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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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revise its ascertainment mandates to require broadcast stations to ascertain the needs of any significant elements in their communities—which, the Commission said, possibly included “the handicapped” —even if those groups were not within the FCC’s original nineteen community categories.34 Deaf community advocates readily supported the new proposal, as this provided yet another means by which they could alert broadcasters of their desire for more captioned television programs.[*]

Notwithstanding the release of this new ascertainment proposals, in the same month, the FCC rejected all of Gottfried’s license challenges.35 The Commission gave as its reason Gottfried’s failure to allege any specific FCC violation because the FCC did not have any rules requiring stations to gather information from people who were deaf and hard of hearing, nor any guidelines requiring captioning or other methods to make programming visually accessible. The FCC also rejected Gottfried’s claim that Section 504 applied to commercial broadcasters, because they received no direct federal money. Although the Commission found that public station KCET was, in fact, covered by Section 504, it said that only HEW—which provided funding to that station—and not the FCC, was responsible for ensuring access to KCET’s programming. Because HEW had not yet adopted rules on the Section 504 obligations of public broadcasting stations, the Commission concluded it would be unfair to deny KCET’s license for noncompliance. When, on reconsideration, the FCC upheld this decision, Gottfried appealed her case to the D.C. Circuit Court of Appeals.36

While the D.C. Circuit was deliberating the merits of Gottfried’s case, the FCC released its final rules on ascertainment (in April 1980). In yet another blow to consumers, the FCC rejected its own suggestion to add gay and disability elements to the ascertainment checklist, yielding to broadcaster claims that it would be too difficult to consult with every significant community group. The Commission explained that the list already contained the socioeconomic elements common to most communities, and reached the startling conclusion that the record lacked evidence that “gay and handicapped persons are significant in all or most communities.”37 Rather than require broadcasters to reach out to these and other community groups, the FCC shifted the burden to the excluded groups to approach their local broadcasters. Only after being contacted by one of these groups would a station have an obligation to take their needs into account.

The FCC’s 1980 ruling effectively eliminated use of the ascertainment obligation as a legal strategy for expanding captioning mandates. Contacting television stations was difficult, if not impossible, for most deaf and hard of hearing consumers, who were still largely without TTYs and entirely without relay services. But this had only short-term significance; a few years later, in yet another turn of events, the FCC would do away with its ascertainment mandates altogether, and rely instead on the competitive marketplace to encourage broadcasters to respond to the needs of their communities.38 Consumers were sorely disappointed when they failed in their last-ditch efforts to convince the FCC that a marketplace theory had never worked in meeting the television needs of people with disabilities.39

In 1981, Gottfried finally secured her first partial victory in the D.C. Circuit.40 Although the court agreed with the FCC that a license was not sufficient federal assistance to bring the commercial stations under Section 504, the court did reverse the FCC’s renewal of KCET’s license, concluding that the public station had a duty to comply with the Rehabilitation Act, even in the absence of specific HEW guidelines defining that compliance. Judge J. Skelly Wright, delivering the opinion for the court, complained that in the quarter of a century since television had first been made available, “millions of Americans have lived and died . . . without being able to enjoy radio and television simply because their hearing was impaired. It is time for the Commission to act realistically to require, in the public interest, that the benefits of television be made available to the hard of hearing now.”41 He then sent the case back to the FCC, with a directive for the agency to examine the extent to which KCET had made reasonable efforts not to discriminate against deaf and hard of hearing people.

Unfortunately, even this minor victory was overturned by the U.S. Supreme Court two years later, in February 1983.42 Although the Court acknowledged an interest in having both commercial and public stations respond to the needs of the disability community, it held that the FCC had no obligation to evaluate the compliance of public stations under Section

* In addition to using ascertainment to educate stations about the need for more captioning, NCLD saw it as a way to increase coverage of disability issues on news and public affairs programs. NCLD, Comments on Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log Requirements for Commercial Television Stations in MM Dkt. 83-670 (October 13, 1983).
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