August 7, 1997

SEPARATE STATEMENT OF

COMMISSIONER RACHELLE B. CHONG

Re: Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Report and Order, MM Docket No. 95-176.

There is an inherent tension in new Section 713 of the Communications Act,⁽¹⁾ which orders new closed captioning and video description requirements for video programming throughout the nation. While the statute mandates full accessibility for new programming and requires a "maximization" of accessibility of pre-rule programming, the statute also makes clear that undue economic burdens should not be imposed on program providers by these rules, and grants the Commission broad discretion to order exemptions. Balancing these competing directives was a difficult task, and while I generally feel that we ultimately achieved the right balance, I do have some residual concerns about our new rules.

Overall, I am pleased to support the decision because it will greatly increase the accessibility of video programming for the deaf community. As a result of today's decision, the amount and variety of closed captioned video programs will dramatically increase over time. This will have tremendous benefits for the members of the deaf community, who will enjoy a fuller television experience and more easily receive crucial news and information. As a result of our decision today, I am hopeful that closed captioning will become an integral part of the video production process.

In crafting our rules, we tried strike a reasonable balance between the benefits that will flow from more closed captioning and the statute's mandate that we not place an undue economic burden on program providers. In particular, I had concerns about whether the economic burdens associated with the captioning requirements might have an inadvertent, negative effect on the diversity of programming. Specifically, some types of very worthy new programming that richly contribute to the diversity of our programming have very fragile support systems, due to the fact that the programming only attracts a small audience, has little repeat value, or is filmed on a shoestring production budget. Such programs might include the airing of a local high school football game, a community parade, a foreign language film, a locally produced children's educational program, or a city council debate. I believe that several of the exemptions that we adopt today will help ensure that this programming will not be driven off the air by a well-intentioned captioning requirement. I do not believe that anyone, including the deaf community, would have benefitted if our captioning requirements resulted in the loss of such programming.

I was also concerned about the impact that our pre-rule programming requirements might have on program diversity. While encouraging us to "maximize" captioning of this older programming, Congress also appeared concerned that pre-rule programming not be relegated to the dusty archives due to the cost of captioning.⁽²⁾ As a practical matter, this older pre-rule programming is often relied upon by new cable networks, because such programs are relatively inexpensive and well-received by audiences. I am concerned that an overly stringent pre-rule programming captioning requirement may inadvertently have the effect of discouraging new cable networks whose business plan relied on this older programming. Although the captioning requirements we adopted for pre-rule programming provide more flexibility to programming providers than our rules for new programming, I remain concerned that our requirements may be too onerous. In particular, our requirement that 75% of pre-rule programming be captioned might be excessive. I believe that we ought to monitor the impact of this requirement carefully to ensure we are not overburdening pre-rule programming unduly.

When I stepped back from our final product, I became concerned that, in our attempt to address the many legitimate concerns raised by the commenters and to strike the balance mandated by Congress, the rules we adopt today may be complex and difficult to apply. They appear over-regulatory in an era of deregulation. I am pleased, however, that our staff has committed to working with the programming providers and the deaf community to help them understand and work with the rules. While the decision reflects a difficult compromise that may not fully please either the deaf community or programming providers, in the end, I believe it to be a fair compromise.

1. 47 U.S.C. Section 713.

2. See H.R. Rep. No. 204, 104th Cong., 1st Sess., at 114 (1995).