Broadcasting Authority of Ireland Report on the Effect Of the BAI Access Rules (2017) Page 1 Broadcasting Authority of Ireland 1. Introduction Section 43 (c) of the Broadcasting Act 2009 (“the 2009 Act”) requires the BAI to develop rules that set out the specific steps that each television broadcaster must take to promote the understanding and enjoyment of television programmes by those who are blind or partially sighted, those who are deaf and hard of hearing and those who are hard of hearing and partially sighted. The Access Rules (“the Rules”) set down quantitative and qualitative requirements1 in respect of the provision of subtitling, Irish Sign Language and audio description which broadcasters are required to meet. The targets are set having regard to a range of principles and factors, for example, whether the broadcaster is a public service or a commercial television broadcaster. A copy of the current Rules is attached at Appendix 1. Section 45(3) of the 2009 Act requires the BAI to review the effect of the Rules every two years and to provide the Minister for Communications, Climate Action and Environment with a report on the outcomes of this review; a report which is then laid before both Houses of the Oireachtas. This report sets out the findings of the statutory review undertaken in 2017 by the BAI. The findings of the review are detailed under the following headings:- Section 2 – Methodology. This section summarises the different activities undertaken as part of the review and which have informed the findings; Section 3 – Review Findings. This section summarises the key findings of the review activities undertaken; Section 4 – Potential Policy Options. This section sets out a number of policy options emerging from the review and views of access users, their representative groups and broadcasters on these policy options; Section 5 – Conclusions. A number of appendices are also attached which provide copies of the reports emerging from the review activities. 1 The BAI has published Influencing Factors and guidelines on qualitative requirements in respect of subtitling, Irish Sign Language and audio description. Page 2 Broadcasting Authority of Ireland 2. Methodology The review entailed the following activities:- i. Jurisdictional Review A review of practices and trends in other countries has been a consistent part of the process used by the BAI when developing and reviewing broadcasting codes and rules. It has allowed the BAI to benchmark its regulations against those in other EU countries but also internationally. These reviews also highlight best practice approaches to, and experiences of, regulation that the BAI can learn from or adapt in an Irish context, where appropriate. In the case of the Rules, the jurisdictional review looked at primary and secondary legislation at a national and EU level; regulatory and co- regulatory codes of practice/guidelines; voluntary/Industry codes of practice/guidelines; and other practices implemented to regulate access provision. In addition, the review considered: the rationale and impetus for the introduction of statutory and non-statutory regulation in other jurisdictions; emergent issues pertaining to the implementation, evaluation and impact of existing regulatory practice; differentiating criteria for different types of broadcast services (PSB, Commercial, EU/Non-EU); differences between services provided for the purpose of language translation, those provided for accessibility and overlaps between both types of provision; and grants and subsidies for the provision of access services. ii. Stakeholder Research Broadcasters and the users of accessible services are the key stakeholders for the review and were centrally involved in the development of the Rules and in subsequent reviews.2 This aspect of the review of the effect of the Rules involved the following activities:- A review of approved minutes of the meetings of the User Consultative Panels facilitated since their establishment in 2013. Key informant interviews with broadcasters and access representative groups which explored their perspectives in respect of access service provision and potential revisions to the Rules. 2 In addition, in recent years the BAI has instigated two User Consultative Panels consisting of those who are blind or partially sighted and those who are deaf or hard of hearing. Page 3 Broadcasting Authority of Ireland Meetings with access users, their representative organisations and broadcasters to consider and test draft policy options or suggested changes which may be considered in the context of the ongoing development of the Rules. The practical management of the commitments contained in the Rules, such as the interaction between programme production processes and workflow linked to the creation and inclusion of access services on programmes, has been a consistent issue since the Rules were introduced. This element of the research therefore also looked at the role of human resource factors associated with the provision of the various access services. The costs of providing access services remains a constant issue for broadcasters and this was examined with broadcasters and service providers. In that context, the stakeholder research also entailed:- A focussed round of desk-based research undertaken initially so as to inform the stakeholder interviews. Interviews with representatives of the television broadcasters (RTÉ, TV3, TG4, eir, Oireachtas TV, Dublin Community Television and Cork Community Television) and providers of training in the production of accessible content. These interviews concentrated on identifying, where possible, the following information: the level of required equipment, technology and human resources available to the broadcasters and the cost of these various resources; the factors which influence whether access services are provided ‘in house’ or are purchased from an external provider; and the levers and barriers to providing high quality access service provision. Interviews with current providers of access services to Irish broadcasters. These interviews concentrated on identifying, where possible, the following information: the level (and cost) of access provision; views on the current capacity of providers of access services; and views on the gaps in the indigenous skills base that may or may not limit the development of access service provision. iii. Technical Review This aspect of the review of the effect of the Rules was undertaken in a context where the last ten years has seen significant changes to the amount of home produced and live content available on Irish Television. Advances in technology and the switch-over to Digital TV in 2012 have provided new methods by which broadcasters can provide accessible programming to the Irish viewing audience. Page 4 Broadcasting Authority of Ireland In addition, technical challenges for broadcasters in the transmission of accessible programmes and for users in terms of receiving access services via their televisions and set-top boxes have also been a consistent theme since the introduction of the Rules. The technical review looked at the most recent technical developments in an Irish context and drew on learning and research in other jurisdictions and any developments at an EU legislative level. iv. Review of Compliance Since the introduction of the Rules in 2005, compliance by broadcasters has been assessed on an annual basis. This has been undertaken via monitoring of randomly selected broadcast content for compliance with the quality guidelines established by the BAI3 as well as the provision by broadcasters on a twice-yearly basis of reports detailing accessible content on their services. Feedback from the User Consultative Panels has also informed the compliance activities. This element of the review examined recent trends in compliance and outcomes of enforcement actions by the BAI. 3. Review Findings This section sets out the top-line findings of the review in respect of the research and engagement undertaken as part of the Review. 3.1 Jurisdictional Review The detailed research provides a comprehensive outline of practices in other jurisdictions including: an examination of how regulations take different approaches to the treatment of different types of broadcasters, the developments in the regulation of online and on-demand services, the regulation of access services on minority and foreign language services, and types of funding and support that are available to facilitate the provision of access services. An overall bench-marking of the BAI’s Rules against the regulatory regimes in the countries examined has served to highlight where the Rules are in line with other regulatory approaches and also to indicate new trends or approaches that could be considered as useful or necessary in the review process. 3 These guidelines form part of the Rules and the Rules oblige broadcasters to comply with the guidelines. Page 5 Broadcasting Authority of Ireland The key findings in this regard are set out under the following headings: Methodologies for implementing access rules Gradualist approach Different obligations for different types of broadcasters Market power and audience share Distinctions regarding types of access services Generalist and niche channels, different types of content and time blocks New channels and services Channels that target other countries “Findability” and the requirements to inform viewers of accessibility functions Requirements to have a dialogue with users of accessible