Northern Rivers (NRN) TV Investigation Report 3094

Investigation Report No. 3094

File No. ACMA2013/1300

Licensee Northern Rivers Television Pty Ltd

Station NRN

Type of Service Commercial Television

Name of Programs Rugby Union – Australia v New Zealand

Date of Broadcast 17 August 2013

Relevant  subsection 130ZZA(4) of Part 9D of the Broadcasting Legislation/Code 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 18/03/2014 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.

ACMA Investigation Report 3094 – Rugby Union – Australia v New Zealand broadcast on 17 August 2013 – NRN

1 The complaint On 22 August 2013, the ACMA received a complaint alleging that the licensee failed to provide a captioning service for the program Rugby Union - Australia v New Zealand broadcast on 17 August 2013 at 7:30pm (‘the program’). The complaint focused on the missing captions during the Australian and New Zealand national anthems, which were screened prior to the commencement of the match itself. 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.

The program The program covered a rugby union test match between the Australian and New Zealand national teams. The program was broadcast live over three hours, and was consequently live captioned.

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 Act 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 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,4 accurate5 and comprehensible,6 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.

1 Subsection 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 ibid, s 130ZZA(1) of the BSA 3 ibid, s 130ZZA(4) 4 s 7(a) of the Standard 5 ibid, section 8(a) 6 ibid, section 9(a) 2 Broadcasting Services (Television Captioning) Standard 2013 ACMA Investigation Report 3094 – Rugby Union – Australia v New Zealand broadcast on 17 August 2013 – NRN

3 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 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 submission The complaint received by the ACMA on 22 August 2013 focused on missing captions, alleging in part that:

At Saturday's Rugby union test between Australia and NZ neither of the national anthems were captioned! A short message stating "national anthem being sang" (or similar) was displayed throughout both country's national anthems. Not only is this very poor quality but it is tantamount to treason!

4 Broadcasting Services (Television Captioning) Standard 2013 Licensee’s submission The licensee’s submission to the ACMA, dated 23 September 2013, accepted that the national anthems were missing captioning, stating in part the following:

At the outset, NRN accepts that the words to the national anthems were not captioned. During the broadcast of the national anthems the caption “The New Zealand national anthem” and “The Australian national anthem” were broadcast.

After pointing out that NRN is a regional affiliate that does not caption programs itself, it provided reasons as to why the program feed was not captioned, stating in part that:

The Broadcasting Services (Television Captioning) Standard 2013 defines captions to mean the visual translation of a soundtrack of a program in English, in word form.

The first part of the New Zealand national anthem was in Maori and hence there wasn’t an obligation to caption these words....The broadcast of the live sporting event was live captioned. In this context, the captioner was not able to translate or comprehend this language at the time. In the circumstances, the captioner considered it would be inappropriate to provide captions for only part of the New Zealand national anthem. Similarly, the captioner determined that it would be inappropriate to only provide captions for the Australian national anthem. To be impartial, the respective “national anthem” caption for each country was displayed.

Finding The licensee, by providing sufficiently readable, accurate and comprehensible captions for the program, complied with the Standard and accordingly complied with the requirements of section 130ZZA(4).

Reasons The ACMA considers that the nature and characteristics of this particular program are important in its assessment. As mentioned above, the program covered the live play of a rugby union match between Australia and New Zealand and was broadcast over three hours. The ACMA reviewed the copy of the broadcast provided by the licensee, and observed the following:  Program start (0:00:00 – 0:31:10): Captioning for the program’s introduction, the host’s introduction, pre- programmed content and panel introduction / commentary is present and presented in a readable and sufficiently timely manner.  Anthems (0:31:11 – 0:34:30): The New Zealand national anthem is sung in New Zealand’s indigenous language from its start for approximately one minute. The rest of the anthem is sung in English (for one minute and seven seconds). Throughout the singing of the New Zealand national anthem, captions referencing New Zealand’s nation anthem appeared four times. The Australian national anthem followed until 34 minutes and 30 seconds with captioning referring to Australia’s national anthem three times throughout.

5  Remainder of program (0:34:31 – 3:00:00): Both anthems were immediately followed by a brief interlude, introducing the New Zealand team’s traditional ‘Haka’ which was captioned. The ‘Haka’ itself was not captioned. The remainder of the program continued with a mix of pre-produced content, panel discussion and on-field commentary. Certain parts of the commentary during play were missing captions. Specific instances include 1:37:05, where approximately 20 seconds of commentary was not captioned, 2:04:04, where approximately 27 seconds of commentary was not captioned and 2:11:48, where approximately 30 seconds of commentary was not captioned. Specific captioning issues came to light upon review of the broadcast, with the key issues expanded on below. Missing captions Subsection 6(a) of the Standard sets out that, when determining the quality of a captioning service for a program, this must be done in the context of the program as a whole. When considering the accuracy of the captioning service, therefore, and the requirement in subsection 8(b)(i) of the Standard that spoken content be captioned, this consideration must occur in the context of the program overall. In regard to the missing captions during the national anthems, it is important to note at the outset that the Standard defines captions as being the visual translation of the soundtrack of a program in English.7 As the New Zealand national anthem is, as submitted by the licensee, partially in the Maori language, the ACMA has formed the view that the Standard does not apply to this segment. It follows that the Standard also does not apply to the ‘Haka’, which was also presented in the Maori language.

This notwithstanding, the remainder of the new Zealand national anthem is in English, as is the entirety of the Australian national anthem. The Standard therefore would apply to these segments. Furthermore, the ACMA observes that the lyrics of both national anthems would be readily available for captioning service providers to include as part of the captions, and the singing of anthems is a regular feature in international sporting events. Given this, and the fact that the participating countries were known in advance, the captions for the English lyrics in both anthems could be prepared in advance. The spoken content that formed the commentary for the match itself, which was missing captions as noted above, was also subject to the requirement to be captioned under subsection 8(b)(i) of the Standard. The content that was uncaptioned in these instances was largely in-play tactical analysis of the team during the match, made by individual presenters from the panel of experts. When viewed in the context of the program overall, the ACMA considers that the missing captions for both the anthems and the commentary did not impede meaningful access to the program for deaf or hearing impaired viewers. Notwithstanding the absence of captioning for the English lyrics in the New Zealand and Australian anthems, and having regard to the acceptable level of captioning for the overall program, the accuracy of the captioning service overall is largely preserved. Similarly, in relation to the commentary, the strong visual content of the game-play itself, combined with the fact that much of the analysis missed was also canvassed by other commentators as part of the general discussion, leads the ACMA to conclude that a person reliant on the captioning service would not have been prevented from viewing and understanding the program. Delay and spelling errors A delay was present throughout the majority of the broadcast, averaging approximately 8 seconds overall. 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’.

7 ibid, s 4 6 Broadcasting Services (Television Captioning) Standard 2013 Having regard to the fact that the program was broadcast live and consequently required live captioning, and having watched the broadcast both with and without audio, the ACMA has formed the view that in the context of the program overall the delay did not affect the comprehensibility of the captions. Similarly, spelling mistakes did occur at various times throughout the broadcast. Although at times these were corrected (see, for example, 1:13:10, where ‘almost away’ was captioned ‘almost a wave’ before being corrected at 1:13:20), there were other occasions where they were not (see, for example, 37:54 where ‘kick’ was misspelled as ‘cake’ and not corrected). 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 this was not always the case in the broadcast, 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.

Conclusions 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.

7 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 17 August 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 service8 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.

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), 130ZR(3), 130ZR(4) and 130ZR(5) of the BSA. 8 Broadcasting Services (Television Captioning) Standard 2013 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 sub-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.