Motion Picture Ass'n of America, Inc. v. Federal Communications Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2002 Decided November 8, 2002

No. 01-1149

Motion Picture Association of America, Inc., et al.,
Petitioners

v.

Federal Communications Commission and
United States of America,
Respondents

National Television Video Access Coalition, et al.,
Intervenors

---------

Consolidated with
01-1155

On Petitions for Review of Orders of the
Federal Communications Commission

---------

 Robert Corn-Revere argued the cause for petitioner Motion
Picture Association of America, Inc., et al. With him on the
briefs was Ronald G. London.

Daniel F. Goldstein argued the cause and filed the briefs
for petitioner National Federation of the Blind.

C. Grey Pash, Jr., Counsel, Federal Communications Com-
mission, argued the cause for respondents. With him on the
brief were Jane E. Mago, General Counsel, Daniel M. Arm-
strong, Associate General Counsel, and Jacob M. Lewis,
Attorney, United States Department of Justice. Catherine G.
O'Sullivan, Chief Counsel, and Nancy C. Garrison, Attorney,
United States Department of Justice, entered appearances.

Donald J. Evans argued the cause for intervenors. With
him on the brief were Liliana E. Ward, Keith A. Noreika,
and Robert A. Long, Jr.

Before: Edwards, Henderson, and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Edwards.

Concurring opinion filed by Circuit Judge Henderson.

Edwards, Circuit Judge: The Telecommunications Act of
1996, Pub. L. No. 104-104, 110 Stat. 56 ("the Telecommunica-
tions Act"), added new provisions covering video program-
ming accessibility to the Communications Act of 1934, 47
U.S.C. s 151 et seq. ("the Act"). The new provisions, codified
in s 713 of the Communications Act, 47 U.S.C. s 613, specifi-
cally dealt with "closed captioning" and "video description"
technologies that can be employed to enhance television video
services for hearing and visually impaired individuals.
Closed captioning displays the audio portion of television
signals as words displayed on the screen and can be activated
at a viewer's discretion. Video descriptions provide aural
descriptions of a television program's key visual elements
(such as the movement of a person in a scene) that are
inserted during pauses in the program dialogue. Video de-
scriptions change program content because they require the
creation of new script to convey program details, whereas

closed captions present a verbatim transcription of the pro-
gram's spoken words.

Congress treated the two technologies quite differently
when it passed the Telecommunications Act, which added
s 713 to the Communications Act. Section 713(a) required
the Commission to complete a closed captioning inquiry and
to report its findings to Congress within 180 days of the Act's
passage. 47 U.S.C. s 613(a). Sections 713(b) and (c) re-
quired the Commission to prescribe closed captioning regula-
tions and established compliance deadlines. 47 U.S.C.
s 613(b)-(c). Sections 713(d) and (e) established exemptions
from the closed captioning rules. 47 U.S.C. s 613(d)-(e). In
contrast, subsections 713(f) and (g) - the sole subsections
dealing with video description - merely defined "video de-
scription" and required the FCC to prepare a report to
Congress. 47 U.S.C. s 613(f)-(g). Unlike the provisions
covering closed captioning, s 713 did not authorize the Com-
mission to adopt regulations implementing video descriptions.

After releasing a report on video description, the FCC
announced that it was seeking commentary on proposed rules
mandating video description. Implementation of Video De-
scription of Video Programming, Notice of Proposed Rule-
making, 14 F.C.C.R. 19,845 (1999) ("Notice of Proposed Rule-
making"). The FCC then adopted rules mandating television
programming with video descriptions. Implementation of
Video Description of Video Programming, Report and Order,
15 F.C.C.R. 15,230 (2000) ("Report and Order"). The Motion
Picture Association of America ("MPAA") and the National
Federation of the Blind ("NFB") both petitioned this court
for review of the agency's regulations mandating video de-
scriptions. MPAA contends that the new regulations should
be struck down because they are not authorized by s 1 and
they are precluded by s 713 of the Act. See 47 U.S.C.
ss 151, 613. NFB contends that the regulations should be
rejected as arbitrary and capricious, because the FCC failed
to assess whether visually impaired persons actually want or
need video description, as opposed to rules requiring spoken
articulation of on-screen text.

 By its terms, the Act does not provide the FCC with the
authority to enact video description rules. Contrary to the
FCC's arguments suggesting otherwise, s 1, 47 U.S.C. s 151,
does not give the FCC unlimited authority to act as it sees fit
with respect to all aspects of television transmissions, without
regard to the scope of the proposed regulations. We hold
that where, as in this case, the FCC promulgates regulations
that significantly implicate program content, s 1 is not a
source of authority. Because the FCC can point to no other
statutory authority, the video description regulations must be
vacated. Accordingly, MPAA's petition for review is hereby
granted. NFB's petition for review is dismissed as moot,
because the regulations to which they object will be vacated
pursuant to the court's judgment in this case.

I. Background

The Telecommunications Act added to the Communications
Act new video programming accessibility provisions involving
closed captioning and video description. 47 U.S.C. s 613.
Video description is defined in the statute to include "the
insertion of audio narrated descriptions of a television pro-
gram's key visual elements into natural pauses between the
program's dialogue." Id. s 613(g). Video descriptions are
usually transmitted over a secondary audio programming
channel, a subcarrier that allows video distributors to trans-
mit additional soundtracks, such as foreign language pro-
gramming. Closed Captioning and Video Description of
Video Programming, Report, 11 F.C.C.R. 19,214, 19,221
(1996) ("Video Accessibility Report").

There is a marked difference between Congress' treatment
of closed captioning and video description in s 713 of the Act.
The new provision required the FCC to complete an inquiry
into closed captioning, and report the results to Congress
within 180 days of the Act's passage. 47 U.S.C. s 613(a). It
also affirmatively required that the FCC prescribe regula-
tions for the implementation of closed captioning, id. s 613(b),
and established compliance deadlines for that action, id.
s 613(c). In contrast, s 713 only required that the FCC

prepare a video description report for Congress; it did not
mandate any implementation of visual descriptions. Id.
s 613(f).

The initial House bill preceding the enactment of s 713
would have required the FCC to adopt video description
rules. See Report and Order, 15 F.C.C.R. at 15,274 n.9
(Powell, dissenting) (noting that H.R. 3636 s 206 provided
that the FCC "shall, within 1 year of enactment of the [video
programming accessibility] section, prescribe such regulations
as are necessary to ensure that all video programming is fully
accessible to individuals with disabilities through the provi-
sion of closed captioning service and video description" (em-
phases and bracketed language in original)). However, the
bill was amended in committee to provide a discretionary
grant of authority rather than mandate that the FCC provide
video description. The new language provided that, "[f]ollow-
ing the completion of such inquiry, the Commission may
adopt regulation [sic] it deems necessary to promote the
accessibility of video programming to persons with visual
impairments." Amendment No. 8 to H.R. 3636 (Moorhead)
(Mar. 16, 1994), reprinted in Joint Appendix ("J.A.") 237.
This new version of the bill passed the House in 1995. H.R.
1555, s 204(f), 104th Cong. (1st Sess. 1995), reprinted in J.A.
254-59.

The corresponding Senate bill, however, only directed the
FCC to report to Congress about video description: It nei-
ther mandated video description nor provided the FCC with
discretionary authority to adopt such rules. S. 652, s 305,
104th Cong. (1st Sess. 1995), reprinted in J.A. 251-53. The
conference committee adopted the Senate version, abandon-
ing the House language providing the FCC with discretionary
authority. Congress passed this version of the bill and the
President signed it into law.

After the enactment of s 713, the FCC issued the report
that the Act mandated. The report stated that "the best
course is ... to continue to collect information and monitor
the deployment of video description and the development of
standards for new video technologies that are likely to affect

the availability of video description." Video Accessibility
Report, 11 F.C.C.R. at 19,271. The FCC supplemented this
report with a second report, Annual Assessment of the Status
of Competition in the Market for the Delivery of Video
Programming, Report, 13 F.C.C.R. 1034 (1998). Then, in
1999, the FCC announced that it was seeking commentary on
proposed rules that would mandate video description. Notice
of Proposed Rulemaking, 14 F.C.C.R. 19,845. The Commis-
sion sought commentary, inter alia, about whether the FCC
possessed statutory authority to enact such rules. Id. at
19,857-59 pp 34-39.

After reviewing the comments, the FCC voted 3-2 to adopt
rules requiring certain video programmers to supplement
certain programming with video descriptions. See Report
and Order, 15 F.C.C.R. 15,230. The FCC concluded that it
possessed the statutory authority to adopt these rules pursu-
ant to s 1 of the Act. 47 U.S.C. s 151. Section 1 gives the
FCC authority to regulate "interstate and foreign commerce
in communication by wire and radio so as to make available,
so far as possible, to all the people of the United States.... a
rapid, efficient, Nation-wide, and world-wide wire and radio
communication service...." 47 U.S.C. s 151. The FCC
majority also rejected the argument that s 713, 47 U.S.C.
s 613, precluded the agency from mandating video descrip-
tion merely because the provision only authorized the FCC to
conduct an inquiry. Report and Order, 15 F.C.C.R. at 15,252-
54 pp 57-61. Finally, the FCC found that the record demon-
strated "the importance of video description to persons with
visual disabilities." Id. at 15,232 p 4. The FCC primarily
based this conclusion on the American Council for the Blind's
submission, which contained more than 250 e-mails and let-
ters of support for the rules. Id.

The FCC's video description rules require commercial tele-
vision broadcasters affiliated with the top four commercial
networks (ABC, CBS, Fox, and NBC) to provide fifty hours
of video description per quarter during either prime time or
children's programming. 47 C.F.R. s 79.3(b)(1). The rules
also require multichannel video programming distributors
that serve 50,000 or more subscribers to provide fifty hours of

video description per quarter during prime time or children's
programming on each channel that carries one of the top five
nonbroadcast networks. Id. s 79.3(b)(3).

Commissioners Powell and Furchtgott-Roth dissented from
the visual description order, because they did not believe that
the Communications Act authorized the FCC to adopt video
description rules. Id. at 15,268-69 (Furchtgott-Roth, dissent-
ing); 15,272-76 (Powell, dissenting).

Various parties sought reconsideration of the FCC's Order,
primarily on the ground that the rules exceeded the FCC's
legal authority. Petition for Reconsideration of the MPAA,
MM Docket No. 99-339, Oct. 11, 2000, reprinted in J.A. 330-
38; Petition for Partial Reconsideration and Clarification
Submitted by the National Association of Broadcasters, MM
Docket No. 99-339, Oct. 11, 2000, reprinted in J.A. 339-54;
Petition for Reconsideration of the National Cable Television
Association, MM Docket No. 99-339, Oct. 11, 2000, reprinted
in J.A. 355-74. The FCC denied reconsideration, although it
did refine certain implementation issues related to the new
rules. Implementation of Video Description of Video Pro-
gramming, Memorandum Opinion and Order on Reconsid-
eration, 16 F.C.C.R. 1251 (2001), erratum issued, 66 Fed.
Reg. 16,618 (Mar. 27, 2001). MPAA and NFB then filed
petitions for review.

II. Analysis

A. Standard of Review

In deciding whether to defer to the FCC's construction of
the Act, we adhere to the tests enunciated by the Supreme
Court in Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) and United States v. Mead
Corp., 533 U.S. 218 (2001). In Chevron, the Court held that,
"[i]f the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress." 467
US. 842-43. This is so-called "Chevron Step One" review. If
Congress "has not directly addressed the precise question" at

issue, and the agency has acted pursuant to an express or
implicit delegation of authority, the agency's interpretation of
the statute is entitled to deference so long as it is "reason-
able" and not otherwise "arbitrary, capricious, or manifestly
contrary to the statute." Id. at 843-44. This is so-called
"Chevron Step Two" review. In either situation, the agency's
interpretation of the statute is not entitled to deference
absent a delegation of authority from Congress to regulate in
the areas at issue. See Ry. Labor Executives Ass'n v. Nat'l
Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc)
(Chevron "deference is warranted only when Congress has
left a gap for the agency to fill pursuant to an express or
implied 'delegation of authority to the agency."') (quoting
Chevron, 467 U.S. at 843-44).

Mead reinforces Chevron's command that deference to an
agency's interpretation of a statute is due only when the
agency acts pursuant to "delegated authority." 533 U.S. at
226-27. The Court in Mead also makes it clear that, even if
an agency has acted within its delegated authority, no Chev-
ron deference is due unless the agency's action has the "force
of law." Id. at 227.

In this case, the principal question is whether Congress
"delegated authority" to the FCC to promulgate visual de-
scription regulations. Absent such authority, we need not
decide whether the regulations are otherwise "reasonable."
An agency may not promulgate even reasonable regulations
that claim a force of law without delegated authority from
Congress.

B. The FCC Lacks Statutory Authority to Adopt the
Video Description Rules

MPAA argues that s 713 precludes the adoption of rules
mandating video description and that s 1 does not otherwise
authorize the FCC to adopt video description rules. We
largely agree, although we rest principally on the latter point.

1. Section 713

There is no doubt that s 713, 47 U.S.C. s 613, by its terms,
does not provide the FCC with the authority to enact video

description rules, and the FCC does not suggest that it does.
The harder question is whether the provision effectively bars
the FCC from mandating video description.

Statutory provisions in pari materia normally are con-
strued together to discern their meaning. Erlenbaugh v.
United States, 409 U.S. 239, 244 (1972) (noting that the rule
that statutes in pari materia should be construed together
"is ... a logical extension of the principle that individual
sections of a single statute should be construed together");
Holyoke Water Power Co. v. FERC, 799 F.2d 755, 766 (D.C.
Cir. 1986) ("The three sections are in pari materia and must
be read together."); FAIC Sec., Inc. v. United States, 768
F.2d 352, 363 (D.C. Cir. 1985) ("[T]hese two statutes are in
pari materia and must be construed together."). Here, when
subsections (a), (b), and (f) of s 713 - all addressed to video
programming accessibility - are construed together, a strong
argument can be made that Congress meant not to authorize
the Commission to mandate video description. The dissent-
ing opinion of FCC Chairman Powell powerfully demon-
strates this point. See 15 F.C.C.R. at 15,274-76 (Powell,
dissenting).

Subsections (a) and (f) merely call for the FCC to under-
take studies on closed captioning and video description, re-
spectively. Subsection (f), which deals with video description,
provides:

Within 6 months after the date of enactment of the
Telecommunications Act of 1996 [enacted Feb. 8, 1996],
the Commission shall commence an inquiry to examine
the use of video descriptions on video programming in
order to ensure the accessibility of video programming to
persons with visual impairments, and report to Congress
on its findings. The Commission's report shall assess
appropriate methods and schedules for phasing video
descriptions into the marketplace, technical and quality
standards for video descriptions, a definition of program-
ming for which video descriptions would apply, and other
technical and legal issues that the Commission deems
appropriate.

47 U.S.C. s 613(f). In contrast, subsection (b) affirmatively
mandates that

the Commission shall prescribe such regulations as are
necessary to implement this section. Such regulations
shall ensure that - (1) video programming first published
or exhibited after the effective date of such regulations is
fully accessible through the provision of closed captions
...; and (2) video programming providers or owners
maximize the accessibility of video programming first
published or exhibited prior to the effective date of such
regulations through the provision of closed captions....

47 U.S.C. s 613(b). The difference in the language employed
in these sections makes it clear that subsection (f) is not
intended to provide a mandate for video description require-
ments. Subsection (f) neither parallels the closed captioning
mandate contained in subsection (b) nor suggests that Con-
gress provided the FCC with discretionary authority to adopt
video description rules.

We need not decide whether s 713 positively forecloses
agency rules mandating video description. Rather, we find
that s 713 does not authorize the FCC to adopt such rules.
We also find that, when coupled with the absence of authority
under s 1 (discussed below), s 713 clearly supports the con-
clusion that the FCC is barred from mandating video descrip-
tion. We now turn to the question whether s 1, or any other
provision in the Act, authorizes the Commission to mandate
video description.

2. Section 1 of the Communications Act of 1934

The FCC's Report and Order argues that the FCC's au-
thority to mandate video description is derived from the
combination of s 1 of the Communications Act, 47 U.S.C.
s 151, s 2(a) of the Act, 47 U.S.C. s 152(a) (stating that
"[t]he provisions of this Act shall apply to all interstate and
foreign communication by wire or radio ... and to all persons
engaged within the United States in such communication"),
s 4(i) of the Act, 47 U.S.C. s 154(i) (stating that "[t]he
Commission may perform any and all acts, make such rules
and regulations, and issue such orders, not inconsistent with

this Act, as may be necessary in the execution of its func-
tions"), and s 303(r) of the Act, 47 U.S.C. s 303(r) (stating
that "the Commission from time to time, as public conve-
nience, interest, or necessity requires shall ... [m]ake such
rules and regulations and prescribe such restrictions and
conditions, not inconsistent with law, as may be necessary to
carry out the provisions of this Act"). At oral argument,
counsel for the FCC essentially conceded that if the agency
cannot find its authority in s 1 then the video description
regulations must be vacated by the court. We agree.

The FCC's majority opinion argues that s 1 authorizes the
agency to mandate video description, because

Congress ... authorized the Commission to make avail-
able to all Americans a radio and wire communication
service, and to promote safety and life through such
service, and to make such regulations to carry out that
mandate, that are consistent with the public interest and
not inconsistent with other provisions of the Act or other
law.

15 F.C.C.R. 15,252. This is a very frail argument, in no small
part because it completely ignores the fact that video descrip-
tion regulations significantly implicate program content.

There is no doubt that the video description rules regulate
programming content. Video description is not a regulation
of television transmission that only incidentally and minimally
affects program content; it is a direct and significant regula-
tion of program content. The rules require programmers to
create a second script. As Chairman Powell noted in his
dissent, "video description is a creative work. It requires a
producer to evaluate a program, write a script, select actors,
decide what to describe, decide how to describe it and choose
what style or what pace. In contrast, closed captioning is a
straight translation of dialogue into text." Report and Order,
15 F.C.C.R. at 15,278 (Powell, dissenting). Ultimately, video
descriptions require a writer to amend a script to fill in audio
pauses that were not originally intended to be filled. Not
only will producers and script writers be required to decide
on what to describe, how to characterize it, and the style and

pace of video descriptions, but script writers will have to
describe subtleties in movements and mood that may not
translate easily. And many movements in a scene admit of
several interpretations, or their meaning is purposely left
vague to enhance the program content. In short, it is clear
that the implementation of video descriptions invariably
would entail subjective and artistic judgments that concern
and affect program content. The FCC has even acknowl-
edged that the creation of this second script "raises creativity
... issues." Video Accessibility Report, 11 F.C.C.R. at
19,221. These effects are not insignificant, and there can be
no doubt that the result is a direct regulation of program
content.

The FCC's arguments to the contrary are entirely unper-
suasive. See Report and Order, 15 F.C.C.R. at 15,254-56.
First, the Commission is wrong in its claim that video de-
scriptions are the same as closed captioning. One is a simple
transcript, a precise repetition of the spoken words. The
other requires an interpretation of visual scenes. They are
not the same. Second, the FCC's statement that video
descriptions are "not related to content" is specious. Id. at
15,255. FCC's counsel would not even endorse that position
at oral argument. Requiring someone to change or add to a
program script is related to the program's content. Finally,
the FCC claims that the video description regulations are
"content-neutral." Id. at 15,254-55. We need not decide that
issue, because it is irrelevant. The question that we face is
whether s 1 provides the FCC with authority to promulgate
regulations that significantly regulate programming content.
The content-neutrality of the rules is irrelevant to the inquiry
of the FCC's delegated authority.

During oral argument, counsel for the FCC acknowledged
that it was not self-evident from the statute that the FCC is
authorized to regulate program content pursuant to s 1.
Counsel's hesitation was well placed, because s 1 merely
authorizes the agency to ensure that all people of the United
States, without discrimination, have access to wire and radio
communication transmissions. Section 1 does not otherwise
authorize the FCC to regulate program content, as the video

description regulations clearly do. Both the terms of s 1 and
the case law amplifying it focus on the FCC's power to
promote the accessibility and universality of transmission, not
to regulate program content. Neither the FCC's Order nor
its brief to this court cite any authority to suggest otherwise.
To regulate in the area of programming, the FCC must find
its authority in provisions other than s 1. See, e.g., 47 U.S.C.
s 531 (governing designation of cable channels for public,
educational, or governmental use).

The Communications Act was implemented for the purpose
of consolidating federal authority over communications in a
single agency to assure "an adequate communication system
for this country." S. Rep. No. 73-830, at 3 (1934); see also
H.R. Rep. No. 73-1850, at 3-4 (1934). Given the limited
distribution of communications facilities in 1934, s 1's man-
date to serve "all the people of the United States" is a
reference to the geographic availability of service. See Mi-
chael J. Aguilar, Note, Micro Radio: A Small Step in the
Return to Localism, Diversity, and Competitiveness in
Broadcasting, 65 Brook. L. Rev. 1133, 1136-37 (1999) (explain-
ing how limited facilities influenced passage of the Communi-
cations Act of 1934); see also Nat'l Broad. Co. v. United
States, 319 U.S. 190, 216 (1943) ("The facilities of radio are
limited and therefore precious; they cannot be left to waste-
ful use without detriment to the public interest."). Under
s 1, Congress delegated authority to the FCC to expand
radio and wire transmissions, so that they would be available
to all U.S. citizens. See, e.g., United States v. Midwest Video
Corp., 406 U.S. 649, 667-68 (1972) ("[T]he critical question ...
is whether the Commission has reasonably determined that
its origination rule will 'further the achievement of long-
established regulatory goals in the field of television broad-
casting by increasing the number of outlets for community
self-expression and augmenting the public's choice of pro-
grams and types of services...."') (citation omitted); United
States v. Southwestern Cable Co., 392 U.S. 157, 172 (1968)
("[I]t was precisely because Congress wished to maintain,
through appropriate administrative control, a grip on the
dynamic aspects of radio transmission ... that it conferred

upon the Commission a unified jurisdiction and broad authori-
ty.") (citations, footnotes, and internal quotations omitted).
Section 1 does not address the content of the programs with
respect to which accessibility is to be ensured. In other
words, the FCC's authority under s 1 is broad, but not
without limits.

The cases cited to this court by the FCC do not hold
otherwise. These cases do not relate to program content.
See, e.g., United Video v. FCC, 890 F.2d 1173 (D.C. Cir. 1989)
(FCC's "syndicated exclusivity" rules found to be content-
neutral, not otherwise arbitrary and capricious, and not viola-
tive of the Copyright Act of 1976 or the Cable Act of 1984;
s 1 of the Communications Act not implicated); Rural Tel.
Coalition v. FCC, 838 F.2d 1307, 1315 (D.C. Cir. 1988) ("As
the Universal Service Fund was proposed in order to further
the objective of making communication service available to all
Americans at reasonable charges, the proposal was within the
Commission's statutory authority. We have recognized previ-
ously that universal service is an important FCC objective.");
North Am. Telecomm. Ass'n v. FCC, 772 F.2d 1282 (7th Cir.
1985) (action for review of FCC orders relating to conditions
upon which major telecommunications corporation's regional
operating companies could enter telephone equipment busi-
ness); GTE Serv. Corp. v. FCC, 474 F.2d 724, 730 (2d Cir.
1973) (regulations prescribing conditions under which com-
mon carriers may sell data processing services, designed to
insure that "carriers provide efficient and economic service to
the public").

One of the reasons why s 1 has not been construed to allow
the FCC to regulate programming content is because such
regulations invariably raise First Amendment issues. E.g.,
Turner Broad. Sys. v. FCC, 512 U.S. 622, 651 (1994) ("[O]ur
cases have recognized that Government regulation over the
content of program broadcasting must be narrow, and that
broadcast licensees must retain abundant discretion over
programming choices."); Columbia Broad. Sys., Inc. v. Dem-
ocratic Nat'l Comm., 412 U.S. 94, 126 (1973) (describing "the
risk of an enlargement of Government control over the con-
tent of broadcast discussion of public issues" as a "problem of

critical importance to broadcast regulation and the First
Amendment"). Indeed, the parties in this case have argued
over whether the video description rules infringe free speech
precepts. See Br. of Petitioner at 39-43; Br. of Respondent
at 35-41. To avoid potential First Amendment issues, the
very general provisions of s 1 have not been construed to go
so far as to authorize the FCC to regulate program content.
Rather, Congress has been scrupulously clear when it intends
to delegate authority to the FCC to address areas significant-
ly implicating program content. E.g., 18 U.S.C. s 1464
("Whoever utters any obscene, indecent, or profane language
by means of radio communication shall be fined under this
title or imprisoned not more than two years, or both."); 47
U.S.C. s 315 (governing provision of broadcast time to candi-
dates for public office); 47 U.S.C. s 399 ("No noncommercial
educational broadcasting station may support or oppose any
candidate for political office."). And Congress has imposed
limitations on regulations implicating program content. See
47 U.S.C. s 544(f) (providing that "[a]ny Federal agency ...
may not impose requirements regarding the provision or
content of cable services, except as expressly provided in this
title"); see also 47 U.S.C. s 326 (providing that the FCC does
not possess the power of censorship, and "no regulation or
condition shall be promulgated or fixed by the Commission
which shall interfere with the right of free speech by means
of radio communication"). It is therefore clear that s 1 is not
the provision in the Act from which the FCC can find
delegated authority to regulate the content of broadcast
programming. The FCC must look beyond s 1 to find
authority for regulations that significantly implicate program
content.

The FCC's position seems to be that the adoption of rules
mandating video description is permissible because Congress
did not expressly foreclose the possibility. This is an entirely
untenable position. See Ry. Labor Executives, 29 F.3d at 671
("Were courts to presume a delegation of power absent an
express withholding of such power, agencies would enjoy
virtually limitless hegemony, a result plainly out of keeping
with Chevron and quite likely with the Constitution as well.")

(emphasis in original). See also Halverson v. Slater, 129 F.3d
180, 187 (D.C. Cir. 1997) (quoting Ry. Labor Executives, 29
F.3d at 671); Oil, Chem. & Atomic Workers Int'l Union v.
NLRB, 46 F.3d 82, 90 (D.C. Cir. 1995) (same); see also Ethyl
Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995) ("We refuse
... to presume a delegation of power merely because Con-
gress has not expressly withheld such power."); Natural Res.
Def. Council v. Reilly, 983 F.2d 259, 266 (D.C. Cir. 1993)
("'[I]t is only legislative intent to delegate such authority that
entitles an agency to advance its own statutory construction
for review under the deferential second prong of Chevron."')
(quoting Kansas City v. Dep't of Housing & Urban Dev., 923
F.2d 188, 191-92 (D.C. Cir. 1991)) (alteration in original).

Congress enacted the closed captioning and video descrip-
tion provisions of s 713 together. After originally entertain-
ing the possibility of providing the FCC with authority to
adopt video description rules, Congress declined to do so.
This silence surely cannot be read as ambiguity resulting in
delegated authority to the FCC to promulgate the disputed
regulations.

3. Other Statutory Provisions Cited by the Commission

The Commission's brief to this court advances the some-
what opaque argument that the video description rules are
"obviously a 'valid communications policy goal' and in the
public interest." Respondent's Br. at 26. The Commission
thus claims that the regulations are justified under s 303(r),
which permits the FCC to regulate in the public interest "as
may be necessary to carry out the provisions of [the] Act."
47 U.S.C. s 303(r). But this statutory provision simply can-
not carry the weight of the Commission's argument. The
FCC cannot act in the "public interest" if the agency does not
otherwise have the authority to promulgate the regulations at
issue. An action in the public interest is not necessarily
taken to "carry out the provisions of the Act," nor is it
necessarily authorized by the Act. The FCC must act pursu-
ant to delegated authority before any "public interest" inquiry
is made under s 303(r). This of course means, as FCC
counsel conceded at oral argument, that the video description

rules are arguably justified only if the FCC had authority to
act pursuant to s 1 of the Act.

The FCC's suggestion that s 4(i), without more, gives the
agency authority to promulgate the disputed rules cannot
withstand scrutiny. Chairman Powell's discussion of this
provision says it all:

It is important to emphasize that section 4(i) is not a
stand-alone basis of authority and cannot be read in
isolation. It is more akin to a "necessary and proper"
clause. Section 4(i)'s authority must be "reasonably
ancillary" to other express provisions. And, by its ex-
press terms, our exercise of that authority cannot be
"inconsistent" with other provisions of the Act. The
reason for these limitations is plain: Were an agency
afforded carte blanche under such a broad provision,
irrespective of subsequent congressional acts that did not
squarely prohibit action, it would be able to expand
greatly its regulatory reach.

15 F.C.C.R. at 15,276 (Powell, dissenting). We agree.

Finally, there is really nothing to be said about s 2(a), 47
U.S.C. s 152(a), which was also cited by the FCC in support
of the video description regulations. This provision does not,
on its own, support the regulations. Neither the FCC's
Order nor counsel's argument on behalf of the FCC suggest-
ed otherwise.

In short, the FCC can point to no statutory provision that
gives the agency authority to mandate visual description
rules. The rules may be highly salutary. But that is not the
issue before this court and we offer no judgment on the
question. What is determinative here is the FCC acted
without delegated authority from Congress. Section 1 does
not furnish the authority sought, because the regulations
significantly implicate program content and the FCC can cite
no authority in which a court has upheld agency action under
s 1 where program content was at the core of the regulations
at issue. And it does not matter that the disputed rules here
are arguably "content-neutral." The point is that the rules

are about program content and therefore can find no authori-
zation in s 1.

Finally, if there were any serious question about proper
result in this case, all doubt is resolved by reference to s 713.
In s 713(f), Congress authorized and ordered the Commission
to produce a report - nothing more, nothing less. The
statute does not, as with closed captioning, instruct (or even
permit) the FCC to promulgate regulations mandating video
description. Once the Commission completed the task of
preparing the report on video description, its delegated au-
thority on the subject ended.

III. Conclusion

[G]iven the minimal extent to which the FCC and Con-
gress actually influence the programming offered by
broadcast stations, it would be difficult to conclude that
Congress enacted [video description] in an effort to exer-
cise content control.... In a regime where Congress or
the FCC exercised more intrusive control over the con-
tent of broadcast programming, an argument similar to
[the argument raised by the Commission] might carry
greater weight. But in the present regulatory system,
those concerns are without foundation.

Turner Broad. Sys., 512 U.S. at 652. Accordingly, for the
reasons given in this opinion, we hereby grant the petition for
review filed by MPAA, and reverse and vacate the Commis-
sion's Order insofar as it requires broadcasters to implement
video description.

So ordered.

Karen LeCraft Henderson, Circuit Judge, concurring:

I believe that section 713 of the Communications Act, 47
U.S.C. s 613, plainly does not authorize the FCC to promul-
gate video description rules and, for that reason, I fully
concur in that portion of the majority opinion that so holds. I
do not agree, however, that the video description rules consti-
tute "a direct and significant regulation of program content."
Maj. Op. at 11. I fail to see how video description need
consist of anything more than spoken stage directions. If so,
video description, at least in my view, does not regulate
program content. While I agree that section 1 of the Com-
munications Act, 47 U.S.C. s 151, does not provide the FCC
with authority to promulgate the video description rules, it is
not because the rules regulate program content; in my view,
neither section 1, nor any of the other provisions of the Act
the FCC relies on, independently delegates authority that
section 713 plainly withholds.