Joe Clark: Accessibility | Design | Writing

Intervention in Broadcasting Public Notice CRTC 2006-24

This intervention in Broadcasting Public Notice CRTC 2006-24, by Joe Clark of Toronto, is dated 2006.04.05. The true text of the intervention is found at the following address only:

The Commission has a habit of altering interventions, as by removing notations of URLs and changing the file type of documents. These modifications are surely a contravention of the moral right of the author under the Copyright Act. Nonetheless, only the canonical URL listed above may be considered definitive.


I oppose the change in ownership of the applicant without additional social-benefits spending. Further, the applicant’s existing social-benefits commitments must be met. Either or both of these sources of social-benefits funding must support the Open & Closed Project.

Concealment of documents

The CRTC has a long history of ignoring allegations of nepotism, conflict of interest, and collusion with its regulated broadcasters arising from the fact that Commissioners frequently come from the broadcasting sector, or end up there later, or even, as in the current case, end up as Minister of Canadian Heritage. The Commission has brought itself to a new low by permitting the applicant, among several other applicants for different processes underway at the same time, to conceal relevant documents behind the closed doors of the applicant’s own offices.

Yes, of course there were several such offices across the country, but the fact remains that any member of the public, including competitors, who wished to learn the actual details of the application had no choice whatsoever but to schlep across town, if they happened to be lucky enough to live in the right town, or schlep to another town just to read documents that could and should have been posted on the Web.

I petitioned the Chair on 2006.03.23 to force the applicants in this and other proceedings to publish documents online, to require all applicants to do so in the future, and to extend the current deadline. Again fully true to form, the Chair simply ignored the petition.

The current process could not be considered one of public consultation. The closest historical model is that of a show trial: Documents are kept secret in certain locations, and a hearing is held in another location. The only parties who could realistically participate in this process are the Commission, the applicant, and the applicant’s multi-million-dollar corporate competitors.

Despite all the foregoing, I have no doubt that the Commission will find a way to surpass this new low, most likely in the actual decision on the application in question.

No sale of shares without social benefits

From what I’ve been able to understand as a member of the public deliberately and systematically frozen out of this process of “consultation,” BCE has somehow managed not to spend $40 million to $50 million in social-benefits monies associated with its lucrative takeover of CTV and related networks.

This itself borders on scandal. Was someone waiting for a rainy day? The obligation is to spend the money, not to place it in a bank account and skim off the interest. BCE, by its own admission, has not fulfilled its condition of purchase, yet it now wishes to sell off part of its company to third parties. It’s absurd, and it shows rather a lot of contempt for a process that was already too lenient and almost entirely tilted in applicants’ favour.

The applicant should be barred from selling shares to the proposed new investors unless and until all the unspent social-benefits dollars have been disbursed. But of course here we come up against the CRTC’s laissez-faire policies, in which any beneficiaries at all are deemed to be suitable for such funding (even, as in the case of CHUM, if an indirect beneficiary is a former executive). I have a proposal for a way to allocate up to a mere 14% of the unspent monies, as will be detailed below.

No acquisition of shares without social benefits

Next, BCE advances the proposition that selling shares of its company must be considered a mere “transfer” of assets. It sounds benign enough, doesn’t it? But in fact it’s complete nonsense.

If I enter a store, tender some money, and walk out with goods, the store has not “transferred” those goods to me. I have bought them. What has taken place is a sale.

If I call my broker and tender money for shares in a publicly-traded company, those shares have not been “transferred.” I have bought them. What has taken place is a sale.

If three companies apply for the right to tender money for shares in the applicant’s company, they are not applying for the right to “transfer” such shares. If approved, they will have bought the shares. What has taken place is a sale.

As such, the proposed sale of the applicant’s shares obviously requires a social-benefits expenditure on top of what BCE already owes the Canadian public through its previous transaction.

Support the Open & Closed Project

Well, here we go again. We’ve got another wealthy and powerful broadcasting incumbent making an application before a regulator partially made up of former or future colleagues from the same industry. And here we have an intervenor asking for a pittance of money, a drop in the bucket, for a project to improve accessibility for people with disabilities.

Let me just copy and paste from a previous intervention:

Open & Closed Project

I am a journalist, author, and accessibility consultant whose interest in accessibility for people with disabilities dates back nearly 25 years. I wrote the book Building Accessible Websites (New Riders, 2003). The Atlantic Monthly dubbed me “the king of closed captions.” I do paid consulting with the private sector and have worked on government-funded academic projects. I have a diploma in engineering and a B.A. in linguistics, and [I] volunteered in the field of technical standards development for nearly five years, chiefly with the World Wide Web Consortium’s Web Content Accessibility Guidelines Working Group.

With that background... I set out to create a new nonprofit research and standardization body, the Open & Closed Project. Its central aim is to solve a pressing problem in media access: Lack of standards. In broad terms, there are no standards for captioning, audio description, subtitling, and dubbing. As a result, captioners (for example) can do anything they want, and indeed, captioning is carried out according to personal preference rather than research and evidence. The result is a dozen or more incompatible methods of carrying out captioning, none of them with any credible research basis, all of them defended by practitioners as the best method there is.

As a result, captioning viewers have to relearn how to watch each and every program (and each and every commercial within those programs). There are no minimum quality levels.

Matters are worse with two much more longstanding accessibility methods, subtitling and dubbing, which are even further hindered by tradition and opinion. (There is at least a substantive literature on subtitling and dubbing, much of which I have read, but the focus is on translation theory and anecdote rather than quality and performance.) And at the other end of the scale, the relatively new field of audio description threatens to recapitulate the history of captioning, with different practitioners adamantly defending their own distinct ways of doing things.

The solution, then, is to develop global standards for the four fields of accessible media based on research and evidence, and that is the chief goal of the Open & Closed Project. Where there isn’t any research or evidence on a certain topic, we’ll actually do it. And unlike other standards bodies, which have hefty membership fees or are dominated by incumbents, everyone may contribute to the development of the Open & Closed Project’s recommended practices.

To prove the standards actually work, we’ll spend a year beta-testing them in the real world. The resulting published standards will, moreover, be licensable for free, though books and physical media will of course carry a cost. Afterward, training programs will be established; it will then finally be possible to pursue captioning, description, subtitling, or dubbing as a field of study. Graduates can be certified as proficient in Open & Closed Project practices. Producers, broadcasters, and, yes, regulators can all require their contractors to be Open & Closed–certified.

At the end of the process, we won’t have to contend with n varieties of captioning, description, subtitling, and dubbing from n different providers. Advocates have argued for decades that accessibility should be an integral part of the production process instead of tacking it on at the very end. With standardized practices, we’ll come as close as we ever have to reaching that goal.

Other activities of the Open & Closed Project include developing a free universal file-exchange format that actually works (.xex™, the Accessibility Exchange Format™), and creating customized tested screenfonts for captioning and subtitling.

Current status and documentation

Open & Closed Project is unincorporated and awaits first-year funding. The Project has been publicly discussed (as, for example, at the Canadian Satellite Users Association 2003 convention and in the National Association of Broadcasters’ 2004 proceedings). The Project has attracted wide support from four countries.

Documentation is available in the following tagged accessible PDFs, which are included in this intervention by reference:

  1. Open & Closed Project brochure
  2. .xex brochure
  3. How Standardization Solves Problems in Captioning and Beyond,” NAB 2004 Broadcast Engineering Conference Proceedings

The applicant is aware of the necessity of improved accessibility for people with disabilities. I know that because – and here is a declaration of conflict of interest that pales in comparison to the Commission’s – I have completed trivial amounts of paid work for Bell ExpressVu on accessibility, e.g., of visual menu systems. (The last payment I got from ExpressVu was 50 bucks to cover taxi rides to and from their remote location for a business meeting.) ExpressVu already knows it’s an issue.

So does BCE in general. After all, the jewel in its crown, CTV, testified that it makes a profit on captioning. [CTV admitted (CRTC 2001 at ¶1477) that captioning had “a positive margin.”] CTV will also be aware that its captioning is not adequate, since it recently settled a human-rights complaint. Further, CTV achieved has achieved a new low – quite something in this field – through its use of unprecedented centred scrollup captioning for every show it possibly can, including fictional narrative programming. Those programs shouldn’t even be considered captioned, as they are impossible to follow.

All this is on top of the fact that captioning, audio description, subtitling, and dubbing are unstandardized and unregulated in this country. Broadcasters and producers pretty much don’t give a damn; they shop on price and they get what they pay for. The problem here is that broadcasters have obligations under the Broadcasting Act; the Canadian Human Rights Act (as evinced by captioning-related human-rights complaints settled with CBC, Global, and CTV); and the Charter. You don’t get to go cheap all the time.

At a certain point, the Canadian broadcasting industry, including the CRTC, has to grow up and accept that accessibility isn’t something you bolt on. It isn’t a bow you tie around the gift; it’s part of the gift itself. Even if broadcasting executives don’t care about captioning (to use an example), hate paying for it, can’t tell good captioning from bad, and cannot stand watching captioning for more then five minutes at a stretch, they need to act mature for a change and recognize that they are dealing with the legally, indeed constitutionally, protected rights of citizens. They have to get serious and support an independent, research-based project to develop and test standards for accessibility.

At the very least, broadcasters and the Commission should act in enlightened self-interest. If you keep cheaping out, eventually somebody is going to file a human-rights complaint alleging that people with disabilities are treated disadvantageously. You’ve got beautiful sound and picture (5.1 audio and HDTV, no less), yet your captioning and audio description might be, actually often are, total crap. Merely at the level of avoiding risk through litigation and complaints, it makes sense to support standardization. Moreover, standardized practice is the only way for broadcasters to assure themselves that their suppliers aren’t fleecing them. (You aren’t monitoring your suppliers’ output 24/7, are you?)

And if the broadcasters and the CRTC are keen to point out that the CAB published its own captioning manual, well, let’s keep in mind that said manual:

  1. was developed by a closed and secret process – in fact, a textbook example of such
  2. ignored available evidence even while padding out its bibliography (most of whose research papers I provided)
  3. has over 100 published deficiencies
  4. amounts to incumbent broadcasters’ simply jotting down their current practices
  5. applies solely to captioning, and solely to English-language captioning at that
  6. is, in any event, roundly ignored and misapplied (no two broadcasters do the same thing, but both may claim to comply)

Foxes should not guard henhouses, and broadcasters should not write their own standards. (Through successfully settled human-rights complaints, we know now that broadcasters are incapable of discharging their obligations in the first place.) Nor should regulators act as though such “standards” as the CAB’s are worth the inaccessible, untagged PDF they’re distributed in.

The Open & Closed Project needs $7 million to get its job done. I petition the Commission to require BCE and/or its proposed new investors to pony up this trivial sum as a condition of approval of its proposed investment transaction. Really, people, it isn’t a lot of money, you can afford it, and you need it.


The CRTC should be ashamed of itself, but of course will not be, for abetting the applicant’s efforts to conceal application documents that are of demonstrable public interest. The current process is something of a travesty.

The application to sell, not “transfer,” shares of the applicant should be approved if and only if BCE disburses its unspent social-benefits money and if the proposed investors also provide new social-benefits investment and if my project gets fully funded. If any of those conditions aren’t met, the application must be denied.


  1. CRTC, 2001. “Transcript of proceedings for the Canadian Radio-television and Telecommunications Commission. Subject: Broadcasting applications; TV renewals – CTV/Global.”

Posted: 2006.04.05

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