The Federal Communications commission announced earlier today that it has
denied the request from the television and movie industries to delay
implementation of an order requiring video description.  The full text of
the FCC's decision is below.  Beginning April 1 to July 1, the four
biggest American commercial broadcast television networks (ABC, CBS, FOX,
and NBC) need to provide 50 hours of described television programming to
stations in the 25 largest cities.  the five biggest cable channels also
need to provide 50 hours of audio described programming to subscribers on
cable systems with more than 50,000 customers.  After the second quarter
of 2002, these entities would need to provide audio described programming
in each subsequent calendar quarter.

The lawsuits filed by the television and movie industries and the
National Federation of the Blind seeking to overturn the order requiring
audio description are still pending in federal court.

Kelly


From the Microsoft Word document
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-90A1.doc

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 ORDER

Adopted: March 22, 2002 Released: March 26, 2002

By the Commission:

INTRODUCTION

1 . Before the Commission is the Request for Stay filed by the Motion
Picture Association of America, the National Association of Broadcasters,
and the National Cable and Telecommunications Association (collectively,
"Petitioners"), as well as the Opposition to Stay Request filed by the
National Television Video Access Coalition ("NTVAC"). Petitioners ask the
Commission to stay the effective date of its "video description" rules,
until the U.S. Court of Appeals for the D.C. Circuit resolves their
pending Petition for Review of the rules. As discussed below, we agree
with NTVAC that Petitioners have failed to show that they are entitled to
such extraordinary relief, and deny their request. BACKGROUND

2 . Video description is a service designed to enhance the accessibility
of video programming to persons with visual disabilities. "Video
description" refers to the description of key visual elements in
programming, inserted into natural pauses in the dialogue of the
soundtrack of the programming. These descriptions can be provided either
as part of the main soundtrack of a program, or as a separate soundtrack
that members of an audience can turn on to hear the descriptions, or off
to hear the main soundtrack without the descriptions. When provided in
this latter way for television, the separate soundtrack is provided on
the Second Audio Program, or SAP, channel.

3 . The Commission adopted its video description rules in July 2000,1 and
made minor modifications to them on reconsideration in January 2001.2 The
rules require the largest broadcast television stations and multichannel
video programming distributors (MVPDs) to provide a limited amount of
video description. Specifically, the rules require only the broadcast
television stations affiliated with one of the four largest networks
(ABC, CBS, Fox, and NBC) and licensed to a community in one of the
twenty-five largest television markets (as defined by the Designated
Market Areas of Nielsen Media Research) to provide fifty hours of video
description per calendar quarter.3 Likewise, the rules require only MVPDs
with more than 50,000 subscribers to provide fifty hours of video
description per calendar quarter on each of five highest-rated
nonbroadcast networks they carry that reach at least 50% of MVPD
households.4 In order to give affected broadcast stations and MVPDs some
time to acquire programming with video description, and if necessary
modify their infrastructure to support the distribution of two
simultaneous soundtracks (one with video description, one without), the
Commission delayed the effective date of the rules for more than a year
and a half, until the second calendar quarter of 2002. While the
Commission limited the affected broadcast stations and MVPDs to those
that are the largest and thus as a general matter have the greatest
resources and are the least likely to be unduly burdened by the costs
associated with video description, the rules also established procedures
for affected parties to seek relief from the rules if compliance would
cause an "undue burden."5

4 . On March 28, 2001, Petitioners filed their Petition for Review
("Petition") of the video description rules with the D.C. Circuit.6
Petitioners allege that the Commission's rules are inconsistent with the
Communications Act and other laws. On February 22, 2002, more than
eighteen months after the Commission released its Report & Order, and
only one month before the effective date of the rules, Petitioners filed
their Request for Stay ("Request") with the Commission.7 On March 1,
2002, the National Television Video Access Coalition (NTVAC) filed its
Opposition to Stay Request ("Opposition"). On the same date, the American
Council of the Blind filed hundreds of letters from citizens indicating
that they were opposed to the stay.8 DISCUSSION

5 . In order to resolve a request for stay, the Commission uses the
traditional test, set forth in Virginia Petroleum Jobbers Association v.
FPC,9 as modified in Washington Metropolitan Area Transit Commission v.
Holiday Tours, Inc.10 A party must show that it is likely to succeed on
the merits of its claim; it will suffer irreparable harm if a stay is not
granted; no other party will suffer harm if the stay is granted; and the
stay will otherwise serve the public interest. As to the first factor,
Petitioners contend that they are likely to succeed on the merits because
section 713 of the Communications Act does not authorize the Commission
to promulgate video description rules; other provisions of the
Communications Act do not so authorize the Commission; and the rules are
inconsistent with the First Amendment.11 As NTVAC points out,12
Petitioners have twice before advanced these arguments in this
proceeding, and the Commission has twice rejected them, both in the
Report & Order and the Order on Reconsideration.13 Petitioners offer no
new legal arguments or other basis that would cause us to revisit our
earlier determination on these issues.

6 . Even if Petitioners had demonstrated a likelihood of success on the
merits, the test for a stay requires a balancing of all factors, and only
when they are "'heavily tilted in the movant's favor'" is the
extraordinary relief of a stay appropriate.14 Petitioners' have not shown
that the scales tip in their favor.

7 . Petitioners have not shown that they will be irreparably harmed
absent a stay. They contend that compliance with the rules will require
them to incur costs, possibly in the millions of dollars for all affected
parties combined, associated with creating and distributing video
description, and will require them to replace other uses of the SAP
channel with video description.15 Aside from the fact that Petitioners do
not offer any specific support for the magnitude of their harm,16 NTVAC
suggests that many of the affected parties have already made the
necessary expenditures, such that "[g]ranting a stay at this point would
not give Petitioners the relief they posit."17 As to the costs of
creating described programming, the affidavits of representatives from
the Narrative Television Network and WGBH - two entities that create
described programming - indicate that at least five of the nine affected
networks have engaged their services, and that they already have
described hundreds of hours of programming for the networks.18 In
addition, some networks, due to their affiliation with other entities
that already provide video description, would appear to have an inventory
of described programming readily available.19 As to the costs of
distributing described programming, we agree with NTVAC that Petitioners'
argument about alternate uses of the SAP channel proves too much: to the
extent Petitioners' members already are capable of providing a second and
simultaneous soundtrack in Spanish,20 they are already capable of
providing a second and simultaneous soundtrack with video description.21
Conversely, to the extent Petitioners' members are not equipped to
support a second and simultaneous soundtrack, the alternate uses of the
SAP channel indicate that any infrastructure upgrades do not
automatically translate into a wasted investment if the court strikes
down the video description rules, because that equipment could be used
for other services that could generate an economic return. In any event,
even if Petitioners' claims about the amount of their costs were
adequately supported, we can reasonably assume, as NTVAC suggests, that
those expenses are minimal compared to the resources of the affected
parties - the largest broadcast television stations, MVPDs, and networks
in the United States.22 Under these circumstances, Petitioners have
fallen short of showing that their injury is "both clear and great," or
that the purported economic would "threaten[ ] the very existence of the
movant's business."23

8 . Petitioners also have failed to demonstrate that no party will be
harmed if the Commission stays the rules. They argue that not all persons
with visual disabilities endorse the rules, and that even those who do
"will not, prior to April 1, 2002, have received, or come to rely upon,
video described programming not currently being provided."24 NTVAC
responds, however, that persons with visual disabilities will be harmed
by further delay because of the importance of television as a medium and
the significance of video description in making it more accessible.25
NTVAC also states that entities that have "geared up to meet the demand
for described programming," such as those that have made investments to
expand their operations to describe more programming, would also be
harmed by further delay.26 Moreover, the Commission has received hundreds
of letters from citizens opposed to the stay. Under these circumstances,
we do not agree that a stay would not harm any other party.

9 . Finally, Petitioners have not shown that a stay will serve the public
interest. To attempt to satisfy this factor, Petitioners simply restate
that they are likely to succeed on the merits of their claim, and that
compliance with the rules will impose "significant burdens" on their
members.27 In response, NTVAC balances the benefits for persons with
visual disabilities against the costs to Petitioners' members in moving
forward with the rules, and suggests that the "direct, dramatic, and
immediate, though largely unquantifiable" benefits outweigh "trivial
burdens imposed on the entertainment industry."28 Under the
circumstances, we believe that Petitioners have failed to demonstrate
that a stay would serve the public interest, and certainly have not done
so in a sufficiently compelling way to justify the extraordinary relief
of a stay.

CONCLUSION

10 . For the foregoing reasons, we deny Petitioners' Request for Stay.
ADMINISTRATIVE MATTERS

11 . Alternative formats (computer diskette, large print, audio recording
and Braille) are available to persons with disabilities by contacting
Brian Millin, of the Consumer Information Bureau, at (202) 418-7426, TTY
(202) 418-7365, or at [log in to unmask] This Order can also be downloaded
in Text and ASCII formats at: http://www.fcc.gov/cib/dro.

ORDERING CLAUSE

12 . Accordingly, IT IS ORDERED, that, pursuant to section 4(i) of the
Communications Act, as amended, 47 U.S.C. § 154(i), the Petitioners'
Request for Stay is DENIED. FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

1 Report & Order, 15 FCC Rcd 15230 (2000).

2 Memorandum Opinion & Order on Reconsideration, 16 FCC Rcd 1251 (2001)
(Order on Reconsideration).

3 47 C.F.R. § 79.3(b)(1).

4 47 C.F.R. § 79.3(b)(3).

5 Id. § 79.3(d).

6 MPAA v. FCC, No. 01-1149 (Mar. 28, 2001). On April 2, 2001, the
National Federation of the Blind (NFB) also filed a Petition for Review.
NFB v. FCC, No. 01-1155 (Apr. 2, 2001). The briefing and hearing
schedules for these cases have been consolidated.

7 NFB did not join the request. Petitioners' Request states that "[t]he
Commission should stay the April 1, 2002, effective date for its video
description rules, 47 C.F.R. §§ 79.3 et seq. . . ." At the time the
Commission adopted the requirements set forth in section 79.3 of its
rules, it also adopted certain requirements to enhance the accessibility
of emergency information, set forth in section 79.2 of its rules. These
latter rules became effective when the Office of Management and Budget
approved them on February 1, 2001. See Public Notice, "Amended Emergency
Information Rule Effective as of February 1,

2001," DA 01-799 (Mar. 30, 2001). The stay request does not relate to or
otherwise affect these rules.

8 These letters were filed as attachments to a letter dated March 1, 2002
from Charles H. Crawford, Executive Director, American Council of the
Blind, to Robert Corn-Revere, Hogan & Hartson (counsel for Petitioners).
Six other parties filed separate letters in opposition to the stay, and
two filed separate letters in support of the stay.

9 259 F.2d 921, 925 (D.C. Cir. 1958).

10 559 F.2d 841, 843 (D.C. Cir. 1977).

11 Petition at 3-13.

12 Opposition at 7.

13 See Report & Order, 15 FCC Rcd at 15251-56; Order on Reconsideration,
16 FCC Rcd at 1270-72.

14 Ruiz v. Estelle, 666 F.2d 854, 857 (5th Cir. 1982).

15 Request at 16-19. Petitioners also claim that they will be irreparably
injured without a stay because compliance with the rules burdens speech.
This appears to be a reference to their argument that the rules violate
their First Amendment rights. As indicated above, the Commission
discussed and rejected this argument in the Report & Order and the Order
on Reconsideration.

16 For example, in support, Petitioners refer to the pleadings they filed
in the rulemaking. See, e.g., Petition at 18. In the Report & Order, the
Commission discounted these claims because they were not supported and
inconsistent with the figures provided by entities that actually provide
video description. See Report & Order, 15 FCC Rcd at 15236 n.34,
15239-40.

17 Opposition at 2.

18 Decl. of Larry Goldberg (attached to Opposition); Decl. of James
Stovall (attached to Opposition).

19 For example, Turner Broadcast System, Inc. operates two of the
affected nonbroadcast networks - TBS Superstation and Turner Network
Television (TNT) - as well as Turner Classic Movies (TCM). See Turner
Broadcasting Sys., (visited Mar. 8, 2002) <
www.aoltimewarner.com/about/companies/tunerbroad.html> ( indicating
common ownership of networks and high rank of TBS and TNT). As noted in
the Report & Order, WGBH had described, as of the date of the comments it
filed in the rulemaking, more than eighty films for TCM. Report & Order,
15 FCC Rcd at 15231.

20 Petitioners contend that "some Spanish-language programming, and other
programming that uses alternate audio, could be supplanted by programs
bearing government-mandated descriptions." Request at 19. Like much of
the rest of their request, there is a complete absence of factual support
for these claims that are speculative on their face. The Commission has
addressed the issue of alternate uses of the SAP channel for foreign
language and other services, and found no basis to believe that the
miniminal requirements for video description will cause any harm to these
services. See Report & Order, 15 FCC Rcd at 15245; Order on
Reconsideration, 16 FCC Rcd at 1266. Nothing in the stay request causes
us to change that view.

21 Opposition at 3-4.

22 Opposition at 3.

23 Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1984). If
compliance with the rules in fact constitutes an "undue burden" for any
affected party, that party is free to seek an exemption from the rules in
accordance with the procedures the Commission established when it adopted
the rules. See 47 C.F.R. § 79.3(d).

24 Request at 20.

25 Opposition at 4-5.

26 Id. at 5.

27 Request at 21.

28 Opposition at 6-7.


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