Television for All: Increasing Television Accessibility for the Visually Impaired Through the FCC's Ability to Regulate Video Description Technology

I. INTRODUCTION II. REACHING THE DECISION A. The Effects of the 1996 Telecommunications Act B. Initial Reception to the Video Description Regulations--the Battle Begins III. CONFLICT AND CHANGES A. Why Is This a Problem? B. The Effect of Video Descriptions on the Television Industry C. Showdown: Video Description Versus Closed Captioning D. The Transition to Digital Television's Effect on Video Descriptions IV. SOLUTIONS TO THE CURRENT SITUATION A. Stimulating the Video Description Market B. Federal Regulation Mandating Implementation of Video Description Technology V. CONCLUSION I. INTRODUCTION Many people take for granted the relatively simple action of sitting down at the end of the day and turning on the television. They can relax and let wave after wave of sounds and images wash over them, relieving their stress and tension. Regardless of whether the dial is set to sports or a soap opera, news or nonsense, drama or comedy, television is something that has become part of the fabric of almost every person's life. However, there are a significant number of people in the United States who are unable to enjoy this activity. The U.S. judicial system has created a "have and have-not" dichotomy when it comes to persons with disabilities enjoying television. As a result of the D.C. Circuit's 2002 decision in Motion Picture Association of America, Inc. v. Federal Communications Commission, the FCC is allowed to regulate closed captioning, forcing television manufacturers and broadcasters to implement technology that will allow deaf Americans to enjoy television more fully. (1) In the same decision, the court found that the FCC did not have power to promulgate regulations regarding video descriptions (2) that would allow blind and seeing-impaired Americans to have a more complete television experience, similar to those without a disability. (3) The Survey of Income and Program Participation is a national survey that collects data on a regular basis to identify the percentage of the American population with heating loss or deafness. (4) This survey has found that "1 in 20 Americans are currently deaf or hard of heating. In round numbers, nearly 10,000,000 persons are hard of hearing and close to 1,000,000 are functionally deaf." (5) Americans who suffer from hearing loss or complete deafness have become the "haves" when it comes to the FCC's ability to provide a satisfactory television experience; since 1993, the FCC has taken steps to make sure that closed captioning (6) is available to as many Americans as possible. (7) The ability of the FCC to help those with hearing problems is in stark contrast to its ability to help those with seeing problems through the use of video descriptions. Allowing the FCC to regulate video descriptions would help the 25.2 million Americans who have reported problems seeing, many of whom are unable to see at all. (8) This Note argues that the time has come to take action and increase availability of video descriptions. Part II of this Note examines the court's decision in Motion Picture Association of America. It considers both the views of the visually impaired community and the entertainment industry leading up to the court's decision. Part II further examines the major justifications that the court used in reaching its decision. Part III begins by exploring why the lack of video description technology is a problem. As a result of the decision in Motion Picture Association of America, closed captioning and video description have been placed in juxtaposition to one another. This Section explores the divergence in treatment between the two and whether those differences justify their disparity in treatment under the current regulatory scheme. The Section ends by looking at the changes available for video description technology as a result of the digital transition and how the change affects the ease of implementing the technology. …