COURT SAYS FCC OVERSTEPPED ITS AUTHORITY WITH VIDEO DESCRIPTION
U.S. Appeals Court, D.C., struck down FCC’s video description rules, saying Communications Act “does not give the FCC unlimited authority to act as it sees fit with respect to all aspects of television transmissions.” Decision came in Motion Picture Assn. of America v. FCC, case in which MPAA was joined by NAB and NCTA. Writing for majority, Judge Harry Edwards pointed out that Telecom Act added specific mandate for FCC to enact rules for closed- captioning, but not for video description. He said there was “a marked difference” in way Congress treated those 2, but FCC nevertheless adopted rules for both.
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In fact, FCC had sought commentary in Notice of Proposed Rulemaking (NPRM) on whether Commission had statutory authority to enact such rules. After reviewing comments on issue, Commission voted in 2000 to adopt rules on 3-2 vote, with Comrs. Powell and Furchtgott-Roth dissenting. Rules became effective in April. FCC spokeswoman said Commission was reviewing decision and couldn’t comment immediately.
Some FCC-watchers said decision had sweeping implications for all Commission rules that affected program content not specifically mandated by Congress, such as agency’s prime time access rule giving local stations -hour of programming in 7-11 p.m. hours and rules on children’s programming. “It was a very powerful decision and the court almost seems to have gone out of its way to make a broader point on the limitations of using public interest without specific congressional instructions, so it does seem that it may well apply issues beyond video description,” Furchtgott- Roth said in interview: “On a forward-going basis, this is a shot across the bow to the Commission.” He was quick to add that under now-Chmn. Powell, he had not seen any decisions that had tried to reach beyond statutory authority. Furchtgott-Roth called ruling “exactly the right decision.”
American Council of the Blind will appeal, lobby Congress for changes in law, or both, said group’s Penny Reeder: “We are very disappointed. It’s not over. Thousands of blind people have been watching video-described programming, and they like it. We hope now that some of the networks won’t stop. The FCC didn’t tell them they couldn’t do it.” Reeder said rules were necessary because networks didn’t provide description voluntarily.
MPAA Pres. Jack Valenti said his group and its member companies supported video description on voluntary basis, “and we will continue to make available our filmed entertainment to as wide an audience as possible, specifically including the blind and those with impaired vision.” He also said MPAA welcomed court’s decision. NCTA Senior Vp-Law & Regulatory Policy Daniel Brenner said: “We believe the court reached the right result in finding that the FCC exceeded its statutory authority.” NAB spokesman didn’t return numerous phone messages seeking comment.
FCC’s video description rules required commercial TV broadcasters affiliated with top 4 commercial networks (ABC, CBS, Fox and NBC) to provide 50 hours of video description per quarter during either prime time or children’s programming. Rules also required multichannel video program distributors (MVPDs) that served 50,000 or more subscribers to provide 50 hours of video description per quarter in prime time or children’s programming on each channel that carried one of top 5 nonbroadcast networks. Video description is described as audio narrated descriptions of TV program’s key visual elements inserted into natural pauses between program dialog. MPAA had said such rule would require 2nd program script for material not originally there.
Media Access Project (MAP), which wasn’t party to case, expressed dismay over court’s decision. “This is an extraordinarily sweeping decision and it is just the latest in a series of decisions in which the D.C. Court of Appeals appears to be going far beyond prior precedent and far beyond what the Supreme Court has said in years’ past,” MAP Pres. Andrew Schwartzman said. “This one really jeopardizes a number of important FCC policies.” Specifically, he cited rules requiring broadcasters to meet public interest needs of their community and each quarter to provide list of public programming in their public files. He also wondered about children’s programming and rules on extent of commercial content they could contain. Those rules aren’t specifically enumerated in Children’s TV Act. “The decision is extraordinarily troublesome, and we may try to pursue it.”