Investigation Report Nos.3201 3202

Investigation Report Nos.3201 3202

File No. / ACMA2014/315 and ACMA2014/316
Licensee / TCN Channel Nine Pty Ltd
Station / TCN
Type of Service / Commercial Television
Name of Programs / Love Child
(Episodes 1 and 2)
Date of Broadcast /

1. 17 February 2014
2. 24 February 2014

Relevant Legislation/Code / subsection 130ZZA(4) of Part 9D of theBroadcasting Services Act 1992 (‘the BSA’) and the Broadcasting Services (Television Captioning) Standard 2013 (‘the Standard’)
subsection 130ZR(1) of Part 9D (captioning) of theBSA
paragraph 7(1)(o) of Schedule 2 to the BSA
Date finalised / 18 August 2014
Decision / No breach of subsection 130ZZA(4) of Part 9D of theBroadcasting Services Act 1992 (‘the BSA’) and the Broadcasting Services (Television Captioning) Standard 2013 (‘the Standard’);
No breach of subsection 130ZR(1) of Part 9D (captioning) of theBSA; and
No breach of paragraph 7(1)(o) of Schedule 2 to the BSA

The complaint

On 3 March 2014, the ACMA received a complaint alleging that the licensee failed to provide a captioning service for the two episodes of the program Love Child broadcast on 17 February 2014 and 24 February 2014 respectively, both at 8.40pm (the programs). The complaint focused on the missing captions in the programs.

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

the licensee’s compliance with the Standard and consequently subsection 130ZZA(4) of the BSA;

the licensee’s compliance withsubsection 130ZR(1) of the BSA;and

whetherthe licensee has breached the licence condition at paragraph 7(1)(o) of Schedule 2 to the BSA.

The programs

The programs were the first and second episodes of the six part television drama Love Child. Bothprograms were pre-recordedand broadcast with pre-prepared captions.

Assessment

The ACMA has investigated the licensee’s compliance with the captioning obligations imposed under Part 9D of the BSA and the requirements relating to quality set out in the Standard. The outcome of this assessment will determine whether the licensee has breached the licence condition in paragraph 7(1)(o) of Schedule 2 to the BSA.

Subsection 130ZZA of the BSA confers upon the ACMA the power to determine standards relating to the quality of captioning services,[2] with which commercial television licensees must comply.[3]
The Standard is a standard determined under these provisions, and establishes minimum requirements relating to the quality of captioning services. The Standard specifically requires captions to be readable,[4] accurate[5] and comprehensible,[6] so that they are meaningful to deaf and hearing impaired viewers.

This investigation is based on information obtained from submissionsmade by both the complainant and the licensee, and two DVD copies of the programs (each recording divided into four parts)broadcast with captions 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 for the programs that complied with the Standard and accordingly complied with subsection 130ZZA(4) of the BSA?

Relevant provisions

Division 1 of Part 9D of the BSA – Definitions

Section 130ZK:

Program does not include:

(a)advertising or sponsorship matter (whether or not of a commercial kind)…

Division 4 of Part9D of the BSA – 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 5:

Broadcasters and narrowcasters must, when providing a captioning service in accordance with their captioning obligations, comply with the requirements relating to quality in this Standard.

Complainant’s submission

The complaint received by the ACMA on 3 March 2014focused on missing captions, alleging in part that:

I wish to lodge a written complaint regarding some shows recently viewed on Channel 9. These have been less than satisfactory, in the sense that much too much dialogue was not subtitled, resulting in very frustrating viewing.

Licensee’s submission

The licensee’s submission to the ACMA, dated16 May 2014stated in part the following:

We have reviewed the footage of the episodes of Love Child broadcast by TCN Channel Nine Pty Ltd on 17/2/14 and 24/2/14 and are satisfied that the captioning in these programs is adequate. Whilst we acknowledge that there are a few spoken words that are not included in the captions, Nine maintains that these missing captions do not affect the comprehensibility of the programs. Accordingly, in our view the captioning complies with the Broadcasting Services Act 1992 and there has been no breach of a licence condition in this instance.

Finding

The licensee by providing a captioning service for the programs that complied with the Standard has accordingly complied with the requirements of section 130ZZA(4).

Reasons

As mentioned above, the programs covered two episodes of a mini-series.Both were similar in terms of captioning in that the following issues were identified by the ACMA.

Missing captions

Upon review of both broadcasts, the ACMA identified that some dialogue (interspersed throughout the program) and 13 out of the 14 songs were missing captions to some degree. Furthermore, trailers for upcoming episodes were broadcast at the conclusion of each program, and were entirely uncaptioned.

References to specific incidences of missing captions are provided at Attachment A.

Dialogue: In both broadcasts, there were some instances where spoken content was not captioned. These instances of missing captions were largely minor in nature; in the first broadcast, for instance, at 9:58 the spoken content ‘don’t tell me you have to run home to some dreary nurse’s digs or worse to some dreary husband’ was simply captioned as ‘don’t tell me you have to run home or worse to some dreary husband’, while at 10:00 the spoken content ‘I just got off a plane from London this morning and I am very very tired’ was captioned ‘I just got off a plane and I am very very tired’. At 11:24, an entire sentence (‘I thought you’d be made of tougher stuff than that Sister Miller’) went uncaptioned.

In the second broadcast, there were only two instances where dialogue was not captioned: at 12:20, the spoken content ‘that’s it, that’s it’ was not captioned while the end of the spoken sentence ‘it’s better you don’t know, it’ll make it easier in the long run’ was not captioned, with the captions simply stating ‘it’s better you don’t know’.

At the end of each program, excerpts of upcoming episodes were displayed above the closing credits. These excerpts were not captioned.

Songs / Music: A total of 14 songs were interspersed throughout the programs. There were inconsistencies in the manner in which these songs were captioned, with some being captioned completely and others not being captioned at all, as follows:

• Only one of the 14 songs was completely captioned (including title, artist and lyrics);
• During the opening credits for each program, the theme song wasnot givena captioned title or the name of an artist;
• Seven of the nine songs’ lyrics in the first episode lacked captioning. Only the title and the artistwere captioned for these songs, while Song 3’s lyrics were captioned but not its title or the name of itsartist. Given that Song 7 had its title and artist captioned but no lyrics, a viewer reliant on the captioning service would likely have had difficulty understanding the context and purpose of the title and artist captions;
• The music of Song 6 was not described, which is inconsistent with other parts of the programs when incidental music is describedor captioned. Throughout the second episode the captions describe the styles of non-lyricised background music (examples include ‘upbeat music’, ‘gentle piano music’ and ‘jazz music continues’); and,
• Three of the four songs in the second episode lacked captioning with three songs having the title and the artist uncaptioned. All four songs’ lyrics were captioned, and the fourth song was completely captioned (including title, artist and lyrics).

The songs included in the program enhanced the production to the extent that they were specific to the period and the setting. Each song accompanied visual content and in doing so, may have enhanced the entertainment experience for hearing viewers, while for certain audience members the songs may have allowed them to associate with that time in history.

The above notwithstanding, the songs and music were not essential to accurately understanding the scenes they overlaid norto the storyline development. With the exception of the theme song, most songs’ lyrics were indistinct; even for viewers not reliant on the captioning service, a marked increase in volume would have been required to hear the lyrics. In addition, the visual accompaniment throughout those portions of the program advanced the storyline, even in the absence of the song and lyrics.

Trailers: At the conclusion of each program, trailers for upcoming episodes were shown. At this point, the program credits were minimised to occupy approximately one quarter of the screen, and the trailers were displayed above the credits. In both programs, these trailers went entirely uncaptioned. The ACMA has formed the view that these trailers form part of the program broadcast, having regard to their placement during the program credits, the manner in which they give viewers an indication of the continuation of the storyline and its ongoing development. In this way, the trailers progress the storyline, while also giving viewers a preview of upcoming episodes; this experience would have been lost to viewers reliant on the captioning service.

The ACMA has formed the view that (while the Standard applies to these trailers, and requires that they be captioned), the comparatively short duration of one and a half minutesof missing captions meant that, on balance, the accuracy of the captioning service for the program overall was not greatly affected.

Conclusions

Subsection 8(a) of the Standard requires broadcasters to use captions that are accurate, with subsection 8(b)(i) of the Standard requiring that spoken content be captioned, and subsection 8(b)(iii) requiring that (where it is not possible for captions to be verbatim) captions reflect the actual meaning of the spoken content. Section 6 of the Standard requires that the quality of a captioning service must be determined in the context of the program as a whole.[7]

In relation to the segments of dialogue that were missing captions, the ACMA has had regard to these omissions in the context of the program as a whole, and has concluded that – given their infrequency and immateriality to the storyline – the omissions did not impact on the overall accuracy of the captioning service provided.The ACMA concludes that, overall,the instances of missing captions throughout both programs were largely minor in nature and consequently did not impede meaningful access to the program for a person reliant on the captioning service.

The ACMA has also considered the songs which were either completely or partially uncaptioned throughout both programs with reference to subsection 8(vi) of the Standard, which requires that ‘sound effects and/or music, material to understanding the program, not observable from the visual action, have been accurately described’. In the case of the programs in question, the ACMA has formed the view that the songs were not material to understanding the program. As a result, the ACMA has concluded that the lack of captioning in this instance did not impact on the overall accuracy of the captioning service provided.

This notwithstanding, the ACMA notes that the lyrics of the majority of songs broadcast as part of the programs would be readily available for captioning service providers to include as part of the captions, and also notes that the captions for the programs were prepared in advance. Given this, the captions for these songs could also have been prepared in advance to avoid the inconsistency in the captioning provided for the program which has been highlighted above.

Having had regard to the above considerations, the ACMA has formed the view that the licensee has complied with the requirements of the Standard, and has therefore complied with subsection 130ZZA(4) of the BSA.

Issue 2: Didthe licensee comply with the requirements of subsection 130ZR(1) of the BSA, by providing a captioning service for the programs, in accordance with the basic rule?

Relevant provisions

Subsection 130ZR(1) of Part 9D of the BSA

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.

Subsection 130ZL(1) of Part 9D of the BSA

For the purposes of the application this Part to programs transmitted before 1 July 2014, designated viewing hours are the hours:

(a)beginning at 6pm each day or, if another time is prescribed, beginning at that prescribed time each day; and

(b)ending at 10:30pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

Finding

The licensee complied with the requirements of subsection 130ZR(1) of the BSA, by providing a captioning service for the programson 17 and 24 February 2014, in accordance with the basic rule.

Reasons

Under subsection130ZR(1) of the BSA, the licensee was required to provide a captioning service for the programs as they were broadcast on the licensee’s primary commercial television service[8] during the designated viewing hours, which include the times the programs were 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.

Additionally 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.

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 programs by reference to the Standard.

As the ACMA has made the finding that the licensee has complied with the requirements of the Standard with respect to the programs (refer to Issue 1, above), it follows that these programs would fulfil the licensee’s captioning obligations under subsection 130ZR(1) of the BSA.

Accordingly, the ACMA has formed the view that the licensee has complied with subsection 130ZR(1) of the BSA by providing a captioning service for the programs.

Issue 3: Didthe licenseecomply with the licence condition set out in clause 7(1)(o) of Schedule 2 to the BSA?

Relevant provisions

Clause 7 of Part 3 of Schedule 2 to the BSA

(1)Each commercial television broadcasting licence is subject to the following conditions:
...

(o) If a provision of Part 9D (which deals with captioning of television programs for the deaf and hearing impaired) applies to the licensee – the licensee will comply with that provision.

Finding

The licensee has complied with the licence condition set out in sub-clause 7(1)(o) of Schedule 2 to the BSA.

Reasons

The ACMA’s finding is that the licensee complied with subsection 130ZZA(4) of the BSA, by providing a captioning service for the programsthat met the minimum requirements of the Standard .

Further, the ACMA’s finding is that the licensee complied with subsection 130ZR(1) of the BSA by providing a captioning service for the programs, in accordance with that subsection.

It follows that the licensee has complied with the licence condition in paragraph 7(1)(o) of Schedule 2 to the BSA.

Attachment A

Episode 1 Love Child 17/2/2014

1.:51 / Artist , title and lyrics not captioned / SONG 1: completely uncaptioned.
2:10 / Lyrics not captioned / SONG 2: Title and artist are captioned “EASY BEATS ‘LAND OF MAKE BELIEVE’” (Car radio is turned on)
3:32 / Artist and title not captioned / SONG 3: Lyrics captioned.
3:58 / Lyrics not captioned / SONG 4: Title and artist is captioned “EASY BEATS ‘HEAVEN AND HELL’”
9:58 / Dialogue not captioned (underlined) / Don’t tell me you have to run home to some dreary nurse’s digs or worse to some dreary husband
10:00 / I just got off a plane from London this morning and I am very very tired.
10.17 / Artist and title not captioned / SONG 5: Lyrics captioned.
11:16 / Dialogue not captioned (underlined) / No thank you
11:24 / I thought you’d be made of tougher stuff than that Sister Miller.

2.

2.29 / Lyrics not captioned / SONG 6: Title and artist is captioned “EASY BEATS ‘LAND OF MAKE BELIEVE’”
3:44 / Missing audio description / SONG 7:Title and artist is captioned “THE LOVED ONES ‘THE LOVED ONE’”
(No lyrics were sung / only music played)
11.15 / Lyrics not captioned / SONG 8: Title and artist is captioned “BILLY THORPE AND THE AZTECS ‘DONT YOU DIG THIS KIND OF BEAT’”

3.

4.31 / Lyrics not captioned / SONG 9: Title and artist is captioned “RUSSELL MORRIS ‘THE REAL THING’”
12.20 / Dialogue not captioned (underlined) / That’s it That’s it
14.19 / It’s better you don’t know it’ll make it easier in the long run.

4.

2.53 / Lyrics not captioned / SONG 10: Title and artist is captioned “THE SONAR MUSIC BAND AND BRIAN CAMPEAU ‘TO KNOW YOU IS TO LOVE YOU’”
4.35 -5.30 / Missing captions of excerpts from the next episode. / Above first episode’s closing credits – program excepts of the second episode:

Episode 2 Love Child 24/2/2014