Investigation Report No. 3046
File No. / ACMA2013/808Licensee / Channel Seven Brisbane Pty Limited
Channel Seven Melbourne Pty Ltd
Station / BTQ (Brisbane TV1)
HSV (Melbourne TV1)
Type of Service / Commercial television broadcasting services
Name of Program / My Kitchen Rules Grand Final
Date of Broadcast / 28 April 2013
Relevant Legislation / · subsection 130ZR(1) of Part 9D (captioning) of the Broadcasting Services Act 1992 (the BSA)
· paragraph 7(1)(o) of Schedule 2 to the BSA (captioning)
Date finalised / 18 November 2013
Decision / · Breach: subsection 130ZR(1) of Part 9D (captioning) of the BSA
· Breach: paragraph 7(1)(o) of Schedule 2 to the BSA (captioning)
Investigation conclusion
The Australian Communications and Media Authority (ACMA) makes the following findings:
· Channel Seven Brisbane Pty Limited and Channel Seven Melbourne Pty Ltd (Seven) breached subsection 130ZR(1) of the Broadcasting Services Act 1992 (the BSA) by failing to provide a captioning service in accordance with that subsection; and
· accordingly, the licensees have breached the licence condition in paragraph 7(1)(o) of Schedule 2 to the BSA.
The complaints
On 28 April 2013, the Australian Communications and Media Authority (ACMA) received a complaint alleging that Channel Seven Brisbane Pty Limited (BTQ) failed to provide a captioning service for the program My Kitchen Rules Grand Final broadcast on Sunday 28 April 2013 at 6.30pm (the program).[1]
On 30 April 2013, the ACMA received a complaint from an individual on behalf of nine viewers alleging that Channel Seven Melbourne Pty Ltd (HSV), another Seven Network licensee, failed to provide a captioning service for the program.
As these complaints related to an alleged breach of a licence condition by BTQ and HSV of the Seven Network (Seven), the complaints were able to be made directly to the ACMA without written reference to Seven. In accordance with sections 147 and 149 of the BSA[2], the ACMA has investigated Seven’s compliance with subsection 130ZR(1) of the BSA, and considered whether the two Seven licensees have breached paragraph 7(1)(o) of Schedule 2 to the BSA.
The program
My Kitchen Rules is a reality television program involving a cooking competition with each broadcast of the program being typically one hour in length. Pairs of contestants cook in their homes (one pair from each state in Australia) ‘hosting’ the rest of the competitors and judges. The pairs are given final scores at the end of each program.
The two hour broadcast of the program My Kitchen Rules Grand Final on 28 April 2013 was the final episode of the fourth season of the series, in which the winner of the overall competition for 2013 was announced.
Structure of the program: The introduction establishes the competition where the final two pairs compete to win the ‘grand final’. Their mission is to serve a five course meal for which they will be judged. Each of the five courses are prepared and served. The pairs’ cooking skills are judged and the winning pair is announced.
Assessment
The assessment made in this investigation is based on submissions from the complainant and Seven and a copy of the broadcast provided to the ACMA by Seven. Other sources used have been identified in the report.
Issue 1: Did the licensees provide a captioning service for the broadcast of My Kitchen Rules on 28 April 2013?
Relevant provisions
Clause 7 of Schedule 2 of the BSA
Conditions of commercial television broadcasting licences
1. [...]
(o) if a provision of Part9D (which deals with captioning of television programs for the deaf and hearing impaired) applies to the licensee—the licensee will comply with that provision;
Part9D of the BSA —Captioning
Division1—Introduction
130ZL Designated viewing hours
Programs transmitted before 1July 2014
(1) For the purposes of the application of this Part to programs transmitted before 1July 2014, designated 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.
Division2—Captioning obligations of commercial television broadcasting licensees and national broadcasters
Subsection 130ZR(1):
Each commercial television broadcasting licensee, and each national broadcaster, must provide a captioning service for:
(a) television programs transmitted during designated viewing hours; and
(b) television news or current affairs programs transmitted outside designated viewing hours.
Complainants’ submissions
On 28 April 2013 the first complaint received by the ACMA advised:
[...]
The deaf community is very upset and making complaints on [F]acebook that there are no captions for the Grand final of tonight’s show on Channel Seven. Not very happy, They [sic] should not have to miss out.
[...]
The second complaint, received 30 April 2013 advised:
[...]
Many of us were distraught to miss everything ... being discussed in between the candidates until the next commercial break, and the captions were back on. We missed the important part which was the beginning of the competition.This is not the only time this situation [has] occurred. It [has] happened in the past. When something gets interesting, ...the captions disappeared.
[...]
Licensees’ submission
On 29 May 2013, the representative of BTQ and HSV, the Seven Network (Seven), informed the ACMA of the following:
[...]
Seven provided a captioning service for the My Kitchen Rules program on 28 April 2013. However, we acknowledge that captions were not displayed for a period of approximately 10 minutes between 19:00:44 to 19:11:24...
Seven engages ... an independent captioning provider...[which] split the program into several segments so that it could be worked on simultaneously. Unfortunately as a result of an oversight by the captioning provider’s employee who prepared the captioning file for dispatch, one of the ‘segments’ that had been captioned was missing from the file.
...Unfortunately due to the nature of the error, the captions file appeared to be present and complete prior to the broadcast. Therefore Seven’s captioning checks prior to broadcast did not identify any error.
Seven’s Master Control monitoring the on-air feeds became aware of the error shortly after the captions ceased to appear. In accordance with the requirements of clause 1.24.3 of the Commercial Television Code of Practice [sic[3]], Seven presented the following captioning text as soon as the error was detected:
We apologise for Closed Captions being unavailable on this program.
...Seven understands that the [captioning service provider’s] employee responsible for the error, who was reasonably new at the time the error occurred, has undertaken further training ....We believe the incident was an isolated one rather than a systemic issue. However, at our request, [the captioning service provider] has also implemented additional checking process [sic] to ensure that errors of this nature are not repeated.
Seven and [caption service provider] are taking this matter very seriously, because we appreciate the importance of the captioning service to the people in our community who rely on it. While we acknowledge that captions were not transmitted for a short period during the program, Seven did make every effort to endure that the error was rectified and Seven and [caption service provider] have taken appropriate steps to ensure it is not repeated.
[...]
In response to the ACMA’s preliminary investigation report, on 21 October 2013 the licensee stated:
[...]
Seven maintains it [sic] position that it did not fail to provide a caption service for the program. Due to human error by a third party supplier, the caption service was missing one segment (representing around 10% of the total program). However a caption service was provided [.]
Seven considers that the ACMA has no basis for referring to quality indicators in determining whether there has been a breach of s130ZR(1). A failure to comply with the quality standards would be a breach of s130ZZA (if there had been a quality standard in place at the relevant time)....
...A captioning service was "provided" for MKR [My Kitchen Rules], beginning at the beginning and ending at the conclusion of the program, but that [sic] there was an interruption to that service. Seven does not contend that a service interruption is never going to amount to a failure to provide a caption service. However, we do not consider that the approach taken by the ACMA in its preliminary view is appropriate as a matter of statutory construction.
... In any event, even if the ACMA's approach to interpreting s130ZR(1) were correct,
Seven submits that the program, when considered as a whole, was comprehensible without the missing 10 minutes of captions. We believe that the preliminary report includes a number of doubtful conclusions in relation to the missing captions...
[...]
We acknowledge that the absence of captions during the relevant period would have affected the momentum of the program and affected viewers' engagement, and that incidental exchanges would have been missed. This is a matter that Seven takes very seriously, as the entertainment of our viewers (including those who are deaf or hearing impaired) is always Seven's objective. However, no information that was critical to the comprehensibility of the program as a whole was actually missed by viewers relying on captions.
Please refer to the subheading: ‘Seven’s arguments’ under ‘Reasons’ below for further details.
Finding
The licensees breached subsection 130ZR(1) of Part 9D of the BSA by failing to provide a captioning service for the program in accordance with that subsection.
Reasons
Under subsection 130ZR(1) of the BSA, the licensees were required to provide a captioning service for the program, as it was broadcast on the licensees’ core/primary commercial television service, during the designated viewing hours of 6pm and 10.30pm. That is, as the program was broadcast on BTQ and HSV from 6.30pm to 8.45pm, during the designated viewing hours, a captioning service should have been provided for the program.
Missing Captions: The licensees acknowledged that captions had not been displayed for ten minutes and forty seconds during the broadcast, from 7.00pm to 7.11pm. The ACMA reviewed the copy of the broadcast provided by the licensees and confirmed that no captions were provided during this period of the broadcast.
While acknowledging that captions were missing for ‘approximately’ ten minutes, the licensees maintained that they had provided a captioning service for the broadcast.
The term ‘captioning service’ is not defined in the BSA, although implicit in the obligation to provide a captioning service, is that the captioning service satisfies requirements relating to quality. This interpretation is consistent with the power granted to the ACMA under subsection 130ZZA(1) of the BSA, to determine standards that relate to the quality of captioning services.
The interpretation also fits the purpose of the BSA. Firstly, the purpose of developing captioning standards, to “obligate broadcasters to provide a consistent quality of captioning services … and … ensure captioning services are meaningful to the viewer” and secondly, the more general purpose of Part 9D, 'to facilitate improved access to free-to-air and subscription television by Australia’s hearing impaired community'. [4] That is, captioning services must be of a consistent quality, so they are meaningful to hearing impaired viewers, to enable them to have improved access to television.
Subsection 130ZZA(2) of the BSA provides that for the purposes of subsection 130ZZA(1) quality includes readability, comprehensibility and accuracy.
The Broadcasting Services (Television Captioning) Standard 2013 (the Standard) made under subsection 130ZZA(1) of the BSA was not in force at the time of the broadcast of the program on 28 April 2013, having only come into effect on 5 June 2013. Accordingly, the ACMA is unable to determine the licensee’s compliance with its obligations under subsection 130ZR(1) by reference to the Standard.
Notwithstanding this, recognising the implicit obligation to provide a captioning service that satisfies requirements relating to quality, in determining the licensee’s compliance with its obligations under subsection 130ZR(1), the ACMA has assessed the quality of the captioning services provided for this program, by reference to the ‘Quality Indicators’ set out in Attachment A. The Quality Indicators were developed in consultation with the Co-regulatory Captioning Committee. [5]
The ACMA assessed the captioning services provided for the program (throughout all segments) against the relevant ‘Quality Indicators’, by considering their cumulative effect on the overall accuracy, readability and comprehensibility of the captioning service.
This process was undertaken by the ACMA viewing the program with captions and without audio. The program was viewed again with audio and captions. The ACMA then compared the captions to the audio.
The ACMA found that where a captioning service was provided in the program the captions were accurate, readable and comprehensible. However, the ACMA noted that crucially, the absence of captions for ten minutes and forty seconds impacted on the overall comprehensibility of the captioning service for the program as a whole. Accordingly the quality of the captioning service provided for the television program as a whole was not consistent and therefore not meaningful to the viewer and consequently did not facilitate improved access to the program.
In its assessment, the ACMA considered the nature and characteristics of the program, the content of the program in the lead up to that part of the program without captions, the length of time and the content in the period without captions, the remaining content that was captioned and the impact of the missing captions on the overall readability and comprehensibility of the captioning service for the program as a whole.
Nature and characteristics of the program
The ACMA considers that the nature and characteristics of this particular program are important in its assessment. As mentioned above, the program was the final episode of the fourth season of the series and lasted approximately two hours. As with similar forms of competition based reality programming, the final result of the cooking competition, the competition process and the emotions expressed by the contestants, are all crucial components of the program. The viewer is engaged in the momentum of the competitive process by being provided with an understanding of each of the competition stages; how the judges, guests and contestants interact; and their commentaries on the food and the cooking processes during those stages.