A submission in response to the Australian Communications and Media Authority’s ‘Review of the captioning obligations in the Broadcasting Services Act 1992 Consultation paper’

July 2016

Submitted by

Natalie Collins

Deputy CEO

Media Access Australia

Phone: 0401 009 202

Email:

About Media Access Australia

Media Access Australia is Australia’s only independent not-for-profit organisation devoted to increasing access to media for people with a disability.

We promote inclusion by providing information and expertise on the accessibility of mainstream technologies to government, industry, educators, consumer organisations and individuals.

We work as a catalyst for change across television, video, cinema, the arts, education, digital technology and online media, with a primary focus on people who are blind or vision impaired, or Deaf or hearing impaired.

Media Access Australia (MAA) grew out of the Australian Caption Centre (ACC), which was founded in 1982. As the ACC we provided captioning services for all Australian television networks, as well as the captioning of live theatre, videos and DVDs. The captioning and other commercial operations of the ACC were sold to Red Bee Media in 2006.

About this submission

Many of the issues raised in this consultation paper were also part of the Department of Communications and the Arts’ ‘Captioning regulatory framework policy consultation’ released in December 2015, to which Media Access made a comprehensive submission. As the ACMA has noted that it “will have close regard to the Department’s consultation and the submissions made to that consultation,” in this present submission we will only briefly reiterate Media Access Australia’s recommendations on the issues we commented on during the previous consultation, adding comment and new information where necessary.

Media Access Australia has no position on some of the issues raised in the consultation paper, and has therefore not commented on these.

Captioning obligations – free-to-air television

Obligations for primary channels

MAA noted in its submission to the Department’s consultation that captioning obligations based on an 18-hour day are an anomaly not replicated anywhere else in the world. They are the legacy of a framework developed during negotiations between broadcasters and organisations representing Deaf and hearing impaired consumers. These were brokered by the Australian Human Rights and Equal Opportunities Commission, and saw caption quotas introduced between 2005 and 2012 for programming between 6 am and midnight. The new captioning requirements included in the BSA in 2012 in followed this framework, rather than the 24-hour day framework found in captioning regulations in the U.S., U.K, Canada and many other countries.

While acknowledging the contention of industry stakeholders that increasing captioning requirements to 24-hours a day will increase costs, we reject the suggestion that this would provide negligible benefit because viewing figures are low during the 12 pm to 6 am period. Factors such as employment conditions determine people watch television, and limiting captioning regulations to an 18-hour day clearly discriminates against some Deaf and hearing impaired consumers.

We note that in its submission to the Department’s consultation, Free TV has provided estimates of the costs for extending captioning obligations to a 24-hour day on primary channels, and to an 18-hour-day, and a 24-hour day, on the multichannels[1]. We assume that these figures are for extending captioning to 100% of programs in these scenarios. However, Media Access Australia would recommend that, as is usual with captioning regulation, new caption quotas are introduced incrementally. (See next section for our recommendations on multichannels)

Obligations for multichannels

Media Access Australia believes that the area of the BSA covering captioning that most urgently requires amendment is that covering multichannels. This is the captioning issue that we receive the most complaints about from consumers. The people who contact us assume that the multichannels are simply not meeting their obligations, and are dismayed to learn that the only requirements that the government has placed on them are to caption repeats.

A survey conducted by MAA in June 2016 found the following levels on multichannels.[2]

Table 1 Captioning Levels on multichannels, April 2014

Channel / ABC24 / ABC2 / ABC3 / SBS2 / 7Two / 7Mate / 9Go! / 9Gem / One / Eleven /
Captioning 6am - midnight / 91% / 92% / 77% / 17% / 43% / 34% / 31% / 56% / 24% / 29%
Captioning midnight – 6 am / 36% / 87% / NA / NA / 56% / 45% / 16% / 53% / 22% / 19%
Total captioning over 24 hours / 77% / 91% / NA / 11% / 46% / 37% / 27% / 55% / 24% / 27%

The figures are on the whole are close to those we found in a survey conducted in 2014 (the full results of which were included in our submission to the Department consultation).

Table 2 Captioning on multichannels, June 2016

Channel / ABC24 / ABC2 / ABC3 / SBS2 / 7Two / 7Mate / 9Go! / 9Gem / One / Eleven
Captioning over 24 hours / 83% / 84% / NA / 15% / 32% / 36% / 28% / 53% / 20% / 24%

We believe the June figures justify our previous recommendation that caption quotas for multichannels should be introduced incrementally, and that an appropriate quota in the first year would be 40% across 24 hours, followed by annual increases of 5%.

As noted in our Department submission, we believe that it would be feasible to end the requirement to caption repeats on multichannels if such a quota is introduced.

Captioning obligations – subscription television

Captioning targets

The consultation paper reiterates two changes to the rules around captioning targets for individual channels raised in the Department’s consultation paper:

  Introducing channel plans with consistent targets across platforms and simplified exemptions.

  Transferring responsibility for meeting the captioning target from the licensee to the channel provider (although the licensee would retain ultimate responsibility for compliance). This would achieve a consistent annual captioning target for each channel, regardless of which provider delivered it.

Regarding the first proposed change, under the current system, a channel that has been assigned a caption quota when offered by one subscription TV licensee may attract a higher quota when offered by another licensee which has fewer channels in that genre. To eliminate this anomaly, the Department’s consultation paper proposed that “the annual captioning target for a channel would be the lowest target that would apply to a licensee providing that channel as a result of category or exemption nominations by STV licensees”. Media Access Australia opposes any change to the subscription channel targets based on this formulation as it means Deaf and hearing consumers who rely on captions would be penalised by having captioning reduced on a channel just because it happens to be offered by two different subscription TV licensees.

We do not have any serious objection to the second proposed change, beyond noting it may result in a more complex system that is more difficult for the ACMA to police.

Modified Formula for sports services

The proposal is that captioning targets for sports services be averaged across all the sports services of a channel provider. The consultation paper notes that Media Access Australia, in its submission to the Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, opposed this change as it could create confusion for consumers. Our submission further noted that “a subscriber to sports channels would receive all of the covered channels, but different subscribers like different sports and there is potential for their chosen sport to be the one that is ‘under captioned’.”

However, we went on to say that, “We understand that the amendment is based around ensuring that particular types of sport are captioned when they switch to other channels to ensure consistency of captioned product, but this needs more explanation and investigation to ensure that it is clear to consumers what they are being offered and what they will receive match closely.” This remains our position on this issue.

Exclusion for time-shifting and high definition services

Media Access Australia supports the current provisions.

Exclusion for new subscription television services

The proposed Senate amendment in 2014 was: “Adding a new clause at the end of section 130ZV that exempts new subscription television channels from any captioning quota for a period of up to one year and 364 days.”

In our submission to the Senate inquiry, Media Access Australia wrote: “The present channel quota system allows licensees to designate new channels as being excluded and not subject to captioning requirements. This takes it a step further and makes it so a new channel is automatically exempt for at least a year. Furthermore, the drafting of the clause is very loose in defining a new channel and would be subject to dispute.

“The current arrangements already give the licensees freedom to choose which channels they want to caption. If they feel a new channel needed to be exempt from caption requirements for whatever reasons, they can do this. We believe this amendment is unnecessary and should be removed.”

We remain opposed to any change to the current arrangements.

Repeat programs

Media Access Australia supports the current arrangements, which apply only to repeats supplied by the same channel provider.

Simultaneously transmitted programs

Media Access Australia supports the current arrangements.

Exemption and target reduction orders

In our Departmental submission, Media Access Australia supported the introduction of a threshold model, as long takes a similar approach to that taken “in the U.K. (where there is an audience share threshold of 0.05%, and a cost threshold of 1% of ‘relevant turnover’) and the U.S. (where there is a cost threshold of 2% of gross revenue). … We believe this would be more open and transparent than the current system where the ACMA grants captioning exemption applications to television services on the grounds of ‘unjustifiable hardship’, but does not release the financial information upon which its decisions are based.”

We also support ASTRA’s recommendation in its Departmental submission that the ACMA should “have the power to vary the terms of an order sought by a STV licensee (or channel provider) for an exemption or target reduction without requiring the entire process to begin again.” The current system is inflexible and encourages applicants to increase the period for which they are requesting exemptions.

The Captioning Standard

Media supports the current formulation of the Captioning Standard.

Emergency warnings

As stated in Media Access Australia’s Departmental submission, we believe emergency warnings are so important that broadcasters should continue to be required to keep records of whether they were captioned. While the basic emergency warning is required to be delivered in text format only, added commentary delivered live as the warning is broadcast, and relayed via captions, could provide vital extra information. It is also in the interests of broadcasters to know whether the caption providers have been resourceful and flexible enough to caption the warnings.

Reporting and record-keeping

As stated in Media Access Australia’s Departmental submission, it is essential to maintain reporting and record-keeping requirements as they achieve two things:

1.  Consumers know that a regulated quota is being met and that the regulations designed to protect their interests are being properly and fairly enforced.

2.  Broadcasters know that they are competing on a level playing field where none of their competitors are attempting to gain an unfair financial advantage through not complying with a required regulation.

Licence conditions and the compliance framework

Complaints process

Our position remains as stated in our submission to the Senate inquiry:

“Simplifying the compliance system is a priority. Consumers are generally not interested in making complaints that then lead to a detailed, legalistic investigation and reporting system that can take up to 9 months to resolve. Generally they want the problem acknowledged, logged and hopefully fixed. If the regulator took a more pro-active, monitoring and spot-checking approach to compliance, then these sorts of issues could be dealt with in a more effective way, including exploring how particular problems arise (as Ofcom is doing with its caption quality initiative detailed above) and how they might be dealt with. Again, in our practical experience, if there is an ongoing, systemic problem with quality then it is pretty obvious to identify and deal with and it is better to direct resources to those instances, rather than chasing one-off, never to be repeated issues with a full legal approach when notification, acknowledgement and being open about the issue is all that is really needed.”

Compliance – linking captioning targets to compliance with the Captioning Standard

Media Access Australia continues to believe that compliance with the caption targets and caption quality are two separate issues. As stated in our submission to the Senate inquiry:

“In our practical experience most channels meet the quotas properly and in a lot of cases over-fill the quota, especially if there is timely, open and public reporting of compliance. If there is a systemic quality problem (as opposed to an occasional glitch) then that is when the regulator should intervene to isolate the causes of the problem and work with the channels to fix them, rather than always look for a legalistic, penalty-based system. This approach should reduce compliance burden as it stops channels from having to fill out forms every time a few seconds of captions are missed.”

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[1] Free TV submission, p. 8.

[2] These figures were sourced from electronic and printed program guides. Figures for SBS include only program to which captioning targets would apply. ABC3 generally does not broadcast after midnight. The figures do not include the two newest multichannels, 7Flix and 9Life.