This document is an appeal to the Governor in Council, under §28(1) of the Broadcasting Act, of the issuance of a licence to the Accessible Channel (Broadcasting Decision CRTC 2007-246). This appeal will establish that the issuance derogates from the attainment of the objectives of broadcasting policy.
We know already that the sitting government has little interest in impeding the activities of business. In the normal course of events, an appeal of the issuance of a licence would be received then rejected. Also in the normal course of events, the holder of a licence is a for-profit business that lost out to another business. But that isn’t the case here. This isn’t about business, or even a business; it’s about the funding of a charity and the legal rights of people with disabilities. As such, the Governor in Council need not wield the usual rubber stamp.
Blind and visually-impaired persons cannot understand many forms of television programming because they cannot see the screen or see it well. The accessibility method of choice for this group is audio description, often inaccurately called video description or descriptive video. In audio description, an added narration track talks you through the program, explaining in words what cannot be understood from the soundtrack alone.
Usually, the audio-description track is transmitted on the second audio program or SAP channel, which you must specifically select. Since you have to opt into the narration track, this form of audio description is closed (as opposed to open description, which everyone hears).
The CRTC has all but refused to require Canadian broadcasters to provide described programming. About two dozen stations and networks have description requirements, which tend to max out at four hours a week by the end of a seven-year licence term. That’s peanuts; with an 18-hour regulated broadcasting day, those two dozen stations are presenting a mere 3% of their annual programming with description. Would the Hon. Stephen Fletcher be satisfied with accessibility to 3% of the buildings he wishes to use?
By contrast, and after nearly 30 years of demands and complaints, the CRTC has finally required broadcasters to caption 100% of their programming for deaf and hard-of-hearing viewers. Quality of captioning is being seriously mishandled; moreover, the CRTC’s order was late in coming and only arrived after three successful human-rights complaints, lodged under the Canadian Human Rights Act, forced CBC, Newsworld, Global, CHCH, and CTV to caption all their programming.
The National Broadcast Reading Service (NBRS) is a charity (registration number 128778552RR0001) whose main business unit is VoicePrint, which reads newspaper and magazine articles out loud. VoicePrint is a money-losing enterprise that survives only because cable and satellite customers are levied a hidden monthly charge to pay for its carriage on the SAP channel on CBC Newsworld.
Another NBRS unit is AudioVision Canada, a provider of low-quality audio description.
According to Canada Revenue Agency filings for 2006, 85% of NBRS’s funding comes from pass-through fees ($4,325,101). The charity is a failure in the free market: Its fee-for-service work netted a paltry $39,130 in that same year. NBRS receives government funding and relies on some degree of fundraising revenue, another area at which it is a market failure. Without regulated pass-through fees, NBRS would be insolvent; it isn’t viable in the open market.
NBRS filed an application with the CRTC for a so-called Accessible Channel that would air open-described programming 24 hours a day. You wouldn’t have to turn on the SAP channel to listen to the descriptions. In support of its application, it filed a research paper that claimed it was nearly impossible to actually listen to described programming on SAP in different cities in Canada. The application also insisted on mandatory carriage for a fee, which, after the manner of VoicePrint, would be the main source of income for the channel.
Many intervenors filed objections to the proposal.
Nonetheless, the CRTC licensed the channel on 2007.07.24, and ordered a charge of 20¢ per subscriber in anglophone markets. Whether you need accessibility or not, or whether you want to watch the programs somebody else chooses or not, the CRTC thinks it has done us a favour by requiring us to spend $2.40 a year forever for the Accessible Channel.
At §3(1)(p), the Broadcasting Act states that “programming accessible by disabled persons should be provided within the Canadian broadcasting system as resources become available for the purpose.” Canadian broadcasters have been feeding people with disabilities one line after another for three decades about how difficult or expensive it would be to meet their needs.
Before our very eyes, we witnessed broadcasters refuse to caption or describe their programming while always finding the money for film-festival schmooze parties or new digital specialty networks. It took the filing of three human-rights complaints to prove the obvious point that the Canadian Human Rights Act requires full accessibility, not partial.
The gig is pretty much up at this point. In the last year alone, Canadian broadcasters have spent $4 billion buying each other up. There is no plausible case to be made that “resources” are not “available for the purpose” of providing “programming accessible by disabled persons.” The source of those “resources” has always been, and must be, the broadcasting industry itself. Broadcasters broadcast; viewers merely view. In no sphere of Canadian society are people with disabilities and people without disabilities expected to directly pay for accessibility. Even if he could afford it, should the Hon. Stephen Fletcher be required to pay a fee so he can use the same buildings nondisabled people do?
The entire broadcasting system has to be accessible, not a single channel. By comparison, there are captioning requirements for nearly all English- and French-language stations and networks in Canada. The principle of across-the-board accessibility is in place there. Nobody has applied for a licence for a Deaf Channel that would show all open captioning all the time.
The CRTC could detect an appeal a mile away and tried to lawyer-proof its decision, specifically citing §3(1)(p). But its issuance of a licence does not improve the lot of blind and visually-impaired viewers in any significant way. Adding 18 regulated hours per day of described programming to the four hours per week on the two dozen channels with existing requirements means that described programming on those 25 channels will now occupy 8% of the schedule rather than 3% – hardly a whopping increase and nowhere near the 100% that the Canadian Human Rights Act requires. (The channel does next to nothing for French-speaking viewers, another violation of equality.)
The issuance of a licence to a network calling itself the Accessible Channel implies that every other channel is inaccessible. For blind viewers, that is exactly the case 100% of the time on channels that carry no description and at least 97% of the time on the handful of channels that do carry description.
Hence, despite the CRTC’s defensive claims to the contrary, the issuance of a licence to the Accessible Channel, including a requirement that every anglophone TV subscriber pay for it, demonstrably does derogate from the aims of the Broadcasting Act.
Refer the decision back to the Commission.
The Accessible Channel is more properly licensed as a digital specialty channel without mandatory carriage. Such a “change, variation or alteration” is permitted under §28(3)(c) of the Broadcasting Act. The Accessible Channel might then fight in the free market to secure its natural audiences – viewers who believe someone else should choose their programming for them or those who believe a little accessibility is all they need.
Additionally, a public hearing on accessibility in the broadcast system is long overdue. Such a hearing would include a discussion of open, independently-developed standards for accessibility, a topic in which I am involved. It would also provide a forum for the CRTC to engage in truth and reconciliation about its decades-long efforts to limit the legal rights of people with disabilities, efforts that continue to this day and elicited this appeal.