After taking a firestorm of criticism for relaxing the agency's closed captioning rules, the Federal Communications Commission has finally gotten some support for its move. The backing comes from National Religious Broadcasters (NRB), a Virginia based trade association.

The group has filed a statement urging the FCC not to reverse a recent ruling that makes it easier for non-profit broadcasters to receive waivers from the agency's closed-captioning requirements. Seven leading disability rights groups, including the National Association for the Deaf, submitted a request on October 12th asking the FCC to stay the decision pending a review for which they applied on the same day.

The NRB filing, submitted on October 30th, lauds closed captioning as consistent with the group's mission "to reach the broadest possible audience with the good news of eternal life through faith in Jesus Christ, including the hearing-impaired community."

"Nevertheless," the statement continues, "we also recognize the financial realities of the non-profit communications marketplace."

Background

In mid-September the Commission gave closed captioning exemptions to two religious broadcasters: "Anglers for Christ Ministries, Inc," and "New Beginnings Ministries." Both groups claimed that providing on-screen video text for their programs, which allows people with hearing disabilities to follow television programs, represented an excessive financial hardship.

The FCC granted the waivers, but went further, noting that in future cases if a non-profit demonstrates that it receives no compensation from video program distributors and that "in the absence of an exemption, may terminate or substantially curtail its programming," the FCC will expedite a closed captioning exemption request.

Since then the Commission has faced an uproar of protest from disability rights organizations, who argue that the Anglers decision created a whole new category of broadcaster exempt from the FCC's closed captioning rules. NRB is the first group to defend the ruling. It argues that:

• The FCC's decision is simply a "logical clarification of the 'undue burden' test."

  When the Commission gave those two religious groups exemptions, it added that in future cases if a non-profit demonstrates that it receives no compensation from video program distributors and that "in the absence of an exemption, may terminate or substantially curtail its programming," the FCC will expedite a closed captioning exemption request.

  NRB praises this ruling as an appropriate interpretation of the relevant law. The FCC's order, the group writes, "which emphasizes the potential negative impact on the amount of programming available from a particular broadcaster if that broadcaster would have to incur the expense of closed captioning, is an accurate reflection of the legislative history surrounding the issue of exemptions from closed captioning rules."

• The decision does not violate the First Amendment's "establishment of religion clause."

  NRB counters arguments made by disability groups that the FCC's action effectively exempts "religious programming from the captioning rules," an action barred by the First Amendment's prohibition on Congress making laws "respecting an establishment of religion."

  "[T]he F.C.C.," they write, "is simply providing a mechanism for avoiding devastating economic hardship to some programmers and broadcasters, based on neutral, objective criteria. The fact that the application of those criteria may have resulted in an incidental benefit to those religious groups which are unable to afford the costs of closed captioning does not make it constitutionally suspect."

The seven disability rights groups who filed an Application for Review of the decision pointed out that of 297 closed captioning exemptions recently granted by the FCC, 296 went to religious programmers. In addition, central to the disability groups' complaint was the agency's granting of many of these exemption petitions without publicly disclosing the petitions themselves.

Concerned parties, they argued, "had no opportunity to review of comment on any of the 238 petitions that were not put on public notice but were nevertheless granted by the Bureau."

The Application for Review also expressed concern that, in the case of Anglers, the group sought only a temporary exemption and got a permanent one instead.

"In addition to revealing the arbitrary nature of the Bureau’s decisions," the Application concluded, "this practice shows that the newly created vague categorical exemption is designed to ensure permanent exemptions only, and that the Bureau never contemplated temporary waivers that might have been more appropriate to the scenarios presented to it."

Yesterday (November 7th), the Commission placed a list of recent petitions for exemption from closed captioning rules on the home page of its Web site.