Joe Clark: Accessibility | Design | Writing

Comments on CRTC over-the-air television review

These comments on the CRTC’s review of over-the-air television (Broadcasting Notice of Public Hearing CRTC 2006-5) are submitted by Joe Clark, Toronto, dated 2006.09.27.

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The Commission’s proposals concerning captioning will strike the broadcasting oligopoly in Canada as outrageously infeasible on the one hand (requiring 100% captioning) yet agreeable on the other hand (by letting the industry regulate itself). But if Canadian broadcasters indeed hold that opinion, they’d be getting things quite backwards. The CRTC’s attempt to abdicate its legally-mandated regulatory powers is not only unsupported under the Broadcasting Act, it is outrageous. Handing over enforcement of the legally- and constitutionally-protected rights of people with disabilities to the private sector isn’t merely a case of the fox guarding the chicken coop. It’s a case of the fox guarding a coop of disabled chickens.

The Commission has reached an apotheosis of selling out the rights of people with disabilities to its friends and future employers in the private sector. The whole idea is a non-starter and must be scrapped. However, a requirement for full captioning must be retained, as it is the established legal standard even if the CRTC and broadcasters have busily pretended otherwise.

Remedy sought

  1. Admit that the CRTC has an established, decades-long policy of de facto illegal discrimination against viewers with disabilities.
  2. Institute a 100% captioning requirement for English- and French-language broadcasters.
  3. Support the funding of the Open & Closed Project, the only concrete proposal to independently research the issue of quality of captioning and audio description and develop tested standards.
  4. Do not rush into a rulemaking on “third-language” broadcasters until the Project can address the issue.
  5. Do not rush an HDTV rollout onto Canadian airwaves without a complete and verified resolution of the existing inaccessibility endemic to HDTV.
  6. Explain why audio description was left out of this process.

HDTV accessibility

The Commission is getting ahead of itself when it attempts to settle on any kind of policy for accelerated rollout of high-definition TV (HDTV), with guarantees of increased Canadian programming. The CRTC can issue all the regulations it wants concerning HDTV, but such regulations will not address the pressing accessibility issues in HD, which the Commission has ignored.

  1. It is open to debate whether or not HD versions of analogue stations even have to carry over analogue captions into digital form. The CRTC’s requirements on that score are unclear, and I presume are deliberately so.
  2. New Canadian HD programming may be natively shot and broadcast in HD with no analogue transmission at all. Yet almost no captioning software can produce native EIA-708 captions, and there is no accepted knowledge, even at the seriously backward and inadequate level we find in analogue captioning, of exactly how to caption in high definition.
  3. There is no requirement that Canadian HD devices receive, decode, or display captioning. Of course the U.S. has a requirement and we usually get the same equipment, and of course captioning is included in the ATSC specification, but there is no legislative guarantee that caption-capable high-definition equipment actually make it into Canadian homes.
  4. In any event, the FCC specification requires the device that tunes high-definition TV to decode captions, leading to many shocked and disappointed consumers who buy an HD-ready monitor and expect captioning to be built in, just as it is in analogue TVs.
  5. The Canadian HD industry has done nothing whatsoever to improve the dire state of HD captioning fonts (or analogue caption fonts, for that matter). All of them in present use are print fonts or screenfonts from other media like the Web; no fonts in present use are custom-made for HDTV and tested with viewers to prove they work. The situation is especially dire in the cursive and casual font categories, which, according to research in an analogous field, many people will actually select and watch.
  6. Audio description of analogue programming, a concept deliberately misnamed by the CRTC, simply is not carried over to HDTV.
  7. In analogue TV, it is at least possible some of the time to turn on audio description without sighted assistance or without the use of an onscreen menu. My experience shows that there is no way at all for a blind person to activate audio description on HDTV unaided. Even if the description track were available, which it isn’t, blind people cannot turn it off and on themselves.
  8. HDTV devices are, of course, digital, and are replete with other onscreen menus that blind people cannot use. The CRTC has consistently refused to even address this pressing, intractable accessibility issue in the Canadian broadcasting system.

It is premature to talk about increasing the adoption of HDTV in Canada until the entire system is accessible. If it seems like I am saying that HDTV rollout must slow down or grind to a halt because deaf or blind people can’t use it, it is because I am indeed saying that. CRTC HDTV policies must be put on hold until accessibility is completely in place, with testing to prove it.

The CRTC authorizes and perpetuates illegal discrimination

The Commission has a history spanning three decades of knowingly obstructing, limiting, and defeating the legal and constitutional rights of people with disabilities. CRTC commissioners never seem to be entirely clear on what captioning is (sous-titrage?). Commissioners are certainly not clear on any facts about captioning research; basic facts about captioning; or even the different forms captioning may take. Commissioners do not watch TV very much, and certainly do not watch TV with captioning and/or description. (Why would they?)

Commissioners are Canadian broadcasters’ friends; in fact, there is now a defined career path from broadcasting executive to CRTC commissioner to broadcasting executive to minister of heritage. As such, commissioners are reluctant to anger or even remotely inconvenience their broadcaster friends. The CRTC accepts the blandishments, hollow promises, and lies of the Canadian broadcasting industry. Some of the lies that Commissioners believe and that the Commission reiterates are:

The biggest lie of all, of course, is that people with disabilities are not the real viewers of television. People who have a hearing or visual impairment are not the real reason why commissioners joined the CRTC or why broadcasters set up shop. Broadcasters did not get into this business in order to make programming for “the handicapped”; Commissioners never got into their business in order to legally require such programming.

Canadian broadcasters and their ostensible regulator believe, in their heart of hearts, that the true, essential, Platonic-ideal form of programming is a show just like the ones they watched in their childhoods 30 to 60 years ago. It is a program with pictures and sound (“tele-vision”) and nothing else. To the CRTC and to broadcasters, a show without captions or descriptions is the real thing and a show with them is an optional extra that might be provided if somebody feels charitable. (And even then the captioning will probably be total shite and the audio description might be, too.)

Having signed on to this, the grandest and most pervasive lie of Canadian broadcasting, it stands to reason that people with disabilities have no right to fully-accessible programming. It is surely mad to imagine that absolutely every second of TV broadcasting in Canada – all of it, including commercials, bumpers, promos, and interstitials – might be captioned. Something else that is well beyond the pale is the idea that significant portions of the broadcast day – maybe most of it and, at the very least, a large chunk of every channel’s programming – might be presented with audio description. It is crazier still to imagine that such captions and descriptions would all look and behave the same, such appearance and behaviour having been established after research and testing.

All this might explain why the CRTC has never, at any time, required more than 90% captioning of the broadcast day, a phrase that itself cheats people with disabilities out of accessible programming. (Overnight periods don’t have to be captioned. 90% captioning of an 18-hour broadcast day is actually 67.5% captioning.) And for French-language broadcasters – special friends of the Commission, with their own special lies – it is a rare day indeed when a captioning requirement passes 75% (in reality, 56.25%).

All this might further explain why the Commission requires barely any audio description of TV – two hours a week – and only on certain channels. It certainly explains why entire television networks were exempted from description requirements, an act that is equivalent to allowing Jews into grocery stores but not hardware stores. (If you don’t like that analogy, accurate though it is, substitute your own preferred minority, like people in wheelchairs, Francophones, or Albertans.)

Hence, the Commission has aided, abetted, and in fact authorized and induced a decades-long history of illegal discrimination against viewers with disabilities in Canada. While commissioners have ultimate blame, the problem actually originates at the staff level, where petits fonctionnaires have, through the years, frustrated and limited disabled people’s legal rights. It is CRTC staff who write the illegally discriminatory licence orders and other official documents that commissioners duly rubber-stamp.

There is, however, a fly in the ointment, and his name is Henry Vlug. He is that most dangerous of men, a person with a disability who has a law degree he isn’t afraid of using. Vlug, a deaf lawyer in Vancouver, has had no recourse but to file human-rights complaints against Canadian broadcasters alleging that absent captioning constitutes discrimination on the basis of disability under the Canadian Human Rights Act. Unfortunately for the CRTC and broadcasters, he won.

In Vlug v. CBC, Vlug alleged that uncaptioned programming on CBC Television and Newsworld constituted “a continuing discriminatory policy or practice on the part of the CBC.” The Canadian Human Rights Tribunal sustained Vlug’s complaint. CBC later agreed to caption every minute of the broadcast day on CBC Television and Newsworld. They aren’t doing it, but the precedent was set: Broadcasters have little recourse to an undue-hardship defence and anything less than 100% captioning constitutes illegal discrimination.

The CRTC has carried on as though it works in a different country than the one in which Vlug’s complaint was upheld. It has continued to require less than 100% captioning in new licences and renewals. The jig, however, is up. Since the CBC decision, Vlug has settled similar complaints with CTV and Global, the latter of which is known to require 100% captioning of programming (though not commercials, bumpers, promos, and interstitials, a source of continuing illegal discrimination). With such precedents in place, the facts are clear: Anything less than full accessibility is against the law.

So what does the CRTC propose? To require no increase in audio description and 100% captioning, but to let the industry regulate itself.

What 100% captioning actually means

The Commission and broadcasters chummily agree on a very special, very important lie: That 100% captioning is unattainable and the next likeliest proportion is a full ten percentage points lower.

In fact, 90% captioning means 36.5 days per year do not have to have any captioning at all. In effect, you can take the whole month of December off and still meet the spec. The 90% requirement applies only to the broadcast day, as we’ve seen. And a broadcaster has to reach 90% captioning only in the last year of its licence (under some interpretations, only on the last day before a licence is renewed). As licence terms are an untenably long seven years, it is quite possible to do no captioning at all until year seven, at which point a broadcaster can caption about two-thirds of its clock day and still comply.

The only viable accessibility standard is 100%, as demonstrated by the Vlug case. It is applicable to French and to English broadcasters equally, as French-language viewers with disabilities are not less or more important than English-language ones. And it applies to every minute that is transmitted, not just “programming.” As with CBC, all your commercials, bumpers, promos, interstitials, and everything else must be captioned. Yes, even outside commercials, and yes, really everything without exception.

Subtitling (sous-titrage?) is not captioning (sous-titrage?) and subtitled programming must also be captioned. That does not mean rendering subtitled dialogue in the original language. It does mean adding non-speech information; speaker identification; and transliterations, transcriptions, or notations of unsubtitled utterances.

If we view captioning as a utility on which disabled viewers rely, we can draw comparisons with uptime standards used by other utilities, such as telephone companies, where five-nines reliability, or 99.999% uptime, is a common standard. We can, moreover, draw comparisons with other broadcasters. The Federal Communications Commission engaged in a consultation concerning increased captioning requirements in the U.S. in 2005. In its filing, HBO stated (emphasis added):

HBO’s quality-control program monitors 16 categories of potential technical issues associated with video, audio and closed captioning, the occurrence of any one of which is considered a disruption to the service. HBO’s goal is to have each of the 30 linear programming feeds it originates experience no more than 5.5 minutes of programming disruption per year – a reliability factor of more than 99.999%. Over the past two and a half years, more than 25 of HBO’s programming feeds have met this reliability goal consistently. Those linear feeds that fell short of the goal missed it by an insignificant amount on an annual basis....

HBO has found that closed-captioning errors on its feeds account for less than 10% of all disruption events (i.e., less than 30 seconds per year). In fact, in HBO’s experience, the errors in closed captioning are fewer than the miniscule amount of audio discrepancies. [...]

The actually viable tolerance for 100% captioning is 0.01% error. That means five-nines or 99.999% captioning, an existing standard already in place at HBO. That figure is not a minimum allowance of uncaptioned programming; it is the headroom necessary to account for the fact that computers sometimes crash and staff are sometimes asleep at the switch.

We will require regulations to prevent cheapskate broadcasters from using scrollup or real-time captioning on everything, as is the current trend. Such regulations should be based on Open & Closed Project research and testing.

Who does the regulating?

The CRTC is already lax at regulating captioning, but it proposes to allow the industry to do the job. Let’s look at the track record of both parties.

If the CRTC is the ostensible broadcast regulator, it should be able to answer the following questions:

Is all of the foregoing news to you? If you work at the CRTC, is it news to you, too? That’s a problem, isn’t it? The CRTC ostensibly regulates broadcasting. It’s supposed to know these things. It does not, yet it considers such ignorance perfectly acceptable as a form of “regulation.” Shouldn’t the CRTC be improving its actual knowledge and abilities rather than abdicating its regulatory role?

Now let’s look at the stated beneficiary of the CRTC’s abdication, the Canadian Broadcast Standards Council. I looked at its published rulings from 2006.

If those proportions held true in regulating captioning, complainants could expect success two-thirds of the time. That’s a pretty low success rate when the claimed standard is all captioning all the time.

The whole discussion is pointless. A complaint of absent captioning is an open-and-shut case. (If the complainant did not see captioning, then there wasn’t any captioning irrespective of broadcaster claims.) CBSC will have no knowledge or acumen whatsoever in adjudicating quality of captioning. (Is this another career path for CRTC staff and Commissioners?)

Lastly, what are the remedies proposed? Forcing the broadcaster to air a PSA at 4:00 in the morning declaring that, at some remote point in the past, a caption was missing or of low quality?

It’s already virtually impossible for a person with a disability to file a complaint about captioning or audio description. (Really, how do you do it when you’re lying on the couch watching TV at night?) It is time to distance ourselves from a reactive and adversarial complaint process. And the only way to do that is to establish independent, researched, and tested standards to improve quality up front.

The CRTC cannot outsource its own regulatory power

The Commission has no legal authority to offshore its regulatory duties to another body. The Broadcasting Act, Part II, at §5(1), states that “the Commission shall regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing... broadcasting policy.” That means all aspects, even aspects the Commission has screwed up for decades and now wants to get rid of.

One of the aspects of the Canadian broadcasting system that “the Commission shall regulate and supervise” is found in §3(1)(p), which states that “programming accessible by disabled persons should be provided within the Canadian broadcasting system as resources become available for the purpose.” The section’s limited scope has been superseded by the Vlug decision, but it is still on the books and “the Commission shall regulate and supervise” it.


The CRTC states that it is “seeking concrete and specific proposals to address the ongoing concerns about captioning quality, including the appropriateness of an industry-standard ‘error rate.’ ”

The CRTC has a curious attitude toward standards. It seems to be happy to endlessly state that somebody, somewhere, cooked up a standard – for captioning, for example – but never actually bothers to discover whether or not these purported standards are worth the PDFs they’re published in. The CRTC keeps mentioning that CBC has its own captioning standards (two of them, which CBC doesn’t adhere to in the first place) and that the CAB published some kind of document on the same topic. Indeed, let’s talk about the CAB captioning “standard.”

  1. The CAB captioning manual was not developed in an independent and open process. It’s hard to imagine how the process could have been more secretive and closed. I have 25 years’ experience with captioning, have the largest clipping file in the country, have a portfolio of published articles about captioning, wrote a book about Web accessibility, lecture around the world about accessibility (including captioning), I have a degree in linguistics, and was called “the king of closed captions” by the Atlantic Monthly. My qualifications are not in dispute by anyone, but I had to get approvals from four people before I could even read a very late “draft” of the document. And after that, my contributions were almost completely ignored. The CAB and broadcasters were not interested in an actually viable, solid, independently created and verified captioning standard; they were interested in putting something together that served their own interests.
  2. The Commission has ignored the serious absence of research in the purported CAB standard. I provided most of the research citations in its bibliography by allowing CHUM to photocopy much of my three linear feet of captioning research. (I brought the research papers down and picked them up again. It didn’t even cost CHUM a courier charge.) Yet the authors ignored other research; ignored (or, more likely, were unable to notice) flaws in the research they cited; or simply came to the wrong conclusions.
  3. The CAB manual was written mostly by nonexperts, a term that, in this context, includes most offline captioners in Canada. They may work in the field, but it is my direct lived experience that they know very little about it. In broad terms, a bachelor’s in English literature does not qualify you to write a captioning manual.
  4. There was no user testing of the CAB standard – at all. The whole thing amounted to jotting down a mixing-and-matching of existing Canadian practices. Known errors in such practices were not corrected. (In fact, I published a list of about 100 known errors in the CAB manual itself.)
  5. The CAB “standard” applies to English-language captioning only. This is bad enough in itself. But given its history of failure, the last thing we need is an expansion to French-language captioning or to audio description.
  6. Most importantly, the CAB manual has been a market failure. Almost no broadcasters and captioners claim to adhere to the CAB “standard,” and those that do implement it differently, vitiating the effect of a standard in the first place. The CAB standard has simply been ignored by most captioners in Canada. The few broadcasters that claim to comply with the “standard” nonetheless do things differently. An obvious example is CHUM’s mixture of pop-on and scrollup captioning, chiefly in low-legibility upper case, as contrasted against Alliance Atlantis’ all-scrollup mixed-case captions. A “standard” that permits two companies to caption completely differently is no standard at all.
  7. Additionally, the CAB “standard” is published solely as an untagged, inaccessible PDF. Of course, it works just fine on the computers used in CAB, CRTC, and broadcaster offices, so it stands to reason that it works fine for everyone, including people with disabilities.

Next, errors. The Commission doesn’t know the first thing about captioning errors and is in no position to advance any kind of opinion on them, let alone regulate them. Nonetheless, captioning error rate is a misnomer, as I have documented elsewhere. Neither the CRTC nor a broadcaster nor a captioner has any theoretical or practical basis to count errors, which is the first task involved in calculating an “error rate.” A program with one “error” is not necessarily better than a program with five.

CRTC functionaries have had a “concrete and specific proposal” on their desks for two years to “address the ongoing concerns about captioning quality.” It’s called the Open & Closed Project, and it is the only option to address the issue of quality in captioning, audio description, subtitling, and dubbing. The Project has received support in principle from organizations and companies in four countries, and we have a verbal cooperation agreement with the University of Toronto.

While recently describing the Project as “a significant undertaking, one which could make a positive contribution to the objectives of accessible broadcasting,” CRTC functionaries have done absolutely everything in their power to prevent even minimal first-year funding of this independent research project. A viable method of such funding is through social-benefits spending, but the CRTC scotched that, too, even in a case where such funding was verbally committed by a broadcaster.

My response to the CRTC’s call for a concrete and specific proposals is to force the industry to fund my project. The CRTC could require 100% captioning of every single broadcaster in Canada once the standards are established and tested, again independently.

Captioning beyond English and French

The CRTC has finally recognized that deaf people aren’t only Anglophones and Francophones. It asks for comments “on the feasibility of captioning in languages other than English or French and the obligations that should be applied to services that broadcast in third languages.”

We were through this already with Telelatino, a disagreeable organization that did everything in its power to hide its licence-renewal documents from public view. I filed an intervention that the Commission ignored. The bottom line is that Latin-script languages can be and are captionable in Line 21 (EIA-608, sometimes using the so-called extended character set) and manifestly are captionable in HDTV (EIA-708). The most common such languages on Canadian analogue TV, Italian and Spanish, are immediately captionable; Spanish can be captioned in real time.

Other languages with dependable Latin romanizations – a short list that includes Japanese – can be captioned in Line 21. Captioning in Chinese, Hindi, and other scripts is hypothetically possible in 708, but I know of no tests of such captions, nor do I know of any receivers with adequate (or any) fonts in those scripts.

This is in itself a large issue that the Open & Closed Project will consider. If the Commission has partly ignored captioning in the past, it has almost entirely ignored foreign-language captioning and should not be rushing things now.

Absence of discussion of audio description

The Commission’s longstanding disregard for people with disabilities, and its privileging of deaf people over blind people, is discernible in the fact that the present over-the-air-television review does not even mention accessibility for blind people. In some imaginable outcomes, deaf people might get full captioning but blind people would get nothing. I am sure that blind and visually-impaired Canadians might have an objection to this, but the CRTC obviously believes nothing at all is amiss.


While the CRTC has been screwing up accessibility for three decades and is actively trying to make things worse with its current proposals, it may nonetheless not be too late to save the day. The first step in solving a problem is to admit to having one. It behooves the Commission to admit, publicly and at long last, that it never really cared about the rights of viewers with disabilities, that its Commissioners and staff had no interest it all in captioning (and so little interest in audio description that they could not even call it that), and that its policies and practices are now indisputably illegal in the wake of the Vlug decision. The Commission might act with some maturity for a change and admit its mistakes.

Reply comments

See my reply comments of 2006.12.20.

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