Investigation Report No. 3106
File No. / ACMA2013/1309Licensee / TCN Channel Nine Pty Ltd
Station / TCN
Type of Service / Commercial Television
Name of Programs / Nine News
Date of Broadcast / 3 September 2013
Relevant Legislation/Code / subsection 130ZZA(4) of Part 9D of the Broadcasting Services Act 1992 (the BSA) and the Broadcasting Services (Television Captioning) Standard 2013 (the Standard)
subsection 130ZR(1) of Part 9D (captioning) of the BSA
paragraph 7(1)(o) of Schedule 2 to the BSA
Date Finalised / 17 March 2014
Decision / No breach of sections 130ZZA(4) and 130ZR(1) of Part 9D of the Broadcasting Services Act 1992.
No breach of clause 7(1)(o) of Schedule 2 to the Broadcasting Services Act 1992.
The complaint
On 4 and 12 September 2013, the ACMA received complaints alleging that the licensee failed to provide a captioning service for the program Nine News broadcast on 3 September 2013 from Nine’s Sydney studio, from 6pm to 6.30pm (the program). The complaints both alleged that the captioning transmitted during the program was inadequate in terms of quality.
As these complaints related to an alleged breach of a licence condition, they were 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 the BSA: [1]
the licensee’s compliance with the Standard and consequently subsection 130ZZA(4) of the BSA;
the licensee’s compliance with subsection 130ZR(1) of the BSA; and
whether the licensee has breached the licence condition at paragraph 7(1)(o) of Schedule 2 to the BSA.
An additional complaint was received at the ACMA concerning Nine News, broadcast from Melbourne on 3 September 2013. This Melbourne matter is being investigated separately. [2]
The program
Nine News is a half hour prime time nightly news program, broadcast from Sydney each week night at 6pm. The program consists of distinct program segments covering the latest local, Australian and national news stories, and includes coverage of sport and weather.
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,[3] with which commercial television licensees must comply.[4]
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,[5] accurate[6] and comprehensible,[7] so that they are meaningful to deaf and hearing impaired viewers.
The Standard came into effect on 5 June 2013, meaning that from this date, broadcasters and narrowcasters must, when providing a captioning service in accordance with their captioning obligations under Part 9D, comply with the requirements relating to quality set out in the Standard.
The findings in this investigation are informed by submissions made by both the complainant and the licensee, and a copy of the broadcast provided to the ACMA by the licensee. Other relevant sources relied upon have been identified in the report.
Issue 1: Whether the licensee provided a captioning service for the program that complied with the Standard and accordingly complied with subsection 130ZZA(4) of the BSA.
Relevant provisions
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.
Subsection 8(a):
When providing a captioning service for a program, broadcasters and narrowcasters must use captions that accurately recreate the soundtrack of a program.
Subsection 9(a)
When providing a captioning service for a program, broadcasters and narrowcasters must use captions that are comprehensible.
Complainants’ submissions
The complaint received by the ACMA on 4 September 2013 centred on the quality of the captioning in the program, stating in part that:
I wish to complain about the poor quality of captioning on ch 9 News, 6pm 3/9/13 (Sydney). Out of sinc (sic). With sound and lots more.
On 12 September 2013, a second complaint regarding the program was received by the ACMA. This complaint also focussed on the quality of the captioning, alleging in part that the program consisted of:
Live scrolling captions that were waaaay (sic) behind the sound track and covered peoples (sic) faces, and I couldn’t understand what was being said. Block captions would have made it understandable.
Licensee’s submission
The licensee’s submission to the ACMA, dated 3 October 2013, refuted the allegations, including in part the following:
The Program's captions appear to be consistent with the news in both synchronisation and accuracy as these are the factors disputed by the complainant. Nine did not notice any issues affecting the quality of the captions in regards to the above factors. Nine News is a live captioned broadcast and therefore rolling captions are part of this procedure. The beginning of the Program states: 'This program is captioned live' to alert our viewers of this procedure.
We have reviewed the Program and confirm the captions provided in the Program are of sound quality since the captions sufficiently transcribe the Program's material. The Program complies with the Act’s requirements of quality of captions being readable, comprehensible and accurate to the ordinary reasonable viewer. Further our captioning service provider confirms there were no reported issues with the captions during this Program.
After review, Nine does not believe this Program was 'impossible to understand' as the captions are of sound quality as they appear consistently and clearly within this Program.
Finding
The licensee complied with the Standard and accordingly complied with subsection 130ZZA(4) of the BSA with respect to the program.
Reasons
The news program consisted of 19 distinct program segments: an introduction, 13 stories, sport, stock/petrol price updates, weather segments and closing remarks at the end. The table at Attachment A lists the distinct program segments and their relevant captioning issues.
The ACMA reviewed the copy of the broadcast and found the following key issues.
Missing captions
The ACMA notes that the bulk of the segment providing updates on the stock market, Australian dollar and petrol pricing items (a segment with a total duration of 18 seconds) are not captioned. Similarly, the weather segment was only captioned in part.
Subsection 8(b)(i) of the Standard requires that spoken content be captioned, while subsection 8(b)(ii) requires that, where possible, it be captioned verbatim.
Both of these segments contained large amounts of text and graphical information which either numerically or pictorially displayed the segment content in visual form. These on-screen visuals did not necessarily capture every word spoken by the presenter during the segment, and were not verbatim.
Having regard to subsection 8(iii) of the Standard, which requires that (where it is not possible for captions to be verbatim) captions reflect the actual meaning of the spoken content, in addition to the large amount of visual content presented, the ACMA has formed the view that the overall meaning of the segment was comprehensible for a viewer reliant on the captioning service.
Delays
A delay was present throughout the entire half hour broadcast, averaging approximately two seconds. When determining whether captions are comprehensible for the purpose of subsection 9(a) of the Standard, subsection 9(b)(iii) of the Standard sets out that a factor to be considered is ‘the extent to which the appearance of the caption coincides with the onset of speech of the corresponding speaker’.
On viewing the broadcast both with and without audio, it was apparent that the delay did not affect the overall comprehensibility of the captions, as the captioned speech was largely able to be attributed to the speaker.
Spelling issues
Most errors in spelling were promptly corrected, making the captions comprehensible. Examples of these corrections occurred at 0:23 seconds where ‘interest’ is captioned ‘interits’, which was then corrected at 0:25 seconds while at 5:06, ‘shaping’ is captioned ‘sheaping’ and corrected at 5:08 and ‘Greenway’ is captioned ‘Green woirks’ at 5:30 before being corrected at 5:34. At 17:50 the word ‘here’ is immediately corrected to ‘hero’. There were other instances of misspelling throughout the broadcast, such as ‘male offender’ being incorrectly captioned as ‘maple offender’ at 2:18, ‘right’ being incorrectly captioned as ‘rite’ at 4:13 and ‘lining’ being incorrectly captioned as ‘rhining’ at 26:15. A complete list of errors (both corrected and otherwise) is provided in Attachment A.
Subsections 9(b)(v) and 9(b)(vi) of the Standard outline that the spelling of captions should either be correct or nevertheless convey the meaning of the actual word. While some spelling errors went uncorrected, the ACMA has formed the view that the captions were nonetheless still comprehensible, and allowed the intended message to be understood by persons reliant on the captioning service.
Placement of captions
The first segment, relating to a police officer being injured by a moving van, used an aerial map and text-based identifiers to demonstrate where significant events took place. Two of the text-based identifiers used in this segment were obscured by captions. Similarly, in the second segment, the electoral map displayed was partially blocked by captions, while the person upon whom the fourth segment focused on had the lower part of her face (from the lower lip down) obscured by captions for approximately two seconds. The remainder of the face was visible.
Subsection 7(b)(iv) of the Standard requires that captions be positioned ‘so as to avoid obscuring other on-screen text, any part of a speaker’s face including the mouth and any other important visuals where possible’. Having viewed the broadcast, the ACMA considers that the placement of captions (insofar as they obscured parts of the visual content) was not of a sufficient duration or impact to impede comprehensibility or significantly reduce the quality of the captioning service.
Conclusions
Section 6 of Standard requires that the quality of a captioning service must be determined either in the context of the program as a whole[8] or, in the case of a program with distinct program segments, in the context of each distinct segment on its own.[9]
Having reviewed the copy of the broadcast provided by the licensee, the ACMA considers that - when considered in the broader context of the overall program - none of the above issues impeded meaningful access to the program for deaf or hearing impaired viewers.
As a result of the above considerations, the ACMA has formed the view that the licensee has complied with the requirements of section 7, section 8 and section 9 of the Standard, by providing a captioning service for the program that is both accurate and comprehensible. In doing so, the licensee has complied with the requirements of the Standard, and consequently with section 130ZZA(4) of the BSA.
Issue 2: Whether the licensee complied with the requirements of subsection 130ZR(1) of the BSA, by providing a captioning service for the program, 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 program on 3 September 2013, in accordance with the basic rule.
Reasons
Under subsection 130ZR(1) of the BSA, the licensee was required to provide a captioning service for the program as it was broadcast on the licensee’s primary commercial television service[10] during the designated viewing hours.
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. The ACMA has made the finding that the program complied with the requirements of the Standard.
Accordingly, the ACMA has concluded that the licensee provided a captioning service, as required by subsection 130ZR(1) of the BSA, and thus complied with the basic rule.
Issue 3: Whether the licensee has complied 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 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 that was sufficiently accurate, readable and comprehensible, in accordance with the quality standards.
Further, the ACMA’s finding is that the licensee complied with subsection 130ZR(1) of the BSA by providing a captioning service 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.