Joe Clark: Accessibility | Design | Writing

Second response to CRTC complaint 52181

This document contains Joe Clark’s latest response in the ongoing CRTC complaint Nº 52181. I am switching to an electronic format for easier posting and archiving online.

Respondents to this process are requested to E-mail a text-only or HTML version of previous correspondence for posting. (Not Microsoft Word files, please. Word can directly save in HTML or text; use the Save As command.)

Document history


Response to CHUM Television’s letters

In my original complaint, which was really against Rogers Cable and the Commission itself, the CRTC treated the incidental mention of Global and CITY-TV as full-fledged respondents. CHUM Television provided a response in a two letters dated 2002.06.20 (from Sarah Crawford and Peter Miller, the latter of which was missing page 5).

Simultaneous substitution and audio description

The crux of the matter pertains to the decades-old practice of simultaneous substitution and how it must be modified to permit unaltered carriage of U.S. audio-described programming in Canada.

Everyone recognizes that the long-term solution will require Canadian broadcasters to obtain the description track of the American program prior to simulcast. In that way, the Canadian feed will carry the same audio descriptions as the original U.S. programming (and, in most cases, the same closed captions).

Satellite delivery of description tracks

Audio description of commercial U.S. programming has taken place in notable quantity only since April 2002. There hasn’t been enough time to figure out how to download the required third audio tracks off satellites.

There is some indication that the satellites that Canadian networks use to download the entire program in the first place are different from the satellites U.S. network affiliates use to download the same program in the United States. The satellites used by Canadian broadcasters do not carry the third audio track while the American satellites do.

But there are other ways to obtain the third audio track.

Other delivery methods

After three phone calls and a couple of E-mails, I was able to find out what anyone could have found out had they asked: U.S. description providers are quite willing to supply Canadian broadcasters with the required description tracks if the U.S. network or producer gives permission.

There are two obvious delivery methods:

  1. E-mail the audio track (or upload it to an FTP server for download)
  2. Record it on a tape and FedEx it

Audio tracks are reasonably large files, but everyone in the production chain has broadband Internet access. Spending 20 minutes to download a file seems workable. It would be necessary to use the right digital file type, but that is easily arranged with modern audio software. Overnight delivery is also quite readily imaginable given that the description tracks must be totally ready to go well in advance of actual airdate.

For example, the Media Access Group at WGBH (né the Descriptive Video Service, DVS) is perfectly happy to upload or “overnight” the description tracks they create, according to director Larry Goldberg. But WGBH can do so only if the U.S. network or producer, which owns the description track in the first place, gives permission. To take one example, Canadian broadcasters airing CBS series with description (at time of writing, that means JAG and CSI) should contact Mark Turits, director, captioning, at CBS, to secure permission. (I have his contact details.)

It is not a great leap of the imagination to contact the captioning and/or description coordinators at the other eight affected U.S. networks to make similar requests. (It makes sense to sign agreements with all nine networks; you never know who’s going to supply your programming. The list is: ABC, CBC, NBC, Fox, Lifetime, USA, TNT, TBS, and Nickelodeon. It might be wise to do the same with the other U.S. broadcasters airing description, namely PBS and Turner Classic Movies.)

WGBH is not the only description provider willing to supply description tracks.

The top three U.S. description providers are all willing to furnish description tracks to Canadian broadcasters. In nearly all cases, that will solve the problem wholesale.

What few problems this approach may present are by no means insurmountable:

  1. The American host broadcasters or producers could say no. The response then is to ask why description can’t be shared across the border but captioning can. It is no skin off their teeth to license a third audio track to a partner who already has a license for the full program; how can the Canadian broadcaster air the “full” program without the description track?
  2. There may be costs for uploading or FedExing. Those costs will be small or negligible compared to the original license costs. Canadian broadcasters already have budgets for courier and Internet access.
  3. The description provider may attempt to charge Canadian broadcasters for the track. Under copyright law, the copyright holder has full ownership of the derivative work that is a description track. Emphasize to the provider that the Canadian broadcaster has a license to broadcast the entire program that predates the program’s use of audio description and overrules any attempt to double-bill.
  4. Some description tracks won’t arrive in time. If that happens (likely only when using the FedEx delivery method), then research the reasons why and try to persuade parties involved to alter their production methods so it doesn’t happen again. Occasional lapses may be inevitable.
  5. Timecodes would not match. In my proposed solution, Canadian broadcasters would have to re-stripe the undescribed tape. Any qualified audio engineer can handle this task. The only tricky part would be lining up in and out times of commercial breaks, which is not actually all that tricky.

Canadian broadcasters do not really have a valid reason to claim they are categorically unable to obtain U.S. description tracks. It is perhaps telling that I, an unaffiliated individual who filed a complaint concerning multi-million-dollar broadcasting and distribution entities, found a solution to the problem himself. It will be pointed out that, for policy and logistical research of this sort, my activities as accessibility consultant would usually require a contract and the payment of fees. I’m happy to contribute, but for quite a few reasons it is eyebrow-raising that the complainant must donate a freebie to solve a problem facing an industry and its regulator.

Ultimate delivery method is no reason to delay

It’s possible that the delivery method outlined above may work fine for an indefinite period. Ultimately, all parties might be better off downloading an intact program (main audio and video, captions, and descriptions) off a satellite in quite the same way programming is currently downloaded without descriptions. That may require extended negotiations with U.S. originating broadcasters to persuade them to upload the description track onto the correct satellites.

But neither broadcasters, BDUs, nor the Commission should suggest that we wait until we attain that ideal before doing everything possible to achieve the intended goal, which is matching up the Canadian program feed with the U.S. description track. A viable option to do so that sidesteps the entire satellite question is already on the table.

Description of repeat broadcasts

In some rare cases it may be impossible to obtain the U.S. description track before first airing of a program. Later repeats, however, do not have that problem, since Canadian broadcasters have weeks or months to obtain the third audio track. Postal mail could deliver it in that time.

Accordingly, all Canadian repeat broadcasts of a described U.S. program must carry the descriptions. Note that we’re not even talking about simulcasts here: All Canadian repeat broadcasts are covered.

Failure to substitute U.S. described programs

I have now outlined easy methods that quite likely will solve the entire problem about which I had originally filed a complaint.

Initial remedy proposed remains in place

I had initially proposed a remedy that would require Canadian broadcasters and BDUs to refrain from substituting U.S. programming if the U.S. feed carried a description track and the Canadian feed didn’t.

I still propose that remedy. We need a variety of measures – a set of interlocking safety nets – to ensure that absolutely everything broadcast in the U.S. with descriptions also has descriptions when aired in Canada. Broadcasters must do everything in their power to obtain a description track; failing that, BDUs must not destroy described programming by substituting an undescribed Canadian feed.

Objections to the proposed remedy

I am not persuaded by the central objection to the proposed remedy. Peter Miller, vice-president of planning and regulatory affairs at CHUM, claims:

The economic cost to the broadcasting industry stemming from lost simulcasts, and the resulting audience fragmentation, would be severe. We believe that the Commission should balance the needs of Canadian viewers against the significant economic hardship which would accrue to Canadian broadcasters if simulcast provisions were suspended or revoked. As noted above, the sales practices of television program producers and program distributors will be resolved over a short period of time. In light of the fact that the same issues were resolved in respect of close[d] captioning, CHUM believes that no intervention by the Commission is warranted.

I see a set of faulty premises and a paucity of supporting documentation in this argument.

  1. Neither CHUM nor anyone else offered evidence of “[t]he economic cost to the broadcasting industry stemming from lost simulcasts.” The cost is asserted without proof. I have to assume that a vice-president of planning and regulatory affairs will be fully aware of the Vlug v. CBC case before the Canadian Human Rights Tribunal. Henry Vlug filed a complaint alleging, among other claims, that CBC failed to caption significant portions of its broadcast day. CBC gave the standard automatic response – that captioning the entire broadcast day would, to paraphrase CHUM’s submission in the present complaint, cause significant economic hardship.

    The Tribunal, in its decision, stated that the CBC had failed to provide detailed and credible cost estimates to justify its contention that signon-to-signoff captioning would be too expensive. Excerpts from the decision:

    [106] Thus it appears that, in attempting to calculate the cost of captioning programs in non-peak hours, no effort has been made to identify exactly what percentage of the late-night schedule would, in fact, actually have to be captioned.

    [107] It does not appear that any kind of meaningful attempt has been made to assess the increase in the overhead that would be properly attributable to captioning late-night programming. This must be considered in the light of Mr. [Michael] Harris’ testimony that no one does anything at the CBC without knowing exactly what it costs.

    [108] There is no evidence before me to suggest that it costs the network more to purchase a pre-captioned movie than to purchase a non-captioned one. By purchasing pre-captioned programming, the network would be relieved of the cost of providing the captioning itself. It does not appear, however, from the evidence before me that the CBC currently gives preference to pre-captioned programs in making its purchasing choices.

    [110] The burden in establishing accommodation to the point of undue hardship is on the CBC.... [W]hile excessive cost may justify a refusal to accommodate those with disabilities, the adoption of a respondent’s standard must be supported by convincing evidence. Impressionistic evidence of increased cost will not generally suffice. For the foregoing reasons, I am not persuaded that the CBC has satisfied the burden on it to establish that the costs associated with captioning the remaining television shows in its broadcast schedule would constitute an undue hardship.

    No respondent to the present complaint has provided firm numbers to back up a claim that it would cost too much to refrain from substituting U.S. described programming.

  2. In any event, we are dealing with only a few programs on a couple of stations that happen to be both described on the U.S. feed and simulcast in Canada. I believe the complete list is:

    1. The Simpsons, Malcolm in the Middle, That ’70s Show (Fox and Global)
    2. CSI (CTV and CBS)
    3. JAG (CHCH and CBS)

    Assuming every one of those programs aired without pre-emption, we’re talking about a maximum of 3.5 hours a week of programming spread across a mere two Canadian broadcasters (CanWest Global and CTV).

    It is extreme to contend that a ceiling of 3.5 hours a week of unsubstituted programs constitutes “significant economic hardship which would accrue to Canadian broadcasters.”

  3. In any event, it is the Canadian broadcasters’ responsibility to air the U.S. description track on their own feeds. According to the CRTC’s own license decisions:

    • Decision CRTC 2001-458, Global: “The Commission further expects Global, wherever possible, to acquire and exhibit described versions of the Canadian and non-Canadian programming that its stations broadcast. It notes that some American programs already include descriptions in order to fulfil requirements in this area that are in effect in the United States.”
    • Decision CRTC 2001-457, CTV: “The Commission further expects CTV, wherever possible, to acquire and exhibit described versions of the Canadian and non-Canadian programming that its stations broadcast. It notes that some American programs already include descriptions in order to fulfil requirements in this area that are in effect in the United States.”

    Similar requirements will likely be imposed on other licensees.

    The exception granted by the phrase “wherever possible” clearly refers to technical impossibility or other unavoidable reason and not an unwillingness to spend money.

  4. I would ask all parties to keep in mind that my complaint revolves around the following set of circumstances:

    1. A U.S. program is aired with descriptions on a U.S. network.
    2. That same program is simulcast in Canada.
    3. The Canadian feed lacks the description track.

    Now, if any of those conditions is not met, the remedy I propose does not apply. An undescribed U.S. show; a described U.S. show not simulcast in Canada; or a Canadian feed with the description track is each sufficient to avoid the remedy I seek, namely refraining from substitution.

    When seen in the cold light of day, the 3.5 hours per week of programming that might no longer be simulcast reduces even further; it seems like a ceiling that will rarely actually be reached. Respondents to this complaint are fighting over roughly the same amount of described programming that some broadcasters have already committed to originate and pay for directly by Year 4 of their license terms.

    I have already outlined an easy plan that will enable Canadian broadcasters to obtain U.S. description tracks most or all of the time. That essentially solves the problem. Canadian broadcasters can boast of additional described hours at essentially no dollar cost and can avoid unsubstituted broadcasts. All they need to do is make sure their own simulcasts carry description.

  5. In the unusual remaining cases where all the conditions mentioned above apply, the Commission must indeed “balance the needs of Canadian viewers against [those of] Canadian broadcasters” and decide in viewers’ favour.

    Blind and visually-impaired Canadians have been denied full access to television for the entire lifespan of the medium. Full access still doesn’t exist today. Accessibility for people with disabilities is a right granted in the Charter and trumps inconvenience to Canadian broadcasters or resistance to incidental cash outlay.

    It seems to have been forgotten that broadcasting in Canada is owned by its citizens. Licenses are granted in the public interest. The Broadcasting Act specifically states that “the Canadian broadcasting system, operating primarily in the English and French languages and comprising public, private and community elements, makes use of radio frequencies that are public property and provides, through its programming, a public service” (emphasis added). Note that “provides... a public service” does not mean “exists to maximize corporate earnings.” Maximized corporate earnings are all well and good; I merely urge everyone to accept that audio description is now part of the cost of running a broadcasting business in Canada. Pass-through description costs are, in any event, low compared to costs for original description.

    In another part of CHUM’s submission, Sarah Crawford, vice-president of public affairs at CHUM, points out that “In our recent license-renewal process, we made significant and unequivocal commitments to [audio description].... In fact, even though we are a smaller broadcaster... we made similar commitments.” CHUM has already committed to spend money on audio description – an actual quantifiable on-the-books cash outlay.

    Mr. Miller warns of unspecified and nebulous “significant economic hardship” caused by refraining from substitution. Such a cost is quite obviously unquantifiable or Mr. Miller would already have quantified it. In any event, if affected Canadian broadcasters, including CHUM, are willing to spend money on original Canadian description, they surely must be willing to incur expenses on passed-through U.S. description. One possible expense is an alleged reduced audience on an unsubstituted telecast.

  6. It’s doubtful the audience is really reduced (or “fragmented”) in any case. A viewer can watch only one channel at a time. To show “significant economic hardship,” CHUM and other parties would have to prove that more viewers watch an unsubstituted U.S. program on the original U.S. channel than on the Canadian channel. And in any event, we’re talking about blind viewers here. What incentive do they have to watch undescribed shows? The answer is “less incentive than watching described shows.” If blind viewers know description is available, they’ll watch that feed. If the Canadian feed doesn’t have descriptions, it loses out to a described U.S. feed anyway for this target group.

    If Canadian broadcasters want to attract the blind audience, then run the U.S. show with description. If not, those viewers cannot be considered lost or “fragmented” because they wouldn’t watch the Canadian feed anyway. You can’t count as lost what you never would have had in the first place.

  7. Two broadcasters with description requirements, CTV and Global, testified in their license-renewal hearings that they make a profit on closed captioning. Profits of this sort are not even used to increase quantity and quality of closed captioning, though they certainly should be. A case could further be made that these broadcasters are already making enough money off captioning to offset any “economic hardship” brought about by simulcasting description on U.S. programs for which they have already bought the rights. Allocating caption profits to both captioning and description seems reasonable; captioning and description both reside under the big tent of accessibility.

    Canadian broadcasters are in an enormously advantageous position: U.S. broadcasters produce and air the shows, at great expense, then pay for captioning and description, at modest expense; Canadian networks pay relatively low license fees and get captions for free (in nearly all cases) and descriptions for next to nothing. These negligible costs can, in two known cases, be deducted from the broadcasters’ existing captioning profits.

    If captioning and description really are full and necessary parts of a television broadcast, it is time to stop complaining about having to pay for them – particularly when the U.S. description tracks in the present discussion can be provided essentially free.

  8. When it comes to audio description, Canadian broadcasters, whether public or for-profit, have enjoyed an almost uninterrupted free ride since 1988. PBS began airing regularly-scheduled described programs in that year, proving once and for all that it could be done. This is another case where it would not have required a great leap of imagination to conclude that eventually other broadcasters would air described programs, either voluntarily or (inevitably) because a regulator orders it.

    A few hours of described programming had aired here and there on Canadian TV before 2001. (Currently, Global and CHCH put out more described programming every two weeks than had ever aired on Canadian TV before the CTV/Global license requirements.) Broadcasters have saved enormous sums of money by refusing to air described programming and by avoiding regulatory requirement.

    It’s payback time. Blind and visually-impaired viewers are not less important than deaf and hard-of-hearing viewers, nor are they more important, nor are any of those groups more or less important than nondisabled viewers. It costs broadcasters to air described programming. But only original Canadian described shows carry a genuinely quantifiable cost, one that broadcasters are already embracing. Frankly, any other costs for pass-through description, even those incurred by unspecified “fragmented” audience from an unsubstituted feed, must be negligible.

  9. Mr. Miller’s claim that this will all be put to rest the way the issue of captioning and substitution was put to rest is overly optimistic and revisionist; it lets broadcasters and the Commission off the hook for their lack of forward planning. I specifically remember the original case of captions being destroyed by Canadian simultaneous substitution (the U.S. miniseries Shogun, 1981). NCI did the captioning at the time, and I phoned NCI up to talk about it. I followed the news reports. Yes, it was all settled eventually, but then as now, accessible programming was destroyed by substitution.

  10. The hard fact remains that everyone in the Canadian broadcasting sphere should have realized that description requirements were inevitable and that U.S. requirements would affect simultaneous substitution in Canada. I am sure everyone in the business was aware of the FCC’s issuance of its notice of proposed rulemaking on November 18, 1999. Rules were adopted July 21, 2000.

    Now, the U.S. requirements took effect later than Canadian requirements (April 2002 in the U.S., September 2001 in Canada). That merely emphasizes the point that Canadian broadcasters knew description was coming down the pike. Broadcasters, BDUs, and the Commission had nearly 21 months (July 2000 to April 2002) to figure out a way to provide unimpeded passage of described American programming in Canada.

    The Commission, in particular, has been remiss in its role as regulator, failing to learn the lessons of history that Mr. Miller and I would later need to point out in a complaint proceeding. Captioning was destroyed by substitution 20 years ago, and description is being destroyed the same way now.

    The Commission could have talked this over with broadcasters, viewers, and interested parties well over a year ago. It might be optimistic to say that everything would have worked perfectly once April 2002 rolled around and U.S. broadcasters began airing described shows in great number, but at least we would have had a system in place. The result has been four months of interrupted accessibility in the Canadian broadcasting system.

    I personally had notified the CRTC of this issue well before filing the present complaint. I spoke with and E-mailed Denis Carmel in November 2001 when Fox planned to air Star Wars: Episode I with description. The Commission has failed to keep abreast of a significant regulatory issue even after its staff is specifically notified.

Regulatory action is manifestly required

I reiterate my original proposed remedy: When a U.S. program is scheduled for simulcast on a Canadian network and the U.S. feed carries description but the Canadian feed does not, simultaneous substitution must be prohibited by policy. Such an action is clearly “in the public interest.” Nor should individual advance waivers be necessary. I urge the Commission to do what should have been done up to 21 months ago: Issue the order I originally sought.

I ask that the respondents; the broadcasters treated as respondents by the Commission; and the Commission itself acknowledge that a viable plan of action has been proposed that will cost a certain negligible amout of money, but very little in comparison to the amount already pledged for original Canadian description, and that will, moreover, solve the problem of simulcast described U.S. programming most or all of the time. When it is genuinely impossible for a Canadian broadcaster to obtain the U.S. description track, BDUs would simply refrain from substituting.

Question of public interest

§30(5) of the Broadcasting Distribution Regulation, at dispute in the present proceeding, states:

A licensee shall not delete the programming service of a television station... if the Commission notifies the licensee that the deletion is not in the public interest because... the programming service to be deleted contains subsidiary signals designed to inform or entertain and the programming service to be substituted does not contain similar signals.

Respondents have made no convicing case that the public interest would be served from refraining from substitution. In fact, their actions in supporting original Canadian description, with its attendant real dollar cost, prove unequivocally that description provision is in the public interest. The fact that the regulator forces broadcasters to air described programming settles the question of public interest.

It would be inconsistent, and contrary to common sense and principles of natural justice, to require broadcasters to originate description but exempt broadcasters and BDUs from passing through description that is bought and paid for by foreign broadcasters.


The remedy sought is manifestly in the public interest. I have, of my own accord, essentially solved respondents’ problems for them, itemizing a list of actions that could prevent the requested refrained substitution from even occurring most of the time. Accordingly, the Commission should delay no further before issuing the order originally requested.

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Simultaneous substitution of U.S. described programming → Second response

Originally filed 2002.07.26 ¶ Updated 2002.07.26

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