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 *Pages 1--9 from  Microsoft Word - 6011056187.doc*
 Before  the 
 FEDERAL  COMMUNICATIONS  COMMISSION 
 Washington,  D.  C.  20554 


 In  the  Matter  of  ) 
 ) 
 Implementation  of  Video  )  CS  Docket  99-  339 
 Description  of  Video  ) 
 Programming  ) 


 REPLY  COMMENTS  OF  LIFETIME  ENTERTAINMENT  SERVICES 
 Lifetime  Entertainment  Services  (  Lifetime)  hereby  replies  to  comments 
 submitted  in  response  to  the  Commissions  Notice  of  Proposed  Rulemaking  concerning 
 the  implementation  of  video  description  in  television  programming.  1  Lifetime  and  its 
 recently  launched  sister  network,  Lifetime  Movie  Network  (  LMN),  are  24-  hour, 
 advertiser  supported  basic  cable  networks  targeted  to  women.  2  Although  Lifetime  has 
 always  supported  the  accessibility  of  television  programming  to  as  large  an  audience  as 
 possible,  it  has  serious  reservations  about  the  proposals  under  consideration  by  the 
 Commission  in  this  proceeding. 
 Lifetime  believes  that  the  significant  constitutional,  jurisdictional,  copyright  and 
 practical  problems  that  have  been  identified  in  numerous  comments  in  this  proceeding  3 


 1  Implementation  of  Video  Description  in  Video  Programming,  MM  Docket 
 No.  99-  339,  Notice  of  Proposed  Rulemaking,  FCC  99-  353  (rel.  Nov.  18,  1999) 
 (  Notice). 


 2  Lifetime  currently  reaches  over  75  million  MVPD  households  and  is  ranked 


 third  among  advertiser-  supported  satellite-  delivered  program  networks  in  total  day 
 household  ratings  and  fifth  in  prime  time  ratings  according  to  A.  C.  Nielsen  Cable  Network 
 Audience  composition  Reports  (4th  Quarter  1999).  LMN  was  launched  in  June  1998. 
 3  See,  e.  g.  Comments  of  A&  E  Television  Networks  (  A&  E  Comments); 
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 -  2  - 
 have  been  inadequately  studied  and  addressed  at  this  time  to  permit  the  successful  and 
 effective  implementation  of  a  long-  term  video  description  scheme.  In  particular,  key 
 elements  of  the  proposals  under  consideration  do  not  take  into  account  significant 
 differences  between  video  description  and  closed  captioning.  Accordingly,  Lifetimes 
 reply:  (i)  expresses  Lifetimes  shared  concern  over  the  important  legal  issues  raised  by 
 other  commenting  parties;  (ii)  summarizes  Lifetimes  experiences  with  technical  and 
 practical  problems  that  video  description  poses  for  the  production  and  distribution  of 
 programming  to  MVPDs;  and  (iii)  offers  some  constructive  suggestions  to  help  make 
 video  programming  more  accessible  to  the  blind  and  visually  disabled  in  a  more  effective 
 manner. 


 1.  The  Basis  of  Lifetimes  Interest  in  Video  Description. 
 Lifetimes  commitment  to  program  accessibility  dates  back  to  1989,  when  the 
 network  instituted  closed  captioning  of  select  original  productions.  The  amount  of 
 captioned  programming  on  Lifetime  has  increased  steadily  since  that  time,  with 
 approximately  75%  of  Lifetimes  weekly  program  schedule  and  100%  of  its  prime  time 
 original  programming  closed  captioned  today.  The  networks  closed  captioned  original 
 programming  includes  highly-  rated  and  acclaimed  original  series  and  movies  such  as  Any 
 Day  Now  (which  will  receive  the  YWCA  Racial  Justice  Award  in  April  and  has  been 
 nominated  for  a  NAMIC  Vision  Award  for  diversity),  Lifetime  Live  (a  daily  news 
 service  targeted  to  women),  Courage  to  Love,  My  Little  Assassin  and  Navigating  the 
 Heart;  specials  such  as  Who  Wants  to  be  Our  President,  a  New  Hampshire  President 


 Comments  of  C-  SPAN  and  C-  SPAN2  (  C-  SPAN  Comments);  Comments  of  the 
 Motion  Picture  Association  of  America  (  MPAA  Comments);  and  Comments  of  the 
 National  Cable  Television  Association  (  NCTA  Comments). 
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 -  3  - 
 Town  Hall  Meeting;  and  the  Intimate  Portrait  series  featuring  prominent  women  such  as 
 Golda  Meir,  Indira  Gandi,  Hillary  Rodham  Clinton,  Cokie  Roberts  and  Eleanor  Roosevelt. 
 In  addition,  Lifetime  has  made  a  major  commitment  to  reformat  captioning  of  acquired 
 programs,  including  Party  of  Five,  Chicago  Hope,  Golden  Girls  and  Designing 
 Women.  Lifetime  has  also  explored  the  use  of  a  Secondary  Audio  Program  (  SAP) 
 channel  for  video  description  and  second  language  tracks;  however,  as  will  be  discussed  in 
 greater  detail  below,  technical  and  practical  obstacles  have  impeded  these  efforts. 


 2.  Legal  Issues  Associated  with  Video  Description. 
 The  comments  of  the  NCTA,  A&  E,  C-  SPAN  and  MPAA  identify  some  serious 
 legal  issues  raised  by  mandatory  video  description.  First,  legal  questions  exist  as  to  the 
 Commissions  jurisdiction  to  mandate  video  description.  Indeed,  Congress  only 
 authorized  the  Commission  to  study  the  issue,  not  to  impose  requirements.  4  Lifetime  also 
 concurs  in  these  comments  assessment  of  the  constitutional  problems  presented.  Unlike 
 closed  captioning,  which  involves  only  the  preparation  of  a  transcript  of  the  actual  existing 
 audio  content  of  a  television  program  for  presentation  in  textual  form,  video  description 
 involves  highly  subjective  artistic  and  editorial  decision-  making  as  to  how  what  is  taking 
 place  visually  in  a  program  should  be  described,  a  judgment  call  that  is  also  affected  by  the 
 length  of  pauses  in  the  programs  existing  audio  in  which  to  insert  such  description.  Thus, 
 as  both  C-  SPAN  and  MPAA  explain,  video  description  would  compel  content-  based 
 speech  on  media  protected  by  the  First  Amendment  in  a  manner  that  is  not  narrowly 
 tailored  to  serve  a  compelling  state  interest.  5  From  a  copyright  law  standpoint,  video 
 description  entails  creation  and  public  performance  of  a  derivative  work  of  the  original 


 4  See  MPAA  Comments  at  3-  6  and  NCTA  Comments  at  3-  5. 
 5  See  C-  SPAN  Comments  at  5-  7  and  MPAA  Comments  at  7-  9. 
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 television  program,  which  cannot  be  done  without  the  permission  of  the  copyright  owner, 
 regardless  of  the  FCCs  mandate.  6  Although  it  certainly  is  possible  to  obtain  such 
 permission,  a  networks  ability  to  do  so  is  by  no  means  assured.  Moreover,  the  need  to 
 obtain  video  description  rights  undoubtedly  will  add  to  the  lead  time  and  cost  of  new 
 productions  and  potentially  will  be  even  more  difficult  to  obtain  for  pre-  existing 
 syndicated  programs  that  already  are  under  contract.  Thus,  for  networks  such  as  Lifetime, 
 which  airs  a  significant  amount  of  pre-  existing  syndicated  programming,  the  copyright 
 aspects  of  video  description  will  significantly  complicate,  delay  and  increase  the  cost  of 
 program  acquisition.  The  existence  of  all  of  these  potentially  serious  but  unresolved  legal 
 issues  militates  against  precipitous  imposition  of  rigid  regulatory  mandates  and  in  favor  of 
 those  aspects  of  the  Commissions  proposal  based  on  a  more  measured  and  flexible 
 approach. 


 3.  Practical  Considerations  and  Existing  Resources  for  Video  Description. 
 Many  of  the  comments  do  not  fully  appreciate  the  significant  differences  between 
 what  was  needed  to  implement  closed  captioning  and  what  it  will  take  to  implement  video 
 description.  7  Lifetimes  experience  in  production  and  acquisition  of  programming 
 indicates  that  the  personnel,  equipment  and  administrative  resources  that  are  needed  to 
 support  implementation  of  video  description  greatly  exceed  the  resources  required  for 
 closed  captioning.  Moreover,  while  the  resource  needs  for  video  description  are  greater, 
 far  fewer  resources  are  available  for  video  description  than  those  available  for  closed 
 captioning  when  the  captioning  rules  were  adopted.  Lifetime  estimates  that  in  the  cable 


 6  See  MPAA  Comments  at  14-  18;  17  U.  S.  C.    101  et  seq.. 
 7  See  Comments  of  the  American  Foundation  for  the  Blind  at  6  and 


 Comments  of  Narrative  Television  Network  at  2-  3 
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 television  context,  the  status  of  video  description  today  is  almost  ten  years  behind  what 
 the  status  of  the  closed  captioning  field  was  at  the  time  captioning  became  mandatory. 


 a.  Personnel  Requirements  for  Video  Description 
 In  general,  the  staffing  needs  for  closed  captioning  are  smaller  and  less  demanding 
 than  for  video  description:  a  stenocaptioner  to  transcribe  the  audio  portion  of  the 
 program  into  text;  a  proofreader  or  supervisor  to  maintain  quality  control;  and  a  technician 
 to  put  the  visual  text  on  the  master  tape  of  the  program.  To  the  extent  that  such  personnel 
 are  not  already  available  in  the  labor  force,  a  substantial  cadre  of  trained  court 
 stenographers  can  be  converted  to  video  captioning  or  individuals  can  learn  the  necessary 
 skills  at  many  institutions  that  provide  such  training. 
 In  contrast,  it  takes  at  least  four  to  six  professionals,  several  of  whom  must  be 
 highly  skilled,  to  equip  a  pre-  recorded  program  with  video  description,  and  the  process  is 
 much  more  time-  consuming  and  complex.  8  As  noted  above,  the  principal  difference 
 between  the  creation  of  the  video  descriptions  and  the  creation  of  closed  captions  is  that 
 video  description  entails  editorial  and  creative  skills,  while  closed  captioning  only  requires 
 someone  to  transcribe  what  already  has  been  created.  Video  description  cannot  begin 
 until  there  is  a  finished  program,  which  someone  must  watch  in  order  to  make  the  highly 
 subjective  editorial  and  artistic  judgments  of  how  best  to  convey  in  an  aural  manner  what 
 is  happening  visually  on  the  screen  within  the  stringent  confines  of  available  pauses  in 
 dialogue  or  audio  portions  of  the  program.  The  writing  skills  required  for  creating  video 


 8  The  demands  and  skills  that  would  be  required  for  live  programming  are 
 even  more  unique,  as  noted  in  the  Commissions  Notice  as  well  as  in  certain  comments. 
 See  Notice  at  footnote  64,  NCTA  Comments  at  18,  Comments  of  Alan  Clive  at  2-  3  and 
 Comments  of  QVC,  Inc.  at  4-  5. 
5
 -  6  - 
 captions  are  comparable  to  those  needed  for  writing  radio  scripts.  As  the  Commission 
 recognizes  and  as  comments  submitted  by  the  National  Federation  of  the  Blind  and  the 
 National  Television  Video  Access  Coalition  stipulate,  this  is  not  an  easy  task.  In  fact, 
 there  is  a  very  basic  disagreement  among  blind  and  visually  disabled  individuals  as  to  the 
 desirability  of  video  description  at  all.  9  Moreover,  only  if  the  descriptions  are  read  by  a 
 professional  actor  or  voice-  over  talent  accustomed  to  the  timing  and  other  demands  of 
 audio  production  will  the  video  description  process  be  effective  and  enhance  rather  than 
 detract  from  the  audiences  experience.  A  director  may  also  be  required  to  guide  and 
 coordinate  the  voice-  over  talent.  On  the  technical  side,  video  descriptions  require  an 
 experienced  audio  engineer  and  audio  editor  to  fit  the  descriptions  within  the  pauses  in  the 
 program  and  a  video  engineer  to  lay  the  video  descriptions  back  on  the  video  tape 
 following  encryption. 


 b.  Unique  Technical  Constraints  in  the  Cable/  MVPD  Context 
 For  a  satellite-  delivered  programming  network,  implementing  video  description 
 would  require  major  changes  to  the  infrastructure  at  each  step  of  the  production  and 
 distribution  process,  from  the  studio  to  the  cable  headend.  In  the  production  and  post 
 production  process,  Lifetime  currently  is  using  the  full,  four-  channel  audio  capacity  of  its 
 video  recording  equipment,  and  there  is  no  equipment  commonly  in  use  that  is  capable  of 
 recording  the  fifth  audio  channel  that  would  be  needed  for  video  description.  In  the 
 broadcast  phase,  because  Lifetime  currently  operates  in  a  two-  channel  on-  air  environment 
 (stereo),  it  also  would  need  to  augment  the  on-  air  play-  out  infrastructure  to  accommodate 
 a  third  synchronous  audio  channel  for  video  description.  In  the  transmission  process, 
 additional  infrastructure  would  be  needed  as  well  for  the  ground-  based  circuits  that 


 9  See  Comments  of  the  National  Federation  of  the  Blind  at  1-  3,  5. 
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 transmit  programming  to  the  satellite  uplink.  Depending  on  the  satellite  technology  in  use, 
 it  is  unclear  whether  Lifetime  would  be  able  to  include  an  additional  audio  channel  on  the 
 same  transponder  without  interference.  Moreover,  the  encryption  system  currently  in  use 
 in  satellite  transmissions  cannot  process  an  additional  audio  channel.  As  noted  above, 
 Lifetime  began  exploring  use  of  the  SAP  for  video  description  or  second  language  audio 
 several  years  ago.  Although  some  cable  operators  expressed  interest  in  passing  through 
 the  SAP  to  subscribers,  the  need  to  reconfigure  their  systems  to  accommodate  an 
 additional  audio  channel,  which  is  detailed  in  the  NCTA  Comments,  10  was  a  major 
 concern  to  them.  The  addition  of  an  audio  channel  at  the  cable  headend  is  complicated 
 further  by  the  switching  involved  in  local  advertising  insertion  by  the  cable  operator,  an 
 essential  element  of  the  economic  relationship  between  programming  networks  and  their 
 distributors.  While  all  of  these  technical  limitations  can  be  examined  and  explored,  the 
 cost,  time  and  resources  involved  should  not  be  underestimated. 


 4.  Recommendations. 
 Clearly,  significant  legal  and  practical  problems  continue  to  stand  in  the 
 way  of  rapid  deployment  of  video  description.  While  this  should  not  deter  the 
 Commission  or  the  affected  industries  from  pursuing  the  worthy  goal  of  making  television 
 more  accessible  to  the  visually  disabled,  the  realities  of  implementation  must  be  taken  into 
 account.  Lifetime  strongly  supports  those  elements  of  the  Commissions  Notice  that 
 recognize  the  need  for  a  more  measured  approach. 
 As  the  A&  E  Comments  point  out,  rigid  video  description  mandates  are  premature 
 at  this  time.  11  Experience  with  video  description  is  not  yet  widespread,  as  is  evident  from 


 10  NCTA  Comments  at  15-  17. 
 11  See  A&  E  Comments  at  14-  16. 
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 the  extremely  limited  scope  of  the  examples  (public  television  programs  and  Turner 
 movies)  presented  in  the  comments  in  this  proceeding.  Moreover,  when  closed  captioning 
 rules  were  adopted,  there  were  at  least  three  or  four  facilities  immediately  capable  of 
 providing  the  captions  in  a  major  way.  In  contrast,  WGBH  appears  to  be  the  only  facility 
 that  has  come  forward  with  the  ability  to  provide  video  descriptions  at  this  time.  This 
 further  underscores  the  need  for  additional  time  for  experimentation,  for  identification  of 
 the  precise  kinds  of  resources  needed  and  for  such  resources  to  develop. 
 Lifetime  agrees  with  A&  E  that  the  Commission  should  encourage  the  industry  to 
 engage  in  further  voluntary  experimentation  before  adopting  rules.  Even  in  the  case  of 
 voluntary  efforts,  there  must  be  sufficient  lead  time  (at  least  the  18  months  that  the 
 Commission  proposed)  to  enable  programmers  to  obtain  rights  to  video  caption  pre-existing 
 programs  or  to  assemble  the  talent  and  other  resources  necessary  to  provide  high 
 quality  captions  for  original  productions.  While  Lifetime  basically  agrees  with  the 
 Commissions  determination  --  supported  by  the  comments  of  visually  disabled  advocacy 
 groups  12  --  that  video  description  of  news,  sports  and  live  events  coverage  need  not  be 
 among  the  first  genres  of  programming  to  be  video  described,  Lifetime  nonetheless  urges 
 the  Commission  to  allow  participants  in  video  description  trials  maximum  flexibility  to 
 determine  what  works  best.  In  order  to  benefit  by  the  knowledge  and  experience  gained 
 through  an  official  period  of  trial  and  experimentation,  the  Commission  could  require 
 participants  to  submit  reports  on  their  efforts  by  a  pre-  determined  date. 


 5.  Conclusion 
 There  is  no  question  that  making  television  programming  more  readily  accessible 


 12  See  Notice  at  12  and  Comments  of  the  National  Federation  of  the  Blind  at 
 5-  6. 
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 -  9  - 
 for  the  blind  and  visually  disabled  is  an  important  objective  that  Lifetime  strongly 
 supports;  however,  the  legal,  technical  and  practical  issues  that  video  description  presents 
 must  be  resolved  before  long-  term  requirements  for  implementing  a  video  description 
 system  are  established.  The  most  productive  course  for  the  Commission  to  pursue  at  this 
 time  is  to  continue  gathering  information  based  on  industry  experience  gained  through 
 flexible,  creative  and  effective  efforts. 


 Respectfully  submitted, 
 LIFETIME  ENTERTAINMENT 
 SERVICES 


 March  24,  2000  By:  /s/ 
 Patricia  Langer 
 Executive  Vice  President,  Legal,  Business 
 Affairs  and  Human  Resources 
 Lifetime  Entertainment  Services 
 309  West  49  th  Street 
 New  York,  NY  10019 
 212-  424-  0977 
9