Closed Captioning Inquiry Issues Paper (1998)

Closed Captioning Inquiry Issues Paper

Comments in response to this Issues Paper are requested by 9 December 1998.

Where possible, submissions are requested in electronic format to enable the Commission to make them available on its World Wide Web site.

After considering comments on this Issues Paper, the Commission may conduct a public forum or meetings to discuss issues further before deciding what recommendations to make.

Contents

1. Introduction
1.1 This inquiry
1.2 Submissions
1.3 Issues raised by submissions

2. Legislative requirements for captioning
2.1 Captioning and discrimination under the DDA
2.2 Regulatory neutrality issues
2.3 Television Broadcasting Services (Digital Conversion) Act and the DDA
2.4 Australian Broadcasting Authority powers: Broadcasting Services Act
2.5 Captioning for the Deaf and Hard of Hearing Bill
2.6 Relevance of overseas requirements
2.6.1 Canadian licence conditions
2.6.2 United Kingdom requirements
2.6.3 United States Federal Communications Commission regulations

3. Extent of use of and need for captioning
3.1 Relevance to complaint handling
3.2 Relevance to exemption applications
3.3 Information on demand and priorities
3.4 Relationship of DDA to priorities set out in digital conversion legislation
3.5 Priority for children's television

4. Extent of captioning currently provided

5. Plans or commitments to increase the level of captioning

6. Constraints on captioning
6.1 Financial constraints
6.2 Constraints regarding particular classes of material
6.2.1 News
6.2.1.1 Alternative approaches to news captioning
6.2.2 Regional news
6.2.3 Sport
6.2.4 Other live programming
6.2.5 Non-English language programming
6.2.6 Children's material
6.2.7 Music programming

7. Relevance of developments in digital technology

8. Standards for quality of captioning and "pass through" of existing captions

9. Responsibilities of producers of program material

10. Captioning of advertisements
10.1 Commonwealth Government advertising
10.2 State and Territory government advertising
10.3 Commercial advertising

11. Issues regarding television receivers with capacity to decode captions

12. Whether the Commission ought to extend its inquiry

13. Actions which the Commission should take or recommend
13.1 No specific action
13.2 Self regulation
13.3 Market based instruments
13.4 Standards
13.5 Exemption mechanism

14. Summary of issues for discussion

1. Introduction

Closed captioning is an assistive technology designed to provide access to television for persons with hearing disabilities. Closed captioning is similar to subtitles in that it displays the audio portion of a television signal as printed words on the television screen. To assist viewers with hearing disabilities, captions may also identify speakers, sound effects, music and laughter. Unlike subtitles, however, closed captioning is hidden as encoded data transmitted within the television signal. To view the closed captioning, a viewer must use a set-top decoder or a television receiver with built in decoder circuitry. (US Federal Communications Commission, Closed Captioning and Video Description: Report and Order, August 7, 1997)

The Disability Discrimination Act (section 24) makes discrimination unlawful in the provision of services. It specifically includes services related to entertainment and services of a kind provided by government. Section 24 of the DDA clearly applies to discrimination affecting television services, including programs and advertising.

In addition, the television services of the Australian Broadcasting Corporation and the Special Broadcasting Service, as well as Commonwealth Government television advertising, are covered by section 29 of the DDA, which makes discrimination unlawful in the administration of Commonwealth programs.

Discrimination for this purpose includes

• direct discrimination (treating persons less favourably because of disability) and
• indirect discrimination (imposing an unreasonable condition or requirement which a person with a disability cannot comply with and with which a substantially smaller proportion of persons with that disability are able to comply with than persons without the disability).

Captioning can be included in television material. In fact television services do include some captioned material. The transmission of programs without captioning therefore appears highly likely to involve imposing a condition or requirement, rather than being an inherent part of the nature of the service concerned. The condition is that a person be able to hear for the person to be able to have access to the service on an equal basis. (As noted below, one submission, on behalf of the ABC, argues that no condition or requirement beyond the inherent nature of the service is in fact involved in lack of captioning. This argument is discussed further below.)

Clearly, people who are deaf or have a hearing impairment are substantially less able to comply with such a condition compared to people who do not have a hearing impairment.

Such a condition or requirement would be discriminatory and thus liable to be found unlawful under the DDA except where

• lack of captioning is reasonable in the circumstances or
• in the case of non-Commonwealth providers, it can be shown that provision of non-discriminatory service would involve unjustifiable hardship or
• an exemption under section 55 of the DDA has been applied for by or on behalf of the provider concerned and has been granted by HREOC.

1.1 This inquiry

On 27 July 1998 the Acting Disability Discrimination Commissioner commenced circulating the following Notice of Inquiry to television stations and a range of disability organisations and other interested parties.

Notice of inquiry: Closed captioning of TV material

The Human Rights and Equal Opportunity Commission is inquiring into access to closed captioning of television broadcast and cable program services in Australia. Broadcast and cable television services are services covered by the Disability Discrimination Act. They are required to be equally accessible to people with a disability, including people who are deaf or have a hearing impairment, except to the extent that this would impose unjustifiable hardship. This inquiry is intended to inform the Commission in performing its functions under the Act, including

• investigation and conciliation of complaints which may be made
• consideration of applications for temporary exemption
• promotion of awareness and understanding of and compliance with the Act
• publication of guidelines for avoiding discrimination, and
• recommending legislative or other measures by government

Submissions are invited on issues which the Commission ought to consider in this or related areas, including

• the extent of captioning currently provided
• any technical, financial or other constraints on captioning, generally or regarding particular classes of material
• relevance of developments in digital technology
• any plans or commitments for increasing the level of captioning provided, prior to and following conversion to digital transmission
• any issues regarding availability and pricing of television receivers with capacity to decode captions
• the relationship to existing obligations under the Disability Discrimination Act of current legislative proposals in the Television Broadcasting Services (Digital Conversion) Bill and the Captioning for the Deaf and Hard of Hearing Bill
• relevance of overseas requirements in this area including the United StatesClosed Captioning Rules
• actions which the Commission should take or recommend to government, Parliament or relevant regulatory agencies
• whether the Commission ought to extend its inquiry to include captioning of videos for rental, sale or other distribution.

The Commission intends to make submissions available on its Internet site and, after considering initial submissions, to produce an issues paper for public comment in a second stage of the inquiry.

This was followed by a press release and advertisement in the first week of August 1998.

1.2 Submissions

Submissions have been received from the following individuals and organisations:

• Victorian Council of the Deaf
• Parents of Hearing Impaired Children National Network
• Individual submission: Mr D.Bradley
• Department of Communications and the Arts
• Deafness Forum
• NBN Television
• SBS
• National Working Party on Captioning (NWPC)
• Australian Caption Centre (ACC)
• Federation of Australian Commercial Television Stations (FACTS)
• ABC Television
• Individual submission: Mrs A.Fitzsimmons
• Cairns Community Legal Centre

Most submissions were provided electronically, enabling the Commission to make them available for viewing or downloading in the disability rights section of the Commission's Internet site, www.hreoc.gov.au . The Commission thanks organisations and individuals concerned for assisting in making a range of perspectives and information available on this issue, rather than the public having direct access only to the Commission's own views and interpretation. The Commission is not responsible for the accuracy of views and information presented in submissions.

1.3 Issues raised by submissions

Submissions provided considerable helpful information and argument on the issues identified in the Notice of Inquiry. Additional issues raised were:

• extent of use of and need for closed captioning in Australia
• captioning of advertisements
• responsibilities of producers of program material
• issues of regulatory neutrality as between free to air and subscription television and as between commercial and non-commercial broadcast television
• whether lack of captioning is covered by the concept of indirect discrimination in the DDA
• technical standards issues for television captioning
• technical standards for video captioning
• adequacy of information regarding captioned programming.

Comments on the issues referred to in the Notice of Inquiry, and additional issues, are discussed below.

2. Legislative requirements for captioning

2.1 Captioning and discrimination under the DDA

The National Working Party on Captioning submission argues that a limited level of captioning

means that people with a hearing disability are treated less favourably than those without.

It is clear, however, from a number of court decisions (most recently Commonwealth of Australia v Humphries Federal Court, 25 August 1998) that the concept of less favourable treatment and thus of direct discrimination under the DDA only applies where a person is subjected to treatment which is different and less favourable because of disability. It does not apply where the same treatment is applied to persons with and without a disability which is less favourable in its impact on people with a disability. In the Commission's view lack of captioning does not constitute less favourable treatment or direct discrimination under the DDA, because the same signal is transmitted to all viewers of a television service.

The Commission's view is that indirect discrimination is the applicable concept of discrimination to be considered in this area.

The submissions of the Parents of Hearing Impaired Children National Network, the Victorian Council of the Deaf and the National Working Party on Captioning argue that current limits on captioning are discriminatory.

ABC Television's submission argues:

In considering the provision of closed captioning, there is the threshold issue of whether there is any relevant "requirement or condition" beyond what is necessarily inherent in the ABC's television service. The High Court's decision in Waters & Ors v Public Transport Corporation (1991) EOC 92 - 390 would appear to lend support to the ABC's proposition that there is none. If not, no question of indirect discrimination will arise.

The validity of this argument, if raised in response to a complaint, would need to be determined in the circumstances of that complaint. Decided cases to date under the DDA and equivalent State legislation indicate that lack of accessibility features in a service will not necessarily be accepted as the result of inherent features of that service.

In the Waters case itself the High Court emphasised that whether a requirement or condition has been imposed is a question of fact in each case. Chief Justice Mason and Justice Gaudron noted that

the notion of "requirement or condition" would seem to involve something over and above that which is necessarily inherent in the goods or services provided.

They went on to state that

it was open to [the Victorian Equal Opportunity Board] to find, as in effect it did, that the removal of conductors from some trams involved the imposition of a condition that the complainants could fully avail themselves of the tram service only if they could use trams without the assistance of conductors. And a condition of that nature falls within the ordinary conception of "requirement or condition" and, thus, falls within [the indirect discrimination provision of the Victorian Equal Opportunity Act].

Justices Dawson and Toohey similarly commented:

Nor do we think that it unduly strains the language of [the Victorian Equal Opportunity Act] to say that the withdrawal of conductors from trams imposed a requirement or condition that passengers travel on trams without the assistance of a conductor. The Board so found and we think it was open to it to make those findings.

The respondent, however, contended that the service provided by it was driver-only trams and that there was, therefore, no relevant requirement or condition imposed with respect to the use of that service. It is true that for something to be a requirement or condition in relation to a matter it must be separate from that matter. However, whether such a requirement or condition is in fact separate from the matter to which it relates will clearly depend upon how the matter is described and how the requirement or condition is characterized. Given that the legislation should receive a generous construction, we do not think that the respondent can evade the implications of [the Act] by defining the service which it provides so as to incorporate as part of that service what would otherwise be a requirement or condition of the provision of that service.

Justice McHugh stated:

In the context of providing goods or services, a person should be regarded as imposing a requirement or condition when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed.

This analysis appears to offer strong support for the view that transmission of television material without captioning involves the imposition of a condition or requirement of being able to understand or enjoy such material without captions, rather than being required to be accepted as an inherent part of the services concerned.

In Scott v Telstra the respondent had argued that it was not discriminating by refusing to supply telephone typewriters (TTYs) rather than standard telephone handsets to deaf customers. It argued that TTYs were not part of the service it provided and hence failure to supply them did not involve imposition of any condition or requirement. The President of the Commission, Sir Ronald Wilson, rejected this argument. After referring to the tests set out by the High Court in the Waters case, he said:

In my opinion, the services provided by the respondent are the provision of access to a telecommunications service. It is unreal for the respondent to say that the services are the provision of the products (that is the network, telephone line and T200) it supplies, rather than the purpose for which the products are supplied, that is, communication over the network. The services are that which enables communication over the network to take place. The emphasis in the objects of the Telecommunications Act (s.3(a)(ii)) on the telephone service being "reasonably accessible to all people in Australia" must be taken to include people with a profound hearing disability. I think there is merit in the argument advanced for the complainants that by adopting a limited artificial definition of the services it provides, the respondent has defined the services so as to exclude the alleged discriminatory conduct.

These comments support the view that provision of television services without captioning involves imposition of a condition or requirement and thus is capable of constituting indirect discrimination (subject to issues of reasonableness, and to issues of unjustifiable hardship where applicable).

In the case of the ABC, the Charter set out in section 6 of the Australian Broadcasting Corporation Act 1983 states:

(1) The functions of the Corporation are:

(a) to provide within Australia innovative and comprehensive broadcasting services of a high standard as part of the Australian broadcasting system consisting of national, commercial and public sectors and, without limiting the generality of the foregoing, to provide:

(i) broadcasting programs that contribute to a sense of national identity and inform and entertain, and reflect the cultural diversity of, the Australian community ...

In the Commission's view, reference to "the Australian community" means the community as it exists in fact, including people who are deaf or have a hearing impairment, rather than a community artificially defined as excluding people with a disability.

2.2 Regulatory neutrality issues

"Our rules apply evenhandedly to all video programming providers ... In this manner, we maintain competition among video programming distributors regardless of the technologies used ...": US Federal Communications Commission

FACTS' submission states:

The obligations in the Television Broadcasting Services (Digital Conversion) Act 1998 and the Captioning for the Deaf and Hearing Impaired Bill 1998 apply exclusively to free-to-air broadcasters.

FACTS finds this exclusion irrational and discriminatory. In the US, legislative or regulatory requirements are directed at both free-to-air and subscription services, as they should be in Australia.

FACTS asks that the Commission

recognise that the efforts of commercial television to caption its programming is not matched by other media, particularly Pay services, and recommend that the regulatory requirements applicable to free-to-air services also apply to Pay services.

FACTS also notes that

While the Federal Government has offered direct assistance in the sum of $7 million to the national broadcasters [for captioning purposes], it has offered no assistance to the commercial broadcasters notwithstanding the fact that commercial broadcasters contribute some $180 million per annum to consolidated revenue by way of licence fees.

The Australian Captioning Centre submits:

Most programming contained on FOXTEL and OPTUS originates from the United States or the United Kingdom. Both of these countries have legislation requiring provision of captioning. Equipment for transmission of captions also is purchased from these countries. It is therefore reasonable to assume that subscription services in Australia can provide similar levels of access to cable television that Americans and the English enjoy, given that existing caption files could be purchased and converted cost-effectively.

This submission recommends that

FOXTEL and OPTUS VISION implement an action plan to introduce captioned services including measurable increases.

While other areas of television regulation apply differentially on the basis of technology used or the class of television provider concerned, the DDA applies to all classes of broadcaster and all means of television transmission. However, decisions regarding reasonableness of limits on captioning, or unjustifiable hardship in achieving equal access in this area, would permit and require consideration of any objective differences in relevant circumstances between different providers.

By contrast with other applicable laws and regulatory arrangements, the DDA may in fact impose more demanding requirements on public broadcasters. As previously noted, the ABC and SBS do not have the benefit of an unjustifiable hardship defence under section 29 of the DDA. However, issues of resource and other constraints as well as benefits and demand regarding closed captioning by these providers would be able to be taken into account in considering what is "reasonable" for indirect discrimination purposes. Limits on the ability of public broadcasters to receive advertising or sponsorship revenue, and the position of different providers regarding tax deductibility of captioning expenditures, could also be relevant.

In the "Digital Broadcasting: Q & A" information provided by theDepartment of Communications and the Arts on its internet site the following comment is made on the captioning requirements in the digital conversion legislation:

The Government considers that the provision of closed captioning for prime time broadcasts is a reasonable demand given that [Free To Air broadcasters] are being 'loaned' free spectrum.

The free provision or "loan" of a public resource (broadcasting spectrum) would clearly also be relevant to any claims of unjustifiable hardship by broadcasters under the DDA in this area, along with transition costs to digital transmission and other issues indicated by government as the basis for the temporary free provision of spectrum to existing broadcasters.

(Material from the Australian Subscription Television and Radio Association is also likely to be relevant in this area when received.)

Issues for discussion:

• What if any recommendations should the Commission make about application of regulatory regimes other than the DDA to different classes of television service provider?
• In what if any respects are non-broadcast television services different from broadcast regarding possible and required captioning?
• What weight should be given in decisions under the DDA to the provision of public financial resources to the ABC and SBS, which are not available to other television service providers?
• What weight should be given in decisions under the DDA to the digital conversion arrangements for free "loan" to existing broadcasters of public resources by way of broadcasting spectrum?

2.3 Television Broadcasting Services (Digital Conversion) Act and the DDA

Reference in the Commission's Notice of Inquiry to the Television Broadcasting Services (Digital Conversion) Bill now needs to be read as reference to the Television Broadcasting Services (Digital Conversion) Act (no.99 of 1998). This Act includes the following provision (in Schedule 4 - Digital Television Broadcasting):

 

38. Captioning standards

(1) The regulations must determine standards that are to be observed by:

(a) holders of commercial television broadcasting licenses; and
(b) national broadcasters;

in relation to the captioning of television programs for the deaf and hearing impaired.

(2) Standards under subclause (1) must require licensees and national broadcasters to meet specified goals or targets in relation to the extent to which television programs, or specified kinds of television programs, are captioned for the deaf and hearing impaired.

(3) Subclause (2) does not limit subclause (1).

(4) Standards under subclause (1) must be directed towards ensuring the achievement of the following objectives:

(a) the objective that, as far as is practicable:

(i) holders of commercial television broadcasting licences; and
(ii) national broadcasters;

should provide a captioning service for television programs transmitted during prime viewing hours;

(b) the objective that, as far as is practicable:

(i) holders of commercial television broadcasting licences; and
(ii) national broadcasters;

should provide a captioning service for television news programs, and television current affairs programs, transmitted outside prime viewing hours.

(5) For the purposes of subclause (4), prime viewing hours are the hours:

(a) beginning at 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and

(b) ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

(6) Standards under subclause (1) do not apply to a particular licensee or national broadcaster before the first occasion on or after 1 January 2001 on which the licensee or broadcaster broadcasts television programs in digital mode.

(7) A national broadcaster must comply with a standard under subclause (1).

(8) In this clause:

program does not include advertising or sponsorship matter (whether or not of a commercial kind).

The digital conversion legislation provides for setting minimum standards. It does not in the Commission's view displace the requirements of the DDA in this area. DDA requirements, although less specific, appear broader in the issues and the services that they apply to.

• The DDA applies now (and has applied since March 1993) whereas obligations under the digital conversion legislation will apply only after 1 January 2001 and after a broadcaster has commenced digital transmission, although from that point those obligations apply to a broadcaster's analogue services as well.
• The DDA applies to all Australian television services whereas the digital conversion legislation only applies to commercial and national broadcast television.
• Standards under the digital conversion legislation as it presently exists will only be able to be directed to the objects set out, dealing with news, current affairs and prime time programming. They would not be able to deal with non-prime time programming in areas such as sport, children's television, educational programming, movies, music videos or other entertainment. These other areas, however, are covered by the DDA.
• Standards under the digital conversion legislation will not be able to require captioning of advertisements, whereas the DDA would appear to apply to this issue.

These standards have not yet been issued. The Department of Communications and the Arts submission advises:Provisions in the Digital Conversion Act relating to captioning (and other) standards will not come into effect until a date to be fixed by Proclamation, following a resolution by both Houses of Parliament.

This will follow the completion of a review into whether any changes should be made to the proposed standards. This review is to be undertaken by 1 January 2000.

Some of the main issues that this review may look at are whether:

• the level of captioning required at the introduction of digital services should be increased above levels currently prescribed in the digital Act;
• mandated captioning levels should be increased over time;
• certain types of programs should be exempted from the captioning requirements; and
• format standards for captioning should be included in the legislation.

FACTS' submission recommends that the Commissionin relation to the captioning requirements of the Television Broadcasting Services (Digital Conversion) Act 1998, recognise that FACTS is working with the Government and the Department to arrive at achievable standards because

• it is not practicable to require commercial television to caption news and current affairs outside of prime time;
• for metropolitan stations, requirements to caption news and current affairs in prime time must be phased in;
• for regional stations, it is not practicable to caption news and current affairs in or out of prime time;
• captioning requirements are not practicable for live sport and some other live programming in prime time ...

Issues for discussion:

• What account should the Commission take of captioning requirements under the digital conversion legislation in its complaint handling and other functions?
• How should the review to be conducted by the Department of Communications and the Arts take the application of the DDA into account?
• What levels and standards of captioning are required and achievable to meet the requirements of the DDA prior to the commencement of digital broadcasting?
• In interpreting and applying the DDA, and in making recommendations, should the Commission give priority to news, current affairs and prime time programming, as with the digital conversion legislation, or to other program types? Or should the US FCC approach be followed, which sets overall quotas and leaves the mix of programming captioned to stations and the market?
• Are there difficulties in captioning programming which is not prime time or news or current affairs such that captioning this material would involve unjustifiable hardship under the DDA?
• Do these difficulties apply generally, or to particular television stations or particular classes of program?
• Do any difficulties in captioning mean that particular classes of program need not be captioned at all, or do they only limit the amount of captioning which should be regarded as required?

2.4 Australian Broadcasting Authority powers: Broadcasting Services Act

The Department of Communications and the Arts (DOCA) submission points out that

[the] Broadcasting Services Act 1992 provides for self-regulatory codes of practice to be developed by each broadcasting industry sector and registered with the ABA. Failure to comply with a code of practice is not a breach of the BSA. However, the ABA may impose a licence condition requiring compliance with a code. This is likely to occur in a case of repeated or flagrant breaches of a code. The ABA may also determine program standards where codes of practice have failed or where no codes exist. The BSA currently provides that one of the matters to which a code of practice for any licensed broadcaster may relate is captioning for the hearing impaired.

In line with the self-regulatory arrangements contained in the BSA, the Federation of Australian Commercial Television Stations (FACTS) developed a Code of Practice in 1993 relating to the captioning of programs for the deaf and hearing impaired. Section 1: 1.11 of this Code requires FACTS' members to endeavour to increase the amount of closed captioned programming in consultation with organisations representing hearing-impaired and deaf viewers.

DOCA notes that a revised FACTS Code of Practice is due for release for consultation shortly and that a final draft of a subscription television broadcasting code is currently with the ABA for assessment and registration.

The Broadcasting Services Act provides in section 43 that the Australian Broadcasting Authority may impose an additional condition on the licence of a commercial broadcaster. Licencees are required to be given notice of a proposed change and a reasonable opportunity to make representations to the Authority. Section 44 provides that conditions must be relevant to the broadcasting services to which those licences relate but it does not otherwise restrict the matters to which conditions may relate. Similar provisions are made by sections 87 and 88 regarding community broadcasting licences and sections 99 and 100 regarding subscription television licences.

Issues for discussion:

• Should the Australian Broadcasting Authority regulate captioning on commercial broadcast television under its existing powers?
• Could broadcasting industry codes on captioning contain more specific requirements?
• Should the Australian Broadcasting Authority regulate captioning on subscription television under its existing powers?
• What regulatory provisions other than the DDA and the digital conversion legislation apply or could apply to captioning of the national broadcast television services of the ABC and SBS?

2.5 Captioning for the Deaf and Hard of Hearing Bill

The Australian Captioning Centre's submission sets out the provisions of Senator Stott-Despoja's Captioning for the Deaf and Hard of Hearing Bill 1998. This Bill would amend the Broadcasting Services Act 1992 to require the ABC and SBS to ensure that captions are applied to

• all prime time programs on or after 1 July 2000 and that starts at 6.00 pm and before 10.30 pm
• each news and current affairs television program the service broadcasts on or after 1 July 2000 and
• all programs on or after 1 July 2010

and to apply the same conditions to each commercial television broadcasting license.

It would also amend the DDA as follows:

1. After Subsection 24 (1)
Insert:
(1A) For the purposes of paragraph (1)(b), a person is taken to discriminate against another person who has a hearing disability on the ground of the other person's disability if, on or after 1 July 1999, the person sells to the other person or makes available for sale or hire to the other person a new video that does not include captions for the deaf or hard of hearing.
(1B) For the purposes of paragraph (1)(b), a person is also taken to discriminate against another person who has a hearing disability on the ground of the other person's disability if, on or after 1 July 2002, the person sells to the other person or makes available for sale or hire to the other person a television set that is not able to decode teletext.

This Bill differs from the digital conversion legislation in several key respects. The Bill would

• apply requirements directly rather than providing for requirements to be imposed by regulation
• impose absolute requirements for captioning rather than providing for obligations to extend only as far as practicable (or subject to an unjustifiable hardship limitation as with the DDA)
• apply captioning requirements to news and prime time programming from 1 July 2000 rather than 1 January 2001
• apply to all broadcast television programs - from 2010 - rather than being restricted to news and current affairs programs
• require accessibility of new videos for sale or hire - from July 1999- and require decoder capacity for all televisions sold or hired from July 2002.

The Commission received limited comment on this Bill. Further comment would be welcome.

The submission of the Parents of Hearing Impaired Children National Network comments that

The Captioning for the Deaf and Hard of Hearing Bill addresses a timetable to some degree, but we see merit in the USA model which introduced a timetable for total captioning within 8 years. The PRODUCERS of all new programs that are created must be responsible for seeing that these programs are fully accessible by the year 2006. This covers productions for every program for Free to Air Television, Cable TV, Videos, the Internet etc.

Submissions from FACTS and ABC TV recommend amendment to this Bill to allow for issues of practicability or unjustifiable hardship.

Issues regarding captioning requirements for news and prime time programming are discussed throughout this Issues Paper.

Issues regarding decoder capacity in television receivers are discussed separately elsewhere in this Issues Paper.

2.6 Relevance of overseas requirements

Several submissions point out that regulatory requirements applying overseas cannot automatically be considered applicable in Australia and that the Australian television industry operates in distinctive circumstances.

FACTS' submission notes that

Simply because amounts captioned overseas are proportionally higher than in Australia is not a rationale for imposing unreasonable burdens on Australian broadcasters. The relative cost of captioning is much higher in Australia than the UK or the US because of a much smaller population, and this is an important factor in assessing progress to date. ...

Simply because the US and the UK are ahead of Australia in proportions of programs captioned is not a reason in favour of impractical and unduly onerous requirements being imposed on broadcasters in Australia.

Obligations in the Australian context must be based on current levels of captioning in Australia. They must be increased in a measured and practical way, and in a way that does not result in an unfair burden on broadcasters at a time of great financial pressure on them given the legislative obligations of digital transition.

The Department of Communications and the Arts has also noted in discussions with the Commission that distinctive circumstances of the Australian television industry need to be taken into account.

Clearly, the DDA has to be interpreted and applied in Australian circumstances rather than on the basis of financial, market or other circumstances of television overseas. This does not mean that current levels of captioning in Australia must necessarily be accepted as satisfying current obligations under the DDA. Whether they would be so accepted in the context of a complaint would depend on evidence regarding costs, difficulties, resources available and benefits.

Submissions present some information on distinctive Australian industry circumstances.

In relation to news bulletins, the Australian Captioning Centre states:

Australia is unique in that with the exception of the SBS, none of the networks has a single national prime time bulletin. Instead, each capital city produces a separate bulletin with a degree of autonomy. While there is an argument that this makes news captioning in Australia more expensive than in countries with truly national bulletins, it must be noted that stations within a network will share a significant amount of material between their member stations. Consequently, cost-effective national networks of captioning facilities may share caption files in the same way that news stories are shared, ensuring that work is not duplicated. Experience has indicated that on average more than half of any capital city's news bulletin contains material that was shown in another capital city's bulletin.

Difficulties presented by population and industry structure appear most significant regarding regional and local programming.

The Australian Caption Centre's submission continues:

Rural areas pose a different problem, in that budgets to produce local news bulletins are significantly lower than the main networks in the capital cities. These situations should be looked at on a case-by-case basis. While the Australian Caption Centre would not condone complete exemption from captioning for a regional station (especially given that there is a high incidence of impaired hearing among older males living in rural areas), there may be scope for relaxing captioning standards in these situations so that a service matched to affordability is achieved. The Australian Caption Centre is planning surveys of regional television news services in the coming months to obtain a more accurate picture of the challenges of captioning these bulletins.

FACTS notes that

The smallest UK commercial market is at least 20 times the size of small regional markets here.

Bearing in mind these comments on differences in national circumstances, some discussion of overseas requirements nonetheless appears relevant.

2.6.1 Canadian licence conditions

The standards able to be made under Australia's Television Broadcasting Services (Digital Conversion) Act may be contrasted with the requirements which have been included in licence conditions set since 1995 in Canada by the Canadian Radio and Television Commission, the Canadian equivalent of the Australian Broadcasting Authority. These requirements were not referred to in submissions but are available through the search facility on the Canadian Commission's Internet site.

In its Public Notice CRTC 1995-48 (24 March 1995) the Canadian Radio and Television Commission stated:

While acknowledging the substantial commitments for captioning made by most licensees for the new licence term, the Commission supports the arguments of the interveners that most broadcasters now have sufficient resources to provide full programming services to the deaf and hard of hearing. The cost of captioning has decreased significantly over the last seven years and will no doubt continue to decline as more captioning suppliers enter the market. In addition, the growing trend toward corporate sponsorship of closed captioning has helped broadcasters offset the cost of captioning. Accordingly, the Commission considers that all television licensees should be able to achieve the goal of providing captioning for most of their programming by the end of the next seven years.

At the same time, the Commission acknowledges the arguments put forth by certain licensees that to require 100% captioning at all times would not be reasonable due to unforeseen circumstances, such as late delivery of captions, technical malfunctions or the lack of the availability of captions for programs acquired outside North America. The Commission also notes that captioning may not be appropriate for some types of programming such as pre-school programming or ethnic programming in languages other than English or French. In the Commission's view, a minimum of 90% captioning is a realistic target that the larger broadcasters should be required to achieve by the end of their seven-year licence terms.

As for news programming, the Commission is aware of the importance of this programming to deaf and hard-of-hearing viewers. Moreover, the Commission is sympathetic to the continued frustration experienced by deaf and hard-of-hearing viewers who have been denied access to live reports on critical news events. Having discussed with broadcasters, captioning providers, and interest groups the various costs of captioning technology, the Commission notes that real-time captioning of live programming, which is considered by deaf and hard-of-hearing viewers to be far preferable to live display captioning, is no longer cost-prohibitive and will continue to decrease in cost over the next few years. Further, new technologies that will facilitate the captioning of live programming, such as voice recognition, are now being developed and will be available in the near future. Therefore, the Commission considers that large broadcasters should be required to caption the live segments of all news programming early in the next licence term.

In developing its overall approach to closed captioning, the Commission is aware that the financial resources available to each licensee are different. As such, requirements that may be appropriate for a large station in an urban market could represent a serious financial hardship to a station in a smaller market. In light of this, the Commission has imposed less stringent expectations on licensees earning under $10 million in annual advertising revenues and network payments. The Commission's approach to captioning is set out below.

1. Large Stations (earning more than $10 million in annual advertising revenues and network payments).

The Commission requires the licensees of all stations earning more than $10 million in annual advertising revenues and network payments to caption, by 1 September 1998, all local news programming, including live segments, using either real-time captioning or another technology capable of producing high quality captioning for live programming.

The Commission also requires all such licensees to close caption at least 90% of all programming during the broadcast day, by the end of the licence term.

With regard to their adherence to these requirements, the Commission reminds licensees that, under sections 12 and 13 of the Act, such requirements may be made the subject of a mandatory order and, ultimately, an order of the Federal Court or of any superior court of a province. Such an order is enforceable in the same manner as an order of the court.

2.Medium Stations (earning between $5 million and $10 million in annual advertising revenues and network payments).

The Commission expects the licensees of all stations earning between $5 million and $10 million in annual advertising revenues and network payments to caption by the end of the licence term all local news programming, including live segments, using either real-time captioning or another technology capable of producing high quality captioning for live programming.

The Commission expects all such licensees to close caption at least 90% of all programming during the broadcast day, by the end of the licence term.

3.Small Stations (earning under $5 million in annual advertising revenues and network payments).

The Commission encourages the licensees of all stations earning less than $5 million in annual advertising revenues and network payments to caption by the end of the licence term, all local news programming, including live segments, using either real-time captioning or another technology capable of producing high quality captioning for live programming.

The Commission also encourages all such licensees to close caption at least 90% of all programming during the broadcast day by the end of the licence term.

Decisions on individual licences indicate that the requirements for 90% captioning of all programming apply by 2001-2002.

In Public Notice CRTC 1996-120 (4 September 1996), the Canadian Commission announced decisions applying similar requirements to cable television providers. Some exceptions have been made however for some types of programming.

In Decision CRTC 96-598 (4 September 1996), approving a license application for "Teletoon", a subscriber cartoon channel provided by satellite, the Canadian Commission said:

The Commission expects the licensee to adhere to its commitment to close caption a minimum of 60% of the programming on the English-language version of its service and a minimum of 40% of the programming on the French-language version of its service by the end of the licence term.

The Commission recognizes the current limited availability of animated programs that are captioned and notes the licensee's commitment to ensure that all new programs are captioned, to use its "best efforts" to acquire captioned versions of existing programs, and to spend a total of $2 million over the course of the licence term on captioning programs.

The Canadian Commission has refrained from setting captioning targets for pre-school children's programming in view of "particular challenges" which it saw in captioning such programming (Decision CRTC 96-603, 4 September 1996, approving license application for "Treehouse").

In Decision CRTC 96-611( 4 September 1996), approving an application for music video channel MuchMoreMusic, the Canadian commission stated:

When questioned at the hearing regarding its plans to provide closed captioning of its programming, the licensee stated that captioning 90% of the programming offered by MuchMoreMusic would not be feasible, given the scarcity of captioned videos. As noted in Public Notice CRTC 1996-120, the Commission agrees that it would not be appropriate to apply its general approach for English-language services to MuchMoreMusic. Nonetheless, the licensee did make a commitment to spend $525,000 on closed captioning over the licence term. The Commission expects the licensee to adhere to this commitment. Furthermore, the Commission encourages the licensee to close caption, by the end of the licence term, at least 90% of all non-music programming broadcast by MuchMoreMusic, including presentations by program hosts.

The Canadian commission has refrained from applying captioning quotas to two speciality ethnic television providers (Decision CRTC 97-371, 7 August 1997, South Asian Television Canada Limited; Decision CRTC 97-257, 6 June 1997, Odyssey Television) in view of limited availability of captioned material for these providers.

Issues for discussion:

• Does the Australian Broadcasting Authority have power to include requirements in broadcast license conditions similar to those imposed by the Canadian Commission?
• If so, should it exercise this power regarding those television services over which it has authority?
• What means would there be for applying similar requirements to television services which the ABA does not regulate?
• How do the circumstances of different sized providers in Canada, which have differential requirements for captioning, compare to the circumstances of the Australian television industry?

2.6.2 United Kingdom requirements

Several submissions referred to captioning requirements in the United Kingdom. Different regulatory regimes apply in the UK to different classes of broadcaster.

The Independent Television Commission has produced the following summary of requirements.

The Broadcasting Act 1990 required Channel 3 licensees, as a licence condition, to provide a minimum amount of subtitling for the deaf and specified that in 1998 at least 50% of the channel's output per week must be subtitled. After 1998, the greatest number of hours that the Independent Television Commission considers practicable must be subtitled. The ITC recently announced new requirements from 1999. These provide for annual increases up to 80% in 2004. In 1996, 40% of output was subtitled on Channel 3.

The subtitling provision in the 1990 Act does not cover Channel 4 but the channel has agreed to work towards the 50% target in 1998 and this has been incorporated into the Channel 4 licence. The Channel has also agreed to match the increases on Channel 3 from 1999. In 1996, 45% was achieved by Channel 4.

Channel 5 Broadcasting is required, as a licence condition, to implement proposals contained in its application in relation to subtitling. From the start of the service in 1997, 23% of programmes must be subtitled. Thereafter Channel 5 is to increase the number of hours at least in line with specifications set out annually by the ITC. From year six, Channel 5 will be required to be subtitling at least 50% of broadcasting hours.

The Broadcasting Act 1996 requires the Independent Television Commission to draw up a code promoting the understanding and enjoyment of programmes by persons who are deaf or hard of hearing and blind or partially-sighted. The code applies to all digital programme services and the commercial guaranteed place simulcast broadcasts (except the BBC). The final code was published in February 1997.

The Act requires specific minimum amounts of certain programming in digital services to be subtitled, to be accompanied by audio description or provided into or presented in sign language (subject to an Order by the Secretary of State). The minimum amounts, which will apply from the tenth anniversary of the service, are:

Subtitling: 50% Audio description: 10% Signing: 5%

The subtitling requirement may be met by closed subtitling, as for example, on teletext, or by open subtitling, appearing on-screen such as with foreign language films.

Interim targets

The ITC believes there should be a steady progression towards the different minimum requirements for subtitling, signing and audio description and has set interim targets in the years prior to the 10th anniversary of the start of the digital services.

The 1996 legislation provides for the ITC's code to specify classes of programs to be excluded from the minimum requirements for subtitling, sign language and audio description. The ITC decided however not to make such exclusions. The code states:

The provision of subtitling is now well established in terrestrial television, across the full range of programmes (drama, factual, entertainment etc). In view of this and given the importance of a wide range of programmes being accessible to deaf and hard of hearing people, the ITC has decided not to exclude any class of programme from the statutory 50 per cent requirement for subtitling. This requirement will therefore apply to each service.

Sign language at present is only provided in open form (ie, visible to all viewers) and only for a limited number and range of programmes, in particular news headlines and factual programmes containing information and advice specifically for deaf viewers. However, extensive scope exists in principle for providing sign language for a wide range of programmes and the ITC has taken note of the strong representations made to it on this issue when it published the draft version of the Code. The ITC has therefore decided not to exclude any class of programme from the statutory 5 per cent requirement for sign language. This requirement will therefore apply to each service.

Audio description has been restricted so far to trials relating to only a small number of programmes. Nonetheless, extensive scope exists in principle for providing audio description for a wide range of programmes. The ITC is also influenced by the fact that audio description is the only means covered by these requirements by which blind and partially-sighted people can have their understanding and enjoyment of programmes enhanced. The ITC has therefore decided not to exclude any class of programme from the statutory 10 per cent requirement for audio description. This requirement will therefore apply to each service.

The ITC code also states:

Licensees should consider other ways of promoting the understanding and enjoyment of their programmes by people who are deaf or hard of hearing and blind or partially-sighted, in addition to the provision of subtitling, sign language and audio description. This should include, for example, providing information such as programme listings in an accessible form by telephone, text phone and in large type. For coverage of sports and other live events such as opera which are not audio described it may be possible to provide additional information in the commentary, for example on scores and costumes, which would enable the programmes to be enjoyed more fully by blind and partially-sighted people.

The ITC's press release announcing this code also stated:

The Commission believes that all Channel 3 licensees will be capable of meeting the extra costs involved in moving towards the 80 per cent requirement, but the ITC will keep this under review, especially the position of the smaller companies. As a matter of course, the increased subtitling requirements will be taken into account during the Channel 3 licence renewal process.

There will be a review in 2001 to decide whether any increase beyond 80 per cent is feasible. This review will take account of, amongst other things, technological developments, including the progress of voice recognition, which could make subtitling cheaper and easier.

In setting these subtitling levels the ITC aims to achieve significant progress on behalf of people who are deaf or hard of hearing whilst ensuring that targets are realistic and can be met by its licensees.

Peaktime output already carries a very high proportion of subtitled programmes, but the 80 per cent requirement means that deaf and hard of hearing viewers will be catered for more comprehensively throughout the day and in areas of programming which we know from the consultation are important to them. Live programmes, quiz shows, children's programmes and some night time material should all show an increase in subtitling.

The Department of Communications and the Arts notes

Live programming is exempt from the fifty percent requirement for subtitling. The Independent Television Commission (ITC) has decided that the minimum requirements for subtitling in relation to live programming should be twenty-five percent.

The BBC is not covered by the Independent Television Commission's code or by these provisions of the 1990 and 1996 broadcasting legislation. However, the BBC has made the following commitments:

We are committed to improving the accessibility of our television programmes to viewers who are deaf or hard of hearing. Last year, we subtitled 7,750 hours of programmes - more than 21 hours each day, equivalent to just less than 40% of output.

We promise:

• that at least half of all scheduled programme output will be subtitled by the end of March 1998
• to provide live subtitling of local news and current affairs broadcasts from Plymouth, Southampton, Nottingham, Norwich and Newcastle by the end of March 1998 - to complete our goal of subtitling local and regional news and current affairs in all regions.

(See also now BBC 1999 commitments .)

2.6.3 United States Federal Communications Commission regulations

HREOC's Notice of Inquiry referred to United States captioning requirements. A number of submissions also referred to these.

In its Report and Order on Video Programming Accessibility (August 7, 1997) the FCC noted that in the US

• virtually all current national prime time broadcast television is captioned
• there is significant captioning of other national broadcast material including news, children's programs and sports
• the public broadcasting station PBS requires captioning of everything it funds
• much of local broadcast programming is also captioned
• major non-broadcast networks (including cable television) caption much of their programming
• most current movies and syndicated TV shows are captioned
• many advertisements are captioned by makers
• but that (as at August 1997) there was limited captioning outside prime time.

The FCC made the following orders.

For new programming:

• captioning is required for 95 % of non-exempt programming, measured per channel over each calendar quarter (the remaining 5% exemption being provided for unavoidable or unforeseen difficulties)
• stations are required to maintain existing levels of captioning in any area where requirements are already exceeded
• stations are required to ensure "pass through" (that is, effective transmission) of captions already applied to a program

For programming pre-dating August 1997 75 % of non exempt programming is required to be captioned by the end of the transition period.

Transition periods are provided of eight years for new programming and ten years for programming pre-dating the new rule. There are interim benchmarks for new programming during the transition period. For older programming there are no interim benchmarks but a review by the FCC of progress is required at the four year point.

The FCC rules provide exemptions for

• non-English language programming
• primarily textual programming
• programming distributed between 2 am and 6 pm
• interstitial announcements
• promotional programming and public service announcements
• advertising
• certain locally-produced and distributed programming
• non-vocal musical programming
• programming on new networks.

The FCC rules also exempt any video programming provider from closed captioning requirements where the provider has annual gross revenues of less than $3 million. They do not require any video programming provider to spend more than 2% of its annual gross revenues on closed captioning.

Television providers can petition the FCC for further exemption on the basis that compliance would impose an undue burden.

3. Extent of use of and need for captioning

"... persons with hearing disabilities desire as wide a choice of programming to be accessible as do members of the public generally ... we decline to adopt an expedited schedule for captioning of any particular type of programming. Although we recognize the importance of, for example, news and community affairs programming to viewers, we believe that distributors can best determine what programs to caption first, and we expect that consumer demand, among other factors, will be taken into account in making those determinations. " : US Federal Communications Commission

"Free-to-air television has a unique role in Australian society. Free-to-air television is the main form of entertainment and relaxation, with each Australian viewing, on average, 3¼ hours each day. The importance of free-to-air television to Australians together with the significant number of Australians with a hearing impairment underscores the need for networks and stations as well as the Government and other relevant interest and community groups to work to make Australian television as accessible to the hearing impaired as is feasible and practicable": Submission, FACTS

"It would be marvelous to be able to sit back and know what's going on in television" : Individual submission, Mrs A.Fitzsimmons

As indicated by the FACTS submission in particular, there is considerable contact between television stations and representatives of deaf and hearing impaired people to discuss captioning issues including issues of demand and priorities:

FACTS has a representative on the NWPC and provides financial assistance to the NWPC to meet periodically with each network to discuss captioning issues. There is regular contact between the NWPC and the senior management of each of the networks.

On the basis of submissions, differences of opinion between FACTS and disability community representatives appear principally concerned with levels of captioning achievable, and the appropriateness of particular regulatory approaches rather than with the goals and priorities to be aimed at. This is subject to FACTS' comments on the limited benefits of captioning without demand side measures regarding availability of television receivers with decoder capacity.

The ABC's submission argues that research is required on use of existing captioned television services:

In the absence of independent research concerning levels of use for captioning services, the Corporation does not support a further extension of the legislative requirement for television broadcasters to provide captioned services for the deaf and hearing communities. The ABC believes an independent assessment of the patterns of use for captioning services in the fifteen years since their introduction is an important element in the development of policy on this issue.

This inquiry is not principally concerned with an extension of legislative requirements for captioning, although it may provide information relevant to the review to be conducted by the Department of Communications and the Arts of the digital conversion legislation. Rather, its primary focus is on how the existing legislative requirements of the DDA should be interpreted, administered and complied with.

The Department of Communications and the Arts states in its submission that

[there] are currently no legislative requirements for the ABC or the SBS to provide captioning of their television programming.

If this is to be accurate it needs to be understood as referring to the lack (pending the application of the requirements of the digital conversion legislation) of express and specific requirements on the national broadcasters in this respect. In the Commission's view, the DDA clearly imposes some captioning requirements on the ABC and SBS, although the extent of these requirements remains undefined.

This inquiry therefore is not directed to obtaining the level of evidence of demand for captioning services such as might be regarded as required prior to imposition of a substantially new legislative requirement for captioning. It is directed towards clarifying existing responsibilities and ensuring compliance with them.

The existence of the DDA means that the level of captioning to be achieved is not a purely discretionary decision for management of television stations to determine on the basis of assessed demand relative to other policy or commercial priorities. It is not properly to be viewed as solely a matter of voluntary commitment.

3.1 Relevance to complaint handling

Evidence of demand for and benefit from captioning may, however, be relevant under the DDA in relation to complaints

• in determining issues of possible unjustifiable hardship (which apply to services under DDA section 24, although not to Commonwealth programs under section 29)
• in determining issues of the reasonableness or otherwise of limitations on availability of captioning (which apply under section 29 as well as section 24).

Decisions regarding unjustifiable hardship and reasonableness require evidence of benefit or detriment to all persons affected to be taken into account.

Evidence of consumer demand and priorities may be relevant in complaint handling regarding priorities between captioning of different programs and types of programs.

It is not clear what weight should be given to views which may have been expressed supporting priority for news, current affairs and prime time, in dealing with a complaint regarding captioning of educational or children's television.

Even in cases where priorities have been negotiated in good faith, or determined after consultation with organisations with apparent expertise and authority, it is not clear that the complaint mechanism under the DDA provides individuals or organisations any binding authority to negotiate regarding the rights of other potential complainants (other than in the settlement of a representative complaint).

The Commission would welcome discussion of approaches it should take in this area.

3.2 Relevance to exemption applications

Evidence of consumer priorities may also be relevant, and may be more capable of being given decisive effect, in the Commission's consideration of applications for exemption under section 55 of the DDA. Research or consultation to identify consumer priorities for captioning as between different types of programming would be likely to be relevant to exemption applications by providers seeking endorsement of a phased approach, whether in conjunction with formal Action Plans under the DDA or with other forms of plans or commitments.

3.3 Information on demand and priorities

The Commission would expect that both in complaint processes and in exemption applications evidence of consumer demand and priorities would come in the first instance from television providers seeking justification or endorsement of past or proposed practice. Evidence from other sources would also be considered in these processes and would be welcome for the purposes of this inquiry.

Submissions received to this point do not provide a detailed assessment of useage and priorities, as envisaged in the ABC submission, but do provide some information.

The submission from the National Working Party on Captioning argues that some 1.7 million people in Australia who are deaf or have a hearing impairment could benefit from captioning of television. The goals of the National Working Party, provided to the Commission through the Deafness Forum's submission, are as follows:

• all video releases captioned by July 1999
• all prime time (6 pm to 10.30 pm) programming captioned on all networks by July 2000
• all news and current affairs programs on all networks captioned by July 2002
• all new televisions built or sold in Australia to have Teletext decoding capabilities by July 2002
• all children's programming to be captioned by 2002 and
• 100% captioning of all programs on all networks by 2010.

The Deafness Forum's submission states:In its 1998/99 Budget Submission, the Deafness Forum recommended to government that it:

• require all television networks to comply with the captioning goals of the National Working Party on Captioning,
• require the provision of captioning (plus the superimposition of a qualified Auslan interpreter's image in a corner of the main viewing screen), on all public sector advertising, public service announcements and awareness campaign material produced by all departments and government agencies for television or video,
• take all possible steps to encourage more captioning and interpreting of commercial video production, and of information videos in such places as the hospital systems, and
• make it mandatory for all public and employment situation safety videos to be captioned and interpreted.

It also said that captioning of all videos used in educational courses would be of great benefit to students.

The Victorian Council of the Deaf indicates the following concerns and priorities:Despite recent legislation supporting closed captioning in prime time by 2001 deaf viewers are still discriminated [against] because:

• we have to wait until 2001, whilst the rest of the community enjoy barrier-free television;
• it is limited to only prime time;
• it discriminates on those deaf people who are at home through the day (elderly, sick, children, homecarers, nightshift workers, etc);
• it does not enable schools where deaf students participate, to utilise educational TV programs which are not captioned;
• it does not include special and major events relevant to the Australian community that deaf people would also like the opportunity to participate in. For example, 2000 Olympics, Commonwealth games, papal visit, disasters (eg; Darwin). Recent initiatives by Channel 7 to caption Diana, Princess of Wales funeral and AFL Grand Final were overwhelmingly endorsed and gratefully supported by the Australian Deaf community, but they were from an ad hoc policy and from encouragement / lobbying of the community;
• Pay TV is not captioned and so deaf people are unable to use this increasingly popular product on the market place.

The Parents of Hearing Impaired Children National Network submission states:

Currently, very few children's programs are captioned. To provide equal access, ALL children's television programs should be captioned, whether free to air or on cable TV. Not to caption children's programs is to discriminate against a significant section of the hearing impaired population. Deaf and hearing impaired children must have access at the earliest possible age, as language development is the most difficult area of their development.

The Cairns Community Legal Centre submission supports increased captioning of news, current affairs, drama, children's material, telemovies and sport. It raises the concern that

News flashes and weather broadcasts are also NOT captioned. This is particularly unfair given that North Queensland is subject to cyclones during the wet season and the community in general relies heavily on regular cyclone warnings broadcast on television. Members of the deaf community are entitled to be informed of meteorological updates by receiving these warnings but they are not captioned. This is an extremely dangerous situation and should be remedied immediately.

(FACTS draft code of practice states that its members will "when broadcasting emergency, disaster or safety announcements, provide the essential information visually, whenever practicable. This should include relevant contact numbers for further information".)

D. Bradley's submission notes that there are large numbers of hearing impaired people among older Australians. Many of these people may be particularly dependent on television for information and entertainment. The Commission's experience on other issues indicates that many of them may not identify closely with or have their views directly represented by disability community organisations. The Commission would welcome further information regarding the views of older people in the course of this inquiry.

Mr Bradley's submission also notes that the audience for captioning of the Olympic Games will be a worldwide audience rather being restricted to deaf and hearing impaired Australians.

Discussion regarding closed captioning overseas has also emphasised benefits additional to providing access for people with a hearing impairment, such as

• allowing dialogue to be understood in noisy environments (bars, airports and so on)
• assisting non-English speaking background people in learning to read English
• use in adult literacy education
• use in education of people with learning disabilities.

A range of research is referred to on the Closed Captioning Web including abstracts presenting the following comments:

"Results suggest that the addition of captions to conventional television is an effective means of enhancing the sight vocabulary and comprehension skills of both learning disabled and hearing-impaired students."

"Results of the study provide strong support for the effects of captioned television on bilingual students' acquisition of language, literacy, and conceptual knowledge. Captioning presented a particularly rich language environment that enabled students to incidentally learn words through context as they developed concepts in science. Overall, the study demonstrated the power of captioned television to provide comprehensible input to language minority students."

Any further information or views in this area would be welcome.

Issue for discussion:

Is further information available on demand and priorities for captioning in Australia among

• deaf people
• people with hearing impairments
• people with learning disabilities
• older people
• children and young people
• people in rural or remote areas
• non-English speaking background people
• adult literacy learners
• indigenous people
• other television users?

3.4 Relationship of DDA to priorities set out in digital conversion legislation

These issues are discussed later in this Issues Paper with other issues of the relationship of the DDA to the digital conversion legislation.

3.5 Priority for children's television

Relevant considerations concerning priorities also arise from the provisions of the Convention on the Rights of the Child.

Article 2

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 13

1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice.

Article 17

States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.

Section 10A of the Human Rights and Equal Opportunity Commission Act provides

(1) It is the duty of the Commission to ensure that the functions of the Commission under this or any other Act are performed (a) with regard for:
(i) the indivisibility and universality of human rights ...

Human rights for this purpose includes the rights set out in the Convention on the Rights of the Child, which has been declared as a "relevant international instrument" under section 47 of the HREOC Act. The Commission is therefore required to take the rights in this Convention into account in performing its functions under the DDA.

Issue for discussion:

• Do the provisions of the HREOC Act and the Convention on the Rights of the Child require the Commission to promote priority for access to children's programming in performing functions regarding closed captioning under the DDA, including in considering complaints or exemption applications?
• Is further information available on the reasons for the omission of children's television from the subject area covered by the digital conversion legislation?
• Should the Commission make specific recommendations regarding captioning for children's television?

4. Extent of captioning currently provided

The submission from FACTS

urges the Commission to recognise the substantial increases in captioning that have occurred in recent years (with over 50% of programming in prime time now captioned).

It goes on to point out that

In the last four years the amount of captioning on commercial television has doubled. Well over 50% of prime-time programming is now captioned. All Australian drama, much infotainment programming, most US dramas and sitcoms, and many movies are captioned. The Seven Network has recently captioned its early evening news and current affairs services in all mainland states.

This rate of progress is clearly significant, although it appears from submissions that progress is not uniform. For example, captioning on the Nine network has declined from 1997-98 levels in the 1998-99 year to date. Also requiring consideration are the absolute levels of captioning being achieved.

The Australian Captioning Centre's submission indicates that on the basis of published program schedules the current overall levels of closed captioning provided with free to air television broadcasts are

• ABC: 27%
• SEVEN: 20%
• NINE: 11%
• TEN: 8%
• SBS: 4%

On the same information basis prime time captioning during the week ending 14 August 1998 was reported as :

• ABC: 60%
• SEVEN: 96%
• NINE: 39%
• TEN: 41%
• SBS: 22%.

The SBS submission notes that many SBS programs are open captioned. That is, they have subtitles which can be read without use of decoding equipment. This reflects the high proportion of non-English language programs broadcast.

The ACC submission identifies no captioned programming on major subscription services other than retransmitted free to air material. A submission is anticipated from the Australian Subscription Television and Radio Association but has not yet been received.

Submissions identify particular difficulties in captioning particular classes of material and lower levels of captioning in these areas accordingly:

• live programming including news and "infotainment" programs
• sports programming, particularly live sports
• regional and local news programming.

5. Plans or commitments for increasing the level of captioning provided

ABC TV's submission states:

The ABC currently has no specific plans to extend the level of captioning provided prior to the conversion to digital transmission.

Over the next two years, the Corporation will put in place funding and other arrangements to achieve the captioning levels required to meet the provisions of the Television Broadcasting Services (Digital Conversion) Act. As indicated earlier, this will involve the redirection of funds from other ABC activities, unless further Government assistance is provided. Details of how the closed captioning requirements will be funded and their impact on other areas of ABC activity are yet to be fully determined.

As proposed elsewhere in this Submission, the Corporation believes decisions about the further extension of captioning services should be informed by an independent assessment of patterns of use for the service by Australia's deaf and hearing impaired communities.

The Australian Caption Centre's submission provides the following extract from the ABC Code of Practice:

3.5 Closed Captioning for Hearing Impaired and Deaf People

• Closed caption programs will be clearly marked when program information is provided to the press or when captioned programs are promoted.
• Open captioned advice will be provided if technical problems prevent scheduled closed captioning.
• Addresses to the nation and events of national significance will be transmitted with closed captioning.
• The ABC will endeavour to increase the amount of closed-captioning as funds permit.

SBS Television's submission raises difficulties regarding compliance with the objectives indicated by the digital conversion legislation (captioning of all news, current affairs and prime time programming) and does not discuss any further or alternative commitments, although the continuing provision of open captioning (subtitles) on some non-English language programming needs to be noted in this context.

The FACTS current and draft codes of practice commit commercial broadcasters to endeavour to increase levels of captioning. FACTS' submission does not support, and the existing and draft codes of practice do not contain, any quotas or targets for levels of captioning overall or in particular areas. FACTS emphasises the increases in captioning occurring on the basis of voluntary action by individual broadcasters and of increased availability of externally sourced material.

Although FACTS indicates that it has opposed regulation in this area, it also makes the following comments:

FACTS has argued in the past that if there is to be a regulatory scheme it needs to recognise upfront the need for exemptions in the areas of sport, live programming and news and current affairs outside of prime time. It has proposed a scheme that would phase in positive captioning obligations by reference to availability and cost of captioning. We have suggested the following scheme, with the exemptions described above:

First Phase All overseas product that can be acquired with captioning from the licensor

Second Phase All network programs

Third Phase Local programs, not provided from the originating network

Flexibility can be lost with the imposition of prescriptive requirements. Unless care is taken, that danger exists in relation to the implementation of the captioning requirements in the Television Broadcasting Services (Digital Conversion) Act 1998.

Comments from the Australian Subscription Television and Radio Association are likely to be relevant to this issue when received. The only provision apparent in the Subscription Television Broadcasting Codes of Practice which deals with closed captioning is as follows:

2.4 Closed Captioning

Where closed captioning is made available it will be clearly identified with program schedule information provided to the press.

When a Licensee considers introducing closed-captioned programming, or extending the range of programs captioned, it will consult with organisations representing deaf and hearing-impaired viewers and organisations specialising in providing closed-captioning.

This provision does not set out, refer to or require any plans or commitments to increase or endeavour to increase levels of captioning on subscription television or to achieve particular levels of captioning. The Commission would welcome any further information in this respect.

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