Below is the full text of the petition filed in federal court in
Washington, DC seeking to halt implementation of regulations requiring
video description in April, 2002 until the court decides the issue later
this year or early 2003. The court has not yet ruled on this petition.
Kelly
From the file in portable document format
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf
&id_document=6513077915
Before the FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D. C. 20554
In the Matter of ) ) Implementation of Video Description ) MM
Docket No. 99- 339 of Video Programming )
)
REQUEST FOR STAY MOTION PICTURE ASSOCIATION OF AMERICA
NATIONAL ASSOCIATION OF BROADCASTERS
NATIONAL CABLE & TELECOMMUNICATIONS ASSOCIATION
Robert Corn- Revere Ronald G. London HOGAN & HARTSON, L. L. P.
555 Thirteen Street, N. W. Washington, DC 20004 (202) 637- 5600
Their Attorneys
February 22, 2002
i
EXECUTIVE SUMMARY
The Commission should stay the April, 1, 2002, effective date for
its video description rules, 47 C. F. R. §§ 79.3 et seq., until
the U. S. Court of Appeals for the D. C. Circuit rules on the
petition seeking review of the rules and the orders implementing
them filed by the MPAA, the NAB, and the NCTA (collectively, the
*Petitioners*). A scheduling order recently issued by the Court
sets oral argument for September 6, 2002, meaning a decision will
not issue until late 2002 or early 2003. If FCC rules that will
require major broadcast and cable networks to add video
descriptions to 50 hours of prime time or children*s programming
per quarter go into effect as scheduled, Petitioners* members
will be required to make significant programming and engineering
changes, in derogation the Communications Act and the First
Amendment, just to comply with rules likely to be vacated on
review.
The instant request satisfies the FCC standard for a stay.
Petitioners are likely to succeed on the merits of their petition
for review because the Commission clearly lacks statutory
authority to adopt video description rules. The Act*s new video
accessibility provisions empower the FCC to adopt only closed
captioning rules, while specifically withholding rulemaking
authority for video descriptions. This is clear from the language
and structure of Section 713, its legislative history, and
traditional tools of statutory construction.
Though in seeking to rely on its general authority to nonetheless
adopt video description rules the FCC implausibly found Section
713 *silent* on whether such action is authorized, its exercise
of even this authority is also fatally flawed.
ii Any expansive reading of FCC authority over programming
content is unreasonable
as a general proposition, and conflicts both with the ultimate
purposes of the Act and the means Congress prescribed for pursuit
of them. Section 326 of the Act precludes FCC reliance on general
rulemaking power to interfere with free speech by requiring the
inclusion of video descriptions in broadcast fare, and Section
624( f) prohibits the regulation of cable services and
programming absent express statutory authority. 47 U. S. C. §§
326, 544( f). The video description rules also create
constitutional tensions by compelling the creation of new scripts
for covered programming in that, where acts of Congress can be
read to either raise serious constitutional questions arise or to
avoid such questions, the latter must prevail.
Petitioners will suffer irreparable harm if the video description
rules are not stayed pending review. Petitioners* members will
incur substantial equipment and programming costs if forced to
implement video descriptions, and these costs will unrecoverable
if the rules are vacated. By requiring Petitioners* members to
engage in compelled speech, irreparable injury to First Amendment
interests also will arise. In addition, since video description
supplants other uses of the sole SAP channel currently available,
such as Spanish- language audio, irreparable harm in the form of
lost viewing opportunities and damage to viewer goodwill will
result.
Briefly staying the effective date of the video description rules
will not cause significant harm to other parties. The Commission
has regulated television for more than 50 years without requiring
video descriptions. Delaying enforcement for a few months to
obtain a determination on the rules* legality will not cause
great
iii harm. Moreover, existing voluntary video programming efforts
will likely continue
at their current pace. Finally, enforcing the video description
rules prior to judicial review would disserve the public interest
because they impose a new regulation of dubious legality that
affects broadcast and cable content.
- iv TABLE OF CONTENTS
Page EXECUTIVE
SUMMARY..........................................................
...................... I I. PETITIONERS ARE LIKELY TO SUCCEED ON
THE MERITS
OF THEIR CHALLENGE TO THE FCC*S VIDEO DESCRIPTION RULES
.................................................................
...................................... 3
A. The Legislative History of Section 713 and Basic Rules of
Statutory Construction Confirm That Congress Denied the FCC
Authority to Adopt Video Description
Rules......................... 5
B. The Commission Improperly Relied on General Rulemaking
Authority to Adopt Video Description Rules
................................. 9
C. Video Description Rules Are Inconsistent With the First
Amendment........................................................
............................. 13
II. PETITIONERS WILL SUFFER IRREPARABLE HARM IF THE FCC DOES NOT
STAY THE EFFECTIVE DATE OF THE VIDEO DESCRIPTION RULES
.................................................................
........... 16
III. NO PARTY WILL SUFFER HARM IF THE COMMISSION STAYS THE
EFFECTIVENESS OF ITS VIDEO DESCRIPTION RULES ........ 20
IV. STAYING THE EFFECTIVE DATE OF THE VIDEO DESCRIPTION RULES
WILL SERVE THE PUBLIC INTEREST........ 21
CONCLUSION.......................................................
.......................................... 22
1
Before the FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D. C. 20554
In the Matter of ) ) Implementation of Video Description ) MM
Docket No. 99- 339 of Video Programming )
)
REQUEST FOR STAY
The Motion Picture Association of America (* MPAA*), the National
Association of Broadcasters (* NAB*), and the National Cable &
Telecommunications Association (* NCTA*), Petitioners in MPAA v.
FCC, No. 01- 1149 (Mar. 28, 2001) (collectively, the
*Petitioners*), 1/ hereby request the FCC to stay the April 1,
2002, effective date of its video description rules, 47 C. F. R.
§§ 79.3 et seq., until the United States Court of Appeals for the
District of Columbia Circuit hears and decides Petitioners*
request for review of the rules and the FCC orders implementing
them.
On January 25, 2002, Petitioners received a scheduling order from
the Court establishing September 6, 2002 as the date for oral
argument in their challenge to the video description rules.
Order, Nos. 01- 1149 and 01- 1155 (D. C. Cir., filed January 25,
2002). A decision following the argument typically would issue
late in the fourth quarter of 2002 or early in the first quarter
of 2003. However, the video description rules * which will
require major broadcast and cable net
1/ Motion Picture Ass*n of America v. FCC, appeal docketed, No.
01- 1149 (D. C. Cir., docketed March 28, 2001), seeking review of
Implementation of Video Description of Video Programming, MM
Docket No. 99- 339, Memorandum Opinion and Order on
Reconsideration, 16 FCC Rcd. 1251 (2001) (* Reconsideration
Order*), aff*g on recon., Report and Order, 15 FCC Rcd. 15230
(2000) (* Video Description Order*).
2 works to add video description to 50 hours of prime time or
children*s programming
per quarter * will go into effect on April 1, 2002. 47 C. F. R. §
79.3( c) (2000). Unless the effective date of the rules is
stayed, Petitioners* members will be required to make significant
programming and engineering changes to comply with rules that, as
demonstrated below, are likely to be invalidated by the Court of
Appeals.
If the rules become effective while Petitioners* appeal is
pending, producers of broadcast and cable network programming,
broadcast and cable networks, and local broadcast television
stations and cable television systems will face significant
consequences. Producers of broadcast and cable network
programming will be compelled by a government mandate to create
additional program material. Broadcast and cable networks and
local broadcast television stations and cable television systems
likewise will be compelled to transmit that new program material
in conjunction with numerous programs. And current programming
transmitted on the Secondary Audio Programming (* SAP*) channel
may be displaced. Such requirements entail obvious financial
costs, and will significantly affect Petitioners* statutory and
First Amendment rights.
These circumstances demand that the Commission postpone the
effective date of the new video description rules pending
judicial review. As demonstrated herein, Petitioners satisfy the
four- part test for a stay traditionally employed by the
Commission: (1) they will suffer irreparable harm if a stay is
not granted; (2) they are likely to prevail on the merits of
their court appeal; (3) a stay would not harm other interested
parties; and (4) a stay would serve the public
3 interest. 2/ Accordingly, Petitioners respectfully urge the
Commission to preserve
the status quo and to stay the effective date of the video
description rules pending a final decision by the Court of
Appeals.
I. PETITIONERS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR
CHALLENGE TO THE FCC*S VIDEO DESCRIPTION RULES
The principal thrust of Petitioners* appeal is that the
Commission lacks statutory authority to adopt the video
description rules. In adopting the order under review, the
Commission acknowledged that Section 713 of the
Telecommunications Act of 1996 did not establish FCC rulemaking
authority for video description (as Section 713( b)-( e) had done
for closed captioning), and it claimed that congressional silence
*by itself neither authorizes nor precludes* such action.
Video Description Order, 15 FCC Rcd. at 15252- 53; see also
Reconsideration Order,
16 FCC Rcd. at 1271. The Commission asserted authority to adopt
video description rules not under Section 713( f), but from the
Communications Act*s preface and the *more general rulemaking
powers* in Sections 1, 2( a), 4( i) and 303( r) of the Act.
Id. at 1270; Video Description Order 15 FCC Rcd. at 15251- 52.
The Commission reasoned it could exercise its general rulemaking
authority absent a provision expressly prohibiting video
description rules. Id. at 15253.
There can be little question that the appeal *raises serious
questions going to the merits* upon which Petitioners are likely
to prevail. See Ohio ex rel.
2/ Replacement of Part 90 by Part 88 to Revise the Private Land
Mobile Radio Services and Modify the Policies Governing Them, 15
FCC Rcd. 7051, ¶ 7 (1999) (citing
Biennial Regulatory Review, FCC 99- 129, ¶4 (1999) (citing
Virginia Petroleum Jobbers Ass'n v. FPC, 259 F. 2d 921, 925 (D.
C. Cir. 1958))).
4
Celebrezze v. NRC, 812 F. 2d 288, 290 (6 th Cir. 1987). These
questions were central to the Commission*s deeply divided
decision to adopt the rules. Commissioners Powell and Furchtgott-
Roth dissented from the Commission*s order, reasoning that the
Communications Act does not authorize the FCC to adopt video
description rules, and in fact, can be fairly read only as
denying authority to do so. Video Description Order, 15 FCC Rcd.
at 15268- 69 (Furchtgott- Roth, Comm*r, dissenting) (*
Furchtgott- Roth Dissent*); id. at 15272- 76 (Powell, Comm*r,
dissenting) (* Powell Dissent*). Commissioner (now Chairman)
Powell gave a detailed account of the legislative history and
evolution of Section 713( f), and explained that the provision*s
chronology and basic precepts of statutory interpretation
precluded a finding that the FCC could use general grants of
authority to undertake what Congress otherwise disallowed. Powell
Dissent, 15 FCC Rcd. at 15273- 76. Commissioner Furchtgott- Roth
agreed, adding that the inference of *purposeful limitation* is
strengthened by juxtaposing the contemporaneous mandate for
closed captioning rules with the very limited authority for video
description. See Furchtgott- Roth Dissent, 15 FCC Rcd. at 15268.
Established rules of administrative law and statutory
interpretation support this view. It is beyond dispute that *[ a]
n administrative agency*s power to regulate in the public
interest must always be grounded in a valid grant of authority
from Congress.* FDA v. Brown & Williamson, 529 U. S. 120, 161
(2000);
Lyng v. Payne, 476 U. S. 926, 937 (1986). Where *Congress had an
intention on the precise question at issue, that intention is the
law and must be given effect.*
5
Chevron U. S. A. Inc. v. Natural Resources Defense Council, 467
U. S. 837, 842- 843 (1984). This Chevron *track one* analysis
applies where, as here, *Congress has directly spoken to the
precise question at issue.* If *traditional tools of statutory
construction* reveal Congress had an intention on a specific
provision, *that is the end of the matter.* Id. On the other
hand, if the statute is either silent or ambiguous with respect
to *the precise question at issue,* track two of Chevron asks
whether the agency*s action is based *on a permissible
construction of the statute.*
Id. at 843. In this case, the Commission*s adoption of video
description rules fails both Chevron track one and track two
analyses.
A. The Legislative History of Section 713 and Basic Rules of
Statutory Construction Confirm That Congress Denied the FCC
Authority to Adopt Video Description Rules
The plain language of Section 713 is the primary guide to
Congress* intent with respect to video description. Bell Atlantic
Tel. v. FCC, 131 F. 3d 1044, 1047 (D. C. Cir. 1997). Though the
Act sets forth detailed requirements for FCC rules governing
closed captioning in Sections 713( a)-( e), it included no
comparable mandate for video description, but only directed the
Commission in Section 713( f) to conduct a study and report to
Congress. As a *cardinal canon* of statutory construction is that
the *legislature says in a statute what it means and means in a
statute what it says there,* Connecticut Nat*l Bank v. Germain,
503 U. S. 249, 253- 254 (1992), the difference between the
detailed closed captioning mandates and the absence of rulemaking
authority for video description in Section 713( f) must be read
as specific rejection by Congress of FCC rulemaking authority for
video description.
6 In addition to the statutory language, the legislative history
of the
Telecommunications Act is clear that Congress specifically
withheld rulemaking authority from the Commission as to video
description. The House bill initially would have required the FCC
to adopt both closed captioning and video description rules, see
H. R. 3636 § 206, and was later amended in the final version of
the bill to provide discretionary rulemaking authority for video
description. See H. R. Conf. Rep. No. 104- 458 at 184 (1996).
However, the Senate bill directed the FCC only to report to
Congress on the subject, and the Conference Committee adopted the
Senate version, eliminating the House bill*s video description
rulemaking provision altogether. Id.
This is not, as the FCC majority assumed, congressional *silence*
regarding video description. See Ethyl Corp. v. EPA, 51 F. 3d
1053, 1060 (D. C. Cir. 1995) (quoting Chevron, 467 U. S. at 843).
Congress fully considered and consciously rejected giving the FCC
rulemaking authority, and was by no means *silent* in the
Chevron sense. Engine Mfrs. Ass*n v. EPA, 88 F. 3d 1075, 1088 (D.
C. Cir. 1996);
Railway Labor Executives* Ass*n v. National Mediation Bd., 29 F.
3d 655, 666 (D. C. Cir. 1994) (en banc), amended, 38 F. 3d 1224
(D. C. Cir. 1994), cert. denied, 514 U. S. 1032 (1995). Indeed,
*[ f] ew principles of statutory construction are more compelling
than the proposition that Congress does not intend sub silentio
to enact statutory language that it has earlier discarded in
favor of other language,* INS v. CardozaFonseca,
480 U. S. 421, 442- 443 (1987). See also Chickasaw Nation v.
United States,
122 S. Ct. 528, 534 (2001).
7 In this case, there can be no doubt that deletion of video
description
rulemaking authority in conference *strongly militates against a
judgment that Congress intended a result that it expressly
declined to enact.* Gulf Oil Corp. v. Copp Paving Co., 419 U. S.
186, 199- 200 (1974). Eliminating a House proposal in conference
represents a *conscious choice* that shows congressional intent.
See North Haven Bd. of Educ. v. Bell, 456 U. S. 512, 527- 528
(1982). 3/ Indeed, next to language of *the statute itself,* a
conference report is regarded as *the most persuasive evidence of
congressional intent,* because it *represents the final statement
of terms agreed to by both houses.* Demby v. Schweiker, 671 F. 2d
507, 510 (D. C. Cir. 1981).
In addition, the significant difference between the Act*s
detailed closed captioning mandates and the absence of rulemaking
authority for video description indicates Congress did not merely
overlook this issue or inadequately express its intent. Section
713 established detailed requirements for closed captioning of
video programming, but no comparable mandate for video
description. Specifically:
· Section 713( a) required completion of a closed captioning
inquiry and an FCC report to Congress within 180 days of the
Act*s passage.
3/ J. Truett Payne Co. v. Chrysler Motors Corp., 451 U. S. 557,
562 (1982) (* Congress thus has rejected the very concept which
petitioner seeks to have the Court judicially legislate.*);
Russello v. United States, 464 U. S. 16, 23- 24 (1983) (* Where
Congress includes limiting language in an earlier version of a
bill but deletes it prior to enactment, it may be presumed that
the limitation was not intended.*). Cf. Brown & Williamson, 529
U. S. at 144 (FDA lacks authority to regulate tobacco products as
*drugs* or *devices* where *Congress considered and rejected
bills that would have granted the FDA such jurisdiction*).
8
· Sections 713( b) and (c) required the Commission to prescribe
closed captioning regulations and established compliance
deadlines.
· Sections 713( d) and (e) established exemptions from closed
captioning, including an exemption for *undue burdens,* and set
forth detailed criteria by which the FCC must consider such
requests.
In sharp contrast, Sections 713( g) and (f) * the sole
subsections dealing with video description * merely defined
*video description* and required the FCC to prepare a report to
Congress. 47 U. S. C. §§ 613( g), (f).
By adopting video description rules in the face of these vastly
different statutory provisions, the Commission disregarded a
basic canon of statutory construction, expressio unius est
exclusio alterius. That is, where a statute provides authority
for an action, but is silent as to a similar, related action, it
must be interpreted as authorizing only the former. See, e. g.,
NextWave Personal Communications, Inc. v. FCC, 2001 WL 702069 *21
(D. C. Cir. 2001); Tennessee Valley Auth. v. Hill, 437 U. S. 153
(1978). *A statute listing the things it does cover exempts, by
omission, the things it does not list. As to the items omitted,
it is a mistake to say that Congress has been silent. Congress
has spoken * these are matters outside the scope of the statute.*
Original Honey Baked Ham Co. v. Glickman, 172 F. 3d 885, 887 (D.
C. Cir. 1999). *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 and
exclusion.* Gozlon- Peretz v. United States, 498 U. S. 395, 404
(1991). Here, the Commission majority disregarded established
principles of
9 statutory construction which hold that Congress uses language
purposely, and its
decision to include a specific mandate for closed captioning
while omitting it for video description should be respected.
Russello, 464 U. S. at 22- 23. 4/
Petitioners are likely to succeed on the merits under Chevron
track one because Congress expressed its clear intention to
withhold rulemaking authority from the FCC. Where legislative
intent is clear, as it is in this case, it is unnecessary even to
conduct a Chevron track two analysis. E. g., Halverson, 129 F. 3d
at 184. However, as demonstrated in the following subsection,
Petitioners are likely to prevail on the merits under Chevron
track two as well.
B. The Commission Improperly Relied on General Rulemaking
Authority to Adopt Video Description Rules
Although the Commission majority acknowledged that Section 713
includes no provision permitting * much less requiring * video
description rules, it improperly took this to mean that the
provision *by itself neither authorizes nor precludes* such
action, 5/ and asserted authority to adopt video description
rules under its *more general rulemaking powers.* 6/ However, the
FCC*s general rulemaking power in *Title I is not an independent
source of regulatory authority;
4/ See also Shook v. District of Columbia Financial
Responsibility and Mgmt. Assistance Auth., 132 F. 3d 775, 782 (D.
C. Cir. 1998); Halverson v. Slater, 129 F. 3d 180, 185 (D. C.
Cir. 1997); Ethyl Corp. v. EPA, 51 F. 3d at 1061; Michigan
Citizens for an Ind. Press v. Thornburgh, 868 F. 2d 1285, 1292-
93 (D. C. Cir.), aff*d by equally divided court, 493 U. S. 38
(1989).
5/ Video Description Order, 15 FCC Rcd. at 15252- 53; see also
Reconsideration Order, 16 FCC Rcd. at 1271.
6/ Reconsideration Order, 16 FCC Rcd. at 1270; Video Description
Order,
15 FCC Rcd. 15251- 52.
10 rather, it confers on the FCC only such power as is ancillary
to [its] specific statutory
responsibilities.* California v. FCC, 905 F. 2d 1217, 1240 n. 35
(9th Cir. 1990) (citing United States v. Southwestern Cable Co.,
392 U. S. 157, 158 (1968)). As the D. C. Circuit has pointed out,
*it will not do for an agency to invoke the broad purposes of an
entire act in order to contravene Congress* intent embodied in a
specific provision of [a] statute.* International Brotherhood of
Teamsters v. ICC, 801 F. 2d 1423, 1429- 30 (D. C. Cir. 1986),
different result reached on reh*g, 818 F. 2d 87 (D. C. 1987)
(original decision mooted by subsequent legislation). See
California v. FCC,
905 F. 2d at 1240 n. 35 (* The system of . . . regulation
established by Congress cannot be evaded by the talismanic
invocation of the Commission*s Title I authority.*).
Here, the Commission cannot reasonably assert authority to make
rules simply because the Act *does not expressly negate the
existence of a claimed administrative power (i. e., when the
statute is not written in *thou shalt not* terms).* Railway Labor
Executives* Ass*n, 29 F. 3d at 655, 671. Were the FCC to *presume
a delegation of power absent an express withholding of such
power, [it] would enjoy virtually limitless hegemony, a result
plainly out of keeping with
Chevron and quite likely with the Constitution as well.* Railway
Labor Executives,
29 F. 3d at 671; see also Comsat Corp. v. FCC, 114 F. 3d 223, 227
(D. C. Cir. 1997). Such an unlimited assertion of authority is
patently unreasonable. Any claim that the FCC has plenary
authority to adopt programming or any other requirements both for
broadcasters and cable programmers unless Congress vetoes
particular rules *comes close to saying that [it] has the power
to do whatever it
11 pleases merely by virtue of its existence,* a construction of
law courts have
variously described as *incredible* and *tortured.* University of
the Dist. of Columbia Faculty Ass*n/ NEA v. District of Columbia
Fin. Responsibility and Mgmt. Assistance Auth., 163 F. 3d 616,
621 (D. C. Cir. 1998) (citation omitted). This theory of FCC
jurisdiction usurps legislative power and provides *no logical
stopping point.* Independent Insurance Agents of America, Inc. v.
Hawke, 211 F. 3d 638, 645 (D. C. Cir. 2000) (such expansive
authority would enable regulatory agencies *to constantly expand
their field of operations on an incremental basis without
congressional action*). 7/ As then- Commissioner Powell pointed
out in his dissent, there is no basis for such an open- ended
delegation of power, as Congress *surely did not obligate itself
in the future to the Herculean task of specifically prohibiting
any possible action by the Commission when it crafts new laws in
any area within the scope of section 1.* Powell Dissent, 15 FCC
Rcd. at 12574. The FCC*s approach also is inconsistent with the
ultimate purposes of
the Act with respect to content controls. The Commission always
has had to *walk a *tightrope** to preserve the free speech
values embedded in the Act, a balancing act the Supreme Court has
described as *a task of great delicacy and difficulty.* 8/ By
7/ Ethyl Corp. v. EPA, 51 F. 3d at 1060 (courts will not *presume
a delegation of power merely because Congress has not expressly
withheld such power*); see also Shook, 132 F. 3d at 782;
Halverson, 129 F. 3d at 185; Oil, Chemical and Atomic Workers
Int*l Union, AFL- CIO v. NLRB, 46 F. 3d 82, 90 (D. C. Cir. 1995);
Railway Labor Executives* Ass*n, 29 F. 3d at 671; Natural Res.
Def. Council v. Reilly, 983 F. 2d 259, 266 (D. C. Cir. 1993).
8/ CBS, Inc. v. DNC, 412 U. S. 94, 102, 117 (1973); cf., Arkansas
AFL- CIO v. FCC, 11 F. 3d 1430, 1443 (8 th Cir. 1993) (en banc)
(Arnold, C. J., concurring) (* There
12 adopting video description rules without specific
congressional authorization, the
Commission discarded its traditional caution regarding content
controls and embraced a regulatory mandate limited only by its
notions of *good* programming. Such an approach is at odds with
the Communications Act. As the Supreme Court has pointed out,
*the FCC*s oversight responsibilities do not grant it the power
to ordain any particular type of programming that must be offered
by broadcast stations.* Turner Broadcasting Sys. v. FCC, 512 U.
S. 622, 652 (1994). Similarly, the Act does not provide general
authority to regulate cable programming. FCC v. Midwest Video
Corp., 440 U. S. 689, 706- 707 (1979) (* the Commission was not
delegated unrestrained authority* over programming); Home Box
Office v. FCC, 567 F. 2d 9, 28 (D. C. Cir. 1977) (rejecting
ancillary authority for FCC to impose cable content controls).
In particular, the Commission*s claim of general rulemaking
authority cannot trump specific statutory limits, since the
general provisions empower the Commission only to adopt rules
*not inconsistent with law.* 9/ For example, Section 326 of the
Act, which prohibits censorship and denies to government the
power to interfere with *free speech by means of radio
communication,* 47 U. S. C. § 326,
is something about a government order compelling someone to utter
or repeat speech that rings legal alarm bells.*).
9/ See, e. g., 47 U. S. C. § 154( i) (*[ t] he Commission may . .
. make such rules and regulations, and issue such orders, not
inconsistent with this Act, as may be necessary in the execution
of its functions*) (emphasis added); 47 U. S. C. § 303( r) (* the
Commission from time to time, as public convenience, interest, or
necessity requires shall . . . [m] ake such rules and regulations
and prescribe such restrictions and conditions, not inconsistent
with law, as may be necessary to carry out the provisions of this
Act . . . .*) (emphasis added).
13 demonstrates *a legislative desire to preserve values of
private journalism.*
Midwest Video Corp., 440 U. S. at 704. Likewise, Section 624( f)
of the Act *limits the authority of the FCC . . . to regulate the
provision or content of cable services other than as provided in
this new title of the Communications Act.* H. R. Rep. No. 934, 98
th Cong., 2d Sess. 70 (1984) (emphasis added). See 47 U. S. C. §
544( f). 10/ This section prohibits regulations regarding the
*provision or content* of cable services, except as otherwise
specified in the Act. See MediaOne Group, Inc. v. County of
Henrico, Virginia, 97 F. Supp. 2d 712, 716 (E. D. Va. 2000) (*
imposition of requirements regarding both the *provision* and the
*content* of cable services violate[ s] Section 544( f)*), aff*d
on other grounds, 257 F. 3d 356 (4 th Cir. 2001). Section 624( f)
simply leaves no room for an assertion of ancillary rulemaking
authority. 11/
C. Video Description Rules Are Inconsistent With the First
Amendment
In addition to the foregoing analysis, the Commission*s assertion
of plenary authority to regulate programming content is an
unreasonable interpretation of the Act because it raises
significant tensions with the First Amendment.
10/ Without discussion, the Video Description Order cites United
Video, Inc. v. FCC, 890 F. 2d 1173 (D. C. Cir. 1989), to support
the proposition that Section 624( f) bars only viewpoint- based
regulations or rules that would prescribe by title which programs
must be transmitted. But United Video applied Section 624( f) in
the very different context of copyright- based rules that
predated the Cable Act. Moreover, the United Video court stressed
that Section 624( f) forbids extra- statutory requirements *that
particular programs or types of programs be provided* and it
noted that Section 624( f) indicates *Congress thought that a
cable company*s owners, not government officials, should decide
what sorts of programming the company would provide.* Id. at
1189.
11/ Petitioner NAB does not join in this argument relating to
Section 624( f).
14 Where a statute *is susceptible of two constructions, by one
of which grave and
doubtful constitutional questions arise and by the other of which
such questions are avoided, our duty is to adopt the latter.*
Jones v. United States, 526 U. S. 227, 239 (1999) (internal
citations omitted). Reviewing courts will reject an agency
interpretation of a statute that would ordinarily receive
deference under Chevron
track two if the agency*s reading raises serious constitutional
doubts. Texas Office of Pub. Utils. Council v. FCC, 183 F. 3d
393, 443 (5th Cir. 2001). They do so with the understanding that
*Congress does not casually authorize administrative agencies to
interpret a statute to push the limit of congressional
authority.* Solid Waste Agency v. United States Army Corps. of
Engineers, 121 S. Ct. 675, 683 (2001).
Here, the constitutional tensions are obvious. See Anti-
Defamation League of B*nai B*rith v. FCC, 403 F. 2d 169, 172 (D.
C. Cir. 1968) (* the First Amendment demands that [the FCC]
proceed cautiously [in reviewing programming content] and
Congress . . . limited the Commission*s powers in this area*). In
addition, the video description rules create a constitutional
problem of a more serious nature than the usual conflict over FCC
programming authority. The rules adopted by the Commission likely
violate the constitutional prohibition against compelled speech
because they require programmers to create new derivative works.
12/ Just
12/ As the Commission has noted, video description requires
entirely new scripts to be written, Video Accessibility Report,
11 FCC Rcd. at 19221- 22, and actors must hired to read the new
text and the soundtrack synchronized. See Powell Dissent, 15 FCC
Rcd. at 15278 (* It is important to note that 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 pace.*).
15 as the First Amendment limits the government*s ability to
restrict what a person
can say, it also prevents the government from forcing a speaker
to communicate. 13/ The majority incorrectly concluded that the
video description rules merely *require a programmer to express
what it has already chosen to express in alternative format,* and
that such rules *are comparable to a requirement to translate
one*s speech into another language.* Report and Order, 15 FCC
Rcd. at 15255. As noted, video description is a creative work,
not a mere *translation* or *expression in an alternate format.*
In any event, a translation is a derivative work under copyright
law, which makes it an *original work of authorship.* 14/ Under
the First Amendment a person*s choice of language * the decision
whether to *translate* his speech, or not * is protected speech.
15/
13/ Riley v. National Fed*n of the Blind of N. C., Inc., 487 U.
S. 781, 796- 797 (1988) (** freedom of speech, * . . .
necessarily compris[ es] the decision of both what to say and
what not to say.*); Policies and Rules Concerning Local Exchange
Carrier Validation and Billing Information for Joint Use Calling
Cards, 8 FCC Rcd. 8798, ¶ 77 (1993) (citing PG& E v. California
Pub. Serv. Comm*n, 475 U. S. 1 (1986)); see Hurley v. Irish-
American Gay Group, 515 U. S. 557, 573 (1995); Wooley v. Maynard,
430 U. S. 705, 714 (1977). 14/ 17 U. S. C. § 101 (defining
*derivative work* as *a work based upon one or more existing
works, such as a translation . . . .*); see also Radji v.
Khakbaz, 607 F. Supp. 1296 (D. D. C. 1985) (noting that 17 U. S.
C. § 106( 2) *gives the copyright holder the exclusive right to
prepare derivative works, which includes the right to make
translations*).
15/ See Yniguez v. Arizonans for Official English, 69 F. 3d 920,
935 (9 th Cir. 1995) (en banc) (* Language is by definition
speech, and the regulation of any language is the regulation of
speech.*), vacated on other grounds, 520 U. S. 43 (1997); id. at
937- 938 (government cannot prohibit people *from speaking in the
tongue of their choice*) (citing Meyer, 262 U. S. 390, 401
(1923)); see also Ruiz v. Hull, 957 P. 2d 984 (Ariz. 1998) (en
banc) (same); cf., Meyer v. Nebraska, 262 U. S. 390; Farrington
v. Tokushige, 273 U. S. 284 (1927).
16 Taken together, these arguments clearly establish Petitioners*
likelihood of success on the merits. A stay of FCC rules to
preserve the status quo is especially appropriate where, as here,
the Commission rules regulate content and touch on First
Amendment concerns. Such stays often have been granted in cases
involving regulations that directly or indirectly affect
programming. 16/ The same approach should be taken here.
II. PETITIONERS WILL SUFFER IRREPARABLE HARM IF THE FCC DOES NOT
STAY THE EFFECTIVE DATE OF THE VIDEO DESCRIPTION RULES
The Commission has recognized that, even absent a finding of
likelihood of success on the merits, granting a stay to maintain
the status quo is appropriate where a serious legal question is
presented, denial of a stay would inflict serious harm, and
little harm would befall others. See, e. g., Hickory Tech Corp.,
13 FCC Rcd. 22085, 22086, ¶ 3 n. 9 (1998) (citing Washington
Metro. Area Transit Comm*n v. Holiday Tours, 559 F. 2d 841, 843
(D. C. Cir. 1977)). While Petitioners* statutory and
constitutional claims set forth above raise serious questions
16/ See Alliance for Community Media v. FCC, 10 F. 3d 812, 816
(D. C. Cir. 1994) (noting that FCC rules governing cable access
channels were stayed pending review),
aff*d in part, rev*d in part, Denver Area Educ. Television
Consortium v. FCC,
518 U. S. 727 (1996) (intervening subsequent history omitted);
id. at 831 (ordering stays continued pending completion of
proceeding on remand to FCC); Daniels Cablevision, Inc. v. United
States, 835 F. Supp. 1, 12 (D. D. C. 1993) (staying further
proceedings before District Court pending completion of
proceedings on appeal in view of *controlling questions of law .
. . as to which there is substantial ground for difference of
opinion*), aff*d in part, rev*d in part sub nom, Time Warner
Entm*t Co. v. United States, 211 F. 3d 1313 (D. C. Cir. 2000),
cert. denied, 531 U. S. 1183 (2001);
Action for Children*s Television v. FCC, 932 F. 2d 1504, 1507 (D.
C. Cir. 1991) (enforcement of broadcast indecency ban stayed),
cert. denied, 503 U. S. 913 (1992).
17 about the FCC*s authority to adopt video description rules, it
also is clear that
Petitioners will suffer *irreparable injury [that] is . . .
actual and not theoretical, and that the harm will in fact
occur.* Wisconsin Gas Co. v. FERC. 758 F. 2d 669, 674 (D. C. Cir.
1985) (internal quotation omitted).
Enforcement of the video description rules prior to a ruling on
their legality would impose significant, irreparable burdens on
Petitioners* members. The rules will require that the four
largest broadcast networks and the five most watched cable
networks provide at least 50 hours of programming (either prime
time or children*s programming) with video description per
quarter. Assuming the Court of Appeals issues a decision by the
end of the year, the FCC rules will require video description of
at least 1350 hours of programming in the last three quarters of
2002.
The record before the Commission indicated that the cost of
adding video description ranges from one to four thousand dollars
per hour. Closed Captioning and Video Description of Video
Programming, Report to Congress, 11 FCC Rcd. 19214, 19258 (1996);
Comments of WGBH at 15- 16. Consequently, costs of adding video
description to programs alone could range from $1,350,000 to
$5,400,000 over the three calendar quarters beginning April 1.
Once these costs are incurred they cannot be recovered. These
costs will be incurred by program producers in the case of new,
original programming (the staple of broadcast prime time and an
increasing element of cable network programming), or by cable and
18 broadcast networks for motion pictures and other programming
originally produced
and distributed without video description. Moreover, the
foregoing represents only the per- program incremental costs of
video description. The cost to broadcast networks for modifying
their origination facilities and satellite distribution systems
in order to distribute video described programming to their
affiliates has been estimated to run into the millions of
dollars. See NAB Comments at 15- 17. In addition, the vast
majority of network- affiliated stations required to provide
video description would also need to modify or reconstruct their
studio plants and transmitters to receive and route the network*s
described programming, at an estimated average cost of over
$160,000 per station. NAB Petition at 6- 7, n. 6. 17/ The
estimated cost of cable network hardware and systems adjustments
and additions that may be necessary to provide video descriptions
ranges from $100,000 to more than $200,000 per network. NCTA
Comments at 14- 15.
The Commission has held that a stay is appropriate in order to
prevent *irretrievable financial losses* to a party. 18/ And
while economic harm may not constitute irreparable harm in every
case, Celebrezze, 812 F. 2d at 290, it clearly provides
sufficient injury here, where the costs impose a burden on
speech. E. g., Playboy Entertainment Group, Inc. v. United
States, 30 F. Supp. 2d 702, 711- 712 (D.
17/ See also NAB Ex Parte Submission in MM Docket No. 99- 339
(July 7, 2000) at 1. Notably, these costs would be incurred for
soon- to- be obsolete analog facilities. NAB Petition at 7.
18/ See, e. g., Virgin Islands Telephone Corp., 7 FCC Rcd. 4235,
¶ 13 (1992);
Communications Satellite Corp., 3 FCC Rcd. 2643 (1988).
19 Del. 1998) (the economic impact of content regulation serves
as a quantitative
measure of lost First Amendment opportunities), aff*d, United
States v. Playboy Entertainment Group, Inc., 529 U. S. 803
(2000). Even in the absence of significant financial
consequences, it is beyond dispute that *[ t] he loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.* E. g., Elrod v.
Burns, 427 U. S. 347, 373 (1976).
Finally, broadcasters and cable systems that currently use the
SAP channel to provide alternative audio programming, most
notably Spanish language translations of the accompanying show,
may be affected by the video description requirements. 19/ At
least some Spanish- language programming, and other programming
that uses alternate audio, could be supplanted by programs
bearing government- mandated video descriptions. Video
Accessibility Report, 11 FCC Rcd at ¶ 21 (* Unlike . . . [closed]
captioning, there is no dedicated or reserved transmission
capacity for video descriptions[, so] it competes with second
language transmissions, including Spanish language, for use of
the SAP channel.*). This constitutes irreparable harm not just to
the viewers, but to Petitioners* customer goodwill as well.
Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269
F. 3d 1149, 1156 (10th Cir. 2002) (loss of reputation and good
will constitute sufficient irreparable harm to justify
preliminary injunction).
19/ Video Description Reconsideration Order, 16 FCC Rcd. at 1266
(* no technical solution to allow two uses of the SAP channel
simultaneously is currently availablee of new*).
20
III. NO PARTY WILL SUFFER HARM IF THE COMMISSION STAYS THE
EFFECTIVENESS OF ITS VIDEO DESCRIPTION RULES
The FCC has regulated television for more than 50 years without
ever imposing video description requirements. Deferring
implementation of the rules for the few calendar quarters the
court takes to complete its review of the video description rules
will simply preserve the status quo and will cause no harm.
Parties who potentially would benefit from the provision of
additional video description under government mandate will not,
prior to April 1, 2002, have received, or come to rely upon,
video described programming not currently being provided.
Meanwhile, the organizations that currently provide video
descriptions voluntarily will likely continue to do so at much
the same pace. Thus, there will be no net loss of video described
programming during the time the rules are stayed. The denial of a
benefit, enhancement, or convenience falls well below the
threshold of harm required to preclude a stay. Iowa Utils. Bd. v.
FCC, 109 F. 3d 418 (8th Cir. 1996) (subsequent history omitted).
In addition, it is far from universally accepted, even among
members of the visually- impaired community, that there is any
need * let alone an urgent one * for the implementation of
federal rules requiring video description of entertainment
programming. See National Federation of the Blind Petition for
Reconsideration at 7 (* The Commission*s choice of described
entertainment over accessible information is a misperception of
the need coupled with an offensively meaningless solution to
address it.*). Consequently, the third factor for granting a stay
is satisfied.
21
IV. STAYING THE EFFECTIVE DATE OF THE VIDEO DESCRIPTION RULES
WILL SERVE THE PUBLIC INTEREST
The Commission cannot reasonably assert that it serves the public
interest to enforce regulations that it has neither the statutory
or constitutional authority to enforce. In an important sense,
therefore, the fourth factor merges with the first criterion for
granting a stay because the question in this case is whether the
Commission has the public interest authority to impose the rules
under review. If it appears likely that the FCC does not have
such authority, it is difficult for the Commission to argue that
enforcing the rules pending judicial review would serve the
public interest.
To the contrary, enforcing the rules prior to judicial review
would disserve the public interest because the video description
rules impose a new regulation of dubious legality affecting
broadcast and cable content. As the Supreme Court has stressed,
*the *public interest* standard necessarily invites reference to
First Amendment principles.* CBS v. DNC, 412 U. S. at 122; FCC v.
League of Women Voters of California, 468 U. S. 364, 381 (1984)
(First Amendment *requires a critical examination of the
interests of the public and broadcasters in the light of the
particular circumstances of each case*). As described above, the
rules under review impose significant burdens on Petitioners*
members and raise significant questions under the compelled
speech doctrine. Accordingly, preserving the status quo until the
Court of Appeals rules on the important constitutional and
statutory questions at issue would serve the public interest. See
supra note 16.
22 Finally, where a party has shown a substantial likelihood of
success on
the merits * as Petitioners have done here * the strength of that
showing makes consideration of other factors less important.
Washington Metro Area Trans. Auth.,
559 F. 2d at 843- 844. In any event, Petitioners have satisfied
all four criteria for granting a stay in this case.
CONCLUSION
For the foregoing reasons, Petitioners request that the
Commission stay the effective date of its video description
rules, scheduled to go into effect on April 1, 2002, pending a
final decision from the United States Court of Appeals for the
District of Columbia Circuit in MPAA, et al. v. FCC.
Respectfully submitted, By: /s/ Robert Corn- Revere
Robert Corn- Revere Ronald G. London HOGAN & HARTSON L. L. P. 555
13th Street, N. W. Washington, D. C. 20004 (202) 637- 5600
Counsel for Motion Picture Association of America, National
Association of Broadcasters and National Cable &
Telecommunications Association
February 22, 2002
Certificate of Service
I hereby certify that on this 22nd day of February, 2002, copies
of the foregoing Request for Stay were sent by hand, facsimile,
or first- class mail to:
Grey Pash FEDERAL COMMUNICATIONS COMMISSION 445 12th Street, S.
W. Washington, D. C. 20554
Hon. John Ashcroft Attorney General UNITED STATES DEPARTMENT OF
JUSTICE Main Justice Building 10th Street & Constitution Avenue,
N. W. Washington, DC 20530
Robert A. Long, Jr. Keith A. Noreika COVINGTON & BURLING 1201
Pennsylvania Avenue, NW Washington, DC 2004- 2401
Attorneys for WGBH Educational Foundation Donald J. Evans
FLETCHER, HEALD & HILDRETH, P. C. 1300 North 17th Street, 11th
Floor Arlington, VA 22209 Attorney for:
Metropolitan Washington Ear, Inc. National Television Video
Access Coalition American Council of the Blind American
Foundation for the Blind Blinded Veterans Association
Daniel F. Goldstein Joshua N. Auerbach BROWN, GOLDSTEIN & LEVY,
LLP 520 West Fayette Street Baltimore, MD 21201 Attorneys for
National Federation for the Blind
/s/ Ronald G. London Ronald G. London
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