Investigation Report No. 3124File No. ACMA2013/1493

Licensee Prime Television (Northern) Pty Ltd

Station NEN

Type of Service Commercial television broadcasting services

Name of Program My Kitchen Rules Grand Final

Date of Broadcast 28 April 2013

Relevant Legislation subsection 130ZR(1) of Part 9D (captioning) of the Broadcasting Services Act 1992 (the BSA)

paragraph 7(1)(o) of Schedule 2 to the BSA (captioning) subsection 130ZUB(1) of the BSA (disregard breach)

Decision Prime Television (Northern) Pty Ltd (the licensee) has breached subsection 130ZR(1) of Part 9D of the BSA by failing to provide a captioning service in accordance with that subsection;

pursuant to subsection 130ZUB(1) of the BSA, the breach should not be disregarded in determining whether the licensee has complied with its captioning obligations under subsection 130ZR(1) of the BSA; and

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

ACMA Investigation Report My Kitchen Rules Grand Final broadcast by NEN on 28 April 2013

The complaintOn 28 April 2013, the Australian Communications and Media Authority (ACMA) received a complaint alleging that Prime Television (Northern) Pty Ltd (the licensee) failed to provide a captioning service for the program My Kitchen Rules Grand Final broadcast on Sunday 28 April 2013 at 6.30pm (the program).1

As this 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: 2

the licensee’s compliance with subsection 130ZR(1) of the BSA;

the application (or otherwise) of subsection 130ZUB(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 programMy Kitchen Rules is a reality television program involving a cooking competition with each broadcast of the program being typically one hour in length. Pairs of contestants cook in their homes (one pair from each state in Australia) ‘hosting’ the rest of the competitors and judges. The pairs are given final scores at the end of each program.

The two hour broadcast of the program My Kitchen Rules Grand Final on 28 April 2013 was the final episode of the fourth season of the series, in which the winner of the overall competition for 2013 was announced.

Structure of the program: The introduction establishes the competition where the final two pairs compete to win the ‘grand final’. Their mission is to serve a five course meal for which they will be judged. Each of the five courses are prepared and served. The pairs’ cooking skills are judged and the winning pair is announced.

AssessmentThe ACMA has investigated the licensee’s compliance with the captioning obligations imposed under Part 9D of the BSA, and whether or not any breach should be disregarded as a result of unforeseeable technical difficulties. 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.

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’s affiliate. Other relevant sources relied upon have been identified in the report.

1 A second and similar complaint was received on the same day concerning Prime Television (Northern) Pty Ltd (NEN)’s broadcast of the same program. This complaint is being investigated in a separate investigation # 3046.

2 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.

ACMA Investigation Report My Kitchen Rules Grand Final broadcast by NEN on 28 April 2013 2

Issue 1: 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.

Complainant’s submission

The complaint received by the ACMA on 28 April 2013 stated in part the following:

Just started watching the first half hour of "My Kitchen Rules" grand final with no problems. Now at 7pm the captions are gone and the following message has been flashed up repeatedly: "Due to technical difficulties closed captions are not available" and that they apologise for lack of closed captions...... Not good enough in prime time and for a show that is non-live in nature.

Licensee’s submissionThe ACMA sought comment from the licensee. In the licensee’s submission dated 12 September 2013, the licensee claimed that the missing captions occurred as a result of an error with their affiliate, the Seven Network, stating in part the following:

Prime received the feed of the Broadcast from its affiliate, the Seven Network, which is delivered to Prime from Seven's Broadcast Centre, Melbourne (BCM). Seven is responsible for the captioning of the Broadcast and engages an external supplier, [captioning service provider], to provide its captioning services.

Please note that NEN did not suffer any technical failure in its service.

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Prime became aware that there was a failure of the captioning service, due to a technical problem, that initially we were able to trace to the BCM. In accordance with clause 1.24.3 of the Commercial Television Code of Practice, we note that Seven put an apology on screen at 19:04:24, which was seen by NEN viewers. Prime put a second apology on screen specifically for viewers the NEN licence area at 19:05:08 as follows:

"We apologise for Closed Captions being unavailable on this program”.

Captions were absent for segment 3 of the Broadcast, but returned for segment 4.

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

ReasonsUnder 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 core/primary commercial television service, during the designated viewing hours of 6pm and 10.30pm. That is, as the program was broadcast on NEN (the licensee) from 6.30pm to 8.45pm, during the designated viewing hours, a captioning service should have been provided for the program.

Missing Captions

The licensee acknowledges that ’there was a failure of the captioning service’. The ACMA reviewed the copy of the broadcast provided by the Seven Network (the affiliate network to the licensee) and confirmed that no captions were provided for ten minutes and forty seconds from 7pm to 7.11pm.

While acknowledging that captions were missing for ‘approximately’ ten minutes, the licensee maintains that a captioning service was provided.

The term ‘captioning service’ is not defined in the BSA, although implicit in the obligation to provide a captioning service, is that the captioning service satisfies requirements relating to quality. This interpretation is consistent with the power granted to the ACMA under subsection 130ZZA(1) of the BSA, to determine standards that relate to the quality of captioning services.

The interpretation also fits the purpose of the BSA. Firstly, the purpose of developing captioning standards, to “obligate broadcasters to provide a consistent quality of captioning services … and … ensure captioning services are meaningful to the viewer” and secondly, the more general purpose of Part 9D, 'to facilitate improved access to free-to-air and subscription television by Australia’s hearing impaired community'.3 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.

Subsection 130ZZA(2) of the BSA provides that for the purposes of subsection 130ZZA(1) quality includes readability, comprehensibility and accuracy.3 See Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television) Bill 2012

that introduced Part 9D to the BSA.

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The Broadcasting Services (Television Captioning) Standard 2013 (the Standard) made under subsection 130ZZA(1) of the BSA was not in force at the time of the broadcast of the program on 28 April 2013, having only come into effect on 5 June 2013. Accordingly, the ACMA is unable to determine the licensee’s compliance with its obligations under subsection 130ZR(1) by reference to the Standard.

Notwithstanding this, recognising the implicit obligation to provide a captioning service that satisfies requirements relating to quality, in determining the licensee’s compliance with its obligations under subsection 130ZR(1) the ACMA has assessed the quality of the captioning services provided for this program by reference to the ‘Quality Indicators’ set out in Attachment A. The Quality Indicators were developed in consultation with the Co-regulatory Captioning Committee. 4

The ACMA assessed the captioning services provided for the program (throughout all segments) against the relevant ‘Quality Indicators’, by considering their cumulative effect on the overall accuracy, readability and comprehensibility of the captioning service.

This process was undertaken by the ACMA viewing the program with captions and without audio. The program was viewed again with audio and captions. The ACMA then compared the captions to the audio.

The ACMA found that where a captioning service was provided in the program the captions were accurate, readable and comprehensible. However, the ACMA noted that crucially, the absence of captions for ten minutes and forty seconds impacted on the overall comprehensibility of the captioning service for the program as a whole. Accordingly the quality of the captioning service provided for the television program as a whole was not consistent and therefore not meaningful to the viewer and consequently did not facilitate improved access to the program.

In its assessment, the ACMA considered the nature and characteristics of the program, the content of the program in the lead up to that part of the program without captions, the length of time and the content in the period without captions, the remaining content that was captioned and the impact of the missing captions on the overall readability and comprehensibility of the captioning service for the program as a whole.

Nature and characteristics of the program

The ACMA considers that the nature and characteristics of this particular program are important in its assessment. As mentioned above, the program was the final episode of the fourth season of the series and lasted approximately two hours. As with similar forms of competition based reality programming, the final result of the cooking competition, the competition process and the emotions expressed by the contestants, are all crucial components of the program. The viewer is engaged in the momentum of the competitive process by being provided with an understanding of each of the competition stages; how the judges, guests and contestants interact; and their commentaries on the food and the cooking processes during those stages.

The audio that accompanies the visuals is crucial, firstly to a viewer’s understanding of, and secondly to their engagement with the different inter-related stages of the program. For example,

4 In September 2010, the ACMA facilitated the establishment of the Co-regulatory Captioning Committee to develop indicators for assessing the quality of captioning. Members of the committee included broadcasters, deaf and hearing impaired groups, relevant government departments and captioning service providers. The committee met five times between November 2010 and January 2012.

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the host judges explain the competition rules and format; the contestants talk about the ingredients they use, their cooking techniques and the difficulties involved; the dialogue between members of each team reveal their feelings and team dynamics; and the judges comment on each course. Therefore, a captioning service needs to be accurate, readable and comprehensible throughout the different inter-related stages of the program to facilitate viewers relying on the captioning service to have improved access to the television program as a whole.

Lead up to missing captions

The first half hour of the program established the competitors and provided context. The introduction revealed snippets of all the season’s competitors and the food they had cooked. Highlights of previous episodes were also included. The context was established with the final two out of 15 pairs competing to win the ‘grand final’. Their challenge was to serve a five course meal producing 100 plates of food for which they would be judged.

The competitors commenced cooking as dinner guests arrived. The guests included previous contestants, family and friends. The contestants explained their cooking methodologies as they prepared the first course. The host judges commented on each pair’s cooking methods. There was obvious emotion as the competitors ran to greet their guests and ran back to their cooking with controlled focus, adding a new level of intensity to the viewing experience. The program reached its first climax from around 18:55, when two to three minutes remained for the two competing teams to serve the first course. With their guests cheering and counting down from the last ten seconds, each of the two teams completed their first course in time. The excitement and intensity of the competition process was conveyed by both the visuals and the commentary:

18:56:25 Jake of team 2: Yahoo! Whoo!

18:56:30 a guest: Nice work, guys.

18:56:34 a guest: Nice job, looking good.

18:56:37 Dan of team 1: I can’t believe what we’ve just plated up.

18:56:39 Steph of team 1: Phew.

18:56:41 Dan of team 1: This dish looks absolutely amazing. I can’t believe it.

18:56:46 Elle of team 2: We know that we have the most refined food in tonight’s cook-off. I am pretty sure that’s what we need to win this. I know we can do it.

At this point, the program built anticipation for the tasting of the first course. Then the program stopped for advertisements.

Period of missing captions

After the advertisement break, at approximately 7pm, the program resumed without captions, during which time guests provided commentary while they waited for the first course. Their brief commentary was followed by one discrete advertisement. The program resumed again without captions. The competitors shared their thoughts and this was followed by the host judges’ and guest judges’ tasting and commentary of the first course. The judges’ commentary was interspersed with the guests’ commentary on the food. The host judges then thanked the guest judges and the program progressed to the next stage of the competition which was preparation

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of the second course. The audio commentary explained what food was being prepared and how and why it was being prepared in a particular way. The audio consisted of verbal exchanges during the preparation, as well as voice-overs from each pair, either pre or post recorded.

Having reviewed the relevant segments of the program where captions were missing, the ACMA has formed the view that the relationship between sound and visuals was not preserved for a viewer relying on captions (Attachment A quality indicator for time and editing (2.(i)). The only text presented onscreen were the names of each first course and Seven’s apology notice. For viewers relying on captions, the visuals by themselves did not provide details of the judges’ impressions of each first course and whether the dishes were favourable or not. The program then progressed from the dining tables back to the preparation of the second course.

The ACMA considers that it would have been very difficult to comprehend the cooking processes taking place and why or even, at times, what food was being cooked. Also missing is an understanding of the incidental exchanges taking place, reflecting the contestants’ feelings.

While the tension of the competition was apparent from varying tracking views of the red digital timer counting down, repeatedly checked by the contestants looking up or turning around from their work benches, the other problems the contestants were encountering would have only been evident from the audio.

Accordingly the failure to provide a captioning service during this part of the program affected the overall comprehensibility of the captioning service for the program as a whole. This meant that the captioning service provided was not consistent and therefore not meaningful to the viewer, such that it did not facilitate improved access to the television program for a viewer reliant on the captioning service.

Post missing captions

After the next advertising break, the program continued with captions in which the last three minutes of preparation for the second course took place. The remaining parts of the program covering the other three courses were captioned. The host judges and guest judges gave overall comments and scores for each pair. At the end, the winning pair was announced.

Comprehensibility

The ACMA’s main concern with the program’s captioning is the overall comprehensibility for a viewer reliant on captions.

The ACMA maintains that during the uncaptioned segment, it would have been difficult for viewers relying on captions to understand the cooking processes taking place and why or even, at times, what food was being cooked, as some critical information was conveyed through the audio.

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For example:

At 19:04, Dan explained what squab is and why it was being cooked: “Squab is basically a fancy name for pigeon. It’s not your run-of-the-mill city pigeon. It’s pigeon that’s been bred for this beautiful meat that they have.”

Dan and Steph’s explanation of the ‘sous vide’ cooking method.

Steph’s explanation in preparing Team One’s fifth course (dessert).

Jake’s explanation of how he stuffed and rolled the quail and the stuffing.

Jake wraps the quail in what might appear to be bacon but which is pancetta.

Onlookers’ commentaries of the techniques used, timing and encouragement.

The ACMA considers that captions were missing during a formative stage of the program – a stage which was critical for delivering an understanding of the competition’s format as well as early indicators of each team’s progress. In the ACMA’s view, the following statements in the first segment (which is captioned) do not ‘fully describe’ the competition:

(18:37) Tonight both teams will serve a five course menu, each producing 100 plates for a full restaurant.

(18:39) As always, the guest judges will blind taste tonight’s meals.

It cannot be assumed that all viewers would have understood the meaning of ‘blind tasting’ unless they were already aware of this judging process. How blind tasting actually worked was revealed during the uncaptioned segment – just before the judges tasted and commented on the first course:

(19:01) Chefs, welcome to the grand final. Jake and Elle, Dan and Steph have plated their first course. What you don’t know is who cooked which dish. Team 1 created Scallop Ceviche. And Team 2’s dish is Wagyu Beef Carpaccio.

A captioning service should be accurate, readable and comprehensible, so that a viewer relying on a captioning service can understand, engage and follow the format and development of the program in question, regardless of whether the viewer is familiar with the program and its cast. The ACMA also considers that it cannot be assumed that all viewers of the final episode of My Kitchen Rules also watched previous episodes of the program.

The ACMA notes that in the segment following the uncaptioned segment, there was a recap of the impressions of the first courses from one of the host judges, which was captioned:

(19:30) I’d have to say after these two courses, one team is just in front of the other.

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However, for viewers relying on the captioning service, this recap would not have bridged the gap of comprehensibility, as the detailed comments made by the judges on each of the first courses during the uncaptioned segment were missing.

The ACMA acknowledges that the visuals alone would have made it apparent that timing was a problem encountered by the contestants. There were other challenges however, apart from the issue of cooking the course in time, for the duration of the uncaptioned content:

Challenges for Team One were identified in the preparation of the squab. Steph and Dan explained the potential for error in the sous vide process where a one degree temperature increase would affect the tenderness of the meat, or water entering the plastic would boil the meat thereby having unwanted results. These details were narrated by the competitors and provided meaning relevant to demonstration of their knowledge, skill and technique – the absence of captions during this segment of the program meant this information was not provided to viewers relying on the captioning service.

Team Two’s problems commenced prior to the cooking of the quail: their preparation was delayed and Elle ceased her own work to assist Jake. The audio commentary revealed that Elle was not meant to be involved with preparation of quail and became aware of her thoughts in relation to helping her brother as well as her frustration with time wastage. This was a fore-runner to the next segment during the third course preparation. At 19:38 Elle said, “I’m getting really upset. I just...I feel like I’ve been trying so hard in the quail course to keep Jake together. And then in this third course I‘m trying to keep Jake together, and now myself together. And I just feel like it’s on my shoulders and I can’t cope any more. I’m just sick of always holding the fort all the time!” Again these issues would have been difficult to comprehend for viewers relying on the captioning service.

The ACMA maintains its view that it cannot be assumed that a viewer reliant on captioning is already familiar with the program and details of the program’s format. The purpose of providing a captioning service for a television program is to enable viewers relying on captions to have improved access to the program, regardless of whether a viewer has watched the program before.

The ACMA is of the view that the absence of captions during the relevant period would have affected not only the momentum of the program and viewers’ engagement, but also the comprehensibility of the captioning service for the program as a whole. The overall cumulative effect of the absence of captions during a developing stage of the program, just one quarter into its duration, is discussed below.

Overall cumulative effect

As previously noted the program is usually of one hour length and has an established format. The episode in question was unique in that it was twice as long as normal and had an altered format. The format of the ‘grand final’ was explained to the audience throughout the first part and as such the competition format was being established. This establishment of the competition format was interrupted during the period of missing captions. The ACMA notes that that part of the program in which the judges’ comment on the first of five courses and preparation of the second course begins was without captions.

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An important part of the competition was starting at this stage with the treatment of the first course informing the audience on how the pairs fared with respect to the views expressed by the host judges and guest judges, as well as how the remaining courses might be managed by the contestants. The missing captions at this stage of the first course tasting and second course preparation was detrimental, as all audience members (hearing impaired or not) would have been in the process of being informed about how each pair might be judged initially and therefore throughout the remainder of the competition.

Missing captions in the program at the critical establishment phase of the competition would have made it difficult for a viewer relying on captions to comprehend the format of the program and the cooking processes in the program.

Nearly eleven minutes (approximately 10 per cent) of captions were missing, nearly one quarter into the program. The audio in the part of the program that was not captioned contained critical information about the first and second courses, including the explanation about how ‘blind-tasting’ works; judges’ comments during the blind-tasting of the first course, and six minutes of preparation of the second course. The cumulative effect was that for viewers relying on the captioning service, the lack of captions during these segments made it difficult to comprehend a critical part of the program. This affected the viewers’ engagement with the program, which in turn impeded rather than facilitated their access the television program as a whole. In these circumstances, the ACMA does not consider that the licensees provided a captioning service for the program.

Conclusion

The ACMA considers that the missing captions for ten minutes and forty seconds would have made it difficult for a viewer relying on the captioning service to access the program as a whole, thereby causing an interruption to the viewers’ engagement with the program at an important stage in the competition, as crucial information about two of the five courses served during the program was not captioned. Further, the missing captions at a crucial stage in the program meant that there was no consistency in the quality of captioning services provided for the program, such that the captioning services were not meaningful to the viewer and did not facilitate improved access to the television program for a viewer relying on the captioning service. Accordingly, the ACMA is of the view that the licensees breached subsection 130ZR(1) of the BSA by failing to provide a captioning service for the program in accordance with that subsection.

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Issue 2: Whether the breach of subsection 130ZR(1) should be disregarded under s130ZUB of the BSA due to unforeseeable technical difficulties.

Relevant provisions

Section 130ZUB(1) of Part 9D of Division 2 of the BSA:

             If:

(a) apart from this subsection, a commercial television broadcasting licensee has breached a provision of this Division; and

(b) the breach is attributable to significant difficulties of a technical or engineering nature for the licensee; and

(c) those difficulties could not reasonably have been foreseen by the licensee;

then the breach is to be disregarded in determining whether the licensee has complied with the provision.

Licensee’s submissionIn response to the ACMA’s request for information, on 18 October 2013 the licensee stated:

We believe that there has been compliance with subsection 103ZR(1) insofar that a captioning service was provided for the program.

We acknowledge that there was an absence of captioning for a period during the broadcast of the program, but believe that if the ACMA does not accept that the captioning service was provided, as noted above, then the absence of captions during that period should at the least be deemed a breach attributable to significant difficulties of a technical nature for the licensee and such difficulties could not reasonably have been foreseen by NEN.

The applicability of s.130ZUB is particularly relevant to NEN, as an affiliate of the Seven Network, in circumstances where NEN:

- takes the feed of the program from Seven's Broadcast Centre, Melbourne, in real time with no practical opportunity to check if the captioning service is being correctly provided;- has no contractual relationship with the third party captioning supplier and no ability to instruct them as to the requirements under the Broadcasting Services Amendment (Improved Access To Television Services) Act 2012; and- took all possible steps available to keep our viewers aware of the absence of the captioning during the period of outage and communicated with  Seven's Broadcast Centre, Melbourne during the time that the captions were absent, while they were trying to rectify the problem.

FindingThe breach of subsection 130ZR(1) by the licensee should not be disregarded under section 130ZUB of the BSA, as the breach was not attributable to unforeseen significant difficulties of a technical or engineering nature for the licensee.

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ReasonsThe ACMA notes the licensee’s submission that ‘the absence of captions during [the program] should at the least be deemed a breach attributable to significant difficulties of a technical nature’.

In its submission dated 12 September 2013, the licensee (NEN) advised that it ‘did not suffer any technical failure in its service’. After the licensee became aware of the missing captions, it alerted its affiliate (Seven).

In the same letter the licensee stated:

Seven has since advised us that the fault was the result of a technical oversight by [captioning service provider], not BCM. We understand that [captioning service provider] has accepted responsibility for the error and that the employee responsible has been given further training and been reprimanded. We have been advised that Seven made every effort to rectify the error and that Seven and [captioning service provider] have taken steps to ensure that it will not be repeated.

Prime has no ability to influence or manage significant technical issues that arise from Seven's BCM or from Seven's supplier, [captioning service provider], except insofar as ensuring that it communicates the failure of the captioning to the viewers, which was done promptly. Furthermore, given it was the grand final – and many episodes of My Kitchen Rules had been broadcast prior to this one, without incident – Prime could not have reasonably foreseen that any difficulties would arise during the Broadcast.

In response to the preliminary investigation report findings, the licensee made a further submission on 2 May 2014. This submission re-stated the licensee’s position and reiterated that the breach should be disregarded on the grounds of unforeseen technical issues. The licensee further stated that any breach should be considered in the context of ‘operational circumstances peculiar to a regional network affiliate in the procurement of captioning services through its metropolitan affiliate’ and restated that the licensee ‘has no ability to influence or manage significant technical issues that arise from Seven’s BCM or from Seven’s supplier, [captioning service provider]’.

The licensee advised that ‘the captioning service provider has accepted responsibility for the technical error...and appropriate and sufficient remedial steps have been taken in that regard’. The ACMA notes that the licensee also advised that these remedial steps included reprimanding the employee, and providing further training. The ACMA considers this to be an appropriate response consistent with an error of a ‘human’ rather than a technical or engineering nature.

Based on these submissions, the ACMA has formed the view that while the difficulties could not reasonably have been foreseen:

the error was attributable more to ‘human error’ than to a significant difficulty of an engineering or technical nature; and,

the fault arose from the affiliate, Seven, rather than from the licensee.

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Under subsection 130ZUB(1) of the BSA, a breach by the licensee can only be disregarded if the breach was both attributable to significant difficulties of a technical or engineering nature for the licensee and those difficulties could not reasonably have been foreseen by the licensee.

The ACMA does not consider the error to be attributable to a significant difficulty of a technical or engineering nature.

Accordingly in this instance, subsection 130ZUB(1) of the BSA does not apply, as the criteria in the provision has not been satisfied, and therefore the breach of subsection 130ZR(1) of the BSA cannot be disregarded.

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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(1)(o) 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.

FindingThe licensee has not complied with the licence condition set out in clause 7(1)(o) of Schedule 2 to the BSA.

ReasonsThe ACMA’s finding is that the licensee has breached subsection 130ZR(1) of the BSA by failing to provide a captioning service for the program in accordance with that subsection.

As the license condition requires compliance with the provisions of Part 9D, and the licensee has not complied with subsection 130ZR(1) of Part 9D of the BSA, 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

CONSIDERATIONS – THE QUALITY OF CAPTIONING

Introduction

The ACMA is committed to ensuring that the captioning services provided by television broadcasters give the deaf and hearing-impaired community meaningful access to television.

As part of this commitment the ACMA uses the quality indicators set out below to assess the overall readability and comprehensibility of closed captioning.

In considering whether a particular broadcaster has satisfied the captioning obligations, the ACMA has regard to all of the relevant quality indicators and, most importantly, the cumulative effect of their application rather than assessing a broadcast against each individual criterion.

Quality Indicators

Grammar and Presentation

1. In assessing closed captions during programs, the ACMA will have regard to the extent that:

i. punctuation is used to make captions as easy as possible for viewers to read;

ii. punctuation conveys, as much as possible, the way speech is delivered;

iii. sentence case is used where practical;

iv. spelling is, as far as practicable, accurate;

v. repetition of information that is already on the screen (such as the name of a presenter

or temperatures in a weather report) is avoided;

vi. as far as practicable, closed captions do not overlap or impede any text based

information already on the screen.

Timing and Editing

2. In assessing closed captions during programs, the ACMA will have regard to the extent that:

i. closed captions coincide with the relevant soundtrack, so that the relationship between

sound and visuals is preserved for the viewer;

ii. closed captions stay as close as possible to the original wording while allowing the

viewer enough time to read the captions and still watch the action of the program;

iii. where time allows, and where practical, closed captions are verbatim (word for word);

iv. having regard to the intended audience, text reduction remains faithful to the script, and

vocabulary and sentence structure is preserved as much as possible;

v. line breaks reflect the natural flow of a sentence and its punctuation;

vi. closed captions are not consistently more than three lines in length (the preference is

for one-line or two-line captions to be used);

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vii. during live closed captioning:

a. captions coincide as closely as possible with the relevant soundtrack, so that

the relationship between the visuals and the sound is preserved for the viewer;

b. the priority is always to transcribe as much of the spoken content of the

program as possible is transcribed.

Identification of Different Speakers

3. In assessing closed captions during programs, where there are different speakers, the ACMA will have regard to the extent that broadcasters have ensured that, as far as possible, the captions clearly identify and distinguish each speaker. This should be done through varying the colouring of the closed captioning, and as far as possible, varying the positioning of the closed captions (see 4 and 5 below).

Colour and Font

4. In assessing closed captions during programs, the ACMA will have regard to the extent that:

i. white closed captions are used as much as possible as they are the easiest to read;

ii. sound effects are identified using a different colour and the same colour is used for all

sound effects throughout the program;

iii. if using colour to denote different speakers, as far as possible, a different colour is used

for each speaker.

Positioning

5. In assessing closed captions during programs, the ACMA will have regard to the extent that:

i. as far as possible, positioning of closed captions avoids obscuring important

information on the screen, such as action, superimposed text, graphic text descriptors

or activities, or the speaker’s lips.

ii. as far as possible, positioning is varied to identify who is speaking.

Sound Effects

6. In assessing closed captions during programs, the ACMA will have regard to the extent that:

i. any noise or music that enhances the visuals, contributes to characterisation or adds

atmosphere, is captioned;

ii. a viewer does not receive any more information than a hearing viewer would get.

ACMA Investigation Report My Kitchen Rules Grand Final broadcast by NEN on 28 April 2013 16