Review of the captioning obligations in the Broadcasting Services Act 1992
Consultation paper
JUNE 2016
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1. Introduction
2. Glossary
3. Legislative framework
4. Context
5. Overview of issues
6. Exempt material
7. Captioning obligations—free-to-air television
8. Captioning obligations—subscription television
9. Exemption and target reduction orders
10. The Captioning Standard
11. Emergency warnings
12. Reporting and record-keeping
13. Licence conditions and the compliance framework
14. Part 9D drafting
Invitation to comment
Appendix A: Compliance data and other information
Appendix B: Calculating annual captioning targets for subscription television
Appendix C: Information for consumers—how to make a complaint
acma|1
1. Introduction
1.1 Captioning obligations in the Broadcasting Services Act 1992
The captioning obligations forfree-to-air commercial television broadcasting licensees, national television broadcasters (free-to-air television broadcasters), subscription television broadcasters and narrowcasters (subscription television licensees)are set out in Part 9D of the Broadcasting Services Act 1992 (BSA).[1] These requirements cover:
rules about the captioning that is required
reporting and record-keeping on compliance with these rules
the requirement for a Captioning Standard about the quality of captions.
Part 9D to the BSA was introduced in 2012.[2]The Explanatory Memorandum to the associated Bill[3] noted the amendments facilitate improved access to free-to-air and subscription television by Australia’s hearing-impaired community.[4]
The Explanatory Memorandum noted the Bill was compatible with Australia’s human rights obligations because it would increase access to television services for people with a hearing impairment and increase access to emergency warnings on television for people with a hearing or vision impairment.[5]
The broader regulatory regime for radio and television broadcasting services, including digital services, is also established under the BSA.It sets out the overall objects, regulatory policy and the intention of Parliament regarding the regulation of broadcasting services.
A key plank of the regulatory policy is the express intent of Parliament that broadcasting services be regulated in a manner thatenables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services.[6]
1.2 Review of the captioning obligations
Part 9D of theBSArequires the ACMA to conduct a review of theoperation of captioning obligations and associated licence conditions at Schedule 2 to the BSA (the ACMA statutory review).[7]
The terms of the ACMA statutory review as set out in section 130ZZE of the BSAare:
(1)Before 31December 2016, the ACMA must conduct a review of the following matters:
(a) the operation of this Part;
(b) whether this Part should be amended;
(c) the operation of paragraph7(1)(o) of Schedule2;
(d) whether paragraph7(1)(o) of Schedule2 should be amended;
(e) the operation of paragraph10(1)(eb) of Schedule2;
(f) whether paragraph10(1)(eb) of Schedule2 should be amended;
(g) the operation of paragraph11(1)(bc) of Schedule2;
(h) whether paragraph11(1)(bc) of Schedule2 should be amended.
Consultation
(2)In conducting the review, the ACMA must make provision for public consultation.
Report
(3)The ACMA must give the Minister a report of the review before 30June 2017.
(4)The Minister must cause copies of a report under subsection(3) to be tabled in each House of the Parliament within 15 sittings days of that House after receiving the report.
Terms 1(a) and (b) refer to the operation of the Part 9D rules. Terms 1(c) to (h) focus on the fact that compliance with Part 9D isa licence condition for commercial and subscription television broadcasting licensees, and broadcasting services provided under a class licence (relevantly subscription television narrowcasters).
1.3 Approach to the review
The BSA requires the ACMA to review the operation of the captioning rules in the BSA only. Captioning on other platforms is out of scope for this review.
The focus therefore, is on considering the efficiency and effectiveness of captioning rules for television services. In conducting the review, the ACMA will be guided by the public interest that subsists in both improving access to television services for Australia’s deaf and hearing-impaired community and minimising unnecessary administrative and financial burdens for industry.[8]
In December 2015, the Department of Communications and the Arts (the Department) released a Captioning regulatory framework policy consultation paper (the Department’s consultation).[9]The ACMA will have close regard to the Department’s consultation and the submissions made to that consultation.For that reason, it is unnecessary for submitters to the Department’s consultation to make duplicative submissions to the ACMA’s statutory review. However, the ACMA welcomes all submissions relevant to the operation of Part 9D and the relevant Schedule 2 provisions.
Following its consideration of submissions, further consultation may be undertaken with stakeholders, to ensure the implications of any proposals for change are properly considered.
The ACMA must conduct the review before 31 December 2016 and provide a report of its review to the Minister before 30 June 2017.
It should also be noted that as a federal election is taking place on 2 July 2016, Commonwealth agencies, including the ACMA, are currently subject to the caretaker conventions. Future policy decisions on captioning will be determined by an incoming government. Whatever the outcome of the ACMA statutory review process, any decision to make any changes to Part 9D of the BSA is a question for government.
2. Glossary
Abbreviation / MeaningACMA / Australian Communications and Media Authority
BSA / Broadcasting Services Act 1992
Free-to-air television broadcasters / Free-to-air commercial television broadcasting licensees and national broadcasters
Subscription television licensees / Subscription television broadcasters and subscription television narrowcasters
The Captioning Standard / Broadcasting Services (Television Captioning) Standard 2013
The Deregulation Bill / Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014
The Deregulation Act / Broadcasting and Other Legislation Amendment (Deregulation) Act 2015
The Senate Inquiry / Senate Environment and Communications Legislation Committee 2014 Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014
The Department / Department of Communications and the Arts
The Department’s consultation / Department of Communications and the Arts Captioning regulatory framework policy consultation paper, December 2015
3. Legislative framework
3.1 Summary of captioningrequirements
Captioning rules for free-to-air commercial television broadcasting licenseesand national television broadcasters (free-to-air television broadcasters) and subscription television broadcasters and narrowcasters (subscription television licensees) are set out in Part 9D of the BSA.
Captioning obligations forfree-to-air television broadcasters
Free-to-airtelevision broadcasters are required to caption:
100 percent ofprograms broadcast between 6am and midnight on their primarychannels
all news and current affairs programs broadcast at any time on their primary channels.[10]
The provisions require television programs to be transmitted with captions on a licensee’s multi-channelled commercial television broadcasting service, or a national television broadcaster’s multi-channelled service, if that same program has been previously transmitted with captions on another of the licensee’s or national broadcaster’s television broadcasting services.[11]
Free-to-air television broadcasters and subscription television licensees are not required to caption programs that are wholly in a language other than English, programs that consist wholly of music with no human vocal content that is in English, or parts of programs with no human vocal content.[12]
Captioning obligations for subscription television licensees
Subscription television licensees will eventually be required to caption 100 per cent of programs in a 24-hour period. The legislation, however, allows this target to be reached gradually.[13]
There are nine different categories of subscription television services and each has a different annual captioning target. These targetsincrease by five per cent each year until the target reaches 100 per cent.[14]For example:
For 2015–16, the annual target for category ‘A’ movie services is 80 per cent. This target will reach 100 per cent by 2019.
For 2015–16, the annual target for sports services is 20 per cent (noting licensees can aggregate the required target across sports channels provided by the same channel provider, as long as each service provides at least two-thirds of the required target).[15]This target will reach 100 per cent by 2031.
Subscription television licensees may nominate a particular number of services within a genre as exempt (s130ZX exemptions). Specific conditions apply to this nomination. The number of services that can be nominated as exempt will diminish incrementally until 2022, when no services can be claimed under this exemption.
A new subscription television service is exempt from the captioning obligations for a certain period, if it predominantly consists of programs not previously transmitted in Australia prior to the commencement of the service.[16]
Captioning standards
Free-to-airtelevision broadcastersand subscription television licensees are required to comply with standards determined by the ACMA that relate to the quality of captioning services.[17] The Broadcasting Services (Television Captioning) Standard 2013 (the Captioning Standard) currently sets out requirements relating to the quality of captioning services that include the readability, comprehensibility and accuracy of the captions.
Emergency warnings
When transmitting an emergency warning upon request by an emergency service agency, free-to-air television broadcasters and subscription television licenseesare required to transmit the whole warning in text and speech and, if practicable, provide a captioning service for the warning.[18]
Exceptions to compliance with captioning obligations
Breaches of the obligation to provide captioning services may be disregarded if they are attributable to significant difficulties of a technical or engineering nature that could not have been reasonably foreseen by the television broadcaster/licensee.[19]
Exemptions and target reduction orders
Free-to-airtelevision broadcastersand subscription television licensees may apply to the ACMA for exemption orders and target reduction orders for specified television services for one to five financial years, on the grounds of unjustifiable hardship.[20]
Annual compliance reporting and record-keeping
Free-to-air television broadcasters and subscription television licensees are required to give annual reports to the ACMA relating to compliance with captioning obligations, the Captioning Standard and the broadcast of emergency warnings. These reports are to be in a form approved by the ACMA.[21]
They are also required to make written records, in a form approved by the ACMA, demonstrating compliance with captioning obligationsas well as audio-visual records demonstrating compliance with the Captioning Standard and emergency warning broadcasts.[22]
3.2 Compliance and enforcement framework
Framework for regulation established by the BSA
The overall framework of regulation established by the BSA is a combination of:
direct regulation(including standards and licence conditions)
co-regulation (industry codes).
The ACMA has a range of powers intended to enable it to deal effectively with breaches of the rules in a manner commensurate with the seriousness of the breach.
Where a licensee breaches a licence condition under the BSA, the ACMA has the power to issue a remedial direction requiring actions to secure future compliance, accept an enforceable undertaking, impose an additional licence condition, or suspend or cancel a licence.
Where there has been a breach of a code, the ACMA may accept an enforceable undertaking for the purpose of securing future compliance with the code or impose an additional licence condition requiring a licensee to comply with the code. The ACMA may also informally agree to accept measures by broadcasters to improve compliance. For example, the ACMA has on many occasions agreed measures with licensees involving action by them to address compliance problems. Such measures have often succeeded in improving compliance behaviour.
Compliance reports by broadcasters to the ACMA, as well as complaints made to and investigated by the ACMA,represent additional and transparent ways of monitoring and encouraging regulatory compliance. Free-to-air television broadcasters and subscription television licensees must prepare and give the ACMA a report, within 90 days after the end of each financial year, relating to their compliance with captioning obligations.
Further information about the ACMA’s compliance and enforcement approach can be found in the ACMA’s compliance and enforcement policy.[23]
Compliance framework for captioning on free-to-air commercial television and subscription television
Compliance with the Part 9D captioning rules for free-to-air commercial television broadcasters and subscription television licensees is a licence condition listed in Schedule 2 of the BSA.
Some provisions about captioning are also included in the Subscription Broadcast Television Codes of Practice 2013 and theSubscription Narrowcast Television Codes of Practice 2013. These state that closed captioning, where available, will be clearly identified in program schedules and program guides.
The Commercial Television Industry Code of Practice 2015 does not include equivalent provisions about closed captioning.
Compliance framework for captioning on national broadcasting services
The national broadcasters, ABC and SBS, are not licenced services under the BSA. They are independently authorised to broadcast under the Australian Broadcasting Corporation Act1983 and Special Broadcasting Service Act 1991, respectively.
For the national broadcasters, non-compliance with the Part 9D captioning rules is a breach of the BSA.
If the ACMA were to find that a national broadcaster had breached the BSA, it could recommend certain actions the broadcaster should take. If the national broadcaster did not act on the ACMA’s recommendation, the ACMA could report the matter to the Minister, who must table the report in Parliament.
The ABC and SBS television codes of practice do not include provisions about captioning.
Disability Discrimination Act 1992(Cwlth)
Part 2 of the Disability Discrimination Act 1992 (the DDA) prohibits discrimination on the basis of a person’s disability.Exemptions to this prohibition are provided in Division 5 of Part 2. Specifically, subsection 47(2) provides that Part 2 does not make unlawful anything done by a person in direct compliance with a prescribed law.
Part 9D is a prescribed law for the purposes of subsection 47(2) of the DDA. This means that television broadcasters, acting in direct compliance with their captioning obligations under the BSA, cannot otherwise be liable for unlawful discrimination under Part 2 of the DDA.
4. Context
4.1 History of the Part 9Dcaptioning obligations
As noted above, Part 9D to the BSA was introduced into the BSA in 2012. Prior to 2012, the ACMA was responsible for investigating compliance with captioning obligations (contained in the BSA) for free-to-air television broadcasters, while the Australian Human Rights Commission could grant broadcasters/licensees, on application, temporary exemptions from having to provide a captioning service.
The Broadcasting Services Amendment (Improved Access to Television Services) Act 2012 consolidated captioning regulation in the BSA with the introduction of Part 9D.This legislation introduced captioning obligations for subscription television, required the ACMA to develop a standard relating to the quality of captioning services and specified that a review of the captioning requirements must be undertaken by December 2015 (the current ACMA statutory review with a revised date).
In late 2013, the former Minister for Communications invited stakeholders to advise on areas where regulation could be improved or was unnecessary. During this process, stakeholders identified the costs of the captioning reporting obligations as an issue for consideration.
In October 2014,the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014(the Deregulation Bill) was introduced to Parliament. In relation to captioning, the proposed amendments included:
removing annual compliance reporting requirements for free-to-air television broadcasters
allowing subscription television licensees to aggregate the required quota across sports channels provided by the same channel provider
changes to repeat captioning obligations for subscription television licensees
captioning exemptions for new subscription channels in their first year of operation
changes to record-keeping requirements
changes to the framework for the captioning quality standard.
The Deregulation Bill generated stakeholder comment, particularly about the impact that the removal of the annual reporting requirements for free-to-air television might have on the viewing experience for deaf and hearing-impaired consumers.
The Senate referred the provisions of the Deregulation Bill to the Senate Environment and Communications Legislation Committee for inquiry and report by 9 February 2015 (the Senate Inquiry). The Senate Inquiry received 26submissions[24] relating to the proposed captioning changes and the report is available from the Parliament of Australia website.[25]
TheBroadcasting and Other Legislation Amendment (Deregulation) Act 2015 (the Deregulation Act) was passed on 19 March 2015. Amendments to the captioning frameworkincluded:
the ability to average out captioning targets for sports channels across all the sports services provided by a particularchannel provider to a subscription licensee
amendments to the requirements for captioning of repeat programs for subscription television licensees
automatic exemption from captioning requirements for new subscription television channels in their first year of operation, if the service is predominantly transmitting content not previously broadcast in Australia
addition of provisions relating to the framework for the quality standards