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American Annals of the Deaf

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A New Civil Right: Telecommunications Equality for Deaf and Hard of Hearing Americans

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senior citizens. The cost of making thirty-second advertisements accessible with captions—around $165.00—was nominal compared to the tens of thousands of dollars associated with their creation and broadcast.

Notwithstanding the apparent success of line 21 captioning, CBS remained a pocket of resistance, and in July of 1980, the network petitioned the FCC for a national Teletext broadcasting standard. In November of 1980, the Los Angeles CBS affiliate also announced plans to test Teletext over the air in April 1981.28 CBS was so opposed to line 21 that even when advertisers captioned their commercials at no charge to CBS, the network allegedly promised to strip the captions off before airing the ads!29

Ascertainment and the Gottfried Cases: Other Avenues to Access

Three years before the networks entered into their major contract to provide television captioning, deaf community activists in California, growing increasingly disgruntled with the slow pace of the industry’s voluntary progress, began pursuing television access on a separate and parallel track. At the time, PBS was still the only network providing open captioning on any of its programs. Although work was being done behind the scenes to develop line 21 closed captioning, deaf viewers remained without any access to commercial television.

Rather than wait for the federal closed captioning program to evolve, the California mavericks took their claims for accessible television programming to the FCC, and ultimately, the federal courts. The string of federal challenges that they brought began in October 1977, when Sue Gottfried, the Greater Los Angeles Council on Deafness, Inc. (GLAD), and the California Association of the Deaf, joined various other organizations and several hundred individual petitioners in asking the FCC not to renew the licenses of eight Los Angeles television stations—seven commercial and one public—on the grounds that the stations had not provided access to their programs.[*]

Under the Communications Act, television broadcasters are obligated to provide programming “in the public interest” in exchange for their free use of the airwaves.30 In the mid-1970s, the FCC ruled that this public interest obligation required commercial television broadcasters to ascertain and respond to the problems, needs, and interests of the communities they were licensed to serve.31 This became known as the “ascertainment” obligation, and in order to meet it, stations had to consult with community leaders from a designated list of “19 typical institutions and elements normally present in a community.” While the list included groups such as labor, minorities, and women, it did not include people with disabilities.32 Although there was an “other” category, so long as a licensee consulted with community leaders from the principal nineteen categories, it was deemed to have fully met its obligations. To make matters worse, both of the most common methods used by broadcasters to assess community needs—random telephone surveys and call-in television shows—remained inaccessible to the deaf community.

Gottfried’s complaint alleged that by not providing captioning, the stations had violated their obligations to ascertain and provide programming in response to the needs of deaf and hard of hearing viewers, had ignored the FCC’s 1970 public notice encouraging broadcasters to make their programming visually accessible, and had violated Section 504 of the Rehabilitation Act, the federal law prohibiting programs and activities that receive federal financial assistance from discriminating against people with disabilities. Although the seven commercial stations named in the complaint did not receive the type of direct federal assistance that typically triggered Section 504’s obligations, Gottfried argued that their receipt of free broadcast licenses was the equivalent of federal aid. Without the licenses, the stations would not have been able to operate, and therefore could not generate the millions of dollars they received through commercial advertisements. The eighth station—KCET—did receive direct federal funding from HEW.

A month after Gottfried filed her challenges, the Denver Commission on the Disabled challenged the exclusion of people with disabilities from the FCC’s ascertainment community checklist.33 A few months later, the National Gay Task Force and 142 gay rights organizations formally petitioned the FCC to add issues concerning the portrayal of homosexuals on television to the formal list. In response to these and other community concerns, in August 1978, the FCC proposed to

* In addition, it alleged that KCET, the public station in Los Angeles, had for a period of time, failed to show the captioned version of the ABC evening news.
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