Disability Access Legislation: Hear No Internet Regulation; See No Internet Regulation?

Captions for 30 Rock to the right of the video above.

I wrote back in September of 2006...

...the movement toward (Internet video) regulation doesn't have to come in big shifts like those proposed overseas. We just mentioned closed captioning regulations for TV shows. Well, closed captioning regulations for Internet video are being fought for already. Advocates want the Telecom Act of 1996 to open up the rules to online video. If this is done, what next?

Well, any minute now, Representative Edward J. Markey (D-MA), chairman of the House Subcommittee on Telecommunications and the Internet, will introduce legislation that will give the FCC enforcement rules on mandating disability access for Internet delivered video. The draft legislation is here (PDF).

The Boston Globe top-lines the bill like this:

....(it) would require major producers of Internet videos to add captions as well as "video description" soundtracks that describe the on-screen action for blind people.

The measure would also force changes in the design of television and telephone equipment to make the devices more accessible to the disabled. The goal, Markey said, is "to ensure that people with disabilities are not left behind as technology changes."

The bill would require TV networks to provide captioning and video description tracks when they stream their shows over the Internet.

Markey is seen as a true friend to the Internet on Capitol Hill, but he also has a deep attachment to disability access technologies. He introduced and championed the legislation that led to closed captioning on televisions in 1990.

Still, friendships aside, some are troubled by the bill and don't think it will stand legal tests. Kevin Goldman at the CommLaw blog says:

While an admirable attempt, the legislation has, in our mind, many flaws. The first is the obvious constitutional question. While broadcaster have traditionally been subject to some regulation due to the “scarcity” and “pervasiveness” of the medium, the Internet has been classified by the United States Supreme Court as the perhaps the freest medium of expression in existence – deserving of even more First Amendment protection than even newspapers. It is hard to conceive of a regulation that mandates speech in this way surviving constitutional scrutiny. Another problem raised by several parties is technical in nature. Again, unlike, broadcast television, there is no single technology by which Internet video is delivered. If a broadcaster finds it is even possible to automatically convert captions from a television program to the Internet stream (not always a guaranteed proposition because many programs are condensed on the Internet, with commercials removed), viewers use different programming formats to receive the stream. Captions prepared for delivery via Internet Explorer may not be readable in Linux. Work to solve this problem and create a single format for captioning is ongoing but still some time away. Finally, there is the further concern that captions would be unreadable on smaller computer screens, let alone iPods, iPhones or other mobile phones to which the law would apply.

On the constitutionality question, I've repeatedly gotten the same response by legal minds when I do my Chicken Little dance on Internet video regulation. I may just be a caveman PR guy, but I also can see the evolution of laws as society and technology does the same. Just yesterday, Microsoft's Steve Ballmer said that *all* media content would be delivered over IP networks in a decade. If that is going to work, I would presume that this dynamic will require pretty significant pervasiveness.

And, as I wrote back in that 2006 post....

....at what point of penetration do you need to get to be broadcast TV-esque? Way back in 2003, more than 60 percent of U.S. households had computers and the more recent OECD report said that the US has 49 million broadband subscribers. Oh, and what about those little computers that people carry in the pockets? That is, phones and soon-to-be a bevy of different mobile devices that merge video capabilities and old-school voice calling? There are 180 million wireless subscribers in our country of 300 million. All we're saying is that those are a lot of video platforms that are a lot easier to access than paid-for cable on a 40-inch screen that's attached to a cable box.

To the original "what's next" question: If the FCC has regulatory authority to impose disability access rules on "broadcast-like" Internet video*, than why not be able to impose advertising rules for videos targeted towards children? How about next-generation v-chips? Or, if the Fairness Doctrine sees the light of day again, would it be extended to the Internet?

If precedent is created on any of the above, how far could Internet video regulation go?

All said, there is a very good chance that, at least for now, the Markey bill is one big kick in the industry's ass to get in gear and create disability access solutions that pre-empt legislation. Indeed, Google, Yahoo!, Microsoft and AOL created the Internet Captioning Forum to "overcome the technical and production challenges of providing captions on large video aggregation Web sites."

Indeed the Web captioning site, Captions.org noted recent progress online earlier this week...

More major network channels are setting up video players on their sites..and the good news is, the players show captions! More and more captioned programming is now available through Fox.com (read the review at Disabled in the Digital Age) and others. Plus there is a new online tv broadcaster, Hulu.com, that makes some captioned programming available....

...This is a good start. Part of me wonders if the networks are rushing to provide at least some captioned programming in hopes of avoiding government requirements to provide captions on the internet? After all, because the law that requires captions on television does not apply to the internet, there is now pushing to get a new, updated law that will apply to the internet.

Putting on my Chicken Little suit again, I would respectfully suggest that my friends at businesses heavily invested in online video not merely view their disability access "self-regulatory" efforts as a hedge against bills like Markey's but also see it as a way to maintain that important firewall between them and the FCC vacuum.

Markey has been proven to call industry's bluff before.

*The draft legislation defines the term ‘video programming’ as meaning programming provided by, or generally considered comparable to programming provided by, a television broadcast station, even if such programming is distributed over the Internet or by some other means.’’

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