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Investigation Report No. 3105File No. ACMA2013/1308

Licensee General Television Corporation Pty Ltd

Station GTV

Type of Service Commercial Television

Name of Program 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

Decision General Television Corporation Pty Ltd (‘the licensee’) has not complied with subsection 130ZZA(4) of Part 9D of the BSA by failing to comply with the Standard in relation to the distinct program segment within the Nine News program, known as the ‘Not Funny’ program segment;

the licensee has not complied with the requirements of subsection 130ZR(1) of Part 9D of the BSA by failing to provide a captioning service for the distinct program segment within the Nine News program, known as the ‘Not Funny’ program segment in accordance with that subsection; and

the licensee has accordingly breached the licence condition set out in paragraph 7(1)(o) of Schedule 2 to the BSA.

ACMA Investigation Report 3106 – Nine News broadcast on 3 September 2013 - GTV

The complaint

On 5 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 Melbourne studio, from 6pm to 6.30pm (the program). The complaint alleged that the captioning transmitted during the program was inadequate in terms of quality.

As this 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 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.

Two other complaints were received by the ACMA concerning Nine News, broadcast from Sydney on 3 September 2013. This Sydney broadcast is being investigated separately.2

The program

Nine News is a half hour prime time nightly news program, broadcast from Melbourne 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.

The program that is the subject of this investigation included a distinct program segment known as the ‘Not Funny’ program segment.

AssessmentThe 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 Act 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 accurate6 and comprehensible,7 so that they are meaningful to deaf and hearing impaired viewers.

1 Paragraph 147(b) and section 149 of the BSA set out the ACMA’s role in investigating complaints relating to breaches of a licence condition.

2 Investigation 3106 3 ibid, s 130ZZA(1) 4 ibid, s 130ZZA(4) BSA5 para 7(a) of the Standard6 ibid, para 8(a)7 ibid, para 9(a)

ACMA Investigation Report 3106 – Nine News broadcast on 3 September 2013 - GTV 2

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.

The licensee made no further submissions in response to the ACMA’s request for comment on the preliminary report findings.

Issue 1: Whether the licensee provided a captioning service for the ‘Not Funny’ program segment that complied with the Standard and accordingly complied with subsection 130ZZA(4) of the BSA.

Relevant provisions

Division 4 of Part 9D 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.


Complainant’s submissionsThe complaint received at the ACMA on 5 September 2013 alleged in part that:

The whole program had live scrolling captions which were always behind the soundtrack. Some of the stories were clearly recorded before it went to air yet were not block captioned in time with the sound. This unnecessary live captioning is not acceptable.

After seeking clarification from the complainant as to whether the program was broadcast from Sydney or Melbourne, the complainant confirmed that they had watched the program from Melbourne.

In this submission, received by the ACMA on 6 September 2013, the complainant included further details about the program, alleging in part:

[the broadcast] usually is bad but Tuesday seemed to be especially bad with voice and captions being many frames difference (sic). This is so confusing, that the content becomes incomprehensible as I try to swap between lip reading, sound and written words but none of them seem to be saying the same thing. So tiring that I give up (sic)...

Licensee’s submissionThe ACMA sought comment from the licensee on 3 September 2013. In the licensee’s submission dated 3 October 2013, the licensee claimed that the missing captions were due to an error on the part of the captioning service provider, stating in part the following:

After investigation, Nine notes this Program is missing captions for approximately the first 65 seconds of the broadcast. This was due to a [captioning service provider] operator error and was noticed at our National Playout Centre (NPC) at the time of broadcast. Thereafter, an incident report was requested from [captioning service provider] ... The error was observed at 1800 on 03/09/13- at the time of broadcast and was captured immediately. A report was made at 1900 on 03/09/13.

The [captioning service provider] operator allocated to provide captioning had performed the necessary checks and tests beforehand and was standing by ready to go when the bulletin commenced. However, the operator failed to go into 'live' mode at the start and therefore caption data was not broadcast. The broadcast began and stated "This program is captioned live" as the operator was in place to perform this function.

The licensee also submitted that the short duration of the missing captions had no effect on the overall comprehensibility of the program, stating in part that:

The missing captions do not affect the Program's comprehensibility as the missing captions lasted for only approximately 65 seconds in the Program's entire broadcast of 30 minutes, and appeared only in the beginning of the broadcast due to the operator error. The captions did appear during the segment allowing the viewer to comprehend this issue.


In relation to the quality of the captions, the point upon which the complaint centred, the licensee submitted that ‘the captions for the remainder of the broadcast were of sound quality as they were readable, comprehensible and accurate’.

Finally, the licensee stated that remedial action had been taken to ensure that this issue did not recur, and advised that the licensee had since changed captioning service providers, believing that ‘the new captioning service provider...will provide improved services in this regard’.

Ultimately, the licensee considered that as the captions were missing only for a brief amount of time and the remaining captions that were broadcast complied with the requirements of the Standard, no breach of the BSA had occurred.

Finding‘Not Funny’ program segment

The licensee, by failing to provide a captioning service for the ‘Not Funny’ program segment, that complied with the Standard, did not comply with subsection 130ZZA(4) of the BSA.

ReasonsThe program consisted of 20 distinct program segments: an introduction, 16 stories, sport and 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 provided by the licensee and found the following:

the presenter’s opening remarks were not captioned;

twenty-five seconds of the first report (the ‘Not Funny’ program segment) was not captioned. The segment reported on an incident in which an AFL player had set fire to an entertainer during the AFL’s yearly ‘Mad Monday’ celebrations. This included the initial interview, wherein a key person provided an account of events directly relevant to the news story. While the subject was on screen, the text ‘this program is captioned live’ was shown, and five seconds after the subject was no longer on screen (and the story had moved on to focus on a different subject), viewers are presented with a single line of captions from the preceding interview. This text – ‘basically, they put him on fire’ – does not coincide with sound or the visuals being shown at the time; and,

the reporter’s closing remarks for the first story were also not captioned.

As noted above, the licensee in its submission acknowledges that the program ‘is missing captions for approximately the first 65 seconds of the broadcast’ and ascribes this to an operator error.

Section 6(b) of the Standard requires that, when determining the quality of a captioning service for a distinct program segment within a television program, the captioning service must be considered in the context of that distinct program segment on its own. In accordance with this requirement, the ACMA must consider the quality of the captioning service for the ‘Not Funny’ program segment in the context of that segment alone.

Section 8(b)(i) of the Standard sets out that whether or not spoken content is captioned is a factor to be considered when determining the accuracy of the captions.


The portion of the segment that is missing captions includes the presenter’s opening remarks (which provide important context and background regarding the story), as well as the introduction of the person who the story focuses on:

Good evening, Clinton Jones has been revealed as the Saint’s player who set fire to a dwarf during a Mad Monday prank. Both player and club have apologised but league boss Andrew Demetriou has come under fire for dissolving into fits of laughter. Tony Jones reports. He is known as Mr Big, but when Blake Johnston and Arthur Serevetas were booked for St Kilda’s Mad Monday celebrations, neither expected the gig to end in flames.

The initial interview with an eye-witness also went uncaptioned:

‘Some other player, I believe went behind him and he had one of those lighters that you light up a stove with and basically put him on fire’.

The uncaptioned portion of the segment runs for twenty-five seconds, with the segment’s total running time being approximately two minutes and nine seconds.

The licensee submits that the missing captions do not affect the overall comprehensibility of the program.

The ACMA’s view is that, considering the important information imparted to viewers during the uncaptioned segments (including the description of the incident, the introduction of the parties involved and the interview of the eye-witness), that was not imparted to viewers reliant on the captioning service, the missing captions directly affected the overall accuracy and comprehensibility of the captioning service provided for this distinct program segment.

As a result, the requirements relating to accuracy in section 8(b)(i) of the Standard were not met, as spoken content was not captioned.

Having regard to the above considerations, the ACMA concludes that the licensee has failed to provide a captioning service that accurately recreates the soundtrack of the ‘Not Funny’ program segment and has failed to provide captions for that program segment that are accurate. Accordingly, the ACMA makes the finding that the licensee has not complied with the requirements of the Standard and has therefore breached subsection 130ZZA(4) of the BSA with respect to the distinct program segment within the Nine News program, known as the ‘Not Funny’ program segment.

FindingRemaining program segments

For the remaining distinct program segments within the Nine News program, the licensee provided a captioning service that complied with the Standard and therefore complied with subsection 130ZZA(4) of the BSA.


ReasonsWhile reviewing the broadcast, the ACMA identified a number of issues relating to the quality of the captioning service provided in the remaining distinct program segments within the Nine News program. These are listed against each segment in Attachment A, with the key issues highlighted below:

Delays: Delays were present throughout the program, lasting up to nine seconds. On viewing the broadcast both with and without audio, the relationship between visuals and sound was largely preserved, due mainly to the extensive use of location or related footage and other relevant visuals. These visuals remained on screen for a reasonable length of time, allowing the viewer sufficient time to comprehend the message being conveyed.

Identification of speakers: The ACMA identified that there were some readability issues in the program, relating to the colour coding for identification of speakers. Colour coding was inconsistently applied and subject to a number of delays. However, this did not make the captions unreadable, and the overall message of the news stories was still conveyed to the viewer.

Missing captions (introduction segment): Similarly to the ‘Not Funny’ program segment, the ‘Introduction’ program segment was also missing captions; specifically, the voiceover introducing the program’s highlights was not captioned, with only the headline banner graphics identifying the major news stories being displayed. Despite the lack of captions, the introduction remained reasonably comprehensible, largely due to the use of these banners, which sufficed (along with the accompanying video footage) to give an understanding of what news stories would feature on the program. Although a voiceover was employed to provide some background on each story, this background was not any different to the content of the story itself provided later in the program.

Missing captions (all other segments): While certain other program segments were also missing some captions (as set out in Attachment A), these were largely limited to one or two words that, when left out, did not alter the overall comprehensibility of the captioned message.

The ACMA found that the captioning errors in the remaining distinct program segments within the program, did not affect the overall readability, accuracy and comprehensibility of the captioning service provided for the program as a whole. The captioning service provided, along with the strong visual content present, allowed for meaningful access to the remaining distinct program segments within the Nine News program as a whole for persons relying on the captioning service.

Accordingly, the ACMA considers that the licensee complied with the requirements of the Standard in relation to the remaining distinct program segments within the Nine News program and in doing so, complied with subsection 130ZZA(4) of the BSA in relation to those remaining distinct program segments.


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 provisionsSub-section 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 of 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‘Not Funny’ program segment

The licensee did not comply with subsection 130ZR(1) of the BSA, as it did not provide a captioning service for the ‘Not Funny’ program segment in accordance with the basic rule.

ReasonsUnder subsection 130ZR(1) of the BSA, the licensee was required to provide a captioning service for the program, including distinct program segments within the program, as it was broadcast on the licensee’s primary commercial television service8 during the designated viewing hours, which include the half hour between 6pm and 6:30pm.

Paragraph 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.

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.

8 The obligation to provide a captioning service for programs broadcast on the licensee’s primary commercial television service arises by virtue of the exceptions provided for in subsections 130ZR(2), (3),(4) &(5) of the BSA.


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 program, including distinct program segments within the program, by reference to the Standard.

As the ACMA has made the finding that the licensee has not complied with the requirements of the Standard with respect to the ‘Not Funny’ program segment (refer to Issue 1, above), it follows that this program segment would not fulfil the licensee’s captioning obligations under subsection 130ZR(1) of the BSA.

Accordingly, the ACMA has formed the view that the licensee breached subsection 130ZR(1) of the BSA by failing to comply with the basic rule for the distinct program segment within the Nine News program, known as the ‘Not Funny’ program segment.

FindingRemaining program segments

The licensee complied with the requirements of subsection 130ZR(1) of the BSA, by providing a captioning service for the remaining distinct program segments within the Nine News program, in accordance with the basic rule.

ReasonsAs noted above, the ACMA has made the finding that the program complied with the requirements of the Standard for all program segments within the Nine News program other than the distinct program segment within the Nine News program, known as the ‘Not Funny’ program segment (refer to Issue 1, above). The remaining distinct program segments within the Nine News program fulfil the licensee’s captioning obligations under Part 9D of the BSA.

Accordingly, the ACMA has formed the view that the licensee provided a captioning service, as required by s130ZR(1) of the BSA, and thus complied with the basic rule for all program segments within the Nine News program, other than the distinct program segment within the Nine News program, known as the ‘Not Funny’ program segment.


Issue 3: Whether the licensee has complied with the licence condition set out in clause 7(1)(o) of Schedule 2 to the Act.

Relevant provisionsClause 7 of Part 3 of Schedule 2 to the BSA sets out the conditions of commercial television licences, including those relating to captioning. Specifically, sub-clause 7(1)(o) of Schedule 2 to the BSA states that:

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

FindingThe licensee has not complied with the licence condition set out in clause 7(1)(o) of Schedule 2 to the Act.

ReasonsThe ACMA’s finding is that the licensee has not complied with the requirements of the Standard and has therefore breached subsection 130ZZA(4) of the BSA, for the distinct program segment within the Nine News program, known as the ‘Not Funny’ program segment.

Further, the ACMA’s finding is that the licensee has also breached subsection 130ZR(1) of the BSA by failing to provide a captioning service in accordance with that subsection for the distinct program segment within the Nine News program, known as the ‘Not Funny’ program segment.

As a result of these breaches, it follows that the licensee has breached the licence condition in paragraph 7(1)(o) of Schedule 2 to the BSA.


ATTACHMENT ATABLE OF SEGMENTS, THEIR APPROXIMATE DURATION AND ASSOCIATED ISSUES

Seg-ment

Length Story Captioning Issue

1 00:35 Introduction Missing captions

2 02:09 Not funny Missing captions for first 25 seconds

Delay in captioning

Delay in speaker identification

3 01:03 Stabbing arrest Delay in speaker identification.

Slight delay in captioning.

4 01:35 High speed carnage Slight delay in captioning.

Delay in speaker identification.

5 01:35 Makeover slammed Delay in captioning.

Missing speaker identification in parts.

6 00:31 Murder trial None identified.

7 01:36 Fire brigade /blaze update

None identified.

8 02:13 Election update Slight delay in speaker identification

9 01:33 Finals at last None identified.

10 00:19 News ahead None identified.

11 00:26 Police shoot family dog

None identified.

12 01:34 Sleeping easy None identified.

13 00:17 Interest rates None identified.

14 00:25 Dinner diplomacy None identified.

15 00:18 50 shades movie casting

None identified.


Seg- ment

Length Story Captioning Issue

16 00:23 Marathon effort Delay in captioning.

17 00:21 Werribee Zoo Delay in captioning.

18 03:10 Sport Missing some captions.

19 02:14 Weather None identified.

20 00:18 Closing remarks None identified.


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