On Friday, the United States Court of Appeals for the District of Columbia struck down FCC rules requiring the nation’s top video programming distributors to verbally describe 50 hours of prime time or children’s programming per quarter. The rules, which became effective earlier this year, had applied (1) to the nation’s top commercial television broadcast stations, and (2) TNT (Turner Network Television), TBS Superstation, USA Network, Nickelodeon, and Lifetime Television.
The National Cable & Telecommunications Association, National Association of Broadcasters and Motion Picture Association of America led the challenge to the video description rules. In striking down the rules, the court held that the FCC lacked authority under the Communications Act to promulgate the regulations. Specifically, the court held that unlike the Act’s provision pertaining to closed captioning, the section of the Act pertaining to video description did not expressly authorize the FCC to promulgate rules. The court rejected FCC arguments that other more general provisions of the Act, which give the FCC authority to promulgate rules in the public interest, provide the requisite authority, because the rules at issue significantly regulate program content. Unlike closed captioning, which requires mere transcription of dialogue, the video description rules required programming distributors to create a second script, and as such, to make significant creative and editorial judgments.
The FCC is not likely to appeal the decision. Chairman Powell was one of two Commissioners opposing the rules at the time of their adoption. The National Federation for the Blind, a group representing the visually impaired, also did not support the rules.
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