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A New Civil
Right: Telecommunications Equality for Deaf and Hard of Hearing Americans|
date.50 The court concluded by directing both DOJ and the FCC to adopt Section 504 regulations for public broadcasters and prohibiting all federal agencies from disbursing additional funds to broadcasters until these rules were released, unless those funds were to be used for open captioning.51
Unfortunately, the district courtís favorable rulings again failed to survive an appeal. The Ninth Circuit U.S. Court of Appeals reversed the lower courtís decision to allow federal funds to be withheld from television stations that failed to provide captions because no regulations linked federal funding to specific access requirements.52 Even worse, the appellate court held that neither DOJ nor the FCC even had an obligation to issue television access rules because neither distributed federal funds to television stations. Additionally, the court said that the Department of Education, which did provide some funding, was within its authority to require television access through contractual provisions, rather than regulations. The court also overturned other rulings made by the lower court that would have required federally funded programs to have open instead of closed captions, and that interpreted the Constitution to impose the duty to make television accessible.
On July 9, 1981, Gottfried, Meyer, and GLAD filed yet a third Section 504 complaint with the U.S. Department of Commerce, alleging the departmentís failure to condition federal grants to KCET on the provision of captioning.53 After the complaint languished before the department for several years, the matter once again ended up in the Ninth Circuit Court of Appeals, where, in 1987, the court directed a lower court to send the complaint back to the Department of Commerce for resolution.54 Although KCET was eventually found to be in compliance with Section 504, the case made the department aware of the need to consider television access by people with disabilities in future contracts with federal grantees.55
Although it was somewhat frustrating that the chain of Gottfried cases did not secure greater court victories, the cases undoubtedly contributed significantly to television access, both by bringing these issues into the spotlight, and by helping to shape the captioning debate. For example, several years later (in October 1989), CPB would require all public television producers receiving funding from its corporation to include closed captioning as a mandatory budget line item.56 Having come at a critical juncture in the development of captioning, the cases set the stage for captioning successes in the years to come.
The 1980s: Closed Captioning Takes Firmer Ground
By the end of 1980, 30,000 homes had acquired decoders. While substantial, this number remained far below original projections. Part of the problem may have been that the government had given Sears and other retailers a very small mark-up on their decoder sales, leaving these companies with neither the funds nor the incentive to conduct extensive consumer outreach.57 Although NCI and other nonprofit organizations made substantial efforts to inform the public about decoder options, they could not reach sizeable segments of television viewing audiences. In addition, decoder prices were high, especially for the deaf community, which had a greater unemployment rate than the general public. But beyond this, many felt that the main reason that consumers were reluctant to purchase decoders was simply that there just were not very many closed captioned programs on TV that made those purchases worthwhile.
The Department of Education grew concerned. Although it had hoped that ongoing appropriations for captioning would not be needed once its captioning program was well off the ground, it now realized that the fate of its initial investment in the line 21 technology might depend on its increasing the number and variety of federally subsidized captioned programs. Responding to the state of affairs, over the next several years, the department significantly expanded captioning access to newscasts, sports, childrenís shows, movies, television specials, series, and syndicated shows.
By 1981, captions were available on thirty-five ABC, NBC, and PBS programs. But although this progress prompted the American Association of Advertising Agencies to continue advising its members to caption their commercials, slow decoder sales began to cause broadcasters to question whether their one-million-dollar-a-year captioning investment