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July 21, 2000


Re: In The Matter of Implementation of Video Description of Video Programming, MM Docket No. 99-339, Report and Order

This item represents another worthy effort by the Commission to improve the disability community’s access to communications. Proudly, this is an area that has received significant attention by both Congress and this Commission, remedying some years of neglect. I applaud the government’s continuing focus on these issues.

The item is noteworthy, however, for another reason that I find much less laudable. Though for a very commendable purpose, the Commission yet again is expanding its reach beyond a specific statutory provision by availing itself of ancillary jurisdiction under the broad provisions of sections 4(i) and 303(r) of the Communications Act. While the Commission certainly may act on ancillary authority in the absence of a specific statutory provision, it cannot and should not do so where Congress has spoken specifically on an issue or where there is a clear contrary congressional intention. Because I find Congress spoke to video description in section 713(f), and purposely limited the Commission to studying the issue and reporting to Congress, I dissent to the adoption of video description rules under ancillary jurisdiction. I do, however, support that portion of the Order that provides for emergency text information in audio form, which is clearly authorized by the statute.

Section 713(f) of the Act addresses video description for the visually impaired, a service that is roughly analogous to closed captioning. In stark contrast to the closed captioning provisions, Congress did not mandate video description, nor did it direct the Commission to prescribe regulations. Congress only directed the Commission to conduct an inquiry on video description and to report its findings to Congress. When these separate provisions are viewed together (one mandating rules and one not), it is fairly plain that by negative implication Congress did not wish to legally require video description, but instead wished to consider the matter more fully, after receiving a report from the FCC.

A review of the legislative history closes the door on any suggestion that Congress was not adverse to FCC mandated rules, though unwilling to mandate video description itself. The original House bill specifically authorized the FCC to promulgate video description regulations. The Senate version of this bill directed the Commission only to submit a report to Congress and did not contain language mandating video description, or delegating discretion to the FCC to do so through a rulemaking. Both versions of the bill, however, mandated closed captioning and specifically directed the Commission to implement the mandate by promulgating closed caption rules. The Senate and House bills ultimately were sent to the conference committee to resolve conflicting provisions. The conference committee struck the House language in favor of the Senate’s reporting requirement stating, “The conference agreement adopts the House provision with modifications which are incorporated as new section 713 of the Communications Act [and] deletes the House provision referencing a Commission rulemaking with respect to video description. By the chronology of the legislative drafting and the actions of the conference committee, it is abundantly clear that Congress specifically considered granting discretionary authority to the FCC to promulgate video description rules and elected not to do so.

I am at a complete loss to understand how the Commission can hold that section 713(f), though not mandating rules, nonetheless permits the Commission the discretion to put forth rules against this legislative backdrop. Congress squarely considered and rejected the very permissive adoption of rules the Commission now embarks upon. The majority’s approach is breathtaking, for it suggests the Commission can favor its preferences over those of Congress (as long as its actions are within the expansive scope of very general statutory provisions), if Congress fails to affirmatively prohibit it from acting. Apparently, in the majority’s view, it is not enough for Congress to simply pass a law of limited scope. This view turns the notion of a delegated agency on its head. The Commission can act only where it is authorized to do so. It is not free to act wherever it wishes unless prohibited from doing so.

In addition to jurisdiction, I believe this Order attempts to gain weight from the admittedly high purpose of helping a segment of the disability community gain access to television. But, I believe the benefits are substantially less than celebrated in the Order. Moreover, I believe the Order is faulty in several key respects. These additional concerns, as well as those related to jurisdiction, will be elaborated in full in my separate statement that will be appended to the Order.

I indeed wish I could support this Order more fully. I share my colleague’s passion in wanting to help the visually impaired. It is discomforting not to support a service for so deserving a community. But, it is precisely when the end is noble that the rule of law is most severely tested. I personally cannot read the law conveniently, even for so worthy a constituency. I hope that Congress corrects this glaring omission in the law.