In the Matter of Implementation of Video Description of Video Programming,
MM Docket No. 99-339
Statement of Commissioner Harold W. Furchtgott-Roth,
Concurring in Part and Dissenting in Part
It is with regret that I dissent from the portion of this Order adopting rules requiring video description. I understand well the concerns of those who support this item, and it is more than apparent to me that their views are deeply and personally held. At the same time, however, such factors cannot trump the clear limits on our statutory authority. In short, as much as I might like to support this item in its entirety, I am unable to read the Communications Act as authorizing rules requiring video description.
In the Notice of Proposed Rulemaking in this matter, we specifically sought comment on the question whether the Commission possesses statutory authority to require broadcasters, cable operators, and satellite companies to provide video description. See 14 FCC Rcd. 19845 at para. 39 (1999). I have reviewed carefully the comments on this issue and had hoped there to find persuasive arguments for authority. I can only conclude that the legal arguments in favor of jurisdiction can be described as weak, at best.
The argument for authority here is grounded in the theory of ancillary jurisdiction under sections 1 and 4(i) of the Communications Act. See Order at paras. 55-56. While it is true that the Supreme Court and the D.C. Circuit have upheld the Commission's exercise of that type of jurisdiction, this case is distinguishable from those in one very important regard: in none of those cases had Congress expressly addressed the Commission's duties with respect to the regulated area at issue. For example, in United States v. Southwestern Cable Co., 392 U.S. 157, 178 (1968), there were no preexisting statutory provisions regarding the Commission's oversight of the cable industry. Similarly, in Rural Telephone Coalition v. FCC, 838 F2d 1307 (D.C. Cir. 1988), Title 47 was silent on the question of federal funding for universal service.
Here, by contrast, Congress has clearly delineated our duties with respect to video description. In section 713(f) of the Act, Congress directed the Commission to commence an inquiry and issue a report on the matter. This has been done; there is no more authority that can be wrung out of that section. Indeed, the fact that section 713(f) requires a report and no more suggests that Congress was not prepared to, and purposefully intended not to, go any further. Juxtaposition of this section with the contemporaneously enacted one concerning closed captioning, see section 713(b), only strengthens this inference of purposeful limitation. That section, which requires both a report and a rulemaking on closed captioning, makes clear that Congress understood the difference between a study and a rulemaking and that Congress knew how to take the additional step of mandating rules regarding television services for the disabled.
To say that section 713(f) does not prohibit rules requiring video description, as the Order does, see R&O at para. 59, is not enough to establish jurisdiction here. As the item itself acknowledges, that the provision does not authorize such rules, and so can provide no affirmative support for this action. Further, as discussed above, the "negative pregnant" of its text is that anything more than the issuance of a report would be in excess of that authority.
The Commission is not long delayed by these statutory points. On its view of administrative law, Congress must expressly prohibit the Commission from going further than a particular provision authorizes it to go in order to make the textual limits of any provision stick. In an administrative scheme based on delegated powers -- where the Commission possesses only those powers granted by Congress, not all powers except those forbidden by Congress -- this approach to jurisdiction is clearly erroneous.
Comments Regarding the Rules
Notably, not all those in the blind community are supportive of these rules. Of course, as with all people grouped together on the basis of a common physical, immutable trait, blindness is no guarantor of monolithic thinking on matters of public policy. In fact, some of the philosophical divisions among the blind on questions such as education and assimilation are profound and have been so for many, many years.
Yet one would have to particularly astute, even psychic, to glean this fact from the Order. See R&O at paras. 4 & n. 10, 40. While discussing extensively the comments from groups for the blind in support of video description, no mention is made of the express opposition of the National Federation of the Blind (NFB), the largest and most historically significant force of and for the blind. I fear that because NFB's philosophy of blindness and of the way its members can best achieve their life goals differs from that held by other disability groups, as well as some people at the Commission, its views have not been given they respect they deserve. In other words, I am concerned about the possibility that because NFB does not believe what others think they should about what is best for its members, it has been marginalized in this discussion. I thus intend to air NFB's opinions fully.
In its comments, NFB states unequivocally: "We oppose the imposition of audio description as a federal mandate." Comments of NFB at 1 (filed Feb. 23, 2000). As to the level of actual demand for this service among the blind, they remark: "Some like the service. . .; some dislike it; many are frankly indifferent." Id. They further describe the blind population as "ambivalent" about video description. Id. This is so, they say, because of differences between those who are born blind and those who lose their vision later in life. For the congenitally blind, the description of events in essentially visual terms - i.e., "the woman wore a red dress" - provides them no benefit whatsoever. And on a philosophical level, NFB argues that "undue emphasis on entertainment as an issue for the blind draws attention away from the real and cruel forms of economic discrimination and exclusion of blind people from normal integration into society." Id. at 2.
This potential lack of demand for the service creates a mismatch between the means and ends of the regulations. As an initial matter, it is unclear whether these rules benefit the targeted population in general. And if the benefits of video description accrue largely to those who become blind later in life and those with diminished vision due to aging (not the congenitally blind), then it makes little sense to allow complete fulfillment of the video description requirement with children's programming. See R &O at para. 38. The bulk of those with visual disabilities consist of an older population, not the audience for children's television.
This means-ends misfit undermines the legitimacy of these rules under a potential First Amendment analysis. Even if one accepts as permissible the Commission's content-based selection of children's programming as a category for description, the regulations' non-furtherance of the interests of the primary beneficiaries of the rules is a vexing problem. Furthermore, when a large segment of the very people that the Commission purports to help actively opposes these regulations, one wonders why the Commission is so insistent upon pushing the statutory envelope.
Video description may be a wonderful idea whose time has come; its current absence in programming may indeed represent the sort of true market failure that justifies government intervention; and its benefits to society may outweigh its costs. But those assertions, even if true, cannot overcome the threshold question of statutory authority for this Commission to act in the area. Contrary to the assumption of this item - that Congress must prohibit a rulemaking before we lack authority to undertake it -- this Commission has only those powers affirmatively vested in it by Congress. However compelling the underlying subject matter, we may not transgress the larger scheme of laws that governs this agency's actions.