Response to HREOC Issues Paper

Closed Captioning

EXECUTIVE SUMMARY

DDA, Digital Act, Scope of Inquiry and Role of HREOC

The Issues Paper inappropriately focuses on the application of the DDA. In our view the DDA has been overridden in this area by the obligations in the Digital Act.

Even if the DDA did apply, the failure to provide closed captioning on free-to-air television does not constitute direct or indirect discrimination.

Given that Parliament has just implemented a regime for closed captioning, it is counter productive for HREOC to be seeking to fundamentally address the appropriate manner of regulation of closed captioning.

While a number of issues raised in seeking to determine the scope of DDA obligations are relevant to the broader debate, we do not consider that a sweeping analysis of DDA obligations in itself useful or possible (even if the DDA did apply).

There is a need for research into levels of viewing of captioned material, what people do watch, and what they want to watch. We consider that HREOC is well placed to undertake or commission that research. That information is vital in determining policy objectives.

Promotion of the availability of closed captioning is needed. Given HREOC’s experience in raising public awareness we consider it would be well placed to undertake such a campaign.

Other Matters Arising from Issues Paper

A close analysis of regulatory requirements in other jurisdictions demonstrates how comparatively onerous the obligations in the Digital Act are. Also to be considered in this respect is the much smaller Australian market.

Flexibility is vital in imposing captioning obligation. Flexibility will ensure diversity of captioned programming.

Certain areas of programming are more difficult and expensive to caption than others. In imposing obligations is these areas regard must be had to the desire for or benefit of captioning of the particular programming.

While technology is developing, there is no current known voice recognition technology that can cater for captioning of an adequate standard for television material.

A compulsory requirement that receivers have the ability to receive closed captioning is desirable.

Equivalent regulatory requirements should apply to other media, such as Pay TV.

 

 

1. DDA, DIGITAL ACT, SCOPE OF INQUIRY AND ROLE OF HREOC

1.1 Application of DDA

The Issues Paper focuses on the Disability Discrimination Act (DDA) as the principal legislation governing closed captioning of programming on free-to-air television. Given that more recent legislation has been enacted creating a comprehensive framework for closed captioning of programming on free-to-air television in our view such an approach is fundamentally misconceived.

The Television Broadcasting Services (Digital Conversion) Act (the Digital Act) provides a specific framework for the development of regulations governing closed captioning requirements on free-to-air television. The legislative prescription is specific - captioning for all prime time, and all news and current affairs in and out of prime time, to the extent practicable. In addition, a review process is established to look at 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 requirement; and

formal standards for captioning should be included in the legislation.

In relation to closed captioning on free-to-air television, the Digital Act sets very specific boundaries for the captioning requirements in the short term and a review process to consider an extension of those requirements. Clearly, in relation to closed captioning on free-to-air television programming, the Digital Act covers the field, thus extinguishing the application of the DDA in this area.

We have sought legal advice to confirm what we considered to be this straight forward legal proposition. That legal advice confirmed our view that the DDA does not apply.

In summary that advice is to the following effect. The Commonwealth has standards and protocol as to captioning. The digital conversion legislation provides:

Specificity

Detail

Intention to regulate and provide a comprehensive code dealing with the particular matter

In those circumstances the digital conversion legislation repeals the provisions of the DDA with which it is inconsistent.

It is not an argument against this proposition that the Digital Act does not apply to all forms of closed captioning, say on Pay TV. That simply means that the DDA may cover areas other than those relating to free-to-air programming, such as advertisements, and other video industries such as Pay TV.

Thus, HREOC’s assertion that the Digital Act "does not in the Commission’s view displace the requirements of the DDA in this area" is cursory and ill advised.

 

1.2 Closed Captioning and the DDA

The Issues Paper asks whether the failure to provide closed captioning constitutes discrimination under the DDA. Given our view that the DDA does not apply we do not consider the issue relevant. However, we make the following comments on the basis that the DDA does apply.

We do not consider that a lack in the provision of closed captioning with a commercial television transmission signal constitutes either direct or indirect discrimination under the Disability Discrimination Act 1992.

The Waters case stresses the question as to whether the discriminatory aspect of a service is inherent to that service. The service provided by commercial television is the broadcast of audiovisual material. Closed captioning, or the textual translation or representation of the audio stream of the broadcast signal, is not an inherent component of commercial television.

There is nothing in the objects or the provisions of the Broadcasting Services Act 1992 that supports the contention that the commercial free-to-air television networks should provide a closed captioning service separate from the broadcast of normal film and audiovisual material.

The Scott v Telstra case cited in the Issues Paper involved a public sector organisation providing a service, partly in pursuance of a public service objective imposed by the then current Telecommunications Act. The commercial television networks are not public sector organisations, nor do they receive funding from the public sector for the provision of a closed captioned service.

1.3 Practical Scope of the Inquiry

Much of the focus of the Issues Paper concerns:

the appropriate manner of regulation of closed captioning on free-to-air television, ie whether it should be governed by quasi regulatory codes, the ABA, standards under the DDA, or other legislative requirements.

questions which seek to illicit an answer to the question what the DDA requires as far as closed captioning is concerned, and in particular the scope of the unjustifiable hardship defence.

We find it surprising that HREOC would seek to canvass the first issue when the Parliament has only just implemented a framework for closed captioning of programming on free-to-air television. To seek to second guess the Parliament on the issue after such a short time frame we consider to be counterproductive. Free-to-air television and the hearing impaired community will be working with the Government to develop standards required by the Digital Act and to implement these standards. In that context, for HREOC to revisit fundamental issues relating to the regulatory framework diverts time and energy away from that task. There would appear little chance that the Government or the Parliament would revisit in a fundamental way the approach in the Digital Act in the short term.

It needs to be emphasised in this context that the Digital Act imposes very onerous requirements which replace the current self-regulatory approach which itself has been very successful in increasing levels of captioning. As we note in our original submission to the inquiry, over the three years to 1998 closed captioning doubled.

In relation to the second issue, given our view that the DDA does not apply, focussing on the DDA is misplaced, although the broader policy questions that a number of the issues raise concerning priorities for captioning and hardship are very relevant for the purpose of considering the advancement of the Government’s agenda.

Even leaving aside our view that the DDA does not apply, we question whether it is possible or practical to make broad assessments about DDA requirements in the abstract. That is a matter on which we elaborate in our comments on specific issues.

We consider that HREOC’s role in this inquiry should be directed towards informing debate in progressing the closed captioning framework in the recently passed Digital Act. We consider that HREOC could provide an extremely valuable role in facilitating research on closed captioning and promoting closed captioning. These matters are expanded on below.

1.4 Research

A considered analysis of closed captioning obligations and priorities requires an understanding of the levels and nature of current closed captioned viewing as well as an understanding of what people want to watch.

While groups representing the hearing impaired have made some comments about captioning priorities, those comments have been of a fairly general nature. As far as we are aware the only quantitative research undertaken in this area in Australia was undertaken in South Australian in 1993. A copy of the research is attached. While the research is useful in providing some information about numbers of people who are aware of closed captioning, those who have used closed captioning, and some information relating to priorities, the scope of the research is limited.

The survey was undertaken of some 3000 individuals. Amongst the questions asked, respondents were asked about awareness of closed captioning, levels of viewing of closed captioning by those with a hearing loss and perceived important programs for closed captioning. 354 of the 3004 surveyed reported a hearing loss and, of those, approximately a third had watched captioned programs. 109 of those 354 (about a third) had watched closed captioning, three "all the time" and the rest "occasionally". Those with a hearing impairment were asked what they considered the most important programs for captioning. News and current affairs came ahead with 87% indicating it as the preferred program type for captioning.

Perhaps the clearest message from the survey was that those with a hearing loss far and away considered news and current affairs the most important type of programming for closed captioning.

While it is possible to tentatively extrapolate from the research that about a third of people with a hearing impairment have watched closed captioned programming, the vast majority of those indicated that they watched "occasionally". There was no further questioning or information about precise viewing times or patterns.

In our view more comprehensive research is essential to inform the debate. The information concerning the number of hearing impaired Australians who use closed captioning, the amount they watch, what they watch, and what they want to watch is scant.

Without additional specific information about current viewing patterns and community priorities for closed captioning many of the matters posed in the Issues Paper cannot be answered other than by supposition and guess work. In FACTS’ view, in the absence of that information, it is not possible (even if it were appropriate or desirable) to undertake a hypothetical sweeping analysis of what DDA obligations mean in the closed captioning context. Nor is it possible without that information to develop sound policy about the closed captioning obligations for the future.

In addition, if research firmly suggests a significant audience for programs with closed captioning, that will provide strong commercial motivation for stations and advertisers to close caption their material.

In FACTS view, it would be highly desirable for HREOC to undertake or commission research of this nature for the purpose of its inquiry. While for the reasons we have stated it is inappropriate for HREOC to be seeking to answer the many questions it has posed with respect to the application of the DDA, it cannot appropriately do so without that research. More relevantly, that information is needed for more general recommendations that HREOC may make in relation to closed captioning.

FACTS, therefore, strongly endorses the recommendation in the submission of the ABC that an independent assessment of the patterns of use for captioning services is required.

1.5 Promotion of Closed Captioning

Approximately 80% of those questioned in the South Australian survey indicated that they were aware that some television programs have subtitles or captions to help people who are deaf or hearing impaired. The commercial television industry through its Code of Practice seeks to enure that captioned programs are properly promoted as being closed captioned in station program guides, in press advertising, in program promotions at the start of the program. That promotion clearly contributes to a wide (but perhaps vague) community understanding that closed captioning is available.

It is less clear that the public have a firm understanding of the manner in which closed captioning is accessed. Anecdotal information would suggest to FACTS that a knowledge that closed captioning is accessed through receivers with a teletext capability is limited.

If mandatory obligations are to be imposed on free-to-air broadcasters then promotion of closed captioning as an option and its means of availability is important. That promotion would need to be aimed to target that significant number of Australians who are not profoundly deaf but have a hearing impairment.

Given HREOC’s considerable experience in undertaking public awareness campaigns of this nature and its interest and focus on the issue of closed captioning we consider it would be well placed to mount such a campaign.

2. OTHER MATTERS ARISING FROM ISSUES PAPER

2.1 Other Jurisdictions

The Issues Paper looks at the regulatory arrangements in Canada, the US and the UK. It is instructive to carefully compare the time frames and captioning increases required in those jurisdictions with the Australian requirements.

Canada

In March 1995, the Canadian Radio and Television Commission imposed on large stations a requirement to close caption at least 90% of all programming by the end of the licence term (2001-2002). Local news programming was subject to the earlier deadline of 1 September 1998. Thus, a 7 year time frame was imposed with respect to the captioning of most programming and 3½ years with respect to news programming. Medium and small stations were subject to less stringent requirements.

US

In the US, where current levels of captioning on free-to-air television are already very high, the FFC have recently imposed a requirement of captioning for 95% of non-exempt programming. For new programming there is an 8 year phase in and for old programming 10 years.

 

UK

In the UK, in relation to Channel 3 licensees, the Independent Television Commission (ITC) has or will require staggered increases ranging from 23% of programming in 1993 to 80% of programming in 2004. As noted in the Issues Paper, lesser requirements have been imposed with respect to live programming.

Digital broadcasters must provide subtitling for 5% of programs in year 1 increasing to 50% by year 10.

Australia and Comparisons

The obligations in the Digital Act are more onerous and less flexible that any of the regulatory regimes in Canada, the US or the UK, without even taking account of the small size of the Australian market. Based on the figures quoted in the Issues Paper (p35) as levels of prime-time captioned during the week of 14 August 1998, approximately 52% of prime-time programming on all free-to air station are captioned. The goal set by the legislation is that 100% should be captioned by 1 January 2001. To impose such a requirement in a period of 2½ years is an extremely onerous requirement. And those are average figures. The obligations will be even more onerous on those stations currently captioning at well-below average levels. The obligations come at a time when stations are facing massive expenditure on the digital conversion.

The fact that the legislation contemplates that all programming in prime-time will be captioned in this very short time framework exacerbates the burden as it leaves no room for flexibility. In none of the other jurisdictions are the requirements directed to specific programming periods. Only in Canada, where more stringent requirements are imposed with respect to news, do the obligations target specific programming areas. (In the case of Canada the obligation - for large stations only - was 90% of news in 3½ years compared in Australia to 100% for news and current affairs in 2½ years. And in the case of many stations in Australia they are commencing at zero levels of current news captioning).

Australia’s small population and the huge geographic areas are other factors that serve to increase the burden on broadcasters in the Australian context.

2.2 Flexibility

The difficulty of the potential lack of flexibility in the Australian requirements is highlighted in the discussion on this issue by the US FFC in making its recent captioning rules:

Finally, we decline to adopt an expedited schedule for captioning of any particular type of programming. Although we recognise 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, amount other factors, will be taken into account in making those determinations.

As noted above, the obligations of the Digital Act are particularly problematic in the lack of flexibility they give to stations. By requiring all networks to caption their prime time viewing and all news and current affairs there will be duplication of similar styles of captioned programming that is shown at the same time - e.g. 2 or 3 news bulletins.

Captioning obligations should seek to derive the greatest benefit for the hearing impaired community while placing minimum cost and operational burdens on broadcasters. Flexibility in captioning obligations would ensure a better spread of captioned material throughout the day.

This, in our view, is a matter that should be addressed in the review that is to take place of the captioning obligations in the Digital Act.

2.3 Difficulties of Captioning Particular Programming

In our original submission we emphasised the difficulty of captioning certain types of programming, particularly live programming. We wish to reiterate some of these comments and to respond to some specific areas of programming raised in the Issues Paper.

Sport: Sport involves rapid commentary, which is often difficult to understand by a live stenographer. The long duration of certain events adds to the logistical, operational and financial difficulties in captioning sport. Live stenographers are only able to accurately provide continual captioning for very limited periods of time without a break in proceedings. Sporting events, such as the Bathurst Classic 1000, may go for 10 hours or more.

Children’s Programs: There is an extent to which the captioning of children’s programs will benefit the hard of hearing community. Any obligations that require captioning of children’s material should be realistic in the extent to which children will be able to use the captioned material whether for entertainment or educational purposes.

Music Video Programs: There are significant operational problems in captioning music videos. Music videos are very difficult to caption. The lyrics are often difficult for a captioner to understand clearly, let alone make any sense in the absence of their tone and manner of expression. In order to caption most music videos, producers or broadcasters would have to seek clearance from the writers of the lyrics to music, which would add significant complexity to the captioning of a style of programming.

Other Visually Centred Programming: Other types of programs, such as the weather segments of news, also are heavily loaded with graphic and text information.

We have argued that captioning obligations should be imposed in a measured and incremental way. In considering obligations in the short term in relation to these more difficult areas of programming, priorities should be firmly established. That will involve an assessment of benefits as compared to cost.

2.4 Methods of Captioning

While technology is developing, there is no current known voice recognition technology that can cater for captioning of an adequate standard for television material.

In its discussion of news captioning, the Issues Paper discusses alternative approaches to news captioning and in particular so called Electronic News Room (ENR) captioning. The US FFC concluded that it would not be appropriate or necessary to restrict captioning methodologies.

A similarly flexible approach is adopted in the Australian context particularly given the huge leap in news and current affairs programming to be captioned contemplated by the Digital Bill.

2.5 Receivers

The availability of receivers with the ability to receive closed captioning has been raised as an issue, both with respect to current analogue receivers and with respect to digital receivers. A number of submissions to HREOC advocate a compulsory requirement that both analogue and digital receivers contain decoders or appropriate chips.

We consider that a compulsory requirement is desirable, particularly in relation to the manufacture of digital sets and set-top boxes. By imposing an insignificant extra cost to the manufacture of standard sets, it is possible to greatly increase the access of the hearing impaired public to the closed captioned material that is broadcast.

2.6 Regulatory Neutrality Issues

As we indicated in our original submission, regulatory requirements should apply equally to other forms of video media, such as Pay TV, subject to reasonable phase in requirements. Is it is disappointing that the Pay industry did not make a submission to the HREOC so we are not in a position to comment on their rationale for their non-existent levels of captioning (other than the free-to-air captioning that they retransmit).

As noted in our original submission to this inquiry, in the next few years 30% of Australian households will have subscribed to Pay TV. Yet, according to the Australian Caption Centre, Pay services currently caption none of their own services. That means the only Pay services that are captioned are the captioned free-to-air programs that Pay retransmits to its subscriber. And only recently has Pay actually included the captioning information as part of the retransmitted signal, a situation over which the free-to-air stations have no legal control.

Not only has the Pay TV industry failed to make its own contribution, but the various actual and proposed regulatory requirements do not apply to Pay services. 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 subscriptions services, as they should be in Australia.

2.7 "Free Loan"

The Issue Paper quotes from a document of the Department of Communication and the Arts stating the imposition of a closed captioning requirement is a reasonable demand given that broadcasters are being "loaned" free spectrum. The Issues Paper asks:

"what weight should be given in decisions under the DDA to the digital conversion arrangements for the "loan" to existing broadcasters of public resources by way of broadcasting spectrum"

When the facts are analysed, the Department’s statement is misconceived. The industry pays considerable licence fees based on revenue. To the extent that provision of the additional spectrum will generate additional revenue, the Government will be compensated through additional licence fees (not to mention the additional income tax it will pay on any profits). In any event the prospect of increased revenue during the first decade of digital is extremely remote.

The spectrum is being loaned for the purpose of facilitating the transition to digital. The industry is bearing the capital cost (in the region of $700 million) and the risk of that transition. At the end of the transition period the spectrum will be returned to the Government. At that point, the spectrum will be usable and highly saleable. At present, due to the position of the spectrum, it is worthless for the other uses.

To suggest that this politically crafted statement in a Departmental Question and Answer sheet should form the basis of an analysis of DDA requirements demonstrates the folly, in our view, of attempting undertake a sweeping analysis of DDA obligations in the first place (leaving aside the clear legal view that they are not applicable).

If such an analysis were undertaken, it would also be necessary to consider just some of the following:

Free-to-air television assists the community by scheduling community service announcements, worth scores of millions of dollars a year in air-time. Free-to-air television contributes to numerous community and charitable causes through sponsorship and by providing air-time for a wide variety of causes and events.

Television is highly regulated compared to other industries and regulators often focus heavily on the "public service" obligations of the industry. This regulation includes:

- requirements for Australian content, children’s programming, drama and documentary programming;

- strict classification restrictions on the scheduling and content of programming, which may result in heavily-edited programs, or programs not being screened at all, and provision for consumer advice and warnings;

advertising restrictions;

The level of regulation is inconsistent with other media and communication industries such as Internet and Pay TV;

Viewers in Australia are provided with far greater choice and quality than in most other countries on free television, with the unique combination of 2 national and 3 commercial free-to-air broadcasters;

The free-to-air industry both reflects and contributes hugely to Australian popular culture;

The free-to-air industry contributes twice to Government revenue - by normal taxes and also by special licence fees, which are higher than anywhere in the world; and

Free-to-air television will be faced with huge costs in the next decade due to digital expenditure, with very little prospect of increased revenue.