The Braille Monitor                                                                                       April 2003

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Federal Appeals Court Rules against Mandated Described TV

by Chris Danielsen

Chris Danielsen
Chris Danielsen

From the Editor: One of the NFB's policies which has most frequently been willfully misunderstood and misrepresented by our opponents has been our position on described television. Video description of films, plays, and other public events or forms of entertainment is a service that some blind people like very much and others are more or less indifferent to. We have therefore taken no stand against such efforts and, in fact, helped to ensure that one of the Clinton inaugurations was described for the television audience.

We have always said that, since some people enjoy described television, we are pleased whenever the entertainment industry decides to create a program or series including description on the secondary audio channel. We have been far more insistent that on-screen print crawls or identification and information be voiced, since the absence of this material clearly deprives all viewers unable to read the print of the information provided to those who can read the small print. Moreover, it seems obvious to us that requiring the articulation of this material is a clear, achievable goal that demands a one-time modification in production equipment leading to complete access for blind and illiterate viewers.

The Federal Communication Commission (FCC) did not agree with our position and ruled that the major networks must begin describing some prime-time and children's entertainment programming. This decision has now been overturned in the appeals court, and our position has been vindicated. Chris Danielsen is a practicing attorney in South Carolina and a leader of the NFB of South Carolina. In the following article he describes what has been happening in the described-television battle and places it in perspective. This is what he says:

In 1989 Boston public television station WGBH began describing some of its programming on the air using the Second Audio Program (SAP) channel. The SAP feature was included on televisions and videocassette recorders so that additional soundtracks could be run to various programs, usually in foreign languages. The narrated descriptions (accurately denominated described television and not descriptive video) provided by WGBH filled in pauses in dialogue or commentary in a given program to provide the blind and visually impaired with a sense of what was taking place on the screen.

How much description was enough and when it became an annoyance has never been satisfactorily settled. Some people, usually those who have lost sight recently, yearn for details of costume, scenery, and characters' expression and gestures. Those used to drawing conclusions about these things from the dialogue or ignoring them as superfluous have always wanted otherwise silent plot pivots only. In a very real sense there is no good way to satisfy the entire video-description audience, but the drift from the beginning seems to have been steadily toward including more information, even sometimes data not available to the sighted audience.

In any case WGBH later expanded its description service to other public television stations and established the Descriptive Video Service (DVS). In 1992 the service began describing Hollywood movies on home video, and its efforts on that front were embraced by the blind community and became known as descriptive video. To be sure, some felt that such narration was not intrinsic to the enjoyment of filmed entertainment, but then those with such views could simply leave the SAP channel off and weren't required to purchase DVS's special home videos, which in any case didn't require use of the SAP feature.

Many of us in the Federation have enjoyed films and television programs described by DVS. In particular the description of Hollywood movies can be a real enhancement to certain films where long sequences with no dialogue make it difficult for a blind viewer to follow the action. The National Federation of the Blind supported DVS in its efforts to describe Hollywood films. Since 1992 DVS Home Video has had a place in the exhibit hall at our national conventions, and usually a screening of one of the service's new releases is included on the convention agenda. Those who want to attend the screenings do so; those who don't enjoy them do not. But because demand for video description in film or on television was by no means universal among the blind, the Federation never felt the need to push for legislation mandating provision of this service for either medium.

While the NFB has generally viewed described entertainment as enjoyable and useful to some, DVS has always viewed itself and its mission in more glowing terms. Its advertising campaigns (some of which were protested by NFB members) and literature have often implied that the life of a blind person is simply not complete without a descriptive soundtrack added to television programming. One ad went so far as to portray a blind man sitting in the dark, facing away from his television set with no companion but his cat. The implication was not only that the blind do not enjoy television without description, but that we lead lonely, unproductive lives that can be enhanced only by providing descriptions of television programs so that we will have something to brighten our dull existence.

Needless to say, Federationists have never adopted that position towards described television. To put the matter bluntly, blind people have much larger concerns than whether they can follow the action on a prime-time television program. The high unemployment rate among working-age blind people, the falling Braille literacy rate among blind children, and the plight of blind seniors unable to get the independence training that would keep them out of nursing homes come immediately to mind.

But DVS has had allies in its quest to make described TV a right rather than a privilege. The American Council of the Blind and others have decried the lack of described programming on network television. Apparently the chorus eventually grew loud enough that Congress asked the Federal Communications Commission (FCC) in the Telecommunications Act of 1996 to study the feasibility of adding description to network television programming.

While the version of the act that emerged from the U.S. House of Representatives authorized the FCC to promulgate regulations for the description of television programming, the law which ultimately emerged from the Congress and was signed by President Clinton did not authorize such regulations. The version of the Telecommunications Act that ultimately went into the books did authorize the FCC to promulgate regulations mandating the provision of closed captioning for deaf viewers, but only authorized the body to issue a report on video description. This distinction made sense since closed captioning is a literal rendering of the spoken word and no more, while video description turns strictly visual information into words not created or even intended by the original writer.

The FCC issued the report requested by Congress, which stated that "the best course is . . . to continue to collect information and monitor the deployment of video description and the development of standards for new video technologies that are likely to affect the availability of video description." But like Alice in Wonderland, the FCC didn't follow its own good advice and in 1999 issued a notice of proposed rule-making (the initial step in jumping through the hoops that federal agencies set themselves when they promulgate regulations) that would require broadcasters to include descriptions in their programming.

The FCC had apparently concluded that described television would be beneficial to blind viewers. As the Federal Court of Appeals for the District of Columbia Circuit would note later, "The FCC primarily based this conclusion on the American Council [of] the Blind's submission, which contained more than 250 e-mails and letters of support for the rules." Not surprisingly, the FCC ignored comments from the National Federation of the Blind, as well as from other blind Americans which set forth the very good reasons for opposing mandated description of entertainment programming on TV and instead supported our position that blind people would be better served by a mandate that required articulation of text printed on the television screen.

A few comments on the rationale for this position are in order here. There are many differences between television, sometimes referred to as the small screen, and the type of entertainment provided in Hollywood films shown in theaters--the so-called big screen. For one thing, the small screen, being more intimate, does not lend itself to the kind of visual extravagance which Hollywood likes to splash across the cinematic screen in the blockbuster films it releases. While television programming does include pauses in dialogue where visual action is taking place, they are typically neither as frequent nor as long as those in a Hollywood action adventure film.

The other major difference between the Hollywood screen and the television screen is the type of message the two media are used to convey. For the most part movies are provided for our entertainment and diversion, a way to escape the realities of daily life and to follow a good story presented in spectacular visual style. This is not to say that theatrical releases don't address serious subjects or that they cannot make us think and feel and edify us in certain ways. However, the movie theater is primarily a place for us to be entertained. Television, on the other hand, is a medium which conveys information as well as entertainment. All of the major broadcast networks, many cable channels, and local television stations provide information to their viewers in various forms. Newscasts are the most common; the major networks and their local affiliates carry them regularly, and cable stations like CNN and MSNBC provide news exclusively.

When television does provide entertainment, it nonetheless still has a mandate, by law and by simple morality, to inform its viewers of events happening in the community that may pose a threat to them or require urgent action. For that reason TV stations often superimpose upon prefabricated programming information such as weather bulletins warning of severe weather, ranging from thunderstorms to tornados.

Printing text on the screen is a quick and easy way to provide urgent information to viewers without requiring the intervention of a news anchor. But such information, when provided in that form, is totally inaccessible to blind viewers. At best a blind viewer will hear a tone or other signal indicating that important information is being displayed but may have no way of finding out what that information is. While blind viewers might get the information from other sources, such as radio broadcasts, the immediacy of the information provided on the television screen is denied us.

In addition to the textual information provided in emergency situations, other informational programming also routinely uses on-screen text as a way to convey all or part of the information being presented. News programs, for example, often include brief excerpts of interviews or sound bites in their reports on various subjects. The practice in newscasting is for the name and title, if any, of the speaker to be displayed at the bottom of the screen while his or her comments are being broadcast. In such situations a blind viewer has no way of knowing who is speaking or what it is about the speaker that makes what he or she has to say important or relevant to the news report being viewed. Other information such as the latest details in breaking news events, sports scores, and events in the viewer's community, also routinely appears on TV screens without any audible commentary or other indication that the information is being presented.

Even advertisements often contain textual information; in some commercials text on the screen is the only way to know what's being advertised or, in the case of specialty products, the address or phone number one needs in order to get them. Such information may not be absolutely necessary to all blind viewers, but a blind viewer who's interested in the product in question is definitely placed at a disadvantage.

For this reason the NFB opposed the mandating of described TV by the Federal Communications Commission. We argued by resolutions adopted at our conventions in 1996, 2000, and 2001 that description of entertainment programming should not be mandated. Instead, we argued, the FCC should focus on textual information presented on the screen that was otherwise inaccessible to blind viewers and should require that all such text be simultaneously voiced using the secondary audio channel. Translating text into audio form is at least as simple as translating audible dialogue into text. With the widespread use of digital speech technology, it would be easier than ever before for the television networks to broadcast such text over another audio channel. The blind would have something we actually need, as opposed to something we might perhaps enjoy.

Nevertheless, the FCC went beyond its congressional mandate and not only produced a report on described TV but mandated that it be provided, while not mentioning mandatory voicing of the text printed on the screen, as sought by the Federation. The FCC specifically mandated that the major broadcast networks provide up to fifty hours of described programming per quarter in either prime-time or children's programming by the spring of 2002.

Realizing that it would need to hire people to accomplish this task and therefore take a hit to the pocketbook, the Motion Picture Association of America (MPAA), a lobbying organization for television and movie producers, immediately filed a petition with the United States Court for the District of Columbia opposing the mandate. In addition the MPAA, which is incidentally also responsible for the content-based rating of Hollywood movies, was concerned with the First-Amendment implications of the new regulation. After all, however noble the intent, described TV requires an alteration in the way the program is presented that its creators didn't plan or necessarily intend.

We in the Federation, through our duly elected leaders, saw a good opportunity to speak to what the blind really needed as opposed to what some of us might like. In addition there was a real danger that, if a court decision came down against the FCC�s position that was too broadly worded, we might never see the commission or any other entity ever address the issue of requiring on-screen text. So the Federation filed its own petition with the D.C. District Court and a subsequent brief to the Federal Court of Appeals for the District of Columbia, opposing the FCC mandate of described TV but specifically stating that the NFB believed the commission could and should legitimately mandate that on-screen text also be provided audibly.

The entrance of the Federation into the described-TV litigation sent our detractors from various quarters into hysterics. The American Council of the Blind publicly attacked and ridiculed the NFB, and e-mails from its executive director, Charlie Crawford, blatantly mischaracterized our position. It was said that we were opposed not only to described TV but to the efforts of DVS to describe Hollywood movies in theaters and on home video--something which the NFB has never opposed in any way.

Some also claimed that the NFB was taking a position contrary to that held by most of its members, who watched described programming. Again, not true--one can enjoy described programming and films and still not believe that the Federal government should use its power to mandate that they be produced. Members of the ACB and other blind people in favor of described TV attacked the NFB's position, even on e-mail lists owned and operated by this organization. Needless to say, spurious name-calling was included in these campaigns, and venomous personal attacks on President Maurer and other national leaders spewed forth.

The brief submitted on behalf of the Federation by Daniel F. Goldstein and Joshua N. Auerbach of the Baltimore law firm of Brown, Goldstein, and Levy, which has often assisted the Federation in legal matters, pointed out two fundamental problems with the FCC's reasoning in adopting rules mandating the description of entertainment programming on television. First, we argued, the FCC's regulation was "arbitrary and capricious" because the commission simply assumed that described TV was something that blind people wanted and needed. This assumption flew in the face of three resolutions adopted by thousands of blind people attending NFB conventions and backed by the largest organization of blind people in the nation, which specifically opposed mandated description of entertainment programming on television.

Second, the FCC had ignored the problem of on-screen text entirely, despite the fact that many comments supporting the rule specifically pointed out the lack of vocalization of text on the screen as a significant barrier to equal access to television programming by blind viewers. Even most of the comments submitted by people identifying themselves as members of the American Council of the Blind supporting the rules indicated that the primary frustration of blind television viewers was the lack of access to on-screen text. For example, the brief quoted an e-mail from the Memphis chapter of the ACB: "It is so frustrating for a blind person to hear a weather warning signal on TV and not know just what this alert is all about. It is also aggravating to be listening to a commercial about something that may be an item that one would like to purchase but can't because the phone number and/or address is flashed across the screen but not verbally announced."

In short, we argued before the D.C. appellate court that the FCC had addressed a perceived need of the blind without finding out whether that need actually existed and ignored a need that did exist. Like so many well-intentioned attempts to help the blind, the FCC�s rule had ignored the views of the blind themselves, imposing what it believed would be good for us and substituting its judgment for our own views on the matter.

To quote again from our brief: "Not only is the inaccessibility of on-screen text a more serious problem for blind television viewers than an inability to see events occurring on the screen, it is also a problem that is substantially less surmountable without accommodation. . . . Many people with visual disabilities have sufficient vision to discern events occurring on the screen but insufficient to read text that appears there. Those who do not have this level of vision can almost always understand what is occurring by paying attention to aural cues and dialogue."

Fortunately for the blind and those who support us, the opinion issued on behalf of the three-judge appellate panel that heard the case argued orally before the court by Dan Goldstein substantially adopted our reasoning. The opinion by Judge Edwards struck down the FCC mandate of described TV. Looking to the language of the law passed by Congress, the court found that the FCC had not been authorized to implement rules requiring that broadcasters describe their entertainment programming.

Furthermore, the court held that the FCC couldn't shoehorn in the described-TV requirement under its general power to regulate telecommunications, granted by the law which created the commission in 1934. The court reasoned that, because requiring broadcasters to run described programming had an effect on program content, the FCC's interpretation of the law conflicted with the First Amendment to the United States Constitution, which generally forbids the government from regulating the content of speech. Quoting the dissent from the FCC rule by the commission's chairman, the court noted: "Video description is a creative work. It requires a producer to evaluate a program, write a script, select actors, decide what to describe, decide how to describe it, and choose what style or what pace. In contrast, closed captioning is a straight translation of dialogue into text."

The court went on to say: "Ultimately, video descriptions require a writer to amend a script to fill in audio pauses that were not originally intended to be filled. Not only will producers and script writers be required to decide on what to describe, how to characterize it, and the style and pace of video descriptions, but script writers will have to describe subtleties in movements and mood that may not translate easily. And many movements in a scene admit of several interpretations, or their meaning is purposely left vague to enhance the program content. In short, it is clear that the implementation of video descriptions would entail subjective and artistic judgments that concern and affect program content."

The court ruled that requiring broadcasters to alter their programming to include descriptions of the sets, costumes, and actions was, in effect, compelling speech, which the government is forbidden to do. This was different, the court held, from requiring broadcasters to translate information already contained in the program from one form to another. By this logic the FCC could legitimately mandate the provision of closed captioning for the deaf and by implication could mandate that on-screen text be transmitted in an audible form for blind viewers.

When the Court of Appeals for the D.C. Circuit handed down its decision on November 8, 2002, the histrionics started again. Some traffic on e-mail lists owned and operated by the NFB suggested that we had stabbed the blind in the back, both by opposing described TV and by causing a court decision to be issued, which would not even have given us what we said we wanted. If the FCC couldn't mandate described TV, how could it mandate that text on the screen be spoken?

Those who wrote these invectives had obviously neither read the opinion nor attempted to understand our reason for entering the case. As mentioned earlier, the opinion specifically articulates the difference between described TV and closed captioning and all but tells the FCC that regulations to make programming accessible are fine as long as they do not change program content. Furthermore, the court might well never have considered the difference between closed captioning and described TV, and thus the difference between articulating on-screen text and describing on-screen action, if the NFB had not intervened in the litigation. Unlike the FCC, the court actually listened to what the blind had to say and showed a clear path that we can now take to give blind people the information that we need and that has been denied to us.

Of course a court victory will not be the end of the matter. We, the organized blind, must now take action to make sure that the principles set forth by the court are put into effect. Our leaders are still considering the best course of action, but we fully intend to see that on-screen text is made accessible to the blind of the nation. As for described TV and films, DVS and other organizations continue to make Hollywood movies more accessible by providing audio description, and many broadcasters will probably continue to include description in their programming voluntarily.

This is as it should be. The NFB has always believed that it is important to ask only for the accommodations that are an absolute necessity to our full integration into society. Other assistance, while we may accept and enjoy it, should not be mandated by the government. Instead, like any commodity, it should be regulated by demand. Ultimately we hope that prudent regulation by the FCC and the goodwill of the broadcast industry will combine to make television an enjoyable, accessible, and informative viewing experience for all blind Americans. The NFB has done what we could to define the issues and point out which are most important. The court understood our argument even if the FCC did not. Now we must consolidate our gains and insist on access to the visual information on television that everyone else takes for granted.

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