VIDEO DESCRIPTION
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of
Implementation Video Description of Video
Programming
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MM Docket No. 99-339
COMMENTS OF C-SPAN AND C-SPAN2
(National Cable Satellite Corporation)
The C-SPAN Networks are full time satellite delivered public affairs television
programming services available primarily via cable television, and devoted entirely to information
and public affairs, including the live gavel-to-gavel coverage of the proceedings of the U.S. House
of Representatives (on C-SPAN), the U.S. Senate (on C-SPAN2) and a variety of other events at
public fora around the country and the world. The C-SPAN Networks also include C-SPAN
Extra, a daytime programming service launched in September of 1997 providing coverage of
public events on a live basis.
1
The C-SPAN Networks are produced and distributed by the
National Cable Satellite Corporation ("NCSC"), a non-profit educational District of Columbia
corporation. NCSC is exempt from federal income tax pursuant to I.R.C. Sec. 501(c)(3).
INTRODUCTION and SUMMARY
1
C-SPAN is available in over 77 million households. C-SPAN2 is available in approximately 57.7 million households. C-SPAN Extra
is available to over 1.4 million homes and offices.-2-
The C-SPAN Networks do not challenge the Commission's goal to increase the
accessibility of video programming for people who are visually impaired. However, we are
willing to challenge the imposition of a video description requirement that in the news and public
affairs reporting context is either unnecessary or unconstitutional, or both. As ‘primarily aural’
programming, the C-SPAN Networks are already essentially self-described, which renders video
description unnecessary. As a form of compelled speech imposed on our coverage of
governmental affairs, such a requirement is also very likely unconstitutional as a restraint on our
right not to speak. And, such compelled speech is antithetical to the founding principle of
C-SPAN that our network would never have an editorial voice that told our audience what they
were watching. For these reasons we argue for an outright exemption from any video description
requirement as the most appropriate treatment of news and public affairs programming.
Finally, there are technical limitations on available bandwidth and certain dollar cost
considerations about which the Commission should be mindful as it proceeds with this
rulemaking.
COMMENTS
I. As ‘Primarily Aural’ Programming Services, the C-SPAN Networks Are
Already Accessible to Visually Impaired Audiences
Even the most casual exposure to the C-SPAN Networks' public affairs programming
reveals it to be an almost entirely talking heads format. As such, it qualifies as what the
Commission has described as programming that is ‘primarily aural’
2
in nature (citing newscasts
and sports coverage as examples), and which the Commission has concluded ought to be given a
2
Notice at Para. 14.-3-
lower priority among all other types of programming during a phase in of a video description
requirement. The Commission has also suggested that "priority should be given to programming
where there is significant action not apparent to persons with visual disabilities"
3
(emphasis
supplied). We urge the Commission to continue that line of reasoning toward a conclusion that
‘primarily aural’ programming such as that produced by the C-SPAN Networks ought to be fully
exempt from any video description requirement.
4
Video description in the news and public affairs
context would be unnecessary, difficult (if not impossible) to achieve and most likely result in a
net loss of benefit to the visually impaired audience.
Video description of C-SPAN programming would be redundant and unnecessary because
C-SPAN programs are essentially self-described. Almost without exception, our programs
consist of people talking to each other. In doing so, the men and women on the screen invariably
give conversational clues to each other and to their audiences that permit full comprehension by
those who for whatever reason are not looking at the screen. When C-SPAN's producers believe
it necessary, introductory announcements are made to set the stage of the program so that viewers
and listeners will know when and where an event is taking place and who is participating in it.
When the producers deem it appropriate, that information is announced again during a program
in such a way as not to interrupt the coverage. During non-event coverage programming, such as
studio interviews and call-in programs, the interviewers and hosts are continually providing aural
information about each program's subject and guests. The strongest evidence of the existing
3
Notice at Para. 15, citing 11 FCC Rcd at 1170, Para. 271.
4
Of course, this exemption would apply to any 'primarily aural' programmer of news and public affairs television.-4-
accessibility of our programs to a visually impaired audience is the success of simulcasts of
C-SPAN television programming on radio station WCSP-FM in Washington, D.C.
5
Our
experience has been that the programs produced for television have translated very well to radio,
losing little of their public affairs information value to the radio audience.
6
Based on the Commission's sample of the kind of video description it expects
programmers to provide,
7
it is difficult to imagine how such a word intensive format as that of the
C-SPAN Networks could possibly comply with any video description requirement likely to come
out of this rulemaking. As a practical matter, there are very rarely pauses in the stream of words
coming out of a public affairs event during which a video description of any usefulness could be
inserted.
8
To the extent there are brief time periods between speakers at an event, C-SPAN will
sometimes provide a related aural announcement, but the timing of those breaks are not always
connected to a development that merits description. And, as noted above, the event participants
themselves are likely to provide an explanation for any pauses, such as for example, that there will
be a wait as the next speaker approaches the dais. Even so, these natural breaks in the flow of
words are only occasional, at best, and do not provide an opportunity for the insertion of a
description, assuming arguendo such a description were even necessary for comprehension of the
programming.
5
Even programs that feature graphic presentations such as slides or photographs have translated well to radio. In nearly all such
instances the presenter of the graphic material provides a description of it as part of the oral presentation.
6
Members of the Commission and its staff are invited to tune into WCSP-FM at 90.1 in the Washington, D.C. metropolitan area to
experience the eff ectiveness of the simulcasts.
7
The reference is to a video clip located at the Commission's Disabilities Issues Task Force website. The video clip is taken from the
motion picture Casablanca.
8
In contrast, the video described portion of the movie Casablanca on the Commission's website was curiously free of dialogue, thereby-5-
If a video description requirement were nevertheless imposed on such a word intensive
format as that of the C-SPAN Networks, the result would constitute a disservice to visually
impaired audiences. Our experience with providing additional aural information about C-SPAN
television simulcasts on WCSP-FM has demonstrated that such additional announcements often
interfere with the coverage itself. After more than two years, we are still searching for a way to
insert announcements in the midst of live public affairs events that do not also overlap and thereby
obscure the spoken words of the participants. A requirement that we increase such video
descriptions in our television programming for the benefit of the visually impaired would have the
anomalous effect of giving them a lesser quality of public affairs information than that received by
everyone else.
II. A Video Description Requirement is Constitutionally Suspect as a Form of
Compelled Speech Affecting Editorial Content
It is undisputed that a video description requirement would constitute a form of
governmentally mandated speech. The first question to arise about such a requirement will be
whether it infringes on the First Amendment rights of free speech and of a free press. In the arena
of news and public affairs reporting on governmental affairs, as the C-SPAN Networks'
programming does, the question is particularly relevant, and its answer probably dispositive. The
Supreme Court was clear on this emphasis when it observed, "[w]here the subject of compelled
speech is the discussion of governmental affairs, which is at the core of our First Amendment
freedoms, the burden upon ... [a speaker's] rights ... is constitutionally impermissible.
9
(..continued)
providing ample time for a rather full description of the action, no real clues to which were offered by the mostly musical soundtrack.
9
Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 522 (1991), citing Roth v. U.S., 354 U.S. 476, 484 (1957); Mills v. Alabama, 384 U.S.
214, 218 (1966); Buckley v. Valeo, 424 U.S. at 14.-6-
Compelled speech is not permitted because "[t]he right of freedom of thought protected
by the First Amendment against state action includes both the right to speak freely and the right to
refrain from speaking at all."
10
Similarly, and in another context, the Court nailed down the point
by emphasizing that "the First Amendment guarantees ‘freedom of speech,’ a term necessarily
comprising the decision of both what to say and what not to say."
11
The Court came back to the
point when it also noted that "[t]he right to speak and the right to refrain from speaking are
complementary components of the broader concept of `individual freedom of mind'."
12
It is true that speech rights (including the right not to speak) may be burdened to advance
an important governmental interest. But in light of the journalistic nature of the speech of the
C-SPAN Networks' governmental affairs coverage, the small benefit that video description is
likely to add to that speech,
13
and the inherent nature of the descriptions expected by the
government, it is difficult to see how the compelled speech of a video description requirement
could pass constitutional muster. For example, the video descriptions proposed by the
Commission can not be analogized to the closed captioning requirements now in effect. The
captioning requirement compelled programmers to make their existing aural speech available in a
written form. The principal burden on the speaker in the case of captioning was essentially the
conversion of his speech from one form to another. Here, the demand placed on the speaker is
(..continued)
10
Id., at 516, quoting Wooley v. Maynard, 430 U.S. 705, 714 (1977).
11
Riley v. National Freedom of the Blind, 487 U.S. 781, 796 (1988).
12
Id., at 797, quoting West Virginia Board of Education v. Barnette, 319 U.S. 624, 637 (1943).
13
Such 'added benefit' may in reality turn out to be a detriment to the visually impaired audience, as noted supra.-7-
inherently different. The Commission would require every programmer to engage in more speech
of a qualitatively different character, much of which the programmer may already have
affirmatively declined to engage in for artistic or for journalistic reasons.
The Commission might contend that its requirement is not an infringement on editorial
discretion or of free speech rights because it seeks only a factual description of the video scenes
accompanying a news report (or in C-SPAN's case, long-form coverage of a public affairs event)
and not a statement of opinion. But its contention must fail in the face of the Supreme Court's
admonition that whether the compelled statement is a fact or an opinion, "either form of
compulsion burdens protected speech."
14
The essence of editorial discretion, and hence, freedom of the press, is the right to
determine what is a fact, and what is an opinion, and to decide which facts not to report. Video
description denies C-SPAN and other journalists the right not to make certain statements about
their video content, however factual those statements might appear to be. As should be obvious,
any single video scene could be factually described in a nearly limitless number of ways, each one
using a different set of facts to do so. While the Commission might argue that it seeks no voice in
the selection of those facts (thereby preserving the free expression rights of the journalist), the
requirement of a description forces a selection of facts that will necessarily impart a
characterization of the scene beyond that contained in the journalist's aural report accompanying
it. In other words, the requirement compels a different kind of report than that intended by the
journalist. That is precisely the kind of compulsion the Constitution does not permit. As the
14
487 U.S. 781, 797.-8-
Supreme Court has said, "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."
15
This mandate applies
even when the purpose is to serve a governmental interest such as making television more
accessible to the visually impaired. Clearly, a video description requirement applied to news and
public affairs reporting will have key First Amendment hurdles to overcome.
III. A Video Description of the Type Contemplated by the Commission Conflicts
with the Founding Principles of the C-SPAN Networks
Since it first began operations in 1979 C-SPAN's fundamental purpose has been to provide
its audiences with public affairs information on a gavel-to-gavel basis without commentary or
editing. The hallmark of our editorial style has been to provide television coverage of an event so
that, to the greatest extent possible, the viewer at home may experience it as if he were in the
room where it was taking place.
16
Our mission has been to provide this kind of coverage so that
the viewer will be able to make up his own mind without having to contend with highly edited
versions of events, or with intrusive commentary from professional observers who seek to
‘explain’ what is going on. Although we have changed some things over the last twenty years,
and although we have made some additions to our programming menu, we have never deviated
from the idea that the C-SPAN Networks constitute a commentary-free zone in television. Our
growth and success over the years are testimony to the value of this unique approach to covering
public affairs on television.
15
Id., at 790
16
The C-SPAN Networks have gone to great lengths to achieve a form of television production that is as neutral as possible, even to the point
of spending hundreds of hours in specialized training of directors, camera operators and producers on how to keep the camera from conveying a
point of view.-9-
A video description of its programming is antithetical to C-SPAN's founding mission. In
addition to the Constitutional infirmities of such a requirement, video description would force us
to do what we have been telling our audience we would never do. It would require us to tell them
what they are watching. We are loathe to do that, even for those in the audience who may be
visually impaired. Just as a sighted person might witness an event in person, so might a visually
impaired person. If either person were to "witness" the same event by means of C-SPAN's
television coverage, then each should have the same editorial experience -- which is to say, to
witness the event without hearing a peep out of C-SPAN. Especially in light of the inherently
self-descriptive nature of C-SPAN's programming, a video description requirement would
undermine its essential value without adding anything to the public interest. The cost is not worth
the price.
IV. A Video Description Requirement Could Result in the Loss of Other
Valuable Services
Whether in the analog or the digital setting, a video description requirement imposes a
burden on bandwidth infrastructure that is not without cost. The signal containing the C-SPAN
programming service includes two audio subcarriers (in addition to the one for C-SPAN itself)
that contain two valuable audio programming services. One is devoted to our round-the-clock
carriage of the BBC's World Service, an international English-language news and cultural
programming service. The other is devoted to our just as extensive carriage of the World Radio
Network, an audio service containing the English-language news services of several countries
around the world. Currently, there is not enough available bandwidth to accommodate the
addition of video description on C-SPAN without eliminating one or both of the existing audio-10-
services.
17
V. The Cost of Video Description is Not Such a ‘Small Fraction’ of the Budget
in the News and Public Affairs Programming Context
In its Notice the Commission notes that the cost of video description may be as much as
several thousand dollars per hour, and also cites others as having "pointed out that the cost of
describing prime time programming is but a small fraction of the total budget of such
programming."
18
While it is understandable that the Commission would focus on prime time
programming, and by implication programming that is more entertainment oriented, any decision
on a video description requirement ought not be made without considering the economics of
public affairs programming.
At this point is it difficult to know the costs of video description for news and public
affairs programs, but it is probably safe to say they would be less than the costs of describing
entertainment programs. But the cost of description as a proportion of the total news and public
affairs programming budget could easily exceed that of prime time entertainment programs, if our
experience is any measure. For example, as of the last fiscal year it cost the C-SPAN Networks
between $1,300 and $1,400 to produce each hour of first run public affairs programming. Even if
the cost to describe our programming were but a small fraction of the several thousand dollars per
hour cited in the Notice, it could easily take up half of our current programming budget.
19
The
point is that as the Commission goes forward in this proceeding it ought to be mindful of these
17
This limit on the available bandwidth also reduces C-SPAN's flexibility in providing Spanish language translations of some of its
programming. Although the C-SPAN Networks do not provide such translations on a regular basis, we did so for one of the national
political conventions. Any additional burden on bandwidth could preclude such translations in the future.
18
Notice at Para. 26.-11-
extremes among programming budgets.
CONCLUSION
In these Comments the C-SPAN Networks have focused on arguments in support of an
exemption from any future video description requirement that would apply to news and public
affairs programming. We believe they are substantive and even dispositive of the questions
presented. We urge to Commission to recognize the reality that video description of the
C-SPAN Networks' programming is unnecessary, and that its requirement is very likely
unconstitutional as well.
Respectfully submitted,
NATIONAL CABLE SATELLITE CORPORATION,
d/b/a C-SPAN
By:
Bruce D. Collins, Esq.
Corporate V.P. & General Counsel
Suite 650
400 North Capitol Street, N.W.
Washington, D.C. 20001
(202) 626-7959
February 24, 2000
f\fc\vid-dsp1.cmt
(..continued)
19
For example, assuming a cost of "only" $700 to describe a one-hour program (as compared with "several thousand dollars"), it would
constitute fully half of the $1,400 per hour cost of the programming.