NORMAN P. LEVENTHAL MEREDITH S. SENTER. JR. STEVEN ALMAN LERMAN RAUL R. RODRIGUEZ DENNIS P. CORBETT BRIAN M. MADDEN BARBARA K. GARDNER STEPHEN D. BARUCH SALLY A. BUCKMAN NANCY 1. WOLF DAVID 5. KEIR DEBORAH R. COLEMAN NANCY A. ORY WALTER P. JACOB ROSS C. GREENBERG H. ANTHONY LEHV JOHN D. POUTASSE CHRISTOPHER .I SOVA PHILIP A. BONOMO JUAN F. MADRID OF COUNSEL MARLA R WOLFE LAW OFFICES ORIGINAL LEVENTHAL, SENTER 6 LERMAN P.L.L.C. SUITE 600 2000 K STREET. N.W. TELEPHONE (202)429-8970 W~HINC-I-ON* D.C. *ooo%ft3N3" FILE fa.xPY OWIGIW TELE,-OpIER (202)293-7783 February 23,200O WRITER'S DIRECT DIAL 202-416-6755 WRITER'S DIRECT FAX 202-429-4603 WRITER'S E-MAIL BGARDNERBLSL-LAW.COM BY HAND Magalie Roman Salas, Secretary Federal Communications Commission 445 Twelfth Street, S.W., Room TW-A325 Washington, D.C. 20554 Re: MM Docket No. 99-339 Video Descrbtion of Video Programming Dear Ms. Salas: Transmitted herewith on behalf of The Motion Picture Association of America, Inc. are an original and nine (9) copies of its Comments on the Notice of Proposed Rulemaking (FCC 99-353 released November 18, 1999) in the above-referenced proceeding. Diskettes containing these Comments are being simultaneously submitted to Wanda Hardy and to International Transcription Service, Inc. Respectfully submitted, Barbara K. Gardner Enclosures BEFORE THE Federal Communications Commiss WASHINGTON, D.C. 20554 In the Matter of ' Implementation of Video Description of Video Programming MM Docket No. 99-339 To: The Commission COMMENTS OF THE MOTION PICTURE ASSOCIATION OF AMERICA. INC. THE MOTION PICTURE ASSOCIATION OF AMERICA, INC. By: Barbara K. Gardner Sarah R. Iles Leventhal, Senter & Lerman P.L.L.C. 2000 K Street, N.W. Suite 600 Washington, DC 20006- 1809 (202) 429-8970 By: Eric J. Schwartz Smith & Metalitz, L.L.P. 1747 Pennsylvania Avenue, N. W. Suite 825 Washington, DC 20006-4604 (202) 833-4198 February 23, 2000 Its Attorneys TABLE OF CONTENTS . . . SUMMARY.. . . . . . . . _. . . . _. . . _. . . . ._. . ._. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 I. INTRODUCTION.. . . . . . . . _. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 II. THE FCC LACKS STATUTORY AUTHORITY TO IMPLEMENT MANDATORY VIDEO DESCRIPTION . . . . . ..,_...., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 III. MANDATORY VIDEO DESCRIPTION RULES COMPROMISE THE FIRST AMENDMENT. . . . . . . . . . . . . . . . . .6 A. Mandatory Video Description Would Compel Content-Based Speech on Media Protected by the First Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 B. The Commission's Video Description Proposals Are Not Narrowly Tailored to Serve a Compelling State Interest.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1. The FCC Has Failed to Articulate a Compelling Governmental Interest Requiring Video Description, . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 The Proposed Rules Are Not Narrowly Tailored to Implement the Asserted Primary Governmental Interest. . . . . . . . . . . . . _. . . . . 13 IV" MANDATORY VIDEO DESCRIPTION WOULD VIOLATE U.S. COPYRIGHT LAWS AND BINDING INTERNATIONAL TREATIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 V. THE COSTS OF THE PROPOSED VIDEO DESCRIPTION RULES SUBSTANTIALLY OUTWEIGH THEIR POTENTIAL BENEFITS. . . . . . . . . . 19 A. The Benefits of Mandatory Video Description Would Be Limited.. . . . . . . . . 19 B. The Social Costs of Video Description Are High. _....._............,..,..,.................. 22 VI. THE FCC SHOULD REFRAIN FROM INTERFERENCE WITH THE COMPETITIVE MARKET. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 A. Mandatory Video Description Would Create Significant Market Distortions.. . .23 B. The Market Is Adequately Responding to the Demand for Video Description.. 25 C. The FCC's Plan to Deny Program Providers the Right to Exercise Editorial Discretion Regarding Which Video Programming Should Be Described Exacerbates the Inappropriateness of Mandatory Video Description. . . . . . . . . 26 i x. VII. IMPLEMENTATION OF VIDEO DESCRIPTION AS PROPOSED IS IMPRACTICAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 A. The Intended Parameters of the Term "Video Description" Are Unclear. . . .27 B. Not All Prime Time Programming Is Suitable for Video Description. . . . . . . . . . . . 28 C. The Commission May Fail to Appreciate the Complexity of the Video Description Process.. . . . . . . . .._............................................................................. 29 . CONCLUSION. . . . . . . . . . . . . . . . . . . ~. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 0 ii SUMMARY The Motion Picture Association of America, Inc. ("MPAA") wholeheartedly endorses the Commission's goal of promoting greater enhancement of the television viewing experience for the visually impaired; nonetheless, it believes that mandatory rules for video description should not be adopted. First, the FCC lacks the authority necessary to promulgate its proposed video description rules because Congress considered and spec@ally rejected granting the Commission such authority. In addition, mandatory video description rules would compromise programming creators' and producers' First Amendment rights. The proposed rules compel speech and are not . content-neutral, since they force the addition of messages based on their content. Marginally enhancing the ability of the visually impaired to enjoy television is not a compelling state interest, and the Commission's proposals to address its asserted interest sweep far too broadly. Furthermore, the proposed video description rules are contrary to U.S. copyright law and U.S. obligations under international trade and copyright treaties. Copyright owners, including programming producers, have exclusive rights to authorize the reproduction, adaptation, distribution and public performance of their works. Video description would implicate all of these acts, and therefore requires copyright owners' consent under U.S. law. As a signatory to the Berne Convention and the World Trade Organization ("WTO") Agreement on Trade Related Aspects of Intellectual Property Rights, the United States cannot legally impose any exceptions to the rights of foreign copyright owners that unreasonably prejudice their legitimate interests in the U.S. market. Video description rules would violate this obligation . . . 111 possibly triggering WTO dispute resolution procedures. The costs of the proposed video description rules outweigh their potential benefits. The number of beneficiaries of video description would be limited, because the blind and visually impaired community is a small segment of the U.S. population, and because television sets need not be capable of receiving the Secondary Audio Programming ("SAP") channel. The duration of the proposed regulations' actual benefits would also be short, because they would apply only to analog television. In contrast, the social costs of the rule are high: monopolization of the SAP channel eliminates its use for foreign language or other programming. Imposition of video description requirements would contravene the FCC's long- held goal of forbearance from interference with competitive markets. Supply-and-demand mechanisms are the most efficient means for maximizing the benefits of the SAP channel and for effectively determining audience preferences for SAP programming. The FCC's plan to deny programming providers the freedom to respond to demands for video description service exacerbates the inappropriateness of mandatory video description. If implemented as proposed, the video description rules would also cause numerous practical problems for producers and distributors, and for the Commission. The FCC . would need to determine just what is sufficient description to qualify a program as compliant with the requirements. In addition, many types of programming are not suitable for video description, including live programming, and the Commission may fail to appreciate the complexity of the video description production process. For all of the foregoing reasons, the Commission should refrain from imposing mandatory video description. iv BEFORE THE Federal Communications Commission WASHINGTON, D.C. 20554 In the Matter of Implementation of Video Description of Video Programming MM Docket No. 99-339 To: The Commission COMMENTS OF THE MOTION PICTURE ASSOCIATION OF AMERICA, INC. The Motion Picture Association of America, Inc. ("MPAA"), pursuant to Section 1.4 15 of the FCC's rules, 47 C.F.R. 4 1.4 15, hereby comments on the Notice of Proposed Rulemaking in the above-captioned proceeding. ' MPAA is an organization comprised of the major producers and distributors of motion pictures and television programs in the United States. As discussed below, MPAA endorses the Commission's goal of facilitating access to television for those with visual impairments, but urges the Commission to avoid any implementation of mandatory rules for video description of video programming. 1 Imnlementation of Video Descrintion of Video Programming, FCC 99-353 (released Nov. 18, 1999) ("NPRM"). 134448 I. INTRODUCTION MPAA prefaces these comments with a statement of support for the goal of enhancing the ability of Americans with visual disabilities to enjoy media of mass communication. As noted in the NPRM, a large number of people in our society rely on television as an important source of information on vital issues, as well as for entertainment. See NPRM fi 1 n. 1. MPAA --, . member companies not only support the objective of increasing the availability of video programming to the visually impaired, they have voluntarily and successfully facilitated greater access to entertainment programming for this population by making their products available for video description in various formats. Currently, for example, over half of the more than 200 video described titles available to the public through WGBH's described home video service are licensed by MPAA members, while Turner Classic Movies, a program channel supplied by a member company to numerous multichannel video programming distributors, offers some ninety described movie titles to its viewers. Despite the desirability of increasing the availability of video description, however, mandatory rules for its implementation on television are not the appropriate means for addressing this objective. As discussed below, if video description rules were implemented as proposed in the NPRM, such regulations would (1) exceed the Commission's statutory authority, (2) violate First Amendment protections of free speech, (3) pose serious problems in the copyright law arena, (4) impose excessive social costs, (5) interfere with the competitive market for programming, and (6) inflict highly impractical requirements on the program production process. Accordingly, mandatory video description requirements should not be adopted. 3 II. THE FCC LACKS STATUTORY AUTHORITY TO IMPLEMENT MANDATORY VIDEO DESCRIPTION. Congress considered and speciJically rejected granting the FCC authority to promulgate video description rules when it adopted final legislation regarding closed captioning and video description. Thus, the FCC lacks authority to do so. The relevant statutory provision, Section 7 13 of the Communications Act,* mandates separate and distinct courses of action for the FCC with respect to closed captioning and video description. On the one hand, the law dictates that the Commission "shall prescribe" regulations to provide closed captions for the hearing impaired. _ 713(b). In contrast, the subsection addressing video description merely requires the Commission to "commence an inquiry to examine the use of video descriptions on video programming . and report to Congress on its findings," 5 713(f), an action completed by the agency in July, 1996.3 Had Congress desired either to enact legislation mandating video description based on the FCC's findings, or to explicitly authorize the Commission to adopt video description regulations, it could have done so in the intervening three and one-half years. That it was never Congress' intent to provide the Commission with such authority is demonstrated by the legislative history of Section 7 13. In the bill passed by the House, the FCC was permitted (but not required) to adopt video description regulations4 But in conference, that 2 47 U.S.C. 5 613, enacted as part of the Telecommunications Act of 1996. 3 Video Accessibilitv Report, 11 FCC Red 192 14 (1996). 4 See H.R. 1555, 0 204(f): "Following the completion of such inquiry, the Commission may adopt regulation[s] it deems necessary to promote the accessibility of video programming to persons with visual impairments" (emphasis 4 provision was specifically stricken. 5 From this deliberate deletion, which the NPRM fails even to acknowledge, it is apparent that Congress did not grant the FCC even discretionary rulemaking power in the video description context, by contrast with closed captioning where it specifically ordered a rulemaking. As the Supreme Court has declared, where "Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed . that Congress acts intentionally and purposely in the disparate inclusion or exclusion."7 Here, where the two provisions are in the fame section of the statute and where the Conference Report notes the deletion, the conclusion is inescapable that Congress has not authorized the FCC to promulgate video description rules.* (Continued) added); H.R. Rep. No. 104-204 at 115 (1995), renrinted in 1996 U.S.C.C.A.N. 10, 83 (same). 5 See H.R. Conf. Rep. No. 104-458 at 184 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 197 ("The agreement deletes the House provision referencing a Commission rulemaking with respect to video description."). 6 &New York v. EPA, 852 F.2d 574, 578 (D.C. Cir. 1988) cert. denied, Maine v. EPA, 489 U.S. 1065 (1989) ("When Congress has intended to establish a requirement for direct EPA action it has said so."); Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 162 (4ti Cir. 1998) cert. granted, - U.S. - 119 S.Ct. 1495 (1999) ("We also note that ascertaining congressional intent is of particular importance where, as here, an agency is attempting to expand the scope of its jurisdiction."). 7 Gozlon-Peretz v. United States, 498 U.S. 395, 404-05 (1991), quoting Russell0 v. United States, 464 U.S. 16, 23 (1983) (internal quotation marks omitted). 8 See Goncalves v. Reno, 144 F.3d 110, 132 (1"' Cir. 1998) cert. denied, 119 S. Ct. 1140 (1999) (contrasting statutory language is "particularly telling" when it results from conference committee action resolving dispute in two versions of a bill). Section 713's legislative history also suggests that Congress anticipated the 5 In addition, if implemented as proposed, video description rules would affect parties far beyond the scope of the FCC's more general statutory authority. Although the NPRM I sets forth an enforcement plan that aims at distributors of television programming, all of whom are subject to direct Commission regulation, the rule would substantially burden programming producers such as the MPAA member companies, whose operations clearly fall outside of FCC supervision. 9 Moreover, that burden is substantially greater for video description than for closed captioning. Whereas captioning requires only production of a word-for-word transcript of a work already in existence, video description mandates creation of an entirely new artistic work. Only one set of accurate closed captions can exist for a given television program, but an infinite number of video descriptions for the same program could be produced by different creators; possible variations in the video description include script language, choice of timing for action descriptions, and voice inflection and emotion conveyed by actors. Because the proposed rules (Continued) employment of assistive techniques such as closed captioning and video description primarily during transitions to new technologies. See H.R. Rep. No. 104-204 at 113 (1995) reminted in 1996 U.S.C.C.A.N. 10, 81 (It is Committee's "goal that access for people with disabilities be considered and pursued at the outset of the development of the information technologies" to avoid retrofitting expenses.) For this additional reason, the NPRM proposals, which concern soon- to-be-obsolete analog technologies only, lack Congress' imprimatur. 9 See NPRM fiTI 23-24. Assuming that the FCC were authorized to promulgate --, video description rules, MPAA does not disagree that by holding distributors, not producers, responsible, "there typically will be a single entity to which complaints must be addressed, and there will be no need for tracking the entities responsible for producing programs alleged to violate the rules." Closed Cantionina Order, 13 FCC Red 3272, 3286 (1998). Not only is a distributor-focused enforcement approach more efficient, but also, as noted above, it is the only course of action 6 dictate the creation and performance of such works, they impact the writers, directors, actors, producers, and all other artists involved in the production of video programming. Clearly, in this respect the FCC has exceeded its limited jurisdiction over "communication by wire or radio" under Section 2(a) of the Communications Act of 1934. III. MANDATORY VIDEO DESCRIPTION RULES COMPROMISE THE FIRST AMENDMENT. Even if the Commission had statutory authority to adopt video description rules, its proposals run afoul of the First Amendment, because-the proposed rules compel speech and are not content-neutral. Moreover, even assuming that providing the visually impaired with somewhat greater enhancement of the television viewing experience were a compelling governmental interest under applicable law, the Commission's proposals to serve that interest sweep far too broadly to pass Constitutional muster. Compelled speech, if not content-neutral and narrowly tailored to serve a compelling state interest, violates the First Amendment of the U.S. Constitution." (Continued) available to the Commission because program producers' creative activities are outside the scope of its jurisdiction. See, e.g, Rilev v. National Federation of the Blind of N.C., 487 U.S. 781, 796-97, 108 S.Ct. 2667,2677 (1988) ("There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees `freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say.") (emphasis in original). 10 7 A. Mandatory Video Description Would Compel Content-Based Speech on Media Protected by the First Amendment. That the television programming which is the intended object of the rule is I protected speech is an undisputed principle of First Amendment jurisprudence. As the Supreme Court has affirmed, "[Blroadcasters are engaged in a vital and independent form of communicative activity. As a result, the First Amendment must inform and give shape to the manner in which Congress exercises its regulatory power in this area."" And since the earliest days of communications regulation, Congress has barred the Commission from abrogating television programming creators' and producers' freedom of expression on any medium regulated by the FCC. See 47 U.S.C. 4 326 ("[N]o regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech . . .").I2 In contrast with closed captioning, requiring video description compels speech from creators and producers because it forces alteration of their messages. Where closed captioning simply reproduces, word for word, the existing sound track in visual form, video description mandates inclusion of entirely new matter-an aural description of on-screen action requiring substantive changes in the creator's message. As private individuals and entities, creators and producers should be able to distribute and perform their works unaltered, without the government forcing them to utter a message-however worthy-which they do not wish to convey. a, u, Turner Broad. Svs.. Inc. v. FCC, 512 U.S. 622, 641, 114 S. Ct. 2445, 2458 11 12 a, a, FCC v. League of Women Voters, 468 U.S. 364,378, 104 S. Ct. 3 106, 3116 (1984). See also Columbia Broad. Svs.. Inc. v. Democratic Nat'1 Comm., 412 U.S. 94, 110, 93 S.Ct. 2080,209O (1973). 8 (1994) (stating that government action requiring the utterance of a particular message contravenes the essential First Amendment right to decide for oneself which ideas are deserving of expression). Indeed, it can be concluded that Government usurpation of creators' and producers' works to disseminate mandatory video descriptions is analogous to unconstitutional use of a citizen's private property to convey a forced message. In Pacific Gas & Electric Co. v. Public Utilities Commission,13 for example, the U.S. Supreme Court overturned a California utility commission order requiring a private utility company to include a third party's opinions in a newsletter it disseminated with its utility bills. The Court noted that based on the utility company's ownership of the billing envelope, "Such forced association with potentially hostile views burdens the expression of views different from [appellee's] and risks forcing appellant to speak where it would prefer to remain silent."`4 Earlier, the Court established that a New Hampshire driver's First Amendment rights were violated when a statute requiring the slogan "Live Free or Die" to be displayed on his license plate converted his property into a "mobile billboard' for the State's message. Woolev v. Mavnard, 430 U.S. 705, 715, 97 S.Ct. 1428, 1435 (1977). Under First Amendment jurisprudence in the compelled speech context, speech that is viewpoint-neutral is also protected. For example, the Supreme Court has explicitly . rejected a claimed distinction between compelled statements of fact and compelled statements of opinion as a basis for distinguishing between constitutional and unconstitutional burdens on 13 14 475 U.S. 1, 106 S.Ct. 903 (1986). Id. at 18, 106 S.Ct. at 913. 9 speech. Riley, 487 U.S. at 797-98, 108 S.Ct. at 2678 (overturning a statute requiring public disclosure of charities' financial information on compelled speech grounds). Even the compelled use of an author's own name runs afoul of free speech rights: the decision of the author of campaign literature to remain anonymous is protected speech, "like other decisions concerning omissions or additions to the content of a publication.. . ." McIntvre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995). The proposed video description rules are no different: they would dictate the addition of audio narration of the visually-conveyed elements of creative works. And as such, they are content-based. See Riley, 487 U.S. at 795, 108 S.Ct. at 2677 ("Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech. We therefore consider the Act as a content-based regulation of speech.") (citing Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256, 94 S.Ct. 283 1, 2839 (1974)). Indeed, the proposed requirements would inevitably involve the Commission in a quagmire of content regulation, since in order to implement a regulatory regime for video description, the FCC will need to resolve such questions . as how much of the action must be described, or how long each segment of description must be. B. The Commission's Video Description Proposals Are Not Narrowly Tailored to Serve a Compelling State Interest. As noted, where content-based speech is compelled, it is unconstitutional unless narrowly tailored to serve a compelling governmental interest. The Commission's proposals for mandatory video description neither address a compelling state interest, nor are narrowly tailored to serve that interest. ._ 10 1. The FCC Has Failed to Articulate a Compelling Governmental Interest Requiring Video Description. The FCC has not met its burden of showing that requiring video description as a means to enhance the ability of the visually disabled to benefit from television implements a compelling state interest. The reality is that, notwithstanding its importance as a communications medium in the lives of most Americans, television is, by definition, quite literally a primarily visual technology. Because visually impaired people cannot see without at least some degree of difficulty, their enjoyment of television can never be the same as that of those with unimpaired vision. Carried to its logical extreme, a regulation promulgated to enable the visually disabled to "hear what they cannot see" on television see NPRM 7 5, is analogous to a mandate that radio ,--, . transcripts be made available to the hearing impaired. At the same time, the visually impaired are not currently denied access to television programming: by and large, they already tune in to significant amounts of television unaccompanied by video description. Ninety-seven percent of the visually disabled watch television at least two or three times a week (compared with 95% of the general population); indeed, the visually impaired tune in to an average of 24 hours of television per week, only five fewer hours than the general public. l5 Thus, when the visually impaired experience video description, they explain its benefits not as enabling access to a medium previously unavailable to them, but as enhancing the viewing experience, the learning experience, and the social experience 15 J. Packer & C. Kirchner, American Foundation for the Blind, "Who's Watching? A Profile of the Blind and Visually Impaired Audience for Television and Video" at Table 2 p. 9 (1997) ("Who's Watching?"). 11 of television and video. l6 In contrast, the inability to access telephones and other telecommunications services "can be life-threatening in emergency situations, can severely limit educational and employment opportunities, and can otherwise interfere with full participation in business, family, social, and other activities."i7 In addition, the fact that television programming is primarily intended for private in-home recreational use diminishes any claim that enabling somewhat more satisfying enjoyment ' of it constitutes a compelling state interest. Again, in contrast, the affirmative obligations of the Americans with Disabilities Act of 1990," which require employers and public facilities to make "reasonable accommodations" and "reasonable modifications" for persons with disabilities, lg reflect a much more compelling interest, because of their impact on the ability of the disabled to earn a livelihood and to utilize commercial places of business open to the general public. Finally, viable alternatives to television, such as radio and described home videos, currently provide some information and entertainment services to the visually impaired, further suggesting that any governmental interest in encouraging the dissemination of such information is not compelling. Clearly, the Supreme Court frowns on public protectionism when used to justify First Amendment infringements: in Riley, for example, the Court rejected the "paternalistic 16 17 Id. at Table 5 p. 25. Implementation of Section 255 of the Telecommunications Act of 1996, WT Docket No. 96-198, Notice of Proposed Rulemaking, 13 FCC Red 20391, 20394 (1998). 18 19 42 U.S.C. $5 12101 et seq. 42 U.S.C. $6 12112(b)(5), 12182(b)(2)(A)(ii). 12 premise" of North Carolina's attempts to protect both charities and their donors, noting, "The , First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it." Riley, 487 U.S. at 790-91, 108 S.Ct. at 2674. In addition, contrary to an implicit assumption underpinning the Commission's position in the NPRM, any perceived inability of the market to address the need for video description is not a justification for infringing on programming creators' and producers' freedom of speech. Although not explicitly stated, the NPRM appears premised on a belief that, in the absence of regulatory action, programming distributors will fail to respond to the visually impaired community's demand for video description. However, the Supreme Court has clearly rejected this justification for an otherwise constitutionally dubious restriction on speech. Turner Broad. Svs.. Inc., 512 U.S. at 640, 114 S.Ct. at 2457-58. Finally, the FCC's attempt to "piggyback" on the compelling state interest in protecting children is fundamentally flawed. Paragraph 7 of the NPRM emphasizes video description's "significant potential to capture the attention of learning disabled children," despite a lack of evidence to that effect, In addition, the First Amendment jurisprudence specifically applicable to protecting children applies only to regulations placing limitations on indecent broadcasting. See Reno v. ACLU, 521 U.S. 844, 866-67, 117 S.Ct. 2329,2342 (1997) (discussing the scope of the Supreme Court's decision in FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026 (1978)). B ecause the proposed video description rule is unrelated to indecency, because it would compel speech rather than place limits on it, and because the FCC has . not demonstrated that disabled children will benefit from video description, the fact that the state may have a compelling interest in protecting children from indecent material is entirely irrelevant 13 to the question of the proposed rule's constitutionality. 2. The Proposed Rules Are Not Narrowly Tailored to Implement the Asserted Primary Governmental Interest. Even assuming arguendo that enhancing the ability of the visually impaired to enjoy television is a compelling state interest, the proposed video description rules are not narrowly tailored to achieve this stated goal. For example, the Commission would like to implement video description by mandating the service in children's and prime time programming, despite the fact that the expressed television preferences of the blind and visually disabled show little demand for the former, and no necessary link to the latter. To the contrary, since the visually disabled tend to be older and retired, 2o they are more able than the general public to view non-prime time programming. It also appears that the Commission did not consider less broad or less intrusive means of accomplishing the goal of increased access to television for the visually disabled. As discussed below, the rule is drawn so broadly that its implementation would substantially hinder any foreign language children's or prime time programming via the Secondary Audio . Programming ("SAP") channe121 Most troublingly, the NPRM implies that broader, perhaps limitless implementation will be required later. In contrast, even the actions mandated by the Americans with Disabilities Act of 1990, with its arguably compelling goal of eliminating discrimination against the disabled in the workplace and in places of public accommodation, are 20 21 See "Who's Watching?' at Chart 1 pp. 6-7. Less burdensome solutions, such as an incentive-based system providing tax breaks for providers of video description, were apparently never considered. 14 narrowly tailored to require only "reasonable" accommodations and modifications.22 IV. MANDATORY VIDEO DESCRIPTION WOULD VIOLATE U.S. COPYRIGHT LAWS AND BINDING INTERNATIONAL TREATIES. A mandatory video description system, however well-intentioned, would also be contrary to current U.S. copyright law, and to international trade and copyright treaties to which the United States is bound. Copyright and related contractual issues act as a bar to imposing a mandatory video description system on copyright right holders. U.S. copyright law grants exclusive rights to copyright owners "to do or to authorize" the reproduction, distribution, adaptation, public display and public performance of a work. 17 U.S.C. 6 106. Under U.S. copyright law, the producer of a motion picture or television program is ordinarily the copyright owner under the "work made for hire" doctrine. 17 U.S.C. 5 101 (definition of a "work made for hire"). The creation of a video description as envisioned in the NPRM invokes the producers' exclusive rights of reproduction, adaptation, distribution and public performance in the original audiovisual work. As such, under federal copyright law the making of a video description can only be undertaken by or with the consent of the producer. That is because only the producer, as the copyright owner, can make "or authorize" others to make a new copyrighted work, which is the video description, based on a movie or television program. 22 See 42 U.S.C. $5 12112(b)(5), 12182(b)(2)(A)(ii). 15 A video description consists of portions of the original screenplay or teleplay (dialog, background descriptions, and set directions) as well as new descriptive material recorded and separately broadcast for the benefit of the blind and visually impaired. The exclusive rights of the producer of the original audiovisual work come into play as follows: First, the creation of a video description entails the making of a new derivative work (adaptation) that enjoys separate copyright treatment apart from that of the original audiovisual work.23 Second, copies -- that is, renroductions of the original audiovisual work and its underlying material -- must be utilized to . create the video description. The video description must then be further copied onto a broadcast- quality medium such as one-inch videotape, and distributed in that form to broadcasters, cable systems or satellite providers, to ultimately be publicly performed via television, cable, satellite or other delivery system. The NPRM's proposal for video description, however well intended, would, if adopted, essentially entail amending the copyright owner's exclusive rights. The Commission has no authority to do this; only Congress can amend the Copyright Act. Thus, absent an amendment to the U.S. Copyright Act by Congress, the Commission cannot mandate that copyright owners make, distribute, and/or publicly broadcast video descriptions. The Commission cannot require a copyright owner to do so, and certainly cannot require or authorize a distributor (licensed from 23 Our filing does not address the very complicated question of the copyright law treatment of a video description, that is, as either a new soundtrack of the existing audiovisual work, or alternatively, as a sound recording. See 17 U. S.C. 6 101 (definition of an "audiovisual work" including "accompanying sounds" and definition of a "sound recording" that does not include "the sounds accompanying a motion picture or other audiovisual work"). These definitional issues are crucial for certain domestic and international licensing and rights matters, but are not pertinent to this FCC filing. 16 the copyright owner) to do so without the right holder's consent. Neither can the Commission grant exceptions to these exclusive statutory rights of producers no matter how well intended the purpose may be. The Copyright Act provides narrow and explicit exceptions to the exclusive . rights of copyright owners. For example, there are narrow exceptions for so-called "fair use" of portions of copyrighted material. 17 U.S.C. 5 107. In addition, there are so-called "compulsory licenses" for activities such as the cable and satellite retransmissions that permit users of certain programs to retransmit them without consent of the copyright owners, sometimes subject to payment of royalties. 17 U.S.C. $6 111, 119 and 122. Perhaps a more relevant example is Section 121 of the Copyright Act, that permits authorized nonprofit and governmental organizations to reproduce and distribute previously published nondramatic literary works in specialized formats for the use of blind or other persons with disabilities. In the case of Section 121, Congress adopted this carefully tailored provision upon negotiation and agreement with the relevant parties including the copyright owners (in this case, book publishers) and organizations representing the blind and other persons with disabilities. A video description exception to the Copyright Act, if considered by Congress, would best be adopted upon agreement of the producers (and possibly creative artists), as well as broadcasting organizations and representatives of the blind and other persons with disabilities. Note that the provisions of Section 121 do not require that the copyright owners create such new works, but rather grant very specific and narrow rights to nonprofit and governmental organizations to do so. In addition to these serious domestic copyright concerns, any narrow exceptions to the exclusive rights of copyright owners, including compulsory licenses, provided under U.S. copyright law ( 17 U. S. C. 55 107- 122) must conform to international obligations under trade .-__-------- --- 17 agreements and copyright treaties. The reason for this is that foreign motion picture and TV producers license their works for programming and distribution in the United States; they have rights in the U.S. pursuant to these international treaties. Any imposition of copyright restrictions by the Commission or the Congress can only be imposed on these foreign owners or their works if such provisions are in compliance with these treaties. For example, the U.S. is a member of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971) effective March 1, 1989, and the World Trade Organization Agreement on Trade Related Aspects of Intellectual Property Rights ("WTO/TRIPS") effective January 1, 1996. In addition, there are numerous bilateral copyright agreements that track exceptions to the exclusive rights of copyright owners in the United States and the other contracting country. The Berne Convention (Article 9(2)) and the WTO/TRIPS Agreement (Article 13) allow narrow exceptions, and even fewer compulsory licenses, to the exclusive rights of copyright owners. The Berne Convention specifies that any limited exceptions to the rights of copyright owners shall be "a matter for legislation in the countries of the [Berne] Union." The Berne Convention and the WTO/TRIPS Agreement establish a tripartite test permitting only narrow exceptions to the rights of copyright owners that, in particular, do not "unreasonably prejudice the legitimate interests" of such authors or copyright owners. Having the Commission or Congress mandate that the producer create a derivative work, here, a video description, would be unprecedented in international copyright law. It could violate the U.S. government's obligations under Berne and the WTO/TRIPS Agreement. In the case of the WTO/TRIPS Agreement, disputes between member countries would have to be resolved under the WTO Dispute Settlement procedures. 18 Even permitting not-for-profit third parties to create such works absent consent by the producers would need to be very narrowly crafted by Congress to stay within the acceptable bounds of the exceptions permitted under these international agreements. But this is a task for Congress. The MPAA believes that its ongoing voluntary system of video description services avoids these domestic and international copyright concerns and would be strongly preferable to the imposition of a mandatory video description system by the Commission or Congress, especially one that is likely to breach or at best stretch the bounds of existing international agreements that impact the rights of domestic and international copyright owners in over 135 nations. One other copyright consideration bears note. Whether created by the producer of the original audiovisual work, or under authority of such producer, the video description should be clearly owned by the producer. As such, to maximize the legal and evidentiary benefits for the protection of the video description, any third party creator of it should be required to register it with the U.S Copyright Offrce in the name of the copyright owner (the producer of the original motion picture or television work). In addition to statutory copyright restrictions prohibiting mandatory video description, there are important contractual agreements between producers and licensees that would need to be revised to comply with any video description regime - even a voluntary one. For example, the practice in the motion picture industry for producers and cable and broadcast television programmers and distributors is to contract under 3- to 4-year advance agreements. Before imposing any video description service, such arrangements and other contractual 19 . agreements would have to be exempted (i.e., grandfathered) to avoid performance, warranty, representational, and other contractual obligations. V. THE COSTS OF THE PROPOSED VIDEO DESCRIPTION RULES SUBSTANTIALLY OUTWEIGH THEIR POTENTIAL BENEFITS. Considering the proposed video description rules from the perspective of a cost- benefit analysis, it is clear that the proposals' benefits do not justify their costs. A. The Benefits of Mandatory Video Description Would Be Limited. The population of primary potential beneficiaries of the Commission's video . description proposals-the blind and visually disabled community-is relatively small. A research institute relied upon by the U.S. Government estimates the number of Americans with visual disabilities causing some limitation in social or other activity at 1.294 million.24 The Social Security Administration's Office of Research Evaluation & Statistics quoted an even lower number of 132,935 people receiving social security benefits based on disorders of the eye, as of December 1998 (the most recent figures available).25 As for children, the University of California at San Francisco's Disability Statistics Center estimates that only 24,000 primary and secondary students have visual impairments.26 At most, according to a publication of the American Foundation for the Blind, the total number of blind and visually impaired Americans comprises 2.6 percent of the U.S. population.27 24 M. LaPlante, Health Conditions and Impairments Causing Disability, Disability Statistics Ctr., Univ. Cal. San Francisco, Abstract 16, Table 2 (Sept. 1996) available at . The 20 In addition, not all of the visually impaired can make use of video description. Because no law mandates the production of television sets capable of receiving the SAP channel, a great number of the visually disabled may not have access to video description even if it is provided as proposed.2" Finally, the FCC's claim that secondary audiences for video described programming exist is purely speculative. The NPRM contemplates learning-disabled children29 and unknown others3* as potential beneficiaries of the proposed rules, despite little evidence that described video programming might benefit such individuals. The source cited by the Commission for the proposition that video description reinforces the information comprehension skills of learning-disabled children, a letter from WGBH (one of only two producers of video description), concedes that "little work has been done in the field of video description for students (Continued) U.S. Dept. of Education, at , provides links to the University of California at San Francisco website. 25 26 Telephone conversation with Don Ferone, U.S. Sot. Sec. Admin., Office of Research Evaluation & Statistics (Jan. 6, 2000). H.S. Kaye, Education of Children with Disabilities, Disability Statistics Ctr., Univ. Cal. San Francisco, Abstract 19 (July 1997) available at ://www.dsc.ucsf.edu/UCSF/pub.taf? UserReference=24B2F4416A5FBAF3B C54DB4C& t?mction=search&recid+2&arow+ l>. 27 28 29 30 "Who's Watching?' at Table 1 p. 5. According to the Consumer Electronics Manufacturers Association, as of January 1998, just 59% of TV sets sold had stereo capability, although most of these were SAP-equipped. NPRM, fi 12, citing NCAM Letter at 12. In contrast, pursuant to federal law, all television receivers with screens of 13 inches or larger must have the capability of displaying closed captioning. NPRM,n7. Id.,qp 21 with learning disabilities," and notes that further research is needed to ascertain any potential benefits."' The Commission's argument that other persons without disabilities can benefit from described video programming is even more specious, The only other potential secondary audience members identified by the Commission are "viewers who are doing several things at once, who need to attend to something during a program, or who leave the room during a program."32 Such speculative, marginal benefits hardly justify regulations that compromise federal law, international treaties, and the First Amendment. Furthermore, the duration of any of the proposed rules' actual benefits would be short, since they would apply only to analog television.33 Because the transition to digital television is scheduled to be completed by 2006, the only benefits that can possibly accrue from analog implementation of video description are finite and short-term. Heavy investment in video 1 description distribution via analog is a questionable use of valuable resources. In fact, the FCC is already seeking comment on video description obligations in the digital era: see Public Interest Obligations of TV Broadcast Licensees, Notice of Inquiry, MM Dkt. No. 99-360 (TfT 24-28) (rel. Dec. 20, 1999) (inter alia, inviting comment on "how the Commission could encourage DTV broadcasters to take advantage of the enhanced capabilities of the technology to provide more video description."). 31 32 33 WGBH Report on Video Description (NCAM Letter) at 6-7 (Nov. 5, 1998). NpRM,~8. Id., 122. - -. _- .." I_ .._ .". - _I ..-- ^"-.--"l ._-.- 22 B. The Social Costs of Video Description Are High. In addition to the limitations inherent in these benefits, the proposed rules' costs to programming creators, producers, and distributors, as well as to society at large, are great. An obvious social cost of mandatory video description is its monopolization of the SAP channel during any time slot in which it is implemented. By limiting the editorial discretion of programming providers and foreclosing the use of SAP for other purposes, the proposed rules impose substantial, quantifiable costs on society. Rather than allowing programming directors to analyze and respond to the needs of the communities they serve, the rules as proposed would dictate that the visually impaired be the only beneficiaries of the SAP channel. MPAA member companies currently utilize SAP for a variety of other purposes, including providing foreign language translations of programs. Such service is provided primarily in Spanish,34 for programming including sporting events, children's television, and movies on subscription cable channels. Video description rules would eliminate such use, initially insofar as it consists of prime time and children's programming, but ultimately on a far broader basis. The Commission should refrain from interfering with the editorial decision-making , of programmers, which necessarily entails ascertaining the needs of a given community and 34 The Spanish-speaking population of the United States was estimated at 17,339,172 in 1990, according to the Census Bureau. See at Table 5. Not only do Spanish speakers in the U.S. already far outnumber the visually impaired, their numbers are also likely to grow faster over the next half-century. See J. Day, Population Projections of the United States by Age, Sex, Race, and Hispanic Origin: 1995 to 2050 at 1, 7 (Feb. 1996) available at (predicting that Hispanic population's proportion of the American populace will steadily increase.). 23 providing the audience with the programming that best serves its needs. Programming providers are in the best position to accurately evaluate such needs, and should therefore be permitted the necessary leeway to utilize the SAP channel for video description of some programs, while using it for Spanish, other foreign language, or alternative programming in other contexts. VI. THE FCC SHOULD REFRAIN FROM INTERFERENCE WITH THE COMPETITIVE MARKET. In addition, should the FCC impose video description on program providers, such regulation would directly contravene its long-held goal of forbearance from interfering with the workings of the competitive marketplace. A. Mandatory Video Description Would Create Significant Market Distortions. By dictating which of competing groups (i.e., the visually impaired instead of, for example, Spanish speakers) will receive the benefit of SAP channel use, the proposed regulations would interfere with market forces of supply and demand. In an unregulated market, if more Spanish speakers than Korean speakers in a given viewing area wish to see a football broadcast, programmers will provide translations via SAP in Spanish rather than Korean. Similarly, if more blind or visually impaired persons than Spanish speakers wish to see holiday specials, programmers will allocate the SAP channel to video description during those programs. Not only do supply-and-demand mechanisms provide an effective means for determining audience preferences for SAP programming, they also efficiently maximize the benefits of the SAP ^.___l__l . ..__ -.-_ .-_.. ---.- __ ..-.. -_-__-,--__-_._..~-~-~..~ 24 channel-an extremely limited resource. The FCC should not interfere with such market forces by enacting a rule that inhibits their operation. One additionally troubling aspect of the NPRM is its focus on children's and prime time programming despite the lack of evidence that the audience for video description demands such programming.35 Probably because a large percentage of the visually disabled population is comprised of the elderly,36 respondents to a survey of which television genres the visually impaired would prefer to be described indicated that they wanted access to programming in the ' following order of preference: (1) dramas or mysteries, (2) nature or science, and (3) news and information.37 Within these three top choices, only dramas are certain to appear within the prime time programming period affected by the proposed rules. In addition, Turner Classic Movies, a major provider of much of the video-described programming that has been provided via television thus far, has shown video-described movies primarily during non-prime time hours. This, too, likely reflects the fact that a large proportion of the visually impaired are elderly,38 and thus more likely to be able to watch television during the day. As to children, the WGBH list of currently available video-described titles, which in large part reflects the preferences of the proposed rule's beneficiaries because their requests 35 36 37 38 See "Who's Watching?' at Table 6 p. 26. Id. at Chart 1 pp. 6-7. Id. at Table 6 p. 26. Id. at Chart 1 pp. 6-7. 25 determine which films are selected to be described, is made up ofjust over 200 titles, of which only roughly 20% are aimed at children.39 Thus, even assuming that the demand for children's video-described television matches that for described home videos (which may not be the case), . the Commission's tentative decision to require video description of children's programming appears more paternalistic than market-driven.40 B. The Market Is Adequately Responding to the Demand for Video Description. Although many MPAA member companies have cooperated with efforts to increase video description availability by providing their titles for the described home video market4' based on home video sales to date, demand is not great. For example, of 25 films licensed by one MPAA member company to WGBH for video description in the home video format, fewer than 15,000 units were sold over about three years, while a second company sold `fewer than 14,000 titles over a recent four-year period. Another studio provided nine titles over the past three years to WGBH for describing; as of a few months ago, total royalties earned on sales of these titles barely reached five figures. Were demand for described video programming high, home video sales should reflect that demand, since WGBH disseminates its title list widely, no special equipment is needed to view described home videos (they have open description), and 39 40 41 See WGBH's website, at . As previously noted, there also is little evidence that learning-disabled children would benefit from exposure to described video programming. As stated above, more than half of the titles currently offered by WGBH are videos provided by MPAA member companies. ,-.._ _.. 1 _.-_-.-.__- ..-""ll_ ..-.. ,- I~ _.-__ .._ _-.---1- 26 the visually disabled own VCRs and patronize video stores at the same rates as the general population.42 The list of videos available from WGBH substantially correlates to the genre preferences expressed in the "Who's Watching?" survey,43 again suggesting that the FCC's proposed focus on children's and prime time programming ignores marketplace realities. Because programmers and providers have a commercial interest in maximizing the size of their audiences, if left to their own devices they will ensure that consumers of video description have access to the programs that they most prefer. C. The FCC's Plan to Deny Program Providers the Right to Exercise Editorial Discretion Regarding Which Video Programming Should Be Described Exacerbates the Inappropriateness of Mandatory Video Description. As noted, the Commission proposes initially to require that two types of video programming, children's and prime time programming, be described, notwithstanding that the most efficient mechanism for responding to the needs of the visually impaired community for video description is allowing programming providers the freedom to respond to demands for such service. Such providers are better able to judge the needs of the communities they serve, including the particular needs of the local visually impaired community, than the Commission. It _ is conceivable that the viewing preferences of the visually disabled in a viewing area encompassing many retirement communities in Florida, for example, differ considerably from those of their 42 43 "Who's Watching?" at Table 2 p. 9. Described videos are also available in many public libraries. See sum-a n. 15. 27 counterparts in New York City, rural areas, or elsewhere. For this reason, the Commission's proposals are f%rther flawed because editorial discretion to determine what programs in which time slots best fulfill audience needs has not been preserved. VII. IMPLEMENTATION OF VIDEO DESCRIPTION AS PROPOSED IS IMPRACTICAL. Finally, if the Commission were to determine it will implement video description rules, numerous obstacles would pose substantial problems both for the agency in crafting rules, and for producers and distributors in attempting to comply with them. A. The Intended Parameters of the Term "Video Description" Are Unclear. Should the Commission decide to implement mandatory video description notwithstanding the statutory, constitutional, and other impediments MPAA has noted, it must first refine its definition of video description, since unlike closed captioning, the term encompasses more than rote transcription. What and how much must be described? Are a few words enough? What if there are only one or two pauses in the existing dialog? These and similar questions would need to be addressed - yet would further entangle the FCC in impermissible content regulation - before those subject to any requirements could begin to comply with them: as the Commission is aware, clear standards are a prerequisite to any successful enforcement regime. 28 B. Not All Prime Time Programming Is Suitable for Video Description. MPAA also notes that the Commission has failed to articulate exemptions and waivers of its proposed rules for types of programming that do not readily lend themselves to aural descriptions of on-screen action, including live programming, situation comedies, sports, news, musical performances, and short-form programming such as commercials and interstitials. MPAA believes that if rules are adopted, absolute exemptions should be made for these categories, due to the infeasibility of providing video descriptions in these formats. Programming in which live action is transmitted, including news and sports, poses the most insurmountable obstacles to video description. It simply is not practicable to add video descriptions to programs as they are transmitted live, given the three- to five-day normal turnaround time needed to describe video programming. Situation comedies, the most likely of these program types to appear in a network prime time lineup and thereby become subject to the rules if they are adopted as proposed, generally contain fast-paced dialogue that prohibits video description for lack of time between lines. Programming in which the primary focus is music, including music videos, would be subverted if video description were added to obscure the underlying musical performance. The NPRM also fails to address how other types of programming content, such as home shopping and infomercials, should be treated under the rules. 29 C. The Commission May Fail to Appreciate the Complexity of the Video Description Process. MPAA further urges the Commission to consider the practical difficulties inherent in creating video described programming. Unlike closed captioning, video description production involves the creation of a new script, shipping the underlying work to a video description . production site while ensuring its safety along the way, hiring actors or narrators for the voiced description, rehearsing the performance, producing the description, mixing the described audio track into the underlying work, creating a submaster, shipping the described submaster to the duplication facility, and eventually returning the described master to the producer. Because of the numerous steps involved, the production process is extremely lengthy, and affected programming currently in production would not be able to air as planned. Video description production would push programs' release dates back substantially, making the transition to compliance with the rule a very difficult one, as providers scramble to provide new programming while adhering to the new regulations. 30 CONCLUSION The Commission should not implement its proposed video description rules. Not only would the FCC exceed its statutory authority under 47 U.S.C. 5 613, but mandatory video description would compromise programming producers' freedom of speech under the First Amendment by compelling the addition of messages based on their content. Providing the visually impaired with somewhat greater enhancement of the television viewing experience is not a compelling state interest, and the Commission's proposals to address its asserted interest are far too broad. In addition, the proposed video description rules are incompatible both with U.S. copyright law, and with U.S. obligations under international trade and copyright treaties. Moreover, the potential benefits of the rule are substantially outweighed by its costs, in part . because the blind and visually-impaired community comprises a relatively small segment of the U.S. population, and because the television industry's conversion to digital technology is imminent, Imposition of video description requirements would also substantially interfere with the competitive market for television programming, which is responding well to the expressed programming preferences of the visually disabled. Furthermore, as proposed, the video description rules would cause serious logistical problems for producers and distributors attempting to implement them. For these reasons and the others set forth herein, mandatory rules for video description are not appropriate. 31 RespectfUlly submitted, February 23,200O THE MOTION PICTURE ASSOCIATION OF AMERICA, INC. By: `&a ti - /.ftA& Barbara K. Gardner Sarah R. Iles Leventhal, Senter & Lerman P.L.L.C. 2000 K Street, N.W. Suite 600 Washington, DC 20006- 1809 (202) 429-8970 Eric J. Schwartz Smith & Metalitz, L.L.P. 1747 Pennsylvania Avenue, N. W. Suite 825 Washington, DC 20006-4604 (202) 833-4198 Its Attorneys