Video Description Restoration Act begins long journey.
In the wake of the DC court of Appeals decision vacating the FCC video description rule based upon insufficiently express language from Congress mandating the service, a powerful coalition of groups have formed to restore our access to television programming. The groups include deafness, disability groups, blindness groups, AARP and providers.
The Video Access Coalition has sent what is called the Video Description Restoration Act (VDRA) to contacts made in congress and is hopeful that the bill will be introduced soon. Not only will it address restoration of video description and expansion over time, but will also seek to make screen menus accessible and able to be navigated by blind users.
Once the necessary next first steps in the process of launching the campaign is identified, the Coalition will be asking for all the help friends and members can supply in strategic moves aimed at swift passage of the VDRA. The ACB legislative seminar starting March 24, 2003 will feature the efforts made by the Coalition and strongly state that the time has finally come for the voices and choices of the blind and visually impaired community be heard by those who represent them in congress.
Passing the FCC Rule
The Federal Communications Commission on a 3-2 vote, required broadcasters affiliated with the four major networks in the top 25 television markets to offer so called video-description services by April 2002. Cable and satellite providers with 50,000 subscribers or more would have to carry video descriptions for any of the networks rated in the top five that they carry. The Federal Communications Commission issued a proposal of proposed rulemaking, FCC MM Docket No. 99-339. A Report and Proposals of The National Coalition of Blind and Visually-Impaired Persons For Increased Video Programming Accessibility, FCC – MM Docket No. 95–176, filed. On November 8, 2002 the District of Columbia Court of Appeals reversed the FCC ruling and found that the FCC has acted beyond the scope of its authority in adopting the audio description rules. The court subsequently denied rehearing and there was no appeal to the Supreme Court.
March 9, 2003 DRAFT 3 OF:
Video Description Restoration Act
To amend Sections 303, 711, and 713 of the Communications Act of 1934
Sec. 1. SHORT TITLE – This Act may be cited as the “Video Description Restoration Act of 2003”
Sec. 2.
(a) FINDINGS – The Congress finds that –
- (1) Television plays a critical role in our society as a vital source of news, information, local and community affairs, education, and entertainment;
- (2) The inability of more than eight to twelve million Americans with visual disabilities to follow the visual action in television programs puts these individuals at a significant disadvantage in their daily lives;
- (3) The nation has a compelling public interest in furthering the safety, security and well-being of persons who are blind and visually impaired by ensuring, to the fullest extent made possible by technology, equal access to the television medium;
- (4) Video description can assist millions of school aged children with learning disabilities by enhancing the televised information to which they have access.
- (5) Digital technology facilitates the accommodation and provision of video description;
- (6) The United States Court of Appeals for the District of Columbia Circuit has ruled that the Federal Communications Commission lacked authority to issue regulations that would ensure accessibility to video programming by persons who are blind and visually impaired through video description; and
- (7) Legislative action is necessary to restore the authority of the Commission to establish rules and regulations to require video description.
(b) PURPOSE – It is the purpose of this Act to provide a clear and comprehensive mandate for the provision of access to video programming by persons who are blind and visually impaired through video description.
Sec. 3. DEFINITIONS
(a) VIDEO DESCRIPTION – The term “video description” has the meaning given to it by section 713(g) of this Act. (42 U.S.C. 613(g)).
(b) UNDUE BURDEN – The term “undue burden” has the meaning given to it by section 713(e) of this Act. (42 U.S.C. 613(e)).
Sec 4. COMMISSION AUTHORITY – Section 303 of the Act is amended by adding thereto subsection (z), as follows:
“Except as otherwise provided in this Act, the Commission from time to time, as
public convenience, interest, or necessity requires, shall –
(z) have authority to make rules and regulations to ensure that video programming, including emergency video programming, is accessible through video description.”
Sec. 5. REGULATIONS REQUIRED – Section 713 (f) of the Act is amended as follows:
The Commission shall,
(1) within six months after the enactment of this section, reinstate regulations previously set forth in Part 79.3 of the Commission’s rules governing the provision of video description on video programming;
(2) within one year after the enactment of this section establish an appropriate schedule of deadlines to ensure that video programming first published or exhibited after the effective date of such regulations is fully accessible through the provision of video description. The requirements contained in such schedule shall exceed such requirements as are set forth in the Commission’s rules referenced in subsection (1);
(3) within one year after the enactment of this section establish regulations to ensure that individuals who are blind or visually impaired are provided with a readily accessible means of opening and closing video descriptions via the second audio programming channel or its equivalent;
(4) within one year after the enactment of this section establish regulations to ensure access to on-screen menus and other navigational programming tools by persons who are blind and visually impaired; and
(5) within one year after the enactment of this section establish regulations to require video programming providers and owners to make available, through ordinary distribution channels, notice about the existence of programs containing video description.”
Sec. 6. Section 713 is amended by adding the following subsections (i) and (j)
“(i) EXEMPTIONS – Notwithstanding section (f) –
(1) the Commission may exempt by regulation programs or classes of programs
for which the Commission has determined that the provision of video
description would be –
i. unduly burdensome to the provider or owner of such programming; or
ii. not necessary to achieve video programming accessibility by persons who are blind and visually impaired.
(2) a provider of video programming or program owner may petition the
Commission for an exemption from the requirements of this section, and the
Commission may grant such petition upon a showing that the requirements
contained in this section would result in an undue burden.
(3) Except that nothing in this section may be construed to exempt video program providers or owners from existing and future obligations to provide access by
persons who are blind and visually impaired to televised emergency programming.
(j) NEW TECHNOLOGIES – As new video technology is developed, the Commission shall take such action as the Commission determines appropriate to ensure that video description continues to be available to viewers.”
Sec. 7 Section 711 of the Act is amended as follows:
“Sec. 711. Closed-captioning and video description of public service announcements
Any television public service announcement that is produced or funded in whole or in part by any agency or instrumentality of Federal Government shall include closed captioning of the verbal content of such announcement, and video description of the visual content of such announcement. A television broadcast station licensee –
(1) shall not be required to supply closed captioning or video description for any such announcement that fails to include it; and
(2) shall not be liable for broadcasting any such announcement without transmitting a closed caption or video description unless the licensee intentionally fails to transmit the closed caption or video description that was included with the announcement.”
Bullets on Content Regulation Issue – DRAFT
- The video description requirement is not content-related; rather it is a means of providing accessibility to video programming by people who are blind and visually impaired on programming content that has already been prepared for public viewing. It simply describes what has already been produced in the program.
- The video description requirement is a content neutral mandate. It makes no distinctions between or among programs on the basis of content. The only distinction presently made by the FCC video description rules is based on the size of the broadcast and cable networks. Additionally, criteria for exemptions from the video description mandates in the proposed legislation are based on economic factors, not content.
- The video description requirement does not “force” speech. Cases that have dealt with forced speech have disallowed requirements to actually impose burdens on speech. For example, in Wooley v. Maynard, 430 U.S. 705 (1977), the Supreme Court refused to permit a state to compel an individual to display the slogan “Live Free or Die” on his license plate if the individual found the slogan to be morally objectionable. Similarly, in Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1 (1986), the Court found that it was not constitutional to require a utility company to include the speech of a group with whom the company disagreed, in its billing inserts. In each of these cases, the Court refused to compel a speaker to make utterances with which he disagreed. In contrast, the video description requirement only mandates that video programmers make accessible the speech that they freely choose to exhibit, in a format that is accessible by people who are blind or visually impaired.
- The video description requirement should be permitted because it is “narrowly tailored” to serve an “important or substantial governmental interest.” United States v. O’Brien, 391 U.S. 367, 377 (1968). Specifically, FCC rules requiring video description will assist the Commission in meeting its longstanding obligation to provide universal service and to extend communications access to all Americans. The universal service obligation, contained in Section 1 of the Communications Act, requires the Commission to make communications “available, so far as possible to all the people of the United States.” 47 U.S.C. ง151. Congress has repeatedly relied on this obligation to mandate various forms of communications access by people with disabilities, including hearing aid compatibility in the Telecommunications for the Disabled Act of 1982 and the Hearing Aid Compatibility Act of 1988, 47 U.S.C. ง610, relay services in the Americans with Disabilities Act, 47 U.S.C. ง225, closed captioning in the Telecommunications Act of 1996, 47 U.S.C. ง713 and closed caption decoder-equipped television sets in the Decoder Circuitry Act of 1990, 47 U.S.C. งง 303(u), 330 (b). An estimated 8 to 12 million Americans with visual disabilities, and [fill in number] Americans with learning disabilities would benefit from the video description requirement, evidencing the furtherance of a substantial governmental purpose.
- The video description requirement is narrowly tailored to achieve the government interest at hand. That governmental interest – providing programming accessibility by persons with vision disabilities – could not be achieved absent the proposed requirement.
- The video description requirement does not give unbridled discretion to the FCC. Rather, it contains specific undue burden criteria which the FCC must follow before granting exemptions from its mandates. The criteria is identical to that used to grant exemptions from the Commission’s closed captioning requirements. This criteria directs the Commission to weigh the costs of providing access against the ability of the covered entity to pay those costs. This meets the test in Grayned v. City of Rockford, 408 U.S. 104 (1972), that laws affecting free speech provide explicit standards for those responsible for implementing them.
- The Supreme Court has stated, “a regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not on others.” Ward v. Rock Against Racism, 491 U.S. at 791 (1989). Here, the government’s purpose is to make video programming available to as large an audience as possible, a purpose that is unrelated to the content of expression. In a similar case, the Supreme Court upheld, in 1997, the constitutionality of the “must carry” obligation on first amendment grounds. The must carry obligation, contained in the Cable Television Consumer Protection and Competition Act of 1992, requires cable providers, upon request, to carry the signals of all local television broadcast stations. The provision is intended to preserve local broadcast television, promote the widespread dissemination of information from a multiplicity of sources, and promote fair competition in the television programming market.
- Another situation in which Congress has delegated to the FCC the responsibility of implementing programming regulations that may include some programs but exempt others is its mandate for children’s television programming, 47 U.S.C. 303a.
National Television and Video Access Coalition
Questions and answers about The Video Description Restoration Act
What is the Video Description Restoration Act or VDRA?
The VDRA restores the ability of persons who are not able to either see or otherwise understand what is happening visually during a television program to gain that access which was lost when a court said the FCC rules providing for this were not expressly authorized by Congress. The VDRA restores the FCC rule as a minimum floor with increased access over time.
What is video description?
Video description is the use of narration during natural pauses in dialog to let a person not able to see the screen know what is happening. Imagine music playing and a voice informs you that a van marked “express air and heat” pulls up to a building showing a sign reading “National Security Council.” Inside the building the man crawls through an air conditioning vent to a conference room and attaches a small microphone at the base of a vent above a table. Our view switches between people entering the room and the van pulling away from the building. There are countless scenes such as this which would leave a visually impaired person left to only imagine what was happening and further left frustrated by the experience.
Is video description still available?
Currently there is a residual amount of video description still made available from the time when the FCC mandate was in effect. This programming is not secure and even when it is broadcast, our national membership tells us that the pass through of description on satellite, cable, and local stations has been spotty.
Does the narration interfere with the ability of others to enjoy TV programming?
No. On television, the narration comes over a secondary audio programming channel which is normally off unless switched on for persons wanting it. The VDRA will continue this and require a similar conversion for digital television where the viewer will be able to select video description as one of the many audio options that technology offers.
What was the FCC mandate that the VDRA restores as a minimum level of service?
The Federal Communications Commission required that the major networks and cable channels present at least four hours of described programming per week starting in April of 2002. The FCC further required that video described programs be made available where TV stations not in the top 25 markets had the equipment to do so.
Why should Congress pass the VDRA?
The vast majority of the blindness community enjoyed and continues to want video description as a matter of access and fairness. In many ways, video description is for blind people what closed captioning is for those who are deaf. The infrastructure is already in place from the time of the FCC mandate and no major effort is required of the industry to continue the service. Modern television increasingly relies upon visual effects and scenes to convey important elements of the plot in contrast to older programming that was more dialog oriented. Moreover, while some networks such as Fox have been terrific in their production and support of described video, there are others who could well choose to drop the service and even in those cases where the broadcast happens, it does no good if it never makes it to the consumer because of broken links in the delivery system which now has no responsibility to comply with an FCC rule now defunct.
Who supports video description and why?
The American Council of the Blind and all the other members of the National Television and Video Access Coalition have supported video description for over 15 years on the basis that the service affords blind people with the same access to information on television that viewers take for granted. Other groups and advocates such as the American Association of Retired Persons, the American Foundation for the Blind, the Blinded Veterans Association, the Washington Metropolitan Ear, and other disability and deafness groups have also supported the service for much the same reason. The FCC order only came after the industry basically ignored the issue for those 15 years.
Is video description expensive?
No. Producers of the service currently charge between two and four thousand dollars for an hour of programming.
How does this affect the average person?
Consider yourself and your family. Should anyone lose vision to the point where they need to have television and movie events described, would this not be best accomplished by a professional service that comes with the program? There is not always someone else around to describe what is happening visually. Especially at movie theaters, the rest of the audience does not need to hear someone describing the visual action. Also consider that vision loss is a common occurrence with aging and video description is a way to guarantee that those who encounter vision loss will not be left out of the ability to enjoy television and movies in much the same way they always did.
Where is there ongoing information about this issue?
You can visit the web site of the American Council of the Blind at www.acb.org or call at area code (202)467-5081 to get the latest information.
Charles Crawford, ACB ccrawford@acb.org