Broadcasters, movie industry challenge FCC rules for descriptive-video services

Monday, June 11, 2001

Frustration with the lack of narration for the blind in today’s movies and television programs — the season finale of “The West Wing,” for example, ended with a visual cue — prompted the Federal Communications Commission last year to require broadcasters and movie studios to include them in the future.

But broadcasters and studio officials claim the mandate forces the creation of whole new scripts, and thus violates their First Amendment right of free speech.

Recently, the National Association of Broadcasters, the Motion Picture Association of America and the National Cable and Television Association challenged the FCC order and asked the U.S. Court of Appeals for the D.C. Circuit to invalidate the new rules.

The rules, approved last fall, require network affiliates in major markets to offer visual narration for four hours a week of prime time or children’s shows by June 2002. Cable and satellite operators have similar requirements for their most popular channels.

The technology, known as descriptive-video service, allows a user to turn on a second audio track to listen to narration describing visual action. Television sets made after 1993 already include the service, which is sometimes used for Spanish-language dubbing.

Charles Crawford, executive director of the American Council of the Blind, said television and movie producers had failed to provide the narration over the years, leaving the service inactive. He said his group had lobbied for such programming for more than 15 years.

Crawford and others can cite only a few efforts to provide the services. CBS experimented with the technology 10 years ago on a series pilot that never aired. WGBH, a public TV station in Boston, supplies the service to about 170 PBS stations, and Turner Classic Movies has described about 200 movies in its library, including “The Wizard of Oz.”

“Had there been a serious effort on the part of the motion picture industry and broadcasters to make that information available, I don’t think we would have ever gone to the Federal Communications Commission,” Crawford said in a telephone interview. “Their lack of action showed no commitment.”

Crawford remembers MPAA officials suggesting some years ago that the advent of digital technology would bring change.

“Now that digital technology is up and coming, we haven’t seen them do anything to promote these services,” he said.

And he suggests the flexibility of digital communications — such as the 16 different audio channels available on DVDs, as opposed to the two analog channels offered on videotapes — makes descriptive-video services accessible and affordable.

But the rules haven’t garnered unanimous support among the blind. The National Federation of the Blind opposes the mandate, saying it further isolates blind people from the general population.

“The rules would be going overboard,” said James Gashel, director of governmental affairs for the group. “It gets into an area that just isn’t needed. Our point of view is, we have a responsibility in society to tell the truth about what blind people need.

“We like to choose our mandates,” Gashel said in a telephone interview. “We just don’t believe that with every mandate that comes along you should stand up and salute for it.”

Gashel, blind since birth, watched the contested episode of “The West Wing” but couldn’t see President Josiah Bartlet shove his hands into his pockets and smile, an indication that he planned to run for a second term. He said that instead of complaining, he turned to his wife and asked her what had happened.

“And if I had been in the room alone, what would I have done?” Gashel said. “If I cared enough about it that I couldn’t wait until the next day, I would have called somebody on the phone and said, ‘What the Sam Hill happened on the show?’ “

Gashel’s group does support separate FCC rules, also adopted last fall, which require news, weather and government programming to offer any information that is printed on the screen in an audio form as well.

Papers filed during the FCC’s rulemaking suggest video narration comes at some cost. WGBH produces the description at about $4,400 per program hour and estimates that it would cost local stations up to $25,000 to handle the extra audio channel.

The NAB, in such papers, estimates that upgrade costs for a single television network could be as high as $1.6 million. NAB spokesman Dennis Wharton said he wouldn’t comment about the numbers or the lawsuit.

The MPAA said the video-narration requirement could force delays in releasing movies as well.
MPAA spokesman Rich Taylor said his group was concerned not only with costs but also with how the services could effectively “change the message” of the program’s or movie’s creator. Unlike closed-captioning, which merely scrolls part of the written text along the bottom of the screen, video description requires an entirely new script to describe action, posturing and background, he said.

“There’s only one set of accurate closed-captioning, but there are infinite sets of accurate video descriptions,” Taylor said in a phone interview.

First Amendment attorney Robert Corn-Revere, who is representing all three groups, said the FCC rules essentially require the motion picture industry and broadcasters to create an entirely new artistic work. He compared the rules to ordering a national newspaper to publish a Braille edition.

“I don’t know of any case that would support that kind of compelled speech,” he said by telephone.

But Corn-Revere said the court might not ever address the constitutional issue. He said the FCC, in adopting the narration rules, acted outside the scope of the 1996 Communications Act, which did not include descriptive-video services in the final draft.

“Basically, the FCC is arguing that it has the authority (to require the narration) under its public-interest obligations, even though that part was stripped from the final bill,” he said. “Where there is room for substantial doubt, the standard they must choose is the one that does not create constitutional problems.”

Crawford of the American Council of the Blind said he didn’t view the video-description rules as compelled speech but as a means for artists to fulfill a mission to get their work out to the greatest number of people. He called it “a wrong leap of logic” to go from video description to compelled speech.

“That’s probably the strongest argument and probably the most disingenuous argument they can raise against descriptive-video services,” Crawford said in a telephone interview. “They’ve always resisted any changes based on the First Amendment. I wish the commercial interest was greater, but video description doesn’t sell as well as sex.”

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