Investigation Report No. 2558
File no. / ACMA2011/492Licensee / General Television Corporation Pty Ltd
Station / GTV Melbourne
Type of service / Commercial television
Name of program / Two and a Half Men
Date of broadcast / 28 February 2011
Relevant legislation / Clause 7(1)(o) of Schedule 2 to the Broadcasting Services Act 1992
Date finalised / 26 July 2011
Decision / Breach of Clause 7(1)(o) of Schedule 2 to the Broadcasting Services Act 1992
The complaint
On 28 February 2011, the Australian Communications and Media Authority (ACMA) received a complaint alleging that the GTV9 failed to provide adequate captioning for the Two and a Half Men program broadcast on 28February 2011.
As this complaint relates to a licence condition, the complaintwas able to be made directly to ACMA without written reference to GTV 9. Nevertheless, the complainant complained to GTV9 in the first instance and not being satisfied with the GTV9’s response, he subsequently referred the matter to the ACMA for consideration. The ACMA has investigated the licensee’s compliance withclause 7(1)(o) of Schedule 2 to the BSA in accordance with section 147 of the Act.[1]
The program
Two and a Half Menis a situation comedy(sitcom) program which at the time of the complaint was broadcast weekdaysat 7.00 pm.
Assessment
The assessment is based on written submissions from the complainant and the licensee. While a copy of the broadcast was provided by the licenseeto the ACMA, and was reviewed by the ACMA, the broadcast did not include the captioning errors which were the subject of the viewer’s complaint. Other sources consulted have been identified where relevant.
Issue: Did the GTV 9 provide a captioning service for the broadcast of Two and Half Men on 28 February 2011?
Relevant provisions
Clauses 7(1)(o) of Schedule 2 and38 of Schedule 4 to the BSA areset out at Attachment A.
Complainant submissions
The complainant’s ACMA broadcasting complaint form submission of 28 February 2011 stated:
Captioning is out of sync with words on channel nine. 7:30pm captions out of sync and phoned for 5th time to get them to fix it. Made it impossible for deaf mother to understand the show two and a half men. Tested TV receiver on other channels and got no problem.
Contacted Channel 9, five times during last week to advise captioning is out of sync. Deaf Mother cannot watch because captioning does not appear with spoken words, thus she misses lipreading the spoken words.Channel 9 has not rang back, merely says they will pass it on.
The complainant in his email to ACMA dated 3 March 2011 added:
Channel nine appeared to have this issue for several days, in particular the 28th of February. Nearly all programs had this issue.I contacted channel nine multiple times and advised them, their switchboard said they would pass it on to their technical people. In the mean time I tested the TV and used an alternative TV to check the problem was not my receiver. Other channels did not display this problem. I fully reset the TV, and this did not resolve the problem. All captioning except live captioning appeared to be out of sync for days. I wrote to you because channel nine did not appear to be taking action on this complaint. Checking last nights transmissions, the problem appears to be resolved, but I remain disappointed they took days to fix this issue, leaving disabled people at a disadvantage.
Licenseesubmissions
The licensee’s response to the ACMA, dated 28 March 2011, included the following:
We were unable to detect any delay in the copies although we were informed by some viewers of a 3 - 5 second delay in the transmission of gtv captions for a short period.This was examined and corrected e (sic) following day. Nine believes that even taking into account the delay, the captions were comprehensible to the hearing impaired.While the tapes do not show a delay, we do accept there was a delay in the captions.
The licensee submitted on 18 July 2011:
... the delay in Two and a Half Men was (no) longer than 5 seconds and on average was observed to be about 3 seconds.
[...]
As advised, following a serious of viewer calls, Nine investigated the delays. Set out below is an explanation of the fault and what action has been taken to repair the system.
Complaint 182 – Caption Synchronisation on Nine Melbourne – 28th February.
Due to an intermittent audio fault on Melbourne Nine transmission, a replacement set of MPEG2 E5710 Encoders was sourced from Ericsson.
On the 24th February the replacement E5710 Encoders were placed on line. Subsequently caption synchronisation errors of approximately 2.5 seconds were observed by Nines Master Control & reported by Melbourne viewers.
Following an investigation by Nine Engineering, it was discovered that one of the replacement Encoder settings – Caption Delay was set to 0 rather than “Teletext Synchronisation”.
The zero setting was allowing captions to pass through the Encoder without incurring a matching delay inherent in the vision & audio compression process.
On Wednesday 2nd March, the incorrectly setup encoder was removed from service & re programmed to provide correctly synchronised captions.
The licensee further submitted on 22 July 2011:
The delay was evident for a substantial part of the program and some delay applied to the whole evening’s programs (excepting those programs that werecaptioned live).
Finding
The delegate is of theview thatGTV 9in relation to the broadcast of theTwo and a Half Men on 28February 2011,breachedclause 7(1)(o) of Schedule 2 to the BSA.
Reasons
The ACMA has not had an opportunity to review the program material in the same form in which it was transmitted to or viewed by the complainant’s mother,that is, including evidence of the transmission errors as reported by the licensee. However, it is not in dispute that some viewers would have experienced continuously delayed transmission of the program or a substantial part of the program.
Two and a Half Men is a comedy/sitcom and as suchit is heavily reliant on dialogue, timing, jokes and nuances associated with the dialogue (such as tone and inflexion), and the storyline is a crucial component of the program.
For this reason, the delegate’s view is that consistent delays on a sitcom of an average of 3 seconds and up to5 secondsin parts would have resulted in the program or substantial components thereof not making sense to viewers relying on captions.
Accordingly, the delegate finds that the licensee breached clause 7(1)(o) of Schedule 2 to the BSAby failing to provide a captioning service under clause 38(1) of Schedule 4 of the Act.
ATTACHMENT A
Part3—Commercial television broadcasting licences
Division1—General
7 Conditions of commercial television broadcasting licences
(1)Each commercial television broadcasting licence is subject to the following conditions:
[...]
(o) if clause38 of Schedule4 (which deals with captioning of television programs for the deaf and hearing impaired) applies to the licensee—the licensee will comply with that clause.
...
Division3 -- Captioning
38 Captioning
Basic rules
(1) Subject to this clause, each commercial television broadcasting licensee ... must provide a captioning service for:
(a) television programs transmitted during prime viewing hours; and
(b) television news or current affairs programs transmitted outside prime viewing hours.
(2) Subclause(1) does not require the provision by a commercial television broadcasting licensee of a captioning service for a television program covered by paragraph 6(8)(d).
[...]
(4) If:
(a) a commercial television broadcasting licence is in force; and
(aa) the licence was not allocated under section38C; and
(b) the licensee provides a core/primary commercial television broadcasting service in the licence area; and
(c) the licensee provides:
(i) a SDTV multichannelled commercial television broadcasting service; or
(ii)a HDTV multichannelled commercial television broadcasting service;
in the licence area;then, before the end of the final digital television switchover day, subclause(1) does not require the provision of a captioning service for a television program transmitted on:
(d) the SDTV multichannelled commercial television broadcasting service; or
(e) the HDTV multichannelled commercial television broadcasting service;unless the program has been previously transmitted on the core/primary commercial television broadcasting service
(4A) If:
(a) subsection 41B(2), (2C) or (2CB) applies to a commercial television broadcasting licence; and
(c) the licensee provides a SDTV multichannelled commercial television broadcasting service that is the licensee’s primary commercial television broadcasting service; and
(d) the licensee provides:
(i) another SDTV multichannelled commercial television broadcasting service; or
(ii)a HDTV multichannelled commercial television broadcasting service;then, before the end of the final digital television switchover day, subclause(1) does not require the provision of a captioning service for a television program transmitted on:
(e) the other SDTV multichannelled commercial television broadcasting service; or
(f) the HDTV multichannelled commercial television broadcasting service;unless the program has been previously transmitted on the primary commercial television broadcasting service.
(4B) If:
(a) a commercial television broadcasting licence is allocated under section38C; and
(b) the licensee provides a primary commercial television broadcasting service in the licence area; and
(c) the licensee provides in the licence area:
(i)another SDTV multichannelled commercial television broadcasting service; or
(ii)a HDTV multichannelled commercial television broadcasting service;then, before the end of the final digital television switchover day, subclause(1) does not require the provision of a captioning service for a television program transmitted on:
(d) the other SDTV multichannelled commercial television broadcasting service; or
(e) the HDTV multichannelled commercial television broadcasting service;unless the program has been previously transmitted on the primary commercial television broadcasting service.
[...]
(6)Subclause(1) does not require the provision of a captioning service by the licensee of a commercial television broadcasting licence that was allocated under subsection 40(1) during:
(a) the first year of operation of the licence; or
(b) if the ACMA, by written notice given to the licensee, allows a longer period—that longer period.
[...]
(9) If:
(a) a commercial television broadcasting licence is in force; and
(aa) the licence was not allocated under section38C; and
(b) before the end of the final digital television switchover day, the licensee transmits a television program on:
(i)a SDTV multichannelled commercial television broadcasting service; or
(ii)a HDTV multichannelled commercial television broadcasting service;
in the licence area; and
(c) the program has been previously transmitted on another commercial television broadcasting service provided by the licensee in the licence area; and
(d) the licensee provided a captioning service for the program when the program was so previously transmitted on the other service;the licensee must provide a captioning service for the television program transmitted as mentioned in paragraph(b).
(9A) If:
(a) a commercial television broadcasting licence is allocated under section38C; and
(b) before the end of the final digital television switchover day, the licensee transmits a television program on:
(i)a SDTV multichannelled commercial television broadcasting service; or
(ii) a HDTV multichannelled commercial television broadcasting service;
in the licence area; and
(c) the program has been previously transmitted on another commercial television broadcasting service provided by the licensee in the licence area; and
(d) the licensee provided a captioning service for the program when the program was so previously transmitted on the other service;the licensee must provide a captioning service for the television program transmitted as mentioned in paragraph(b).
[...]
Prime viewing hours
(11) For the purposes of subclause(1), prime 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.
......
From Section 6 of the Broadcasting Services Act 1992:
"commercial television broadcasting licence" means a licence under Part4 to provide:
(aa) in the case of a licence allocated under section38C—the commercial television broadcasting services that, under section41CA, are authorised by the licence; or
(a) in the case of a licence allocated under subsection 40(1)—a commercial television broadcasting service; or
(b) in any other case—the commercial television broadcasting services that, under section41B or 41C, are authorised by the licence.
"commercial television broadcasting service" means a commercial broadcasting service that provides television programs.
ACMA Investigation Report – Two and Half Men broadcast on 28 February 2011
[1]Section 147 (b) of the Broadcasting Services Act 1992 sets out the ACMA’s role in investigating complaints about breaches of a licence condition.