This response pertains to Ofcom’s consultation on the draft code on providing television access services.
This submission is permanently located at the address:
Ofcom’s original postings are located as follows:
I, Joe Clark, am the sole author of this intervention. I have been involved in the field of accessibility for more than 20 years, starting with a fateful encounter with The Captioned ABC News in the 1970s. In my career as a journalist and author, I have written over a dozen articles on captioning, audio description, and Web accessibility, the latter being the topic of my book Building Accessible Websites (New Riders, 2003). In a September 2001 profile, the Atlantic Monthly called me “the king of closed captions.”
I have done and continue to do paid consulting work with public- and private-sector clients on accessibility. I have written audio-description scripts for first-run cinema. I maintain a large Web presence on media access at joeclark.org/access/.
My extensive, decades-long expertise in accessibility was a factor in the development of the nonprofit Open & Closed Project, a first-ever research and standardization project in multimedia accessibility. I am director of the Project, which is independent of broadcasters, service providers, equipment makers, industry groups, and regulatory bodies. The project is near an expected agreement for startup funding.
The chief goal of the Open & Closed Project is the creation of recommended practices – how-to manuals – for the four fields of audiovisual accessibility, captioning, audio description, subtitling, and dubbing. Based on research and evidence rather than feeling and opinion, and developed through an open consultation process, the recommended practices will be the first-ever global standard for accessible media.
These standards will be thoroughly localized for technology and language differences and will be tested and modified to prove they work. At the end of the project, we’ll have our first set of unified standards for audiovisual accessibility. Professionals can undergo training in these methods and later be certified as practitioners. Accessibility will no longer be a cottage industry based, as it is now, almost entirely on price.
At the outset, let’s run through a few of the misconceptions presented in Ofcom’s proposals.
The proposals tell us:
Ofcom is obliged by section 303 of the Communications Act 2003 (‘the Act’) to issue a code giving guidance to television channel providers licensed in the UK on the provision of [captioning], signing and audio description (‘television access services’) to accompany programmes, and the provision of information to disabled people about those services.
My question is this: For whose benefit does Ofcom discharge this obligation? The entire thrust of the proposals is slanted toward broadcaster convenience and profit, as with untenable thresholds for audience size and expenditures.
But the purpose of §303 of the Act itself is clear:
It shall be the duty of Ofcom to draw up, and from time to time to review and revise, a code giving guidance as to the extent to which the services to which this section applies should promote the understanding and enjoyment by persons who are deaf or hard of hearing, persons who are blind or partially-sighted, and persons with a dual sensory impairment, of the programmes to be included in such services; and the means by which such understanding and enjoyment should be promoted.
Ofcom seems unclear on the concept that the entire purpose of §303 is to improve the lives of people with disabilities. Reducing bother and increasing profit for broadcasters don’t enter into it. §303(8)(f) of the Act – the last of six sections – obliges Ofcom to consider “the cost, in the context of the matters mentioned in [the other five sections], of providing the assistance.” But Ofcom has no statutory authority to minimize the central provision of §303, which is to “promote the understanding and enjoyment by persons” with disabilities on the basis of cost or convenience.
Those other five sections are notable. The pertain to “the extent of the benefit” and audience size, residency of the intended audience, and “technical difficulty.” Ofcom misuses these provisions by taking them as reasons not to provide accessibility.
It should be noted that §1 of the Act states that “It shall be the principal duty of Ofcom... to further the interests of citizens in relation to communications matters.” Yet Ofcom defies this principle and appears to work from a broadcaster-first premise: “We know your job is to set up television networks for normal people – and to make as much money as possible. Parliament stuck us with the task of forcing you to spend your hard-earned money on these other, expendable viewers, but there’s no cause for alarm. We’ll interpret the law and spin the facts so that you can do whatever you want with 99% of the money you make.”
Now, if Ofcom’s proposals were implemented tomorrow, what would be the result? Actual accessibility, or more money in the pockets of U.K. broadcasters?
Even in a nation that somehow functions without a constitution, accessibility for people with disabilities is a right. It is not a frill or a privilege that is begrudgingly provided as a matter of charity and that could be revoked at any time.
Spectrum is owned by all members of the public, and not, as Ofcom and some broadcasters seem to believe, by only a few people. Disabled people are members of the public and they too own the electromagnetic spectrum. Because of the nature of disability, services may sometimes need to be provided in a way different from that used by nondisabled people in order to ensure equal “understanding and enjoyment.” In the context of broadcasting, that means television programming must include accessibility features; without them, people with disabilities are placed on an unequal footing.
Ofcom’s proposals make a mockery of the rights of people with disabilities. Through the back door of audience and expenditure caps, the proposals ensure that broadcasters will have all-but-unrestricted imprimatur to spend untold millions on brand-new television services while the programs they broadcast remain inaccessible.
Ofcom’s proposals were ostensibly issued in conformance with the Communications Act, yet represent a way of thinking that offends democratic principles and the requirements of the Act itself.
When considering these and other proposals to limit disabled people’s understanding and enjoyment of television, a useful exercise for the reader is to imagine putting forth the same proposals concerning other minority groups. Useful candidate groups include blacks, Asians (as defined in the U.K. sense to mean Indic or Southeast Asian), and Jews.
If it were technically possible to run a television network whose programs blacks, Asians, or Jews could not understand, would it be OK?
Would it be acceptable for a government regulator to craft a latticework of exemptions so that broadcasters could devote 99% of their revenues to serving everyone who wasn’t black, Asian, or Jewish?
If blacks, Asians, or Jews required provisions that other people did not – black captioning, Asian sign language, Jewish audio description – would it be all right to avoid spending 99 pence out of every pound of income on those services?
If we knew that television services excluded blacks, Asians, or Jews even though it were technically achievable to include them, would we stand for it? If we knew the true cost of startup and ongoing operation of a television station, and the small percentage of those costs that accessibility for blacks, Asians, and Jews might represent, would we nonetheless go right ahead and tell broadcasters they could spend as little as possible to serve these groups?
If these examples seem overarching, they shouldn’t. This entire discussion properly concerns service to a population minority (people with disabilities). It will further be noted that black, Asian, and Jewish groups include people with disabilities.
Appendix D, §8 and §2, state:
Reliable data on profitability is not available, but we believe that services with relatively low audience shares and modest revenues are operating on very small margins, and would not be able to sustain the extra costs of television access services. Given Ofcom’s duty to secure the availability of a wide range of television services, we do not consider that it would be appropriate to force some television providers to close down. Thus, we rejected an across-the-board approach to the provision of television access services. [...]
[G]iven Ofcom’s duty to promote the availability throughout the UK of a wide range of television services, Ofcom seeks to avoid jeopardizing the financial viability of existing television services.
Why, exactly?
If I open a retail store or begin a service business, I can expect to suffer financially if I engage in discrimination. Discrimination is bad for business, after all. If word gets out that I refuse to serve people with disabilities (or, say, blacks, Asians, or Jews), I may suffer so much lost business that my “financial viability” may be “jeopardized.”
Why is broadcasting different? Why does Ofcom implicitly support the notion that its regulations must buttress and reward inaccessibility – that is, inequality and discrimination?
Which is really preferable, a set of licensed television services, all of them accessible and free of inequality and discrimination, or a (possibly larger) set of services that engage in inequality and discrimination? Is more better or is better better? Do we want allegedly large numbers of television stations without accessibility or an allegedly smaller number with accessibility?
Where is the proof that the ineluctable consequence of full accessibility is the shutdown of existing broadcasters? Why the fearmongering?
Discrimination is unethical and illegal under the Disability Discrimination Act; it’s also unpopular once word gets out. The market is working as expected if discriminatory businesses suffer or fail.
Ofcom admits it doesn’t have any data on profitability, yet its proposals would hand broadcasters a gift. Ofcom launches into an ideological statement that could be reworded to say “Keeping a station running is more important than keeping it accessible.”
Further, are broadcasters truly “jeopardized”? Since the consultation paper and appendices never suggest broadcasters spend more than 4% of revenues, I have to wonder how many extra commercials or viewer subscriptions one would need to sell to make up for such a tiny percentage of your income.
You need deep pockets to start up any kind of television station. If a 4% cost threatens your business, you’re in the wrong business. Accessibility isn’t a dramatic new concept distantly detectable on the horizon; captioning, audio description, and sign language have been features of U.K. telecasting for decades. Broadcasters know they are a cost of doing business. Any broadcaster who can’t survive with a fully-accessible schedule needs to head back to business school; their executives need to write better business plans. In short, the financial viability of an inaccessible (unequal, discriminatory) television service is something that deserves to be jeopardized.
Ofcom’s criterion opens the door to broadcasters to publicly threaten to terminate a broadcast service rather than comply with accessibility requirements. Broadcasters would likely describe such requirements as onerous, or perhaps they’d borrow Ofcom’s own terminology, derived from the Communications Act, and call them a “regulatory burden.” I do not put this past certain broadcasters. It would not surprise me if some of them stooped so low. The result will be a public perception that “normal” people will suffer the cancellation of the service because “marginal” people demanded equality.
In any event, Ofcom publishes an airtight counterargument for its own proposals. If you’re looking for a reason to disprove Ofcom’s claim that partial accessibility is enough, take a look at Appendix D, §6 and §13:
It is difficult to assess the value of this benefit foregone. However, simply as a rough notion of possible benefits, if it is assumed that the benefit to individual users equates to viewing a video each week rented at a cost of £5, and that one million people would benefit, this would amount to a weekly benefit to users of £5 million, and an annual benefit of £260 million.... Given the current mix of channels and broadcasting schedules, [even partial accessibility] equates to a total cost to the industry of about £15 million a year, which compares with the benefit to users of £260 million.... Both costs and benefits would rise as the level of provision rose....
Benefits even of partial accessibility outweigh costs by a factor of 17. Why are we even debating partial accessibility instead of full accessibility? Imagine the benefit ratio at that point, since by Ofcom’s admission benefits rise with increased accessibility.
Specific sections of the proposals require correction or comment, as follows.
A complete absence of data isn’t enough to stop Ofcom from proposing high audience thresholds and low spending caps.
The draft code would require all UK-licensed television channels meeting certain tests to provide television access services for people with hearing and/or vision impairments. This requirement would apply provided that [broadcasters] could pay to provide the services without spending more than an estimated 1% of their total (qualifying) revenues.
In the absence of reliable data on audience benefit, Ofcom considers that a reasonable proxy would be the audience share for channels.... [T]he Government assumed that television channels with an audience share of 0.05% or more would be required to provide television access services, and we propose to adopt the same basic approach.
I have to assume that people with disabilities constitute more than 0.05% to 1% of the population of the United Kingdom. While this is not an argument for strict proportionality, I submit that it is surely absurd, and strangely symbolic, to suggest that people with disabilities merit a mere 1% of spending on new television services and not a penny more. One percent is the lowest you can go without hitting zero (and without resorting to fractions). You simply can’t get more marginal than that without being made actually invisible.
Such a figure tells people with disabilities that 99% of a broadcaster’s revenue – 99% of its business, 99% of its entire purpose – has nothing to do with them. Ninety-nine percent of their business, in other words, is inequality. Broadcasters are in the inequality business, under this philosophy.
And worst of all, the 1% revenue cap and the 0.05%-audience-share cutoff were arbitrarily chosen by Ofcom. How do these figures serve the statutory provisions of the Act, and how do they result in equality (that is, accessibility) for U.K. television viewers?
But we’re not done yet with percentages.
The Act provides that the code must require that, by the tenth anniversary of the relevant date for each service, at least 80% of programmes that are not excluded must be [captioned] (90% in the case of Channels 3, 4 and 5); at least 10% of such programmes must be accompanied by audio description, and at least 5% must be presented in or translated into signing. The Act also requires that, in the case of [captioning], each service must [caption] at least 60% of non-excluded programmes by the end of year five.
Those numbers still don’t add up to 100%; inequality is built into the system. But Ofcom proposes to give broadcasters a discount on these fractions:
[C]hannel providers unable to afford [“full” compliance]... would be required to meet the full cost of relevant audio description and signing targets, as well as 66% (Level Two) or 33% (Level Three) of the [captioning] targets as appropriate, provided they could afford to do so for 1% or less of their qualifying revenue.
Ofcom’s unwillingness to heed its statutory obligations to enhance the lives of people with disabilities is clearly apparent here. Broadcasters deemed too poor to pay for the full accessibility requirement – which in no case requires 100% accessibility – receive 1/3 or 2/3 discounts on captioning requirements.
One notes again the bias toward broadcaster balance sheets at the expense of accessibility for people with disabilities.
First of all, a broadcast day is defined as 18 hours long. Even if 100% of those 18 hours were accessible, the actual accessibility provided would be 75%, given that 25% of the day is simply exempted.
Broadcasters don’t need ten years to gradually add accessible programming to their schedules – especially since the result is still inaccessible, with at least 20% of programming uncaptioned, 95% unsigned, and 90% undescribed. While the entire industry could not be expected to provide full accessibility overnight, necessitating some sort of phase-in, it simply doesn’t take ten years to do this for every service.
Ofcom, in its unadmitted ideological bias toward broadcasters, views accessibility as an issue of cost. Under its proposals, broadcasters need spend no more than 1% of their revenues on accessibility.
This sounds like a straightforward invitation to pad the books. It’s an Enron waiting to happen, and the victims are deaf or blind viewers. It would be very easy to strike a deal with an outside captioner, describer, or interpreter to bill high. Or a broadcaster could do the work in-house and bill internally at very high rates, or set up an arm’s-length company and do the same.
Put this proposal into effect and you’d be amazed how expensive captioning, audio description, and sign language suddenly become – and how few hours you can buy for 1% of revenues.
And interestingly, Ofcom proposes to yo-yo its accessibility requirements based on changing audience share (§§24–26 of the proposals). Isn’t that an invitation for broadcasters to game the system? What prevents broadcasters from crafting their programming to be just attractive enough to viewers to maintain profitability while staying below 0.05% market share?
Further, Appendix D, §8, states that forcing all broadcasters to meet the full requirements might result in Year 2 costs amounting to 4% of revenue. Sounds like a deal to me – they still get to use 96% of their revenue any way they want.
Ofcom’s proposals publish falsehoods as if they were actually true, an act that in itself confers apparent legitimacy.
First of all, the U.K. has a salutary history of refusing to exempt entire program categories from accessibility requirements. The Independent Television Commission has refused to exempt programming categories from description:
The ITC issued its Code in February 1997. For... audio description, 2% by the start of the second year rising by 2% every two years. The Commission decided not to exclude any categories of programming from the minimum requirements.
Excluded programs: The legislation allows the ITC to specify certain classes of programs which are to be excluded from these requirements altogether, or to which reduced requirements should apply. The ITC has decided, however, not to make any blanket exclusions or reductions of this kind for any of the three types of provision.
The ITC goes on to note that:
The ITC nevertheless recognizes that it may not be appropriate for the sign-language or audio-description requirements to apply to some digital program services which are of a themed nature (i.e., consisting of only a very limited range of program types). The ITC will therefore consider, on a case-by-case basis, requests from licensees providing themed services for exemption for those services from these requirements. The ITC would only accept such a request where it was persuaded that the application of the requirements would be inappropriate, and following consultation with representatives of those deaf or blind or partially-sighted people for whom the provision is intended.
The American Foundation for the Blind found no surveyed program categories that blind survey respondents did not want described. No exemptions were suggested for any program genre. Packer and Kirchner (1997) found the following preferences for described programming:
| Genre | Survey 1 | Survey 2 |
|---|---|---|
| Dramas or Mysteries | 85% | 83% |
| Nature or science | 67% | 72% |
| News and information | 61% | 68% |
| Comedies | 59% | 77% |
| Music programs or videos | 40% | 44% |
| Sports | 37% | 26% |
| Game shows | 26% | 41% |
| Daytime soap operas | 21% | 28% |
| Talk shows | 20% | 29% |
| Shopping programs | 16% | 12% |
| Children’s programs | 15% | 38% |
| Other | 14% | 11% |
Every surveyed program genre was sought after by blind viewers.
Ofcom proposes to obliterate this history of acknowledging the right of disabled people to understand and enjoy the same programming nondisabled people do. Specifically, let me quote from the consultation paper and from Annex B, the latter of which tries to slip in a number of important exemptions:
Ofcom proposes that some services and types of program would be exempted from the requirement for certain access services on grounds of technical difficulty. Examples include:
- audio description of music and news programmes and news services, where there is little space within the dialogue to provide audio description, and less need
- provision of [captioning] that is not supported by commercially-available set top boxes (e.g. Chinese or Urdu) and
- provision of [captioning] or signing, where a service is broadcast with several different language feeds, making the choice of language for [captioning] or signing problematic. [...]
- provision of [captioning] for music programmes where copyright laws prevent this and
- provision of [captioning] for live discussion programmes, including parliamentary proceedings.
- [channels] comprising advertising only, for example a shopping channel
- [channels] licensed outside the United Kingdom.
None of this has to do with technical difficulty. It has more to do with Ofcom’s ignorance of audio description, captioning, and sign language, and its willy-nilly decision that certain program genres do not need those services and can thus remain inaccessible.
This entire proceeding concerns digital television services. The proposals make this claim:
Because sign language is not yet available in closed format (i.e., it is on screen and seen by all viewers), it is generally accepted that signed programmes may need to be shown late at night and recorded by deaf viewers for subsequent viewing.
Digital television services, depending on the platform used by the originating broadcaster, can provide virtual channels for accessibility purposes. We’re not limited to a single channel designation for a single broadcaster. One channel number can broadcast main audio and video (with captions), while another channel number runs different video and/or audio.
Merely as examples, a broadcaster could send out all the following at once on different virtual channels:
Again depending on software platform, the individual PIDs could be multiplexed in real time, or perhaps specific tapes would have to be assembled beforehand, digitized, and broadcast. Bandwidth costs are higher, but with a mere 10% of programs broadcast with description and 5% with sign language, 90% or 95% of the time the marginal cost of bandwidth is zero.
It is no longer true that sign-language programs need to be broadcast over the graveyard shift for later taping, which in itself amounts to discriminatory treatment. Nor is it true that the only way to telecast a program with audio description is through a closed format requiring the special decoder the U.K. broadcast industry decided it needed to invent. Virtual channels are a solution for audio description and sign language.
The proposals are inadequate in regard to accessibility of electronic program guides (EPGs) and other information.
Ofcom requires television service providers to promote awareness of the availability of their television access services to potential users of the services by making available accurate and timely information to electronic program guide (EPG) operators listing their services, and by providing similar information on their Web site.
Ofcom doesn’t understand the extent of the problem.
Ofcom already has a consultation underway concerning EPGs; it needs a separate consultation regarding advertising and notification of accessible programming. I expect we’ll need a multimodal solution to the problem – better printed listings, accessible Web sites and EPGs, toll-free phone and TTY lines, plus an increase in XML metadata that personal video recorders, set-top boxes, computers, and VCRs could use to identify accessible programming.
I should point out that we wouldn’t have to go through these contortions if all shows were accessible in the first place.
The U.K. broadcasting industry, through the ITC, published a set of standards based on its existing practices. The industry, and regulators, act as though these standards are sufficient. Yet no testing has been published that proves the efficacy and superiority of the standards; they are merely existing practices given the ITC imprimatur. A rubber stamp, if you will.
The U.K. industry has a history of refusing to update its standards for new technologies. As an example, DVB bitmap captions are usually nothing but teletext captions transcoded into the Tiresias font, which is claimed, on the basis of little evidence, to be more legible for visually-impaired persons. (Captioning viewers are mostly deaf, not low-vision, though there is an overlap.) Since teletext fonts don’t have italics, neither do DVB bitmaps, even though those bitmaps could contain any typography we wished. Hence DVB bitmaps merely look like teletext captions in drag.
Ofcom, in its proposals, makes frequent reference to the ITC standards (§31 in the consultation document; §25 in Appendix B), but those standards aren’t good enough. We require global standards for accessibility that are based on evidence and research and that take into account language, technology, and localization differences. Those standards don’t exist anywhere and are not what the U.K. has now, though the Open & Closed Project intends to create them.
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Response to Ofcom consultation on the draft code on providing television access services
Posted 2004.03.12