Recommendation for conditional exemption under DDA section 55: Subscription television captioning

I recommend that the Commission approve (on conditions as set out below) an application (attached) from the Australian Subscription Television and Radio Association (ASTRA), on behalf of its member subscription television providers, for temporary exemption under section 55 of the Disability Discrimination Act regarding provision of captioning.

The exemption is requested for a five year period, during which the providers will implement proposals for commencement of captioning.

The application and proposal are attached. In summary they provide for

• Captioning to be commenced in conjunction with the launch of FOXTEL Digital and the relaunch of AUSTAR digital services (Digital Launch) in the first half of 2004.
• Captions to be able to be viewed by all subscribers to the new digital television services without requiring a teletext-enabled TV. Non-Digital subscription television subscribers may also receive captions if they have a teletext-enabled TV (as is required for free to air non-digital broadcasts).
• 20 channels to be enabled for captioning from Captioning Launch.
• The Applicants to use "reasonable endeavours" to enable a further 20 channels within 24 months of Captioning Launch.
• Captioning per channel captioned to commence at 5% of total hours of applicable channel programming in the first year of captioning, increasing by an additional 5% each year thereafter for the duration (or part thereof) of the 5-year rollout plan for each enabled channel (measures over a full 24-hour broadcast period)
• ASTRA, on behalf of its members, to report annually on compliance with these targets.
• Before the conclusion of the 5-year period covered by this application, ASTRA to review compliance with the plan and prepare a further plan. ASTRA will consult with organisations representing Deaf and hearing impaired Australians and organisations specialising in providing closed captioning.
• Closed captioning to be clearly identified in program schedule information provided to the press and in program guides.

Public comment

In accordance with the Commission's policy on exemption applications, a notice of inquiry and request for submissions was issued on 20 April 2004, with submissions requested by 20 May.

Also in accordance with Commission policy, a shorter than the standard 6 week period was provided for submissions since, as noted in the application, this application and the associated proposal have already been the subject of extensive discussions with disability representative organisations through a forum convened by the Commission.

Nine submissions were received.

Three of these were from peak representative organisations for deaf and hearing impaired people, and one from the national cross-disability organisation representing women with disabilities. These supported granting the application in order to have captioning of subscription television commence, while seeking some additional conditions and some acceleration of the compliance schedule if possible.

One submission from 22 individuals and one individual submission took a similar position. One individual submission emphasised the importance of captioning for deaf children's English language development and called for captioning to be introduced as quickly as possible. Two individual submissions opposed any exemption.

All other submissions were made available on the HREOC web site.

Issues from submissions

Speed of phase in of captioning

Unlike broadcast television programs, subscription television programming is not currently captioned. Although subject to the general requirements of section 24 of the DDA regarding non-discrimination in provision of services, subscription television is not subject to the captioning requirements of the Broadcasting Services Act which apply to broadcast television and pursuant to which substantial levels of captioning were already being provided on broadcast television prior to agreements being reached for increases in captioning on broadcast television in connection with the Commission's exemption decision on 29 May 2003.

Most submissions accept as a matter of technical and financial practicality that full captioning of subscription television programming cannot be implemented immediately. Accordingly they accept, as the Commission did for example in its decision of 29 May 2003 on an exemption application regarding caption of free to air broadcast television, that an exemption to permit a phase in of captioning is appropriate.

These submissions note however that ASTRA's proposal would see requirements for no more than 25% of programs captioned after 5 years on those channels enabled for captioning from the commencement of the proposal, and less than this at the expiry of the exemption for channels enabled later. They seek an acceleration of increases during the period of the exemption and/or a limitation of the exemption to 3 rather than 5 years.

The figure of 25% or less required captioning for subscription television after 5 years may be compared to the figure of 70% after 5 years provided in the Commission's free to air captioning exemption decision. As noted in the application, however, this decision involved an annual rate of increase of between 6 and 7% starting from existing captioning levels which were already in place to meet requirements of the Broadcasting Services Act (which do not apply subscription television services). The phase in rate proposed by ASTRA is therefore more closely comparable to that accepted by the Commission in its free to air captioning exemption decision than might first appear. ASTRA also notes that its proposal measures captioning on the basis of a 24 hour broadcast schedule whereas the targets for free to air broadcasters were based only on 6 a.m. to midnight despite actual program transmission also occurring outside those hours.

ASTRA also raised the issue that the subscription television industry is yet to achieve profitability and that free to air broadcasters (at least in the private sector) are in a significantly more favourable position in this respect. In response one submission argues strongly that ASTRA has not demonstrated that the industry has inadequate financial resources to provide captioning, arguing that the very large investments acknowledged to have been made in establishing subscription television services could and should have included a component for ensuring non-discriminatory access for deaf and hearing impaired customers through captioning. This submission also argues that the Commission does not have sufficient evidence available to it to decide to accept ASTRA's proposal as the basis for an exemption application, and should insist on further financial and technical evidence as well as formal records of consultations.

As noted in the Commission's free to air captioning exemption decision, however, the Commission's function in this context is not that of determining existing rights and responsibilities under the DDA but that of deciding whether it would be appropriate in all the circumstances to grant an exemption, which may vary existing rights and responsibilities.

The key test for this purpose is whether to do so will promote the objects of the DDA. In my view that test is satisfied in this case.

Faster rates of implementation would clearly also promote the objects of the DDA, but incorporating such faster rates as conditions on an exemption will only promote the objects of the DDA if an applicant is prepared to commit to complying with these conditions. I am satisfied in this instance that ASTRA's proposal is the result of consultation and negotiation which as noted in several submissions have gone on for a considerable period, rather than being an ambit claim or opening position at the commencement of negotiations.

This is not to argue that introduction of any level at all of captioning should be accepted as sufficient basis for an exemption. The Commission has to decide in each case whether it is appropriate to grant an exemption. In my view the commitments made by the industry in this case are sufficient to justify an exemption with the conditions I propose.

These conditions include commencing within 3 years of the date of this exemption a review of implementation of the proposal, and possibilities for further increases in captioning beyond those provided for in the present proposal. Specifically this should include review of any instances where the broadcaster may be able voluntarily to exceed the targets set by the ASTRA proposal during the period of this exemption, and possibilities for further increases in captioning in the period following the expiry of this exemption. I propose that there should then be a condition that a proposal for a further plan for captioning by the broadcaster concerned, to commence by the time of expiry of this exemption, be presented to the Commission (directly or through ASTRA) on or by the date four years after the date of this exemption.

Measurement of compliance

One submission sees confusion between proposed measurement of compliance on an annual basis and on the basis of a "24 hour broadcast day" and asks whether providers will be able to select one particularly favourable day's result each year to present a distorted picture of compliance. In my view there is simply not room for any such interpretation or any confusion here. Compliance is to be measured over the whole of each year's programming. The reference to the 24 broadcast day makes clear that unlike free to air television, all broadcasting times count for the purpose of this assessment.

Captioning standards

The Deafness Forum in its submission seeks a commitment to a code of practice on quality and accuracy of captioning. Clearly the effectiveness of captions in providing access to program content depends on those captions representing audio content accurately, and being presented legibly and reliably. I am not satisfied however that the Commission has a sufficient basis for deciding on a particular standard or process for ensuring appropriate quality.

I propose that the Commission deal with this issue by requiring reporting on quality issues in the course of reporting on implementation of captioning.

Support for teletext capacity on television equipment

Deafness Forum seeks support from ASTRA for introduction of regulatory requirements for teletext decoding capacity on all televisions.

Such support has previously been indicated by free to air broadcasters as well as by HREOC itself.

I do not consider it appropriate however to require an indication of such support as a condition of the proposed exemption. During the period of the exemption some ASTRA member services will continue to be analogue services which require teletext capable television equipment, and providers of those services may well wish to add their voices to those supporting measures to improve availability or affordability of such equipment. However, the new digital television services will not require teletext capacity to deliver captions, relying on an alternative and it may be a competing technology through set top boxes. In these circumstances I consider that the position of ASTRA members in relation to support for regulatory requirements for teletext capacity is one which should be left for further consultation between industry and the disability community rather than being the subject of conditions on the proposed exemption.

Subtitles and closed captions

Australian Association of the Deaf raised a concern that programs with subtitles (which translate non-English dialogue) appeared to be counted in the proposal as having captions (which also provide information on significant non-spoken audio elements) for the purposes of the percentage targets. ASTRA has advised however that the channel with the most substantial number of subtitled films, World Movies, is not among those being counted in the proposal as caption enabled, so that text available through subtitled films on this channel is additional to the percentage targets.

Recommended decision

I recommend that an exemption be granted to each of the broadcasters covered by this application, for a period of 5 years, on condition that:

• The broadcaster concerned implement the captioning rollout as scheduled in the ASTRA proposal for the minimum 20 channels committed to;
• The broadcaster concerned use reasonable endeavours to enable a further 20 channels within 24 months of captioning launch, and thereafter apply the captioning rollout to any channels so enabled, according to the schedule provided in the proposal;
• The broadcaster concerned make all reasonable endeavours to ensure availability of information on program captioning;
• A report on compliance by the broadcaster concerned be presented to the Commission (through ASTRA or directly by the broadcaster) annually on or by the date of the Commission granting this exemption, including at the conclusion of the fifth year;
• Reports to include reporting on measures taken to ensure quality and accuracy of captioning;
• The broadcaster concerned (individually or through ASTRA), in consultation with organisations representing Deaf and hearing impaired Australians and organisations specialising in providing closed captioning, commence within 3 years of the date of this exemption a review of implementation of the proposal, and possibilities for further increases in captioning beyond those provided for in the present proposal - including
  • any instances where the broadcaster may be able voluntarily to exceed the targets set by the ASTRA proposal during the period of this exemption , and
  • possibilities for further increases in captioning in the period following the expiry of this exemption;
• A proposal for a further plan for captioning by the broadcaster concerned, to commence by the time of expiry of this exemption, be presented to HREOC (directly or through ASTRA) on or by the date four years after the date of this exemption.

The decision should include notice that the effect of non-performance of the conditions of this exemption for any broadcaster would be that

• In the event of a subsequent complaint the exemption would cease to apply for the benefit of the broadcaster concerned from the date of relevant non-performance.
• It would become open to HREOC, of its own motion or at the request of any person, to re-open this matter and revoke the exemption, or apply further conditions to the exemption in respect of the broadcaster concerned.

Dr Sev Ozdowski

Acting Disability Discrimination Commissioner

31 May 2004