Reservoir 3073
17 May 2004
Disability Rights Unit
Human Rights and Equal Opportunity Commission
GPO
1042
Dear Sir/Madam,
I thank the Commission for the opportunity to respond to the application by the Australian Subscription Television and Radio Association (ASTRA) for a temporary exemption under section 55 of the DDA regarding the provision of captions on subscription television.
It is my opinion that the application should be refused on the grounds that it does not satisfy any fair criteria of evidential requirements. Although the application[1] does mention that "ASTRA members have taken into consideration discussions within the HREOC convened forum for captioning on subscription television", have "briefed the recognised peak national Deaf and hearing impaired community groups" and have "consulted with and involved organisations providing captioning and other servicing [sic] for the Deaf and hearing impaired community", the application itself fails to provide evidence of these discussions or the decisions resulting from the discussions. It fails to provide evidence of either the alleged "full review" of captioning requirements or the independent consultants who allegedly "assessed ... key factors in respect of commencing captioning on subscription television." The application fails to even include a reference to any record of these discussions or findings for the purpose of Commission staff and the public to confirm facts. It is surely the Applicant's responsibility to provide the necessary information in support of its claim. It would be remiss of the Commission to assume that such evidence is not simply handwritten notes left on the reception desk of the ASTRA offices by visitors. It would also be inappropriate and inefficient for the Commission to take on the responsibility of locating evidence that should be included or referenced correctly by the Applicants.
The Applicants neglect to express any desire to achieve full accessibility. The application is solely concerned with what the Applicants want and not what the Applicants should do to adhere to the concept of Human Rights and Equal Opportunity.
There is much comment on financial matters such as minimising costs and demand for subscription television. The claim that over $8 billion has been invested in the subscription television industry since January 1995 is damning evidence of the injustice of the discrimination to which Deaf and hearing impaired viewers have been subject over this time. The arguments about the low penetration into the market and profitability of the operators serve to highlight the absurdity of failing to assure full accessibility. The claim that the costs of providing captioning are prohibitive also fails to include any mention of which options were considered in reaching that conclusion. More importantly, it fails to mention which options were not considered.
Is there any wonder there is not the demand for a service that does not satisfy, in this instance, the needs of Deaf and hearing impaired viewers? Is there any wonder that organisations that place emphasis on substitute markets and performance of competitors rather than their own efforts experience financial difficulty? Why cannot channel providers insist that caption files be included in any contract with the supplier or producer of the program at no extra cost to the subscription television channel provider? A range of 25% to 65% in costs is quite a large range that raises the possibility of selective evidence.
I refer the Commission to an article of my authorship in the March 2001 issue of Better Hearing Journal, the publication of Better Hearing Australia, in which I review my pay-TV service. (I have since ceased subscribing to the service.) I conclude the article by summarising the situation at that time: "I am greatly disappointed in my ... PAY-TV service. The lack of captions means I experience much difficulty understanding the soundtrack."[2]
There is much fanfare about the upgrading of the infrastructure to digital technology. I point out to the Commission that whether accessibility is achieved or not is still the province of people. Admittedly, digital technology may make it easier to implement accessible solutions, but it is people who make decisions as to the type and suitability of service provided and thus the accessible nature of the service.
Paragraphs 4 and 5 of the "Undertakings" section of the application are very interesting in that they exclude much broadcasting and allow for use of "fudgy figures". Firstly, compliance is calculated on an annual basis on the anniversary of the enabling of captioning on a channel. This appears to negate the claim that "targets are presented over a full 24-hour broadcast period." Could we please have some clarification and examples as to how compliance will be calculated? Is it possible that compliance would be calculated on a single day's broadcast at a date that is likely to have, or will have a significant amount of captioning compared to other dates?
Secondly, the compliance figures apply only to nationally transmitted programs broadcast. Local versions of programs are thus excluded.
Thirdly, foreign language subtitles are included in the offered quota. If these subtitles are not an expense for the channel provider, this would negate any financial argument the Applicants may present.
Fourthly, channel providers are exempted from captioning channels if they provide more than 4 channels. As the application states that channel providers are the party responsible for captioning, I fail to see how this assures an equitable spread of captioning across channel providers as claimed. Surely the Applicants are not recommending subsidisation of each other's captioning?
Fifthly, programming on newly introduced channels would be exempt from captioning. I can imagine that with the introduction of digital broadcasting there will be many "new" channels implemented to support the rebranding of the subscription service. Would this exclusion include channels that have commenced within the two years prior to the granting of the application, or only those beginning after that date?
Sixthly, promotional announcements, advertisements, etc, are largely exempted. It is surprising that an organisation that highlights that consumers "may or may not choose to purchase" the service would not ensure that marketing to a large body of potential consumers is effective. At the least, if a program is going to be captioned, then the promotional announcements for that program should also be captioned to ensure consistency.
The argument is made that additional bandwidth is required for broadcasting closed captions. Perhaps this is so. But the application fails to mention the possibility of broadcasting "open captions" (which might commonly be termed "subtitles") as standard. The Applicants have not presented any evidence in the application that such open captions would be detrimental to the market. Although the application is specifically for a temporary exemption from broadcasting closed captions, without such evidence open captioning is a pertinent alternative method to assuring accessibility. It would not require any additional bandwidth. Indeed, the existence of open captioning is mentioned in Section 4 Undertakings by Channel Providers.
The application does mention the possibility of other alternative methods of achieving accessibility. These methods would generally be advantageous, but a methodical comparison is necessary for me to be convinced that the methods are truly alternative by choice. A possible alternative method of accessibility (which is not specifically mentioned in the application but is mentioned here by way of example only) is providing a complete transcript prior to broadcast. On the face of it, this method may appear well and good, but there is still the matter of the Deaf or hearing impaired viewer knowing the timing of the script. There is also the challenge of the viewer having to look in two different directions at once (i.e. at the script and the program).
The carriage of Open Broadcast captioned programming should not be considered in deciding on compliance targets. However, the retransmission of captioned Open Broadcast programming should be analysed to be in accordance with the agreements struck between the parties. Ensuring compliance with the agreement would appear to be the responsibility of the appropriate Open Broadcaster.
I do approve of consultations with the peak national Deaf and hearing impaired organisations, though as a result of reading the application for temporary exemption I am unsure as to what was achieved. Also, I personally participated in the FOXTEL captioning survey. However, I did not and still do not take my participation to mean I agree with or accept less than full accessibility.
The Applicants request that the Commission deal with the application with urgency. This is supposedly because the Applicants require some lead-time to implement the technical aspects of captioning. I refer to my comment above about the damning evidence of the injustice of the discrimination to which Deaf and hearing impaired viewers have been subject since subscription television was introduced in January 1995. This issue must not be permitted to drag on for any longer.
The failure of the Applicant to explain the reasons for the inability to implement full accessibility should be sufficient grounds to refuse the application for temporary exemption. "Due process" would surely require the Commission to consider only the evidence included in the application and any failure in this respect may be grounds for appeal of any decision made by the Commission.
Please support the Human Rights and Equal Opportunities for people who are Deaf or have a hearing impairment and insist that the information be included before you make a conclusive decision.
Yours sincerely,
References
[1] ASTRA
- Application for Exemption. (March 2004). In HREOC Disability Rights.
Retrieved
[2] Balaam, K. (2001). PAY TV service – no captions so will we pay for it? Better Hearing, 55(1), pp 2-3.