While an admirable attempt, the legislation has, in our mind, many flaws. The first is the obvious constitutional question. While broadcaster have traditionally been subject to some regulation due to the “scarcity” and “pervasiveness” of the medium, the Internet has been classified by the United States Supreme Court as the perhaps the freest medium of expression in existence – deserving of even more First Amendment protection than even newspapers. It is hard to conceive of a regulation that mandates
speech in this way surviving constitutional scrutiny. Another problem raised by several parties is technical in nature. Again, unlike, broadcast television, there is no single technology by which Internet video is delivered. If a broadcaster finds it is even possible to automatically convert captions from a television program to the Internet stream (not always a guaranteed proposition because many programs are condensed on the Internet, with commercials removed), viewers use different programming formats to receive the stream. Captions prepared for delivery via Internet Explorer may not be readable in Linux. Work to solve this problem and create a single format for captioning is ongoing but still some time away. Finally, there is the further concern that captions would be unreadable on smaller computer screens, let alone iPods, iPhones or other mobile phones to which the law would apply.
Rep. Markey held hearings in the House Subcommittee on Telecommunications and the Internet, of which he is Chair, earlier this month. No bill has been introduced, nor have further hearings been scheduled but we’ll keep you posted.