A counterproposal for consumer-supported, independent captioning research
This submission, dated 2009.10.21, is the Open & Closed Project’s response to CRTC 2009-430 and counters the Canadian Association of Broadcasters’ submission of 2009.10.21.
Summary
The CRTC and the Canadian Association of Broadcasters are about to make the same mistake thrice. We’re calling your bluff by offering an research alternative that’s independent and backed by consumers.
Impropriety of regulator
Law does not empower the Commission to regulate unlicensed bodies
The Broadcasting Act, at ¶3(1)(p), states that “programming accessible by disabled persons should be provided within the Canadian broadcasting system as resources become available for the purpose.” ¶5(1) empowers the Commission to “regulate and supervise all aspects of the Canadian broadcasting system.” But those sweeping rights are limited by later sections.
- ¶10(1) provides an exhaustive list of regulations the Commission may impose, none of which involve accessibility to or programming for people with disabilities.
- ¶10(1) is specifically limited by ¶10(2), which states that “[a] regulation made under this section may be made applicable to all persons holding licences or to all persons holding licences of one or more classes.”
- The CRTC Act, at ¶12[1], limits the “objects and powers of the Commission” to those “set out in the Broadcasting Act.”
The Canadian Association of Broadcasters does not hold a broadcast licence. The Commission has no power to issue orders to CAB. As such, CAB not only is under no obligation to comply with such orders, it may not, as such orders are extrajudicial.
Hence, the orders in 2009-430, among other places, have no legal effect.
The Commission may not reorder actions already known to have failed
Twice now the Commission has ordered the Canadian Association of Broadcasters to create a captioning “standard.” Twice now that project has resulted in failure.
- The first claimed “standard” was created in secret and was ignored by industry.
- The second claimed “standard” was again created in secret, was buttressed by fraudulent pseudoscience with a predetermined favourable outcome, and was repudiated by the Commission itself. (Scientific methods, the Commission admitted at ¶93 of CRTC 2009-430, “could have been more rigorous.” CAB’s most treasured goal, across-the-board use of scrollup captioning, was rejected; in fact, the Commission required pop-on captioning for all prerecorded programming.)
It is a dereliction of duty for a legally constituted broadcasting regulator to make the same mistake a third time. Canadian broadcasters, under the auspices of their unregulated lobby group, have a track record of steady failure in captioning.
The Commission may not rely on tainted processes as a basis for regulation
Principles of natural justice hold that regulation must stem from a rational basis. The Commission has rational basis to expect the same result a third time when the same organization is asked to do the same thing a third time. The results are readily foreseeable and do not constitute a basis for regulation.
In fact, the Commission is so conscious of the failings of its ostensibly preferred approach that it repudiated not only the methodology CAB used last time but the results it obtained. “Third time’s a charm” may be an amusing maxim, but no variation of it can rationally be used to create regulation or policy.
Hence the Commission’s stated aim to impose what will certainly be a failed, secret, discredited captioning “standard” on Canadian broadcasters is irredeemably tainted. Any attempts by the Commission to actually impose tainted captioning “standards” on broadcasters will be met with legal action. Nonetheless, as we shall explain shortly, we’re offering an alternative.
Improprieties of industry
Broadcasters are the source of captioning problems
The Commission has conceded on numerous occasions that captioning in Canada is replete with problems. The issue of “accuracy,” which captioning neophytes, like Commissioners, can grasp easily, is frequently mentioned.
What the Commission fails to mention is the fact that any problems with captioning in Canada are the fault of broadcasters. Broadcasters broadcast. Captions are part of broadcasters. Broadcasters broadcast captions. Hence, when captions exhibit problems, those problems are broadcasters’ fault.
The Commission has been presented with ample attested evidence that complaints about captioning do nothing. A complaint does not fix the program with a captioning fault. Assurances that such faults will be corrected so they never happen again are false most or all of the time. Captioning never gets better; captioning only ever gets worse. Broadcasters are the problem.
Canadian broadcasters have spent 30 years dodging their legal obligations to provide 100% captioning of all programming at an independently verified level of quality. To this day, broadcasters evade their licence requirements and file applications to be relieved of such requirements. It is insult added to injury for captioning viewers when broadcasters convene secret meetings to “solve” captioning problems they themselves caused.
Attendees at these secret meetings are hardly captioning experts
Such attendees may manage in-house captioning departments – which, in the majority of cases, provide nothing but wall-to-wall scrollup captioning and are viewed as resented cost centres by upper management – but whatever actual captioning knowledge they have is superseded by their employers’ desire to evade legal obligations and save money. Irrespective of goodwill and statements to the contrary, broadcaster representatives on these secret panels have exactly one aim, and that is to create a “standard” that will cost the least.
Broadcasters’ true aim is to minimize spending
The Canadian Association of Broadcasters has steadfastly held that captioning should be voluntary, or if it has to be provided due to regulation at all it should be provided only for the bare minimum quantity of programming, and even then under any conditions broadcasters deem fit. Broadcasters should be allowed to engage in consumer fraud by selling advertising sponsorships for captioning on American programming and other shows for which captioning arrives intact and for free, and, beyond that, should be permitted to use whatever form of captioning is cheapest.
In specific, broadcasters insist that the captioning form already known to be the only one that makes fictional narrative programming understandable to captioning viewers should not be required by regulation. As the CAB declared in its letter to the Commission of 2009.02.10, “pop-on captioning of pre-recorded programming is not an entitlement.”
Broadcasters hire friendly consultants with favourable views
A company called Mediac has been given a grant from a broadcaster – CTV, one of the broadcasters that didn’t give the Open & Closed Project a grant – to conduct an exercise in foregone conclusions. From Mediac’s own description:
Over the course of three years, random broadcast samples will be taken at the national, provincial and regional levels to measure the quality and quantity of accessibility. “Like the first study,” said Mediac’s Beverley Milligan, “at no time will the broadcast undertakings sampled be revealed. Rather, the selection criteria will focus on getting the most favourable results.”
This research project won’t reveal its data (an action indistinguishable from fabricating or falsifying such data) and will explicitly produce “the most favourable results.” Even more reprehensible is the fact Mediac plans to work with a recognized educational institution, Ryerson University in Toronto, which should know better.
Here a Canadian broadcaster has all the money in the world to fund a friend of industry who will write a favourable report based on potentially specious data, but no money to fund independent research.
Mediac is merely the corporate holding company for Beverley Ostafichuk Milligan, who, at lengthy intervals, attempts to impose herself on Canadian captioning (and, occasionally, on audio description).
- Milligan has previously advocated that the CRTC give up its legally-mandated responsibility to regulate broadcasting in Canada in the specific field of captioning. Milligan and her proxies would “monitor” selections from all programming in Canada, a plan she has now rekindled.
- At one point, another of Milligan’s holding companies bore a broadcasting licence, compromising her independence from the broadcast industry.
- Milligan is an unstinting enthusiast of everything broadcasters do in captioning. For developing previous captioning software and devising captioning sponsorships, Ostafichuk received an award from the Canadian Association of Broadcasters. Ostafichuk’s company also bestowed an award on the CAB.
- Milligan is best known for introducing the captioning software that never actually lived up to its name, VoiceWriter. Broadcasters had to abandon using it.
This record of failure has apparently not prevented a Canadian broadcaster from hiring Milligan to produce a favourable report. Failure gets you places in Canadian broadcasting.
That isn’t all Milligan has done. Milligan likes to present herself as having devised corporate sponsorship of captioning. In fact, she set up a for-profit company to broker such sponsorships. It must have come as a shock to her when her broadcaster clients and friends took sales of such sponsorships in-house, eviscerating her business and forcing her to close up shop. With friends like these, why does Milligan need enemies? And why does she continue to do business with those enemies?
Industry wants “research” with a predetermined favourable outcome
The Commission suborned scientific fraud when it asked CAB to gin up a “verification exercise” for the last iteration of a failed captioning “standard.” CAB did not hesitate to comply. The only reason the resulting report, whose summary misrepresented its own findings, did not amount to outright scientific fraud was because it wasn’t scientific to begin with. It was a marketing focus group masquerading as science.
CAB has topped itself by hiring an old industry friend to produce what is billed up front as the most favourable possible report. For extra benefit to industry, this faux-researcher will conceal her data.
Consumer viewpoints must prevail
The Commission has acted in the interests of industry since its inception. Commissioners tend to come from industry backgrounds and tend to return to industry once their tenure is over. Commissioners, mindful of where their bread gets buttered, have no stomach to genuinely regulate industry.
That era came to an end on 16 September 2009, when the Governor in Council issued Order-in-Council 2009-1569, which “request[ed] the Canadian Radio-television and Telecommunications Commission to hold hearings... and to issue... a report providing recommendations taking into account... the comments of the general public on the impact... on consumers.”
We accept that the order specifically applies only to the topics it names, but the implication is clear: Consumer interests are so important to the sitting government that it must resort to ordering the CRTC to consider those issues at a special hearing. Stated another way, the Commission has placed so little emphasis on consumer interests that it had to be corrected by the blunt instrument of an order-in-council. We assume the Commission won’t have to be reprimanded twice before it gets the message.
In this context, a captioning “standard” created by the same industry that is the source of the problems the “standard” claims to solve is a non-starter. Consumer interests must be at the forefront from now on.
Consumers with disabilities illegally shut out of existing processes
The Open & Closed Project rejects the validity of the CAB’s secret development processes. But even there, consumer voices were silenced – through inaccessibility. The Canadian Association of the Deaf reported, in a letter dated 2009.01.12, that it could not participate in some meetings of the second failed “standards” committee because they were often conducted by voice telephone with no interpreting, captioning, or other accommodation. Such refusal to accommodate short of undue hardship is a clear violation of human-rights law.
The effect was small: CAD could be, and obviously was, outvoted by the broadcasters who dominated the process. Nonetheless, the fact that CAB couldn’t be bothered accommodating even the deaf people on its own committee bespeaks CAB’s hostility to consumer interests.
Independent alternative
The Open & Closed Project restates, for the umpteenth time, what everyone, including the CAB, CAD, CRTC, and individual broadcasters, knows full well: The only way to solve the captioning problem is through independent research and testing. All parties are fully aware of our proposal to conduct such research and testing.
We specifically reiterate those plans here. We explicitly offer the CRTC an alternative to what we already know is doomed to fail. We offer an alternative to the CAB plan.
The Open & Closed Project has a simple proposal: Fund us and we’ll research, write, test, and publish a standard for television captioning (analogue, digital, HD, all supported languages). We’ll test that standard to prove it works, fix what needs fixing, then publish the standard for free download. We will train and certify practitioners. At all times we’ll use reliable scientific methods, and we’ll do everything out in the open. This is exactly the plan we’ve had all along, as all parties know.
How much funding do we need? We’ll start with the exact amount CTV paid Mediac and take it from there.
The Project maintains a working relationship with the Adaptive Technology Resource Centre at the University of Toronto, a internationally recognized research institution.
We put the Commission on notice
We put the CRTC on notice that it has a legitimate independent alternative at its disposal. The CRTC cannot act as though there is no alternative.
If the CRTC can order CAB to carry out a plan we all know will fail, it can order CAB, or broadcasters, or some other party over which the Commission believes it has power to carry out our plan – the only one that will actually work. We’re calling your bluff.
Consumers directly support us
In October 2009, the CAPTIONING SUCKS! activity of the Open & Closed Project launched its “Real Science” Campaign. We explained what CAB was planning to do and made an appeal directly to consumers: Do you support our plans to conduct independent research into captioning standards?
The answer is yes. Individuals made cash donations and registered their support by name. Support even came from overseas – NCBI Centre for Inclusive Technology in Ireland provided a support statement.
Real captioning viewers want real, scientifically valid captioning research. The only people who don’t want that work for the Commission, the CAB, and broadcasters, and they’ve been outvoted.
Conclusion
The broadcast industry is the source of the captioning problem. Industry has repeatedly failed to solve that problem and has resorted to tainted methods. The Commission has an obligation to place consumer interests at the forefront. The Open & Closed Project is the only honest alternative to industry malfeasance – and we’re supported by real viewers.
See also
The Open & Closed Project’s response to the CRTC accessibility hearings.