Is a Captioning Breach Attributable to Unforeseen Technical Or Engineering Difficulties?

Is a captioning breach attributable to
unforeseentechnical or engineering difficulties?

Relevant legislative provisions

A captioning breach that was caused by unforeseen and significant technical or engineering difficulties can be disregarded, under the following sections in Part 9D of the Broadcasting Services Act 1992 (the Act):

130ZUB – for breaches of the captioning obligations on commercial and national television services in Division 2 (captioning targets, the basic rule and the special rules for multi-channels)

130ZZAB – for breaches of the captioning obligations on subscription television services in Division 3 (captioning targets and the captioning rules for repeat television programs and simulcast television programs)

130ZZA(7A) – for breaches of the captioning quality standard determined by the ACMA, applicable to commercial and national television broadcasters and subscription television licensees.

There is more information (and videos) about captioning obligations and the captioning quality standard for television services on theACMA captioning website.

ACMA approach

When investigating complaints about captioning, the ACMA will apply the following three tests to assess whether a captioning breach was caused by unforeseen technical difficulties—and therefore should be disregarded:

Test 1. Whether the difficulties were of a technical or engineering nature

1. A broadcasters or licensee claiming that a breach should be disregardedneeds to be able to specify, if requested, which equipment caused the captioning issues and provide relevantdetails.
2. In general, technical or engineering difficulties may include failure, faults or errors of the equipment, hardware, software, technical or engineering system of the broadcasterconcerned or a relevant third party (such as the captions provider) which are required for the provision of the captioning service.
3. Some examples of technical or engineering difficulties are: corrupted captioning file, failure of caption storage system, faulty captioning encoders and decoders and failure of captioning transmission system.
4. Assessment will be made case-by-case, based on relevant facts and evidence.

Test 2. Whether the difficulties were ‘significant’

The difficulties would be considered to be ‘significant’ if they caused the failure by the broadcaster or licensee to meet:

captioning obligations in Division 2 (for commercial and national television broadcasters) or Division 3 (for subscription television licensees) of Part 9D of the Act; and/or

the captioning quality standard determined by the ACMA.

Division 2 sets out the captioning obligations of commercial and national television broadcasters, including the basic rule, special rules for multi-channelled services and annual captioning targets.

Division 3 sets out the captioning obligations of subscription television licensees, including annual captioning targets and captioning services for repeats of television programs and simultaneously transmitted television programs.

Test 3. Whether the difficulties could reasonably have been foreseen by the broadcaster or licensee

In general, a broadcaster orlicenseeinvoking the exception under sections 130ZUB,130ZZABor 130ZZA(7A) will need to provide detailed information to the ACMA to assist in the assessment of whether a difficulty could not reasonably have been foreseen.

1. If the specific cause of those technical/engineering difficulties can be determined:

1. What quality control systems are in place to identify errors?
2. Does the equipment involved have a history of this type of error?
3. Is the broadcaster aware of the same error occurring for other broadcasters using the same equipment?
4. Has the same error occurred before for the broadcaster?
5. If so, is there action that could have been taken previously to try and prevent it happening again? Was this action taken?
6. Is there action that can be taken to try and prevent it from happening again? If there isn’t, what is the plan for the equipment in future?
7. How often does the equipment get servicedor upgraded?

1. If the specific cause of those technical/engineering difficulties cannot be determined:

1. What quality control systems are in place to identify errors?
2. Which bit of equipment is the error related to?
3. Why can’t the specific cause of the error be determined?

1. Does the equipment involved have a history of errors for which the cause(s)cannot be determined?
2. How often does the equipment get servicedor upgraded?
3. Is there action that can be taken to assist with determining the cause of errors in the future? If there isn’t, what is the plan for the equipment in future?

Cross-referencing

The information provided by the broadcaster or licensee will be cross-referenced with relevant information held by the ACMA, such as information about previous captioning breaches by the same broadcaster (if any). This is to identify whether the same error happened to the broadcaster before and whether the same equipment caused captioning issues to the broadcaster before. If the ACMA records indicate that the errors with the same equipment caused captioning breaches/issues to the same broadcaster in the past, the broadcaster may need to provide further information and evidence to substantiate its claim that the errors could not reasonably have been foreseen.