Motion Picture Ass'n of America, Inc. v. F.C.C.
| Decision Date | 08 November 2002 |
| Docket Number | No. 01-1149.,No. 01-1155.,01-1149.,01-1155. |
| Citation | 309 F.3d 796 |
| Parties | MOTION PICTURE ASSOCIATION OF AMERICA, INC., et al., Petitioners. v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. National Television Video Access Coalition, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Robert Corn-Revere argued the cause for petitioner Motion Picture Association of America, Inc., et al. With him on the briefs was Ronald G. London.
Daniel F. Goldstein argued the cause and filed the briefs for petitioner National Federation of the Blind.
C. Grey Pash, Jr., Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Jane E. Mago, General Counsel, Daniel M. Armstrong, Associate General Counsel, and Jacob M. Lewis, Attorney, United States Department of Justice. Catherine G. O'Sullivan, Chief Counsel, and Nancy C. Garrison, Attorney, United States Department of Justice, entered appearances.
Donald J. Evans argued the cause for intervenors. With him on the brief were Liliana E. Ward, Keith A. Noreika, and Robert A. Long, Jr.
Before: EDWARDS, HENDERSON, and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
The Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 ("the Telecommunications Act"), added new provisions covering video programming accessibility to the Communications Act of 1934, 47 U.S.C. § 151 et seq. ("the Act"). The new provisions, codified in § 713 of the Communications Act, 47 U.S.C. § 613, specifically dealt with "closed captioning" and "video description" technologies that can be employed to enhance television video services for hearing and visually impaired individuals. Closed captioning displays the audio portion of television signals as words displayed on the screen and can be activated at a viewer's discretion. Video descriptions provide aural descriptions of a television program's key visual elements (such as the movement of a person in a scene) that are inserted during pauses in the program dialogue. Video descriptions change program content because they require the creation of new script to convey program details, whereas closed captions present a verbatim transcription of the program's spoken words.
Congress treated the two technologies quite differently when it passed the Telecommunications Act, which added § 713 to the Communications Act. Section 713(a) required the Commission to complete a closed captioning inquiry and to report its findings to Congress within 180 days of the Act's passage. 47 U.S.C. § 613(a). Sections 713(b) and (c) required the Commission to prescribe closed captioning regulations and established compliance deadlines. 47 U.S.C. § 613(b)-(c). Sections 713(d) and (e) established exemptions from the closed captioning rules. 47 U.S.C. § 613(d)-(e). In contrast, subsections 713(f) and (g) — the sole subsections dealing with video description — merely defined "video description" and required the FCC to prepare a report to Congress. 47 U.S.C. § 613(f)-(g). Unlike the provisions covering closed captioning, § 713 did not authorize the Commission to adopt regulations implementing video descriptions.
After releasing a report on video description, the FCC announced that it was seeking commentary on proposed rules mandating video description. Implementation of Video Description of Video Programming, Notice of Proposed Rulemaking, 14 F.C.C.R. 19,845, 1999 WL 1044393 (1999) ("Notice of Proposed Rulemaking"). The FCC then adopted rules mandating television programming with video descriptions. Implementation of Video Description of Video Programming, Report and Order, 15 F.C.C.R. 15,230, 2000 WL 1091672 (2000) ("Report and Order"). The Motion Picture Association of America ("MPAA") and the National Federation of the Blind ("NFB") both petitioned this court for review of the agency's regulations mandating video descriptions. MPAA contends that the new regulations should be struck down because they are not authorized by § 1 and they are precluded by § 713 of the Act. See 47 U.S.C. §§ 151, 613. NFB contends that the regulations should be rejected as arbitrary and capricious, because the FCC failed to assess whether visually impaired persons actually want or need video description, as opposed to rules requiring spoken articulation of on-screen text.
By its terms, the Act does not provide the FCC with the authority to enact video description rules. Contrary to the FCC's arguments suggesting otherwise, § 1, 47 U.S.C. § 151, does not give the FCC unlimited authority to act as it sees fit with respect to all aspects of television transmissions, without regard to the scope of the proposed regulations. We hold that where, as in this case, the FCC promulgates regulations that significantly implicate program content, § 1 is not a source of authority. Because the FCC can point to no other statutory authority, the video description regulations must be vacated. Accordingly, MPAA's petition for review is hereby granted. NFB's petition for review is dismissed as moot, because the regulations to which they object will be vacated pursuant to the court's judgment in this case.
The Telecommunications Act added to the Communications Act new video programming accessibility provisions involving closed captioning and video description. 47 U.S.C. § 613. Video description is defined in the statute to include "the insertion of audio narrated descriptions of a television program's key visual elements into natural pauses between the program's dialogue." Id. § 613(g). Video descriptions are usually transmitted over a secondary audio programming channel, a subcarrier that allows video distributors to transmit additional soundtracks, such as foreign language programming. Closed Captioning and Video Description of Video Programming, Report, 11 F.C.C.R. 19,214, 19,221, 1996 WL 420237 (1996) ("Video Accessibility Report").
There is a marked difference between Congress' treatment of closed captioning and video description in § 713 of the Act. The new provision required the FCC to complete an inquiry into closed captioning, and report the results to Congress within 180 days of the Act's passage. 47 U.S.C. § 613(a). It also affirmatively required that the FCC prescribe regulations for the implementation of closed captioning, id. § 613(b), and established compliance deadlines for that action, id. § 613(c). In contrast, § 713 only required that the FCC prepare a video description report for Congress; it did not mandate any implementation of visual descriptions. Id. § 613(f).
The initial House bill preceding the enactment of § 713 would have required the FCC to adopt video description rules. See Report and Order, 15 F.C.C.R. at 15,274 n. 9 (Powell, dissenting) (). However, the bill was amended in committee to provide a discretionary grant of authority rather than mandate that the FCC provide video description. The new language provided that, "[f]ollowing the completion of such inquiry, the Commission may adopt regulation [sic] it deems necessary to promote the accessibility of video programming to persons with visual impairments." Amendment No. 8 to H.R. 3636 (Moorhead) (Mar. 16, 1994), reprinted in Joint Appendix ("J.A.") 237. This new version of the bill passed the House in 1995. H.R. 1555, § 204(f), 104th Cong. (1st Sess.1995), reprinted in J.A. 254-59.
The corresponding Senate bill, however, only directed the FCC to report to Congress about video description: It neither mandated video description nor provided the FCC with discretionary authority to adopt such rules. S. 652, § 305, 104th Cong. (1st Sess.1995), reprinted in J.A. 251-53. The conference committee adopted the Senate version, abandoning the House language providing the FCC with discretionary authority. Congress passed this version of the bill and the President signed it into law.
After the enactment of § 713, the FCC issued the report that the Act mandated. The report stated that "the best course is... to continue to collect information and monitor the deployment of video description and the development of standards for new video technologies that are likely to affect the availability of video description." Video Accessibility Report, 11 F.C.C.R. at 19,271. The FCC supplemented this report with a second report, Annual Assessment of the Status of Competition in the Markets for the Delivery of Video Programming, Report, 13 F.C.C.R. 1034, 1998 WL 10229 (1998). Then, in 1999, the FCC announced that it was seeking commentary on proposed rules that would mandate video description. Notice of Proposed Rulemaking, 14 F.C.C.R. 19,845. The Commission sought commentary, inter alia, about whether the FCC possessed statutory authority to enact such rules. Id. at 19,857-59 ¶¶ 34-39.
After reviewing the comments, the FCC voted 3-2 to adopt rules requiring certain video programmers to supplement certain programming with video descriptions. See Report and Order, 15 F.C.C.R. 15,230. The FCC concluded that it possessed the statutory authority to adopt these rules pursuant to § 1 of the Act. 47 U.S.C. § 151. Section 1 gives the FCC authority to regulate "interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States.... a rapid,...
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