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Investigation Report No. 3176File No. ACMA2014/176

Licensee TCN Channel Nine Pty Ltd

Station TCN (Sydney)Type of Service Commercial Television

Name of Programs Channel Nine Cricket

Date of Broadcast 12 January 2014 – 13:30 to 18:00 12 January 2014 – 18:30 to 22:00 17 January 2014 – 13:30 to 18:0017 January 2014 – 18:30 to 22:00

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 Date 22 August 2014Outcome Breach of subsection 130ZZA(4) of Part 9D of the

Broadcasting Services Act 1992 (the BSA) and the Standard in relation to the distinct program segments within the Channel Nine Cricket program, referred to as the pre-game program segments

Breach of subsection 130ZR(1) of Part 9D (captioning) of the BSA

Breach of paragraph 7(1)(o) of Schedule 2 to the BSAActions by licensee See Attachment A

ACMA Investigation Report 3176 – Channel Nine Cricket broadcast on 12 and 17 January 2014 - TCN

The complaintOn 20 January 2014, the ACMA received a complaint alleging that the licensee failed to provide a meaningful captioning service for the live broadcasts of the International One Day Cricket games broadcast on the following dates and times:

12 January 2014 – 13:30 to 18:00 12 January 2014 – 18:30 to 22:00 17 January 2014 – 13:30 to 18:00 17 January 2014 – 18:30 to 22:00

The complainant alleged that the captions transmitted were inadequate in terms of quality.

As the complaint relates 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 consequently

whether the licensee has breached the licence condition at paragraph 7(1)(o) of Schedule 2 to the BSA.

The programThe International One Day Cricket Series involves five live broadcast games between Australia and England, played in the 50-over format of the game. Each game begins with an introduction and pre-game discussion involving Channel Nine commentators, with the first session of each game (the 13:30 to 18:30 broadcast on each date) containing a more in depth look at the upcoming game and form of both sides.

The bulk of programming for each broadcast involves in-play commentary that generally features each six ball over followed by a short advertisement break, with the occasional extra advertisement breaks after a wicket is taken or during a drinks break. Short post-match interviews are conducted at the conclusion of each game.

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 BSA confers upon the ACMA the power to determine standards relating to the quality of captioning services,2 with which commercial television licensees must comply.3

1 Paragraph 147(b) and section 149 of the BSA form the basis of the ACMA’s jurisdiction to investigate complaints relating to breaches of a licence condition.

2 ibid, s 130ZZA(1) of the BSA3 ibid, s 130ZZA(4)


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The Standard establishes minimum requirements relating to the quality of captioning services. The Standard specifically requires captions to be readable,4 accurate5 and comprehensible,6 so that they are meaningful to deaf and hearing impaired viewers.

This investigation is based on information obtained from 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: Did the licensee provide a captioning service for the programs that complied with the Standard and accordingly complied with subsection 130ZZA(4) of the BSA?

4 s 7(a) of the Standard5 ibid, s 8(a)6 ibid, s 9(a)


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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.

Complainant’s submissionThe complaint received by the ACMA on 20 January 2014 stated, in part, the following:

I wish to complain about the quality of captioning on Channel 9's Cricket broadcasts on Wednesday 15th and Friday 17th January 2014. On both occasions the captioning was the worst I have experienced since captioning began. It is difficult to individualisle (sic) examples, as I did not record it, and it is gone from memory, but I am advised you can request a copy of the recordings from Ch.9. And then you can see for yourself.

The ACMA received clarification on 6 February 2014 from the complainant that the broadcast referred to above for Wednesday 15 January actually refers to the broadcast of Sunday 12 January 2014.

Licensee’s submissions


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The ACMA sought comment from the licensee. In the licensee’s submission dated 13 March 2014, the licensee noted that it had reviewed the broadcasts, stating, in part, that:

[...] the captions provided in the Programs are of sound quality as the captions sufficiently transcribe the Programs material. The Programs comply with the Acts requirements for quality of captions as they are comprehensible and accurate to the ordinary reasonable viewer. Further our captioning service provider confirms there were no reported issues with the captions during the Programs nor did their internal quality assurance program, the Net Error Rate (NER) System, report any discrepancies.

The Programs are live captioned broadcasts and therefore rolling captions are used. It is important to note, that in live programs there are inherent difficulties in relation to accuracy, which has been recognised by the ACMA. The Programs are 16.5 hours long and will inherently contain a few typos, however the captions appear to be present throughout the Programs and satisfy the elements of the quality caption factors. The beginning of the programs state: ‘This program is captioned live’ to alert our viewers.

The licensee maintains that the captions are of “sound quality” and state that they appear consistently and accurately.

At the request of the ACMA made on 26 February 2014, the licensee supplied DVDs with copies of the live broadcasts of the One-Day Cricket series for 12 January and 17 January 2014. A further copy of the 17 January 2014 broadcast was again requested by the ACMA as the initial DVDs supplied contained the uncaptioned broadcast. The licensee supplied the captioned 17 January 2014 broadcast shortly thereafter.

In its second submission received on 21 August 2014, in response to the ACMA’s preliminary findings, the licensee advised:

[…] as noted in our previous submissions by letter dated 13 March 2014, there are inherent difficulties in relation to providing live-captioned broadcasts…This is particularly so in relation to a program such as the cricket, of which broadcasts are lengthy and many of the spoken words of the commentators are unscripted and spontaneous and contain many cricket-related words, slang, proper nouns and names.

FindingPre-game segments

The licensee, by failing to provide a captioning service for the pre-game program segments, that complied with the Standard, did not comply with subsection 130ZZA(4) of the BSA.

ReasonsThe programs broadcast on 12 January 2014 and 17 January 2014 were both of the same format, in that they contained three distinct program segments: the pre-game segment, the cricket match itself and the post-game wrap-up.


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Upon review, the ACMA noted a number of instances during the pre-game segment broadcast on 12 January 2014 where the captions did not accurately reflect the spoken content.

For instance, at 2:347 into the broadcast, the spoken words were as follows:

Graham Swann. This is one of the world’s great finger spinners, from ball one in the series, all of the Australian batsmen took to him.

While the caption read:

Graham’s want. [period of no captions] All of the study and batsman took to him.

Similarly, at 2:28 into the broadcast, the spoken words ‘was going to be rested going into Sydney’ were captioned as ‘was going to be arrested doing in Sydney’. Another example of distorted meaning comes at 8:42, where the spoken words ‘no spinner – I’m a little surprised to see James Treadwell not in this team’ were captioned ‘I’m a little surprised to see a spinner’.

In addition to inaccurate captions, the ACMA noted a number of instances where spoken content went entirely uncaptioned, including significant omissions. These included remarks by the presenters, interviews and voice-overs accompanying highlight footage.

At 2:00, the words ‘the urn is reclaimed’ (relating to the Ashes urn) were uncaptioned, while at 2:45 the words ‘ladies and gentlemen, Michael Clarke and the Australian Ashes team win the series 5 – nil’ were simply captioned ‘Lizard, Michael Clarke’ with the remainder of the statement going uncaptioned. At 30:36, following the return from a commercial break, a highlights reel was shown with some commentary included; this was uncaptioned, with captioning not resuming until the highlights concluded at 31:22.

The exchange between the presenter and cricketer Peter Siddle, at 16:00, demonstrates how a number of errors and omissions combined during the broadcast to alter or remove the meaning of a segment. The spoken content in question was as follows:

Yeah, that was the plan, trying to be yeah, sort of that 4 ½, 5 meter length about the fifth or sixth stump outside off stump, get him to try and field the ball going away from him, and then obviously my natural variation is to come back in off the seam and at the stumps which then obviously brings in his pads.

While the captions stated:

For, 4 ½ length. This my natural variation, is to come back in office seem and at the stumps.

Upon comparison, it is evident that the captions were devoid of the meaning found in the spoken content. Furthermore, the combination of delays and omissions also meant that the captioned content did not necessarily relate to the video footage displayed on screen.

Similar issues were detected in the 17January 2014 broadcast. To begin with, the start of the broadcast (from 1:15 to 2:50) was not captioned. This section consisted of highlights; the presenter commenced speaking from 2:50 onwards. However, captions only commenced at 3:14, resulting in a 24 second lag between the commencement of the spoken content and the commencement of the captions. While the captions ‘caught up’ to the spoken content, the delay meant that the captions were initially displayed on screen very briefly, making it difficult to read all captioned content.

7 All references to time in this report refer to the time in the broadcast and are presented in the format minutes:seconds.


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When reviewing this broadcast, the ACMA also noted a number of instances of inaccurate captions. Spelling errors and omissions (often combined with lag or delay) served to again alter the meaning of the captioned content. For example, at 14:50, the following spoken exchange occurred:

Have a look. There we go. The ball’s going long. Straight in there. So how much has he won? He won 100k.

While the captioned content included:

There you go, the ball is going long. Two Strait Lindback. How much did he win? 100 K.

In this instance, the captioned content did not accurately reflect the meaning of the spoken content. Similarly, at 17:23 the spoken content was as follows:

The cockroach hall of fame. 1996, with Cocky Balboa. Won that. 1995, Priscilla, Queen of the Drains. 1993, Guns and Roaches.

While the captions were as follows:

1996, cocky about lower one. In 1992 Brazil Queen of the dredge.

In the above passage, the captions do not accurately impart the humour present in the presenters’ comments; while these comments were not directly relevant to the cricket match being broadcast, viewers reliant on the captioning service would not have been able to comprehend or understand the banter between presenters. Furthermore, the missing captions for the spoken content ‘the cockroach hall of fame’ would have removed all context for the subsequent captions, making them even less comprehensible.

Another example comes in the pre-game interview with cricketer Alistair Cook, with the spoken content ‘I wanted to ask you about that, actually, did the 24 hours in Canberra ease things?’ being captioned as ‘GB 24 hours in Canberra these things’.

Paragraph 8(a) of the Standard requires broadcasters to use captions that are accurate, with subparagraph 8(b)(i) of the Standard requiring that spoken content be captioned, and subparagraph 8(b)(iii) requiring that (where it is not possible for captions to be verbatim) captions reflect the actual meaning of the spoken content.

Section 6 of the 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, the quality of the captioning service must be considered in the context of that distinct program segment.9

As a result, the ACMA has considered the quality of the captioning service in the context of these distinct program segments, and has found that the frequency and volume of the captioning errors and omissions throughout the pre-game program segment had a negative cumulative effect on the overall comprehensibility of the segment. This resulted in information presented during the pre-game program segment not being meaningful to deaf and hearing impaired viewers and did not facilitate improved access to the program for deaf or hearing impaired viewers reliant on the captioning service.

8 ibid, s 6(a)9 ibid, s 6(b)


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Having had regard to the above considerations, the ACMA has formed the view that the licensee has consequently failed to comply with the requirements of the Standard, and has therefore failed to comply with subsection 130ZZA(4) of the BSA.

FindingRemaining segments

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

ReasonsThe ACMA notes that, notwithstanding incidences of incorrect captioning during the cricket matches themselves and the post-game interviews, on balance, these program segments did provide a captioning service that was considered to be meaningful to deaf and hearing impaired viewers.

Upon review of both broadcasts on the 12 January 2014 and both broadcasts on the 17 January 2014, the captioning issues detected were as follows:

Incorrect captions: Throughout the broadcast, certain captions were inaccurate. For instance, in the 48th over, the word ‘yorker’ is captioned as ‘york are’, while in the second over the name Coulter-Nile is captioned as ‘Called the Nile’. The majority of these errors went uncorrected, though in some instances corrections did occur. That said, the ACMA notes that these corrections did not always serve their intended purpose; in the 35th over, the word ‘terrific’ (used in the phrase ‘terrific batsman’) was captioned as ‘horrific’. Despite subsequently being corrected, the correction also read ‘--- horrific’. Further examples include ‘not out’ being captioned as ‘plot out’, and ‘two here’ being captioned as ‘to hear’, an error that was repeated throughout the broadcasts, as was the misspelling of ‘leg’ as ‘lech’. These errors were largely restricted to the games themselves, with the post-game captioning containing few errors.

Delays: For the majority of these segments, the delay was between 6-8 seconds in duration. This notwithstanding, there were instances where the delay exceeded this average and, at times, resulted in missing captions. For instance, at the commencement of the 43rd over in the second session during the 12 January 2014 broadcast, captions do not resume (following the commercial break) for 12 seconds, with the spoken content during that time going uncaptioned.

Missing captions: Throughout the broadcasts, there were some instances where spoken content went uncaptioned (with an example provided above). Similarly, at the end of each over, the commentators would provide a very brief score update before the program moved into a commercial break. These score updates were largely uncaptioned; it is likely that this is a natural result of the delay inherent in the captioning service provided. The ACMA notes, however, that the score was displayed in a graphical format on screen throughout each over, providing a visual point of reference for viewers. The ACMA further notes that the majority of instances where captions were missing were minor in nature and the intended meaning of the spoken content was still conveyed.


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As previously discussed, the Standard requires broadcasters to accurately caption spoken content and, where it is not possible for captions to be verbatim, to ensure that captions reflect the actual meaning of the spoken content.10 In addition, paragraph 9(a) requires that captions be comprehensible, with subparagraph 9(b)(iii) stipulating that the ‘extent to which the appearance of the caption coincides with the onset of speech of the corresponding speaker, sound effect or music’ is a factor that must be considered when determining comprehensibility.

Again, the ACMA has considered the quality of the captioning service in the context of these distinct program segments and in doing so has had regard to the length of the broadcasts (being around 7 hours in total) and the fact that the program was captioned live. While there were a number of instances of inaccurate captioning detected throughout the broadcast, as well as the occasional delay and missing captions, the ACMA has determined that in the context of these program segments these captioning errors did not affect the overall accuracy and comprehensibility of the captioning service provided. The captioning service provided, along with the visual content present, was meaningful to the viewer and did facilitate improved access to these distinct program segments within the program as a whole for viewers 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 program, and in doing so, complied with subsection 130ZZA(4) of the BSA in relation to those remaining distinct program segments.

10 Ibid, ss 8(a), 8(b)(i) - (8)(b)(iii)


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Issue 2: Did the licensee comply 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 provisionsSubsection 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 BSAFor 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

Pre-game program segments

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

Reasons

Under subsection130ZR(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 service11 during the designated viewing hours, which include the times the program was broadcast.

Implicit in the obligation to provide a captioning service is that the captioning service satisfies requirements relating to quality which are set out in the Standard.

Additionally, 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 under Part 9D.

As the ACMA has made the finding that the licensee has not complied with the requirements relating to quality in the Standard with respect to the pre-game program segments (refer to Issue 1) it has also concluded that the licensee failed to provide a captioning service as required under subsection 130ZR(1) of the BSA.

Accordingly, the ACMA has formed the view that the licensee breached subsection 130ZR(1) of the BSA in relation to the distinct program segments within the program, referred to as the pre-game segments.

11 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) – 130ZR(5) of the BSA.


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Finding

Remaining 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 program, in accordance with the basic rule.

Reasons

As noted above, the ACMA has made the finding that the program complied with the requirements of the Standard for all program segments within the program other than the distinct program segments, referred to as the pre-game segments (refer to Issue 1, above). The remaining distinct program segments within the 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, in relation to all program segments within the program, other than the distinct program segments referred to as the pre-game segments.

Issue 3: Did the licensee comply with the licence condition set out in clause 7(1)(o) of Schedule 2 to the BSA?


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Relevant provisionsClause 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 not 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 has not complied with the requirements of the Standard and has therefore breached subsection 130ZZA(4) of the BSA, for the distinct program segments within the program, referred to as the pre-game segments.

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 segments within the program, referred to as the pre-game segments.

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.


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Attachment A

Steps taken by TCN to address the breach in Investigation 3176According to the licensee’s letter of 21 August 2014, the licensee had undertaken investigation of the broadcast and continued to work with its captioning service provider to ensure that the captioning services were up to standard. Given the circumstance surrounding the breach and the actions already taken by the licensee, the ACMA does not propose to take further compliance action regarding this breach.


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