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Investigation Report No. 3177File No. ACMA2014/177

Licensee WIN Television NSW Pty Ltd

Station WIN (Southern New South Wales)

Type of Service Commercial Television

Name of Program National Nine News

Date of Broadcast 6 January 2014

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

Date Finalised 1 October 2014

Investigation conclusionThe Australian Communications and Media Authority (ACMA) makes the following findings:

WIN Television NSW Pty Ltd (the licensee) has not complied with the requirements of subsection 130ZZA(4) of Part 9D of the Broadcasting Services Act 1992 (BSA) by failing to comply with the Standard in relation to 11 distinct program segments within the National Nine News program broadcast on 6 January 2014 (the program);

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 11 distinct program segments within the program; and

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

The complaintOn 10 January 2014, the ACMA received a complaint alleging that the licensee failed to provide a captioning service for the program National Nine News broadcast on 6 January 2014, from 6pm to 7pm (the program). The complainant watched the broadcast in Canberra and alleged that the captions transmitted were inadequate in terms of quality.

As the 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 consequently

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

The programNational Nine News is an hour long prime time nightly news program, broadcast each week night from 6pm on WIN Southern New South Wales. The program covers the latest local, Australian and national news stories, and includes segments on finance, sport and weather.

The program in question consisted of 44 distinct program segments: an introduction, 28 stories, finance report, weather and sport segments, a promotion for A Current Affair, headline recaps and closing remarks.

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

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.

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

ACMA Investigation Report 3177 – National Nine News broadcast on 6 January 2014 - WIN2

Issue 1: Did the licensee provide 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.

Section 6:(a) Subject to paragraph (b), when determining the quality of a captioning service for

a program, the captioning service must be considered in the context of the program as a whole.

(b) When determining the quality of a captioning service for a program that is 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.

(c) When determining the quality of a captioning service, the cumulative effect of the following factors must be considered:(i) the readability of the captions;(ii) the accuracy of the captions; and(iii) the comprehensibility of the captions.

Section 8: Accuracy of captions(a) When providing a captioning service for a program, broadcasters and

narrowcasters must use captions that accurately recreate the soundtrack of a program.

(b) When determining whether captions accurately recreate the soundtrack of a program, the following factors must be considered in the context of the program as a whole:(i) whether spoken content has been captioned;

Section 9: Comprehensibility of captions(a) When providing a captioning service for a program, broadcasters and

narrowcasters must use captions that are comprehensible.(b) When determining whether captions are comprehensible, the following factors

must be considered in the context of the program as a whole:(i) whether the captions clearly identify and distinguish individual speakers,

including off-screen and off-camera voices;


(ii) whether the captions are displayed for a sufficient length of time to allow the viewer to read them and follow the action of the program;

(iii) the extent to which the appearance of the caption coincides with the onset of speech of the corresponding speaker, sound effect or music;

[…]

(ix) the extent to which the appearance or disappearance of the caption, as the case may be, coincides with the relevant shot or scene change.

Complainant’s submissionThe complaint received by the ACMA on 10 January 2014 concerned the quality of the captioning in the program, stating in part that:

I would like to complain about the quality of captions on the Channel Nine News on 6 January 2014, 6pm to 7pm.

[…] There seemed to be very little to no punctuation or grammar and the use of colours was all over the place and very inconsistent. There were some sentences that seemed to use two colours at once. But then there weren’t many fullstops [sic] used so it was very hard to tell what was the end of one sentence and what was the beginning of the next.

[…] Also, some people were clearly not captioned at all… and there were captions there for words that nobody spoke!

[…] The captions didn’t match the pictures that well in many parts of the news. Sometimes they did, but sometimes they were in front of the news reader, and there was one section where they were so far behind I had no idea what was going on.

[…] and I do understand that live captions will always be a little later than the news reader, which is fine, but one particular delay was well beyond what I’m used to seeing anywhere.

Licensee’s submissionsThe licensee’s submission to the ACMA dated 13 March 2014 refuted the allegations, including in part the following:

The National Nine News bulletin is retransmitted ‘live’ by the licensee from the originating broadcaster the Nine Network, Sydney where the program is produced and captioned. There is no opportunity for the licensee to control the content of the program as a consequence.

[…] The program met the conditions of Part 9D of the Act.

The licensee’s second submission to the ACMA dated 9 September 2014 stated in part:


1. No basis for finding non-compliance with section 130ZR(1)

WIN is of the view that the ACMA has incorrectly applied the law in relation to the finding of non-compliance with section 130ZR( 1) of the Broadcasting Services Act 1992 (BSA), and that section 5 of the Broadcasting Services (Television Captioning) Standard 2013 (Quality Standard) is invalid…

"Captioning service" is not defined in the BSA. The ordinary meaning of these words must therefore be applied…

In its Preliminary report, the ACMA states, in its reasons for finding non-compliance with 130ZR:

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.

WIN respectfully disagrees with this reasoning.

On its face, section 130ZR contains no requirement for the captioning service provided to comply with [the] Quality Standard. There is no reference in any of the relevant extrinsic materials associated with this section which indicates an implicit or inherent requirement to comply with the Quality Standards as part of the rule set out at section 130ZR…

It is also relevant to note that section 130ZR only requires the provision of a captioning service for a television program. It does not treat program segments as distinct. It is therefore not open to the ACMA to make findings under this section in relation to only part of a program (being a program segment).

2. Deficiencies in framework mean that no action should be taken

This investigation also highlights a number of impracticalities and deficiencies in the existing captioning framework…

Live Captioning

[…]

The special nature of live captioning should be taken into account in considering compliance with the Quality Standard, and allowances should be made accordingly in assessing compliance. This does not appear to have been sufficiently taken into account in the ACMA's Preliminary report.

Carriage of network programming by regional affiliate broadcaster

WIN receives the National Nine News program as an [sic] "live" feed delivered from the Nine Network. The program is fed straight through the WIN playout system originating from the Nine Network Sydney playout centre. Because the program is "live" to air, WIN has no opportunity or means to amend, update or correct any captioning errors in the "live" feed, even if it became aware of such errors as the program goes to air.

Program segments should not be considered separately

The Quality Standard currently distinguishes "program segment" as separate to a program in its entirety (see section 4 and section 6(b) of the Quality Standard).


This approach is not contemplated by the legislative framework for captioning - either in the definition of "program" at section 130ZK of the BSA or any other provision of Part 9D. In this case, the majority of the program was provided with adequate captions. As such, no breach finding should be made against WIN for the failure of some segments.

[…]

Assessment of distinct program segmentsSection 6 of the Standard requires that the quality of a captioning service must be determined in the context of the program as a whole.7

The definition of ‘program’ in the standard is that ‘program’ includes a television program and a distinct program segment within a television program. 8 This is consistent with the definition of ‘program’ at sections 6 and 130ZK of the BSA. Section 6 states that ‘program’ is ‘matter the primary purpose of which is to entertain, to educate or to inform an audience’. Section 130ZK states that ‘program’ excludes advertising or sponsorship matter, or a community service announcement or an emergency warning.

The definition of ‘program’ in the Standard, together with section 6(b) of the Standard, require that 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. The ACMA maintains that this approach best fits the purpose of Part 9D of the BSA, being ‘to facilitate improved access to free-to-air and subscription television by Australia’s hearing impaired community’. 9

As the program being assessed has distinct program segments, the quality of the captioning service has, where applicable, been assessed in the context of each distinct program segment (with a list of segments and their associated captioning issues presented in Attachment A).

Assessment of live captioningThe licensee stated that the Preliminary report did not take into account the fact that the program was live captioned.

The Explanatory Statement to the Standard states the following:

The ACMA recognises that broadcasters and narrowcasters may use different methods of captioning, such as live captioning and pre-prepared captioning. The ACMA takes the view that it is important to consider whether the captioning service provided with a program is what would be expected in the context of the program as a whole.

Factors to consider include the circumstances of the broadcast and the nature of the program being broadcast. For example, it is reasonable to expect that during the live broadcast of a fast-paced sporting match there would be a time lag between the captions and the soundtrack and the caption lines may not end at natural linguistic breaks.10

7 ibid, s 6(a)8 ibid, s 49 Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television) Bill 2012

(which introduced Part 9D of the BSA), p.110 See Section 6 Determining the quality of captioning services – Broadcasting Services Television Captioning

Standard Explanatory Statement at http://www.acma.gov.au/theACMA/Consultations/Consultations/Completed/captioning-


http://www.acma.gov.au/theACMA/Consultations/Consultations/Completed/captioning-quality


In determining the quality of captioning, the ACMA takes into account, among other factors, the circumstances of the broadcast, including the nature of live captioning and the fact that delays may occur. The ACMA had regard to this fact in the present investigation, but also notes that regardless of the method of captioning, the captioning provided for a program must be meaningful to viewers.

FindingEleven program segments that did not comply with the Standard

The licensee failed to comply with the Standard and accordingly failed to comply with subsection 130ZZA(4) of the BSA with respect to 11 distinct segments of the program.

Reasons

The ACMA has assessed that the various issues with captioning throughout the 11 segments were significant enough to make those segments unable to be followed or comprehended.

The ACMA’s view is that, considering the important information contained in the 11 segments that was not imparted to viewers reliant on the captioning service, the captions directly affected the overall accuracy and comprehensibility of the captioning service provided for these distinct program segments. The Explanatory Statement to the Standard states the following:

Paragraph (b) of section 6, and the definition of “program” in section 4, together have the effect that the quality of a captioning service for a program that is a distinct program segment within a television program will be considered in the context of that distinct program segment on its own, provided that the segment is unrelated to other program segments. So, for example, a current affairs program may consist of several segments which are each distinct from and unrelated to other segments in that program.

Similar to a current affairs program, a news program generally consists of segments which may be distinct and unrelated to other segments. The ACMA has found in this instance that each of the 11 segments were distinct in themselves and therefore the captioning was assessed within each segment as opposed to the program overall.

The table at Attachment A lists the distinct program segments and their relevant captioning issues.

The following segments of the program contained captioning issues which affected the accuracy, comprehensibility and or readability of the segment in question, to the extent that captioning was not meaningful to viewers relying on captions.

2. Heading Home 11

The ‘Heading Home’ segment focused on a man who was placed in an induced coma following an assault, his current condition and the legal affairs involving the alleged attackers. During the studio anchor’s introduction, unrelated captions appeared temporarily affecting accuracy.

At 6.00 pm, the spoken content was:

quality

11 Numbering of segment headings is adopted from the list of segments at Attachment A.




Good evening. A man accused of starting a fight that left his victim in an induced coma is about to walk free after being granted bail. Three weeks on from the brutal attack in Bondi Michael McEwen was released from hospital but his road to recovery will be a long one.

While unrelated captioning stated:

And Matthew Snelson joins us from Silverwater jail – Notes; TAKE 2 WAY BOXES (2 WAY BOXES) Matt, when is Expected to walk free?

This was followed by a delay of 14 seconds, commencing with the studio anchor’s salutation and the correct captions for this story. In an attempt to coincide the captions with the audio, the pace of captions became illegible as they appeared on screen too briefly to be followed. The journalist’s commentary, as well as comments by the victim’s father, were delayed by up to 23 seconds and not colour coded. This part of the segment, focusing on the condition of the victim and his ongoing recovery, was a critical part of the story. The delay, coupled with the lack of colour coding to assist in speaker identification, was substantial enough to make the captioning incomprehensible.

At times, additional sentences and words were present in the captions that were not spoken or present in the audio soundtrack. For example, at 6.01 pm, the term ‘$Yellow’ appears prior to the victim’s father’s speech being captioned.

Captions then froze, when for eight seconds, the viewer read the following:

What he would like to say is to thank everyone for their support.

The caption slightly changed and froze for the next seven seconds to:

[…] thank everyone for their support. He has felt the support from so

At 6.02 pm, the spoken content was:

[…] today’s steps brought immeasurable happiness, but they are only small in the journey ahead. It’s an incredible day because we didn’t expect to be here so soon.

While the captions stated (unrelated captioning is underlined):

[…] today’s steps brought immeasurable happiness, but they are only small in the journey ahead. The toughest men walk away from a fight, you know, they stop fights, they don’t go and punch people when they’re not watching.

While the additional captions did relate to the content being broadcast, they did not match the spoken words or soundtrack of the segment. Throughout most of this segment, the erroneous inclusion of the additional captions would have made it difficult for a person relying on the captions to comprehend the segment.

Taking into account the requirements of subsection 8(a), and paragraphs 8(b)(i), 9(b)(i),(ii), (iii) and (ix) of the Standard, the ACMA has formed the view that the cumulative effect of captions not accurately recreating the soundtrack of the program, important parts of spoken content not being captioned, captions not clearly identifying individual speakers, captions not being displayed for a sufficient length of time and captions not coinciding with the onset of speech of the corresponding speaker and shot change, meant that the captioning service was incomprehensible and inaccurate. The ACMA therefore considers that the quality of the captioning provided for this segment did not meet the requirements of the Standard.

3. Poisoning Mystery


The quality of the captioning in the pre-recorded part of this segment was satisfactory however once the studio anchor commenced her live interview with the journalist situated in Bali, the captions froze for ten seconds after she asked her first question:

Studio anchor: Michael when will the post mortem begin?

The pace at which the captioned response was transmitted was so fast that it was illegible. Consequently, it would have been difficult for viewers reliant on captions to understand the live interview, which was a wrap up of the story.

Taking into account the requirements of paragraphs 9(b)(ii) and (iii) of the Standard, the ACMA has formed the view that the captions were not displayed for a sufficient length of time and they did not coincide with the onset of speech of the corresponding speaker. The ACMA therefore considers that the quality of the captioning provided for this segment did not meet the requirements of the Standard.

5. Australia Post

For 11 seconds of the segment, comments made by Shadow Minister Anthony Albanese were not captioned (despite him being clearly identified in the text and given significant visual air time). This affected the overall accuracy and comprehensibility of the segment.

Additionally, colour coding was not used for the captions towards the end of this story to indicate a new speaker’s comments. The captions remained the same colour for the last speaker and the reporter’s closing comments: this would have meant that a person relying on the captions would have been unable to identify which person was making the statement.

Taking into account the requirements of subsection 8(a), and paragraphs 8(b)(i) and 9(b)(i) of the Standard, the ACMA has formed the view that the cumulative effect of captions not accurately recreating the soundtrack of the program, important parts of spoken content not being captioned and captions not clearly identifying individual speakers, meant that the captioning service was incomprehensible and inaccurate. The ACMA therefore considers that the quality of the captioning provided for this segment did not meet the requirements of the Standard.

10. USA Freeze

Captions for the ‘USA Freeze’ segment at 6.12 pm were delayed to such an extent that they were still being transmitted 21 seconds into the next segment. Additional issues included confusing colour coding which hindered identification of speakers, as well as missing and unrelated captions. Please refer to Attachment B for a detailed breakdown of issues.

Taking into account the requirements of subsection 8(a), and paragraphs 8(b)(i), 9(b)(i),(iii) and (ix) of the Standard, the ACMA has formed the view that the cumulative effect of captions not accurately recreating the soundtrack of the program, important parts of spoken content not being captioned, captions not clearly identifying individual speakers and captions not coinciding with the onset of speech of the corresponding speaker and relevant shot change, meant that the captioning service was incomprehensible and inaccurate. The ACMA therefore considers that the quality of the captioning provided for this segment did not meet the requirements of the Standard.

11. Weather Snapshot

At 6.15 pm, 21 seconds into the segment, the relevant captions appeared for the weather update.


The ACMA is of the view that although the graphics on screen informed the viewer of the main points (weather forecast temperatures and wind speeds throughout greater Sydney), the significant amount of time (21 seconds) showing unrelated captioning would have made it difficult for a person relying on the captions to comprehend the segment.

Taking into account the requirements of subsections 8(a), and paragraphs 8(b)(i) and 9(b)(ix) of the Standard, the ACMA has formed the view that the cumulative effect of captions not accurately recreating the soundtrack of the program, important parts of spoken content not being captioned and captions not coinciding with the relevant shot change, meant that the captioning service was incomprehensible and inaccurate. The ACMA therefore considers that the quality of the captioning provided for this segment did not meet the requirements of the Standard.

12. RAAF delivering foreign aid

At 6.15 pm this 22 second segment contained no colour coding for speaker identification. The captions for the officer’s comments were also delayed by 10 seconds resulting in rapid transmission of captions which was at times erratic and illegible. Nearly one quarter of this story’s captions continued into the next story about a dolphin.

Taking into account the requirements of paragraphs 9(b)(i), (iii) and (ix) of the Standard, the ACMA has formed the view that the cumulative effect of captions being illegible and captions not coinciding with the onset of speech of the corresponding speaker and relevant shot change, meant that the captioning service was incomprehensible and inaccurate. The ACMA therefore considers that the quality of the captioning provided for this segment did not meet the requirements of the Standard.

21. News ahead

At 6.24 pm and 6.25 pm captions were repeated:

A little later in sport we’ll hear from more of our Ashes heroes

An 11 second delay of captions then occurred whereby captioning for the news stories yet to come were fast paced and partially missing.

Only the second half of the spoken commentary for this segment was captioned and as the segment was only 24 seconds in length, the few comments that were captioned did not provide sufficient context or information to make this segment meaningful, thereby diminishing comprehensibility.

Taking into account the requirements of subsections 8(a), 8(b)(i) and 9(b)(i) of the Standard, the ACMA has formed the view that the cumulative effect of captions being illegible and important parts of spoken content not being captioned meant that the captioning service was incomprehensible and inaccurate. The ACMA therefore considers that the quality of the captioning provided for this segment did not meet the requirements of the Standard.

38. Royal stamp 39. Cannabis Industry 40. News ahead 41. Weather update

The ‘Royal Stamp’ story contained no captions at all whereas the following three stories were only partially captioned. Captioning from previous stories were transmitted accompanying the visual content in the following stories.

Taking into account the requirements of subsection 8(a) and paragraphs 8(b)(i) and 9(b)(ix) of the Standard, the ACMA has formed the view that the cumulative effect of captions not accurately recreating the soundtrack of the program, important parts of spoken content not being captioned and captions not coinciding with the relevant shot change, meant that the


captioning service was incomprehensible and inaccurate. The ACMA therefore considers that the quality of the captioning provided for this segment did not meet the requirements of the Standard.

Conclusion

The ACMA has formed the view that the licensee has failed to comply with the requirements of sections 8 and 9 of the Standard, by not providing a captioning service that was accurate and comprehensible for the 11 segments (amounting to 12 minutes 20 seconds) in the National Nine News program broadcast on 6 January 2014. In doing so, the licensee has failed to comply with the requirements of the Standard with respect to these 11 segments in the program, and has consequently breached section 130ZZA(4) of the BSA.

FindingRemaining program segments

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

Reasons

While the ACMA identified a number of issues relating to the quality of the captioning service provided in the remaining distinct program segments within the National Nine News program, the captioning service for these segments was considered, on balance, to still be meaningful to deaf and hearing impaired viewers and to comply with the Standard. The issues identified are listed against each segment in Attachment A, with the key issues highlighted below

Delays: The captions for some segments were delayed. However, the relationship between visuals and sound was largely preserved, due mainly to the extensive use of location or related footage and other visuals. These visuals remained on screen for a substantial 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 inconsistent colour coding for identification of speakers. However, this did not make the captions unreadable and the overall message of each remaining news segment was still conveyed to the viewer.

Missing captions: while certain program segments were missing some captions (as set out in Attachment A), the overall comprehensibility of these program segments was not altered, either because the visuals on screen enabled the viewer to comprehend the message or the uncaptioned words did not convey critical information.

Extra captioning: Extra captioning is present for some segments, but this issue does not affect the overall comprehensibility of the news stories.


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 these segments. The captioning service provided, along with the strong visual content present, allowed for meaningful access to the remaining distinct program segments within the 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 program and in doing so, complied with subsection 130ZZA(4) of the BSA in relation to those remaining distinct program segments.

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) (Basic rule) 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 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and

(b) ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

Finding

Eleven program segments

The licensee has failed to comply with the requirements of subsection 130ZR(1) of the BSA, by not providing a captioning service for 11 distinct segments of the program on 6 January 2014, 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 service12 during the designated viewing hours.

While the term ‘captioning service’ is not defined in the BSA, 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. This interpretation is consistent with the power

12 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.


granted to the ACMA under subsection 130ZZA(1) of the BSA, to determine standards that relate to the quality of captioning services.

The ACMA’s interpretation also fits the purpose of the BSA. Firstly, the Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television) Bill 2012, which introduced new and expanded captioning provisions to the BSA, states that the purpose of developing captioning standards is to ‘obligate broadcasters to provide a consistent quality of captioning services … and … ensure captioning services are meaningful to the viewer’. Secondly, as mentioned above, the more general purpose of Part 9D, is 'to facilitate improved access to free-to-air and subscription television by Australia’s hearing impaired community'. That is, captioning services must be of a consistent quality, so they are meaningful to hearing impaired viewers, to enable them to have improved access to television.

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 formed the view that the licensee did not comply with the requirements of the Standard as it failed to provide a captioning service that was accurate and comprehensible for 11 segments of the program.

Accordingly, as the ACMA has found that the licensee failed to provide a captioning service that satisfied the requirements relating to quality in the Standard for 11 segments of the program, it has also concluded that the licensee failed to provide a captioning service for the 11 segments as required by subsection 130ZR(1) of the BSA.

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 program segments within the National Nine News program, in accordance with the basic rule.

Reasons

As noted above, the ACMA has made the finding that the remaining program segments of the National Nine News program complied with the requirements of the Standard. Accordingly, the ACMA has formed the view that the licensee provided a captioning service for the remaining program segments as required by subsection 130ZR(1) of the BSA, and thus complied with the basic rule for these program segments.

Issue 3: Did the licensee comply with the licence condition set out in clause 7(1)(o) of Schedule 2 to the BSA?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 failed to comply with subsection 130ZZA(4) of the BSA, by failing to provide a captioning service that was accurate and comprehensible, in accordance with the Standard for 11 distinct segments (amounting to 12 minutes 20 seconds) of the program. The 11 program segments are listed below:

1. Heading Home (story#2)

2. Poisoning Mystery (story#3)

3. Australia Post (story#5)

4. USA Freeze (story#10)

5. Weather Snapshot (story#11)

6. RAAF delivering Foreign Aid (story#12)

7. News Ahead (story#21)

8. Royal Stamp (story#38)

9. Cannabis Industry (story#39)

10. News Ahead (story#40)

11. Weather Update (story#41)

Further, the ACMA’s finding is that the licensee has failed to comply with subsection 130ZR(1) of the BSA by failing to provide a captioning service for the 11 segments in accordance with that subsection.

It follows that the licensee has failed to comply with the licence condition in paragraph 7(1)(o) of Schedule 2 to the BSA.


ATTACHMENT ATABLE OF SEGMENTS, THEIR APPROXIMATE DURATION AND ASSOCIATED ISSUES

Greyed out – No issues identified, no breach for that segment and not referred to in the report proper.

Bold – breach due to captioning issues identified.

Normal – No breach despite captioning issues identified.

Segment Story Captioning Issue

1 Introduction None identified

2 Heading Home Delay

Frozen captions

Incorrect or missing captions

Issues with speak identification

3 Poisoning Mystery Delay

Frozen captions

Pace of captions

4 ACA interview promo Slight delay in captions

5 Australia Post Missing and incorrect captions

Issues with speaker identification

Delay

6 Behind Bars Some missing and incorrect captions

Delay

7 Record Car Sales None identified

8 Horror Day on NSW Roads None identified

9 Over Height Trucks None identified

10 USA Freeze Delay


Incorrect and missing some captions

11 Weather Snapshot Overlapping captions from previous segment

12 RAAF delivering Foreign Aid No speaker identification

Missing some captions


Pace of captions

Significant delays

13 Swim School Incorrect and missing some captions

14 News Ahead None identified

15 City Drama Missing some captions


16 Plane Terror None identified

17 Michael Schumacher None identified

18 Snow Domes None identified

19 Time to Celebrate Some incorrect and missing captions

20 Sports promo None identified

21 News Ahead Missing captions

Delay

Pace of captions

22 House Fire Missing end captions


23 Hit and Run Incorrect captions in some parts


24 Whale Killings None identified

25 True Grit Incorrect and missing some captions

Delay

Pace issue in parts

26 Paddling Pool Warnings None identified

27 Crash Diet Missing captions

Incorrect captions for some parts

28 Lives at Risk None identified

29 Manhattan Blaze None identified

30 In Good Humour None identified


31 Home Lenders None identified

32 Sport Update None identified

33 Weather promo None identified

34 Sport Missing and incorrect captions in some parts


35 News Ahead None identified

36 Top Stories None identified

37 Small Lenders None identified

38 Royal Stamp Delay

No captions that related to the visuals displayed in this segment

39 Cannabis Industry Missing captions

Delay in captions

40 News Ahead Missing captions

41 Weather Update Missing captions

42 Finance Missing captions

43 Weather Missing captions

44 Wrap up None identified


Attachment B – ‘USA Freeze’

Audio Accompanying Captions

Issue

12.23 Studio anchor (Audio): The United States is being battered by a so-called ‘polar vortex – a rare freezing hurricane, which has sent temperatures plummeting. Some parts could feel as cold as minus 57 degrees Celsius, colder than the North Pole and the planet Mars.

Journalist (Audio): Upside down and smouldering, fire crews found a passenger and two crew inside the executive jet. It had been the pilot’s second attempt to land – he’d called the tower letting them know he was having trouble in the high wind.

Studio anchor (Captions): The United States is being battered by a so-called ‘polar vortex – a rare freezing hurricane, which has sent temperatures plummeting. Some parts could feel as cold as minus 57 degrees Celsius, colder than the North Pole and the planet Mars.

Journalist (Captions): Upside down and smouldering, fire crews found a passenger and two crew inside the executive jet. It had been the pilot’s second attempt to land – he’d called the tower letting them know he was having trouble in the high wind.

No issue

Pilot’s voice (Audio): OK to return back and do another approach. We had a tailwind of 30 knots.

Pilot’s voice (Captions): OK to return back and do another approach. We had a tailwind of 30 knots.

Speaker Identification bold

Journalist: Passengers at the terminal saw the plane coming in low over the snow.

Witness (Audio): It was doing this and then it hit and flipped and there was smoke and a big ball of flames.

Journalist (Captions): Passengers at the terminal saw the plane coming in low over the snow.

Witness (Captions): It {was moving then it} was doing this then it hit and flipped smoke and a big ball of flames.

Additional captions {bracketed}

Missing captions underlined

Journalist (Audio): The co-pilot died. In New York this plane ran into trouble before it took off sliding off the tarmac in the snow.

Journalist (Audio): It added more delays to the entire American network. 3000 flights have been cancelled. Another 6000 are delayed. Some passengers have been camping out at the airport for four days.

Passenger (Audio): We don’t have a plane we don’t have a crew. Then they say they

Journalist (Captions): The co-pilot died. {It looked impossible that someone would still be alive}. In New York this plane ran into trouble before it took off sliding off the tarmac in the snow. {Or will it} It added more delays to the entire American network. 3000 flights have been cancelled.




Additional captions


have a crew they don’t have a plane and it’s a bit back and forth.

Journalist (Audio): It could take more than a week to get aviation schedules back on track once the snow stops but there’s more deep freeze forecast from the Canadian border to the most southern states.

Chicago Emergency Department Personnel (Audio): These are extremely dangerous conditions and we strongly urge people to head the warnings and take the necessary precautions to stay safe. If you can stay indoors please do so.

Journalist (Audio): It will be so cold the anti-freeze used in cars won’t work. The roads are already a mess. Police are also investigating if irritation with a driver going slow in the conditions led a road rage shooting on a highway in Pennsylvania. 28 year old Timothy Davison was rammed off the road from behind and shot dead before he could get out of the wreck.

Police officer (Audio): So we are reviewing the tapes right now and we’re hoping that we can get some more information that will help us find out what happened.

Journalist (Audio): The chill however didn’t make football fans in Wisconsin cranky but they could be considered crazy.

Local Wisconsin man (Audio): Wisconsin natives that’s all we are we can’t help it.

Journalist (Audio): The locals call it the Ice Bowl. Support may have been warm but it wasn’t enough to help their team win. Cold and sorry walk home in the snow. In the United States Darren Curtis Nine News.

Journalist (Captions): {Some passengers have been camping out for four days. Frustrated as they prepare only to have the flight scrapped due to more snow falling We don’t know if they have a plane, and then when they do there’s no crew, we don’t know what’s going on. It could take more than a week to get aviation schedules back on track once the snow stops. But there’s more deep freeze forecast from the Canadian border to the most southern states.

{Temperatures are expected to drop to minus 24 with a wind chill dropping it even lower, minus 49, an Arctic hurricane.} It will be extremely dangerous, take precautions to stay safe, stay indoors. It will be so cold, the anti-freeze used in cars won’t work. The roads are already a mess. {11 cars collided on Staten Island when one driver spun out of control on black ice.}

It was very icy out there. When I got out there in my tow truck it was like we was on an ice-skating rink and everybody was slipping and sliding. Police are also investigating if irritation with a driver going slow in the conditions led a road rage shooting on a highway in Pennsylvania.

28 year old Timothy Davison was rammed off the road from behind and shot dead before he could get out of the wreck. He was on 911 for the majority of this incident and we are reviewing the tapes to try to see

{bracketed}







Captions overlapping into next segment

[NEXT STORY]


if we can get any information to help us find out what happened. The chill, however, didn’t make football fans in Wisconsin cranky, but they could be considered crazy. We’re Wisconsin natives, all we are. We can’t help it. 80,000 bought tickets to watch their teams play in an open-air stadium, the tempreture [sic] – minus 15. A cold and sorry walk home in the snow. Darren Curtis Nine News.


Compliance Action

following Investigation Report No. 3177

Licensee WIN Television NSW Pty Ltd

Station WIN (Southern New South Wales)

Type of Service Commercial Television

Name of Program National Nine News (6 January 2014)

Investigation conclusion

WIN Television NSW Pty Ltd (the licensee) has not complied with the requirements of subsection 130ZZA(4) of Part 9D of the Broadcasting Services Act 1992 (BSA) by failing to comply with the Standard in relation to 11 distinct program segments within the National Nine News program broadcast on 6 January 2014 (the program);

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 11 distinct program segments within the program; and

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

Agreed measuresThe licensee explained it received the National Nine News program from its affiliated network and because of the live method of captioning for the program, the licensee had no ability to correct captioning errors even if it had become aware of errors.

The ACMA understands that the licensee will communicate the results of this investigation to its affiliated network to request that steps be taken to prevent a recurrence of these incidents.

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