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A New Civil
Right: Telecommunications Equality for Deaf and Hard of Hearing Americans|
504; rather, only federal agencies that provided federal assistance, like HEW, could impose nondiscrimination obligations on these stations. In a strong dissent, Justices Marshall and Brennan charged that the Court’s majority had been wrong to ignore the underlying obligations of the Rehabilitation Act. Even though the FCC’s responsibilities were dictated by the Communications Act, they asserted that the agency was not free to administer those duties to the complete exclusion of other relevant statutes in matters of the public interest.
While the first Gottfried case had been making its way through the federal court system, Gottfried teamed with Marcella Meyer, GLAD, and thousands of deaf and hard of hearing residents of various California counties in a second lawsuit to push for open captioning on television.[*] This time, Gottfried brought a class action in a California federal district court against three types of defendants: (1) KCET, for its failure as a federally funded station to provide open captioning; (2) federal agencies, including HEW, the FCC, and later on, the Department of Health and Human Services (HHS) and DOJ, for disbursing federal funds to public stations that were not accessible; and (3) the Corporation for Public Broadcasting (CPB) and PBS, for distributing those funds. The lawsuit was an attempt to halt the distribution of funds to public stations that did not fulfill their open captioning obligations and to force the defendant agencies to finally issue captioning rules under Section 504.
By the time the second Gottfried case went to trial in February 1980, HEW had concluded that Section 504 applied to public broadcasters receiving federal financial assistance, but had not yet finalized its guidelines delineating how stations were to meet their Section 504 obligations.43 Unfortunately, over the next few months, these rules bounced back and forth to and from federal agencies in a game of regulatory ping-pong. This began when, in May of 1980, HEW was divided into two agencies, HHS and the Department of Education, and the latter was given responsibility for continuing the captioning program and completing the Section 504 guidelines.44 A few months later, in November 1980, the president gave DOJ the responsibility of coordinating federal implementation of Section 504 for all federal agencies, a task that originally had been assigned to HEW.45
In January 1981, the Department of Education finally released a notice of intent to issue Section 504 public broadcast regulations.46 However, a half a year later, the department decided to drop this rulemaking and instead require television access through individual cases and contractual provisions. In apparent disagreement with this approach, during the summer of 1981, DOJ announced to the district court trying the second Gottfried case its intentions to again proceed with a Section 504 rulemaking to cover public broadcasters, and to have final rules issued by June 1982. But the court did not wait for the federal agencies to get their affairs in order any longer.
On November 17, 1981, the court issued its opinion, dismissing the case against KCET, CPB, and PBS because there were no Section 504 rules obliging these stations to provide access to television programming.47 However, the court found that the federal agencies’ continual delays, their ongoing shifts in rulemaking authority, and their ultimate failure to promulgate any Section 504 rules for public broadcasters—despite the distribution of significant federal funding to these stations— “deliberately fostered and promoted discrimination against deaf and hearing impaired persons.”48 It was “simply irrational,” said the court, not to have issued rules, given the specific mandate of all federal agencies “to enable qualified handicapped persons to achieve their full capability, foster their self-sufficiency and independence, and integrate them into the community.”49 Going even further, the court ruled that the agencies’ foot-dragging violated both the first and fifth amendments to the Constitution because the absence of access denied deaf and hard of hearing people the information they needed to participate meaningfully as informed citizens in our democracy!
The California district court went on to hold that the FCC’s mandate for broadcasters to act in the public interest encompassed Section 504’s national policy of nondiscrimination, and was applicable to both commercial stations and public stations that directly received federal grants. It then rejected closed captioning as a “reasonable alternative” because of the “prohibitive” cost of decoders, noting as evidence the fact that only 40,000 decoders had been sold to
* Deaf and hard of hearing people in the Los Angeles, Orange, Ventura, and Santa Barbara counties were included in the class action. GLAD was eventually dismissed as a plaintiff because the court found that it did not have standing to bring the lawsuit.