Investigation Report No. 3085

File No. / ACMA2013/1208
Licensee / Northern Rivers Television Pty Ltd
Station / NRN
Type of Service / Commercial Television
Name of Programs / Rugby Union – Australia v British and Irish Lions
Date/s of Broadcast / 22June 2013
Relevant Legislation/Code /
  • subsection 130ZR(1) of Part 9D (captioning) of theBroadcasting Services Act 1992 (the BSA)
  • subsection 130ZUB(1) of the BSA (disregard breach)
  • subsection 130ZZA(4) of the Broadcasting Services Act 1992 (the BSA) and the Broadcasting Services (Television Captioning) Standard 2013 (the Standard)
  • paragraph 7(1)(o) of Schedule 2 to the BSA (captioning)

Date Finalised / 29/04/2014
Decision /
  • Breach of subsection 130ZR(1) disregarded (as subsection 130ZUB(1) of the BSA applicable)
  • Breach subsection 130ZZA(4) of the Broadcasting Services Act 1992 (the BSA) and the Broadcasting Services (Television Captioning) Standard 2013 (the Standard)
  • 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:

  • Northern Rivers Television Pty Ltd (the licensee) breached subsection 130ZZA(4) of the Broadcasting Services Act 1992(the BSA) by failing to comply with theStandard;
  • the licensee has accordingly breached the licence condition in paragraph 7(1)(o) of Schedule 2 to the BSA;and
  • the licenseebreached subsection 130ZR(1) of the BSA by failing to provide a captioning service in accordance with that subsection;
  • pursuant to subsection 130ZUB(1) of the BSA,the breach should be disregarded in determining whether the licensee has complied with its captioning obligations under subsection 130ZR(1) of the BSA.

The complaint

On24 June 2013, the ACMA received acomplaint alleging that the licensee of NRN failed to provide acaptioning service for theRugby Union– Australia v British and Irish Lionsbroadcaston 23June 2013at 7:30pm(the program). Upon clarification, the complainant confirmed that the live broadcast was on 22 June 2013. The complainant alleged that the program was transmitted with significantly delayed captioning.

As this complaint related to an alleged breach of a licence condition, it was able to be made directly to the ACMA without written reference to the licensee. The ACMA has investigated, in accordance with sections 147 and 149 of the BSA[1]:

  • the licensee’s compliance with the Standard and consequentlysubsection 130ZZA(4) of the BSA;
  • the licensee’s compliance with subsection 130ZR(1) of the BSA and the application of subsection 130ZUB(1) which specifies circumstances in which a breach of subsection 130ZR(1) can be disregarded; and
  • whetherthe licensee has breached the licence condition contained in paragraph 7(1)(o) of Schedule 2 to the BSA.

The program

The program covered a rugby union test match in Brisbane between the visiting team from the United Kingdom and Ireland(the ‘British and Irish Lions’) and Australia (the ‘Wallabies’). The visiting teamreturned to Australia in June 2013 after a 12 year absence to commence a series ofrugby union test and tour matches throughout Australia. The program was the first test match, broadcast live to airon the Ten Network from Brisbane.

Assessment

This investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other relevant sources relied upon have been identified in the report.

Issue 1: Did the licensee provide a captioning service that complied with the Standard for the program broadcast on 22June 2013?

Relevant provisions

Part9D of the BSA—Captioning

Division 4 – Captioning standards

Subsection 130ZZA(1):

The ACMA may, by legislative instrument, determine standards that relate to:

(a)the quality of captioning services provided by commercial television broadcasting licensees for television programs;

...

Subsection 130ZZA(4):

A commercial television broadcasting licensee must comply with a standard determined under subsection (1).

Broadcasting Services (Television Captioning) Standard 2013

Section 8Accuracy of captions:

(a)When providing a captioning service for a program, broadcasters and narrowcasters must use captions that accurately recreate the soundtrack of a program.

(b)When determining whether captions accurately recreate the soundtrack of a program, the following factors must be considered in the context of the program as a whole:

  1. whether spoken content has been captioned;
  2. whether the captions of spoken content are verbatim;
  3. where it is not possible for the captions of spoken content to be verbatim, whether the captions reflect the actual meaning of the spoken content;
  4. where the intended target audience of a program is children and the captions are not verbatim, whether the captions reflect the actual meaning of the spoken content;
  5. whether the manner and tone of voice of speakers has been conveyed, where practical and material; and
  6. whether sound effects and/or music, material to understanding the program and not observable from the visual action, have been accurately described.

Section 9 Comprehensibility of captions:

(c)When providing a captioning service for a program, broadcasters and narrowcasters must use captions that are comprehensible.

(d)When determining whether captions are comprehensible, the following factors must be considered in the context of the program as a whole:

(i)whether the captions clearly identify and distinguish individual speakers, including off-screen and off-camera voices;

(ii)whether the captions are displayed for a sufficient length of time to allow the viewer to simultaneously read them and follow the action of the program;

(iii)the extent to which the appearance of the caption coincides with the onset of speech of the corresponding speaker, sound effect or music;

(iv)the extent to which the disappearance of the caption coincides with the end of the speech of the corresponding speaker, sound effect or music;

(v)whether the words used in the captions have been spelt correctly;

(vi)where a word is not spelt correctly, whether the spelling provided nevertheless conveys the meaning of the actual word;

(vii)whether explanatory captions are provided for long speechless pauses in the program;

(viii)the extent to which a caption over-runs a shot or scene change; and

(ix)the extent to which the appearance or disappearance of the caption, as the case may be, coincides with the relevant shot or scene change.

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;

Complainant’s submission

The complaint was received at the ACMA on 24June 2013. After clarification, the complainant confirmed the following on 3 August 2013:

  • the complaint was about poor quality captioning for the program Rugby Test (Australia v British and Irish Lions)broadcast by the licensee on 22 June 2013; and
  • the live captioning was three to four minutes behind the live action.

Licensee’s submissions

The licensee’s first response to the ACMA dated 9 September 2013[2]stated:

[...]

A captioned version of the Program was broadcast on NRN’s primary Southern Cross Ten service. It seems that the live captions were “delayed” by approximately 2.5 minutes as they were broadcast.

At the outset, NRN accepts that a captioning error occurred which resulted with an inadequate captioning service for this program. However, NRN submits that the error was attributable to significant difficulties of an engineering nature that could not have beenforeseen by the licensee and therefore the breach is to be disregarded in accordance with section 130ZUB of the Broadcasting Services Act 1992...

We regret that the Program contained inadequate captions, and apologise for any inconvenience caused to caption users viewing NRN’s TEN’s service as a consequence of the error.

[...]

Finding

The licensee breached subsection 130ZZA(4) of Division 4 of Part 9D of the BSA.

Reasons

Under subsection 130ZZA(4) of the BSA, the licensee is required to comply with the Standard.

The object of the Standard, set out in section 3 of the Standard, is to specify mandatory requirements for broadcasters and narrowcasters that relate to the quality of captioning services, to ensure that captioning services are meaningful to deaf and hearing impaired viewers.

As set out in section 6(a) of the Standard, when determining the quality of a captioning servicefor a program, the captioning service must be considered in thecontext of the program as a whole. Further, as set out in section 6(c) of the Standard, when determining the quality of a captioning service, the cumulative effect of the following factors must be considered:

  • the readability of the captions;
  • the accuracy of the captions; and
  • the comprehensibility of the captions.

The ACMA has applied these criteria in assessing whether the program complied with the Standard.

The ACMA reviewed the copy of the broadcast provided by the licensee and considered the licensee’s admission that a captioning error occurred during the program. The ACMA found that there were captioning quality issues throughout the whole program starting with unrelated captions, followed by a pattern of delayed and missing captions.

The program commences with two minutes of unrelated captioning which ended at 0:02:46, with the name of the captioning service provider displayed for 28 seconds.[3]

The first incident of delay occurs at 0:02:51, when the first captions of the program: ‘Are you ready?’ appear on screentwo minutes and 51 seconds after the audio.

The following table describes samples of captioning issues throughout the program:

Program
Content / Time from / Time to / Issue / Notes
1 / Pre – match
Introduction / 0:0:0 / 0:02:46 / Unrelated captions / It may be that this captioning was delayed from the previous program. The last 28 seconds shows the name of the captioning service provider for the unrelated captioning.
2 / Pre – match
Studio / panel introduction, discussion and on-field commentary / 0:02:52 / 0:07:43 / Delay by 2 mins 34 secs / Audio: Well there is absolutely no shortage of test caps in our coverage tonight.(at 0:05:09)
Captions: There’s no shortage of test caps in our coverage. (at 0:07:43)
0:05:09 / 07:43 / Missing captions for 2 mins 34 secs / Captions for the audio just after 0:05:09 up to advertisement break are missing
3 / Pre – match
Former Australian Rugby captain (Pre-recorded segment)
Panel discussion / 0:11:08 / 0:17:47 / Delay by 2 mins 36 secs / Audio: I think they’ve got to be very wary of Paul O’Connell in the forwards and Brian O’Driscoll in the backs...(at 0:15:11)
Captions: They have got to be aware of Paul O’Connell (at 0:17:47)
0:15:11 / 0:17:47 / Missing captions for 2 mins 36 secs / Captioning for the audio just after 0:15:11 up to advertisement break is missing
4 / Half time
Re-cap of first half of match / 1:30:47 / 1:33:20 / Delay by 2 mins 33 secs / Audio: Welcome back to Suncorp Stadium for the Landrover half time report...(at 1:30:47)
Captions: Welcome back to Suncorp Stadium for the Landrover half-time report... (at 1:33:20)
1:33:20 / 1:36:04 / Missing captions for 2 mins 44 secs / Captioning for the audio just after 1:36:04 up to advertisement break is missing

The captioning service ceases for two and half minutes at the end of the program: the final segment of the program. The initial captions for this last segment begin to appear on the Network’s identifier ‘Ten Sport’ after the broadcast finishes. [4]

Having applied the relevant criteria from sections 6(a) and (c) of the Standard, the ACMA has found that the captioning service provided for the program failed to meet the requirements of the Standard in a number of respects.

The captions did not accurately recreate the soundtrack of the program because of the extent of missing, fragmented and intermittent captions. Therefore the captions for the program failed to meet the requirements relating to accuracy in section 8(b)(ii) of the Standard.

Additionally, the captions broadcast during the program did not coincide with the relevant soundtrack, failing to meet the requirements relating to comprehensibility in sections 9(b)(iii) and (ix) of the Standard.The cumulative effect was that for viewers relying on the captioning service, the extent of the missing, fragmented or intermittent captions, combined with the failure of the captions to coincide with the relevant soundtrack, meant that the captioning service was:

  • not meaningful to deaf or hearing impaired viewers relying on the captions and
  • impeded rather than facilitated their access to the television program as a whole.

In these circumstances, the ACMA does not consider that the licensees provided a captioning service that complied with the Standard.

Accordingly, the ACMA has formed the view that the licensee breached subsection 130ZZA(4) of the BSA by failing to comply with the Standard.

Whether a breach of the Standard can be disregarded

The ACMA notes that the licensee conceded a breach of its captioning obligations in this instance butthat the licensee also believes that this breach should be disregarded as it was an error that was both unforeseen and attributable to significant technical difficulties.

However breaches of the Standard (Division 4 of Part 9D of the BSA) cannot be disregarded under subsection130ZUB(1) of the BSA. That subsection only applies to breaches of Division 2of the BSA (see Issue 3).

There is no equivalent provision that provides for breaches of Division 4 to be disregarded, where those breaches are attributable to reasonably unforeseen significant difficulties of a technical or engineering nature.

Issue2: Did the licensee provide a captioning service that complied with the basic rule for the programbroadcast on 22 June 2013?

Relevant provisions

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, endingat that prescribed time on the same day.

Division2—Captioning obligations of commercial television broadcasting licensees and national broadcasters

Captioning obligations – basic rule

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)televisionnewsorcurrent affairs programs transmitted outside designated viewing hours.

Finding

The licensee breached subsection 130ZR(1) of Part 9D of the BSA.

Reasons

Under subsection 130ZR(1) of the BSA, the licensee was required to provide a captioning service for the program as it was broadcast on the licensee’s primary commercial television service[5] during the designated viewing hoursbeginning at 6pm each day and ending at 10.30pm the same day[6]. That is, as the program was broadcast on NRN between 7.30pm and 10.30pm during the designated viewing hours, a captioning service should have been provided for the program.

Section 5 of the Standard requires broadcasters to comply with the requirements relating to quality in the Standard when providing a captioning service in accordance with their captioning obligations under Part 9D.

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 ACMA’s obligation under subsections 130ZZA(1) and (8) of the BSA to determine captioning standards so as ‘to obligate broadcasters to provide a consistent quality of captioning services … and … ensure captioning services are meaningful to the viewer’ [7]. It also reflects the stated purpose of Part 9D which is 'to facilitate improved access to free-to-air and subscription television by Australia’s hearing impaired community'.

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 assessed the quality of the captioning services provided for this program, by reference to the Standard.

As the ACMA has made the finding that licensee has not complied with the requirements of the Standard with respect to the program (see Issue 1), it follows that the broadcast is not eligible to be used by the licensee to comply with its captioning obligations under subsection 130ZR(1) of the BSA.

The licensee has claimed ‘that the error was attributable to significant difficulties of an engineering nature that could not have been foreseen’. The ACMA has therefore considered the application of subsection 130ZUB(1) of the BSAin determining whether the licensee has complied with its captioning obligations under subsection 130ZR(1) of the BSA.

Issue 3: Does subsection 130ZUB(1) of the BSA apply?

Relevant provision

Division2—Captioning obligations of commercial television broadcasting licensees and national broadcasters

130ZUB Certain breaches to be disregarded

(1) If:

a)apart from this subsection, a commercial television broadcasting licensee has breached a provision of this Division; and

b)the breach is attributable to significant difficulties of a technical or engineering nature for the licensee; and

c)those difficulties could not reasonably have been foreseen by the licensee;

then the breach is to be disregarded in determining whether the licensee has complied with the provision.

Licensee’s submissions

Relevant excerpts of the licensee’s submissions can be viewed at Attachment A.

Finding

In accordance with subsection 130ZUB(1) of the BSA, the breach ofsubsection 130ZR(1) of the BSA by the licensee should be disregarded in determining whether the licensee has complied with its captioning obligations under that provision.

Reasons

Under subsection 130ZUB(1) of the BSA,a breach of a provision of Division 2 (captioning obligations of commercial television broadcasting licensees and national broadcasters) can be disregarded in determining whether the licensee has complied with its captioning obligations in that Division if the breach was both attributable to significant difficulties of a technical or engineering nature; and those difficulties could not reasonably have been foreseen by the licensee.

The licensee advised that the program was broadcast live and captioning was delivered without incident to Network Ten’s services.However, the licensee conceded problems with the captioning on its own service for the Northern New South Wales TV1 licence area and consequently investigated the incident.

Cause of faults

After investigating internally, the licensee could find no fault with its MPEG encoder (equipment used to encode caption files at receiver’s end). The licensee also noted that although an MPEG encoder can delay captions by seconds, it is not possible to delay them by minutes.