Joe Clark: Media access

Intervention in Application Nº 2004-0514-3

I support the acquisition of Craig Media by CHUM Limited, subject to the conditions below. If those conditions cannot be met, the transaction should be rejected.

Permanent location of this intervention

This intervention, in valid, accessible HTML complete with hyperlinks, is permanently located at:


CHUM’s application is deficient in significant material respects:

  1. It provides CHUM with a near-monopoly on music-video services in Canada.
  2. It errantly excludes digital services from consideration in assessing the minimum dollar value of social benefits.
  3. It improperly includes Craig’s unspent social-benefits allocation in its planned totals.
  4. One proposed recipient of social-benefits funding involves a conflict of interest or nepotism.
  5. And most importantly of all, the Open & Closed Project isn’t on the list of planned recipients, thereby failing to meet CRTC policy.

Open & Closed Project

As the Commission, CHUM, and Craig will all be aware, 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 have 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, some two years ago 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

General deficiency in CHUM’s application

Music-video monopoly

If approved as filed, CHUM would own all of or an interest in every music-video channel in Canada save for CMT and BPMTV – namely MuchMusic, MuchMoreMusic, MuchLoud, MuchVibe, MuchMoreRetro, MusiquePlus, MusiMax, MTV, and MTV2.

Such a concentration of power is clearly anticompetitive. If CHUM wins control of MTV and MTV2 – stations it had vigorously opposed in a previous complaint – then it will hold near-monopoly power over music broadcasting in Canada.

We are all quite aware that the CRTC is deeply committed to monopoly ownership. It parcels out licenses to monopolists, duopolists, and oligopolists under the guise of protecting the Canadian industry from the likes of HBO – and, at one point in the now-forgotten past, from the likes of MTV. But is this not ridiculous?

CHUM should be ordered to sell MTV and MTV2 as a condition of acquisition of Craig Media. Any such transaction would of course entail its own required ancillary spending.

Social benefits

CHUM’s application is alarmingly deficient in the area of social benefits. The Open & Closed Project is directly harmed by such deficiencies, but I will begin by addressing other issues.

Unwarranted exclusion of digital services

CHUM intends to acquire the licenses of Craig’s existing digital specialty channels (including the MTV and MTV2 licenses about which it had previously filed a complaint with the Commission), but refuses to include their value in the base from which the minimum 10% spending on unequivocal benefits is calculated.

Essentially, CHUM wants to have their Cribs and eat it, too. The CRTC’s own policies do not permit applicants to pick and choose which services may be included on the master list from which minimum social-benefits spending is derived. CHUM intends to spend money buying the digital specialty services; that dollar value must be added to the pot.

According to CHUM’s filings, the market value CHUM assesses for MTV is $18.5 million; for MTV2, $1.5 million; and for TV Land, $7.5 million. Ten percent of this total – $2.75 million – must accordingly be added to CHUM’s social-benefits spending.

Attempted discount via Craig’s existing commitments

CHUM improperly includes Craig Media’s unspent social-benefits commitments in calculations of its own proposed spending.

Let’s look at this clearly. According to CRTC policy (as we will see shortly), in certain license transactions, not less than 10% of the purchase price is to be allocated to unequivocal benefits. We’re talking about two transactions here – Craig Media’s old transaction regarding A-Channel and CHUM’s new one. The CRTC policy requires new spending. Each of the two transactions was subject to the 10% minimum – 10% of the combined total, in this case.

Of course CHUM must include undisbursed social benefits to which Craig had committed. But CHUM cannot use them to engineer a discount on its social-benefits spending. CHUM cannot be permitted something resembling a two-for-one deal in the current transaction by piggybacking Craig’s commitments onto its own plans.

CHUM cannot claim a credit for somebody else’s unspent money. CHUM must add new spending of its own that amounts to at least 10% of the purchase price of the current transaction.

Any way you look at it, CHUM attempts to use Enron-style sleight of hand in its accounting.

CHUM’s application lists $14.8 million in carryover benefits expenditures from Craig. It follows, then, that $1.48 million in new social-benefits spending must be added to CHUM’s application.

Conflict of interest or nepotism

At this stage, I am not prepared to argue that any planned recipient of social-benefits funding is unsuitable and should be removed. However, there is one obvious exception. Under the heading “Canadian Broadcast Heritage,” the MZTV Museum is listed as one recipient among many who stand to be allocated $150,000 over seven years.

However, even a CHUM Limited press release notes that Moses Znaimer, the former “Vice President, Corporate Development, CHUM Limited and President/Executive Producer of 17 of CHUM’s television stations... will continue with his notable personal projects, including the ideaCity Conference and the MZTV Museum of Television, both of which will continue to be sponsored by CHUM.”

It seems that CHUM is proposing to spend a portion of $150,000 on a project it “sponsors” that is led by a former executive. I rather doubt Mr. Znaimer needs the money, given that he has been well remunerated for his services. Mr. Znaimer is, moreover, the assumed recipient of a $2.1 million “charge in the second quarter” for “personnel changes” that was discussed in the press.

Because of the conflict of interest and nepotism involved in any payment by CHUM to a former executive on behalf of a project CHUM already “sponsor[s],” the MZTV Museum should be deleted from the list of proposed recipients of funding for Canadian broadcast heritage. No other changes appear necessary in that line-item.

Exclusion of the Open & Closed Project

I have known staff at CHUM Limited for approximately two years and have met regularly with Sarah Crawford, vice-president of corporate affairs; Liz Chartrand, manager of CHUM’s in-house captioning department; and other responsible employees. I have explained to Ms Crawford that she and her colleagues have quite won me over with their sincerity and their commitment to doing things properly. Though they do not actually attain that goal, CHUM certainly has its heart in the right place.

I have, moreover, pitched the Open & Closed Project to Ms Crawford on several occasions. In our last two meetings, Ms Crawford used the same terminology, telling me the Project would probably be funded as the result of “an acquisition.” But now, CHUM is doing the acquiring. If my project was likely to be funded from “an acquisition,” well, what exactly are we waiting for?

The Open & Closed Project manifestly meets the Commission’s policy objectives

The Project clearly and handily meets the standard of “unequivocal benefit” as articulated in the 1999 television policy:

22. The Commission hereby amends its benefits policy in respect of all transfers of ownership or control involving television broadcasting undertakings, including conventional, pay, pay-per-view and specialty television undertakings. It will generally expect applicants to make commitments to clear and unequivocal tangible benefits representing a financial contribution of 10% of the value of the transaction, as accepted by the Commission....

24. The Commission generally expects significant benefits to be offered to the community in question, and to the Canadian broadcasting system as a whole, when considering applications to transfer ownership or control of a television undertaking. Because the Commission does not solicit competing applications, the onus is on the applicant to demonstrate that the application filed is the best possible proposal under the circumstances and that the benefits proposed in the application are commensurate with the size and nature of the transaction.

The Project meets the criteria. It will offer significant, clear, and unequivocal benefits to various communities and the Canadian broadcasting system as a whole. These communities include:

All parties are aware of the project and do not dispute its benefits

Not only have I met CHUM on many occasions, I had three meetings with Craig Media staff to discuss the Project. Moreover, after the proposed sale was announced, I hand-delivered a letter to CHUM addressed to Sarah Crawford; it formally requested that the Project be included in CHUM’s benefits expenditures.

Commission staff, all the way up to CRTC Chair Charles Dalfen, are aware of the Project.

The Project represents good value for money

Although budgets and projections are confidential, it is anticipated that the Project’s five- to seven-year lifespan will involve a $5 million to $7 million budget. First-year estimates are in the $400,000 range. Given that the well-established Banff Centre is slated to receive a proposed $350,000, it seems that first-year funding, at a minimum, is in the same ballpark as CHUM’s planned recipients.

Existing standardization efforts are insufficient

CHUM, Craig, and the CRTC itself will surely argue that the Canadian Association of Broadcasters and the CBC have produced captioning style guides. (In fact, the CRTC made that point, quite unrelated to the topic at hand, in its 2004 renewals of a range of Canadian broadcast licenses. The Commission need not restate the same unrelated point.)

The CAB captioning manual is barely adequate as a first draft of what little it claims to be – a manual for English-language closed captioning. Even if the publication were adequate for that task, CHUM, Craig, and the Commission should not pretend that it solves the problem of captioning everywhere else in the world; captioning in French and other languages; audio description; subtitling; and dubbing.

The CAB manual is, in any event, a cautionary tale of closed development processes. The industry wrote its own manual, jotting down a set of rules based on what it already does (including mistakes made in Canadian captioning since day one). If anybody was guarding that coop, it certainly wasn’t the chickens.

After I made requests to four people, I was eventually, and at the very last minute, allowed to critique the CAB manual. My comments have been confidential thus far, but are now publicly released and incorporated into this intervention by reference.

My deficiency report was approximately as long as the source document itself and discussed some 70 topics. I appended a list of approximately 150 other issues that a captioning manual must address. Any document with hundreds of deficiencies is not ready for distribution, but the CAB went right ahead and published it, incorporating almost none of my comments.

The manual made reference to some of the available research, but made mistakes that can be traced to unfamiliarity with other research. The CAB manual is not production-ready.

The CBC’s style guide is unpublished and unrelated the topic.

The industry’s efforts at file exchange miss the point

As mentioned, one of the Open & Closed Project’s goals is the creation of .xex, a universal file-exchange format for caption, description, subtitle, and description files. There is no such file format at present, nor is one on the horizon. I am aware of dozens of attempted file formats, almost all of them restricted to captioning and subtitling. One example currently under development is the World Wide Web Consortium’s Timed Text format.

Alliance Atlantis has led a collaborative effort among broadcasters to address the problem of file exchange for captioning only. Sadly, as I have explained to Alliance staff and others, their plans don’t address the actual problem. In fact, they recapitulate the same problem they’re trying to solve. The caption-exchange program attempts to transcode existing files into the old Cheetah captioning software’s proprietary format; the files are held in a central location, and participants pay for some uses of the files.

This plan is reminiscent of a previous proposal that was, for some reason, taken seriously by Canadian broadcasters. The current system has the following failings:

It’s another closed process.
Industry decided that it knew enough to solve the problem and didn’t need outside expertise. The parties involved are not neutral or experienced in standards development.
It relies on a proprietary format.
A private company with a bumpy corporate history owns the file format. That company can alter the format at will and insist that it alone may use the format.
It isn’t future-proof.
The current system focuses on CEA-608 captioning files, which will eventually be replaced by CEA-708 files for high-definition TV. And this says nothing of other extant formats, like teletext, DVB, and DVD.
Localization and internationalization are unresolved.
Character encoding in Line 21 is complex; is not currently encompassed by the Unicode standard; and is an invitation to trouble when one proprietary format is translated into another.
It costs.
There simply isn’t any justification to bill for the exchange of a digital file.
There’s no reason for a central repository.
The file format should be centralized, not the server. The file should attach itself to the program; storing the file in a separate location from the source tape is the same problem we’re trying to solve.
It barely attempts to solve only one problem – and fails
We’ve got more than just Line 21 captioning to worry about. The participating broadcasters – including Alliance Atlantis and CHUM – all have captioning, description, subtitling, and dubbing to deal with on a daily basis, yet the current system does not even solve the problem of captioning file transfer.

In contrast, the .xex format will be developed by open consultation; will be openly documented and usable for free; will include multiple languages and technologies; will contain a mechanism for updating to accommodate new technologies; and will itself be the standard, obviating any central repository.

As with the CAB captioning manual, industry did not know enough about the problem it sought to solve. Ultimately, the problem was not solved. That’s not entirely their fault; their day jobs involve broadcasting, not standards development. Leave that to the experts.

Incumbent organizations are overrepresented

CHUM’s proposed benefits recipients are overrepresented by incumbent organizations. Unequivocal benefits to the community cannot limit themselves to maintaining the status quo; a community that does not grow can no longer be said to “benefit.” As CHUM’s own plans demonstrate, incumbent organizations have an easier time raising money.

By supporting the Open & Closed Project, CHUM, Craig Media, and the Commission can bring a new organization into being, expanding the pool of expertise in the Canadian broadcasting system. Somebody needs to step up to the plate and get the Project going.

CHUM’s benefits package barely mentions accessibility

Aboriginal persons and people of colour, women, and Westerners are adequately served by CHUM’s portfolio of social-benefits recipients. Only one recipient related to disability, the Projections International Disability Film Festival, is slated to receive funding, and not a lot of it ($70,000). CHUM’s application resorts to cliché as it describes the Festival as a “worthwhile cause.”

It is no doubt unnecessary to note that accessibility is good for business, is legally required, and is of interest unto itself. Nonetheless, Canadian broadcasting now stands in the wake of the Vlug decision; even the CRTC has finally noticed Section 15 of the Charter. Equality-rights guarantees are in force with specific interpretation in the field of media access. Disabled people cannot be ignored anymore – yet CHUM’s application all but ignores accessibility.

The Open & Closed Project is widely supported

The Project has received wide industry support. The Commission has received a substantial influx of interventions supporting the addition of the Open & Closed Project to the list of benefits recipients.

Most relevantly of all, the Canadian Abilities Foundation, the umbrella organization that includes the Projections International Disability Film Festival, has intervened to support the Project. If the only proposed accessibility-related recipient writes in to suggest that another accessibility-related organization deserves support, what does that tell you?

CHUM has failed to prove its application is the best possible under the circumstances

The conclusion is clear: CHUM has failed to comply with the requirements of its 1999 policy. CHUM has failed to attain “the onus... to demonstrate that the application filed is the best possible proposal under the circumstances and that the benefits proposed in the application are commensurate with the size and nature of the transaction.” The proposal:

  1. underplays accessibility
  2. favours incumbents
  3. excludes a nonprofit project with provable benefits
  4. undervalues the expenditures required

Lately, the CRTC has cast off its image of milquetoast Hull functionaries and has shown some real teeth. Now, not many Canadians may support the ways in which the Commission has bared its teeth, but at least a precedent has been set. It’s time for the Commission to act as something other than a rubber stamp for its friends, colleagues, and former and future employers in the broadcasting sector.

It’s time to send the application back to CHUM with a demand for increased expenditures on unequivocal benefits. One would expect that CHUM would not make the same mistake twice and leave the Open & Closed Project off the revised list.


  1. Deny CHUM’s application to exclude digital specialty channels from calculations of the gross value of the transaction for social benefits.
  2. Deny CHUM’s attempt to gain a credit for Craig’s unspent social-benefits monies.
  3. Require CHUM to divest itself of MTV and MTV2. Social-benefits spending would of course attach to any such transaction.
  4. With MTV and MTV2 excluded from the current transaction, require CHUM to increase its planned new spending on unequivocal benefits by some $2.23 million (made up of $1,480,000 from Craig’s announced spending and $750,000 from the assessed value of the remaining digital specialty service, TV Land).
  5. Remove MZTV Museum from the list of recipients.
  6. Add the Open & Closed Project to the list. Given the increased dollar values in a revised transaction, first-year funding, payable within 60 days of the close of CHUM’s acquisition of Craig, would minimally suffice.

The Commission may wish to raise the objection “We can’t very well tell them what to fund.” Of course the Commission can. The CRTC has taken much more dramatic steps recently, and the 1999 policy does not limit the Commission’s enforcement methods.

Fix a broken system

In case anyone is under the illusion that CHUM shall appear before the Commission and surprise Commissioners with details of its plans, readers should be advised that acquisitions, no matter how minor, are extensively discussed with the CRTC before an application is ever filed. Essentially, it’s all sewn up beforehand.

When it comes to social benefits, from what I can gather the applicant comes up with its own list through its own criteria, which is then submitted to the CRTC for rubber-stamping. There is no public application process and no peer review.

The entire process is closed – a set of backroon deals. The process seems improper and is; it seems corrupt and probably is not. Nonetheless, it simply doesn’t pass the smell test. Given the CRTC’s willingness to believe anything broadcaster statement on the topic of accessibility, and its equal willingness to discount expert testimony from non-broadcasters, people with disabilities suffer disproportionately from this broken system.

The allocation of social-benefits spending needs to be modernized to eliminate this entrenched old-boy network. It makes sense for social benefits to be determined by an open, public bid or application process that is in turn adjudicated by a neutral third party. We have decades of precedent for such a system in research funding generally.

While I want the system fixed, I don’t want to be the last casualty of the current system. I want my project funded and the entire system improved.

You were here: joeclark.orgCaptioning and media accessCRTC
Intervention in Application Nº 2004-0514-3

Posted 2004.08.12