFB  does  not  have  a  mechanism  in  place  to  poll  their  members  on  this  issue.  But  even  if  we 
 concede  that  the  membership  figure  is  accurate,  their  membership  constitutes  only  a  fraction  of 
 one  percent  of  the  blind  and  visually  impaired  population  who  could  benefit  from  mandated 
 descriptions.  The  NFB  is  entitled  to  their  opinions,  but  they  are  not  entitled  to  dictate  what  type 
 of  services  the  entire  blind  and  low  vision  population  should  or  should  not  have. 
 11.  The  majority  of  NFB  members  are  congenitally  blind  and  have  never  lived  in  a  visual 
 world,  but  the  overwhelming  majority  of  the  remainder  of  the  blind  and  low  vision  population 
 still  possess  some  residual  vision  or  have  had  vision  in  the  past. 
 12.  Some  of  NFB's  members  may  not  appreciate  the  value  and  importance  of  visual 
 information,  but  this  is  by  no  means  true  of  all  congenitally  blind  people.  According  to  the 
 study,  "Who's  Watching?"  conducted  by  The  American  Foundation  for  the  Blind  and  funded  by 
 the  U.  S.  Department  of  Education,  congenitally  blind  people  reported  that  descriptions  were  very 
 helpful  in  comprehending  television  programs.  And  at  the  NFB  annual  conferences  described 
 movies  from  the  Narrative  Television  Network  and  Descriptive  Video  Services  have  been  a  very 
 popular  feature. 
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 13.  NFB  has  a  repeated  history  of  opposing  many  services  to  benefit  the  blind  which  the 
 remainder  of  the  blind  and  low  vision  population  were  actively  promoting.  They  also  have  a 
 history  of  being  on  both  sides  of  the  same  issue  at  one  time  or  another.  This  occurred  for  raised 
 bump  platform  edges  to  warn  people  of  the  drop  off  in  the  Washington  Metro  subway  system. 
 At  first  these  warnings  were  considered  by  the  NFB  to  be  unnecessary  for  blind  people.  Indeed, 
 NFB  stated  that  blind  people  had  as  much  right  as  sighted  people  to  fall  off  subway  platforms 
 and  be  killed.  Later  they  did  an  about  face  when  substantial  funds  became  available  for  a  study 
 of  infrared  equipment  that  was  supposed  to  help  people  locate  the  edge.  This  equipment  was 
 later  rejected  by  the  government  and  Metro.  Now  Metro  is  installing  platform  edges  with  raised 
 bumps. 
 14.  NFB  has  also  shifted  its  position  on  video  description.  In  the  fall  of  1995  and  in  July  of 
 1996  they  apparently  were  supportive  at  meetings  we  attended  (as  guests  of  the  MPAA)  with 
 representatives  of  five  major  studios  in  Hollywood  and  later  at  another  meeting  in  FCC 
 headquarters  in  Washington  D.  C.  NFB  has  since  reversed  this  apparent  support. 
 Philosophical  differences 
 15.  While  the  NFB  does  provide  some  services  useful  for  blind  people,  there  exists  extreme 
 differences  of  philosophy  between  NFB  and  the  rest  of  the  low  vision  and  blind  population. 
 16.  It  is  important  to  understand  the  NFB  philosophy.  They  believe  that  "if  a  blind  person 
 has  proper  training  and  opportunity,  blindness  is  only  a  physical  nuisance"  and  that  blind  people 
 can  learn  to  do  almost  everything  that  sighted  people  do.  They  reject  a  great  many  services 
 because  they  believe  these  will  make  it  appear  that  blind  people  are  incompetent,  always  needing 
 special  help  from  sighted  people.  NFB  fears  this  will  make  it  more  difficult  for  blind  people  to 
 find  employment. 
9
 17.  Their  members  do  not  appear  to  empathize  with  people  who  lose  vision 
 later  in  life  and  who  may  also  have  other  physical  problems.  There  is  little  understanding  that 
 people  who  have  at  one  time  lived  with  vision  (the  majority  of  "blind"  people)  wish  to  continue 
 to  relate  to  the  visual  world  as  much  as  possible.  This  is  one  of  many  reasons  why  descriptions 
 are  so  important. 
 18.  Finally,  NFB  is  one  of  two  major  nationwide  consumer  membership  organizations.  The 
 other,  the  American  Council  of  the  Blind  (AFB),  is  strongly  and  thoroughly  supportive  of 
 mandating  video  description. 
 19.  Further  on  statistics,  we  respond  to  MPAA's  statement  that  sales  figures  for  described 
 videos  are  very  low.  There  are  two  major  causes  for  this  Blind  and  low  vision  people  who  have 
 managed  to  learn  of  the  existence  of  described  videos  mostly  borrow  them  free  of  charge  from 
 libraries  serving  the  blind  throughout  the  country.  They  simply  order  the  videos  by  phone  and 
 receive  them  in  the  mail.  When  they  have  finished  with  the  videos  they  can  merely  reverse  the 
 address  card  on  the  container  and  leave  it  for  the  postman.  The  video  will  be  returned  to  the 
 library  postage  free.  Under  these  circumstances  it  is  easy  to  understand  why  most  people  would 
 not  choose  to  purchase  them.  State  level  special  needs  librarians  report  that  they  cannot  keep 
 described  videos  on  their  shelves. 
 Services  not  well  known 
 20.  The  second  reason  is  that  the  majority  of  blind  and  low  vision  people  who  could  enjoy 
 the  descriptions  do  not  know  about  them  because  these  people  are  not  affiliated  with  any 
 organization  of  and  for  the  blind.  It  is  difficult  to  gain  this  information  from  other  sources  unless 
 one  happens  to  know  someone  who  uses  the  videos.  Even  after  60+  years  of  The  Library  of 
 Congress  Talking  Book  Program,  large  numbers  of  people  losing  vision  later  in  life  never  have 
10
 heard  of  the  library  services.  Ophthalmologists  are  notoriously  remiss  in  passing  this 
 information  to  their  patients  who  can  no  longer  effectively  read  ordinary  print.  It  is  not 
 uncommon  for  those  of  us  engaged  in  work  for  the  blind  to  meet  people  who  have  been  deprived 
 of  reading  for  years  because  they  did  not  know  the  library  service  is  available  to  them. 
 Described  videos  have  been  around  for  less  than  ten  years  so  it  is  not  surprising  that  they  are 
 even  less  known  than  Talking  Books. 
 21.  Aside  from  questioning  the  authority  of  the  FCC  to  impose  the  rule,  and  bemoaning 
 technical  and  financial  issues,  the  objections  to  mandated  descriptions  fall  into  three  main 
 categories:  copyright,  compelled  or  forced  speech,  and  the  lack  of  compelling  need  because,  they 
 aver,  descriptions  only  enhance  television  rather  than  transforming  it  from  an  inaccessible 
 medium  to  an  accessible  one  as  closed  captioning  does  for  the  deaf  and  hard  of  hearing. 
 22.  Before  commenting  on  these  objections  we  will  discuss  several  other  points. 
 Description  not  all  pervasive 
 23.  Video  description  will  never  be  as  pervasive  on  television  as  closed  captioning  is.  Since 
 descriptions  can  only  be  inserted  during  natural  pauses  in  dialog  or  music,  programs  which  are 
 essent  ially  almost  totally  verbal  or  musical  should  not  require  descript  ion. 
 24.  This  is  true  for  live  newscasts.  (However,  it  would  be  useful  if  news  programs  would 
 choose  to  verbalize  the  names  of  people  shown  on  the  screen  or  if  these  names  were  available  on 
 the  SAP  channel  instead  of  the  print  version  flashed  on  the  TV  screen.) 
 25.  For  most  live  programs  it  is  impractical  to  apply  descriptions,  with  the  possible 
 exceptions  of  presidential  inaugurations  or  funerals  or  perhaps  the  opening  of  the  Olympics. 
 (The  two  inaugurations  of  President  Clinton  were  successfully  described.)  Sports  programs 
 which  are  broadcast  over  local  radio  stations  should  also  be  exempt  for  obvious  reasons. 
11
 Other  exemptions 
 26.  Game  shows,  shopping  programs,  foreign  language  programs  produced  outside  the 
 United  States  and  all  programs  which  can  demonstrate  undue  financial  burden  based  upon  the 
 regulations  already  existing  for  closed  captioning  should  be  exempt  from  adding  descriptions. 
 These  programs  are  mostly  verbal  and/  or  have  a  lower  priority  for  visually  impaired  people. 
 Short  TV  promos  and  advertisements  should  also  be  exempt  just  as  they  are  for  closed 
 captioning. 
 28.  However,  there  are  certain  minor  modifications  which  some  programs  could  make  which 
 would  be  extremely  useful  for  visually  impaired  people.  For  example,  if  QVC,  the  shopping 
 network,  would  verbalize  the  telephone  numbers  required  to  purchase  the  products,  it  would 
 reach  a  larger  audience  and  increase  the  number  of  buyers. 
 28.  C-  Span  is  another  case  in  point.  On  the  radio  they  manage  to  verbally  identify  the  people 
 who  are  speaking.  Why  can't  they  do  the  same  for  television? 
 Copyright  etc. 
 29.  Now  as  to  those  supposed  copyright  problems,  first  amendment  violations  and 
 "compelled  or  forced  speech".  Others  have  cited  case  law  and  real  experience  to  answer  these 
 objections.  But  common  sense  asks:  How  can  unsurmountable  difficulties  exist  with  copyright 
 issues  when  both  DVS  and  NTN  have  never  encountered  them  during  the  past  ten  years? 
 30.  Descriptions  added  to  a  program  or  movie  are  piggybacked  onto  the  rights  of  the 
 copyright  holder.  They  become  the  property  of  the  copyright  holder.  Producers  and  copyright 
 holders  will  have  total  control  over  the  descriptions  whether  they  create  them  in  house  or 
 contract  with  an  outside  description  provider.  They  can  ensure  that  the  descriptions  do  not 
 violate  the  artistic  integrity  of  the  program. 
12
 31.  Since  the  UK  has  already  mandated  descriptions  for  television,  one  wonders  if  the  MPAA 
 will  create  a  dispute  with  the  World  Trade  Organization.  If  these  issues  can  be  worked  out  in  the 
 UK,  why  can't  they  work  in  our  country? 
 32.  Closed  captioning  is  not  considered  unconstitutional  in  spite  of  the  fact  that  captions  are 
 not  merely  a  word  for  word  rendering  of  the  spoken  dialogue  into  print.  Because  of  time 
 constraints,  rewording  or  omissions  do  occur.  Sound  effects  must  be  translated  into  the  printed 
 word.  And  captions  flickering  across  the  TV  screen  certainly  change  the  visual  presentation  by 
 obscuring  a  portion  of  the  screen.  Also  tone  of  voice,  irony  and  emotional  expressions  are  not 
 conveyed  in  print. 
 33.  Therefore,  why  should  video  descriptions,  which  are  also  an  alternative  version  just  as 
 captioning  is,  be  considered  unduly  coercive?  People  need  not  hear  them  unless  they  choose  to. 
 These  descriptions  are  merely  a  "translation"  of  the  visual  elements  into  a  verbal  presentation 
 accessible  to  blind  and  low  vision  people.  Apparently,  according  to  the  MPAA,  it  is  preferable 
 not  to  have  descriptions  rather  than  making  their  work  accessible  to  a  larger  audience. 
 34.  It  is  true  that  a  written  script  must  be  created.  The  essential  visual  elements  on  the  screen 
 plus  the  amount  of  available  time  for  the  description  without  stepping  on  lines  totally  drives  the 
 content  of  the  descriptions.  A  properly  trained  describer  understands  that  what  goes  in  the  eye 
 must  come  out  the  mouth  without  editorializing,  interpreting,  explaining,  or  evaluating.  After 
 all,  producers  and  copyright  holders  will  have  total  control  over  descriptive  content  and  could 
 change  the  wording  or  voicing  of  any  scene  which  they  do  not  believe  adequately  reflects  the 
 intent  of  the  writer  or  artist. 
13
 Offensive  Suggestion 
 35.  MPAA  states  that  since  television  is  primarily  visual  there  is  no  reason  to  make  it 
 accessible  to  blind  people.  This  is  also  highly  offensive.  Television  is  a  combination  of  pictures 
 and  sound  just  as  life  itself  is  a  combination  of  the  visual  world  and  the  world  of  sound.  If  you 
 accept  MPAA's  premise  that  there  is  no  reason  why  blind  people  should  attempt  to  relate  to 
 anything  which  is  in  part  visual,  then  blind  people  would  do  well  to  stay  home,  listen  to  music, 
 read  only  books  on  tape  or  in  braille,  and  never  bother  to  participate  in  mainstream  activities 
 which  in  any  way  involve  vision.  This  is  not  the  way  blind  people  in  general  choose  to  live. 
 They  strongly  wish  and  need  to  become  a  part  of  mainstream  society. 
 36.  We  do  agree  that  since  spoken  dialogue  and  sound  effects  are  equally  accessible  to  low 
 vision  and  blind  people  as  they  are  for  sighted  viewers,  television,  even  without  descriptions,  is 
 more  understandable  to  sight-  impaired  people  than  it  would  be  without  closed  captioning  to  deaf 
 and  hard  of  hearing  people.  Having  said  this,  we  certainly  cannot  agree  with  MPAA's  statement 
 that  descriptions  only  marginally  enhance  television  for  low  vision  and  blind  people. 
 37.  Without  descriptions,  sight-  impaired  viewers  are  cut  off  from  facial  expressions,  body 
 language,  actions,  proper  identification  of  characters,  physical  appearance  of  people,  their  mode 
 of  dress,  settings,  written  credits,  subtitles  etc.  During  most  long  silences  one  does  not  have  a 
 clue  as  to  what  is  happening  on  the  screen.  Depending  upon  the  type  of  program,  the  difference 
 between  programs  with  or  without  descriptions  can  be  enormous. 
 TV  is  blind  to  the  importance 
 38.  How  can  anyone,  much  less  the  television  industry,  say  that  television  is  only  marginally 
 important?  It  is,  for  better  or  worse,  one  of  the  most  important  mediums  in  our  society.  It 
 supplies  information,  shapes  opinions  and  yes,  it  also  provides  entertainment  which  is  a  window 
14
 to  our  culture  and  a  shared  experience  with  family,  friends  and  coworkers.  It  can  help  blind  and 
 visually  impaired  people  live  better  lives  and  become  better  citizens.  To  be  largely  cut  off  from 
 it  is  to  become  socially  marginalized.  People  who  have  had,  or  still  have  some  vision  do  not 
 wish  to  stop  relating  to  the  visual  world  and  be  forced  to  focus  only  upon  the  world  of  sound. 
 There  is  indeed  a  compelling  state  interest  to  make  it  possible  for  this  group  to  more  fully 
 participate  in  society  and  become  better  and  more  informed  people.  Descriptions  are  not  a 
 substitute  for  good  vision,  but  they  are  infinitely  preferable  to  doing  without  them. 
 39.  Questions  have  also  been  raised  about  the  viewing  habits  of  the  blind.  We  know  of  no 
 study  or  no  logical  reason  why  anyone  should  assume  that  as  a  group  their  preferences  differ 
 from  the  population  in  general.  Many  people  with  sight  problems  are  older  and/  or  retired  with 
 freedom  to  watch  television  during  the  day  if  they  choose.  However,  this  does  not  mean  that 
 they  all  go  to  bed  promptly  at  6  p.  m.  and  never  watch  in  the  evening  when  prime  time  programs 
 are  aired. 
 40.  AFB's  study,  "Who's  Watching?"  has  been  misinterpreted.  People  were  not  listing 
 program  preferences  but  were  instead  listing  the  types  of  programs  they  most  wished  to  have 
 described  because  of  the  strong  visual  elements  which  make  these  programs  much  more  difficult 
 to  understand  without  descriptions.  Game  shows,  music  or  newscasts  for  example  require  little 
 or  no  descriptions  and  would  therefore  not  be  at  the  top  of  anyone's  list. 
 Civil  rights  and  quality  of  life  issues. 
 41.  Making  television  accessible  to  blind  and  low  vision  people  is  a  civil  rights  issue. 
 Broadcasting  is  supposed  to  be  accessible  to  everyone.  Does  this  include  the  deaf  and  hard  of 
 hearing  but  exclude  the  blind  and  visually  impaired?  Yes,  blind  and  low  vision  people  do  watch, 
 or  attempt  to  watch  non-  described  television  but  this  is  actually  a  testament  to  its  importance  in 
15
 our  society  even  when  only  partially  accessible.  People  who  cannot  adequately  see  the  TV 
 screen  watch  with  varying  degrees  of  frustration,  apparently  preferring  only  half  a  loaf  or  less  to 
 nothing  at  all.  This  does  not  mean  that  there  is  no  compelling  reason  to  restore  the  missing 
 visual  elements  as  much  as  possible.  This  is  also  a  quality  of  life  issue.  Why  should  the 
 broadcast  and  motion  picture  industries  assert  that  television  should  be  accessible,  including 
 entertainment,  to  the  population  in  general  but  not  to  millions  of  low  vision  and  blind  people?  Is 
 this  group  not  equally  entitled  to  a  quality  of  life  which  is  routinely  available  to  everyone  else? 
 Phasing  in 
 42.  We  must  begin  to  phase  in  descriptions  for  programs  which  require  them  so  that  a 
 backlog  or  library  of  described  programs  will  build  up  as  it  did  during  the  early  days  of  closed 
 captioning.  This  will  make  it  possible  for  blind  and  low  vision  people  to  enjoy  ever  larger 
 numbers  and  varieties  of  described  programs  in  the  coming  years. 
 Standards 
 43.  Some  objectors  have  mentioned  standards.  From  Washington  Ear's  19  years  of 
 experience  in  providing  descriptions  for  live  theater  productions,  we  know  that  what  most  people 
 expect  is  the  ability  to  understand  what  is  taking  place  on  stage  without  confusion  via 
 descriptions  of  the  essential  visual  elements.  Everyone  realizes  that  because  of  time  limitations 
 it  is  impossible  to  describe  every  aspect  of  the  visual  presentation  of  any  scene,  let  alone  the 
 entire  play.  When  the  audience  laughs  we  want  to  be  able  to  laugh  with  everyone  else  because 
 we  have  heard  what  humorous  action  is  silently  occurring  on  stage. 
 44.  Blind  people  know  if  the  descriptions  are  inadequate  or  confusing,  or  if  the  delivery  is 
 lacking  in  some  manner.  They  could  not  know  in  the  theater,  and  do  not  know  in  television  what 
16
 should  have  been  described  and  was  omitted  unless  someone  with  normal  vision  tells  them  about 
 it. 
 Quality  of  product 
 45.  We  hope  that  producers  of  programs  to  be  described  will  want  to  ensure  that  the  quality 
 of  the  descriptions  matches  the  quality  of  the  program.  If  this  is  faithfully  done,  in  most  cases 
 the  descriptions  will  be  received  with  appreciation,  not  criticism.  We  strongly  recommend  that  if 
 descriptions  are  to  be  created  by  people  or  organizations  with  no  previous  experience  with 
 descriptions,  proper  training  should  be  a  vital  prerequisite  before  signing  on  with  them. 
 Where  there's  a  will  there's  a  way 
 46.  The  broadcast  and  motion  picture  industries  are  multi-  million  dollar  companies.  They 
 employ  very  talented  people.  The  broadcast  industry  has  received  a  gift  from  the  government  of 
 free  spectrum  worth  billions  of  dollars.  It  is  difficult  for  us  to  understand  why  these  industries 
 cannot  use  their  resources  to  solve  any  problems  connected  with  producing  descriptions, 
 particularly  since  descriptions  have  already  been  produced  for  television  for  more  than  ten  years. 
 We  do  not  believe  that  they  cannot  find  workable  solutions  if  they  only  choose  to  look  for  them. 
 47.  Finally,  to  end  on  a  more  positive  note,  responses  from  the  deaf  community  were  truly 
 heart  warming.  Because  they,  too,  suffer  from  a  severe  sensory  deprivation,  they  understand 
 better  than  most  just  how  much  it  means  to  be  able  to  access  television.  They  join  with  us  in 
 hoping  that  in  the  very  near  future  all  Americans  will  have  the  right  to  fully  access  television 
 regardless  of  the  nature  of  their  disability. 
 THE  FCC  IS  FULLY  AUTHORIZED  TO  MANDATE  VIDEO  DESCRIPTION 
 As  the  Commission  noted  in  the  NPRM,  Congress  has  charged  it  with  the  mission  of 
 mak[  ing]  available,  so  far  as  possible,  to  all  people  of  the  United  States,  a  rapid,  efficient,   
17
 radio  communications  service.  47  U.  S.  C  151.  Despite  this  direct  charge,  and  despite 
 Congresss  stated  policy  that  video  programming  should  be  accessible  to  the  visually  impaired,  a 
 number  of  commenters  suggest  that  the  FCC  lacks  authority  to  mandate  video  description. 
 These  comments  reflect  both  a  failure  of  logic  and  a  lapse  of  statutory  construction  principles. 
 The  theory  goes  that  Congress  must  not  have  wanted  the  FCC  to  have  the  authority  to  mandate 
 video  description  because  it  specifically  required  the  Commission  to  implement  closed 
 captioning  rules  but  imposed  no  such  mandate  with  respect  to  video  description.  The  theory  fails 
 on  several  counts. 
 First,  Congress  did  nothing  to  restrict  or  limit  the  normal  plenary  authority  granted  to  the 
 Commission  by  section  1  of  the  Communications  Act  to  regulate  communications  in  the  public 
 interest.  Congress  has  no  trouble  telling  the  FCC  explicitly  when  it  is  restricting  the 
 Commissions  normal  discretion  to  exercise  its  authority.  A  recent  example  was  the  adoption  of 
 Section  309(  i),  which  precluded  the  FCC  from  using  lotteries  to  award  licenses.  Balanced 
 Budget  Act  of  1997,  Section  3002(  a)(  I).  There  is  no  reason  whatsoever  to  impute  or  fabricate  a 
 Congressional  restriction  where  none  was  adopted.  Indeed,  if  we  are  looking  to  impute  a 
 Congressional  intention  from  the  language  of  the  statute,  quite  the  opposite  is  the  case,  for 
 Congress  told  the  Commission  to  take  measures  to  ensure  that  video  programming  is 
 accessible  to  the  visually  impaired.  It  is  unclear  how  the  Commission  could  possibly  ensure 
 video  accessibility  without  adopting  some  sort  of  mandatory  program. 
 Logically,  the  fact  that  Congress  did  not  affirmatively  direct  the  Commission  to  adopt 
 video  description  rules  cannot  possibly  be  read  as  directing  the  Commission  not  to  adopt  such 
 rules.  It  simply  means  that  Congress  left  the  matter  to  the  discretion  of  the  FCC.  The  easiest  and 
 most  straightforward  way  of  reading  Section  713  is  that: 
18
 a)  Congress  directed  the  Commission  to  adopt  closed  captioning  rules; 
 b)  Congress  directed  the  Commission  to  study  video  description; 
 c)  Congress  directed  the  Commission  to  ensure  video  accessibility  but  did  not  specify 
 the  means  by  which  that  should  be  accomplished.  Video  description  is  obviously  one 
 means  of  ensuring  that  accessibility. 
 In  other  words,  Congress  identified  the  accessibility  problem  and  told  the  Commission  to 
 solve  it,  but  it  did  not  require  the  Commission  to  employ  video  description  per  se  for  that 
 purpose.  The  Commission  is  therefore  acting  in  compliance  with  the  Congressional  directive  by 
 proposing  the  most  readily  available  solution  to  the  video  accessibility  problem.  How  some 
 commenters  can  glean  from  the  actual  language  of  the  statute  a  prohibition  on  regulatory  action 
 is  unfathomable.  Its  just  not  there. 
 Not  only  is  no  such  prohibition  in  the  text  of  the  statute,  but  there  is  no  indication  in  any 
 of  the  legislative  history  that  Congress  intended  to  restrict  the  Commission  from  acting.  All  we 
 can  deduce  from  the  history  of  the  statute  is  that  Congress  was  not  prepared  to  mandate  video 
 description  itself,  leaving  it  to  the  FCC  to  study  it  and  then  act  accordingly.  1  Surely  if  Congress 
 had  intended  the  dramatic  step  of  forbidding  the  Commission  from  acting  on  the  matter  which  it 
 had  just  been  directed  to  study,  there  would  have  been  some  expression  of  that  intention  either  in 
 the  statute  itself  or  in  the  legislative  history.  There  is  no  such  expression  because  that  was  not 
 Congresss  intent. 
 In  this  regard,  we  reiterate  the  discussion  in  the  Coalitions  original  comments  in  this 
 Docket  regarding  the  Commissions  analysis  of  its  authority  to  promulgate  rules  with  respect  to 


 1  It  does  appear  that  the  Conference  Committee  deleted  language  in  the  House  bill  indicating  that  the  Commission 
 could  adopt  regulations  promoting  video  accessibility  after  the  study  was  completed,  but  no  explanation  for  the 
 deletion  is  provided  in  the  conference  report.  H.  R.  Conf.  Rpt  No.  104-  458  at  184.  (1999)  Since  the  FCC  plainly 
 already  had  the  authority  to  adopt  such  regulations,  the  language  may  well  have  been  deleted  as  unnecessary. 
19
 non-  telecommunication  information  services  in  the  Section  255  proceeding.  The  Commission 
 there  considered  whether  the  absence  of  an  express  Congressional  mandate  to  make  non-telecommunications 
 services  accessible  to  the  disabled  somehow  acted  as  a  limitation  on  its 
 ordinary  power  to  regulate  in  the  public  interest.  The  Commission  concluded  that  there  was  no 
 such  implied  limitation  and  proceeded  to  adopt  appropriate  rules.  The  Commission  should 
 follow  the  same  theory  here. 


 VIDEO  DESCRIPTION  IS  A  REASONABLE  REGULATION  OF  THE  MANNER  OF  BROADCASTING 
 A  number  of  commenters  challenge  the  proposed  rule  as  a  violation  of  the  First 
 Amendment  because  it  compels  them  to  engage  in  speech  which  they  would  otherwise  not 
 engage  in.  These  concerns  are  misplaced.  The  Commission  routinely  requires  its  licensees  and 
 regulatees  to  broadcast  information  or  material  which  they  would  not  otherwise  broadcast 
 without  raising  First  Amendment  issues.  It  requires  broadcasters,  for  example,  to  broadcast  call 
 sign  information,  licensee  ownership  information,  renewal  application  information,  promotional 
 consideration  disclosures,  and  political  sponsorship  information.  It  requires  closed  captioning  of 
 considerable  programming,  a  process  which  in  itself  translates  the  spoken  word  into  a  readable 
 format  stripped  of  the  various  nuances  that  audible  speech  would  add  to  the  written  word.  No 
 one  has  suggested  that  these  regulations  constitute  impermissible  compelled  speech  by  the 
 Commission.  Video  descriptions  fall  into  the  same  category. 
 There  are  two  key  considerations  to  take  into  account  in  conducting  a  First  Amendment 
 analysis  of  this  issue.  First,  video  description  is  entirely  content-  neutral.  The  compelled 
 speech  cases  deal  with  situations  in  which  a  speaker  was  being  forced  to  convey  a  message  with 
 which  it  disagreed  or  about  which  it  preferred  to  remain  silent.  Wooley  v.  Maynard,  430  U.  S. 
20
 705  (1977);  Pacific  Gas  and  Electric  v.  Public  Utilities  Commission,  475  U.  S.  1  (1986).  No 
 such  considerations  obtain  here.  The  creator  of  each  program  is  not  restricted  at  all  in  the 
 message  it  conveys;  the  proposed  regulation  has  no  bearing  on  the  content  of  the  material 
 presented  by  any  speaker.  The  regulation  merely  requires  the  speaker  to  translate  that  message   
 whatever  it  is    into  a  form  that  is  accessible  to  more  members  of  the  audience. 
 The  appropriate  conceptual  framework  for  evaluating  this  issue  is  as  a  time,  place  and 
 manner  restriction.  The  courts  have  consistently  upheld  reasonable  regulation  of  how  speech  is 
 exercised,  as  opposed  to  what  speech  is  uttered.  The  theory  is  that  speech  is  not  unduly 
 burdened  so  long  as  the  content  is  not  impacted  and  people  are  not  precluded  from  speaking  at 
 all.  Kovacs  v.  Cooper,  336  U.  S.  77,  81-  2  (1949).  (  Most  obviously,  complete  speech  bans, 
 unlike  content-  neutral  restrictions  on  time,  place  and  manner  of  expression  are  particularly 
 dangerous  because  they  all  but  foreclose  alternative  forms  of  disseminating  certain  information. 
 44  Liquormart  v.  Rhode  Island,  517  U.  S.  484,  501  (1996)). 
 The  regulation  at  issue  here  merely  requires  mass  media  distributors  to  deliver  whatever  message 
 they  are  delivering  in  a  form  accessible  to  the  blind.  The  Commissions  regulations  have  long 
 required  broadcasters  who  broadcast  primarily  in  a  foreign  language  to  broadcast  their  renewal 
 announcements  in  that  foreign  language.  47  CFR  73.3580(  d).  The  courts  of  the  District  of 
 Columbia  require  eviction  notices  to  be  delivered  in  both  Spanish  and  English.  No  one  contends 
 that  it  is  a  violation  of  the  First  Amendment  for  businesses  to  be  required  to  deliver  these 
 important  messages  in  both  English  and  another  language.  In  effect,  video  description  is  a 
 translation  of  the  programmers  message  into  a  language  which  the  visually  impaired  can 
 understand.  As  with  all  translations,  the  translated  video  description  version  is  not  exactly  like 
 the  original,  but,  as  with  all  translations,  video  description  attempts  to  be  as  faithful  to  the 
21
 original  as  possible.  The  video  distributor  is  only  being  compelled  to  deliver  the  message  of 
 its  choice  in  an  additional  form,  and  such  non-  intrusive,  non-  content-  related  restrictions  pass 
 constitutional  muster  by  a  wide  margin. 
22
 CONCLUSION 
 For  the  reasons  set  forth  above  and  in  our  original  Comments,  the  National  Coalition 
 urges  the  Commission  to  promptly  adopt  the  proposed  rules.  A  list  of  the  entities  comprising  the 
 Coalition  is  attached. 


 Respectfully  submitted, 


 National  Coalition  for  Video  Access 
 By______________________ 
 Dr.  Margaret  Pfanstiehl 


 Donald  J.  Evans 
 1  It  does  appear  that  the  Conference  Committee  deleted  language  in  the  House  bill  indicating  that  the  Commission 
 could  adopt  regulations  promoting  video  accessibility  after  the  study  was  completed,  but  no  explanation  for  the 
 deletion  is  provided  in  the  conference  report.  H.  R.  Conf.  Rpt.  No.  104-  458  at  184.  (1999)  Since  the  FCC  plainly 
 already  had  the  authority  to  adopt  such  regulations,  the  language  may  well  have  been  deleted  as  unnecessary. 
23
 NATIONAL  TELEVISION  VIDEO  ACCESS  COALITION 
 American  Association  of  Retired  Persons 
 American  Council  of  the  Blind  American  Foundation  for  the  Blind 


 American  Library  Association  Association  for  Education  and  Rehabilitation  of  the  Blind  and  Visually 
 Impaired  Association  for  Macular  Diseases  Blinded  Veterans  Association 
 Foundation  Fighting  Blindness  Gray  Panthers 
 Jewish  Social  Service  Agency  Macular  Degeneration  International 
 Metropolitan  Washington  Ear  National  Association  of  Parents  of  Visually  Impaired 
 National  Association  for  Visually  Handicapped  National  Council  an  the  Aging 
 National  Organization  on  Disability  Prevention  of  Blindness  Society 
 World  Institute  on  Disability 
 Coordinators: 
 Dr.  Margaret  and  Cody  Pfanstiehl  426  Branch  Drive 
 Silver  Spring  MD  20901-  2617 
24