[Blogmeister’s Note: As we reported last month, the video description rules – left for dead after being struck down by the Court of Appeals for the D.C. Circuit eight years ago – are on their way back.  For readers who weren’t around back then, or who don’t recall what happened the last time around, here’s a quick CommLawBlog recap.]

Video description gives blind and visually impaired people a way to “watch” video programming by adding a spoken narrative describing the visual elements of a scene during natural pauses in dialog. (Example: “Toto pulls one of the curtains aside, revealing a small man manipulating a huge, complex machine.”) A well-done video description can be engaging and evocative, like a good play-by-play commentary or book on tape. Video description can open up a world of entertainment and information that would otherwise be inaccessible to the blind. This is important, say advocates, because in modern society, full access to information is as essential as, for example, access to public transportation.

So what’s the problem? Production of video description can be expensive, and the market doesn’t pay for it, so there’s little marketplace incentive to provide it. That’s where the government comes in. In 2000, the FCC adopted rules requiring broadcasters and cable operators to provide video description. Broadcasters in the top 25 markets, affiliated with the top four commercial networks, had to provide about four hours a week of video description. All other broadcast stations had to “pass through” any video description if they had the technological capability to do so.

The rules became effective April, 2002 (despite multiple efforts to get them stayed), but in November of that same year, the U.S. Court of Appeals for the D.C. Circuit struck them down.

According to the Court, the fatal flaw in the video description regulations was lack of authority. The Commission, of course, is a creature of Congress and, as such, the Commission can do only what Congress has authorized it to do. The Court held that the 1996 Act fell short because that Act didn’t explicitly authorize the FCC to prescribe video description regulations; rather, it merely instructed the Commission to look into video description and provide a report to Congress. By contrast, the Act was very clear in authorizing the Commission to impose closed captioning requirements. The Court also observed that the legislative history indicated that the idea was considered and deliberately rejected.

And as far as the FCC’s general regulatory authority goes, the Court concluded that that authority stopped short of rules “that significantly implicate program content.”   The Court held that video description is “content” because, unlike closed captioning, it is not automatically generated and requires some artistic input. (In fact, some content providers have claimed that video description creates copyright issues as it creates a “derivative work” of the original—but that’s a story for another day).

The FCC, noted the Court, was not able to cite one case in which a content regulation based on the FCC’s general authority to regulate broadcasting survived court scrutiny – thanks mainly to the First Amendment. Specific instances where the FCC does regulate content, such as indecency and elections, have explicit statutory support. Without such support, the FCC is not at liberty to impose regulations on content.

Now, a decade later, the FCC has received the authority it lacked in 2000. It does not have carte blanche, however. After one year and a rulemaking, it must reinstate only its original rules, with certain modifications that appear designed to lighten the burden on broadcasters.  For example, the Act requires the FCC to consider extending the original “technical capability” exemption – which previously applied only to “pass though” stations – to all providers and owners of video programming. It also allows the FCC to exempt any provider (or category of provider) who shows that compliance would be “economically burdensome.” Given the potential controversy of such issues, this reinstatement may turn out to be more complicated than it looks.