FOXTEL - ACMA Investigation Report No 3061

Investigation Report No. 3061

ACMA File Ref. ACMA2013/915

Broadcaster Foxtel Cable Television Pty Ltd

Channel Channel FX+2

Type of Service Subscription television broadcasting service

Name of Program Da Vinci’s Demons

Date of Broadcast 4 May 2013

Relevant Legislation Section 130ZZ of Part 9D of the Broadcasting Services Act 1992 (the BSA)

Paragraph 10(1)(eb) of Schedule 2 to the BSA

Decision Date 27 September 2013

Decision No finding section 130ZZ of Part 9D of the BSA

No finding paragraph 10(1)(eb) of Schedule 2 to the BSA

Investigation conclusion The Australian Communications and Media Authority (ACMA) makes no finding in relation to Foxtel Cable Television Pty Ltd’s compliance with:

 section 130ZZ of the Broadcasting Services Act 1992 (the BSA) [provide a captioning service when transmitting a program that had been previously transmitted with a captioning service on the same or another subscription television service provided by the licensee]; and

 paragraph 10(1)(eb) of Schedule 2 to the BSA [comply with captioning provisions under Part 9D of the BSA].

ACMA Investigation Report – Da Vinci’s Demons broadcast by Foxtel FX+2 on 4 May 2013 1 The complaint On 6 May 2013, the ACMA received a complaint alleging that the licensee failed to provide a captioning service for the program Da Vinci’s Demons broadcast on 4 May 2013. The complaint alleged that the captioning was significantly delayed:

Captions were displayed but were considerably behind the dialogue. I didn’t time them but would estimate at least one minute. This was not happening on other channels I checked, so not a problem with my IQ Box. Watched for about 10 minutes to see if was ongoing and yes it was.

Basically meant that the captions were useless as so far behind.

The channel Foxtel Cable Television Pty Ltd ( the licensee) holds subscription television broadcasting licences to relay its variety of channels.

Da Vinci’s Demons was broadcast on the FX channel and again two hours later on the FX+2 channel. FX+2 is a time-shifted service in that it broadcasts exactly the same content shown on FX but the broadcast of that content is delayed by two hours. Time-shifted channels are identified by the ‘+2’ addendum to the primary channel’s title.

FX is a pass through channel on the Foxtel platform provided by the overseas channel provider Fox International Channels. FX is a ‘General Entertainment’ genre channel (Category A) which attracted a 40 per cent captioning quota for the 2012-13 financial year1. The licensee has informed the ACMA that it will not be including the broadcast of Da Vinci’s Demons at 8.43pm towards this quota. 2

The program Da Vinci’s Demons is described on the imdb.com website3 as:

...the "untold" story of Leonardo Da Vinci: the genius during his early years in Renaissance Florence. As a 25-year old artist, inventor, swordsman, lover, dreamer and idealist, he struggles to live within the confines of his own reality and time as he begins to not only see the future, but invent it. Da Vinci’s Demons is a series of one hour episodes of drama fiction exploring themes of the Renaissance period. The third episode of Da Vinci’s Demons for 2013 was broadcast on 4 May 2013 initially on FX at 6.43pm and two hours later again on FX+2 at 8.43pm (the program). The program’s storyline is based on a mysterious disease affecting a religious

1 Obtained from category nomination information received from Foxtel on 28 June 2013.

2 The Broadcasting Services Amendment (Improved Access to Television Services) Act 2012 introduced new captioning rules into the BSA, including the introduction of annual captioning targets to subscription television licensees from 1 July 2012. 3 http://www.imdb.com/title/tt2094262/plotsummary?ref_=tt_ov_pl

ACMA Investigation Report – Da Vinci’s Demons broadcast by Foxtel FX+2 on 4 May 2013 2 order who believe the disease to be the work of demons. Da Vinci (main character) correctly establishes what is causing the disease.

Assessment This investigation is based on submissions from the complainant and the licensee, and a copy of the recording of the original broadcast at 6.43pm on 4 May 2013 by Fox International Channels on the FX channel, provided to the ACMA by the licensee.

The licensee does not have a copy of the repeated broadcast at 8.43pm on the FX+2 channel, which is the subject of the complaint. Issue 1: Did the licensee provide a captioning service for the broadcast of the program?

Relevant provisions

Clause 10 of Schedule 2 of the BSA Conditions of subscription television broadcasting licences

10 (1) Each subscription television broadcasting licence is subject to the following conditions: …

(eb) 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;

Part 9D of the BSA—Captioning Division 3—Captioning obligations of subscription television licensees

130ZZ Captioning services for repeats of television programs

(a) a subscription television licensee transmits a television program on a subscription television service; and

(b) the program has been previously transmitted:

(i) on the same subscription television service; or

(ii) on another subscription television service provided by the licensee; and

(c) the licensee provided a captioning service for the program when the program was so previously transmitted;

the licensee must provide a captioning service for the television program transmitted as mentioned in paragraph (a).

Note 1: For compliance by subscription television broadcasting licensees, see clause 10 of Schedule 2.

[...] Licensee’s submissions The licensee’s first submission received on 16 May 2013 stated: [...]

ACMA Investigation Report – Da Vinci’s Demons broadcast by Foxtel FX+2 on 4 May 2013 3 FX is a pass through channel on the Foxtel platform. FX+2 is a +2 channel (ie a replicate of the original channel) broadcast by Foxtel on delay. Foxtel records the transport stream provided by FX to play out the channel on delay. During this process, the original feed’s audio, visual and associated data is not separated by Foxtel. Foxtel does not retain a copy of this recorded transport stream.

[...] The licensee’s second submission received on 5 June 2013 stated: [...]

Our +2 channel broadcasts are transmitted as originally broadcast but on a 2 hour delay. As previously explained we record the original broadcast, delay for 2 hours and rebroadcast. There were no error logs from our Master Control Room relating to the FX+2 channel for that period and so we have no record of there being an issue with this broadcast.

We have reconfirmed that there were no problems with the original channel that was played out by Fox International at 6.43pm on 4 May 2013 and was provided to us for broadcast.

... Foxtel ... does not intend to claim this broadcast towards its annual captioning targets for the 2012- 2013 financial year.

[...] The licensee’s third submission received on 10 July 2013 stated: [...]

Foxtel is unable to provide an "as transmitted" recording of the +2 broadcast of the program although we have provided you with a copy of the program that was played out by FX on the primary channel earlier that evening. The DVD copy demonstrates that there was no delay in captioning on the primary broadcast. As such, Foxtel can confirm that there were no issues with the preparation and presentation of the captioned content of the program.

Foxtel has no other evidence available to it to suggest that there was a delay in the captioning of the program when broadcast later that evening on the +2 channel for reasons articulated to you in previous correspondence on this matter ....

As far as Foxtel is aware from the investigations conducted to date, the program was broadcast with a captioning service.

An examination of all relevant systems has been undertaken in order to assess the transmission of captions for the program and to determine whether a technical anomaly in our broadcast platform may have occurred at the time in question...

Having reviewed the customer contact logs and complaints logs, Foxtel has no record of receiving complaints or technical enquiries relating to captioning on FX+2 or specifically in relation to the program on 4 May 2013 or the week following.

None of our investigations... indicate that there was an issue in the broadcast of the captioning service of the program on the FX+2 channel on the 4 May.

Although Foxtel cannot refute with absolute certainty a service-affecting event impacting on the transmission of closed captions with the program in question, it has been unable to find evidence of any irregularities in the broadcast of the program within compliance recordings, equipment logs, customer contact logs or service monitoring records.

ACMA Investigation Report – Da Vinci’s Demons broadcast by Foxtel FX+2 on 4 May 2013 4 ...Foxtel has no evidence to indicate that the captioning delay alleged by the complainant was due to a problem in the program as broadcast by Foxtel.

Finding The ACMA makes no finding in relation to the licensee’s compliance with section 130ZZ of the BSA.

Reasons As indicated above, the licensee does not have a copy of the program under consideration in this investigation which was broadcast at 8.43pm on FX+2 on 4 May 2013. The identical program was broadcast two hours earlier at 6.43pm on 4 May 2013.

In summary, the licensee has submitted the following in relation to the broadcast of the program at 6.43pm: and the repeat at 8.43pm

 Our +2 channel broadcasts are transmitted as originally broadcast but on a 2 hour delay. As previously explained we record the original broadcast, delay for 2 hours and rebroadcast.

 The DVD copy of the playout by FX on the primary channel at 6.43pm demonstrates that there was no delay in captioning on the primary broadcast. As such, Foxtel can confirm that there were no issues with the preparation and presentation of the captioned content of the program.

 Having reviewed the customer contact logs and complaints logs, Foxtel has no record of receiving complaints or technical enquiries relating to captioning on FX+2 [at 8.43pm] or specifically in relation to the program on 4 May 2013 …

 Although Foxtel cannot refute with absolute certainty a service-affecting event impacting on the transmission of closed captions with the program in question, it has been unable to find evidence of any irregularities in the broadcast of the program within compliance recordings, equipment logs, customer contact logs or service monitoring records. Copy of 6.43pm broadcast: The copy of the broadcast from 6.43pm on FX on the same day reveals issue-free captioning. The ACMA assessed whether the program would be comprehensible to a person relying on the captions. This process was undertaken by the ACMA viewing the program with captions and without audio. The ACMA then compared the captions to the sound track. No captioning issue was identified.

Monitoring logs of the 8.43pm broadcast: The server log for the broadcast at 8.43pm on FX+2 showed no issue with the delivery of the program via the (two hour) delay server.

The licensee provided to the ACMA a detailed and confidential explanation of the licensee’s monitoring of its broadcast services and processes for maintaining quality and availability. The ACMA notes that the details recorded relate to issues with streams, continuity of captioning whilst on-air, failure to synchronise clock and reference signals to captioning tracks and failures with playout and delay servers. This monitoring would establish whether the broadcast platform was

ACMA Investigation Report – Da Vinci’s Demons broadcast by Foxtel FX+2 on 4 May 2013 5 capable of carrying caption information however it does not monitor the presence or timing of captions on a particular program. The licensee concludes:

There are no logs indicating a technical anomaly in the delivery of captions for the FX+2 channel on the evening of 4 May.

Conclusion:

While the licensee has provided evidence that there were no error logs in relation to the broadcast at 8.43pm on FX+2 and that the original broadcast of the program two hours earlier did not contain any captioning defects, the ACMA has not been able to view the program under consideration in order to assess what was broadcast. Accordingly, the ACMA is not in a position to make a finding in relation to whether the licensee complied with subsection 130ZZ of the BSA.

Additional Comment: The ACMA is aware that the licensee has commenced implementation of a compliance recording system for all of its captioning channels across the Foxtel platform. The ACMA understands this compliance recording system will be implemented in the first half of the current financial year (2013-14).

ACMA Investigation Report – Da Vinci’s Demons broadcast by Foxtel FX+2 on 4 May 2013 6